Page 1 Page ID #:
SEAN K. KENNEDY (145632)
(E-mail: Sean_Kennedy@fd.org)
Federal Public Defender
SEAN J. BOLSER (No. 250241)
(E-Mail: Sean_Bolser@fd.org)
DAISY BYGRAVE (No. 256487)
(E-mail: Daisy_Bygrave@fd.org)
CALLIE GLANTON STEELE (No. 155442)
(E-Mail: Callie_Steele@fd.org)
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California 90012-Telephone (213) 894-Facsimile (213) 894-Attorneys for Petitioner
RICHARD RAMIREZ
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
RICHARD RAMIREZ,
Petitioner,
v.
Case No. CV 07-8310-JVS
DEATH PENALTY CASE
Petition for Writ of Habeas Corpus
ROBERT L. AYERS, JR., Warden of (Exhibits filed concurrently)
California State Prison at San Quentin,
et al.,
Respondents.Page 2 Page ID #:
TABLE OF CONTENTS
Trial Counsel’s Conflict of Interest Adversely Affected
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.
Petitioner’s Interests and That of His Family Were
In Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Counsel Failed to Pursue Mental Health Defenses Because
Doing So Would Have Diminished the Value of the Media
Rights and Brought Shame to the Ramirez Family . . . . .
3.
Counsel Refrained from Obtaining and Presenting Penalty
Phase Mitigation Information that was Unfavorable to
Petitioner’s Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
The Fee Arrangement Caused Petitioner’s Defense to be
Underfunded, Resulting in Unwarranted Delay and
Counsel’s Absence from Critical Portions of the Trial . .
5.
The Mid-Trial Appointment of Ray Clark Did Not Cure
the Adverse Affect Caused by the Hernandezes’
Third-Party Fee Agreement . . . . . . . . . . . . . . . . . . . . . . .
D.
A.
Alternatively, Counsel’s Conflict of Interest Rendered Them
Ineffective Within the Meaning of Strickland . . . . . . . . . . . . . .
CLAIM 5: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE COURT DENIED PETITIONER HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL BY PERMITTING THE SUBSTITUTION
OF COUNSEL WHO WERE UNQUALIFIED AND SUFFERED FROM A
PROFOUND CONFLICT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . .
Counsel Lied To the Court Regarding Their Intention
To Obtain a Book or Movie Deal on Behalf of
Petitioner’s Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
The Trial Court Violated Petitioner’s Constitutional Rights By
Allowing Him to be Represented By Unqualified Counsel . . . . 1.
Trial Courts Have the Right to Refuse Counsel of Choice
in Order to Ensure the Fairness of the Proceedings . . . . .
2.
Counsel’s Lack of Qualification and Experience Posed An
Obvious Threat To The Fairness of Proceeding At The Time
of Substitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Counsel’s Incompetent And Unethical Conduct Throughout
The Trial Should Have Prompted Their Removal By The Trial
Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Trial Court Erred in Allowing Petitioner to Be Represented
By Counsel Who Suffered an Obvious Conflict of Interest . . . . xPage 12 Page ID #:
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PAGE(S)
1.
A Defendant Cannot Insist on Being Represented By An
Attorney Who Suffers from a Conflict of Interest . . . . . .
2.
Counsel’s Conflict of Interest Was Apparent At The
Time of Substitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Counsel’s Repeated Claims of Financial Hardship
Should Have Prompted Removal By The Trial Court . . .
CLAIM 6:
THE TRIAL COURT’S REFUSAL TO GRANT RAMIREZ’S MOTION
FOR A CHANGE OF VENUE AND TRIAL COUNSEL’S FAILURE TO
PRESENT RAMIREZ’S MOTION FOR A CHANGE OF VENUE
COMPETENTLY VIOLATED MR. RAMIREZ’S CONSTITUTIONAL
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A.
The Trial Court Erred in Failing to Grant a Change
of Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Extent of Publicity . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Nature of Publicity . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Gravity and Nature of Offense . . . . . . . . . . . . . . . .
4.
Prominence of the Victims and Status of the
Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
Size and Nature of the Community . . . . . . . . . . . .
B.
To the Extent the Trial Court Did Not Commit Error
by Denying Petitioner’s Venue Motion, the Denial
was the Result of Counsel’s Ineffective and Deficient
Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 7:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REJECTING PETITIONER’S
FOR-CAUSE CHALLENGES OF JURORS WHO WERE NOT
LIFE-QUALIFIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 8:
THE TRIAL COURT DEPRIVED PETITIONER OF HIS RIGHT
TO AN IMPARTIAL JURY BY ERRONEOUSLY EXCLUDING
POTENTIAL JURORS WHOSE CONCERNS ABOUT THE
DEATH PENALTY WOULD NOT HAVE SUBSTANTIALLY
IMPAIRED THE PERFORMANCE OF THEIR DUTIES . . . . . . . . .
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CLAIM 9:
VOIR DIRE AT PETITIONER’S TRIAL WAS INADEQUATE TO
SECURE HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL
AND LIFE-QUALIFIED JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 10:
INEFFECTIVE ASSISTANCE DURING JURY SELECTION . . . . . A.
Failing To Challenge or Adequately Question Jurors Whose
Convictions About the Death Penalty Substantially Impaired
the Performance of Their Duties . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Failing To Adequately Question or Attempt To Rehabilitate
Prospective Jurors Who Initially Suggested That They Could
Not Vote for the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
“Rehabilitating” for the Prosecution’s Benefit, Instead of
Striking, Jurors Who Were Not Actually Life-Qualified . . . . . .
D.
Failing To Examine Jurors Adequately About Aggravating and
Mitigating Factors Likely To Be Involved in the Case . . . . . . .
CLAIM 11:
THE TRIAL COURT FAILED TO ENFORCE THE LEGAL
STANDARD FOR HARDSHIP DISMISSAL, RESULTING IN
A “JURY OF VOLUNTEERS” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 12:
THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
REMOVE FEMALE AFRICAN-AMERICAN JURORS BECAUSE
OF THEIR RACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Gwendolyn Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Katherine Sanford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Johnnie Sue Lang . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Hortensia Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Demetrius Joseph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F.
Alicia Alex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G.
The Prosecution’s Other Strikes . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 13:
THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
REMOVE HISPANIC ALTERNATE JURORS BECAUSE OF THEIR
RACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiiPage 14 Page ID #:
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O.
P.
Trial Counsel Failed to Investigate, Litigate, Object to, Crossexamine or Otherwise Adequately Challenge the Prosecution’s
Evidence in the Abowath Incident, Counts 39-43 (burglary,
murder, rape, oral copulation, sodomy, burglary-murder
special circumstance) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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PAGE(S)
1.
The Prosecution’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Defense Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
The Defense Failed to Competently Challenge the
Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Q.
Trial Counsel Failed to Investigate, Litigate, Object to, Crossexamine or Otherwise Adequately Challenge the Prosecution’s
Evidence in the Uncharged Incident (Burglary) . . . . . . . . . . . . .
R.
Failure to Competently Present an Opening Statement . . . . . . .
S.
Further Evidence of Failure to Defend Against the Charges . . .
T.
Failure to Challenge the Prosecution’s Evidence . . . . . . . . . . . .
U.
Failure to Object to the Prosecutor’s Closing Argument . . . . . .
V.
Other Guilt Phase Errors Rendered the Guilt Trial
Verdict Unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 18:
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE GUILT
AND PENALTY PHASES: SOCIAL HISTORY AND MENTAL
HEALTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trial Counsel Failed to Adequately and Competently Investigate,
Develop, and Present Petitioner’s Life History and Evidence of
Petitioner’s Significant Cognitive, Neurological, Psychological,
and Psychiatric Impairments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Family Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Experience with Injury, Trauma, and Violence . . . . . . . .
3.
Exposure to Neurotoxins and Other Environmental
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Petitioner’s Long-Standing History of Neurological,
Cognitive, Psychological, and Psychiatric Impairments .
5.
History of Significant Drug Use from an Early Age . . . .
6.
Petitioner’s Mental State at the Time of the Offenses
and His Arrest and Throughout the Trial Proceedings . . .
A.
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B.
Petitioner Was Prejudiced at Both Phases of His Capital Trial by
Trial Counsel’s Failure to Conduct an Adequate Social History
Investigation, to Present that Information to Appropriate Mental
Health Experts, and to Present to the Jury on Petitioner’s Behalf
All the Evidence that Bore on Petitioner’s Competence to
Stand Trial and to Waive Rights and on Guilt and Penalty . . . .
C.
Additional Constitutional Violations
A.
B.
The Constitutional Violations Were Prejudicial Per Se . . . . . . .
CLAIM 22: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE TRIAL COURT UNCONSTITUTIONALLY SHACKLED
PETITIONER THROUGHOUT THE CAPITAL TRIAL . . . . . . . . . .
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CLAIM 23: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY ADMITTING
INFLAMMATORY PHOTOGRAPHS . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 24: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE
JURY THAT PETITIONER’S REFUSAL TO REMOVE HIS
SUNGLASSES WAS EVIDENCE OF CONSCIOUSNESS OF
GUILT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 25:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REMOVING JUROR ROBERT
LEE DURING DELIBERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 26:
THE TRIAL COURT’S REFUSAL TO VOIR DIRE THE JURY
AND GRANT MR. RAMIREZ’S MOTION FOR A MISTRIAL
AFTER A JUROR WAS MURDERED DURING TRIAL, AND
TRIAL COUNSEL’S FAILURE TO COMPETENTLY PRESENT
MR. RAMIREZ’S MOTIONS VIOLATED MR. RAMIREZ’S
CONSTITUTIONAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A.
The Trial Court Violated Petitioner’s Constitutional Rights
by Failing to Grant Counsel’s Motion for a Mistrial and
Immediately Voir Dire the Jury . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 27:
COUNTS 3 AND 5 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT PETITIONER’S CONVICTIONS OF BURGLARY
AND FIRST-DEGREE FELONY-MURDER . . . . . . . . . . . . . . . . . . . CLAIM 28:
COUNT 5 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE SPECIAL CIRCUMSTANCE FINDING OF
BURGLARY/MURDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 29: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COUNT 6 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT PETITIONER’S CONVICTION OF
SECOND-DEGREE MURDER IN THE YU INCIDENT . . . . . . . . . . CLAIM 30: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE PROSECUTION KNOWINGLY AND IN BAD
FAITH PRESENTED UNRELIABLE AND FALSE EVIDENCE . . . CLAIM 31: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE PROSECUTION MISLED THE JURY ABOUT
PETITIONER’S INVOLVEMENT IN THE OFFENSES . . . . . . . . . . xixPage 21 Page ID #:
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PAGE(S)
CLAIM 32:
PETITIONER’S CONSTITUTIONAL RIGHTS WERE
VIOLATED BY THE PROSECUTOR’S PREJUDICIAL
MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CLAIM 33: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE GUILT PHASE CUMULATIVE ERRORS
VIOLATED PETITIONER’S RIGHTS UNDER
THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 34: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE ABSENCE OF ANY MITIGATING EVIDENCE
RENDERED THE CAPITAL SENTENCING PROCESS
CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF
THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS . . . . CLAIM 35:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO
INSTRUCT THE JURY THAT PETITIONER’S AGE IS
A MITIGATING FACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 36:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY IN
THE LANGUAGE OF CALJIC NO. 8.85, THUS UNDERMINING
HIS RIGHTS TO A RELIABLE PENALTY DETERMINATION . . . CLAIM 37:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY REGARDING SUFFICIENCY OF MITIGATING
EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 38:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY ON THE MEANING OF LIFE WITHOUT THE
POSSIBILITY OF PAROLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 39:
PETITIONER’S CONSTITUTIONAL RIGHT TO LIMIT THE
AGGRAVATING CIRCUMSTANCES TO SPECIFIC
LEGISLATIVELY-DEFINED FACTORS WAS VIOLATED
BY CALJIC NO. 8.84.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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PAGE(S)
CLAIM 40:
THE DEATH SENTENCE IS DISPROPORTIONATE AND IS
CRUEL AND UNUSUAL PUNISHMENT BECAUSE OF
PETITIONER’S SERIOUS PSYCHIATRIC, PSYCHOLOGICAL,
NEUROCOGNITIVE, NEUROLOGICAL, AND OTHER
IMPAIRMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLAIM 41:
CALIFORNIA’S DEATH PENALTY STATUTE, AS
INTERPRETED BY THE CALIFORNIA SUPREME COURT
AND APPLIED TO PETITIONER, IS CONSTITUTIONALLY
DEFECTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A.
The California Death Penalty Statute Fails to Narrow the
Class of Murders Eligible for the Death Penalty. . . . . . . . . . . . .
B.
The California Death Penalty Scheme Gives Prosecutors
Unfettered Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
County-by-County Variation in the Application of the
Death Penalty Violates Petitioner’s Right to Equal Protection .
D.
California Fails to Provide Inter-Case Proportionality Review .
E.
California’s Scheme Violates Due Process By Allowing the
Jury to Repeatedly Consider the Same Evidence in Aggravation
F.
The Penalty Phase Instructions Deprived Petitioner of His
Constitutional Right to an Individualized and Reliable
Sentencing Decision Because They Failed to Designate
Factors as “Aggravating” or “Mitigating” . . . . . . . . . . . . . . . . .
G.
The Jury Instructions Failed to Require a Reasonable Doubt
Determination of Aggravating Factors . . . . . . . . . . . . . . . . . . . .
H.
The Jury Instructions Failed to Require Unanimity on
Aggravating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
The Trial Court Failed to Instruct on the Presumption of a
Life Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
J.
The Jury Instructions Failed to Require Written Findings of
Aggravating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
K.
The Trial Court Failed to Delete Inapplicable Mitigating
Factors from the Language of CALJIC 8.85 . . . . . . . . . . . . . . .
L.
CALJIC’S Requirement that Mitigating Evidence Be
“Extreme” Unconstitutionally Limited the Jury’s
Consideration of Petitioner’s Mitigating Evidence . . . . . . . . . .
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M.
The Language of CALJIC No. 8.88 Prevents Proper
Weighing of Aggravating and Mitigating Evidence . . . . . . . . . .
N.
The Penalty Phase Instructions Were Unconstitutionally
Vague and Incapable of Being Understood by Jurors . . . . . . . .
O.
The California Sentencing Scheme Violates Equal
Protection Because by Denying Procedural Safeguards
to Capital Defendants That Are Afforded to
Non-capital Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
P.
Carrying out Petitioner’s Death Sentence after Excessive
Pre-execution Delay Would Be Cruel and Unusual
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Q.
Imposition of the Death Penalty Violates Petitioner’s Rights
under the Eighth Amendment and International Law . . . . . . . . .
R.
Execution by Lethal Injection Is Cruel and Unusual
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Execution by Lethal Injection is Unconstitutional . . . . . .
2.
Execution by Lethal Gas Is Unconstitutional . . . . . . . . . .
S.
California’s System of Unified Appellate and
Postconviction Review is Unconstitutional . . . . . . . . . . . . . . . .
T.
The Trial Court Violated Petitioner’s Constitutional Rights
When it Failed to Instruct the Jury on the Meaning of
Life Without Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
U.
The Capital Sentencing Scheme Violated the Fifth, Sixth,
Eighth, and Fourteenth Amendments by Permitting Multiple
Use of a Single Felony as the Basis for a First Degree
Murder Finding, as a Capital-Eligibility Factor, and as a
Narrowing Factor in Sentencing . . . . . . . . . . . . . . . . . . . . . . . . .
V.
The Trial Court Erred by Ordering Determinate Sentences to
Be Served Subsequent to Imposition of Death in Violation
of Petitioner’s Rights under the Eighth and Fourteenth
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
W.
Ineffective Assistance of Counsel on Appeal and in
Postconviction Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . .
X.
The Impact of the Constitutional Violations Regarding the
Penalty Phase Rendered the Sentencing Determination
Constitutionally Unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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CLAIM 42:
PETITIONER’S CONVICTIONS AND SENTENCES MUST BE
REVERSED BECAUSE OF THE CUMULATIVE EFFECT OF
ALL THE ERRORS AND CONSTITUTIONAL VIOLATIONS
ALLEGED IN THIS PETITION; THE CUMULATIVE EFFECT
OF GUILT PHASE AND PENALTY PHASE ERRORS WAS
PREJUDICIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
X.
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
XI.
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xxiiiPage 25 Page ID #:
I.
INTRODUCTION
1.
Petitioner Richard Ramirez (“Petitioner”), by and through his
counsel, submits this Petition for Writ of Habeas Corpus (the “Petition”) pursuant
to 28 U.S.C. § 2241 et seq., and the Local Rules for the United States District
Court for the Central District of California. The State of California convicted and
sentenced Petitioner to death. Petitioner’s conviction and death sentence must be
set aside because they are the result of numerous violations of his constitutional
rights. This petition contains both exhausted and unexhausted claims for relief
and factual allegations in support of those claims.
2.
Petitioner intends to seek a stay of the federal action, pursuant to
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), so
that he may file and litigate an exhaustion petition with the California Supreme
Court, in which he will raise the unexhausted claims for relief and present the
new factual allegations in support of claims previously presented to that court.
3.
In addition, Petitioner intends to seek a stay of the federal action,
pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003),
because Petitioner is not presently competent to assist federal habeas counsel. He
will further seek equitable tolling with respect to any new claims that he is
presently unable to assert as a result of Petitioner’s incompetence.
II.
VENUE AND INTRADISTRICT ASSIGNMENT
4.
Petitioner has properly filed the Petition in this District and Division
because Petitioner challenges the lawfulness of a conviction and death sentence
imposed in Los Angeles County, California. L.R. 83-17.3(a), 83-17.5(a).
1Page 26 Page ID #:
III.
JURISDICTIONAL ALLEGATIONS
5.
Petitioner is a prisoner of the State of California. He is illegally and
unconstitutionally confined and restrained of his liberty at the California State
Prison at San Quentin, California, by Warden Robert Ayers, Jr., and Matthew
Cate, Secretary of the California Department of Corrections and Rehabilitation,
pursuant to convictions and death sentences imposed upon him by the Los
Angeles County Superior Court.
6.
This Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 2241 et seq. Petitioner is in state custody in violation of the Constitution, laws
or treaties of the United States, pursuant to a judgment of the State of California.
Petitioner makes the following additional jurisdictional allegations:
7.
Place of detention: California State Prison at San Quentin, San
Quentin, California.
8.
Name and location of court which entered the judgment of
conviction under attack: Superior Court of Los Angeles County, California.
9.
Case number: No. A771272.
10.
Length of sentence: Death.
11.
Convictions: 12 counts of first degree murder (Penal Code
§ 187(a)), one count of second degree murder (§ 187 (a)), five counts of
attempted murder (§§ 187, 664), four counts of rape (§ 261, former subd. (2)),
three counts of forcible oral copulation (§ 288a, former subd. (c)), four counts of
forcible sodomy (§ 286, former subd. (c), and 14 counts of first degree burglary
(§ 459). The jury found true allegations of multiple-murder, burglary, rape,
forcible sodomy, and, forcible-oral-copulation special circumstances (§ 190.2).
12.
Date of conviction: Read and entered on September 20, 1989.
13.
Date of sentence: November 7, 1989.
14.
Kind of trial: Jury.
2Page 27 Page ID #:
15.
Did Petitioner testify at trial?: No.
12.
Petitioner was represented by counsel at trial.
16.
Automatic appeal:
a.
Name of Court: Supreme Court of the State of California.
b.
Result: Affirmed.
c.
Date of result: affirmed on August 7, 2006; rehearing denied
on September 27, 2006.
d.
Citation or number of opinion: Case No. S012944; 39 Cal.4th
398, 139 P.3d 64, 46 Cal.Rptr.3d 677 (2006).
e.
In summary, the grounds raised in Petitioner’s mandatory
automatic appeal included, but were not limited to:
(1)
By permitting two unqualified counsel to represent
Petitioner whose appointment would likely result in significant prejudice to him,
the trial court denied Petitioner his right to assistance of counsel guaranteed by
the Sixth Amendment to the United States Constitution and Article I, § 15 of the
California Constitution;
(2)
Petitioner was denied the right to conflict-free
representation in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, § 15 of the
California Constitution;
(3)
The trial court erred in failing to initiate competency
proceedings pursuant to Penal Code §§ 1368(a) and (b); the court’s error also
violated Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution;
(4)
The trial court erred in denying Petitioner’s motion for
change of venue in violation of California Constitution, Article I, § 15, and the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution;
3Page 28 Page ID #:
(5)
The trial, court erred and abused its discretion in
denying Petitioner’s motion to sever unrelated incidents; the error also violated
Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution;
(6)
The trial court erred in denying Petitioner’s motion for
a jury drawn from a representative cross-section of the community in violation of
Code of Civil Procedure §§ 197 and 203, California Constitution, Article I, § 16,
and the Sixth and Fourteenth Amendments to the United States Constitution;
(7)
The trial court erred in denying Petitioner’s motion for
sequestered voir dire based on prejudicial pretrial publicity; the trial court’s
failure to shield potential jurors or instruct sua sponte regarding pretrial publicity
during voir dire violated Petitioner’s rights under the Sixth, Eighth, and
Fourteenth Amendment to the United States Constitution;
(8)
The trial court erred in violation of the Sixth and
Fourteenth Amendments to the United States Constitution in denying Petitioner’s
challenge of Robert Domney for cause in Hovey voir dire;
(9)
The trial court erred in ordering Petitioner restrained in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution;
(10) The trial court erred and abused its discretion in
admitting inflammatory photographs of the victims and crime scenes;
(11) The trial court erred in instructing the jury that
Petitioner’s refusal to remove his sunglasses was evidence of consciousness of
guilt; the error also violated Petitioner’s rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution;
(12) The trial court erred in removing juror Robert Lee
during deliberations in violation of Petitioner’s rights under the Fifth, Sixth,
4Page 29 Page ID #:
Eighth, and Fourteenth Amendments to the United States Constitution; the error
was prejudicial per se;
(13) The trial court erred in violation of Petitioner’s rights
under the Sixth and Fourteenth Amendments to the United States Constitution in
denying his request for further inquiry of the jury and his motion for mistrial after
a juror was murdered during deliberations;
(14) The evidence was insufficient under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and the
Due Process Clause of Article I, § 15 of the California Constitution to support
Petitioner’s convictions of burglary and first degree felony murder in counts
and 5;
(15) The evidence was insufficient under the Due Process
clause of the Fourteenth Amendment to the United States Constitution and the
Due Process Clause of Article I, § 15 of the California Constitution to support the
special circumstance finding in count 5 of burglary murder pursuant to Penal
Code § 190.2(a)(17)(vii);
(16) The evidence was insufficient under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and the
Due Process Clause of Article I, § 15 of the California Constitution to support
Petitioner’s count 6 conviction of second-degree murder in the Yu incident;
(17) The guilt phase cumulative errors violated Petitioner’s
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution;
(18) Petitioner was deprived of the right to conflict-free
representation at the penalty trial in violation of the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, § 15 of the
California Constitution;
5Page 30 Page ID #:
(19) The trial court erred in failing to follow procedures
pursuant to Penal Code § 1368(a) with respect to Petitioner’s mental competency
to waive presentation of any mitigation evidence during penalty phase; the
court’s error violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth
Amendments to the United State Constitution;
(20) The absence of any mitigating evidence rendered the
capital sentencing process constitutionally unreliable in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution;
(21) The trial court’s denial of Petitioner’ts severance
motion created a prejudicial spillover effect during the penalty trial in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution;
(22) The trial court’s refusal to instruct the jury as to
Petitioner’s age as a mitigating factor pursuant to Penal Code § 190.3(i) violated
Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution;
(23) By instructing the jury in the language of CALJIC No.
8.85, the trial court erroneously undermined Petitioner’s constitutional rights to a
reliable penalty determination in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution;
(24) The trial court’s refusal to instruct the jury regarding
sufficiency of mitigating evidence violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution;
(25) By refusing to instruct the jury on the meaning of life
without the possibility of parole, the trial court erred in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;
(26) The directive of CALJIC No. 8.84.1 to the jury to
determine the facts from the evidence received during the entire trial violated
6Page 31 Page ID #:
Petitioner’s statutory and constitutional rights to limit the aggravating
circumstances to specific legislatively-defined factors;
(27) The impact of guilt trial errors on the penalty trial
rendered the sentencing determination unreliable in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution;
(28) The trial court erred in failing to instruct the jury that a
verdict of death was the appropriate penalty beyond a reasonable doubt and the
absence of a burden of proof at the penalty trial rendered the penalty
determination arbitrary and unreliable;
(29) The trial court erred in failing to instruct the jury not to
double count the special circumstances as separate components of factor (a) of
§ 190.3;
(30) The lack of explicit written jury findings on aggravating
factors deprived Petitioner of a reliable determination of penalty and the right to
appellate review in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution;
(31) The California capital sentencing scheme in effect at the
time of Petitioner’s trial violated the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution by permitting multiple use of a
single felony as the basis for a first degree murder finding as a capital-eligibility
factor and as a narrowing factor in sentencing;
(32) The California capital sentencing procedure in effect at
the time of Petitioner’s trial violated the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution because of the virtually unfettered
discretion granted to the prosecutor to decide whether Petitioner would be subject
to its provisions;
(33) By failing to narrow the class of death-eligible murders,
the 1978 death penalty statute under which Petitioner was sentenced violates the
7Page 32 Page ID #:
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution;
(34) The cumulative effect of guilt phase and penalty phase
errors was prejudicial;
(35) The trial court erred in violation of Petitioner’s rights
under the Eighth and Fourteenth Amendments to the United States Constitution
in ordering determinate sentences to be served subsequent to imposition of death;
(36) Methods of execution employed in California violate
the Eighth and Fourteenth Amendments to the United States Constitution; and,
(37) Violations of Petitioner’s state and federal
constitutional rights likewise constitute violations of international law.
17.
Petition for Writ of Certiorari (following affirmance):
a.
Name of Court: United States Supreme Court.
b.
Result: Denied.
c.
Date of denial: May 29, 2007.
d.
Citation of opinion: No. 06-9529.
e.
The questions presented were:
(1)
After the United States Supreme Court’s decision in
United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d
(2006), is a criminal defendant’s Sixth Amendment right to counsel violated by
retained counsel’s unqualified representation in a capital case?
(2)
Whether California’s death penalty law violates the
Fifth, Sixth, and Fourteenth Amendments by permitting the trier of fact to impose
a sentence of death without finding the existence of aggravating factors beyond a
reasonable doubt?
18.
Petition for Writ of Habeas Corpus (following affirmance):
a.
Name of Court: Supreme Court for the State of California.
b.
Result: Denied.
8Page 33 Page ID #:
c.
Date of result: December 19, 2007.
d.
Citation or number of opinion: In re Ramirez, No. S125755.
e.
In summary, the grounds raised in Petitioner’s petition for
writ of habeas corpus included, but were not limited to:
(1)
Petitioner’s conviction and sentence are
unconstitutional because Petitioner was mentally incompetent throughout the
legal proceedings below and is currently mentally incompetent;
(2)
Petitioner’s constitutional rights were violated because
of counsel’s conflicts of interest;
(3)
Petitioner was denied effective assistance of counsel on
the motion for change of venue in violation of his state and federal rights;
(4)
Counsel’s ineffectiveness in failing to properly
challenge pretrial and trial identification procedures denied Petitioner a
fundamentally fair and reliable trial;
(5)
involuntarily obtained;
(6)
Petitioner’s statements were unreliable and
Petitioner was denied his fundamental right to
assistance of counsel due to counsel’s failure to properly challenge the legality of
the seizure of evidence;
(7)
The State knowingly and in bad faith presented
unreliable and false evidence linking Petitioner to the capital crimes;
(8)
The prosecution misled the jury about Petitioner’s
involvement in the offenses;
(9)
Petitioner was deprived of his right to effective
assistance of counsel and to a fair and reliable determination of guilt and penalty
by trial counsel’s prejudicially deficient performance;
(10) The State violated Petitioner’s rights by engaging in
prejudicial misconduct at the guilt and penalty trials;
9Page 34 Page ID #:
(11) The trial court unconstitutionally and prejudicially
ordered Petitioner to be shackled throughout the trial;
(12) Petitioner received ineffective assistance of counsel at
the guilt and penalty trials of his capital trial due to counsel’s failure to conduct
an adequate investigation into Petitioner’s social history, background, and
evidence of his long-standing mental and organic impairments; to consult and
prepare appropriate lay and expert witnesses; and to present this evidence in
defense of the guilt charges and in mitigation of penalty;
(13) The death sentence is disproportionate and is cruel and
unusual punishment because of Petitioner’s serious neurocognitive, neurological,
and other impairments;
(14) The California death eligibility process used in this case
violates the state and federal constitutions;
(15) Petitioner’s convictions and sentences must be reversed
because of the cumulative effect of all the errors and constitutional violations
alleged in this petition;
(16) Carrying out of the death sentence in this case would
violate the state and federal constitutions;
(17) Petitioner cannot be lawfully executed because the
method of execution in California is forbidden by state, federal, and international
law;
(18) Petitioner’s execution by lethal gas would constitute
cruel and unusual punishment in violation of Petitioner’s federal and state
constitutional rights; and,
(19) Ineffective assistance of counsel on appeal and in post-
conviction proceedings.
19.
Other state proceedings: None.
20.
Other federal proceedings: None.
10Page 35 Page ID #:
IV.
SUMMARY OF THE CASE
A.
Overview
21.
Richard Ramirez (hereafter Petitioner) was born on February 28,
1960, in El Paso, Texas, where his parents raised him in a close-knit, bilingual
family. In 1984, at the time of the first charged murder, Petitioner was twenty-
four years old. Before 1984, his criminal history was a minor misdemeanor
record.
22.
From the very beginning of trial court proceedings, Petitioner, the
so- called “Night Stalker,” repeatedly engaged in bizarre behavior in his jail cell
and in the courtroom, for instance, drawing a pentagram on the palm of his hand
in blood, and repeatedly shouting “Hail Satan” in public. As set forth infra,
despite substantial evidence of Petitioner’s mental problems, the trial court failed
to initiate mental competency proceedings pursuant to Penal Code § 1368.
23.
Despite Petitioner’s manifest mental problems and likely mental
impairment, the trial court permitted him to retain grossly unqualified counsel
and waive significant conflicts of interest. During trial, for example, the court
accepted inadequate waivers from Petitioner as to his constitutional right to
present a defense to the forty-three-count amended information and to present
any mitigating evidence for him at penalty trial.
24.
On November 7, 1989, following guilt and penalty jury trials, the
Superior Court of Los Angeles County imposed a judgment of death upon
Petitioner. A jury convicted petitioner of forty-three counts, including twelve
counts of first degree murder (§ 187(a)); one count of second degree murder
(§ 187(a)); fourteen counts of first degree burglary (§ 459); five counts of
All further statutory references are to the Penal Code, unless otherwise
indicated.
11Page 36 Page ID #:
attempted murder (§§ 664/187); four counts of forcible rape (§ 261(2)); three
counts of forcible oral copulation (§ 288(a)); and four counts of forcible sodomy
(§ 286(c). Special circumstances were found true pursuant to § 190.2(a)(17)(vii)
(twelve counts of burglary); § 190.2(a)(17)(iii) (two counts of rape);
§ 190.2(a)(17)(iv) (two counts of sodomy); § 190.2(a)(17)(vi) (two counts of oral
75.)
25.
arose out of fifteen separate incidents that occurred in Los Angeles County as
shown in Table 1.
The murders and related charges of which Petitioner was convicted
Table 1. Counts of Conviction by Date and Victim
Date
June 27-28,
March 17,
March 17, March 28,
May 14,
May 29 - June 1,
Count
Charge
§ § 187(a)
§ § 664/§ 187(a)
§ 187(a)§ § 187(a)
§ 187(a)
§ § 187(a)
§
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William & Lillie Doi
William Doi
Mabel Bell & Florence Lang
There are thirty-five volumes in the Clerk’s Transcript, designated I
through XXXV, hereafter referred to as I CT through XXXV CT.
Petitioner was convicted of second degree murder in count 6.
12Page 37 Page ID #:
Date
May 30,
July 2,
July 5,
July 7,
July 7,
July 20,
July 20,
Count
Charge
§ 187(a)
§ 664/§ § 261(2)
§ 288(a)(c)
§ 286(c)
§ § 187(a)
§ § 664/§ § 187(a)
§ § 261(2)
§ 286(c)
§ § 187(a)
§ 187(a)
§
August 6,
August 8,
Whitney & Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 487(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ § 664/§ 664/§ § 187(a)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Mary Louise Cannon
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
Victim
Mabel Bell
Florence Lang
Carol Kyle
13Page 38 Page ID #:
Date
Count
26.
By felony complaint filed September 3, 1985, in the Municipal
Court, Los Angeles Judicial District, Los Angeles County, the State charged
Petitioner as set forth in Table 2.
Table 2. Charges and Counts of the Felony Complaint
Date
May 9,
May 14,
Count
Charge
§ § § § § 261(2)
§ 286(c)
§ 288a(c)
§ 187(a)
Victim
Clara Hadsall
William and Lillie Doi
Lillie Doi
William Doi
According to a Municipal Court docket entry, the court appointed the Los
Angeles County Public Defender to represent Petitioner.4 (XIX CT 5465.)
The felony complaint filed September 3, 1985, was not part of the
original record on appeal. Subsequent to record certification, Petitioner moved
under Cal. Rule of Court, Rule 12, to augment the record to include the original
felony complaint. On February 13, 2002, the court so ordered. There is no
reporter’s transcript for the hearing held on September 3, 1985. (See affidavit of
court reporter Dan Leddy regarding destruction of his notes, Reporter’s
Transcript (hereafter “RT”) of a February 7, 1986 hearing, following p. 7; see
also VII Supp. CT 166-67 (Order to Prepare Settled Statement); VIII Supp. CT (Objections to Record on Appeal); VIII Supp. CT 15-16 (Declaration of Counsel
14Page 39 Page ID #:
27.
On filing of the felony complaint, the court continued Petitioner’s
arraignment to September 9, 1985. At the hearing on that date, the court again
continued the arraignment, to September 27, 1985. (See XVII CT 4967-69; see
also XIX CT 5465.)
28.
On September 17, 1985, the trial court held a hearing with respect to
pretrial publicity. The court ordered the parties and all witnesses not to make or
Re: Settled Statement).)
The record on appeal was provided to appellate counsel on December 2,
1992. The initial motion to correct the record was filed September 3, 1994.
Petitioner filed a revised request for correction of the record on appeal on April
26, 1996. Both motions were omitted from the augmented record on appeal. On
May 8, 1998, the trial court ordered the record on appeal augmented to include
proceedings not contained in the original record. (RT 3 (May 8, 1998 hearing).)
Thereafter, on March 12, 1999, the trial court ordered correction of the record on
appeal. On June 21, 1999, the court ordered settled statements to be prepared.
(See VII Supp. CT 166-69.) Petitioner filed objections to the record on appeal on
August 19, 1999. Despite an incomplete record, the trial court certified the
record on appeal on August 19, 1999. (See VIII Supp. CT 4-9, 30.)
There are eight Supplemental Clerk’s Transcripts, designated I through
VIII, hereafter referred to as I Supp. CT through VIII Supp. CT.
•
I Supp. CT consists of one volume of additional superior court
records (pages 1 through 104).
•
I Supp. CT consists of eight volumes of sealed records (pages through 2445).
•
II Supp. CT consists of three volumes of discovery filed in the court
by the prosecution (pages 1 through 660).
•
I Supp. CT consists of a master index and fifteen volumes of
confidential § 987.9 (pages 1 through 4223).
•
VI Supp. CT is a one-page volume (page 4919).
•
VI Supp. CT consists of seventeen volumes of juror questionnaires
(pages 1 through 4918).
•
VII Supp. CT is one volume of corrections to the record on appeal
and settled statements of trial counsel (pages 1 through 248).
•
VIII Supp. CT consists of one volume, including settled statements
of trial counsel (pages 1 through 30).
15Page 40 Page ID #:
authorize public statements concerning evidence in the case. (See XVII
CT 4971-78; see also XIX CT 5466-67.)
29.
The state filed an amended felony complaint on September 26, 1985.
The charges and counts of the amended complaint are set forth in Table 3.
Table 3.
Date
June 27-28,
Counts and Charges of the Amended Complaint Date
March 17,
March 28,
May 9,
May 14,
May 29 - June 1,
Count
Charge
§ § 187(a)
§ § 664/§ 187(a)
§ 187(a)
§ § § 207(a)
§ 261(2)
§ 288(b)
§ § 187(a)
§ 187(a)
§ § § § 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ §
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Thomas Sandoval
Thomas Sandoval
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
Clara Hadsall
William & Lillie Doi
William Doi
Lillie Doi
Lillie Doi
Lillie Doi
William & Lillie Doi
Mabel Bell & Florence LangPage 41 Page ID #:
Date
May 30,
June 27,
June 28, July 2,
July 5,
July 7,
July 7,
July 20,
July 20,
Count
Charge
§ 187 (a)
§ 664/§ § 261(2)
§ 288a(c)
§ 286(c)
§ § § 207(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ § § 187(a)
§ § 187(a)
§ § 664/§ § 187(a)
§ § 261(2)
§ 286(c)
§ § § 187(a)
§ 187(a)
§
Victim
Mabel Bell
Florence Lang
Carol Kyle
[Victim not alleged]
Patti Higgins
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
Khovananth
17Page 42 Page ID #:
Date
August 6,
Count
Charge
§ 187(a)
§ 281(2)
§ 286(c)
§ 286(c)
§
Victim
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Chainarong and Somking
§ 286(c)
§ 288(b)
§
Khovananth
[victim not alleged]
[victim not alleged]
Christopher and Virginia
§ 664/§ 664/§ § 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
August 8,
In the amended felony complaint, the State alleged burglary-murder special
circumstances, pursuant to § 190.2(a)(17), in counts 2, 5, 13, 14, 18, 24, 38, 40,
44, 50, 51, 53, 64. Multiple-murder special circumstances pursuant to
§ 190.2(a)(3) were alleged in counts 2, 5, 6, 13, 14, 18, 24, 38, 40, 44, 50, 51, 53,
64. Count 18 also alleged felony-murder special circumstances pursuant to
§ 190.2(a)(17) in the commission of robbery, rape, sodomy, and oral copulation.
Count 53 alleged additional felony-murder special circumstances, pursuant to
§ 190.2(a)(17), in the commission of robbery, rape, sodomy, lewd and lascivious
act upon a child under the age of fourteen, and oral copulation. Count 64 alleged
additional felony-murder special circumstances, pursuant to § 190.2(a)(17), in the
18Page 43 Page ID #:
commission of robbery, rape, sodomy, and oral copulation. (XVIII CT 5190-273;
XIX CT 5468.)
30.
On September 27, 1985, the trial court continued Petitioner’s
arraignment on the amended felony complaint to October 9, 1985, and then to
October 24, 1985. (XIX CT 5468-69.) On October 24, 1985, the court arraigned
Petitioner on the amended complaint. He entered pleas of not guilty to all counts,
and he denied all other allegations. He also waived the time for the preliminary
hearing. (XVII CT 5017-18.)
31.
The court commenced the preliminary hearing on March 3, 1986.
(XIX CT 5477.) After twenty-nine days of hearing, the prosecution rested its
case on May 6, 1986. Petitioner presented no affirmative evidence. (XIX
CT 5527.) The court held Petitioner to answer on fifty of the charges in the
amended felony complaint as shown in Table 4.
Table 4.
Counts and Charges on Which Petitioner Was Held to
Answer After Preliminary Hearing
Date
June 27-28,
March 17,
March 28,
May 14,
Count
Charge
§ § 187(a)
§ § 664/§ 187(a)
§ 187(a)
§ § 187(a)
§ 187(a)
§
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent & Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William and Lillie Doi
Count 68, as set forth in a docket entry of May 6, 1986, inexplicably was
omitted from the amended complaint. (See XVIII CT 5273-74.)
19Page 44 Page ID #:
Date
May 29 - June 1,
May 30,
June 28,
July 2, July 5,
July 7,
July 7,
July 20,
July 20,
Count
Charge
§ 187(a)
§ § § 187 (a)
§ 664/§ § 261(2)
§ 288a(c)
§ 286(c)
§ § § 187(a)
§ § 187(a)
§ § 664/§ § 187(a)
§ § 261(2)
§ 286(c)
§ § § 187(a)
§ 187(a)
§
§ 187(a)
§ 281(2)
Victim
William Doi
William and Lillie Doi
Mabel Bell and Florence
Lang
Mabel Bell
Florence Lang
Carol Kyle
Patti Higgins
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
Khovananth
Chainarong Khovananth
Somkid KhovananthPage 45 Page ID #:
Date
Count
Charge
§ 286(c)
§ 286(c)
§
Victim
Somkid Khovananth
Somkid Khovananth
Chainarong and Somking
§ 286(c)
§ 288(b)
§
Khovananth
[victim not alleged]
[victim not alleged]
Christopher and Virginia
§ 664/§ 664/§ § 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
August 6,
August 8,
The court also found sufficient evidence to hold Petitioner to answer on special
circumstances alleged pursuant to §§ 190.2(a)(3) (multiple murder), 190.2(a)(14)
(murder especially heinous, atrocious, or cruel), and 190.2(a)(17) (burglary
murder) in counts 2, 13, 14, 18, 24, 38, 40, 44, 50, 51, 53, 56. The court found
the evidence sufficient to hold Petitioner to answer on special circumstances,
alleged pursuant to § 190.2(a)(3), in counts 5 and 6. (XVII CT 4963-65; XVIII
CT 5190-276.)
32.
The court dismissed counts 7 through 11, 15, 16, 19, 20, 21,
through 36, 58, and 59 on the Prosecution’s motion. The court dismissed felony-
murder special-circumstance allegations in count 18, pursuant to § 190.2(a)(17),
According to the September 26, 1985 amended complaint, the State did
not allege special circumstances pursuant to § 190.2(a)(14). The allegations are
not set forth in the information or amended information. See infra.
21Page 46 Page ID #:
in the commission of rape, sodomy, and oral copulation. (XVII CT 4962-63;
XVIII CT 5274.)
2.
Superior Court
33.
On May 21, 1986, the State filed an information in the Superior
Court of Los Angeles County charging Petitioner with forty-five counts of
murder and other crimes as shown in Table 5.
Table 5. Counts and Charges of the Information
Date
June 27-28,
March 17,
March 28,
May 14,
May 29 - June 1,
May 30,
June 28,
July 2,
Count
Charge
§ § 187(a)
§ § 664/§ 187(a)
§ 187(a)
§ § 187(a)
§ 187(a)
§ § 187(a)
§
Victim
Jennie Vincow
§ 187 (a)
§ 664/§ § 261(2)
§ 288a(c)
§ 286(c)
§ § 187(a)
§
Mabel Bell
Florence Lang
Carol Kyle
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William and Lillie Doi
William Doi
Mabel Bell & Florence Lang
Patti Higgins
Mary Louise CannonPage 47 Page ID #:
Date
July 5,
July 7, July 7,
July 20,
July 20,
Count
Charge
§ 187(a)
§ § 664/§ § 187(a)
§ § 261(2)
§ 286(c)
§ § 187(a)
§ 187(a)
§
August 6,
August 8,
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ § 664/§ 664/§ § 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
Victim
The State alleged burglary-murder special circumstances, pursuant to
§ 190.2(a)(17), in counts 2, 5, 8, 9, 11, 13, 20, 22, 26, 31, 32, 34, and 42.
Multiple-murder special circumstances, pursuant to § 190.2(a)(3), were alleged in
23Page 48 Page ID #:
counts 2, 5, 6, 8, 9, 11, 13, 20, 22, 26, 31, 32, 34, and 42. Counts 34 and 42 also
alleged felony-murder special circumstances, pursuant to § 190.2(a)(17), in the
commission of rape, sodomy, and oral copulation. (XVIII CT 5277-324.) On
May 21, 1985, Petitioner entered pleas of not guilty to all charges, and he denied
all other allegations. (XI CT 6235; A-1 RT–A-3 RT.)
34.
At the next hearing, held on June 17, 1986, the court set a trial date
for September 2, 1986. Petitioner waived time to that date. (1 RT 17-19.) The
court ordered pretrial motions to be heard on August 1, 1986. (Id. at 21-22.)
35.
The court conducted hearings with respect to pretrial motions for
change of venue,8 suppression of identification evidence,9 suppression of
evidence pursuant to § 1538.5,10 exclusion of Petitioner’s statements,11 and
The Reporter’s Transcripts are hereafter designated A-1 RT through RT. As a result of record correction proceedings, there are unmarked transcripts
for trial court hearings held on October 22, 1985 (pages 1 through 64), and
February 7, 1986 (pages 1 through 7).
See XXII CT 6439, 6485, 6486, 6491, 6494, 6530, 6538, 6547, 6578,
6580; XXIII CT 6581-609. The court denied the motion on January 9, 1987. (Id.
at 6610.)
See XXIII CT 6625-52, 6656-67, 6694, 6696. The court denied the
motion on April 7, 1987. (Id. at 6724.)
See XXIII CT 6694, 6699, 6703-10, 6712. The court denied the motion
on March 24, 1987. (Id. at 6722.)
See XXIII CT 6713-18. The court granted the motion in part on April 7,
1987, and denied it in part on October 21, 1987. (See 29 RT 2063-65; XXIV
CT 7104.)
24Page 49 Page ID #:
challenge to the jury composition.12 Petitioner also moved to set aside the
information,13 and to sever counts.
36.
On December 9, 1987, the State filed an amended information
charging Petitioner with forty-three counts of murder and other crimes as shown
in Table 6:
Table 6. Counts and Charge of the Amended Information
Date
June 27-28,
March 17,
March 17, March 28,
May 14,
May 29 - June 1,
§ 187 (a)
§ 664/
Mabel Bell
Florence Lang
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William & Lillie Doi
William Doi
Mabel Bell & Florence Lang
See XXIV CT 7018-23, 7078; XXV CT 7193, 7459; XXVI CT 7650-53,
7659, 7661-62, 7680-82, 7684. The court denied the motion on May 31, 1988.
(XXVI CT 7685.)
See XXI CT 6249-62; XXII CT 6319-24; XXIII CT 6614-20. The court
denied the motion on January 21, 1987. (XXIII CT 6621.)
See XXIV CT 7003-17, 7079-98. The court denied the motion on
November 23, 1987. (XXV CT 7217.)
25Page 50 Page ID #:
Date
May 30,
July 2, July 5,
July 7,
July 7,
July 20,
July 20,
Count
Charge
§ § 261(2)
§ 288a(c)
§ 286(c)
§ § 187(a)
§ § 664/§ § 187(a)
§ § 261(2)
§ 286(c)
§ § 187(a)
§ 187(a)
§
August 6,
August 8,
Victim
Carol Kyle
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
§ 664/§ 664/§ § 187(a)
§ 261(2)
§ 288a(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
26Page 51 Page ID #:
Date
Count
Charge
§ 286(c)
Victim
Sakina Abowath
The State alleged burglary-murder special circumstances, pursuant to
§ 190.2(a)(17), in counts 2, 5, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40. The state
alleged additional felony-murder special circumstances, pursuant to
§ 190.2(a)(17), in the commission of rape, sodomy, and oral copulation in counts
32 and 40. It alleged multiple-murder special circumstances, pursuant to
§ 190.2(a)(3), in counts 2, 5, 6, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40. (XIX
CT 5372-17.) On December 9, 1987, the court arraigned Petitioner, who pled not
guilty and denied all allegations. (XXV CT 7222.)
37.
On July 21, 1988, Petitioner filed a motion to close the voir dire
proceedings to the press and public. (XXVII CT 7880-95.) On the same date,
counsel for The Los Angeles Times filed an opposition to the motion for
sequestered voir dire. (Id. at 7833-79.) Thereafter, the trial court heard and
denied Petitioner’s motion. The court swore an initial group of prospective
jurors, and voir dire commenced. (Id. at 7900.) On July 25, 1988, the court ruled
that questionnaires were to be given to all prospective jurors who were ordered to
return for Hovey voir dire.15 (Id. at 7907.) Preliminary juror screening continued
from July 26 through November 30, 1988. (See Id. at 7908-10, 7912-15, 7919,
excused one juror and a prospective juror. (Id. at 8273, 8284.) On January 17,
1989, Petitioner filed motions for sequestered hearing and for mistrial. (Id. at
28Page 53 Page ID #:
8267-72.) On January 18, 1989, Petitioner filed a request to examine jurors
regarding racial bias. (Id. at 8276-79.) The court denied the motions and request
on January 18, 1989. (Id. at 8284; 138 RT 15590-96.)
43.
On January 20, 1989, the prosecution filed motions to dismiss jurors
based on defense exclusion of Caucasian and Asian jurors. (XXVIII CT 8287-
93.) On the same date, the court denied the motions. (Id. at 8294.)
44.
On January 30, 1989, the prosecution made an opening statement.
The defense reserved the right to make an opening statement. (XXVIII
CT 8299.)
45.
After thirty-eight days of trial, the prosecution rested on May 8,
55.
Petitioner was sentenced on count 4 (§§ 664/187) to an aggravated
term of nine years. A sentence of two years and four months each (or one-third
of the middle term of seven years) was imposed on counts 14, 22, 37, and 38.
The sentences imposed on counts 14, 15, 16, 17, 18, 21, 22, 25, 26, 27, 36, and
37 were ordered served consecutively to the sentence imposed on count 4.
(XXXI CT 9074.) Petitioner was sentenced to one year and four months each (or
one-third of the middle term of four years) on counts 15, 21, 25, and 26.
Petitioner was sentenced to aggravated terms of eight years each on counts 16,
17, 18, 26, 27, 33, 34, 35, 41, 42, and 43. Petitioner was further sentenced to
There is no indication in the appellate record that Petitioner filed a
motion for new trial or motion for modification of the death verdicts.
The trial court ordered the sentence of two years and four months
imposed in count 37 stayed, except for four months, pursuant to § 1170.1(a).
(XXXI CT 9074.)
31Page 56 Page ID #:
aggravated terms of six years each on counts 1, 3, 7, 10, 12, 19, 23, 28, 31, and
39. Petitioner was sentenced to fifteen-years-to-life imprisonment on count 6.
The sentences imposed on counts 1, 3, 6, 7, 10, 12, 19, 23, 28, 31, 33, 34, 35, 38,
39, 41, 42, and 43 were ordered permanently stayed. All sentences were ordered
to be served subsequent to and on completion of the death sentence. (Id. at 9074-
75.) On January 2, 1990, Petitioner filed a notice of appeal. (I Supp. CT 102.)
An appeal from a judgment of death following a trial by jury is automatic.
§§ 1237 and 1239(a).
C.
Retention of Unqualified Counsel and Conflicts of Interest
56.
On October 9, 1985, the trial court relieved the Public Defender of
Los Angeles County and Joseph Gallegos, retained counsel, appeared on
Petitioner’s behalf.18 (XIX CT 5469.) Petitioner then sought to substitute
retained counsel in place of Gallegos. On October 22, 1985, the trial court
conducted a hearing regarding substitution of newly retained counsel, Daniel
Hernandez and Arturo Hernandez. The trial court specifically found that neither
Daniel Hernandez nor Arturo Hernandez had the necessary required legal
experience to be appointed as counsel for Petitioner. It found that they did not
There is no reporter’s transcript for the hearing held on October 9, 1985.
Despite repeated efforts to obtain a complete reporter’s transcript on appeal, the
record is incomplete. (See affidavit of court reporter Elaine Flack dated
September 25, 1996; see also objections to the record on appeal filed by
Petitioner in the trial court on August 19, 1999, VIII Supp. CT 4-9, 13-14.) On
June 21, 1999, the trial court ordered a settled statement to be prepared with
respect to hearings in which the reporter’s transcript had not been prepared or
where the court reporter stated that the notes had been destroyed. (VII Supp.
CT 166-69.) The trial court denied Petitioner’s request for trial judges to prepare
a settled statement. (See Id. at 2; RT 1 (August 6, 1999 hearing).) Trial counsel
prepared a settled statement, and indicated that, on October 9, 1985, the
arraignment was postponed to October 22, 1985. (See declarations of Deputy
District Attorney Philip Halpin and Deputy Public Defender Alan Adashek, VIII
Supp. CT 15-16, 19-21.)
32Page 57 Page ID #:
meet the necessary qualifications set forth by the Los Angeles County Bar for the
indigent criminal defense appointment panel in serious felony cases. (XVII
CT 4980-85.)
57.
Moreover, the court was aware that both Daniel Hernandez and
Arturo Hernandez had been held in contempt of court in Santa Clara County, and
a contempt matter involving Daniel Hernandez was currently pending in Santa
Clara County. (XVII CT 4986.) The trial court ordered Daniel Hernandez and
Arturo Hernandez to disclose to Petitioner all instances of complaints by former
clients, any State Bar investigation, citations for contempt of court, and prior
allegations of ineffective representation.19 The court took the matter of
substitution of retained counsel under submission. (Id. at 4988-89.) The court
continued Petitioner’s arraignment to October 24, 1985. (Id. at 4980-90; XIX
CT 5469.) The court appointed independent counsel, Victor Chavez, to provide
legal advice to Petitioner related to retention of new counsel, but Petitioner
refused to meet that attorney. (XVII CT 4988.)
58.
On October 24, 1985, Daniel Hernandez and Arturo Hernandez
represented to the court that they had two retainer agreements: one with
Petitioner’s family, and another with Petitioner. Counsel further indicated that
“other parties that have retained us, his family, who are also liable, have acquired
some financial responsibility to us due to that contract.” (XVII CT 5004-05.)
The court conducted a limited inquiry of Petitioner as to whether he read the
contract and understood the terms of the contract. The court informed Petitioner
Daniel Hernandez disclosed to the court that he was counsel of record in
the trial court in People v. Ortiz. In People v. Ortiz, 51 Cal.3d 975, 800 P.2d 547,
275 Cal.Rptr. 191 (1990), which involved the same attorneys, the California
Supreme Court held that the trial court should have discharged Daniel Hernandez
and Arturo Hernandez on the defendant’s motion based on their incompetence in
that pending murder case. Their acts of ineffectiveness in Ortiz occurred at the
same time they represented Petitioner. Id., 51 Cal.3d at 980.
33Page 58 Page ID #:
that there were possible conflicts of interest. The court, however, did not explain
to Petitioner the nature or implications of the conflicts. Petitioner indicated that
there would not be a conflict. (Id. at 5005-07.)
59.
The court addressed Daniel Hernandez and Arturo Hernandez with
respect to conflicts of interest, and specifically noted that trial counsel referred to
Petitioner’s family as the “client.” The court informed counsel to report to the
court “any time there is the slightest possibility that a potential conflict might
exist . . . .” (XVII CT 5007.) Counsel indicated that there was no conflict, and
they had no knowledge of any potential conflicts. (Id. at 5008.) The trial court
permitted Daniel Hernandez and Arturo Hernandez to substitute for Joseph
Gallegos and represent Petitioner in all trial proceedings. (Id. at 5004-10, 5014-
15.)
60.
On December 9, 1987, and July 18, 1988, the prosecutor urged the
court to conduct an in camera hearing regarding Petitioner’s relationship with
counsel, his right to enter additional pleas, and the “literary rights” retainer
agreement. (See 41 RT 2934-35; 64 RT 4764-65.) On each occasion, the court
took no further action.
61.
Daniel Hernandez and Arturo Hernandez had numerous difficulties
with respect to their representation of Petitioner at trial. Arturo Hernandez failed
to appear in court at various times during the proceedings. On October 3, 1988,
the trial court sent a letter to Arturo Hernandez regarding his absence from trial.
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
Arturo Hernandez, and ordered it held to October 24, 1988. (Id. at 8111.) On
October 25, 1988, Arturo Hernandez appeared in court to explain his absence
from trial. Arturo Hernandez moved to be relieved as Petitioner’s counsel due to
communication problems with Petitioner. The trial court did not relieve Arturo
Hernandez, instead the court did not require Arturo Hernandez to be present at all
trial proceedings. (Id. at 8114; see sealed hearing, II Supp. CT VIII 2133-40,
34Page 59 Page ID #:
2149-50.) The trial court accepted a waiver from Petitioner with respect to the
presence of two attorneys at trial. (Id. at 2154-56, 2159.) Thereafter, Arturo
Hernandez did not attend trial proceedings, including voir dire and jury
instruction conference.
62.
Having no prior capital trial experience, from September 26,
through January 23, 1989, Daniel Hernandez conducted Hovey voir dire without
the assistance of co-counsel Arturo Hernandez. (See generally XXVIII CT 8087-
95.)
63.
Daniel Hernandez did not appear at trial, due to illness, during the
prosecution’s case-in-chief, on February 21, 1989. The trial court ordered Daniel
Hernandez to inform the court of his medical condition on February 24, 1989.
On February 24, 1989, Daniel Hernandez failed to notify the court of his medical
condition. On February 21 and February 27, 1989, neither counsel appeared in
court; instead, law student Richard Salinas appeared on Petitioner’s behalf. On
February 27, 1989, the court continued trial to March 6, 1989. (XXVIII
CT 8338-39, 8341.) On March 1, 1989, a hearing was held concerning trial
counsel Daniel Hernandez’s health. The court determined that there was no legal
cause to delay the trial. (Id. at 8345.) On March 6, 1989, the court appointed
attorney Ray Clark pursuant to § 987.2 as co-counsel for Petitioner. (See Id. at
8351.)
64.
During the prosecutor’s closing argument at the guilt phase, on July
13, 1989, both Daniel Hernandez and Arturo Hernandez were absent. The trial
court issued a body attachment for Daniel Hernandez and ordered it held to July
and ordered Daniel Hernandez to be present at all hearings. On that same date,
the court ordered Arturo Hernandez to be present in court on July 17, 1989. (Id.
at 8487.) On July 17, 1989, Arturo Hernandez was not present in court. The
court issued a body attachment, and held it to August 18, 1989. (Id. at 8490,
8628, 8629, 8632.) On August 18, 1989, the court found Arturo Hernandez in
contempt for not calling the court on a daily basis, imposed a fine of $100.00, and
ordered him to call the court on a daily basis. (Id. at 8638.)
65.
On September 14, 1989, the trial court again held Arturo Hernandez
in contempt for his failure to contact the court and to pay a fine. The court issued
a body attachment, and set bail at $5,000.00. (XXX CT 8712, 8715-17.) On
September 15, 1989, Arturo Hernandez contacted the court. (Id. at 8714.)
Thereafter, on September 18, 1989, Arturo Hernandez submitted a check for
$100.00 to the court and filed a declaration of a legal assistant. (Id. at 8719-20.)
That same date, the court recalled the body attachment and sentenced Arturo
Hernandez to 24 days in jail or a fine of $2,400.00. Arturo Hernandez was
remanded to custody to serve one day in jail for not timely paying a contempt
fine of $100.00. (Id. at 8721.) On September 29, 1989, Arturo Hernandez paid a
fine for contempt of court in the amount of $2,400.00. (Id. at 8903.)
D.
Absence of Mental Competency Proceedings
66.
At various stages of the proceedings, the court and counsel raised
questions concerning Petitioner’s mental competency to stand trial. On October
24, 1985, counsel Joseph Gallegos moved for a psychiatric evaluation of
Petitioner to determine his present mental state and his ability to choose his own
counsel. Gallegos informed the court that he was gravely concerned about
Petitioner’s mental condition and his ability to retain new counsel. (XVII
CT 4995.)
36Page 61 Page ID #:
67.
Although the Public Defender was not then representing Petitioner,
the trial court asked the deputy public defender who had represented Petitioner
before the substitution of Gallegos about a confidential psychiatric examination
of Petitioner which had been approved by the court. Former counsel disclosed to
the court that a psychiatrist had recently seen Petitioner for ten to fifteen minutes,
but Petitioner refused to talk further with him. Former counsel told the court that
the psychiatrist was unable to determine whether Petitioner was mentally
competent to assist in his own defense; however, based on his brief meeting with
Petitioner, the psychiatrist was of the opinion that Petitioner at most was
“borderline” competent. (XVII CT 4996-97.)
68.
Attorney Gallegos renewed his request to suspend criminal
proceedings pursuant to § 1368 to determine Petitioner’s “ability to make
intelligent decisions.” (XVII CT 5002-03.)
69.
Instead of addressing the trial court’s concern about their
qualifications and the issue of Petitioner’s mental competence, counsel Arturo
Hernandez moved to disqualify the court pursuant to Code of Civil Procedure
§ 170.6. The court denied the motion as untimely. (XVII CT 4999-01.)
70.
Attorney Gallegos renewed his request to suspend criminal
proceedings pursuant to § 1368. (XVII CT 5002-03.) The court inquired briefly
of Petitioner regarding his education and potential conflicts of interest with
respect to the retainer agreements with Daniel Hernandez and Arturo Hernandez.
(Id. at 5005-09.) The court denied attorney Gallegos’s request to suspend
criminal proceedings under § 1368. (Id. at 5003.) The court then permitted
substitution of trial counsel Daniel Hernandez and Arturo Hernandez. (Id. at
5009-10, 5014-15.)
71.
At the preliminary hearing on April 14, 1986, trial counsel requested
an in camera hearing to address Petitioner’s mental status and his continued
presence at the preliminary hearing. Without conducting an in camera hearing,
37Page 62 Page ID #:
the trial court simply indicated there was no evidence to conclude Petitioner was
unable to understand and participate in the proceedings. (XI CT 3463-65.)
72.
On February 26, 1987, the trial court expressed concern about
Petitioner’s mental competency and inquired of trial counsel whether they
intended to file a motion pursuant to § 1368. Daniel Hernandez replied:
We’ve been considering that from the beginning of course
and we haven’t made a decision on that and we are very
aware and concerned about that.
(22 RT 1333-34.)
73.
On March 24, 1987, the trial court again raised the issue of
Petitioner’s mental competency and his ability to proceed to trial.
The 1368 and related issues I would also like you to
consider. I realize that is going to be a very difficult
one for you, but I would like you to get working on that
as well.
(28 RT 2001.)
74.
Trial counsel indicated to the court that they were working on those
issues. (28 RT 2001.)
75.
On April 7, 1987, the court and parties discussed in chambers – in
Petitioner’s absence – trial counsel’s concern that “there was some problems with
our client.” (See sealed transcript II Supp. CT 16.) Counsel requested to address
the court in camera regarding Petitioner’s mental status pursuant to §§ 1368,
1017, and 1026. However, the court did not conduct the requested hearing. (Id.
at 16-17.)
Subsequently, the court held an in camera hearing on April 14, 1986.
However, the April 14, 1986 sealed reporter’s transcript is not part of the record
on appeal. (See order to prepare settled statement and declarations of Daniel
Hernandez and Arturo Hernandez, VII Supp. CT 166-69; VIII Supp. CT 22-23.)
38Page 63 Page ID #:
76.
On July 14, 1988, the court held a hearing regarding Petitioner’s
waiver of a plea of not guilty by reason of insanity. The court agreed to hold an
in camera hearing on July 18, 1988, to consider the propriety of Petitioner
entering a plea of not guilty by reason of insanity. Following the July 18,
closed hearing, Petitioner did not enter an additional plea. (See XXVII
CT 7830,7832; 63 RT 4723-32.)
77.
On numerous occasions during the proceedings, Petitioner’s actions
and behavior were extremely bizarre, both in the courtroom and in his jail cell.
On one occasion, Petitioner was observed by a jail deputy in his cell sitting on the
toilet with blood on his hands drawing a pentagram on the floor. (176 RT 20599-
600.) On numerous occasions in the courtroom, Petitioner invoked the words
“Hail, Satan,” and displayed a pentagram on the palm of his hand in the
courtroom. (See Id. at 20603-04, 20607.) On January 30, 1989, Petitioner
appeared at trial in leg shackles. The court accepted a waiver from Petitioner to
wear shackles instead of a less obtrusive leg brace. (See II Supp. CT VIII 2282-
86.)
78.
On May 8, 1989, trial counsel was not prepared to present its case
because Petitioner indicated that he did not want any defense. (178 RT 20756-
58, 20774.) Later that day, trial counsel Clark indicated that Petitioner “flip-
flopped,” and he wanted a limited defense. However, Daniel Hernandez stated
that he did not intend to present a complete defense because without Petitioner’s
cooperation, it would not be in the client’s best interests. (Id. at 20789-95.)
79.
At the conclusion of the May 8, 1989 hearing concerning
Petitioner’s waiver of defense at guilt trial, Petitioner had an outburst in the
courtroom. He stated, “Media, sensation-seeking parasites.” (See
RT 20787.) On August 23, 1989, the court informed counsel that Petitioner
allegedly made a death threat against the trial court. Petitioner also allegedly
stated he would physically resist being brought into the courtroom on August 31,
39Page 64 Page ID #:
1989.22 (See II Supp. CT VIII 2433-34.) Petitioner was absent from the
courtroom for the guilt verdicts on September 20, 1989. He was housed in a
holding cell near the courtroom. (See 216 RT 24711-12.)
80.
On November 7, 1989 prior to being sentenced, Petitioner made a
bizarre and incoherent statement to the court. (219 RT 24929.)
E.
The Murder of Juror Singletary
81.
On August 14, 1989, after the jury had commenced deliberations, the
court recessed because one of the jurors failed to appear. (XXIX CT 8628.) On
August 15, 1989, the court informed the jury of the death of Juror Singletary. An
alternate juror was seated; the case was again recessed. (Id. at 8629.) On August
16, 1989, Petitioner requested a recess in the deliberations; the court denied the
request. The court admonished the jury pursuant to CALJIC 17.51 (substitution
of juror after deliberations begun) and deliberations resumed. (Id. at 8624, 8632.)
82.
On August 21, 1989, Petitioner filed a request to voir dire jurors
regarding their impartiality in view of the murder of Juror Singletary. (XXIX
CT 8639-44, 8647-55.) On August 22, 1989, the State moved to deny the
motion. (Id. at 8657-59.) Petitioner filed supplemental points and authorities in
support of motion on August 23, 1989. (Id. at 8661-64.) That same date,
Petitioner also filed moved to disqualify jurors. (Id. at 8667-77.) On August 23,
1989, the court continued hearing on the motion to disqualify jurors to August
31, 1989. (Id. at 8679.) The prosecution filed its oppositions to the motion for
further voir dire on August 24, 1989, and to disqualify jurors and for mistrial on
August 31, 1989. (Id. at 8681-83; XXX CT 8692-94.) On August 31, 1989, the
court heard argument of counsel and denied Petitioner’s motion to voir dire the
jurors. (Id. at 8696.) On September 5, 1989, the trial court denied Petitioner’s
motions to disqualify jurors and for mistrial. (Id. at 8703.)
August 31, 1989, was the anniversary of Petitioner’s arrest.
40Page 65 Page ID #:
F.
Waiver of Defense at Penalty Trial
83.
On September 27, 1989, the date set for penalty trial, the prosecution
rested without presenting any evidence. (XXX CT 8898.) On that same date, the
trial court accepted a waiver from Petitioner with respect to presentation of
defense evidence in mitigation. (217 RT 24774-76.) Thereafter, the defense
rested without presenting any evidence on Petitioner’s behalf. (XXX CT 8898.)
The court informed the jury that both sides rested without presenting evidence.
(217 RT 24780-81.) No evidence was thus presented on Petitioner’s behalf
during penalty trial. There was no evidence about Petitioner’s mental health,
mental competency, background, childhood and formative years, physical and
mental condition at the time of the crimes charged in this case, or any information
or evidence in mitigation to permit the jury to consider a punishment other than
death.
V.
STATEMENT OF FACTS
A.
Introduction
84.
At the guilt trial, the prosecution’s theory of the case was that
Petitioner was the perpetrator in fifteen charged incidents and one uncharged
incident. Physical evidence, specifically fingerprint, shoe print, and ballistics,
placed Petitioner at many of the crime scenes. In some of the incidents,
eyewitness identification and property belonging to the victims that was later
recovered from a “fence” linked Petitioner to the crimes.
85.
During the prosecution’s case-in-chief, in an effort to abate ongoing
conflicts between retained counsel and Petitioner, the court appointed a lawyer
wholly unfamiliar with Petitioner’s case to assist the defense. Thereafter,
Petitioner presented a limited defense. The defense theory of the case was that
physical evidence at the crime scenes tended to exclude Petitioner and that
testimony regarding eyewitness identification and recovered property was not
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credible. In two of the incidents, the defense asserted that Petitioner was not the
perpetrator and presented an alibi defense.
86.
In rebuttal, the prosecution refuted defense expert testimony
regarding physical evidence and eyewitness identification. The prosecution also
introduced impeachment evidence with respect to a police informer and
Petitioner’s alibi witnesses.
87.
In surrebuttal, Petitioner introduced further evidence of alibi.
88.
At the penalty trial, neither side presented any evidence. In closing
argument, the prosecution urged a death verdict because of the brutal nature of
the murders. The defense argued that mercy, kindness, and sympathy warranted
sparing Petitioner’s life.
B.
Guilt Phase
1.
Prosecution case
89.
The prosecution’s theory was that between June 27, 1984, and
August 8, 1985, Petitioner committed numerous felonies and murders in Los
Angeles County. In fourteen of the incidents, Petitioner forcibly entered victims’
homes and committed crimes. In one incident, a victim was confronted and shot
to death while seated in a parked car. In eleven incidents, victims were killed; in
four incidents, victims were attacked but not killed.
a.
Vincow Incident (June 27 to 28, 1984)
Counts 1 and 2 (§ 459, 187(a))
i)
90.
The death of Jennie Vincow
Jack Vincow lived at 3300 Chapman Street in Los Angeles in the
same apartment building as his mother, Jennie Vincow. Her apartment was
downstairs; his apartment was upstairs. (142 RT 16198-99.) Jack Vincow
ordinarily visited his mother on a daily basis; he also brought her groceries. (Id.
at 16217, 16245.) Jack Vincow had last visited his mother for one hour between
1:00 and 2:00 p.m. on June 27, 1984. She was alive when he left her apartment.
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(Id. at 16198-99.) Between 1:00 and 2:00 p.m. on June 28, Jack Vincow went to
visit his mother. (Id. at 16200.) He found the door to her apartment unlocked.
The window screen next to the front door was missing, and the window was
open. Inside his mother’s apartment, Jack Vincow found the window screen on
the floor. Things were tossed around in the living room. (Id. at 16200-02.) His
mother was lying on her bed. When Jack Vincow lifted a blanket to check on
her, he saw a gash on her neck; she was dead. Jack Vincow did not notice
anything missing. He stayed in the apartment approximately five minutes before
calling the police. (Id. at 16204-08, 16227.)
91.
During the brief period of time he was in the apartment, Jack
Vincow opened the curtains in the living room and kitchen. He did not wash his
hands in the bathroom. (142 RT 16228, 16230.) When he left the apartment, he
was in a state of shock. He did not see anyone near the apartment. He did not
notice the bedroom window. (Id. at 16231.) The previous night, he had been at
home, in his own apartment, but did not hear anything. (143 RT 16269.)
92.
At approximately 1:40 p.m. on June 28, 1984, Los Angeles Police
Lieutenant Buster Altizer was dispatched to Jennie Vincow’s apartment. He
arrived shortly before 2:00 p.m. Lieutenant Altizer met Jack Vincow at the
scene. Jack reported that he had found his mother dead inside her apartment.
(143 RT 16293-96.) Lieutenant Altizer saw a window screen next to the door.
He observed blood and water in the bathroom sink. The victim’s body was
partially covered by blankets. Jennie Vincow had many stab wounds to the upper
chest and neck. Officer Wynn and Detective Castillo arrived shortly thereafter;
the scene was cordoned off. (Id. at 16297-300,16306-07, 16320.)
93.
Following police investigation at the scene, on several occasions,
officers contacted Jack Vincow, but he was difficult to interview. On July 16,
1984, Jack Vincow terminated a police interview. Afterward, Detective Castillo
followed Jack Vincow to the bank and to his apartment. (143 RT 16337-38.)
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94.
Jennie Vincow’s other son, Manny Vincow, was verbally abusive to
her. It was rumored that Manny beat his mother when she lived in New York.
(142 RT 16211-12.) From 1981 to 1985, Jack did not have any personal contact
with Manny. (Id. at 16244.)
ii)
95.
Fingerprint and other physical evidence at the scene
Detective Castillo noticed that the window screen by the front door
had been removed and was on the floor. Lights were on in Jennie Vincow’s
apartment and the curtains open. (143 RT 16314-15, 16325.) There were blood
spots in the living room, bath and bedroom, in the hallway near the bedroom
door, and on a portable car top in the bedroom closet. (Id. at 16325-28.) Samples
were taken from different rooms, including the bathroom sink. There were blood
smudges in the bathroom sink and on a lamp table. The apartment had been
ransacked. Drawers were left open; things were thrown on the floor. There was
food rotting in the refrigerator. No weapon was found at the scene. (Id. at
16327-30, 16333-37.)
96.
Los Angeles Police latent print technician Reynaldo Clara arrived at
the scene at approximately 5:00 p.m. on June 28, 1984. Clara lifted five latent
fingerprints; four from the aluminum frame of the living room window screen
and one from the interior of the living room window. (143 RT 16354-55, 16357-
61.) Two of the lifts taken from the screen had identifiable prints. The lifts were
taken from different edges but from the same side of the screen. (Id. at 16361-65,
16375-76.) Because the screen was found on the floor, Clara could not determine
which side of the screen was the exterior side. (Id. at 16375.) The age of the
prints on the window frame could not be determined. (Id. at 16392.)
iii)
97.
Time of death
Los Angeles County Coroner investigator Vide1 Herrera arrived at
Jennie Vincow’s apartment at approximately 4:30 p.m. on June 28, 1984. (
RT 16402-04.) Air temperature in the apartment at 4:47 p.m. was 81°F. The
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victim’s liver temperature at 4:52 p.m. was 94°F. (Id. at 16406-07.) Rigor was
present in the elbows and wrist but not the jaw. Lividity in the back, arms, and
neck was consistent with the position of the body. Herrera indicated in his report
that Jennie Vincow’s body was warm to the touch. (Id. at 16407-09, 16413-17.)
At trial, he was of the opinion that Jennie Vincow may have been sexually
assaulted. (Id. at 16405.)
98.
Los Angeles County Coroner deputy medical examiner Dr. Joseph
Cogan performed an autopsy on Jennie Vincow on June 30, 1984. (
RT 16577-80.) Dr. Cogan found six to seven stab wounds, four of which
individually he considered lethal. The jugular vein was severed, the victim had
aspirated blood. (Id. at 16581-84.) In Dr. Cogan’s opinion, the assailant faced
the victim, and the wounds could have been inflicted while she was on the bed.
There were “hilt” marks or contusions on her body from the knife handle as a
result of the thrust of the blade. (Id. at 16585-86.)
99.
Dr. Cogan estimated the time of death as within two to three hours
of 2:00 p.m. on June 28, 1984. (144 RT 16588.) Body temperature alone was
not a reliable indicator of the time of Jennie Vincow’s death because other factors
had to be taken into account, such as air temperature, covering on the body, and
body fat. Dr. Cogan’s original estimated time of death of 2:00 p.m. did not
consider Vincow’s weight and the blanket covering her body. (145 RT 16673-
76, 16693-99.) In Dr. Cogan’s opinion, body temperature would be useful within
the first 24 hours after death before a body cools down. Jennie Vincow’s
recorded liver temperature suggested that she was dead only a few hours before
her body was found. However, rigor in the body indicated she may have been
dead anywhere from six to eight hours up to 72 hours. (144 RT 16587-92;
RT 16602-03.) Rigor is less reliable than body temperature and occurs more
quickly in warm conditions. Lividity becomes fixed within a few hours after
death, and blanching occurs only for a few hours after death. (145 RT at 1660245Page 70 Page ID #:
04, 16640-44, 16680-83.) Vincow’s body blanched easily, but this condition
provided only a rough estimate of the time of her death. (Id. at 16683-84.)
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b.
Hernandez and Okazaki Incident (March 17, 1985) Counts
3 through 5 (§§ 459, 664/187, 187(a))
i)
The shooting of Maria Hernandez
100. Maria Hernandez lived in a condominium on Village Lane in
Rosemead, Los Angeles County, with her roommate, Dale Okazaki. On March
17, 1985, Hernandez came home at about 11:30 p.m. (144 RT 16436-37.) She
entered the garage from an alley. An automatic light went on as the garage door
opened. Once inside the garage, Hernandez pushed a button to close the garage
door, then unlocked a door leading to her residence. She heard a noise and saw a
man about twenty-feet away, in the garage. He pointed a gun at her face and
approached. Hernandez focused on the gun. She raised her hand as a shield; the
garage light went out. She felt a shot to her right hand and fell to the ground.
(Id. at 16446-49, 16503.) The gunman opened the door to her residence, pushing
her body aside with the door. (Id. at 16449-50.)
101. Hernandez got up, ran out of the garage to the alley, then around the
complex into the street. She saw the gunman who had shot her leave her home
by the front door. (144 RT 16451-55.) The gunman walked toward Hernandez;
he raised a gun and pointed it at her. She ran to a car and hid. The gunman
pointed the gun at her. Hernandez asked him not to shoot her again. The man
lowered the gun and then ran off. (Id. at 16456-57.)
ii)
The death of Dale Okazaki
102. Maria Hernandez entered her residence and found Dale Okazaki
lying face down. She called 911 and stayed on the phone until a Los Angeles
County Deputy Sheriff arrived. (144 RT 16458-61.)
103. Deputy Sheriff John Powell arrived at approximately 10:54 p.m. He
met Hernandez and checked Okazaki for vital signs. (144 RT 16570-72.) He
cordoned off the scene and took witness statements. An unidentified person told
him that the suspect was a white male. (Id. at 16573-76.)
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104. At 12:20 a.m. on March 18, 1985, Detective Gilbert Carrillo
responded to the scene. (145 RT 16710-712.) He observed a blue baseball cap
with the letters AC/DC on the floor of the garage. (Id. at 16716-17.) He tested
the garage door opener at the condominium; eight seconds elapsed from the time
the door closed until the light went out. A second garage light above the
appliances was not on while he was present. (Id. at 16741-44.)
105. Coroner investigator Walter Rainey arrived at the scene early on
March 18, 1985. Before Rainey removed the body, he examined Okazaki and
observed a bullet wound to the head. The air temperature at 2:10 a.m. was 62°F;
Okazaki’s liver temperature at 2:20 a.m. was 91°F. (144 RT 16563-68.)
106. Joseph Cogan, M.D., testified about the autopsy performed on Dale
Okazaki by James Wegner, M.D., on March 19, 1985. According to Dr.
Wegner’s report, the cause of death was a gunshot wound to the head. (
RT 16606-07, 16613-19, 16624.) A small caliber projectile was recovered during
autopsy. (Id. at 16630-35.) The report noted stippling to the skin as a result of a
close-range shot less than eighteen inches from the barrel of a firearm to the skin.
There also was a separate, blunt-force injury to the back of Okazaki’s head. (Id.
at 16626-29.)
iii)
Eyewitness identification
107. Detective Carrillo knew Hernandez’s mother and was a family
friend. He first saw Maria Hernandez at the hospital on March 18, 1985. (
RT 16722-23.) Hernandez described the suspect as a light-skinned Caucasian or
Mexican male, 5’9” to 6’1” tall, nineteen to twenty-five years old, thin build,
wearing a black jacket. She could not recall whether the suspect wore a hat; if he
wore a hat it was dark in color. (146 RT 16748-49.)
108. Hernandez attended two live line-ups prior to Petitioner’s arrest; one
was held in April 1985, and another in July 1985. Hernandez did not identify
anyone at either line-up. (145 RT 16736-37.)
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109. Carillo showed Hernandez two photo spreads consisting of six
photos before a third live line-up on September 5, 1985, in which Petitioner
participated. The spreads did not include Petitioner’s photo. (145 RT 16735-36.)
Hernandez did not positively identify anyone. In each spread, Hernandez focused
on a person who most resembled the suspect. Photographs of the individuals
whom Hernandez viewed more closely were not released to the media. (
RT 16783-84, 16786, 16789.)
110. Initially, Maria Hernandez saw Petitioner’s picture on television and
discussed the case with family and friends. (144 RT 16516-18.) Her mother told
her immediately after the shooting that she knew Detective Carillo. (Id. at
16542.) At trial, Maria Hernandez did not recall stating at the preliminary
examination that Petitioner did not look like the composite drawing she helped to
prepare. (Id. at 16543.) The picture of Petitioner that she first saw on television
did not look familiar. (Id. at 16545; 146 RT 16761.)
111. Detective Carrillo did not brief Maria Hernandez before Petitioner’s
September 5, 1985 line-up. He did not tell her that Petitioner would be in the
line-up; he already knew she had seen Petitioner on television. (146 RT 16764-
67.)
112. At trial, Maria Hernandez identified Petitioner as the perpetrator and
relied on the fact that he was present in court; however, she could not identify
him as the suspect from memory. (144 RT 16520-24, 16526-27, 16546.)
Previously, Hernandez had identified Petitioner at the preliminary hearing and at
a pretrial hearing on April 7, 1987. (Id. at 16505-10, 16514-15.)
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c.
Yu Incident (March 17, 1985)
Count 6 (§ 187(a))
i)
The struggle between Yu and the suspect
113. On March 17, 1985, Jean Wang spent the entire day with Tsai-Lian
Yu. Yu came to Wang’s house in Monterey Park, Los Angeles County, in the
morning. She left Wang’s house about 11:00 p.m. (146 RT 16822-25.)
114. At approximately 11:00 p.m., Jorge Gallegos was sitting in his truck
with his girlfriend on North Alhambra Avenue in Monterey Park. He heard two
cars brake twenty-feet behind his truck. He saw both cars in his side and interior
mirrors. (146 RT 16840-42.) Gallegos saw a lone female in a yellow car and a
man in a blue car. (Id. at 16842-43, 16845, 16884.)
115. Gallegos saw the man from the blue car lean into the window of the
yellow car and try to pull the woman from her car. Gallegos thought they were
having a lovers’ quarrel. He heard someone ask for help. He did not hear any
shots. Gallegos noted the license plate number of the blue car as it drove away.
Gallegos then saw an Asian female crawling on the ground. Gallegos went to her
aid. He remained with the woman until police arrived. (146 RT 16846-48,
16867.)
116. Joseph Duenas, a cousin of Gallegos’s girlfriend, lived at 524 North
Alhambra Avenue. Around 11:15 to 11:30 p.m. on March 17, 1985, he heard a
woman scream for help. Duenas went to the balcony. He saw a man and a
woman on the curb across the street. (147 RT 16981-84.)
117. A yellow car was parked on the street. A dark blue or black Escort-
type car was also parked in the middle of the street in front of the yellow car.
The woman screamed for help five to seven times and held on to the man’s arm
or jacket. The man got into the blue car and left. (147 RT 16984-88.) The
woman crawled toward Duenas. He did not hear any gunshots. He brought the
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phone to the balcony and called the police. He then went outside and saw the
victim lying motionless, face down. (Id. at 16989-92.)
ii)
The death of Tsai-Lian Yu
118. Monterey Park Police Officer Ron Endo was called to the scene on
March 17, 1985, at about 11:45 p.m. He saw Tsai-Lian Yu lying unconscious in
the street five to ten feet from a yellow Chevrolet. He attempted to resuscitate
her. Yu had an injury to her left shin where her stocking was torn. A torn
dollar bill and a silver medallion were next to her body. (147 RT 17017-19,
17024.)
119. Officer Endo observed that the car hood of the yellow car was hot.
The headlights and radio were on; the car was in reverse. Its engine was running,
and the brake was off. The driver’s door was open. A woman’s shoe was found
inside the car; a second shoe was in the street. (147 RT 17021-24, 17027.) He
looked for a driver’s license inside a purse in the car. Officer Endo sealed off the
area. Emergency personnel removed Yu’s body from the scene at about 12:
a.m. (Id. at 17026, 17029, 17037-38.)
120. On March 18, 1985, Garfield Hospital emergency room physician
Richard Tenn pronounced Tsai-Lian Yu dead from two gunshot wounds to her
chest. (148 RT 17061-62.)
121. On March 19, 1985, Susan Selser, M.D., from the coroner’s office,
performed an autopsy on the body of Tsai-Lian Yu. (148 RT 17070.) Detective
Romero was present during the autopsy. The cause of death was two gunshot
wounds. There was evidence of stippling and soot around one of the wounds.
The first wound was inflicted by a gunshot fired at close range, perhaps as close
as one inch. A projectile was recovered from the first wound. (Id. at 17070-74.)
A second gunshot wound to the back was not fired at close range. A projectile
was recovered from the second wound. (Id. at 17075-76.) In Dr. Selser’s
opinion, the first wound was fatal; the second less so. There were also bruises on
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Yu’s right thigh, left shin, and left heel. Dr. Selser observed evidence of previous
wounds to the lower limbs that showed signs of healing as well as recent
contusions. (Id. at 17076-78.)
iii)
Eyewitness identification
122. Gallegos testified with the assistance of a Spanish translator. During
his testimony, there was some confusion regarding translation of Gallegos’s
testimony with respect to the struggle, identification of the suspect, and position
of the two cars. (See 146 RT 16838; 147 RT 16897-905.)
123. At trial, Gallegos identified Petitioner as the man he saw at the
scene. Petitioner looked different than he appeared at the preliminary hearing;
his hair was longer, and he wore dark glasses. (146 RT 16848; 147 RT 16937.)
On the night of the incident, Gallegos described the suspect as a 5’6” to 5’8”
male and as “Oriental” with wavy hair. (146 RT 16848, 16853-54, 16859-62.)
He only saw the man’s profile and back of his head. The man was wearing light
blue pants and and a light blue shirt. Gallegos saw a composite drawing and
pictures of Petitioner in the newspaper, but he did not attend a line-up. He also
identified a police photograph of the suspect’s automobile. (Id. at 16850, 16873-
75, 16877, 16879-80, 16886; 147 RT 16936.)
124. Joseph Duenas testified that he was unable positively to identify the
suspect. He recalled that the male suspect wore jeans, a T-shirt, and jacket. He
described the suspect as “Oriental” or Mexican, 5’7” to 5’8” tall, 145 pounds,
with light, shaggy long hair. He thought possibly the suspect’s eyes were slanted.
(147 RT 16994-95.)
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d.
Zazzara Incident (March 28, 1985)
Counts 7 through 9 (§§ 459, 187(a))
i)
The deaths of Vincent and Maxine Zazzara
125. Bruno Polo worked for Vincent Zazzara as manager of his pizza
restaurant in Whittier. He last saw Zazzara on March 27, 1985, at approximately
10:00 p.m. (148 RT 17134-35, 17137-17138.) At approximately 8:30 p.m. on
March 28, 1985, Polo went to Zazzara’s house to drop off the day’s receipts from
the restaurant. He saw the Zazzaras’ two cars at the house. (Id. at 17139-41.)
Polo rang the bell; the door was open and the lights were on, but he did not enter.
(Id. at 17143-45.) Polo dropped the receipts through the mail slot at the front
door. He was at the Zazzara home for about three to four minutes. (Id. at 17145-
47.)
126. The next morning, Polo returned to the Zazzara home around 10:
a.m. A fellow employee, Al Persisco, followed him to the house. (
RT 17148-49, 17152.) Polo entered the house and saw Zazzara in the television
room. Calling out to Zazzara, Polo saw blood on Zazzara. Polo was scared and
quickly left the house. (Id. at 17153-55.) Persisco also entered the house but
quickly left as well. Polo went across the street to call Zazzara’s son. The police
soon arrived. (Id. at 17156-59.)
127. Los Angeles Fire Captain Carl Allen and his crew arrived at the
Zazzara residence on Strong Avenue in Whittier, Los Angeles County, on March
29, 1985. Seeing a man lying on a couch, Allen and his crew left and called the
sheriff. (149 RT 17208-11, 17240.) When sheriff’s deputies arrived, the fire
crew re-entered the house. They found Maxine Zazzara’s body in the bedroom.
Both Maxine and Vincent Zazzara were dead. (Id. at 17212.)
128. Deputy Sheriff Paul Archambault arrived at the scene at
approximately 10:35 a.m. He entered the house with Captain Allen. Mr. Zazzara
had a head wound; Ms. Zazzara had been badly cut. (149 RT 17219-22.)
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Archambault interviewed the victims’ son and neighbors. The house was sealed
off. Sheriff Detective Russell Uloth arrived and took charge of the investigation.
(Id. at 17222-24.) Deputy Archambault found a pool of blood on the porch of a
house across the street. No other blood was found outside the Zazzaras’ home.
(Id. at 17226-28.)
129. Vincent Zazzara had been shot in the head by a small caliber gun.
Maxine Zazzara had a gunshot wound to the neck and chest. Her eyes had been
gouged out. (149 RT 17249-52, 17316.) A clasp from a watch or a bracelet was
on the floor near her body. There were bruises to her left wrist that might have
been from a ligature. Detective Uloth admitted that bruises could have occurred
on removal of a watch or bracelet. A bullet fragment was found on the floor of
the bedroom. (Id. at 17259-61.)
130. Drawers were opened in the bedroom; personal items were strewn
about the bathroom. In another bedroom, file drawers were pulled out. (
RT 17256, 17275-77.) A coin collection was intact, and bags of money left by
Polo on March 28 were still present. (Id. at 17257, 17284.) Jewelry was found in
a bedroom drawer. Uloth prepared a list of possible items taken from the
residence, but it was uncertain what was taken. (Id. at 17298, 17312-14.) A
burglary had occurred at the Zazzara residence six weeks before. According to
the crime report prepared at that time, entry was gained by prying open the front
window. (Id. at 17282-83.)
ii)
Shoe print and fingerprint evidence
131. Detective Uloth noted that a window at the rear of the house had
been pried open and a screen removed. A latent print was lifted from the screen.
No instrument matching pry marks on the screen or window was found at the
residence. A shoe print was found on a bucket under the rear window of the
point of entry. (149 RT 17243-47, 17280-81.)
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132. Other shoe prints found outside the house near the bedroom window
were similar to the shoe print on the bucket. (149 RT 17245-46.) Two different
shoe print patterns were found in the same vicinity at the scene. The shoe print
pattern found on the bucket, the stairs, and dirt area of the garden matched a pair
of Vans shoes recovered from the kitchen. (Id. at 17247-48, 17287-90.) Uloth
checked with civilians and firemen who were at the scene and determined that
their shoes did not match either of the shoe prints found at the scene. (Id. at
17306-07.)
133. Sheriff’s evidence technician Steve Renteria took photographs and
made casts of the shoe prints of each pattern at the southeast corner of the house.
(149 RT 17320-25, 17331-32.)
iii)
The causes of death
134. Coroner Joseph Cogan, M.D., testified about the autopsies
performed on the bodies of Vincent and Maxine Zazzara on March 30, 1985, by
Terence Allen, M.D. Vincent Zazzara died from a gunshot wound to the left side
of his head. (154 RT 17642-44.) Stippling around the wound indicated that a
firearm was fired at close range. Blood stains found on the couch showed
Zazzara did not sit upright after being shot; he was shot in the position depicted
in the photographs admitted into evidence (Prosecution’s Trial Exs. 8 and 8-A).
The position of Zazzara’s body was consistent with him having been asleep on
the couch when shot. (154 RT 17645-49.) A bullet fragment was removed from
Vincent Zazzara’s head. (149 RT 17263.)
135. Maxine Zazzara died from multiple gunshot wounds to the head and
neck. (154 RT 17651.) Stippling occurred as a result of a close-range gunshot
wound to the head. (Id. at 17654.) Two bullet fragments were removed from
Maxine Zazzara’s head and neck. (149 RT 17263-65.) She also had been
stabbed. There was a ligature contusion on her left wrist. Maxine’s eyes had
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been removed; the eyes were not recovered. (154 RT 17652-54.) Stab wounds to
the abdomen and eyes appeared to be post-mortem injuries. (Id. At 17660-62.)
e.
Doi Incident (May 14, 1985)
Counts 10 and 11 (§§ 459/187(a))
i)
The attack on William and Lillie Doi
136. Monterey Park police dispatcher Darlene Boese received a 911 call
at approximately 5:00 a.m. on May 14, 1985. The enhanced 911 system showed
a reporting address of 1586 Trumbower Street. A male voice repeatedly said,
“Help me.” An ambulance was sent, and the call was terminated. (
RT 17410-12.) A second 911 call from the same address was made a few
minutes later. A male voice again asked for help. By that time, a fire company
arrived on the scene. (Id. at 17413-15.)
137. Monterey Park firefighter Norman Case arrived at the Doi residence
at 5:04 a.m. The front door was open, and house lights were on. An elderly
female dressed in a nightgown was standing near the hallway. She was
incoherent. There was blood on her left thumb. (150 RT 17418-22.) An
unconscious male was sitting in a chair in the den. Mr. Doi – the unconscious
male – was taken by ambulance to Garfield Hospital. (Id. at 17422-24, 17427.)
Monterey Park Police Officer Michael Gorajewski was the first police officer to
arrive. He observed that rooms in the house were ransacked, drawers open, and
clothes thrown about. Ms. Doi – the elderly female – appeared to be in shock.
(151 RT 17476-81.) Officer William Reynolds arrived shortly after 5:00 a.m. He
spoke to Ms. Doi who answered slowly. Her face was swollen and a thumb cuff
dangled from her left thumb. She was taken to Monterey Park Hospital. (Id. at
17495-97.)
138. Linda Doi-Fick, the victims’ daughter, last visited her parents on
May 13, 1985. They appeared well, and the house was in order. Her mother
suffered a stroke in 1982 and had impaired speech patterns. On May 14, 1985,
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Doi-Fick received a call from police at 5:00 a.m. (154 RT 17698-701.) Later,
she met with police officers and tried to communicate with her mother. With her
assistance, officers were able to prepare a composite drawing of a suspect. (Id. at
17720-22.)
ii)
Shoe print and physical evidence at the scene
139. Monterey Park Police Sergeant Paul Torres arrived at the Doi home
about 6:30 a.m. He observed shoe prints in the dirt underneath the front bedroom
window. One print appeared to be from a tennis or jogging shoe; the other was
from a heavy combat boot with cleats. (151 RT 17515, 17517-19.) Officer
Anthony Jiron, who was in charge of security outside the residence, wore boots.
(Id. at 17519-20.)
140. Sergeant Torres noted that a screen had been removed from a
bathroom window. The window was completely open and the bathroom
undisturbed. The master bathroom, located between the victims’ two bedrooms,
was ransacked. Blood had been smeared on the tub and walls. A blood-stained
pillowcase was in the bathtub. (151 RT 17522-24.) Mr. Doi’s bedroom was
ransacked. Boxes were found on the floor. There was a blood-stained pillow at
the head of the bed. Bloodstains were found in the hallway. (Id. at 17524-26.) A
small caliber cartridge casing was found on the hallway carpet. (Id. at 17528.)
141. Forensic serologist Joseph Snyder collected evidence and drew a
sketch of the scene. (151 RT 17440-41.) He found a shell casing on the carpeted
floor near the hall door. He made casts of two shoe prints by the front bedroom
and bathroom. (Id. at 17441-43, 17446-47.) He did not make casts of the muddy
shoe impressions observed in front of the house. (Id. at 17451-52, 17456.) On
speaking with officers at the scene, Snyder determined that an investigating
officer – probably Officer Jiron – had made the muddy impressions with his
boots. Snyder did not check other shoes worn by the various personnel at the
scene. (Id. at 17458-59, 17461-63.)
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iii)
Cause of death
142. Garfield Medical Center emergency room physician Anthony Reid
testified that Mr. Doi arrived by an ambulance early in the morning on May 14,
1985. Efforts to revive him were unsuccessful. Mr. Doi had abrasions to his face
and a gunshot wound to his head. (151 RT 17490-92.)
143. Coroner Dr. Cogan testified about the findings of George Bolduc,
M.D., who performed an autopsy on Mr. Doi on May 15, 1985. The cause of
Doi’s death was a gunshot wound to the head. The entrance wound at the chin
had stippling, which indicated that the gunshot had been fired at close range.
(154 RT 17678-80.) A bullet was recovered during autopsy. (151 RT 17530-33.)
iv)
Identification of recovered property
144. Linda Doi-Fick made a list of missing items from her parents’ home.
She attended a police property line-up on September 5, 1985, and identified items
belonging to her parents, including a watch that her father never removed. Other
items taken from the Doi residence were never recovered. (154 RT 17709-14.)
v)
Eyewitness identification
145. At trial, Launie Dempster identified Petitioner as the man she saw on
three occasions in the Monterey Park area in 1985. (162 RT 18775-77.) From
August 1984 until November 1985, Dempster had a newspaper route in Monterey
Park. During that time, she also worked as a security guard. (Id. at 18754-56.)
She drove her daily newspaper route from 2:00 a.m. to 5:00 a.m. (Id. at 18756-
59.)
146. At approximately 3:30 a.m., while on her route in early May 1985,
Dempster saw a man sitting in a car on Trumbower Street, opposite the house at
1594 Trumbower Street. On returning an hour later, Dempster saw an ambulance
in the driveway at 1586 Trumbower Street. (162 RT 18759-63.) The car that she
had seen was gone. Dempster later learned that the residence had been broken
into and that someone had died. (Id. at 18764-65.)
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147. Two weeks later, at about 3:15 a.m., Dempster saw the same man in
the neighborhood in the same car. She described the car as a brownish-green,
older American model, like a Chevrolet, with black hubcaps and dark interior.
(162 RT 18765-68.)
148. When the Night Stalker police task force first contacted Dempster,
she explained that she had seen a young Mexican male in a car around the
neighborhood. (162 RT 18768-69.) Between the second and third sightings,
Dempster was stopped while on her route by the task force; she explained that she
was delivering newspapers. However, Dempster did not mention that twice she
had seen the same man in the neighborhood. (Id. at 18773.)
149. On one occasion while on duty as a security guard, Dempster saw a
composite drawing of a suspect. He did not resemble the man she had seen in
Monterey Park. She explained to a deputy sheriff that the composite was
inaccurate, but he told her that she was mistaken because witnesses had described
the man as he appeared in the drawing. (162 RT 18774-75.)
150. Dempster saw Petitioner’s face on television after his arrest. She
told her boss that the man on television was the same person she had seen on her
route. (162 RT 18777-78.) She recalled that the man was 6’ to 6’1” tall, thin,
and lanky. (Id. at 18787.) In 1986, she had further contact with a police officer
and told him about her observations. At this police officer’s insistence, Dempster
contacted Sheriff Detective John Yarbrough. Dempster gave Yarbrough a route
list that was current for April 1986. The route had changed only slightly from
Dempster’s route in 1985. (Id. at 18779-81.)
151. At the preliminary hearing, Dempster identified photographs of a car
that looked like the suspect’s car (Prosecution’s Trial Exs. 48 and 48-A); the
hubcaps were black. (162 RT 18782-84.) The car depicted in the photographs
appeared to be black, not brownish-green as she indicated previously. Dempster
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did not know whether the car depicted in the photographs was the same car she
had seen on her route. (Id. at 18794-95.)
152. On cross-examination, Dempster stated that when she first saw the
man seated in the parked car in Monterey Park, he had dark hair, dark skin, and
appeared to be Mexican. The man she had seen did not resemble the composite
drawing; his face was different, his hair was dark, longer, and not as curly. (
RT 18802-03.) The second time she saw the man, he was seated in a parked car
and shouted a few words at her. (Id. at 18815-21.) The third time, he was
outside the car, and she recognized him from prior occasions. Dempster did not
notice anything about him except that he wore a short-sleeve dark shirt. (Id. at
18825-28, 18832.) His car had black tires, but she did not notice if it had
hubcaps. (Id. at 18838.) She described the man as Mexican or Mexican-
American solely based on his facial features. (Id. at 18839.)
153. Linda Prewitt, a branch sales manager for the Los Angeles Herald
Examiner, worked with Launie Dempster. (163 RT 18853-54.) In 1985,
Dempster told Prewitt that she had seen a man in a parked car on her route.
Dempster indicated that she knew that a murder had occurred on the route,
specifically on Trumbower Street. (Id. at 18856, 18858.) Dempster told Prewitt
that the man she had seen on television and in the newspaper looked like the
person she had seen on her route. (Id. at 18860, 18865-69, 18885.)
154. Monterey Park Police Officer William Reynolds met Launie
Dempster on Olive Street following a traffic stop in May 1985, between 4:30 a.m.
and 5:00 a.m. He was assigned to the Night Stalker task force and drove an
unmarked car. (163 RT 18914-16.) Dempster indicated to Officer Reynolds that
she thought she had seen the Night Stalker while delivering newspapers on her
route. Officer Reynolds did not recall that Dempster provided a physical
description of the suspect; he made no notes of the conversation with Dempster.
(Id. at 18917-18.)
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155. Deputy Sheriff Paul Archambault spoke with Launie Dempster in
early August 1985 about a composite drawing. She told him that she had seen a
person whom she described as a male Mexican, but who did not resemble the
composite. (163 RT 18954-55, 18958.) Archambault advised Dempster to
contact the Monterey Park police. (Id. at 18965-66.)
f.
Bell and Lang Incident (May 29 to June 1, 1985)
Counts 12 through 14 (§§ 459, 187(a), 664/187)
i)
The discovery of Mabel Bell and Florence Lang
156. Charles Valenzuela worked sixteen years for two elderly women,
Mabel Bell and Florence Lang, who lived in a house on Alta Vista Street in
Monrovia. Sometime in 1985, Valenzuela went to their house and saw two
newspapers in the driveway. He knocked on the door, but there was no answer.
(155 RT 17752-53.) Valenzuela returned the next day, opened the door, and saw
a can on the kitchen table. He found Lang on a bed in a bedroom and found Bell
on the floor in another bedroom. A table was on top of Bell’s chest. Valenzuela
removed the table and then contacted neighbors to call the police. (Id. at 17753-
59.)
157. Monrovia firefighter Kenneth Struckus responded to the scene at
11:40 a.m. on June 1, 1985. He found Bell on the floor in a bedroom. She was
not breathing very well. Struckus turned Bell on her side and removed her
clothing to check for injuries. (155 RT 17765-71.) He observed blood all over
her head, and contusions to her ribs, four to five inches long on each side. A
reddish star-circle mark had been drawn on her body. Both Bell and Lang were
taken to a hospital. (Id. at 17772.)
158. Firefighter Steve Ford found Lang on a bed in the bedroom. Ford
observed a pentagram on the bedroom wall. Lang’s hands had been tied behind
her back with an electrical cord; her ankles had been taped. Ford cut the
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electrical cord and performed emergency treatment. He attempted to
communicate with Lang, but she was unresponsive. (158 RT 18139-44.)
159. Monrovia Police Officer James Olds arrived at the scene at about
11:30 a.m. He took a series of photographs of the scene and victims both in their
home and at the hospital. (155 RT 17785-86.) Bell had a star-circle on her left
thigh. Officer Olds photographed Lang’s injuries as well as the cord and
electrician’s tape on her arms and legs. Olds instructed others at the house not to
touch a hammer found on a table. He collected evidence and sexual assault kits
from hospital staff. (Id. at 17787-92, 17795, 17802.) He observed a star-circle
on the wall above a bed in a bedroom. (Id. at 17793.)
160. Sheriff homicide investigator Michael Bumcrot arrived at the scene
at 3:15 p.m. on June 1, 1985. He observed that the kitchen door had two locks; a
deadbolt lock was in place. (155 RT 17830-32, 17837.) On the dining room
table, there was a partially-eaten banana. Bumcrot observed a TV Guide on a
tray in the living room; it was turned to the schedule from 10:00 p.m. on May 29,
1985, to noon on May 30, 1985. (Id. at 17833.) Bathroom cabinet drawers were
open. Two electric clocks were unplugged; another clock was plugged in and
still running. (Id. at 17834-36.)
161. A table was lying on the bed in Bell’s bedroom. The room had been
ransacked. (155 RT 17838.) There was a hammer on top of a dresser in Lang’s
bedroom that appeared to have blood and hair on it. Strips of tape were on the
bedstead. A star-circle had been drawn on the wall over Lang’s bed. On the
south wall, other red marks had been made with lipstick. (Id. at 17838-42.)
ii)
Physical evidence at the scene
162. Criminalist Michelle LePisto was in charge of the scene. Some of
the items collected at the scene included part of the bedroom wall with stains,
pieces of electrical tape and cord, a portion of wall with a star-circle, sheets,
clothing, fibers, and carpet samples. A key was found at the foot of one of the
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beds. (156 RT 17896, 17903-04, 17907, 17910-11, 17913.) LePisto collected a
hammer with blood stains. No other tools were found at the scene. (Id. at 17909,
17924-25.)
163. Deputy Sheriff Charles VanderWende attempted to lift fingerprints
in the house but was unsuccessful. Deputy Sheriff Robert Meinke lifted a print
from a soda can found on the kitchen table. (155 RT 17857.) A telephone and
electric clock had fabric marks, indicating that they were handled by someone
holding a cloth or wearing gloves. (Id. at 17858, 17870.) A shoe print found on
one of the clocks looked like the ball of a shoe. It was similar in design to shoe
prints found at other crime scenes in this case. (Id. at 17859-60, 17866, 17873.)
iii)
Cause of Bell’s death
164. Bell and Lang were transported to Arcadia Methodist Hospital. (
RT 17773-74.) Michael Agron, M.D., was on duty in the emergency room when
Bell and Lang arrived. Bell had severe head injuries with brain tissue protruding
from a skull fracture. She was comatose and subsequently died. There was a
burn mark below her right breast; the skin was blistered. There were burn-like
marks on her back. (Id. at 17816-19.) A red star-circle drawn in lipstick was
observed on her left leg. Bell’s wounds were approximately two days old. (Id. at
17821-23.)
165. Coroner Sara Reddy, M.D., performed an autopsy on Mabel Bell’s
body on July 17, 1985. The cause of death was head trauma. At the time of the
autopsy, her wounds were more than two weeks old. Dr. Reddy had seen similar
round-shaped wounds in the past and was on the opinion that they were caused
by a hammer. (156 RT 17886-93.)
iv)
Injuries to Lang
166. Dr. Agron also examined Lang at Arcadia Methodist Hospital when
she and Bell arrived. Lang, who was comatose, had suffered head injuries, two
black eyes, a cut over the left eyebrow, ligature marks on both wrists, swollen
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hands, and bruising on the face. There were scrapes around the vaginal area. In
Dr. Agron’s opinion, Lang’s head wounds had been caused by force from a hard
object. (155 RT 17823-27.)
167. Claire Neiby, another emergency room physician on duty with Dr.
Agron, also examined Lang after her arrival. Dr. Neiby observed that Lang had
suffered tissue injury near the vagina, likely caused by sudden, forced stretching.
Smears were taken during the course of Dr. Neiby’s examination. (
RT 17807-11.) Although Lang subsequently regained consciousness, she could
not be interviewed because she was unable to communicate. (Id. at 17846-47,
17851.)
v)
Identification of recovered property
168. David Nipp, grandson of Bell and great-nephew of Lang, identified a
photograph of a cassette tape player as the one he had given Bell in April 1985.
(158 RT 18112-13.) He also identified a photograph of the instruction booklet
that accompanied the tape player. (Id. at 18116.)
169. He recalled reviewing the booklet and the serial numbers of the
cassette player with Bell. (158 RT 18114.) The last time Nipp visited Bell in
April 1985, the tape player was at her house. (Id. at 18115, 18124.) He usually
talked to Bell every one to two weeks and knew that she enjoyed the tape player.
Nipp also identified the cassette player in an evidence room at the sheriff’s
department. (Id. at 18116, 18125-26.)
170. Mark Krainbrink, who was David Nipp’s brother, last saw Bell and
Lang two months before the incident. He went to the hospital on June 1, 1985.
At the time of his visit, both Lang and Bell were comatose. (158 RT 18130-33.)
On June 3, 1985, Krainbrink found the instruction booklet for the cassette player
in Bell’s home and gave it to the Monrovia Police Department. He identified the
last entry in Bell’s diary, dated May 29, 1985, although he had not previously
seen the diary. (Id. at 18132-34.) Krainbrink last saw Lang the day before he
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testified at trial. She was then unable to speak and was being fed through a tube.
Before the incident, Lang was in good health. (Id. at 18131.)
g.
Kyle Incident (May 30, 1985)
Counts 15 through 18 (§§ 459, 261(2), 288a(c), 286(c))
i)
The attack on Kyle
171. On May 29, 1985, Carol Kyle lived with her seventeen-year-old
daughter and twelve-year-old son on North Avon Street in Burbank. Only she
and her son were home on the night of May 29, 1985. Kyle went to bed at about
1:00 a.m. The house was locked, but the back door had a small dog door that was
not secured. (156 RT 17936-37.) Kyle awakened at 4:00 a.m. to look at the
clock. The lights were off. A man flashed a light in her eyes and said, “Get up
and don’t make any noise.” He was holding a small dark handgun. (Id. at 17938-
40, 17942.) The man told Kyle to move to the living room. She indicated that
her son was in the house. They went to her son’s bedroom; the man turned on the
light, jumped on her son, and handcuffed him. He told both of them not to look
at him. (Id. at 17941-43.)
172. Kyle was then handcuffed with her son and shoved into a hall closet.
The man demanded money, jewelry, and a VCR. When he appeared again, he
was holding a different gun that was shiny. The man found Kyle’s wallet which
contained 30 dollars. (156 RT 17944-47, 17949.) Kyle and her son were
escorted to her son’s room and told to lie on the floor. They were covered with a
sheet. The man removed the handcuffs from Kyle and put her son into the closet.
The man took Kyle to her bedroom and demanded jewelry. She gave him a
diamond and gold chain. When he asked for more jewelry, Kyle showed him a
jewelry box. (Id. at 17949-53.) The man tied Kyle’s hands behind her back with
pantyhose. He pushed her onto the bed, covered her head with a pillow, and
screamed at her. He pounded on her back with his fist. Twice, he left the room
and came back. (Id. at 17953-55.)
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173. When the man returned for the second time, he removed the pillow
and told Kyle to lie down on her back on the bed. Her hands were still tied
behind her back. The man ripped open the front of Kyle’s nightgown and
removed her underpants. Kyle told the man she was having her period and had
an infection. The man threatened to kill her. He took off his jacket, unzipped his
pants, and started kissing her. (156 RT 17955-56.) The man got on top of her.
He put his penis in her vagina. After a few minutes, he turned her over and put
his penis in her anus; he ejaculated in her anus. (Id. at 17957-58.)
174. Kyle then spoke with the man for fifteen to twenty minutes as he
ransacked her closet. The man brought Kyle a robe because she was cold. (
RT 17959-60.) He untied the pantyhose on her left wrist and later removed it
altogether. He tried to tie her ankles with a telephone cord. The man said to her,
“I don’t know why I’m letting you live. I’ve killed people before.” He told Kyle
to tell police he wore a mask. (Id. at 17961-63.) He then brought Kyle’s son to
her bedroom and handcuffed them to the bed. The man left handcuff keys on the
mantle and told Kyle to make sure her daughter found them. In Kyle’s opinion,
the man seemed confused, asking the name of the town and directions to the
freeway. When the man left, Kyle thought his car sounded like a big, older car.
Kyle’s son called 911; the police arrived within a few minutes after the call. (Id.
at 17964-65.)
ii)
Physical evidence at the scene
175. Burbank Police Officer Ronald Cervenka was called to Kyle’s home
about 6:25 a.m. on May 30, 1985. He found the front door locked, but the back
door by the kitchen was ajar. There was no sign of forced entry. It appeared that
entry was gained through the kitchen door. (156 RT 18014-15 .) The house was
ransacked. Kyle and her son were still handcuffed. Officer Cervenka removed
the cuffs with the key on the mantle. The handcuffs were larger than those used
by police. He later took Kyle to St. Joseph Medical Center. (Id. at 18008-14.)
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176. Evidence technician Robert Cestaro collected handcuffs, keys, and
women’s clothing from the bedroom in Kyle’s home. Cestaro also dusted for
latent fingerprints. (156 RT 18019-21.)
iii)
Eyewitness identification
177. Kyle identified Petitioner at trial as her assailant on May 30, 1985.
His dress and hair were different than on May 30, 1985. (156 RT 17967.) Kyle
initially described the assailant as approximately 6’ tall, wearing a black leather
jacket, black slacks, and black gloves. (Id. at 17948, 17957.) She told police that
the assailant wore bangs, but had no facial hair. She said his hair was parted on
the left across his face and appeared to be shiny and wavy. She said at first she
did not see the man’s face except from the side. Later in her bedroom, she
noticed his teeth were straight and white. He was very thin with prominent
cheekbones. Kyle noticed his smile because he laughed several times when he
spoke to her. (Id. at 17982-84, 18003-04.)
178. Kyle assisted in the preparation of two composite drawings. (
RT 17999-01.) She saw a photo spread of possible suspects in July 1985 but did
not identify anyone. (Id. at 17987.) On September 5, 1985, Kyle attended a live
line-up. Petitioner was in the line-up and Kyle recognized the inflection of his
voice. (Id. at 17971-74.) She identified Petitioner at the preliminary hearing.
(Id. at 17979.)
179. Deputy Sheriff Mahlon Coleman met with Carol Kyle on August 30,
1985, at her residence. Based on her descriptions, he made sketches of jewelry
stolen from her residence and of the suspect. He turned over his sketch of the
suspect to Sergeant Frank Salerno (Prosecution’s Trial Ex. 16-B). When he made
the sketch, Coleman had not seen a photograph of Petitioner. (176 RT 20582-
85.) Kyle described the suspect to Coleman as wearing a black jacket with a stain
on the left shoulder, brown and black checked shirt, dark pants, and black belt
with silver holes. She described the suspect as a Latin male, twenty years old, six
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feet tall, and very thin. She described him as having a tan complexion, brown
eyes, black hair that was dry ,but shiny, and parted on the left side and curly on
the ends, but long in the back. She described him as having no facial hair and a
clean face, she said that he spoke with good diction, and that he had straight teeth
and excessive gums. (Id. at 20587-88.) The suspect’s skin color according to
Kyle was close to the color of a pencil used to prepare the sketch. (Id. at 20589-
91.)
iv)
Identification of recovered property
180. Kyle identified jewelry taken from her home at the police property
line-up on September 5, 1985. She identified a bracelet, silver chain, earrings,
necklaces, and a ring. (156 RT 17974-78.)
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h.
Cannon Incident (July 2, 1985)
Counts 19 and 20 (§§ 459, 187(a))
i)
The discovery of Mary Louise Cannon
181. Frank Starich lived next door to Mary Louise Cannon on East Haven
Avenue, Arcadia, Los Angeles County. Cannon was in her eighties and lived
alone. Starich was home on July 2, 1985. About 8:30 a.m., he noticed the screen
from Cannon’s window lying on her porch. (157 RT 18030-32.) He picked up
the screen; about a half-hour later he put the screen back on the open window.
Starich retrieved Cannon’s newspaper which was wet from automatic lawn
sprinklers. (Id. at 18032-34.) Starich became concerned about Cannon. He and
his wife used a key to enter Cannon’s house. Things were thrown around in the
hallway. A light was on in the hall. They left and called the police. (Id. at
18034-36, 18052.)
182. Starich stayed up until 11:00 p.m. the night before but did not hear
anything unusual. He watched television in a room thirty to thirty-five feet away
from Cannon’s house. His bedroom was on the opposite side of Cannon’s house.
(157 RT 18042-43.)
183. Tina Starich knew Cannon well. Cannon had visited the Stariches’
house on July 1, 1985, at about 6:00 p.m. Cannon had not been feeling well for a
long time. The day before, she had been in a traffic accident but was uninjured.
(157 RT 18046, 18049.) There were two locks on her front door, but Cannon did
not use the dead bolt. Ordinarily, she kept the screen door locked. Tina Starich
telephoned Cannon on July 2, 1985, but Cannon did not answer. Cannon’s
screen door was unlocked, but the front door was locked. Tina Starich re-entered
Cannon’s house with Officer Winter and found Cannon lying on her bed. (Id. at
18047-54.)
ii)
Physical evidence at the scene
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184. Arcadia Police Officer Edward Winter responded to the scene at
about 9:26 a.m. on July 2, 1985. He met Tina Starich and went with her into
Cannon’s house. In the living room, he noticed a drawer pulled out of the coffee
table; other items were on the hallway floor. Mary Cannon’s body was lying face
down on the bed in the bedroom. (157 RT 18059-61.) There was a lot of blood
on the bed. The room was ransacked. A paper tissue on the floor had a waffle
shoe print pattern. Glass from a broken lamp was found near the victim’s
shoulder. A walking cane and knife were on the bed. A file cabinet had been
ransacked; a jewelry box was on the floor. (Id. at 18067-68, 18074-76, 18078.)
185. Coroner criminalist Lloyd Mahanay collected two sets of shoe
prints, a heel print, glass shards, and a sexual assault kit from Cannon’s body.
(158 RT 18150-51.)
186. Sergeant Salerno observed a window screen missing from the
victim’s bedroom window. (160 RT 18431-32.) One of the window panes had
been broken. Shoe impressions on the carpet and a bloody shoe print on a piece
of tissue were collected as evidence. (Id. at 18433-35, 18437.) Pieces of a
broken lamp were found in Cannon’s hair. A bloody, 10” knife was found on the
bed. A knife sharpener matching the knife was found in the kitchen. (Id. at
18439-41.)
iii)
Shoe print evidence
187. Waffle-soled shoe prints were found in several rooms of Cannon’s
house. The shoe prints did not match the shoes worn by any of the officers who
participated in the investigation or the Stariches. (157 RT 18065.) Three pieces
of carpet containing shoe prints were preserved as evidence. At trial, shoe print
impressions on the carpet pieces were no longer visible. (158 RT 18151-55.)
iv)
Cause of death
188. Coroner Joan Shipley, M.D., performed an autopsy on the body of
Mary Cannon on July 3, 1985. In Dr. Shipley’s opinion, the cause of death was
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multiple neck wounds and strangulation. Dr. Shipley also found blunt trauma
wounds to the face and head, a broken nose, black eyes, and puncture wounds to
the mouth area. In Dr. Shipley’s opinion, the injuries to the head could have been
inflicted by use of hands. (157 RT 18084-87, 18089.) Dr. Shipley observed four
stab wounds; one cut the carotid artery. Smaller stab wounds were observed on
the back of the neck. (Id. at 18089-95.)
189. Cannon’s body showed trauma to the neck caused by strangulation
but without finger imprints on the skin, indicating the use of a soft, wide ligature
such as hands, or pressure from an elbow joint as the means of strangulation.
Petechial hemorrhages of the eyes were caused by loss of oxygen. In Dr.
Shipley’s opinion, Cannon died within a few minutes after infliction of the
wounds or strangulation. (157 RT 18095-98.)
v)
Identification of recovered property
190. Lynda Klempel last saw Mary Cannon on June 14, 1985, in Paso
Robles. At trial and at the September 5, 1985 property line-up, Klempel
identified a necklace (Prosecution’s Trial Ex. 19-F) and a locket (Prosecution’s
Trial Ex. 19-G) belonging to Cannon. The exotic, handmade necklace contained
beads and brass trim, it cost 15 dollars. (162 RT 18731-35, 18743.)
i.
Bennett Incident (July 5, 1985)
Counts 21 and 22 (§§ 459, 664/187)
i)
The attack on Whitney Bennett
191. Sixteen-year-old Whitney Bennett lived with her parents on Arno
Drive, Sierra Madre, Los Angeles County. Around 5:00 p.m. on July 4, 1985,
Bennett went to a friend’s house and returned home at 12:45 a.m. (
RT 18223-25.) She parked her car in the back of her house and entered by the
back door. Bennett locked the back door and left a note for her father on his
closed bedroom door. No one was awake when she returned home. The hall and
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outside lights were on. She turned on the light in her bedroom. Her bedroom
curtains were open. (Id. at 18226-29.)
192. Bennett changed her clothes, removed her jewelry, which she placed
in a jewelry box on the dresser, and went to sleep. She awakened between 2:
a.m. and 3:45 a.m. (159 RT 18230-32.) She was lying, face down, on the bed.
Blood was all over her sheets; her head and hands hurt. The lights were not on in
the room. The curtains were closed. Bennett ran screaming to the hallway where
she was found by her father. After the paramedics transported her to the hospital,
she was hospitalized for eight days. She has had surgery on her hand, head, and
face. (Id. at 18233-36.)
193. Bennett testified that blood stains found in her bedroom were new;
they were not there when she went to bed. When Bennett awakened, her
telephone was on the window sill and her jewelry box had been moved. Her
underpants had been removed. Two gold rings were missing and never
recovered. A tire iron, found in her bedroom, was unknown to her. (
RT 18239-45.)
194. Steve Bennett testified that his daughter left their home on the
afternoon on July 4, 1985. He had guests for dinner who left about 11:00 p.m.
through the back door; he did not recall if the front door was locked. Mr. Bennett
stayed up until midnight to watch fireworks. (159 RT 18266-69.) Mr. Bennett
did not hear his daughter return home. Mr. Bennett was awakened early in the
morning by a moaning sound; he found his daughter at her bedroom door. She
was bloody and complained about her head. Her bedroom was in disarray.
Blood was everywhere, and a tire iron was on the floor. (Id. at 18270-75.)
195. Robert Costarella, M.D., a plastic surgeon, was on duty at Arcadia
Methodist Hospital on July 5, 1985. He treated Whitney Bennett for massive
head lacerations, skull fractures, fracture of the eye socket, and fracture to a
finger on her left hand. (161 RT 18665-73.) He operated on her several times to
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remove scars. Bennett suffered eye damage and partial retinal detachment. (Id.
at 18673-75.) Marks that he observed around her neck were likely caused by a
rope or cord. In Dr. Costarella’s opinion, Bennett’s head injuries were consistent
with blunt force trauma caused by a tire iron. (Id. at 18677-78.)
196. On July 5, 1985, Sergeant Salerno interviewed Whitney Bennett at
Arcadia Methodist Hospital. He observed cuts to her cheekbone and ligature
marks on the right side of her neck. Bennett’s eyes and hands were swollen.
(159 RT 18313.)
ii)
The crime scene
197. Sierra Madre Police Sergeant Gerald Skinner arrived at the Bennett
home at 5:10 a.m. on July 5, 1985. (158 RT 18171.) He spoke with Mr. Bennett
and checked the house for suspects. He found a window screen outside, leaning
against the front of the house. (Id. at 18172-74.)
198. Whitney Bennett was on the hallway floor. Her head was bleeding
and wrapped in towels. Blood stains were observed on the bedroom carpet and
walls. The curtain in her bedroom was slightly open. (158 RT 18175-76.) A tire
iron was lying on the carpet in a pool of blood. Skinner observed a hand print on
the window sill in Bennett’s bedroom, which appeared to have been made by
some sort of fabric or a gloved hand. After an emergency rescue unit arrived,
Whitney Bennett was transported to the hospital. (Id. at 18178-79, 18181,
18186.)
iii)
Physical evidence at the scene
199. Criminalist Giselle LaVigne collected evidence from Bennett’s
bedroom on July 5, 1985, including a tire iron, curtain sash, bed comforter which
appeared to have a shoe print, and blood stains on the carpet. (158 RT 18191-
98.)
200. Deputy sheriff Ronald George participated in the investigation at the
Bennett home on July 5, 1985. He photographed the house and processed
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fingerprints on the bedroom window sill. There was a fabric mark and blood on
the window sill. Deputy George was unable to obtain any fingerprint lifts. He
also photographed a shoe transfer on a comforter found in the bedroom. (
RT 18278-81.)
201. Sergeant Frank Salerno arrived at the Bennett home about 7:05 a.m.
on July 5, 1985. He observed blood and a print mark on the bedroom window
sill. The window screen had been removed from the bedroom window. A
telephone cord in Whitney Bennett’s bedroom had been cut with a sharp
instrument. (159 RT 18307-08, 18315, 18319.) A pair of underpants and a sash
were found near the window. A bed comforter was partially stained with blood.
In Salerno’s opinion, the shoe impression on the comforter in Whitney Bennett’s
bedroom appeared similar to shoe prints found at the Cannon and Zazzara crime
scenes. (Id. at 18310-12, 18315-16.)
j.
Nelson Incident (July 7, 1985)
Counts 23 and 24 (§§ 459, 187(a))
i)
The discovery of Joyce Nelson
202. At about 6:00 a.m. on July 7, 1985, Robert Blanco, a neighbor of
Joyce Nelson on East Arlight Street in Monterey Park, Los Angeles County,
noticed that Nelson’s back gate was open. (159 RT 18329-30.) Blanco went into
her yard and heard the sound of Nelson’s television set. Blanco called to Nelson,
but there was no response. Nor was there any response when Blanco checked on
Nelson again at 9:00 a.m. (Id. at 18331-32.) At that time, Blanco noticed a
window screen from the front window lying in the flowerbed. Blanco did not
step in the flowerbed or touch the windowsill when he called out to Nelson.
Nelson’s front window was open. (Id. at 18334-36, 18344.)
203. Blanco went to Nelson’s porch; the front door was open. Pushing
open the front door, Blanco saw open drawers, and the television was on. He
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called out, but there was no response. Blanco told another neighbor what he had
seen and the neighbor’s wife called the police. (159 RT 18336-39.)
204. Monterey Park Police Officer Robert Daltorio was called to Nelson’s
home shortly after 9:00 a.m. on July 7, 1985. Officer Daltorio observed a
window without a screen; he found the screen leaning against the house. (
RT 18357-58.) The front window was open and the shade pulled down. He
observed shoe prints in the dirt under the window. The back door had a small,
freshly-made cut in the screen. He observed shoe prints on the porch. (Id. at
18359-61, 18367-69.)
205. Dead bolts had not been set either on the front or back doors. The
key to the front door was in the lock on the inside. The bathroom and a bedroom
had been ransacked. (159 RT 18362.) Officer Daltorio observed items on the
bed and a pillow without a case. Officer Daltorio tried to open the second
bedroom, but the door was blocked. He pushed his way inside and found Joyce
Nelson’s body on the bed, face down, with her hands locked behind her back.
(Id. at 18363-66.)
ii)
Fingerprint and shoe print evidence
206. Deputy Sheriff Vander Wende photographed shoe impressions in the
planter under the window in front of Nelson’s house and four similar imprints on
a concrete porch. He obtained tape lifts of shoe prints. (159 RT 18381-82,
18384-86.) He observed a shoe print on the left side of Nelson’s face and her
robe. In Deputy Vander Wende’s opinion, shoe prints found on the porch of
Nelson’s home were similar to the sole pattern of a shoe print found at the scene
of the Bell and Lang incident. (Id. at 18387-88.) Deputy Vander Wende lifted
palm prints from the front bedroom door and from the bedroom windowsill above
the planter. Glove marks on a file box in another bedroom were similar to marks
on the night stand in Nelson’s bedroom. (Id. at 18388-90.)
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207. Sergeant Salerno also participated in the investigation at Nelson’s
home. In his opinion, shoe prints found outside the Nelson residence were
similar in appearance to shoe prints found at the scenes of the Zazzara, Cannon,
and Bennett incidents. (160 RT 18443-44, 18465-66.) Criminalist Gerald Burke
analyzed the shoe prints found at the Nelson home. Burke determined that the
sole pattern of the shoe prints was identical to the sole pattern of a shoe made by
the Avia Company. (Id. at 18466-70.) A pair of Avia high-top basketball shoes
brought to the Nelson residence was found to have a sole pattern similar to the
shoe prints found in and around the Nelson home. (Id. at 18472-73.)
iii)
Cause of death
208. Coroner investigator David Campbell participated in the
investigation of Nelson’s death. When Campbell entered Nelson’s home at 2:
p.m. on July 7, 1985, he observed Nelson’s body on the floor; she had multiple
cuts to her face. The air temperature at 5:00 p.m. was 84EF; the liver temperature
of Nelson’s body at 9:08 p.m. was 87EF. Rigor mortis and lividity were present
in the body. There were no other signs of trauma or ligature marks on the body.
(160 RT 18487-92.)
209. Coroner Irwin Golden, M.D., performed an autopsy on Nelson’s
body on July 8, 1985. In Dr. Golden’s opinion, death resulted from head injury
and manual strangulation. Nelson sustained a hinge-type skull fracture prior to
death through the use of severe force. (160 RT 18494-500, 18502.) She
sustained injuries to her eyes, a scratch from a blunt instrument to the jaw, and
bruises on her knuckles, fingers, foot, and ankle. Dr. Golden observed deep
tissue abrasions to the larynx and evidence of manual strangulation. (Id. at
18501-03, 18505-09.)
iv)
Eyewitness identification
210. Launie Dempster placed Petitioner in the neighborhood around the
time of Nelson’s murder. At the beginning of July, she saw the same man she
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recognized from two previous occasions in a parked car on Arlight Street
between 3:00 a.m. and 4:30 a.m. At the end of her route, Dempster saw the man
walk from the back of his car to the driver’s side. He was wearing a black, short
sleeve T-shirt, a dark jacket, and dark pants. (162 RT 18769-72.)
k.
Dickman Incident (July 7, 1985)
Counts 25 through 27 (§§ 459, 261(2), 286(c))
i)
The attack on Sophie Dickman
211. At 3:30 a.m. on July 7, 1985, Sophie Dickman, a retired nurse who
lived alone on Hollyoak Drive in Monterey Park, Los Angeles County, was
awakened by a light in her bedroom. A man was standing in her bedroom
doorway. (160 RT 18520-21.) The man was holding a gun in his hand; he
ordered Dickman to be quiet and threatened to kill her. The gun appeared to be
metallic silver with a three-inch barrel. (Id. at 18522.)
212. Dickman was unclothed except for her underpants. The man closed
the shutters in the bedroom and then handcuffed Dickman’s hands behind her
back. The man pulled her into an adjacent dressing room. Dickman had
difficulty walking because of a recent foot injury. (160 RT 18526-28.) She tried
to remove and hide surreptitiously a sapphire and diamond ring but the man
retrieved the ring. (Id. at 18526-28.) Dickman was then taken to the bathroom
where the man covered her head with a towel. (Id. at 18530-34.) He found
several rings, including a gold wedding ring, gold engagement ring, and two
diamond rings. Dickman told the man that she had money in two purses. When
the man left her alone in the bathroom, the towel slipped off her head. The man
returned and demanded more money. Dickman estimated that 150 to 160 dollars
in cash was kept in her purses. She found 78 dollars the next day in a zippered
compartment of one of her purses that had not been opened. (Id. at 18536-37.)
213. The man returned Dickman to her bedroom and put her, still
handcuffed, on the bed. The man took off Dickman’s underpants and ordered her
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to spread her legs. The man removed one of his gloves, put it in her mouth, and
told her to bite down on it. Dickman testified that the glove was leather with a
ridge pattern. (160 RT 18538-40.) The man put a pillow over Dickman’s head,
got on top of her, first attempted vaginal intercourse, and then tried to penetrate
her rectum. A few minutes later, he resumed his attempt at intercourse but did
not penetrate her vagina. (Id. at 18541-43.) Shortly afterward, the man stood up
and began taking the telephone out of the wall. Dickman later found the
telephone in the hall closet; another telephone had been removed from the
kitchen. (Id. at 18544-46.)
214. After handcuffing Dickman to the bed, the man left. Dickman heard
a car engine start up near her bedroom window. She stood up, put on a robe,
dragged the bed to her window, and called for help. Dickman’s neighbor, a
deputy sheriff, came to her window and told her not to touch anything. Soon, the
police arrived. (160 RT 18547-51.)
215. Dickman was taken to Monterey Park Hospital. She was examined
by Gerald Bross, M.D. (160 RT 18512.) Dr. Bross observed no evidence of
trauma outside the pelvic region. He found dried blood on Dickman’s inner
thigh, small tears to the vaginal lining, and fresh bleeding inside the vagina. In
Dr. Bross’s opinion, the tears and bleeding were likely caused by blunt force or a
sharp object. (Id. at 18513-14.)
ii)
Physical evidence at the scene
216. Monterey Park Police Officer William Costleigh responded to
Dickman’s house at 3:45 a.m. on July 7, 1985. He found Dickman standing at
her bedroom window handcuffed to the bedpost. Officer Costleigh tried to
remove the handcuffs from Dickman. (161 RT 18691-94.) The handcuffs were
unique; he had never seen a similar pair of handcuffs.
217. Another officer removed the handcuffs. Walking through
Dickman’s house, Officer Costleigh saw that the sliding glass door was open but
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locked by something on the track of the sliding door. (161 RT 18695-99.) A cat
door appeared to be bent. The panel to the cat door was missing. Dickman later
noticed the panel had been moved. (Id. at 18566-68.) Outside, the screen on the
backdoor was torn. (Id. at 18701.) A plastic pail normally kept near the garbage
cans had been used to prop open the screen to the service porch door. (Id. at
18571-74.)
218. Monterey Park Police Officer David Corrigan arrived at Dickman’s
house at about 4:30 a.m. He photographed the house, the torn screen, telephone
cords, and handcuffs. (161 RT 18711-14.) The handcuffs removed from
Dickman appeared to be an inexpensive novelty item; they were not used by law
enforcement. (Id. at 18716.)
219. Dickman later found items on her dining room floor, including a
purse and telephone cord. Other items were out of place and on the floor in the
guest bathroom, den, and bedrooms. (161 RT 18571-75.) Dickman identified a
pistol (Prosecution’s Trial Ex. 46) as similar to the weapon used by the intruder
during the incident. (Id. at 18588-89.) She also found unopened soda cans on the
floor of the service porch. (Id. at 18623-24.)
iii)
Eyewitness identification
220. According to Officer Costleigh, Dickman initially described her
assailant as possibly white, about twenty-seven years old, 5’8” to 5’9”, thin, with
dark brown curly hair. (161 RT 18702-03.) He indicated in his report that the
suspect was described as wearing cloth mesh, black gloves and black high-top
sneakers. (Id. at 18707-08.)
221. Dickman testified that she described the suspect as 6’ to 6’1”. (
RT 18627-28.) The man was dressed in black clothing, wore black gloves, and
black high-top tennis shoes with a white line around the sole. (160 RT 18522;
161 RT 18607-12.) On several occasions when shown groups of photographs,
Dickman was unable to identify anyone. (160 RT 18555-58.)
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222. Officer Conigan worked with Dickman to prepare a composite
drawing of the suspect. She provided the same general physical description of
the suspect as previously given to Officer Costleigh. Officer Conigan prepared a
bulletin which listed the suspect’s physical description as: 5’7” to 5’8”, thin
build, twenty-seven years old, dark brown hair. (161 RT 18718-19, 18724.)
223. Prior to the September 5, 1985 line-up, Dickman attended a live line-
up conducted by Monterey Park Police Department. She did not identify anyone
in that first line-up. On September 5, 1985, Dickman attended a live line-up and
identified Petitioner. (160 RT 18555-58.)
224. At trial, Dickman identified Petitioner as her assailant. (
RT 18532-33.) He appeared different in court; his bangs were separated, and his
hair was longer. (161 RT 18582.) She first saw Petitioner’s picture on August
30, 1985, on television and was aware that Petitioner had been arrested. She
regularly watched television and read the newspapers. She saw Petitioner’s face
on television on every broadcast, five times a day. (Id. at 18630-31, 18651.)
Dickman testified that in identifying Petitioner, she was not influenced by his
appearances on television. (Id. at 18641-42.)
iv)
Identification of recovered property
225. A pillowcase from Dickman’s bed and items of jewelry were taken
from her home. Dickman attended a property line-up on September 5, 1985; at
the lineup, she identified jewelry that belonged to her, including earrings, two
pins, and rings. (160 RT 18548, 18554-55; 161 RT 18583-86.)
l.
Kneiding Incident (July 20, 1985)
Counts 28 through 30 (§§ 459, 187(a))
i)
Discovery of Maxon and Lela Kneiding
226. Maxon and Lela Kneiding lived on Stanley Avenue in Glendale, Los
Angeles County. Roy Murley last saw Maxon Kneiding at church on Friday, July
19, 1985. (163 RT 18971-72.) The Kneidings’ daughter, Judith Arnold, saw her
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parents on the morning of July 19, 1985. At that time, they made plans to meet
the next morning for breakfast at a restaurant in Glendale. On July 20, 1985,
after her parents did not show up at the restaurant, Judith drove to church and
then to her parents’ home. (Id. at 18974-76.) She arrived at 8:15 a.m., entered
through the back door and found them lying in bed. Judith’s husband called the
police. (Id. at 18976-77.)
227. Glendale Police Officer Tom Kuh arrived at the Kneiding residence
at approximately 9:25 a.m. He met Judith Arnold at the house; they found
Maxon and Lela Kneiding dead in the bedroom. (164 RT 19000-01.)
228. A screen on the rear door had been cut and stretched near the door
knob. (164 RT 19006, 19042-44.) Open dresser drawers, clothing, a brown
wallet, and a purse were on the floor of the bedroom. The bedroom window was
slightly open. (Id. at 19019-21.)
229. Maxon Kneiding was found on his right side, face down across the
bed against his wife, who was on her right side, face down with her legs over the
edge of the bed. Both were dressed in night clothes. (164 RT 19022.) Lela
Kneiding was not wearing any jewelry, but there was a white band of skin on her
left ring finger. (Id. at 19030-31.)
230. Coroner’s investigator Frederick Corral examined the bodies of
Maxon and Lela Kneiding on July 20, 1985. At 8:00 p.m., the air temperature
was 76EF; the liver temperature of the victims’ bodies was 85EF. Both bodies
were in full rigor. (164 RT 19060-62.)
ii)
Physical evidence at the scene
231. The Kneidings lived in a neighborhood with many trees and bushes.
Across the street from their home was a supermarket; nearby, there was a large
construction site. An elevated freeway ran behind the house. (164 RT 19023-
24.)
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232. Two bullet fragments were found in the carpeting in the bedroom;
one near Lela Kneiding’s body and one on the floor by a sewing cabinet. (
RT 19032-33, 19051-54.) Blood stains and spatter were observed at the head of
the bed, on the window curtains, and on the overhead light. The spatter trail had
multi-directional patterns and ran upward, slightly to the right. Stains on the wall
above the bed appeared to run upward at a forty-five-degree angle. A large
clump of hair with blood that appeared to be from Lela Kneiding was found on
the curtain. A clump of bloody hair was found in Lela Kneiding’s clenched right
hand. Hair also was found on the curtains, approximately seven feet above the
floor. The bedroom was the only room that had been ransacked. (Id. at 19036-
41, 19045-47.)
iii)
Causes of death
233. Coroner Irwin Golden, M.D., performed autopsies on the bodies of
Maxon and Lela Kneiding on July 22, 1985. Lela Kneiding’s death resulted from
two gunshot wounds to the head – one in the cheek area and another to the back
of the head. The wound to the cheek area was caused by a weapon fired at close
range. The shot to the back of the head was a contact-type wound, indicating that
the gun barrel was close to the head when the weapon was fired. (169 RT 19630-
34.) A small-caliber bullet was recovered from the wound to the back of the
head. Dr. Golden observed trauma to Lela Kneiding’s neck caused by a cut
behind the right ear. There were cuts on her right hand and arm and bruises on
her right shoulder and upper arm that appeared to be defensive wounds. In Dr.
Golden’s opinion, the incised wounds occurred before death. (Id. at 19634-38,
19643.)
234. Maxon Kneiding’s death resulted from a gunshot wound to the neck.
No bullet was recovered. Dr. Golden was unable to estimate the distance from
which the weapon was fired. (169 RT 19639-40.) Four incised wounds to the
neck did not sever major blood vessels but would have been fatal if not treated
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due to lack of blood. The wounds varied in size and depth, from three-quarters of
an inch to three inches deep, and in Dr. Golden’s opinion, they were inflicted
before the gunshot wound to the neck. (Id. at 19641-43.)
iv)
Identification of recovered property
235. On September 5, 1985, Judith Arnold and her sister, Ellen Francis,
attended a property line-up. Judith Arnold identified personal property belonging
to her parents, including her mother’s wedding rings, a ring box, and a watch.
(163 RT 18980-82.) Ellen Francis identified a belt, rings, a necklace, combs, and
a pin as belonging to her mother. (Id. at 18985-88.)
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m.
Khovananth Incident (July 20, 1985)
Counts 31 through 35 (§§ 459, 187(a), 261(2), 288a(c),
286(c))
i)
The attack on Somkid Khovananth
236. Somkid Khovananth and her husband Chainarong Khovananth lived
on Schoenborn Street in Sun Valley, Los Angeles County, with their two
children. (164 RT 19070-71.) In the early morning of July 20, 1985, Ms.
Khovananth was asleep on the living room couch; she got up at 12:30 a.m. to
open the door for her husband who was returning from work. Ms. Khovananth
locked the front door. Mr. Khovnanth went to the bedroom; Ms. Khovananth
stayed in the living room. A sliding glass door from the living room to the
backyard was kept open. The screen was shut, as were the curtains on the sliding
door. (Id. at 19072-74.)
237. Ms. Khovananth was awakened by the sound of the sliding glass
door. She looked up and saw a tall, skinny man walk in the living room holding a
gun. He told her to be quiet and threatened to kill her. The gunman walked to
the hallway leading to the bedroom. (164 RT 19075.) Ms. Khovananth heard a
gunshot. The gunman came back to the living room and said that he killed her
husband. The gunman told Ms. Khovananth to do what he told her and
threatened to kill her children. Every time the man spoke, he called her “bitch.”
(Id. at 19076.)
238. The gunman pointed the gun at Ms. Khovananth’s head. She told
the man that she would give him everything and asked him not to hurt the
children. The gunman ripped off her nightgown, led her into the bedroom, and
pushed her on the floor. Mr. Khovananth was on the bed, covered with bedding.
(164 RT 19077-78.) The gunman forced Ms. Khovananth to have sexual
intercourse. Afterward, she was taken into a bathroom where the gunman tied
her hands with the cord from a portable hair dryer. (Id. at 19078-81.) The
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gunman beat and slapped Ms. Khovananth, took her to the bedroom again and
forced her to perform oral copulation. He forced Ms. Khovananth to have anal
intercourse. (Id. at 19081-83.)
239. An alarm in the son’s bedroom sounded at 6:00 a.m. By that time, it
was daylight. The gunman left Ms. Khovananth with her legs tied and went into
the son’s room. Ms. Khovananth heard her son crying. About fifteen minutes
later, the gunman came out of the bedroom and went to the kitchen. (
RT 19083-85.) He went back to her son’s room carrying fruit juice. Soon, the
gunman returned to Ms. Khovananth’s bedroom; he asked for her jewelry. Ms.
Khovananth told him that jewelry was hidden under a kitchen drawer. (Id. at
19086-87.) He demanded money; Ms. Khovananth gave him 80 dollars from her
purse. She also gave him jewelry and a silver coin collection kept in her son’s
room. (Id. at 19087-90.)
240. While in her son’s room, Ms. Khovananth saw her son lying on the
floor. He was tied up. His pajama pants were torn off and a sock was in his
mouth. The gunman beat Ms. Khovananth’s son in her presence. (
RT 19090-92.) The gunman escorted Ms. Khovananth to the daughter’s room.
Ms. Khovananth told the gunman not to wake her daughter because she would
cry. Ms. Khovananth told the gunman there was more jewelry outside in her
husband’s car. (Id. at 19092-93.) The gunman put a coat over Ms. Khovananth’s
head, and they went to the garage. Mr. Khovananth’s wallet containing
dollars was under the front seat of his car. They went back into the house; the
gunman pulled out the telephone near the kitchen. (Id. at 19094-96.)
241. The gunman asked Ms. Khovananth for a suitcase and put her VCR
inside the suitcase. He placed jewelry in a pillowcase and put the pillowcase into
the suitcase. The gunman again bound Ms. Khovananth on the bedroom floor.
He slapped her before leaving the house. (164 RT 19096-98.)
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242. Ms. Khovananth untied her legs with a knife, pulled one hand loose,
and ran to her son’s room. She untied her son, got her daughter, and called a
neighbor for help. The neighbor took her children while she returned home. She
found her husband dead on the bed in their bedroom. (164 RT 19099-100.)
ii)
The death of Chainarong Khovananth
243. Los Angeles Police Officer Diane Fichtner arrived at the scene at
7:00 a.m. on July 20,1985. She found the body of Mr. Khovananth on the bed in
the master bedroom with a pool of blood around his head. (164 RT 19140.)
244. Coroner Dr. Joseph Cogan performed an autopsy on the body of
Chainarong Khovananth on July 21, 1985. Death was caused by a gunshot
wound to the head. (167 RT 19406-07.) The entrance wound was near the left
ear. In Dr. Cogan’s opinion, the weapon was fired at very close range. A small
caliber bullet was recovered from the right side of Mr. Khovananth’s scalp during
the autopsy. (Id. at 19407-10.)
iii)
Physical evidence and shoe print evidence
245. Los Angeles Police Detective Carlos Brizzolara arrived at the scene
at 9:30 a.m. He observed a telephone cord in the living room that had been
pulled from the wall. Mr. Khovananth’s body had been left on the bed in the
master bedroom; the bedroom had been ransacked. (165 RT 19149-54.) The
kitchen had also been ransacked; cabinet drawers were pulled out and food items
had been spilled on the floor. In the son’s bedroom, items were on the bed and
floor. A butcher knife and a jar of apple juice were on the dresser. (Id. at 19156-
58.) A partially open suitcase with items inside was on the floor of the son’s
bedroom. (Id. at 19158.) Detective Brizzolara observed shoe prints on the front
and side porches and on the hallway floor. (Id. at 19158-59.)
246. Deputy Vander Wende and criminalist Burke examined shoe prints
on the front porch of the Khovananth home on July 21, 1985. (167 RT 19391-
92.) Deputy Vander Wende previously observed similar shoe prints at the home
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of Joyce Nelson on Arlight Street in Monterey Park and the Bell and Lang
residence in Monrovia. (Id. at 19393-94.) Deputy Vander Wende observed shoe
prints outside the sliding glass door at the rear of the living room and a partial
shoe print at the back porch. (Id. at 19394-95.) Three lifts were made of the shoe
print on the front porch. (Id. at 19397-98.) Deputy VanderWende was
unsuccessful in obtaining clear lifts from the hallway and back step. (Id. at
19398-99.) Shoe print lifts were also taken from the hall next to the master
bedroom door and from the front and back porches. (171 RT 19960-62.)
iv)
Eyewitness identification
247. Somkid Khovananth initially described the gunman as a male
Hispanic, 6’ tall, thin build, thirty to thirty-five years old, wavy brown hair with
soft curls, wearing brown pants and a multi-colored shirt. (164 RT 19141.) Ms.
Khovananth first identified Petitioner at a live line-up on September 5, 1985. At
trial, she again identified Petitioner as the gunman who entered her home on July
20, 1985, attacked her, and shot her husband. (Id. at 19108, 19110, 19116.)
248. On cross-examination, Ms. Khovananth acknowledged that she had
previously described her assailant as having a brown face, like a Mexican, and
loose, curly hair. (164 RT 19118-20.) At trial, Petitioner’s hair appeared to be
longer than in 1985. Ms. Khovananth had seen Petitioner’s face on television and
in the newspaper a few weeks after the incident. She assisted in preparing a
composite drawing and remembered that her attacker’s teeth were bad. (Id. at
19120-26.) He spoke with an accent, but Ms. Khovananth could not identify his
country of origin. He spoke as though he was uneducated. After the incident and
before the live line-up, Ms. Khovananth met with police three to four times. She
gave a description of the man to police and tried to provide all the details, but she
was upset. (Id. at 19128-29.) She recalled that the man wore gloves, taking them
off only when he hit her. The gloves were not leather; they were gray or light
brown cloth. (Id. at 19130-31.)
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v)
Identification of recovered property
249. On September 5, 1985, Ms. Khovananth attended a property line-up.
She recognized a jade pendant, a chain, a suitcase, a ruby pendant, a jewelry bag,
a tie pin, a diamond pendant and chain, a ring, loose diamonds, a watch, and a
necklace. All of the items had been taken from her house by the gunman on July
20, 1985. Ms. Khovananth identified a photograph of a suitcase that she and her
husband owned. One suitcase of the set had been taken from her home. (
RT 19107, 19110-14.)
n.
Petersen Incident (August 6, 1985)
Counts 36 through 38 (§§ 459, 664/187)
i)
The attack on Virginia and Christopher Petersen
250. At about 9:00 p.m. on August 5, 1985, Virginia Petersen went to bed
in her home at 18241 Acre Street in Northridge, Los Angeles County, while her
husband, Christopher Petersen, watched television in the living room. Their four-
year old daughter was asleep in her bedroom. (165 RT 19177-78.) When Ms.
Petersen retired for the night, the sliding glass door and screen in the den were
closed but not locked. (Id. at 19194.) Early in the morning, Ms. Petersen heard
footsteps in the living room and from her bed saw a man in the hallway. He was
over six feet tall, had a muscular build, wore dark clothing, and had shaggy hair.
The man stood at the bedroom doorway holding a silver object in his hands. (Id.
at 19178-80.)
251. Ms. Petersen asked the man who he was and told him to get out. He
lowered the object, then shot her. Ms. Petersen’s face went numb and she fell
back, but she did not feel any pain. (165 RT 19181-83.) Mr. Petersen sat up in
bed as a second shot was fired; wounded, he fell back in bed. The man stood at
the foot of the bed laughing. Mr. Petersen jumped out of bed and gave chase.
Ms. Petersen heard two more gunshots. Mr. Petersen fell to the floor. (Id. at
19183-85.) The gunman left the house by the sliding glass door. (Id. at 1919789Page 114 Page ID #:
19198.) Their daughter started to scream. Ms. Petersen got out of bed, grabbed
her daughter, and ran next door. (Id. at 19186.) Finding no one home, Ms.
Petersen went back home and dialed 911. She grabbed a towel and wrapped it
around her face to stop the bleeding. She ran outside as her husband and
daughter were getting into their truck. They drove to Northridge Hospital. (Id. at
19186-88.)
252. Ms. Petersen had been shot on the left side of her nose; the bullet
exited the back of her neck. Mr. Petersen had been shot on the right side of the
head; the bullet was still lodged in his neck. (165 RT 19188-89.)
ii)
scene
Fingerprint evidence and physical evidence at the
253. Los Angeles Police Department forensic print examiner Charles
Caudell was dispatched to the Petersen home at 1:35 p.m. on August 6, 1985. He
took fingerprint lifts from the sliding glass door and screen door. The lifts
appeared to be fabric impressions from gardening gloves. (168 RT 19554-56,
19559-60.)
254. Los Angeles Police Detective Lewis Bobbitt arrived at the Petersen
home at 4:00 a.m. on August 6, 1985. He recovered items at the scene, including
spent cartridges found in the bedroom. (165 RT 19227-34.) Detective Bobbitt
examined a window screen that appeared to have a bullet hole. (Id. at 19235.)
255. Mr. Petersen later found a hole in the bedroom wall below the
windowsill and above the ordinary position of his wife’s head while in bed. (
RT 19205.) On August 29, 1985, Los Angeles Police Detective David Weller
recovered a projectile from the hole in the bedroom wall observed by Mr.
Petersen. (Id. at 19245-147.)
iii)
Eyewitness identification
256. In a statement to police, Ms. Petersen said that the gunman had wellmanicured hands. They were cleaner and lighter than the rest of his appearance.
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In Ms. Petersen’s opinion, the gunman’s hands seemed more like those of an
artist than a construction worker. (165 RT 19213-15, 19221.) She initially
described the suspect as six feet tall, possibly taller, wearing dark tennis shoes,
new Levi’s or dark pants, a close-fitting T-shirt or turtleneck sweater. She said
he had a very lean face, hollow cheekbones, wild hair, and a diabolical grin. (Id.
at 19218-19.)
257. At trial, Virginia Petersen identified Petitioner as the intruder on
August 6, 1985. Previously, she had identified Petitioner at a live line-up held on
September 5, 1985. (165 RT 19189-91, 19201.) She also previously identified
Petitioner at the preliminary hearing. Ms. Petersen clearly saw Petitioner’s face
during the incident and recalled that his hands were very long and light-colored;
he could have been wearing gloves during the incident. (Id. at 19207, 19213.)
258. On cross-examination, Ms. Petersen said that she saw photographs
of Petitioner on television and in the newspaper. She first saw his photograph on
television on the night before his arrest. (165 RT 19215-16, 19221-22.)
o.
Abowath Incident (August 8, 1985)
Counts 39 through 43 (§§ 459, 187(a), 261(2), 288a(c),
286(c))
i)
The attack on Sakina Abowath
259. Sakina Abowath and Elyas Abowath lived with their two children, a
three-year old boy and a 10-week old boy at 21309 Pinehill Lane in Diamond
Bar, Los Angeles County. (168 RT 19424-26.)
260. At 2:20 a.m. on August 8, 1985, Ms. Abowath awakened and went
to feed her baby in another bedroom. She left a light on in the living room and a
night light in the bedroom. (168 RT 19425-27, 19436.) After feeding her baby,
Ms. Abowath went back to sleep in the master bedroom with her husband.
Shortly, she was awakened by a noise that sounded like a “pop.” Suddenly, she
was hit very hard on the head and forcibly turned over on her stomach. She was
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handcuffed and hit on the ears, and her hair was pulled. An intruder stood on the
bed; he kicked Ms. Abowath in the head very hard with his shoes. (Id. at 19429-
30.) He tied her feet with a piece of clothing and stuffed her mouth with clothing.
The man slapped her, threatened to kill her children, and ordered her to “swear
upon Satan” that she would not scream. (Id. at 19431-32.) The man put a
blindfold over her eyes while she was on the floor. Later, the man untied the
blindfold, took the gag out of her mouth, and demanded money and jewelry. Ms.
Abowath pointed to the closet where several briefcases were kept. (Id. at 19433-
37.)
261. Ms. Abowath indicated that there was jewelry in a briefcase. The
intruder opened the pocket of the briefcase and took out a bag of gold jewelry.
(168 RT 19438-39.) He hit Ms. Abowath again, telling her not to look at him.
After looking at jewelry in the bathroom under the light, the man came back to
her bedroom and demanded money. He retrieved Ms. Abowath’s purse and took
her money; he looked for her husband’s wallet in the kitchen. (Id. at 19442-43.)
Returning again to the bedroom, the intruder took a ring off her finger and a
small chain from her neck. He hit her when she stated that she did not have a
diamond wedding ring. He told her to “swear upon Satan” that she did not have a
wedding ring. (Id. at 19444-45.)
262. The intruder left the room but soon returned and tore off Ms.
Abowath’s pajamas. He dragged Ms. Abowath by her hair to the guest bedroom.
He pushed her on the bed, beat her again, and told her not to scream. Ms.
Abowath sat on the bed as the intruder pulled her mouth to his penis and forced
her to perform oral copulation. (168 RT 19445-48.) He forced her to engage in
sexual intercourse. Afterwards, he put a bedspread over her face. When Ms.
Abowath’s son began crying, the intruder took Ms. Abowath into her son’s room
where she laid down with her son who went back to sleep. (Id. at 19448-49.)
She was then taken into the guest bedroom, pushed down on the bed, and forced
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to have sexual intercourse again after the man tried unsuccessfully to put his
penis in her rectum. (Id. at 19450, 19452-54.) He left the room but returned
when her son started screaming. Ms. Abowath told her son to get into bed with
her. (Id. at 19451.)
263. The intruder tied her three-year old son by his hands and feet,
pushed him on her bed, and placed pillows on top of him. The boy complained
that he could not breathe. (168 RT 19452.) The man left the room but returned
saying that he had hit Ms. Abowath’s husband on the head. He was laughing.
(Id. at 19455.) He asked for scotch tape to put over Ms. Abowath’s son’s mouth.
Ms. Abowath told him she did not have any tape. He handcuffed her to the
doorknob and moved the bed and pillows from the living room against the door.
He threatened to return and kill her and the children if she called the police or
went outside. She heard a car drive off. (Id. at 19455-59.)
264. Ms. Abowath untied her son’s hands and feet and tried to open the
door. She saw melon seeds on the hallway floor and panicked because she
thought the melon was used to gag her husband. She told her son to go take out
whatever was in his father’s mouth, but he returned, saying he had found nothing
in his father’s mouth. His father did not wake up. (168 RT 19459-61.) Ms.
Abwoath started screaming and told her son to go to the neighbor for help. He
left the house and returned with a neighbor who quickly left. Another neighbor,
Charles (Bob) Wilson, came in and checked on Mr. Abowath, who did not
respond. (Id. at 19462-64.) A police officer arrived and freed Ms. Abowath from
the door by kicking off the doorknob. Eventually, the handcuff was cut off with
scissors. (Id. at 19465.)
265. Pomona Valley Hospital physician Kenneth Moore, M.D., treated
Sakina Abowath on August 8, 1985. He noted abrasive injuries to her wrist
consistent with being handcuffed, tender areas near her nose, and a small cut to
her upper lip. Ms. Abowath suffered bruising and swelling to the vagina and a
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small cut outside the vagina consistent, in Dr. Moore’s opinion, with sexual
assault. There was a superficial tear around Ms. Abowath’s anus consistent with
forced insertion of a penis into the rectum. (174 RT 20328-31.)
ii)
The death of Elyas Abowath
266. At 3:43 a.m. on August 8, 1985, the Abowaths’ neighbor Charles
(Bob) Wilson, was awakened by the ringing of his front doorbell. The neighbors’
son was at the door dressed in pajamas. He appeared frightened and asked
Wilson for ice cream. The son had a belt tightly wrapped around his arm. (
RT 19496-98.) Wilson and his wife went next door and found Sakina Abowath
handcuffed to a doorway, screaming. She asked for a robe. Wilson’s wife
returned home and called police. (Id. at 19498-502.) Charles Wilson checked on
Elyas Abowath. He tried to resuscitate Mr. Abowath but concluded that he was
dead. (Id. at 19503-04.)
267. Deputy Sheriff John Knight responded to the scene at 4:08 a.m. and
entered the residence with his partner, Deputy Kirk Smith. He found Ms.
Abowath handcuffed to a bedroom door. She was hysterical and asked him to
help her husband. Mr. Abowath appeared to be dead; he was not breathing and
had no pulse. There was a small amount of blood on the left side of his head.
(168 RT 19510-12.)
iii)
Cause of death
268. Dr. Joseph Cogan performed an autopsy on the body of Elyas
Abowath on August 9, 1985. In Dr. Cogan’s opinion, the cause of death was a
gunshot wound to the head. There was stippling around the entrance wound
above the left ear indicating that the weapon was fired at close range,
approximately one inch from Mr. Abowath’s head. (167 RT 19411-12.) A
copper-jacketed, small-caliber bullet was recovered during the autopsy. (Id. at
19413-14.)
iv)
Shoe print evidence and other physical evidence
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269. Sergeant Sheriff Patrick Robinson arrived at the Abowath home at
5:40 a.m. He observed that the bottom portion of a window screen next to the
sliding glass door had been bent and pulled away from the frame. The window
and the sliding door were open. The lock on the slider had pry marks and the
screen also was bent. (168 RT 19527-29.) There were shoe prints on the
linoleum floor in the kitchen. There was a melon on the kitchen counter; seeds
from the melon were scattered on the hallway carpet. Telephone wires in the
master bedroom had been cut. (Id. at 19529-32.) Elyas Abowath’s body was
found on the bed. Two briefcases and other boxes were on the floor of the master
bedroom; the room had been ransacked. A small-caliber expended bullet shell
was found on the right side of the mattress. (Id. at 19532-34.)
270. Deputy Sheriff Ralph Salazar photographed the Abowath residence
and collected evidence. He examined a shoe print on the linoleum floor and took
two lifts of the print. (168 RT 19538-42.)
v)
Eyewitness identification
271. Sakina Abowath attended a live line-up on September 5, 1985, at
which she identified Petitioner. At the preliminary hearing, she identified
Petitioner as the intruder and assailant. (168 RT 19465-68.) At trial, she
identified Petitioner as her assailant. (Id. at 19439.)
272. Ms. Abowath initially described her assailant as a light-skinned
Caucasian, 6’2” to 6’4”, with light to medium brown hair. (168 RT 19512-14.)
She reported that his teeth were stained and crooked. (Id. at 19518.) She recalled
that the intruder wore gloves while inside her house. (Id. at 19478.) She assisted
in preparing a composite drawing and told the police artist that, based on lighting
in her bathroom, she thought that the man’s hair was light brown. (Id. at 19481-
83.) She reported that the intruder wore jeans and hard shoes, not tennis shoes.
(Id. at 19487, 19490.)
vi)
Identification of recovered property
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273. On September 5, 1985, Sakina Abowath attended a property line-up.
She identified jewelry, including two gold chains, earrings, an engagement ring, a
necklace pendant, a television, and a VCR as property taken from her home by
the intruder on August 8, 1985. (168 RT 19468-70.)
p.
The Uncharged Incident
274. On May 9, 1985, Monrovia Police Officer Thomas Wright
responded to a call at 424 West Olive Street in Monrovia, Los Angeles County.
Officer Wright found that louvers were removed from the kitchen window; a
patio chair pushed against the wall. Officer Wright dusted for fingerprints and
lifted several prints and a shoe print from the kitchen sink and a fingerprint from
the kitchen awning. A shoe print on the patio that could not be lifted matched the
tread pattern of the shoe print found on the sink. (150 RT 17396-403.)
q.
The Live Line-up
275. A live line-up was conducted and videotaped at the Los Angeles
County Jail on September 5, 1985. Petitioner stood in position number two. He
was identified by Maria Hernandez, Carol Kyle, Sophie Dickman, Virginia
Petersen, Somkid Khovananth, and Sakina Abowath.
276. The videotape was admitted into evidence at trial and viewed by the
jury. (169 RT 19571-73, 19575-76.)
r.
Physical Evidence Linking Petitioner to the Crimes
277. Prosecution experts who testified at trial linked Petitioner to many of
the alleged crimes. Fingerprints found at the Vincow scene and at the uncharged
scene were identified as Petitioner’s fingerprints. Shoe prints found at eight
scenes were made by Avia shoes; in seven of those incidents, the shoe was
determined to be an Avia aerobics model, size 11 to 12. Petitioner was positively
identified by a victim in one of the incidents in which Avia shoe prints were
found. In one incident, shoe impressions found at the scene matched Stadia
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shoes, size 12, worn by Petitioner at the time of his arrest. Ballistics analysis
confirmed that many of the incidents were linked by use of a common weapon.
278. The following chart briefly summarizes the physical evidence the
prosecution introduced in an attempt to link Petitioner to the charged and
uncharged crimes.
Incident
1. Vincow
Evidence
Findings
Fingerprint
Matched Petitioner’s rolled
prints
2. Hernandez/Okazaki
.22-caliber revolver
Bullet fired from same
weapon in Yu and Kneiding
3. Yu
.22-caliber revolver
weapon in Okazaki and
Kneiding
Bullet fired from same
4. Zazzara
Shoe print
Avia, size 11-½ to
.22-caliber revolver
Bullet fired from same
weapon in Khovananth
Shoe print
Avia, size 11 to
.22-caliber semi-
Jennings .22-caliber semi-
automatic
automatic pistol
Shoe print
Avia
5. Doi
6. Bell/Lang
Gloves
Jennings Firearms were manufactured in Nevada and Southern
California.
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Incident
Evidence
Findings
7. Kyle
Gloves
8. Cannon
Shoe print
Avia, size 11 to 11-½
9. Bennett
Shoe print
Avia, size 11 to
Gloves
10. Nelson
Shoe print
Avia, size 11-½ to
Gloves
14. Petersen
.25-caliber automatic
Bullet fired from same
weapon in Abowath
Bullet fired from same
15. Abowath
Shoe print
Stadia, size
.25-caliber automatic
Bullet fired from same
weapon in Petersen
16. Uncharged
Fingerprint
Matched Petitioner’s rolled
prints
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Incident
Evidence
Shoe print
Findings
Avia
i.
Fingerprint evidence
279. the prosecution asserted that Petitioner’s rolled fingerprints matched
lifts taken from the Vincow home and in the uncharged case. The prosecution
also asserted that Petitioner’s fingerprints also matched fingerprints found inside
a 1976 Pontiac Grand Prix automobile, on the contents of a bag seized from the
Greyhound bus station, and on items found inside a backpack belonging to
Petitioner seized at the time of his arrest.
280. Deputy Sheriff Hannah Woods, an expert in fingerprint
identification, compared Petitioner’s rolled fingerprints with latent prints found
on the window screen at the Vincow residence. In Woods’s opinion, the latent
prints lifted at the Vincow residence matched Petitioner’s rolled fingerprints.
(175 RT 20489-90, 20493-97.) Woods also positively identified Petitioner’s
fingerprints on lifts from the scene of the uncharged case at 424 West Olive
Street, Monrovia. (Id. at 20499-501.) Woods further identified Petitioner’s
fingerprints on lifts taken from a coffee cup retrieved from the Pontiac Grand
Prix and from the vehicle’s rearview mirror. (Id. at 20502-03.) Woods identified
Petitioner’s fingerprints on items found inside the Greyhound bag and backpack.
(Id. at 20504-06.)
ii.
Shoe print evidence
281. Criminalist Gerald Burke examined the shoe print evidence from
eight crime scenes: Zazzara, Doi, Bell and Lang, Cannon, Bennett, Nelson,
Khovananth, and the uncharged incident. Burke concluded that some of the
impressions found at the scenes were made by Avia’s aerobic or basketball shoes,
ranging in sizes 11 to 12. In Burke’s opinion, a size 12 Stadia shoe seized from
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Petitioner following his arrest matched a shoe print pattern found at the Abowath
scene. (See infra.)
282. Avia Footwear data processing manager Jeff Brewer testified about
sales of the Avia Model 445B. The men’s Avia aerobics model 445B was no
longer being produced. The average life of a particular shoe model was typically
eighteen months. Of the total production run of Model 445B, 5.1% were made in
size 11-½. (174 RT 20279-80.) In Southern California, from January through
July 1985, twenty-four pairs of Avia model 445B, black in color, were sold.
Only one pair of size 11-½ was sold. (Id. at 20280-81.) In the San Francisco Bay
Area, forty-one pairs of model 445B shoes were sold from January through July
1985. Only two of the pairs sold were size 11-½. (Id. at 20281-82.) In all, three
pairs of size 11-½ men’s model 445B were sold in the San Francisco Bay Area
and Southern California. (Id. at 20283.) In Northern California and Nevada, a
total of ninety-four pairs of size 11-½ shoes were sold. Nationally, there were
1,225 pairs of model 445B, size 11-½ shoes sold during that period of time. All
the shoes had the same width. (Id. at 20283-85.)
283. The total number of Avia aerobics shoes sold from January through
the end of July 1985 was 33,447. A large percentage, 72.7%, went to
undesignated areas of the country. The sizes that were shipped in the largest
volume were sizes 9-½ and 10. No records were kept on shoes that could be
“pirated.” Avia did not sell new soles for its own shoes. (174 RT 20286-89.)
Avia shoes were manufactured overseas. Avia did not license the sole pattern to
other companies. Sales records were adjusted for returns; the men’s model 455B
was adjusted for returns. (Id. at 20289-95.)
284. The total number of men’s white aerobics shoes, model 445 sold
from January through July 1985 was 31,110; 580 pairs were sold in Southern
California, 38 pairs in the Bay Area, 6,192 pairs in Northern California and
Nevada. There were approximately 24,300 pairs sold to national distributors.
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The shoe, in both black and white, first came on the market in mid-February
1985. (174 RT 20296-99.)
285. Jerry Stubblefield, formerly vice president of research and
development for Avia Footwear, testified that he designed the Avia sole which
had two patented features: a cantilever outsole based on a concave shape, to
deflect and absorb shock, and pivotal flex joints to allow the foot to bend and
pivot at the same time. (174 RT 20301-03.) The coach and basketball models in
both white and black used the same sole. The coach model came in black; the
basketball model in white. Avia did not make black basketball shoes or high-top
shoes. In 1985, Avia made a white high-top basketball model. (Id. at 20303-04.)
The white aerobics shoe, model 445 came on the market in November 1984.
There was no structural difference between the sole of the white and black
models. There were twenty-four molds manufactured in Taiwan for the run; only
one mold was used for size 11-½. (Id. at 20308-09.)
286. Although the same patents applied to the aerobics and coach models
shoes, there were a few differences between them. The pattern in the heel of the
coach model did not go to the back of the heel, and the length of the groove also
was wider down the center of the sole. There was a slight difference between the
pivotal flex joints, and the chevrons did not meet the flex joint. (174 RT 20304-
05, 20319.) Avia won a patent infringement lawsuit against LA Gear sometime
after mid-1985. The infringement was based on the back part of the Avia shoe
sole combined with another company’s sole and a different tread pattern. There
was no infringement on the pivotal portion of the sole. (Id. at 20306-07.)
287. The Stadia shoes were manufactured by Kinney Corporation. Many
shoe companies skipped half-sizes above size 11 because there was little
difference, only about one-sixth of an inch in the actual length, and one-twelfth of
an inch in width. Stadia shoes did not come in size 11-½. (174 RT 20310-13.)
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The Stadia shoes were less expensive than the Avia aerobics shoe, which cost
about 45 dollars. (Id. at 20322.)
288. Stubblefield testified that, of the shoe prints provided by the Sheriff
Department that he examined, at least one or two prints were made by the Avia
aerobics shoe, based on the distinctive heel pattern. He further testified that all of
the partial shoe prints that he examined were made by Avia Shoes, either the
aerobics or basketball model. (174 RT 20317-18.) Avia provided outsole
replacement jogging shoes. (Id. at 20316.) Avia manufactured sole replacements
for jogging shoes that were different from the aerobics shoe. Stubblefield was
uncertain whether Avia also produced outsoles for the aerobics model. (Id. at
20321, 20324.)
289. Criminalist Burke had no previous experience in the comparison of
shoe print evidence. In June 1985, Burke identified an Avia shoe sole after
examining ninety-seven different brands of shoes. (174 RT 20373-76.) Around
July 1, 1985, Sergeant Salerno brought a pair of Avia shoes to Burke’s lab.
Shortly thereafter, Burke went to Avia Footwear in Oregon where he met with
Stubblefield to compare the Avia aerobics model shoe to basketball and coach
models. (Id. at 20377-79.) He observed noticeable differences between the
structure of the two types of soles; the aerobics outsole was different than the
Avia basketball or coach model. Burke made inked impressions of the outsoles
and prepared overlays to compare shoe print patterns found at various scenes.
(Id. at 20382-84.) He spent two and one-half months evaluating the shoe print
evidence in this case. (175 RT 20430.)
a)
Zazzara Incident
290. Burke examined plaster casts from shoe print impressions found in
the flowerbed and on a bucket lid at the Zazzara home. He compared the sole
patterns of the impressions to the Avia aerobics shoe using overlays. The pattern
of the casts fit the Avia aerobics model, size 11-½ to 12. A partial pattern of one
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of the impressions was consistent with the Avia chevron pattern. (174 RT 20386-
89.) The size 11-½ aerobics model had a unique sole pattern of ten chevrons and
a narrow ridge in the heel. The line around the chevrons had a more gentle slope
than other Avia models. The ridge pattern on the coach or basketball model
which had the same sole and only nine chevrons was wider than the aerobics
model. (Id. at 20392-95.)
b)
Doi Incident
291. Burke compared plaster casts from shoe prints at the Doi scene with
Avia overlays and found the impressions were made by an Avia aerobics or
basketball shoe, size 11 to 12. He was unable to determine the exact model. (
RT 20389-91.) A right shoe print found outside the bathroom window was an
Avia shoe. Based on Burke’s research, in his opinion no other model or brand of
shoe had the same sole pattern as the Avia shoe. (Id. at 20396, 20398-99.)
c)
Bell and Lang Incident
292. The concentric circle pattern on an electric clock was consistent with
the unique circle pattern found on the sole of an Avia shoe. Burke was unable to
determine the model or size. (174 RT 20400-01.) In his early analysis, Burke
found dissimilarities in the sole patterns of shoe impressions found at the Zazzara
and Bell and Lang scenes but later changed his mind after obtaining flat outsoles
from Avia. (175 RT 20467-71, 20476-79.)
d)
Cannon Incident
293. Burke examined a partial shoe print found on a piece of tissue paper
found in the northeast bedroom and an outline of a shoe print found on carpeting
in the southeast bedroom. The partial print on the tissue was consistent with an
Avia aerobics left shoe; but the size could not be determined. The shoe print on
the carpet was similar to an Avia aerobics shoe, size 11 or 11-½. Both prints
shared similar characteristics, including the chevron pattern. (175 RT 20405-09.)
e)
Bennett Incident
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294. Burke examined a pink comforter and photographs of two partial
shoe prints on the comforter. In Burke’s opinion, the more complete shoe print
was an Avia aerobics shoe, size 11 to 12. (175 RT 20410-12, 20448.)
f)
Nelson Incident
295. Burke examined lifts of shoe prints from the back porch and
compared them to the Avia overlays. In Burke’s opinion, one of the shoe prints
was made by an Avia aerobics shoe size 11-½ to 12. The remaining shoe print
lifts did not show enough detail to determine the shoe’s model, but, in Burke’s
opinion, they were made by an Avia shoe. (175 RT 20412-14.)
g)
Khovananth Incident
296. Burke examined shoe print lifts from the front porch, back step near
the sliding glass door, and hallway. In his opinion, the impression found on the
front porch was made by an Avia aerobics shoe, size 11-½ to 12. The back step
and hallway patterns were consistent with an Avia shoe. (175 RT 20415-20.)
h)
Uncharged Incident
297. Burke examined a shoe print lift that appeared to have been made by
an Avia shoe. He was unable to determine the model or size. (174 RT 20397-
98.) Burke testified that in measuring shoe print impressions, slippage of the foot
and the type of surface must be considered. As a result of these variables, it was
not possible to make precise measurements of all prints. (175 RT 20421-23,
20435.)
i)
Abowath Incident
298. In Burke’s opinion, a shoe print lifted from the dining room floor
was made by a Stadia shoe, but Burke could not determine whether it was made
by a left or right shoe. Burke examined Petitioner’s Stadia shoes, size 12, and
found they matched the dot matrix pattern of the lifted impression. (
RT 20423-27.)
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299. On cross-examination, Burke conceded that the size of shoe prints
involved ranged from size 11 to 12. (175 RT 20435-36.) Burke’s measurements
of a shoe outsole were made by placing the sole against a wall and estimating the
distance from one end to the other. (Id. at 20438-42, 20450-53.) In some
instances, his measurements were affected by the nature of the surface on which
the measurement was made, for example, plaster casts in the Zazzara and Doi
incidents. (Id. at 20454-60.) In the Bell and Lang and Cannon incidents, there
were insufficient impressions to obtain accurate measurements. (Id. at 20460-
61.) In the Bennett incident, the shoe size was estimated by counting the number
of chevrons in the sole pattern. (Id. at 20462-63.) In the Nelson and Khovananth
incidents, Burke made measurements of lifts taken from the scenes, then
compared the sole patterns of the lifts to overlays. (Id. at 20464-65.) The
concentric sole pattern was not found on any other shoes that he examined. (Id.
at 20436-37.)
iii.
Ballistics and firearms evidence
300. In the eight incidents in which a firearm was used, four different
firearms were identified: (1) one .22-caliber firearm fired all the bullets
recovered in the Okazaki, Yu, and Kneiding incidents; (2) another .22-caliber
firearm fired bullets recovered in both the Zazzara and Khovananth incidents; (3)
a Jennings .22-caliber, long-rifle, semi-automatic pistol was used in the Doi
incident; and (4) a single .25-caliber firearm fired bullets in both the Abowath
and Petersen incidents.
301. Deputy Sheriff Edward Robinson worked in the firearm
identification section; he first became involved in the case in April 1986. (
RT 20008-12.) Deputy Robinson testified that firearm identification required the
use of a comparison microscope to manipulate bullets from different angles. All
of the bullets and bullet fragments in this case were photographed through the
comparison microscope by a camera attached above the eyepiece in order to
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demonstrate identifiable marks. Each photograph was numbered; notes were
made of the findings. (Id. at 20016-18.) In Robinson’s opinion, a positive
identification meant that a bullet was fired from a firearm “to the exclusion of all
other firearms.” Microscopes in his laboratory were calibrated twice yearly. (Id.
at 20082, 20085.)
a)
Okazaki, Yu, and Kneiding Incidents
302. Based on his examination of projectiles recovered at the three
scenes, in Robinson’s opinion the bullets were all fired from the same .22-caliber
firearm. Projectiles in the Okazaki incident (Prosecution’s Trial Ex. 5-A), the
Kneiding incident (Prosecution’s Trial Ex. 30-E), and the Yu incident
(Prosecution’s Trial Ex. 6-1) had identical characteristics: six lands and grooves
with a right-hand twist, the most common characteristics of .22-caliber firearms.
Robinson was unable to determine the manufacturer and exact type of firearm
that fired the recovered bullets. (172 RT 20034-46.)
b)
Zazzara and Khovananth Incidents
303. In Robinson’s opinion, projectiles fired in both incidents
(Prosecution’s Trial Exs. 9-G and 32-F, respectively) were fired from the same
.22-caliber firearm. (172 RT 20047-49.) The firearm was different from the .22-
caliber firearm used in the Okazaki, Yu and Kneiding incidents. (Id. at 20051-
52.)
c)
Doi Incident
304. A Jennings semi-automatic pistol (Prosecution’s Trial Ex. 46) fires
.22-caliber, long-rifle ammunition. Long-rifle ammunition refers to the size of
projectile and can be fired from a handgun. (172 RT 20057-58.) Robinson
compared test fires from the Jennings pistol (Prosecution’s Trial Ex. 46) to a
bullet fragment recovered from William Doi (Prosecution’s Trial Ex. 11-B).
Robinson concluded that the bullet was fired from the Jennings pistol. In
Robinson’s opinion, a cartridge casing found on the hallway floor of the Doi
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residence (Prosecution’s Trial Ex. 11-B) was fired from the same pistol as well.
(Id. at 20060-65.)
305. Robinson determined that the Jennings firearm used in the Doi
incident was not used in either the Okazaki, Yu and Kneiding incidents or in the
Zazzara and Khovananth incidents. (172 RT 20065-66, 20078.)
d)
Petersen and Abowath Incidents
306. Robinson compared the bullet recovered from Elyas Abowath and a
cartridge casing found at the scene (Prosecution’s Trial Ex. 40-G) with expended
.25-caliber cartridge casings and a slug or deformed bullet in the Petersen
incident (Prosecution’s Trial Exs. 38-B and 38-C). In Robinson’s opinion, the
cartridge casings and bullets in both cases were fired from the same .25-caliber
firearm. A .25-caliber weapon was not recovered. (172 RT 20066-70.)
307. Robinson compared .25-caliber ammunition recovered from the
Greyhound bag (Prosecution’s Trial Ex. 52-L) with .25-caliber long-rifle
cartridge casings in the Abowath and Petersen incidents. In his opinion, the tool
marks on the expended .25-caliber cartridge casings in those incidents were the
same as the tool marks on the .25-caliber live ammunition from the Greyhound
bag. (172 RT 20071-76.)
iv.
Recovery of .22-caliber Jennings pistol
308. Jesse Perez testified that he met Petitioner through Petitioner’s
brother, Julio Ramirez, who lived near Florence Avenue and Central Avenue in
Los Angeles. (170 RT 19653-54.) Perez often saw Petitioner at the Greyhound
bus station in downtown Los Angeles where Perez frequently worked as an
unlicensed taxi driver. He once drove Petitioner to Tijuana. (Id. at 19654-55.)
He also drove Petitioner around Los Angeles. On one occasion, Perez drove
Petitioner to a barbershop at Alvarado and Third Streets where Perez saw Felipe
Solano. (Id. at 19655-56; see infra.) At times, Petitioner called himself Richard
Moreno. He also had a nickname “Greñas” which referred to his long, uncombed
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hair. (Id. at 19711-12.) Petitioner told Perez that he liked to go to yellow houses
because “orientals live in yellow houses,” and that he liked to burglarize their
houses for jewelry since the victims would not retaliate. (Id. at 19712-14.)
309. Perez denied that he had committed any crimes with Petitioner. He
testified that his daughter was a Deputy Marshal. (170 RT 19657.) In August
1985, he met with Los Angeles sheriff deputies at his daughter’s insistence. The
meeting occurred after Perez saw a description of the Night Stalker in the
newspaper; he told his daughter that Petitioner fit the description of the suspect.
(Id. at 19657-61.)
310. Perez testified that he obtained the .22-caliber, long-rifle semi-
automatic pistol and ammunition clip (Prosecution’s Trial Ex. 46) from
Petitioner. He gave the weapon to his girlfriend, Esperanza Contreras, in Tijuana.
(170 RT 19661-63.) Perez was granted immunity from prosecution for being an
ex-felon in possession of a firearm. He was sixty-five years old and had lived in
Los Angeles since 1969. (Id. at 19651, 19670-71, 19709.) He previously had
been convicted of manslaughter following a barroom fight and had served a
prison sentence. Forty years earlier he had been sentenced to prison on a
burglary conviction. (Id. at 19652, 19709.)
311. Perez accompanied Sheriff Detective Aguilar to Tijuana to retrieve
the Jennings pistol from Contreras on August 31, 1985, the day Petitioner was
arrested. Contreras turned the weapon over to Detective Aguilar. (
RT 19666-69, 19676.)
312. On cross-examination, Perez did not recall that he had previously
testified at the preliminary hearing about asking Petitioner to sell him a handgun
six to nine months before Petitioner’s arrest. (170 RT 19679-81.) Perez once
saw a black .25- or .32-caliber automatic firearm in a car that Petitioner drove.
(Id. at 19664-65.) Perez worked odd jobs, doing residential construction work
for individuals in west Los Angeles. He never discussed with Petitioner the
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locations of his jobs or what was inside the homes where he worked. He also
drove people to Tijuana off and on during 1985 in several cars, including a white
Dodge station wagon. (Id. at 19685-92.) Petitioner bought Perez lunch in
exchange for driving him a few times, once to a pool hall to get money and, on
another occasion, to Felipe Solano’s home. (Id. at 19698-700.) Perez denied that
he ever drove Felipe Solano to Tijuana. (Id. at 19693.)
313. Esperanza Contreras testified that she had been living in Tijuana,
Mexico for fifteen years and that she knew Jesse Perez. She first saw the
handgun (Prosecution’s Trial Ex. 46) three years prior to trial. Perez brought it to
her because she needed a gun for protection. (170 RT 19723-24.) She kept it in a
cabinet; it did not have any bullets. She had the gun for about a month and then
gave it to a police officer. She was granted immunity from prosecution at the
preliminary hearing. (Id. at 19725-26.) She did not know Petitioner. (Id. at
19727.)
314. Sheriff investigator Wayne Griggs met Jesse Perez on August 30,
1985 at the sheriff homicide bureau in downtown Los Angeles. He made
arrangements to accompany Perez and Sergeant Aguilar by helicopter to San
Diego the next morning. They then traveled to Tijuana. Perez left Griggs and
Aguilar at a restaurant. He returned an hour later with Esperanza Contreras who
surrendered a .22-caliber Jennings semi-automatic pistol. At the Customs office
at the border, Griggs found that the weapon was loaded with a clip containing
five .22-caliber rounds. (170 RT 19666-69, 176 RT 20576-79.)
v.
Recovery of stolen property
315. After Petitioner’s arrest, property was recovered that had been taken
from the following victims: Doi, Bell, Lang, Kyle, Cannon, Diclanan, Kneiding,
Khovananth, and Abowath. Donna Myers, who lived in the San Francisco Bay
area and was acquainted with Petitioner, testified that Petitioner gave her some
jewelry in 1985. Felipe Solano, a known Los Angeles “fence,” also testified that
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he bought many items from Petitioner, including jewelry. Property belonging to
the victims was also recovered from Petitioner’s family in El Paso.
a)
Donna Myers
316. Donna Myers lived in San Pablo in the East Bay area. In 1979, she
met Armando Rodriguez. (169 RT 19579-80.) That same year, she went to visit
Rodriguez’s relatives in El Paso, Texas; there she met Petitioner. Between
and 1981, Petitioner stayed a few times at her home in Richmond, California,
which she shared with Rodriguez. Later, after she had moved to live alone in San
Pablo, Petitioner and Rodriguez frequently came to visit her. (Id. at 19581-82.)
317. On August 16, 1985, Petitioner came alone to her house. He
brought a jewelry box containing jewelry and asked Myers to hold it for him. A
few days later, Petitioner returned to Myers’s home to pick up his things.
Petitioner gave her the jewelry box, a bracelet, and three rings. She described the
box as glass, 6- 8” wide, with a lid. Petitioner took the rest of the jewelry with
him when he left. Myers described the jewelry as “14 carat gold, good jewelry.”
(169 RT 19583-86.) Myers kept the jewelry box and gave the bracelet to her
daughter, Deleen Gregg, and a ring to her granddaughter. She gave a man’s ring
to her son, Floyd Joseph Dvorak, Jr., and kept one ring for herself. (Id. at 19586-
88.)
318. On August 30, 1985, Myers was contacted by San Francisco Police
Officers Frank Falzon and Carl Klotz. They asked her about the bracelet that she
had given to her daughter. She explained how she got the jewelry and turned
over the jewelry box and ring to police. Myers indicated that she knew Petitioner
as “Rick.” In an effort to obtain his last name, she gave police a telephone
number for Armando Rodriguez. (169 RT 19589-91.)
319. In 1985, Myers saw Petitioner dressed in dark pants, shirt, and
shoes. Petitioner told her he wore dark clothing so that he would not be seen at
night. He also told her that he was “ripping people off.” She saw Petitioner
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wearing brown cloth garden gloves on several occasions. (169 RT 19592-93.)
Several times, Petitioner brought costume jewelry to her home. Myers watched
Petitioner box up jewelry; he told her he was going to send it to his sister, Rosie.
In mid-1985, Petitioner gave her 500 dollars to hold for him. He told her that if
anything happened to him, she should mail the money to Rosie. He wrote her
telephone number on an envelope. Shortly thereafter, Petitioner picked up the
money. Myers gave the envelope to police on August 30, 1985. (Id. at 19593-
95.) On one occasion, Petitioner gave Myers 75 dollars, and he later told her to
wire the money to Los Angeles in the name of Rick Mena. (Id. at 19599-600.)
Myers testified that Petitioner had an ink drawing of a pentagram on his left arm,
but it was not a tattoo. Petitioner told Myers that Satan was his “supreme being.”
(Id. at 19596.) Once, she saw Petitioner examine a large police revolver that he
was going to buy from Rodriguez, but eventually he did not buy the gun. She
never saw Petitioner carry a gun. Petitioner told her he was fencing jewelry in
Los Angeles. In 1985, Petitioner claimed to have a master key for Datsun and
Toyota vehicles. (Id. at 19596-98.)
320. In 1985, Myers also saw Petitioner in possession of foreign coins
and coin purses. (169 RT 19601.) On one occasion, Petitioner asked if she was
afraid of him; he told Myers he could kill her and that no one would know. In
late August 1985, they watched television and saw a composite drawing of “the
Night Stalker.” Myers told Petitioner that he fit the description, but “he didn’t
have enough guts to kill anybody.” (Id. at 19602.) She testified that Petitioner’s
teeth were discolored, chipped, and decayed. (Id. at 19598.) Petitioner used a
weight gain supplement to put on weight. In August 1985, Petitioner told Myers
that he left Los Angeles to get away for a while. (Id. at 19603.) Petitioner was
peaceful around Myers and her family. (Id. at 19605-07.)
321. Earl Gregg, Myers’s son-in-law, also lived in San Pablo. He
testified that he had known Petitioner for ten years; he met him through Armando
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Rodriguez. (169 RT 19618-20.) Around Easter 1985, Gregg saw Petitioner at
Myers’s house. Petitioner asked Gregg if he wanted to buy a gun. Petitioner
showed him two guns: a .25-caliber automatic and a small-caliber, black revolver
that resembled the Jennings handgun (Prosecution’s Trial Ex. 46). Petitioner said
he had some rifles, but Gregg never saw them. (160 RT 19620-23.) Petitioner
pulled the handguns out of a brown, zippered gym bag. (Id. at 19623, 19625-26.)
Gregg never saw Petitioner with a backpack. (Id. at 19628.)
b)
Felipe Solano
322. Felipe Solano first testified at the preliminary hearing and, at trial,
was granted immunity from prosecution for receiving stolen property. (
RT 20112-14.) In 1984 and 1985, Solano lived at 842 Laveta Terrace, Echo Park
in Los Angeles County. (Id. at 20115.) He first met Petitioner in late November
or early December 1984 at the Greyhound bus station on Sixth Street in Los
Angeles. After meeting Solano, Petitioner offered to sell Solano a small car.
About five days later, Petitioner called about the car and then drove to Solano’s
house in a maroon or dark brown Toyota station wagon. Petitioner offered to sell
the vehicle to Solano but did not have the pink slip. (Id. at 20116-19.)
323. A week later, Petitioner returned to Solano’s home with a television
that he sold to Solano for approximately 200 dollars. Petitioner told Solano that
his name was Ricardo Moreno; he also told Solano that his name was David.
(172 RT 20119-20.) Several weeks later, Petitioner brought Solano some
jewelry, including three rings. Solano did not buy anything. Petitioner gave him
some colored chains and bracelets and indicated they were costume jewelry. (Id.
at 20120-22.) Petitioner again offered to sell jewelry to Solano in 1985. Solano
bought a piece of gold jewelry, marked “14 K” or “18 K.” Altogether, Solano
bought jewelry from Petitioner eight to ten times; he also bought a television,
VCR, and radio. (Id. at 20123-25.) Petitioner gave Solano some pieces of
costume jewelry that Solano gave to his wife; he saved the gold jewelry. Solano
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denied that he sold any of the jewelry obtained from Petitioner to others. He did
sell the television and radio to Jorge Castro who lived in a hotel near Alvarado
Street between Fifth and Sixth Streets. (Id. at 20126-27.) After police contacted
him, Solano reclaimed the television and radio from Castro and gave Castro back
his money. (Id. at 20127-28.)
324. Solano knew about the price of gold jewelry by window shopping at
jewelry stores. The prices he paid to Petitioner for jewelry were “ridiculous” and
“cheap.” (172 RT 20128-29.) Solano also bought clothes from four to five
people who hung around a pool hall on Alvarado Street. He believed the clothing
and jewelry were stolen because of the inexpensive prices that he paid for them.
(Id. at 20130-31.) Solano last bought jewelry from Petitioner in August 1985.
On occasion, Solano gave Petitioner money even though he did not buy anything
from him. Twice, he wired money to Petitioner in San Francisco in the name of
Ricardo Moreno. (Id. at 20132-33.)
325. Solano testified that Petitioner usually wore dark clothes. Many
times, Petitioner wore a baseball cap with lettering similar to the cap with AC/DC
written on it. (Prosecution’s Trial Ex. 3-E.) Solano saw a star and circle drawing
on Petitioner’s left forearm and his palm. (172 RT 20133-35.)
326. Solano first saw Petitioner’s photograph on television on August 30,
1985, the night before his arrest. Solano had last seen Petitioner two days earlier
when Petitioner asked him for money. Petitioner was wearing a light, short-
sleeved shirt and was driving a motorcycle. Petitioner had an object shaped like a
gun tucked under his shirt. Petitioner indicated he needed money “because he
was very hot and he had to leave the city.” (172 RT 20135-36; 173 RT 20236.)
Afterward, Solano moved his wife and children out of their house. He was afraid
because he had seen a picture on television of a station wagon similar to the one
driven by Petitioner. He gave some of the jewelry obtained from Petitioner to his
son; he took other pieces to a factory where he worked. (172 RT 20137-39.) The
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night before Petitioner was arrested, he called Solano at approximately 11:
p.m. and asked him for 1,000 dollars. Solano told Petitioner he did not have any
money. Petitioner said to him, “In the morning I’m going for it.” (Id. at 20136-
37.)
327. Police came to Solano’s home on the day after Petitioner’s arrest and
asked him if he knew Petitioner. He admitted that he did. Solano’s house was
searched by police and property was impounded. (172 RT 20140-41.)
328. Solano identified photographs of a Pontiac Grand Prix as a vehicle
that Petitioner drove on two to three occasions. (Prosecution’s Trial Exs. 48 and
48-A; 172 RT 20145-46.) Solano once saw a woman in the car with Petitioner,
but he did not see her face. On some occasions, Petitioner arrived at Solano’s
house on foot. (173 RT 20196-97.)
329. On cross-examination, Solano admitted that in his first police
interview he did not tell officers about property that he had moved from his house
to other locations. (173 RT 20152.) He also did not disclose to police that he
kept jewelry in his van. After a police search of his van failed to yield any
jewelry, Solano turned over more jewelry to police, including a wedding ring set.
(Id. at 20205-07.) The day after Petitioner’s arrest, Solano spoke to a woman at a
pool hall about buying gold and silver chains. (Id. at 20188-91.) He saw the
woman again the next night at his home. He was angry that the woman came to
his home; he did not buy anything from her. (Id. at 20191-93.)
330. Solano admitted that Eva Castillo24 worked at his home before he
met Petitioner. On at least one occasion, Solano saw Castillo with Petitioner at
the House of Billiards on Alvarado Street. Solano denied that Castillo ever sold
him jewelry. (173 RT 20200-05.)
Eva Castillo is an alias for Rosa Solis. See infra.
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331. Solano also testified that during a police interview he said he
received a revolver from Petitioner, but he did not know the caliber. Solano kept
the gun in his car for safety reasons. He did not remember whether or not the gun
had ammunition. (173 RT 20213-15.) On one occasion, Solano saw Petitioner
clean his hands with a red-stained pillowcase. (Id. at 20231.)
332. Petitioner frequently asked Solano for money, usually 15 to
dollars. When Solano loaned him money, Petitioner did not pay him back. In
total, Solano paid Petitioner approximately 2,000 to 2,500 dollars for the property
he bought. (173 RT 20215-17.) After Petitioner’s arrest, Solano gave him some
money in jail. (Id. at 20220-21.)
333. On August 30 and 31, 1985, Sheriff Detective Frank Durazo
attempted to develop probable cause to search Solano’s home after learning that
Solano had bought stolen property from Petitioner. Sandra Hotchkiss, a police
informer and drug user, participated in the scheme. She was unsuccessful in
selling property to Solano, both at the pool hall on Alvarado Street and at
Solano’s home. (173 RT 20238-46.)
334. On the night of August 31, 1985, after Hotchkiss’s failed efforts to
sell jewelry to Solano, Detective Durazo and Deputy Layton went to Solano’s
house and spoke with him about Petitioner. Solano said that he had bought
property from “Richard.” Solano mentioned having seen a composite drawing on
television. On September 1, 1985, Solano consented to a search of his residence.
(173 RT 20246-47.) Sergeant John Yarbrough acted as custodian for property
recovered from the house and identified by Solano as having been sold to him by
Petitioner. (Id. at 20249-51.) Yarbrough observed a .38-caliber blue steel
revolver inside a Chevrolet parked in the driveway of the house. (176 RT 20557-
58.) Solano told police the weapon belonged to Petitioner. (Id. at 20531-32.)
335. On September 1, 1985, the day of the search, Sergeant Carlos Avila
also interviewed Solano in Spanish at the homicide bureau. The conversation
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was tape-recorded. (176 RT 20523-24.) Solano admitted buying property from
Petitioner. On September 2, 1985, Sergeant Avila and Detective Durazo met
Solano to recover more property. Solano’s nephew, Alejandro Solano, took them
to a table factory on East 23rd Street in Los Angeles where he retrieved numerous
items. (Id. at 20524-26.) Later that day, Felipe Solano took the officers to his
son’s home at 3000 Greenleaf Avenue in West Covina. There, Felipe Solano, Jr.,
turned over three cloth rolls containing jewelry. (Id. at 20526-27.)
336. On September 3, 1985, Sergeant Avila received a call from Solano
about still more property at another table factory. Solano turned over two
cameras, a ring set, and some other items; he explained that he had forgotten
about this additional property. (176 RT 20527-28.) Later in September 1985,
Solano turned over a television set, radio, and six to seven empty jewelry boxes.
(Id. at 20529-30.) Solano told police that all the property that he had turned over
to the police originally came from Petitioner. (Id. at 20534.)
c)
Petitioner’s family in Texas
337. On August 30, 1985, Sheriff Sergeant Robert Perry made
arrangements to travel to El Paso, Texas, to investigate Petitioner’s background
and to retrieve stolen property from his family. (176 RT 20537-38.) On that
same date, Sergeant Yarbrough interviewed Donna Myers from whom he
obtained a telephone number in Texas for Petitioner’s sister, Rosa Ramirez.
Sergeant Yarbrough gave the number to Sergeant Perry. (Id. at 20561.) Shortly
before Perry left for El Paso, Petitioner was arrested. On September 2, 1985,
Perry contacted the El Paso Police from whom he obtained a street address for
Rosa Ramirez. (Id. at 20540-41.)
338. Sergeant Perry testified that, on September 3, 1985, he obtained two
warrants through the El Paso courts to search the houses of Petitioner’s sister and
parents. Before the warrants were executed, Petitioner’s parents, his sister Rosa,
and brother Julian, Jr., voluntarily met with Sergeant Perry at El Paso Police
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Department. They consented to having their homes searched. (176 RT 20547-
49.) While at the police station, Rosa turned over earrings and a bracelet. During
a search of her home, she turned over a wooden box containing costume jewelry
that had been given to her by Petitioner. The parents’ home was not searched.
(Id. at 20549-51, 20554.)
d)
Property line-up
339. A property line-up was held at the Los Angeles County Jail on
September 5, 1985. (176 RT 20601-02.) Property seized and obtained from
Solano and from Petitioner’s relatives was viewed by witnesses, relatives, and
victims. Identified property was photographed. A chart listing the identified
property was admitted into evidence at trial (Prosecution’s Trial Ex. 56). (
RT 20565-67.) Fewer than one-quarter of the approximately 1,500 items
displayed at the line-up were identified by witnesses and victims. (Id. at 20570-
71.)
s.
Petitioner’s Arrest
340. Between 8:00 a.m. and 9:00 a.m. on August 31, 1985, Manuela
Villanueva and Carmelo Robles drove to a store on South Indiana Street in Los
Angeles. While Robles got out to buy food, Villanueva sat in the car. A man ran
up to her car and asked for the car key. (170 RT 19746-50.) He tried to open the
car door. At trial, Villanueva identified Petitioner as the man who approached
her car. (Id. at 19748-49.) When she first saw Petitioner, he took sunglasses out
of his pocket and then put them back. Villanueva thought he had a gun. (Id. at
19756.) Petitioner spoke to her in Spanish. He said he wanted her car because
his mother had died. (Id. at 19759-60.) Villaneuva was scared and wanted to get
out of the car. She began to scream for help in Spanish. (Id. at 19749-51.)
Several men came out of a nearby barbershop, including Frank Moreno. Robles
came out of the store. He and Moreno chased the man into an alley. (Id. at
19752-54.)
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341. Frank Moreno was in a barbershop at South Indiana and Whittier
Streets when he heard a woman scream for help in Spanish. He went outside and
tried to move a man away from her. (170 RT 19762-64.) At trial, Moreno
identified Petitioner as the man whom he saw near Villaneuva on August 31,
1985. (Id. at 19765.) When Moreno approached, Petitioner ran away. Moreno
and Robles chased Petitioner into the alley on Alma Street. Petitioner jumped
over a fence and went through a yard. Moreno ran a few blocks to East Hubbard
Street where he found Petitioner on the ground in a daze, bleeding from the back
of his head. Shortly thereafter, the police arrived and arrested Petitioner. (Id. at
19765-67, 19771.)
342. Between 7:00 a.m. and 8:00 a.m. on August 31, 1985, Fastino Pinon
was at home on East Hubbard Street. He was warming up a car in his backyard
when a man jumped over the fence and got into the car. Pinon told the man to get
out. The car moved back five feet and hit a chimney. (170 RT 19775-77.) The
man spoke in Spanish and told Pinon that he had a gun. The car went forward
and stopped; then the car door flew open. ( Id. at 19778-79.)
343. Pinon grabbed the car keys. The man jumped a gate and went into
the street toward another car parked across the street from Pinon’s house. Pinon
saw his neighbor hold the man; someone else hit the man over the head with a
steel bar. (170 RT 19778-80, 19789.) At trial, Pinon identified Petitioner as the
man whom he saw in his yard on August 31, 1985. (Id. at 19776-77.)
344. Between 7:00 a.m. and 8:00 a.m. on August 31, 1985, Angelina
Delatorre was seated in her car at 3754 East Hubbard Street. A man ran up and
told her in Spanish to give him the car keys. She held onto the steering wheel as
he pulled her and tried to get the keys. The man pulled Delatorre out of the car;
she threw him the keys. She screamed and a neighbor, Jose Burjoin, told the man
to leave her alone. Delatorre’s husband came over, hit the man with a steel bar,
and then chased him. Delatorre’s sister called police. (170 RT 19793-98.) At
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trial, Delatorre identified Petitioner as the man who tried to take her car on
August 31, 1985. (Id. at 19794.)
345. Manuel Delatorre was in his backyard at 3754 East Hubbard Street
when he was informed that someone was hitting his wife. He went to the front of
his house and saw a man trying to start their car. His wife was upset. Another
man, whom Delatorre did not know, attempted to get the man out of the car. (
RT 19801-02.) Delatorre got a 3’ metal bar, and hit the man on the head. The
man then ran toward Indiana Street. Delatorre gave chase. When the man fell
down, Delatorre told him not to move. A crowd of twenty to thirty people began
to gather. The man, who had suffered a head wound on being hit by Delatorre,
was taken away by police. (Id. at 19803-06; 19816-17.) At trial, Delatorre
identified Petitioner as the man whom he hit on August 31, 1985. (Id. at 19802.)
346. Deputy Sheriff Andres Ramirez received a call at 9:00 a.m. on
August 31, 1985, to respond to an incident on East Hubbard Street. When he
arrived, Deputy Ramirez saw a group of seven to eight men on the street
surrounding a man, later identified as Petitioner, sitting on the ground with a
bloody head. Manuel Delatorre told Deputy Ramirez that Petitioner had
attempted to take his wife’s car and had assaulted his wife. (170 RT 19811-14.)
Deputy Ramirez placed Petitioner under arrest for attempted grand theft and
assault. Petitioner said his name was Ricardo Ramirez. He was not armed;
neither contraband nor a weapon was found. He was cooperative. (Id. at 19819-
21.) Petitioner was handcuffed and treated by paramedics. Petitioner was turned
over to Los Angeles Police Officers Strandgren and Vidal who arrived shortly
thereafter. (Id. at 19814-16, 19819-21.)
347. Officer Strandgren took Petitioner into custody. He recognized
Petitioner as the same person who had been pictured in a mugshot handed out at
roll call earlier that morning. Officer Vidal searched Petitioner for weapons. He
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removed a wallet from Petitioner’s rear pocket. After inspecting the wallet,
Officer Vidal put it back into Petitioner’s pocket. (171 RT 19858-61, 19865-66.)
a)
Discovery of the backpack
348. Los Angeles Police Officer Robert Rysdon received a radio call on
August 31, 1985, about 8:30 a.m. concerning a possible homicide suspect who
was described as a Hispanic male, six feet tall, dark curly hair, stained teeth,
wearing a black backpack. (171 RT 19840-41.) He drove to Eighth Street with
his partner, Officer Young. When they arrived, two men gestured to the officers
to follow them. The officers followed the men to a backyard at 3455 Bestwick
Street. There, Officer Rysdon retrieved a black backpack. (Id. at 19841-44.)
349. Officer Rysdon unzipped the backpack to look for dangerous
objects. He observed a black leather jacket. Officer Rysdon then secured the
pack by locking it in the trunk of his police car. Officer Rysdon was later
informed that Petitioner had been arrested. On his return to the Hollenbeck
police station, Officer Rysdon and Deputy Woods went through the pack. (
RT 19844-46.) Inside the pack the officers found binoculars, a small flashlight, a
nylon gym bag, a black leather jacket, and a pair of brown fabric garden gloves.
(Id. at 19847-49, 19990.) There were no weapons or ammunition inside the pack.
(Id. at 19852.) The backpack and contents were taken to the sheriff’s crime lab.
(Id. at 19992.)
b)
Petitioner’s statements to police
350. After his arrest on Hubbard Street, Petitioner was driven to
Hollenbeck police station by Los Angeles Police Officers James Kaiser and
Danny Rodriguez. (171 RT 19879-81.) During the ten minute drive to the
station, Petitioner made several statements to Officers Kaiser and Rodriguez
about being chased from Olympic Boulevard. He said he would be blamed for all
the killings, that he would be sent to the electric chair, and that he wanted to die.
Petitioner also stated that the mugshot on the visor of the police car was a picture
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of him. (Id. at 19882-83, 19885-86.) Petitioner indicated that he was afraid of
being attacked. The officers assured him that they would protect him. (Id. at
19892-93.)
351. Officer Kaiser testified that he spent one-half of an hour alone with
Petitioner at the police station. He testified that he did not question Petitioner,
and he did not advise him of his constitutional rights. Petitioner was handcuffed
at the time. (171 RT 19886-87.) Officer Kaiser testified that Petitioner told him
that there was a .32-caliber automatic gun in a Greyhound bus locker; he said the
ticket to the locker was in his wallet. Officer Rodriguez retrieved the claim ticket
from Petitioner’s wallet, then returned the ticket to the wallet until a detective
took over. (Id. at 19887-89.)
c)
Seizure of Petitioner’s Stadia shoes
352. At the time of his arrest, Petitioner was wearing a black T-shirt, dark
was held in an interview room. Los Angeles Police Sergeant George Thomas
removed Petitioner’s shoes to look at the pattern of the soles. He then placed the
shoes in a corner of the interview room in which Petitioner was being held.
Petitioner was not advised of his constitutional rights. (Id. at 19906-07, 19909-
10.)
353. Petitioner asked Sergeant Thomas the day of the week, made a
statement about wanting to die, then began to laugh. Petitioner hummed a song
by a rock group, AC/DC. He said he was “a killer” and deserved to die. He
spoke of Satan several times and laughed. (171 RT 19916-19, 19944.) Petitioner
stopped talking when he realized Sergeant Thomas was taking notes. Sergeant
Thomas was not prepared to interview Petitioner; he only had a piece of paper
and pen, but he started writing as soon as Petitioner began to talk. He had no idea
if there was a tape recorder in the interview room. (Id. at 19919, 19933-34.)
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Sergeant Thomas observed an inverted star in a circle on Petitioner’s left
shoulder. While in the interview room, Petitioner banged his head on the table
ten times. (Id. at 19919-21.)
d)
Recovery of the bag
354. At 7:00 a.m. on August 31, 1985, Los Angeles Police Officer Dennis
Lee was instructed to go to the Greyhound bus station to watch for a possible
suspect. He received a photograph of the suspect and was told that his name was
Richard Ramirez. (171 RT 19948-50.) Several hours later, he was told to look
for luggage at the bus station; he was given a baggage claim number. Officer Lee
found a leather-like zippered travel bag. (Id. at 19950-54.)
355. The travel bag (Prosecution’s Trial Ex. 52-A) was searched pursuant
to a warrant. The name of Greg Rodriguez, 1242 Brannick Street, Los Angeles,
was written on a tag attached to the bag. Petitioner’s brother, Julio Ramirez,
lived at 1259 South Brannick Street, Los Angeles. (171 RT 19981-85.) The bag
yielded a can of weight gain supplement, AC adapter and batteries, sunglasses,
channel lock pliers, nail clipper, black vinyl jacket, two sets of keys, and a
handcuff key. One set of keys fit the door and trunk of a Pontiac recovered by
police on September 1, 1985. (Id. at 19986-88, 19990; see infra.) A small, blue
bag was found inside the Greyhound bag. It contained a jar of Vaseline, a .32-
caliber revolver, vitamin supplements, a box of Remington .32-20 caliber
cartridges, four .25-caliber semi-automatic pistol cartridges, and five .22-caliber
cartridges. (Id. at 19987-88.) Three of the four .25-caliber cartridges contained a
red-colored surface surrounding the primer. The .22-caliber cartridges did not
have primer. (Id. at 19989-90.)
356. On September 5, 1985, fingerprints were lifted from a can of weight
powder, a Sanyo battery, and knife portion of nail clippers contained in the bag.
A latent fingerprint was later lifted from the flashlight found in the backpack.
(171 RT 19995-96, 19999-20000.)
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e)
Recovery and search of the green Pontiac
357. On September 1, 1985, Sheriff homicide investigators Russell Uloth
and Jerald Olsen went to Julian Ramirez’s residence at 1259 South Brannick
Street. Ramirez led officers to a green, two-door Pontiac parked across the street
from 126 Avenue 23. (171 RT 19962-64.) The vehicle was photographed and
then towed to East Los Angeles sheriff station. (172 RT 20003-05.) There the
car was searched and dusted for fingerprints. (171 RT 19964-65.) Latent
fingerprints were lifted from a white cup in the glove compartment and from the
rearview mirror. Partial lifts were obtained from handcuffs found underneath the
carpet and a seatbelt fastener on the front seat. A pentagram drawn in pencil was
observed on the vinyl dashboard. (Id. at 19966-69.)
t.
Petitioner’s Postarrest Behavior
358. Deputy sheriff Gerald Newbold was assigned to a suicide watch for
Petitioner at Los Angeles County Jail on September 2, 1985. Petitioner was then
being housed on the hospital side of the jail and watched twenty-four hours a day.
(176 RT 20597-98.) During a security check, Deputy Newbold saw Petitioner
write on the cell floor with blood from his right palm the number “666” and draw
a star in a circle. The drawings were photographed. (Id. at 20599-600.)
359. On October 24, 1985, Sergeant Salemo was present in Los Angeles
Municipal Court as Petitioner raised his hands and said aloud “Hail Satan.”
Salemo saw an inverted star with a circle around it and “666” written on the palm
of Petitioner’s hand. (176 RT 20603-04, 20607.)
360. On October 30, 1986, Deputy sheriff David Laws was summoned by
Petitioner to his cell. Petitioner showed him two photographs of a deceased
person. One photograph showed a female naked from the waist down; the other
showed the same woman lying on a bed with her head turned away from the
camera. (176 RT 20612-13.) Petitioner told Deputy Laws: “People come up
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here and call me a punk and I show them the photographs and tell them there is
blood behind the Night Stalker and then they go away all pale.” At the time,
Laws did not report Petitioner’s behavior or statement to his supervisor. (Id. at
20614.)
u.
Treatment
Examination of Petitioner’s Teeth and Subsequent Dental
361. On September 3, 1985, a dentist with the Sheriff Department, Alfred
Otero, D.D.S., examined Petitioner’s teeth. He described Petitioner’s front teeth
as stained, with nine decayed teeth. Petitioner indicated that he had no
complaints. (174 RT 20352-53.) In January 1986, Dr. Otero treated Petitioner
for tooth decay, performed a root canal, and restored Petitioner’s teeth with
fillings. (Id. at 20354-58.)
362. On September 13, 1985, Gerald Vale, a forensic dentist, also
examined Petitioner at the Los Angeles County Jail. He found Petitioner’s teeth
in very poor condition with advanced decay. A jagged gap was observed
between Petitioner’s two front teeth, other teeth were missing. (174 RT 20335-
37.) Photographs were taken of Petitioner’s teeth, showing stains and missing
teeth. Dr. Vale also made casts of Petitioner’s teeth. (Id. at 20338-41.)
363. In Dr. Vale’s opinion, Petitioner may have had recent dental work,
including the replacement of a crown. The missing teeth may have been removed
by a dentist. Petitioner’s gums had healed from the extractions. (174 RT 20346.)
2.
Prosecution Case Reopened
364. The prosecution rested its case-in-chief on April 13, 1989. On May
1, 1989, the date set for the defense case to commence, the prosecution moved to
reopen its case. The case was put over to May 2, 1989. (176 RT 20632;
RT 20637-40.) On May 2, 1989, Petitioner objected to Felipe Solano’s further
testimony. (Id. at 20656-64.)
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365. The prosecution contended that trial counsel Daniel Hernandez was
incompetent because he failed to properly review prosecution discovery and
conduct defense investigation. The trial court overruled Petitioner’s objections
and request for a hearing pursuant to Evidence Code § 402 and granted the
prosecution’s motion to reopen its case. (177 RT 20665-66, 20670-76.)
366. Felipe Solano testified that he first met Petitioner toward the end of
August 1984 at the Greyhound bus station. He admitted that he first met Eva
Castillo, whom he knew as Rosa Solis, in Tijuana in August or September 1984.
Solano admitted receiving stolen property from Solis on three occasions. (
RT 20683-85.) The week before his first appearance at trial, Solano identified
property he received from Solis. He previously had denied receiving property
from her because he wanted to protect her. Solano last saw Solis at his home in
September 1985 when she stayed overnight. (Id. at 20686-89.)
367. Solano also received stolen property twice from a man whom he
knew as “Monje.” Monje was 29 to 30 years old, small, with a thin build.
Solano first met Monje in April 1984. Solano also bought a television and mirror
from a man named “Cuba,” who was heavy-set, had a Cuban accent, and was
about twenty-three years old. Solano met Cuba through Solis or Petitioner.
Solano did not believe the property he bought from Cuba had been stolen. (
RT 20687-90, 20695.)
368. Solano identified photographs of a comb, purse, and microwave that
he received as gifts from Solis (Prosecution’s Trial Exs. 59, 59-A, and 59-B). He
bought a ring for 50 dollars from Solis to give to his wife. He bought necklaces
for 100 dollars from Monje. He also bought earrings and a chain with a pendant
from Monje but could not recall the price. (177 RT 20691-94.) Solano recalled
receiving earrings and a black necklace that looked like dark pearls from Solis,
but he did not see them in the photographs shown to him at the Sheriff
Department’s homicide bureau. (Id. at 20697.)
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369. On one occasion, Cuba came to Solano’s house accompanied by
Petitioner. They attempted to sell Solano some typewriters that Solano thought
were stolen. On another occasion, Petitioner came to Solano’s house with Solis.
Petitioner stayed in the car while Solis spoke with Solano. Solis borrowed
dollars from him. (177 RT 20695-97.)
370. Solano admitted on cross-examination that he had committed perjury
by denying he bought stolen property from Solis. He admitted that he lied to the
defense about Solis and to the police about when he first met Petitioner. (
RT 20741-45.) Solano admitted that he lied about when he saw Solis and
Petitioner together. (Id. at 20702-04.) Solano previously denied buying property
from Monje and Cuba because he thought they were friends. (Id. at 20717-18.)
Solano kept property he purchased from Petitioner in a closet, dresser, and other
places in his home. Property that Solano bought from Solis was mixed in with
property from Petitioner. Property that Solano bought from Monje was kept
separately in a closet. (177 RT 20733-35.)
371. After Solano testified on May 2, 1989, the prosecution rested. (
RT 20747.) The court permitted the prosecution to again reopen its case with
respect to the introduction of certified documents, including arrest, probation, and
parole records pertaining to Rosa Solis. (178 RT 20798-804; 179 RT 20814-15.)
3.
Defense Case
372. Petitioner’s defense was limited, in part because he was unable to
rationally communicate with counsel, to participate in his case or defend against
the charges. Petitioner’s defense was also limited because of his trial counsel’s
incompetence. During trial, trial counsel Ray Clark represented to the court that
Petitioner sought to waive his right to present any defense during the guilt trial.
(178 RT 20789-91.) The court held that counsel could override his client’s
decision to waive a defense. (Id. at 20793-94.) Trial counsel Daniel Hernandez
thereafter indicated there would only be a limited defense because “I don’t feel
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that putting on a defense without his cooperation is going to make my defense
very viable.” (Id. at 20794.)
373. On May 9, 1989, the defense gave an opening statement. (
RT 20819-45, 20848, 20852-53, 20858-80, 20890-911.) The defense that was
offered sought to raise a reasonable doubt of Petitioner’s guilt as to all the
charged crimes through lack of physical evidence, including hair and serological
evidence and an alibi defense in two of the incidents. In their attempt to create a
reasonable doubt in the jurors’ minds as to Petitioner’s guilt, Petitioner’s trial
counsel rendered ineffective assistance of counsel. They incompetently executed
the “limited” defense they had elected to put on; importantly, they also failed to
investigate and present evidence that was critical to Petitioner’s defense.
a.
Vincow Incident
374. Wanda Doss, the property manager of Vincow’s apartment building,
inspected Vincow’s apartment after her death. No repairs had been requested or
made to Vincow’s apartment in June and July 1984. The slider windows in her
apartment were in working order. No repairs were made to the windows after
Vincow’s death. (184 RT 21651-54.)
375. Werner Spitz, M.D., a forensic pathologist, was of the opinion,
based on body and room temperature and covering on the victim, that Vincow
had been dead for four to five hours by the time the coroner’s investigator
examined her body at the scene on June 28, 1985 at 4:47 p.m. (191 RT 22463-
65, 22515-24.) On cross-examination, Dr. Spitz indicated that there was
blanching to Vincow’s body which normally would occur up to seven or eight
hours after death. (Id. at 22529-31.) In Dr. Spitz’s opinion, Vincow’s body was
in the early stages of rigidity when she was discovered, and the coroner’s
investigator’s findings with respect to the time of death were inaccurate. (Id. at
22533-35, 22537-38.)
b.
Hernandez and Okazaki Incident
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376. Detective Carrillo investigated the crime scene and observed a
baseball cap in the garage. The cap was just inside the threshold of the garage.
(181 RT 21013, 21019-21.)
377. Maria Hernandez viewed two photographic line-ups. (
RT 21155, 21157.) Petitioner’s photograph was not included in the photographic
line-ups. (Id. at 21055.) Hernandez later attended a live line-up prior to the line-
up in which Petitioner stood, but she did not identify anyone. (Id. at 21157-58.)
378. Hernandez told Carrillo after the September 5, 1985 live line-up that
when she first saw Petitioner on the news he did not look like the suspect. (RT 21164.)
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c.
Yu Incident
379. According to a supplemental report prepared by Monterey Park
Police Officer Dan Romero, Jorge Gallegos denied hearing or seeing a fight
involving Yu. He denied that he heard shots. He also stated he would be unable
to identify the suspect. (180 RT 20975-76.) Gallegos gave the police a license
plate number of the suspect’s vehicle – 521 NCD.25 (Id. at 20979-80.)
380. On March 17, 1985, Monterey Park Police Officer David Corrigan
interviewed Jorge Gallegos in Spanish. (184 RT 21536-38.) Gallegos provided a
vague description of the suspect as male Latino or Oriental with dark hair. (Id. at
21539-40.) Gallegos indicated he only glanced at the suspect who drove without
headlights by his parked truck. Gallegos indicated that he heard a child cry or
scream when he was seated in his parked car. A few seconds later, he heard the
same sound from behind his truck. At that point, a car drove by without its
headlights on. Gallegos obtained the vehicle’s license number. (Id. at 21540-
41.)
381. During the interview, Gallegos did not appear confused. (
RT 21542.) Gallegos had difficulty speaking English and appeared to be a recent
immigrant. (Id. at 21543-44.) At the time of the interview, Officer Corrigan
made handwritten notes that were later typed into the report. (Id. at 21546.)
Officer Corrigan mistakenly wrote “suspect” in his typed report instead of
“witness,” and then crossed out the word. (Id. at 21547.) Gallegos told Corrigan
that he initially thought that a child was being abducted. (Id. at 21548.) At the
time, Gallegos’s girlfriend was also in the truck. (Id. at 21551-52.)
382. Dennis Lew, a photographer and film editor, photographed North
Alhambra Avenue in daylight and at night. He also photographed himself at
The vehicle’s owner, Teresa Cerna, testified in rebuttal that her Toyota
license number was 521 MNI. (See infra.)
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night on the street. Because of poor lighting on the street, it was difficult to
discern his features in the photograph. Lew also simulated a car driving by a
parked car. Because of lighting and the effect of lights on car mirrors at night,
any view of a passing car at night from inside a parked car would be confusing to
the observer. (184 RT 21565-68.)
383. Coroner Susan Selser, M.D., testified that Yu suffered two gunshot
wounds. The trajectory of the first bullet was along the right side of her chest
through the skin, causing a fracture to the sixth rib, then through the right lung,
grazing the heart before resting near the left side of the chest. (189 RT 22238-
39.) The bullet traveled 10 to 20 degrees downward from back to front. The
angle appeared to be 30 to 45 degrees, probably closer to 30 degrees from the
midline toward the front. It was a slightly downward, short path. (Id. at 22239-
41, 22251-53.)
384. The second bullet traveled left to right, slightly upward through the
spinal cord. The path of the bullet was short and low on the back. The bullet was
recovered from the vertebrae, near the entrance wound. (189 RT 22256-57.)
Neither of the two projectiles exited the body. (Id. at 22241.) Trajectory was
estimated by a visual examination of the wounds. Dr. Selser was unable to
determine whether Yu was sitting or standing when she was shot. (Id. at 22242,
22245, 22254-56.) The wounds were nine inches apart. (Id. at 22261, 22264-
65.)
385. Werner Spitz, M.D., the forensic pathologist, reviewed a number of
autopsy photographs and reports. (191 RT 22450-53.) The wound to the right
side of Yu’s chest close to the armpit was inflicted at close range and probably
was a contact wound. The path of the bullet was horizontal. The wound was not
immediately incapacitating; the victim would have been able to talk, scream, even
run. (Id. at 22453-55.) The wound, however, was fatal unless quickly treated.
(Id. at 22462.)
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386. The second wound to Yu’s lower back may have caused paralysis to
the legs. It was not inflicted at close range. (191 RT 22455-58.) There also was
bruising to the shins and right thigh. Injury to the thigh was consistent with the
victim hitting the steering wheel. There was no physical evidence that the victim
crawled or was pulled by her hands. (Id. at 22459-62.) Both injuries were
consistent with the victim being shot inside the vehicle. (Id. at 22463.)
387. On cross-examination, Dr. Spitz explained that his opinion as to the
victim’s location at the time the wounds were inflicted was based on the close-
range nature of the wounds and near horizontal trajectory of the bullets. (
RT 22466, 22472.) In a photograph of the first wound where a bullet was
recovered, based on the presence of specks of gunpowder, Dr. Spitz was of the
opinion that the muzzle of the gun was held in a forward direction. (Id. at 22471-
75.)
388. The shape of the bruise to Yu’s right thigh was consistent with
having been dragged across the steering wheel; there was no abrasion, and the
bruise was sizeable. (191 RT 22484-87.) Dr. Spitz agreed it was possible that
Yu had been pulled from the car, although her clothing was not torn. Abrasions
to her lower legs were consistent with striking objects while quickly exiting the
car. (Id. at 22488-91.)
389. There was no physical evidence of a shooting, such as powder
residue or blood in Yu’s car. (191 RT 22494.) Yu could have been dragged or
carried. (Id. at 22497-98.) Dr. Spitz was of the opinion that Yu’s chest wound
had been inflicted first, consistent with her sitting or leaning over. (Id. at 22499.)
Hypothetically, the path of a bullet would be significantly more downward if a
5’3” tall victim were shot by a person who was 6’1”. (Id. at 22500-01.)
390. A demonstration was conducted with the prosecutor assuming a
driver’s position and Dr. Spitz as the passenger. The demonstration showed that
the first wound could not have been inflicted if Yu had been sitting straight and
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forward in the driver’s seat. (191 RT 22501-04.) The second wound could have
occurred as the victim turned away, hit the steering wheel, and tried to open the
door. (Id. at 22504-05.)
391. The prosecutor also demonstrated the suspect’s position outside the
driver’s door with Dr. Spitz sitting in the driver’s seat. An assailant could have
reached inside, grabbed the victim, and shot her as she pulled away. In Dr.
Spitz’s opinion, a significant amount of force would be required to pull a person
from a vehicle. There was no evidence of force, such as torn clothing. Based on
all known factors, Dr. Spitz was of the opinion that Yu was shot inside the car.
(191 RT 22506-07.)
d.
Doi Incident
392. Dennis Lew photographed the location where Launie Dempster had
seen a possible suspect. He photographed the street and a parked car. He also
photographed a simulated drive-by. At night, lighting and shadows made it
difficult to see the features of a person sitting in a car. (184 RT 21570-74.) Lew
printed his photographs and made single exposures using normal photographic
techniques. (Id. at 21579.)
e.
Bell and Lang Incident
i.
Petitioner’s Alibi
393. Petitioner’s father, Julian Ramirez, testified that Petitioner visited El
Paso, Texas beginning about May 23, 1985, and stayed with his family for ten
days. Ramirez’s granddaughter received her First Communion on Saturday, May
25, 1985, an event that Petitioner did not attend. Ramirez saw Petitioner every
day that week after work. Petitioner left El Paso by bus on the following Friday
evening. (181 RT 21122-25.)
394. After Ramirez testified, the court ordered a continuance of trial to
permit the prosecution to investigate his testimony. (181 RT 21127-36.) When
Ramirez resumed his testimony, he testified that his granddaughter’s communion
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was held Saturday, May 24, 1985. Petitioner did not attend the communion
service at church; he only attended the party. (182 RT 21180-83.) Petitioner
arrived on May 22 or 23, 1985, and left on Friday, May 31, 1985. (Id. at 21187.)
Petitioner first stayed in a motel, then with his parents. Ramirez did not meet
Petitioner at the bus station when he arrived, nor did he drop Petitioner off at the
bus station when he left El Paso. Ramirez could not recall how many times
Petitioner may have visited El Paso in 1985. (Id. at 21188-90.) He did not
remember speaking with Sergeant Perry about Petitioner’s whereabouts when
Perry came to El Paso and searched his daughter’s residence. He did not recall
when Sergeant Perry was in El Paso. (Id. at 21191-93.)
ii.
Physical Evidence at the Scene
395. Criminalist Michelle LePisto collected a red-stained pillow, sheets, a
cord with hairs, and stockings from the northeast bedroom of the residence. She
also collected red-stained sheets, clothing, and tape from the northwest bedroom.
Hospital personnel removed tape from one of the victim’s ankles. (
RT 22289-91.)
396. Monrovia Police Detective Steven Cordell was dispatched to the
Bell and Lang home on June 1, 1985. He found two newspapers from May
and 30, 1985, in front of the residence. The papers were collected and placed in
evidence at the police department. (189 RT 22299-300.) He also observed a TV
Guide in the living room that was open to May 30 and May 31, 1985. He later
saw a diary in the home with entries up to and including May 29, 1985. (Id. at
22306-13.) Monrovia Fire Inspector Steven Mikity handled brush clearance in
1985. On the morning of May 29, 1985, he went to the victims’ residence to
notify them to clear brush from their property; no one was home. The garage and
kitchen doors were closed at that time. (195 RT 22869-70, 22890-92.) Mikity
returned to the home later in the day at about 5:00 p.m. and noticed that the
garage and kitchen doors were open. He saw a large object in the trunk of a car
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inside the garage. The car was an older model with faded paint. The object in the
trunk appeared to be a television set. (Id. at 22871-73.) Mikity did not stop or
attempt to contact the residents. (Id. at 22875.) Mikity drove by the same house
every day; it was unusual to see the garage door open. (Id. at 22890.)
397. Two days later, Mikity returned to the Bell and Lang residence.
Paramedics had just arrived. (195 RT 22875-77.) He did not recall whether on
that day the garage door was still open. (Id. at 22882-87.) He returned the
following day with police officers who showed him a car in the garage that
appeared to be identical to the one he previously saw. This time, the trunk was
closed. (Id. at 22873-74, 22888-89.)
f.
Kyle Incident
398. Petitioner’s alibi, presented through his father’s testimony, also
related to the crimes charged in the Kyle incident, which occurred early on the
morning of May 30, 1985. (See Kyle Incident, supra.)
g.
Cannon Incident
399. Criminalist Giselle LaVigne collected evidence at the scene,
including a knife and other items from the bedroom and kitchen counter. (
RT 21662-67.) Physical evidence collected by LaVigne had been released to the
defense but not returned to the crime lab. (Id. at 21669-70.)
400. In LaVigne’s opinion, there appeared to be blood on broken glass
found near the victim’s head. The blood had not solidified. On the day of
LaVigne’s investigation at the scene it was very hot; the temperature was in the
nineties. (185 RT 21669.)
h.
Nelson Incident
401. As in the Doi incident, Dennis Lew photographed the scene. His
photographs taken under different lighting conditions – showing the streetlights,
the victim’s residence, and a night view of the scene – were admitted into
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evidence. (184 RT 21580-84.) Lew took black and white photographs because
they more accurately reflected actual conditions. (Id. at 21586-87.)
i.
Dickman Incident
402. Detective Carrillo testified that Dickman viewed a photographic
line-up that did not include Petitioner’s photograph and identified a person. (
RT 21045, 21054.) The person later was arrested for murder and submitted to
homicide processing for blood, saliva, and hair samples. (Id. at 21045-46.) Hair
samples were submitted to the lab. (Id. at 21052.)
j.
with Somkid Khovananth on the day after her brother’s death. Somkid then
described the suspect as a man with curly hair and dark skin. (186 RT 21904-07.)
l.
Petersen Incident
406. Private investigator David Frank visited the Petersen residence on
April 17, 1989. He photographed the home, specifically the back bedroom and
the view from the bedroom toward the living room. (180 RT 20915-21, 20944.)
He also photographed the living room toward the back bedroom. (Id. at 20935.)
Only a narrow area of the living room was visible from the back bedroom. (Id. at
20938.)
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407. Frank positioned himself at the approximate location in the room
where a person would sit up in bed if the bed was situated under the window. As
he moved to the right, the view into the living room diminished. (180 RT 20957-
58.)
m.
Abowath Incident
408. Sheriff’s Department criminalist Burke collected 35 items from the
residence. He later analyzed a tape lift from the dining room floor. (
RT 21673-79.)
409. Detective Carrillo was not the investigating officer in the Abowath
incident and was not aware whether Sakina Abowath indicated she did not wish
to attend the line-up for religious reasons. Abowath was requested to attend the
live line-up. (181 RT 21059.)
410. Sergeant Yarbrough interviewed Sakina Abowath at the hospital on
August 8, 1985, and the next day at a friend’s home. Sakina described the
suspect as a light-complexioned male, approximately 25 to 30 years old, with
yellowish skin. She described the suspect as possibly Caucasian with Latin
features, tall, thin, with a recessed chest and light brown or medium blond hair
with curls. The suspect did not speak with an accent. He had wide front teeth,
although Sakina did not recall gaps in his teeth. The suspect had an odor of stale
sweat. He wore a long-sleeved shirt, pants similar to dark Levi’s, and possibly
boots. (189 RT 22293-95.)
n.
Hair and Serological Evidence
411. The defense presented expert testimony regarding hair and
serological evidence found at the scene of six incidents, which tended to exclude
Petitioner as the perpetrator of the crimes in those incidents. The following table
summarizes the evidence and test results:
136Page 161 Page ID #:
Analyses of Certain Hair and Serological Evidence
Incident
Evidence
Findings as to Petitioner
Hair
Hair
Blood stains
Hair
Hair
Blood stains
Hair
Hair
Vaginal swab, semen
Negative
Negative
Inconclusive
Negative
Inconclusive
Negative
Negative
Negative
Consistent with blood type
Bell and Lang
Cannon
Nelson
Bennett
Kneiding
Abowath
i.
Hair Evidence
412. Former Sheriff Department criminalist Melvin Kong compared hairs
recovered from numerous crime scenes with Petitioner’s medium brown hair.
(186 RT 21909-14.)
a)
Bell and Lang Incident
413. Some of the hair samples collected from the bedroom were buckled
or pubic hairs. Kong concluded they were dissimilar to Petitioner’s hair based on
microscopic characteristics. (193 RT 22605-07.) Kong noted that it was not
possible to determine a person’s age based on hair analysis. (Id. at 22607-08.)
Comparison of head hair found on a stocking, sheets and mattress pad, and on
electrician’s tape proved to be dissimilar to Petitioner’s hair. (Id. at 22609-10.)
b)
Cannon Incident
414. Animal and human hairs were found at the scene. Recovered light
brown hair was compared to Petitioner’s known hair. The recovered hair was not
similar to Petitioner’s hair, owing to differences in length, color, and curl. (RT 21918-22.)
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c)
Bennett Incident
415. Head hairs found in the victim’s left hand were determined to be
consistent with the victim’s hair. A “buckled” hair found on the carpet was
similar to Petitioner’s pubic hair and dissimilar to the victim’s; however, it was a
commonly found hair without any unique characteristics. (193 RT 22611-15,
22621-22.)
d)
Nelson Incident
416. Medium brown head hairs recovered from the scene were dissimilar
to Petitioner’s hair. (186 RT 21937-39, 21943-45.)
e)
Kneiding Incident
417. Hair found in Lela Kneiding’s hand was similar to her own hair and
dissimilar to Petitioner’s hair. (193 RT 22615-21.) Pubic hairs collected from a
bedspread were found to be dissimilar to the victims and Petitioner. (Id. at
22627-29.) One hair found on a shirt was not similar to Petitioner’s hair. The
same shirt had dark brown stains, possibly blood. (193 RT 22626-27.)
f)
Abowath Incident
418. Two buckled hairs recovered from the scene appeared to be pubic
hair but could have been transitional hairs from the lower stomach. On
comparison with Petitioner’s hair, they were found to be dissimilar. (
RT 21922-23, 21935-36.)
ii.
Serological Evidence
419. Sheriff criminalists Gisele LaVigne and Steve Renteria testified as to
their findings with respect to the Cannon, Bennett, and Abowath incidents.
a)
Cannon Incident 420. A blood sample from a
piece of broken glass was subjected to electrophoretic testing to determine PGM
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markers.26 (190 RT 22344-47.) The PGM subtype found on the glass was
different from the PGM markers of both the victim and Petitioner. (Id. at 22349-
50.) Criminalist LaVigne was of the opinion that her findings were not accurate
because the sample was degraded. In LaVigne’s opinion, neither the victim nor
Petitioner could be excluded as possible donors. (Id. at 22367-70, 22394.)
421. The PGM subtype found on a gray mitten recovered from the
bedroom was consistent with both the victim’s and Petitioner’s blood. (
RT 22352, 22354-55.) However, additional electrophoretic testing conclusively
demonstrated that blood on the mitten did not originate from Petitioner. (Id. at
22383-84.)
b)
Bennett Incident
422. Criminalist LaVigne collected numerous items from the scene
including a pillowcase, comforter, clothing, blanket, sheets, carpet, tire iron, two
belts, one tie, sash, and curtains. (190 RT 22329-32.)
423. Serological testing conducted on the sash disclosed blood stains
consistent with Type ABO-Type A blood. The victim and Petitioner were both
Type O. (190 RT 22338-42.) Antigens found on the sash did not originate from
either the victim or Petitioner. (Id. at 22344.)
c)
Abowath Incident
424. Criminalist Renteria tested a vaginal swab obtained from Sakina
Abowath to determine PGM subtype. Elyas Abowath and Petitioner shared the
same PGM subtype. (190 RT 22396-98, 22422.) Semen and vaginal secretions
were present on the swab obtained from Sakina. (Id. at 22401.) Test results
indicated that the fluid on the swab could not have originated from either Elyas
Abowath or Petitioner. (Id. at 22412-18.) In Renteria’s opinion, however, testing
Similar to the ABO Type of identification, identifying PGM markers in
a blood sample is a method of identifying the source.
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techniques used for PGM subtypes were unreliable. (Id. at 22419-23, 22434-36.)
Some semen samples found on a bedspread were consistent with Petitioner’s
blood type. Other stains found on the bed sheets were consistent with Elyas
Abowath’s blood type and inconsistent with Petitioner’s. (Id. at 22424-25.)
iii.
The Live Line-Up
425. A line-up was held at the Los Angeles County Jail on September 5,
1985. Members of the defense team were present during the line-up. (
RT 21199, 21201-02.) A preview of the line-up was initially held during which
the line-up participants appeared on stage and were given instructions. Following
the preview and because of the number of witnesses, the line-up was held in two
separate sessions. (Id. at 21206-07.) Line-up witnesses were seated in the
audience. During the first line-up, there were approximately forty witnesses
seated in six to seven front rows. (Id. at 21208-10.)
426. Petitioner participated in the line-up. He had an injury to the back of
his head. (182 RT 21212-13, 21220.) Petitioner was assigned the Number
position in both line-ups. (Id. at 21217-19; 183 RT 21449.)
427. Witnesses were instructed not to talk to each other about the line-up.
(182 RT 21248.) The prosecutor and an investigating officer sat near the
witnesses. (Id. at 21211-12.) During the first line-up, a police officer raised his
right hand and gestured with two fingers. The witnesses were able to see the
gesture. (183 RT 21431-33.) The officer made this gesture before the witnesses
were asked to fill out their line-up cards. (Id. at 21434.) After the second line-
up, another officer appeared in front of the stage and asked if any of the witnesses
had questions. (Id. at 21438-40.) He, too, gestured with two fingers, moving his
hand back and forth as he walked across the room a few feet in front of the
witnesses. (Id. at 21436-38, 21447-48.)
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iv.
Expert Testimony Regarding Eyewitness
Identification
428. Elizabeth Loftus, Ph.D., a psychologist, testified that memory of an
event is based on acquisition of information, its retention and retrieval or recall.
may occur when a witness’s attention is captured by a weapon, adversely
affecting the ability to remember other details. The period of time in which an
event occurs may also affect memory. Individuals often overestimate the
duration of an event that occurs under stressful conditions. Memory fades over
time. (Id. at 22707-12.) Post-event information may contaminate or alter
memory. (Id. at 22712, 22718-19.) Witnesses who are exposed to media
coverage or asked leading questions during interviews may have distorted
memory. Retrieval of memory occurs when a witness answers questions or
makes an identification. (Id. at 22712-15.)
429. Mistakes frequently occur in the eyewitness identification of
strangers if the witness and stranger are of different races. In Dr. Loftus’s
opinion, cross-racial identification is difficult for reasons that researchers do not
fully understand. (194 RT 22715-16.) On cross-examination, Loftus admitted
that she did not interview eyewitnesses in this case with respect to reliability of
cross-racial identification. (Id. at 22727-29.)
430. Loftus also testified that stress and the amount of time a witness
views an event affect the reliability of identification. (194 RT 22811-12, 22820.)
According to Loftus’s research, it is hard for a witness to retain an accurate
memory of an event. (Id. at 22826-27.) Subjects frequently recall post-event
information instead of the memory of the actual event itself. Subjects often give
inaccurate accounts based on other information received, such as media coverage.
(Id. at 22828-34, 22837.) Eye contact between a witness and a suspect increases
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the witness’s ability to remember the suspect’s appearance. (195 RT 22849-50,
22853-54.)
431. Dr. Loftus also studied the reaction of victims to traumatic events.
Retrograde amnesia frequently occurs as a result of mental or physical shock,
thereby reducing the victim’s ability to remember events. Dr. Loftus’s research
showed that victims who suffered mental trauma experienced difficulty in
remembering events. (194 RT 22771-74.)
o.
Testimony of Sandra Hotchkiss
432. Sandra Hotchkiss, a convicted felon and police informer in state
prison at the time of trial, testified that Felipe Solano was involved in numerous
stolen property transactions in addition to his dealings with Petitioner. (
RT 21689-91.) Sandra Hotchkiss had been enlisted, unsuccessfully, by law
enforcement officers to sell stolen property to Solano both at a pool hall on Sixth
and Alvarado Streets, and at his home just prior to Petitioner’s arrest. (Id. at
21714-15, 21718-26, 21730-31.) Hotchkiss was unaware that her work with law
enforcement officers to sell jewelry to Solano in August and September 1985 was
actually related to a homicide investigation. She believed Solano had been
arrested and that she would be called as a witness in his case. (187 RT 21968-
69.)
433. Hotchkiss first met Petitioner in early 1985 at Brunswick Billiards
on Third and Main Streets in Los Angeles. Solano and Petitioner were both in
the pool hall at the time, talking with a group of people. Hotchkiss saw Petitioner
sell Solano jewelry on two occasions in March 1985. (186 RT 21869-71, 21874.)
On the first occasion, Hotchkiss bought several rings and chains from Petitioner.
(Id. at 21874-79.) Hotchkiss later bought jewelry from Petitioner at good prices
because he was unaware of the weight of the gold or the value of stones. (
RT 21707-08.)
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434. Two to three weeks after their first meeting in March 1985,
Hotchkiss and Petitioner started committing residential burglaries together,
during the day and early evening. They used a car Hotchkiss had borrowed. (
RT 21708-09.) Hotchkiss never saw Petitioner with a gun. (Id. at 21713-14.) He
did not act violently or aggressively in her presence. She considered Petitioner to
be an amateur burglar. (Id. at 21695-96, 21698, 21701.) Petitioner usually
waited in the car and acted as the driver, while Hotchkiss committed the
burglaries. She picked the homes to be burglarized. According to Hotchkiss,
Petitioner did not know how to identify valuable jewelry. (Id. at 21702-04.) She
last saw Petitioner in July 1985 in the downtown area near Third and Broadway
Streets. (Id. at 21709-10.)
435. At trial, Hotchkiss refused to answer specific questions about
burglaries that she had committed with Petitioner. (186 RT 21888, 21892.)
Hotchkiss agreed to testify only about crimes as to which the statute of
limitations had expired. The prosecutor told the court that there was no evidence
that Hotchkiss had been involved in any of the murder cases. (Id. at 21929-32.)
436. Hotchkiss admitted committing 20 to 25 burglaries with Petitioner
between January and July 1985 in west Los Angeles, Glendale, Atwater, Silver
Lake, Santa Monica, and Montrose. (187 RT 21996-22000.) She stopped
working with Petitioner because their burglaries did not go smoothly.
Sometimes, Petitioner became scared and abandoned her at the scene. (Id. at
22009.) They had disagreements about where to park their car and what to take.
She denied that Petitioner ever wrote on mirrors with lipstick during their
burglaries. (Id. at 22018-21.)
437. Hotchkiss and Petitioner used various cars to commit burglaries.
Petitioner frequently changed cars, driving at times a two-door maroon Chevrolet,
a four-door white Dodge, and a small station wagon. (187 RT 22029-30.) On
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occasion, they used her Dodge Colt. (Id. at 22104.) Hotchkiss saw Petitioner
with a screwdriver and pocketknife, but never with a gun. (Id. at 22032-33.)
438. Neither Hotchkiss nor Petitioner wore gloves during burglaries they
committed together. She believed that gloves hindered her actions during a
burglary. Occasionally, she used clear nail polish on her fingertips to avoid
leaving fingerprints. Petitioner used clear polish on his fingertips almost every
time they worked together. (188 RT 22142, 22184-86.)
439. In exchange for her work with police as an informant and her efforts
with police to buy and sell stolen property from and to Felipe Solano, Hotchkiss
received respectively six-year and eight-year suspended prison terms and grants
of probation in two separate cases. In August 1986, Hotchkiss was arrested,
charged with being under the influence, and released from custody. (
RT 21748, 21754.) On October 26, 1986, she was arrested and charged with
burglary. As a result of that arrest, her probation was violated, and she was
sentenced to prison for fourteen years. (Id. at 21753-54.)
440. Since 1960, Hotchkiss had regularly used cocaine, heroin, and
methadone. She also was suffering from an epilepsy disorder; she was required
to take medication for seizures. Hotchkiss testified that her memory was not
affected by her medication. Following her arrest on October 26, 1986, Hotchkiss
became comatose as a result of a drug overdose. (185 RT 21748; 188 RT 22190-
92.)
441. At the time of trial, Hotchkiss was in protective custody in state
prison, owing to her involvement as a witness in a Long Beach homicide case.
While in Los Angeles County Jail, she was housed in protective custody. (
RT 22157-59.)
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p.
Impeachment of Felipe Solano
442. In 1985, Ruben Cardenas lived near Felipe Solano at 846 Laveta
Terrace in Los Angeles. He was related to Solano through marriage. Shortly
before Petitioner’s arrest, Solano asked Cardenas to hide a box for him. Cardenas
refused. (191 RT 22443-44.) Two years after Petitioner’s arrest, Cardenas told a
defense investigator that in 1985 he had seen Solano and his wife sort jewelry on
the kitchen table of their residence. (192 RT 22590.)
443. Felipe Solano, Jr., testified that he worked at the same factory as his
father in August and September 1985. In August 1985, his father brought a
handkerchief containing jewelry to his home and told him to keep the jewelry for
him. Solano, Jr. did not know the property had been stolen. (184 RT 21525-27,
21533.) A few days later, his father retrieved the jewelry in the company of
police officers. (Id. at 21528.)
444. Felipe Solano’s friend, Rosa Solis, was in custody during the time
Solano was involved with Petitioner. On October 6, 1985, Solis was paroled to
the Solano residence at 842 Laveta Terrace, but she later absconded. (
RT 21079-80.) A warrant was issued for her arrest on December 3, 1985. As of
October 7, 1985, she was a parolee-at-large. (Id. at 21094-95.)
445. According to Los Angeles County Probation Department documents,
Rosa Solis’s true name was Eva Castillo. (181 RT 21097.) She was sentenced to
prison on November 14, 1984 for a crime committed on July 12, 1984, and
paroled on October 6, 1985. (Id. at 21100, 21107.)
4.
Rebuttal Evidence
446. Evidence was introduced to impeach Sandra Hotchkiss and to refute
defense evidence as to the Yu and Kneiding incidents. Testimony of a news
reporter who interviewed Petitioner’s father and evidence of dental records were
offered to undermine Petitioner’s alibi. The prosecution also presented evidence
145Page 170 Page ID #:
to explain hand gestures made by a law enforcement officer during Petitioner’s
line-up.
a.
Impeachment of Sandra Hotchkiss
447. Burbank Police Sergeant Kight testified that he first met Sandra
Hotchkiss in 1976 or 1977, following her arrest for burglary. He knew she was a
burglar, a fence, and a prostitute. Over a ten-year period, Hotchkiss stayed in
touch with Kight. He last saw her in jail in 1986. (196 RT 22904-05, 22920.)
448. In August 1985, Kight was asked to provide an informant who knew
downtown Los Angeles to assist in a Sheriff Department investigation. He
introduced Hotchkiss to Detective Ghan and Sergeant Yarbrough. (
RT 22905-07.) Hotchkiss was in contact with Ghan and Yarbrough at least ten
days prior to Petitioner’s arrest. (Id. at 22910-11.)
449. Shortly after Petitioner’s arrest, in early September, Hotchkiss called
Kight and indicated she had completed her work for the sheriff’s department.
450. Kight may have told Hotchkiss that the investigation concerned
Petitioner’s case. (196 RT 22914-15.) However, Kight was unaware that
Hotchkiss knew Petitioner or Felipe Solano. (Id. at 22915-16.)
451. In August 1985, Kight knew that Hotchkiss was charged with two
burglaries and was out of custody on bail. He agreed to provide a letter on her
behalf for a pending criminal prosecution. The chief of police signed a letter that
Kight prepared. As a result, Hotchkiss was granted probation. Following her
subsequent arrest for violation of probation, Hotchkiss contacted Kight for
assistance, but Kight did not assist her. Hotchkiss was later returned to state
prison. (196 RT 22917-20.)
452. Former Sheriff’s Detective Robert Ghan met Hotchkiss on August
29, 1985. Ghan interviewed Hotchkiss; she provided names and places of
activity related to stolen property. Hotchkiss did not provide either Felipe
Solano’s or Petitioner’s name. At that time, Ghan was unaware of both Solano
146Page 171 Page ID #:
and Petitioner. (196 RT 22934-36.) Ghan put Hotchkiss in touch with Sergeant
Laurie. Ghan had no further contact with Hotchkiss and was unaware that she
was being prosecuted for burglary. He was unaware that his name had been
mentioned in a letter on her behalf that explicitly referred to the Night Stalker
Task Force. (Id. at 22937-39.)
453. Los Angeles Police Detective Felix Estrada testified that he first met
Hotchkiss in late 1984. She acted as an informant in some of his cases by buying
stolen property. A letter was prepared on her behalf by Los Angeles Police
Department. (196 RT 22954-55.)
454. Shortly after Petitioner’s arrest, Estrada spoke with Hotchkiss who
offered to sell stolen property to the owner of a pool hall on Alvarado Street near
6th Street. Hotchkiss stated that she did not know Petitioner but she had learned
he sold stolen property at a pool hall. (196 RT 22956-59, 22961.) Estrada was
not on the Night Stalker Task Force and did not bring up Petitioner’s name in his
conversations with Hotchkiss. She did not at that time disclose to Estrada that
she knew Felipe Solano. (Id. at 22967-69.)
455. Estrada did not enlist Hotchkiss to sell stolen property at a pool hall.
Hotchkiss frequently called Estrada; on one occasion, she asked him for money.
Estrada refused. (196 RT 22960-62.) Hotchkiss indicated to Estrada that since
neither he nor the prosecution would help her, she would contact the defense to
“see if they would pay her for information.” (Id. at 22962.) Estrada considered
Hotchkiss generally a reliable informer but not always truthful. (Id. at 22963-64.)
456. Sergeant Yarbrough first met Hotchkiss on August 29, 1985, at the
sheriff station. He had no further contact with her until October 31, 1986 when
he spoke with her at the Sybil Brand Institute for Women. Hotchkiss told him
that she first met Petitioner on 6th Street in Los Angeles while he was buying
drugs. Petitioner’s nickname was “Flaco,” which meant “skinny” in Spanish.
(196 RT 22975-81.) Hotchkiss bought drugs for Petitioner at the Brunswick Pool
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Hall on Fourth and Main Streets. She also bought items from Petitioner,
including a camera and camera equipment, two gold necklaces with emeralds, a
choker, and a man’s yellow gold ring with a diamond. Based on her
conversations with Petitioner, Hotchkiss believed that he obtained property from
burglaries. (Id. at 22981-83.) She also claimed that Solano lied about meeting
Petitioner at the bus station. Solano did not pay Petitioner a fair price for the
property he had purchased from Petitioner. (Id. at 22984.)
457. On March 3, 1987, Yarbrough again met with Hotchkiss who was
still in custody. Hotchkiss related that she and Petitioner together committed four
or five burglaries in the Pasadena or Burbank area. She said she was present with
Petitioner in an orange Toyota station wagon when he was involved in a fatal hit
and run incident in 1985. Yarbrough later confirmed that an unsolved fatal hit
and run involved a white Buick. (196 RT 23004-05.)
458. In a later interview on March 26, 1987, Hotchkiss indicated that she
knew Petitioner but did not associate him with the Night Stalker. They used
cocaine together. (196 RT 23005, 23008.) She admitted observing Petitioner
place jewelry in a pay locker at the bus station and, on several occasions, saw him
remove jewelry from the locker. She believed that Petitioner burglarized a house
in her neighborhood between November 1984 and February 1985. (Id. at 23009-
11.) She did not like working with Petitioner because he was careless, stole
worthless property, and used amateur tools. On one occasion, while committing
a burglary with Hotchkiss, Petitioner wrote on a mirror with lipstick. (Id. at
23012.) Sergeant Yarbrough investigated information provided by Hotchkiss. In
Yarbrough’s opinion, Hotchkiss gave inconsistent, inaccurate information. (Id. at
23026.)
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b.
Yu Incident
459. Monterey Park Police Agent Ron Endo observed the victim’s right
shoe on the driver’s side floorboard. Her left shoe was found on the ground in
front of the car. (197 RT 23087-89.) The victim’s clothing was not disheveled.
(Id. at 23090-92.) When paramedics arrived, they cut away her clothing. (Id. at
23099-101.)
460. James Njavro, a coroner’s photographer, identified a photograph of
Yu’s clothed body taken before the autopsy. In the photograph, Yu’s clothing
appeared disheveled. (197 RT 23057-59, 23065-70.)
461. On March 17, 1985, Teresa De Jesus Cerna worked at 9th and Olive
Streets in downtown Los Angeles. When she left work, she found that her car, a
1974 Toyota Corolla station wagon, license number 521MNI, was missing. She
immediately reported that her car had been stolen. On March 20, 1985, she
obtained her car from the California Highway Patrol. (198 RT 23126-31.) Only
the ignition had been damaged; nothing was missing. The door lock was intact.
The car had been locked when she parked it on March 17. (Id. at 23133.)
462. Monterey Park Police Officer Kimberly Torres impounded a
dark blue Toyota vehicle, license plate number 521MNI, on March 20, 1985.
The car had been parked at the emergency entrance to the Monterey Park
Hospital which was located four blocks from the Yu incident. The car had first
been cited on March 18, 1985. The vehicle had minor damage to the front end
and a paint scratch to the right side. (197 RT 23048-54.)
c.
Kneiding Incident
463. On June 3, 1988, criminalist Steve Renteria examined a T-shirt
found during the investigation of the crime scene. He tested reddish-brown stains
on the T-shirt and concluded that the stains were not blood. (197 RT 23105-07.)
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d.
Petitioner’s Dental Work and Alibi
464. Gerald Vale, D.D.S., compared Petitioner’s dental records and x-
rays taken after his arrest to the dental records of a patient named Richard Mena
who had been treated by Dr. Peter Leung. (198 RT 23139-41, 23145.) In Dr.
Vale’s opinion, all the records pertained to the same person. Both sets of records
showed twelve teeth missing and distinctive dental work. A molar with two
fillings appeared in each set of records. (Id. at 23151-54.) X-rays of the eyeteeth
lateral incisors, and central incisors depicted the same teeth. Both sets of records
demonstrated identical wearing of the teeth and that a root canal had been
performed on the same tooth. There were more than 73 matching points in the
two sets of dental records. (198 RT 23156-58, 23166.)
465. Dr. Leung practiced dentistry in Chinatown at 732 North Broadway,
Los Angeles. (198 RT 23172.) From March 5, 1985, through May 30, 1985, he
treated a patient named Richard Mena. His records disclosed that x-rays of
Mena’s teeth were first taken on March 5, 1985. On May 17, 1985, a root canal
was performed. On May 21, 1985, Mena had a tooth extracted. (Id. at 23174-79,
23182.)
466. On May 23, 1985, Mena underwent further dental work. On May
30, 1985, a crown was cemented in place. Mena paid for the dental work in cash.
(198 RT 23184-91.) At trial, Dr. Leung identified Petitioner as his patient
Richard Mena. (Id. at 23192.)
467. News reporter David Hancock worked for the El Paso Times on
August 31, 1985. He interviewed Petitioner’s father, Julian Ramirez, in Spanish
on that date at the father’s residence. Ramirez appeared shaken by news of
Petitioner’s arrest. (199 RT 23241-44.) They discussed when Petitioner’s father
last saw Petitioner. Ramirez indicated he had not seen Petitioner for two to three
years. (Id. at 23227-29.) The interview lasted ten minutes. (Id. at 23231.)
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e.
Live Line-Up
468. Deputy sheriff John Jones attended the live line-up on September 5,
1985. He met a witness, Minnie Kelsey, before the line-up. She was elderly,
confined to a wheelchair, and hard of hearing. (198 RT 23204-05.) Deputy
Jones wheeled Kelsey to the front of the line-up room. (Id. at 23206-09.) Jones
used his hands when talking to Kelsey, but he did not gesture to anyone. (Id. at
23210.)
5.
469. Raymundo Pantoya lived in El Paso and worked with Petitioner’s
Surrebuttal Evidence
father for the Santa Fe Railroad. He knew Petitioner. Pantoya last saw Petitioner
on a Saturday when Julian Ramirez’s granddaughter, Jennie, was to receive
communion. (202 RT 23405-07.) Jennie lived with Petitioner’s parents. (Id. at
23423-24.) Petitioner was at his father’s house when Pantoya came over to help
unclog a sink. He brought a tool with him and left it at the house. (Id. at 23409-
10, 23412-15.) Petitioner’s mother also was at home at that time. Pantoya did
not attend the communion service or stay for the party. (Id. at 23416-17.)
470. Maria Torres lived in El Paso. Her sister was married to Petitioner’s
brother, Ignacio. On May 25, 1985, she was at the Ramirez family home on
Corozal Street on the day Jennie received her First Communion. (202 RT 23441-
43.) Photographs were taken in the afternoon. Torres saw Petitioner, his father,
mother, and Jennie pose together for a photograph. She later saw the resulting
Polaroid photograph that was admitted into evidence at trial (Defense Trial
Ex. Az). (202 RT 23444-47, 23473.)
471. Torres saw Petitioner again the following Wednesday, May 29,
1985, at her sister’s house. (202 RT 23448-49.) Petitioner walked into the living
room and spoke with Torres for a few minutes. Petitioner went to his brother’s
bedroom and left the house a few minutes later. She remembered the date
because she had separated from her husband exactly one month earlier, on April
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29. (Id. at 23450-53, 23463-64.) When she last saw Petitioner, he was wearing a
dark T-shirt and jeans. (Id. at 23469.)
C.
Penalty Phase
472. At the penalty trial, neither the prosecution nor the defense presented
any evidence. (See 217 RT 24780-81.)
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VI.
INCORPORATION OF EXHIBITS AND REQUEST
FOR JUDICIAL NOTICE
473. Petitioner incorporates the accompanying exhibits into this petition
by reference as if set forth in full herein. Petitioner’s claims are based on the
petition, the declarations and documents appended thereto, and all records,
documents and pleadings filed in the California Supreme Court in his direct
appeal and habeas actions. Los Angeles County Superior Court No. S012944;
California Supreme Court Case Nos. S125755. Petitioner hereby requests this
Court to take judicial notice of the entire record from his direct appeal, and his
related state habeas action.
474. Petitioner requests that the Court consider all the exhibits filed with
this petition. As to those exhibits that have not been authenticated, which contain
hearsay information or which might otherwise be inadmissible at an evidentiary
hearing on this petition, Petitioner presents them as an offer of proof about what
evidence Petitioner could introduce after full investigation, discovery and access
to this Court’s subpoena power. In citing in this petition to specific exhibits or to
specific pages or paragraphs thereof, Petitioner does not contend or concede that
these specific references are the only evidence which could be presented at an
evidentiary hearing in support of his claims.
475. All articles, records, photographs, and other documents submitted as
exhibits are what they purport to be. Petitioner originally copied or printed some
documents on paper larger and smaller than 8-½ x 11 inches; except where noted,
Petitioner has reduced or enlarged those copies in size for convenience in filing.
476. Original copies of Petitioner’s exhibits are available at the Office of
the Federal Public Defender, 321 East 2nd Street, Los Angeles, California,
90012, and will be furnished to the Court or shown to opposing counsel upon
request. Other original copies of exhibits are on file with the California Supreme
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Court, pursuant to the rules directing habeas petitioners to do so, or will be filed
with the California Supreme Court when an exhaustion petition is filed in March,
2009.
VII.
CONSIDERATION OF THE PETITION UNDER THE ANTITERRORISM
AND EFFECTIVE DEATH PENALTY ACT
477. Ramirez filed his initial federal habeas petition after the effective
date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and
therefore the AEDPA governs his petition. Woodford v. Garceau, 538 U.S. 202,
123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003).
Under AEDPA, a habeas petition challenging a state court judgment
shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of
the claim – (1) resulted in a decision that was contrary to, or
involved an unreasonable application of clearly established Federal
law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). 28 U.S.C. § 2254(e)(1) states that “a determination of a
factual issue made by a State court shall be presumed to be correct” and that the
habeas petitioner “shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”
478. Ninth Circuit cases consistently hold that less deference to state
court decisions are warranted where, with regard to the majority of Petitioner’s
claims, the state court summarily denied the claim without an opinion or an
evidentiary hearing. First, because “there is no reasoned state court decision to
assess,” the federal court “must conduct an independent review of the record” to
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determine if the state court decision was objectively unreasonable. Reynoso v.
Giurbino, 462 F.3d 1099, 1119 (9th Cir. 2006); Brown v. Palmateer, 379 F.3d
1089, 1092 (9th Cir. 2004) (“Because the Oregon courts have provided no ratio
decidendi to review, or to which we can give deference, we employ the
‘objectively reasonable’ test. In this situation, federal habeas courts accord the
state court decisions less deference than in standard habeas cases”); Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (similar). A leading treatise
describes this Ninth Circuit rule as “an intermediate approach” in which the court
“review[s] the record ‘independently’ in a manner that is somewhat more
deferential to the state courts than the pre-AEDPA standard of de novo review.”
Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
479. Second, because the state courts made no findings of fact or held a
hearing on the claims, there are no factual determinations for this Court to defer
to, or for § 2254(e)(1)’s presumption of correctness to apply to. Taylor v.
Maddox, 366 F.3d 992, 1014 (9th Cir. 2004) (“It is well-established that when the
state courts do not make findings at all, no presumption of correctness attaches,
and we must make our own findings.”) (citing Wiggins v. Smith, 539 U.S. 510,
123 S. Ct. 2527, 2540, 156 L. Ed. 2d 471 (2003)); Nunes v. Mueller, 350 F.3d
1045, 1055 (9th Cir. 2003) (“with the state court having refused Nunes an
evidentiary hearing, we need not of course defer to the state court’s factual
findings – if that is indeed how those stated findings should be characterized –
when they were made without such a hearing”); Killian v. Poole, 282 F.3d 1204,
1208 (9th Cir. 2002) (similar).
480. Further, in Holland v. Jackson, 524 U.S. 649, 653, 124 S. Ct. 2736,
159 L. Ed. 2d 683 (2004) (per curiam), the Supreme Court recognized that
“[w]here new evidence is admitted [in the federal habeas court], some Courts of
Appeals have conducted de novo review [rather than apply the § 2254(d)(1) and
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(2) standards] on the theory that there is no relevant state-court determination to
which one could defer.” See, e.g., Monroe v. Angelone, 323 F.3d 286, 297-99 &
n.19 (4th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003); Williams
v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001); but see Matheny v. Anderson,
F.3d 740, 747 (7th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 946-47, 951-
(5th Cir. 2001); see also LeCroy v. Secretary, Florida Dep’t of Corrections,
F.3d 1237, 1262-63 & n.30 (11th Cir. 2005) (collecting cases). This rule makes
sense: “the new, relevant evidence was never before the state court so it never
considered the impact of the evidence when denying relief, and there is arguably
nothing to defer to.” LeCroy, 421 F.3d at 1263 n.30.
481. Petitioner is unaware of published Ninth Circuit opinions discussing
this line of cases on the issue of de novo review, but in Killian v. Poole, 282 F.3d
at 1207, the court concluded that “[f]or claims for which no adjudication on the
merits in state court was possible . . . AEDPA’s standard of review does not
apply.” The court explained:
AEPDA deference does not apply to Killian’s perjury claim in this
case because the state courts could not have made a proper
determination on the merits. Evidence of the perjury, after all, was
adduced only at the hearing before the magistrate judge.
482. The terms “contrary to” and “unreasonable application” have
independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 152 L.
Ed. 2d 914 (2002); Sarausad v. Porter, 479 F.3d 671 (9th Cir. 2007). A state
court decision is “contrary to” clearly established federal law if it arrives at a
conclusion opposite to that of the Supreme Court on a question of law, or decides
the case differently than the Supreme Court on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000); accord Carey v. Musladin, 549 U.S. 70, 127 S. Ct.
649, 653, 166 L. Ed. 2d 482 (2006). To be an “unreasonable application of”
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clearly established federal law, the state court decision must have identified the
correct legal rule but unreasonably applied it to the facts at hand. Id. at 406.
483. “Supreme Court holdings at the time of the state court’s last
reasoned decision are the source of clearly established Federal law for the
purposes of AEDPA,” citing Williams, 529 U.S. at 412; Abdul-Kabir v.
Quarterman, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007) (granting habeas relief
under AEDPA because state court decision ignored “fundamental principles
established by [the Supreme Court’s] most relevant precedents”); Barker v.
Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005); accord Clark v. Murphy, 331 F.3d
in determining what is clearly established federal law. See Duhaime v.
Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999); Arnold v. Runnels, 421 F.3d
859, 865 n.6 (9th Cir. 2005). As the Supreme Court has stated, “in the context of
federal habeas” “[d]eference does not imply abandonment or abdication of
judicial review.” Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 340, 123 S.
Ct. 1029, 154 L. Ed. 2d 931 (2003). To that end, while the standard as articulated
in section 2254 is demanding, it is “not insatiable; as we said the last time this
case was here, “‘[d]eference does not by definition preclude relief.’” Miller-El v.
Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Miller-El
II) (granting habeas relief under AEDPA), citing Miller-El I, 537 U.S. at 340; see
Panetti v. Quarterman, 127 S. Ct. 2842, 2858, 168 L. Ed. 2d 662 (2007)
(“AEDPA does not “‘require state and federal courts to wait for some nearly
identical factual pattern before a legal rule must be applied.’”), citing Carey,
S. Ct. at 656 (Kennedy, J., concurring in judgment).
484. When state courts fail to render a reasoned decision on the merits of
a claim, the AEDPA rules are fundamentally altered. Ninth Circuit cases
consistently hold that less deference to state court decisions is warranted when
the state court summarily denies a claim without an opinion or an evidentiary
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hearing. First, because “there is no reasoned state court decision to assess,” the
federal habeas court “must conduct an independent review of the record” to
determine if the state court decision was objectively unreasonable. Reynoso v.
Giurbino, 462 F.3d 1099, 1119 (9th Cir. 2006); Brown v. Palmateer, 379 F.3d
1089, 1092-93 (9th Cir. 2004) (“Because the Oregon courts have provided no
ratio decidendi to review, or to which we can give deference, we employ the
‘objectively reasonable’ test. In this situation, federal habeas courts accord the
state court decisions less deference than in standard habeas cases.”); Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (similar). A leading treatise
describes this Ninth Circuit rule as “an intermediate approach” in which the court
“review[s] the record ‘independently’ in a manner that is somewhat more
deferential to the state courts than the pre-AEDPA standard of de novo review.”
Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
485. Petitioner makes the following allegations that apply to each and
every claim and allegation in this Petition.
486. The facts in support of each claim are based on the allegations in the
Petition, the declarations and other documents contained in the exhibits; the
entire record of all the proceedings involving petitioner in the trial courts of Los
Angeles County; the documents, exhibits, and pleadings in People v. Richard
Munoz Ramirez, Case No. S012944, In Re Ramirez, Case No. S125755, any
judicially noticed facts, and all other documents and facts that Petitioner may
develop.
487. Legal authorities in support of each claim are identified within that
claim. Each and every claim is based both on the state and the federal
constitutions.
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488. Petitioner does not waive any applicable rights or privileges by the
filing of this Petition and the exhibits, and in particular, does not waive either the
attorney-client privilege or the work-product privilege. See Bittaker v. Woodford,
331 F.3d 715 (9th Cir. 2003). Petitioner hereby requests that any waiver of a
privilege occur only after a hearing with sufficient notice and the right to be
heard on whether a waiver has occurred and the scope of any such waiver.
Petitioner also requests “use immunity” for each and every disclosure he has
made and may make in support of this Petition.
489. It should be noted that, despite counsel’s best efforts and exercise of
due diligence, the claims presented herein are unavoidably incomplete, for all the
reasons alleged herein, but also due to two external factors beyond Petitioner’s
and counsel’s control that inherently preclude the full investigation and
development of potentially meritorious habeas corpus claims that entitle
Petitioner to habeas corpus relief: 1) Petitioner’s serious mental illness and
inability to rationally understand and assist in these proceedings (viz., the
investigation and presentation of the petition for writ of habeas corpus); and 2)
the impossibility of being able to thoroughly investigate and develop the
underlying facts in support of potentially meritorious issues because Petitioner
was allowed to represent himself at trial, the crucial and constitutionally-relevant
facts underlying his claims are exclusively within his knowledge, and he is
currently too mentally ill to recall, relate, articulate, understand, assess, explain or
otherwise impart to counsel (or to the Court on his own behalf) the critical and
indispensable facts that lie at the heart of those claims.
490. Until Petitioner can be restored to competence, generally, and
specifically with respect to the events that led to the capital charges and the
subsequent legal proceedings that are the subject of this Petition for relief, these
proceedings should be suspended. Failing to do so would violate his state and
federal constitutional rights to pursue and prosecute his habeas corpus rights.
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491. Nevertheless, counsel for Petitioner presents the claims for relief to
the extent possible notwithstanding the limitations that inhere in the peculiar facts
of Petitioner’s case. There are undoubtedly additional relevant, highly probative
facts in support of each claim presented here, as well as other potentially
meritorious claims which are currently unknowable due to Petitioner’s mental
illness. Until Petitioner is restored to a level of competence where he can
rationally aid and assist in the investigation, development and presentation of the
claims presented here, and any other potentially meritorious claims which are
now indeterminable, this Court cannot justly or fairly deny or otherwise
adjudicate Petitioner’s claims without violating his federal constitutional rights.
IX.
CLAIMS FOR RELIEF
CLAIM 1:
PETITIONER WAS MENTALLY INCOMPETENT THROUGHOUT
THE LEGAL PROCEEDINGS IN STATE COURT AND IS
CURRENTLY MENTALLY INCOMPETENT
492. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal and in Section VII of the June
petition for writ of habeas corpus, although it includes additional factual
allegations. Petitioner will present the claim with the additional factual
allegations to the California Supreme Court in an exhaustion petition he will file
no later than March 17, 2009.
493. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
494. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
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incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
495. Petitioner’s conviction and sentence are illegal, unconstitutional, and
void under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because
he was mentally incompetent to stand trial or to waive rights, to understand the
proceeding in state court or to aid and assist in his defense. He is currently
mentally incompetent to assist federal habeas counsel.
496. Petitioner’s conviction and sentence of death were rendered in
violation of his rights to due process and equal protection, a fair trial, present a
defense, compulsory process, confrontation, disclosure of all material,
exculpatory and/or impeaching evidence, a reliable, rational, and accurate
determination of guilt, death-eligibility and death-worthiness, free of any
unconstitutionally unacceptable risk that such determinations were the product of
bias, prejudice, arbitrariness or caprice; effective assistance of counsel and access
to competent mental health experts who are qualified to assist in the
investigation, preparation and presentation of evidence relevant to significant
mental state issues under the above-referenced provisions of the Constitution.
497. The violations of these rights, individually and cumulatively,
prejudicially affected and distorted the investigation, discovery, presentation, and
consideration of evidence as well as each and every factual and legal
determination made by trial counsel, the state courts and the jurors at all stages of
the proceedings from the time of Petitioner’s arrest through and including the
rendering of the judgment of death.
498. A person cannot be tried and sentenced to death while mentally
incompetent. Pate v. Robinson, 383 U.S. 375, 375 86 S. Ct. 836, 15 L. Ed. 2d
815 (1966). The test for incompetency to stand trial is whether as a result of
mental disorder or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist counsel in the
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conduct of a defense in a rational manner. The defendant must have “sufficient
present ability to consult with is lawyer with a reasonable degree of
understanding” and must have a “rational as well as a factual understanding of
the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.
Ct. 788, 4 L. Ed. 2d 824 (1960); accord Drope v. Missouri, 420 U.S. 162, 95 S.
Ct. 896, 43 L. Ed. 2d 103 (1975) (“[A] person whose mental condition is such
that he lacks the capacity to understand the nature and object of the proceedings
against him to consult with counsel, and to assist in preparing his defense may
not be subjected to trial.”). The trial of an accused who is unable to assist counsel
rationally or understand the nature of the proceedings against him also violates
his substantive due process rights to be tried while physically and mentally
present. James v. Singletary, 957 F.2d 1562 (11th Cir. 1992).
499. There is a basic presumption against the waiver of constitutional
rights. Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966).
To properly waive a constitutional right a defendant must do so voluntarily,
knowingly and intelligently, with a sufficient understanding of the relevant
circumstances and the likely consequences. See Brady v. United States, 397 U.S.
742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970): Johnson v. Zerbst, 304 U.S. 458,
S. Ct. 1019, 82 L. Ed. 1461 (1938). To meet this standard when waiving the right
of presenting mitigating evidence to a penalty phase jury, an individual must
understand what constitutes mitigating evidence and whether any such evidence
exists in his case. Against this backdrop, Petitioner’s decision to waive
presentation of mitigating evidence at the penalty phase of his trial did not
constitute a valid waiver.
500. Counsel’s performance was constitutionally deficient. Trial counsel
failed to adequately and thoroughly investigate mitigating evidence. Evidence of
childhood abuse, neglect, injury and trauma, institutional failure, polysubstance
use, and long-standing mental illness and impairments was available to trial
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counsel. Counsel decided to go forward at trial without fully investigating and
understanding the impact of the mitigation evidence and Petitioner’s impaired
mental state, which was material and relevant at both phase of Petitioner’s trial.
Thus, almost the only evidence the jury heard was extremely violent and bizarre
criminal acts.
501. An effective investigation by trial counsel developing the evidence
even in their possession would have uncovered significant mitigating evidence
regarding childhood abuse, neglect, injury and trauma, institutional failure,
polysubstance use, multiple mental impairments, including organic brain damage
and psychosis.
502. Petitioner’s purported waiver of a penalty-phase defense was based
on a lack of competent, conflict-free advice from counsel, of rational
understanding of the proceedings and consequences, and of the ability to
communicate rationally with counsel and to assist in his own defense. Any
purported waiver was therefore not a knowing and intelligent waiver under Brady
and Zerbst. Petitioner cannot be held to have waived his fundamental right to
present penalty phase evidence as he was mentally incompetent.
503. For the same reasons, Petitioner was incompetent to waive any
defenses or any of his constitutional or statutory rights, including his right to
make knowing, intelligent, and voluntary waivers of constitutional rights; to a
speedy trial, conflict-free and legally competent counsel; his right not to
incriminate himself; his right to be free from unlawful searches and seizures; his
right to rationally assist counsel in the preparation of his defense; his right to be
present at trial proceedings; his right to cross-examine witnesses brought against
him; his right to present a defense at the guilt and penalty phases of his trial; his
right to compel witnesses to testify on his behalf; his right to effective assistance
of counsel; and his right to present mitigation evidence. No waiver of
constitutional or statutory rights that may appear on the record was in fact
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knowing, voluntary, or competent, and the trial court inadequately investigated
the existence of any alleged knowledge, voluntariness, or competence. Any one
or combination of these rights that he may have been deemed to have abandoned
prejudicially affected both the guilt and penalty determinations in this case,
including the investigation, discovery, presentation and consideration of evidence
as well as every factual and legal determination made by trial counsel, the
municipal and superior courts, and the jurors.
504. To the extent that the trial court was not aware that Petitioner was
incompetent to stand trial,27 trial counsel were constitutionally ineffective for
failing to fully and adequately investigate Petitioner’s social history and
background; failing to have Petitioner adequately evaluated by competent mental
health professionals; and failing to properly present the results of such
investigation and evaluation to the court in a timely manner in order to
demonstrate that he was incompetent throughout the proceedings below and was
incompetent to stand trial and to waive his rights.
505. Petitioner argues below, see Claim 2, post, that, given the
information available to it at the time, the trial court erred in failing to initiate
competency proceedings to determine Petioner’s competence to stand trial and to
waive rights. In the alternative, however, to the extent that the evidence before
the trial court was insufficient to raise a good faith doubt with respect to
Petitioner’s competency, Petitioner is still entitled to relief if he can now show he
was in fact incompetent. Steinsvik v. Vanzant, 640 F.2d 949, 954 (9th Cir. 1981).
506. Moreover, trial counsel’s conflicts of interest and constitutionally
deficient performance precluded a thorough and effective mental health
The trial court raised concerns about Petitioner’s mental competency.
(See 22 RT 1333, 1334; 28 RT 2001.) Petitioner asserts in this Petition that the
trial court erred in failing to suspend criminal proceedings and in failing to hold a
hearing to determine Petitioner’s competence to stand trial and to waive rights.
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evaluation of Petitioner, motions, and presentation of evidence on his behalf
regarding mental state evidence. See infra.
507. To the extent that the facts set forth below could not have been
uncovered by trial counsel, those facts constitute newly discovered evidence
establishing that Petitioner was incompetent at the time of the proceedings below,
and cast doubt on the reliability and non-arbitrariness of the proceedings,
judgment of conviction and sentence. As such, Petitioner’s rights to due process
and a fair trial have been violated and collateral relief is appropriate.
A.
Petitioner Was Mentally Incompetent Throughout the Trial
Proceedings
508. Petitioner was rendered incompetent by his long-term mental
impairments, including but not limited to history of temporal lobe epilepsy, a
organic thought disorder of psychotic proportion, a psychotic disorder, a severe
mood disorder, organic brain damage, severe cognitive and behavioral
impairments, a long history of deprivation, injury, abuse, and neglect,
posttraumatic stress disorder, neuro-, neurocognitive-, and neuropsychiatric-
dysfunction, long history of significant drug use and addiction, and learning and
developmental deficits. These multiple mental impairments, alone or in
combination, severely impaired Petitioner’s ability to, among other things,
reason, process and solve problems, accurately comprehend verbal and written
information, exercise rational judgment, consider and weigh consequences,
effectively communicate, work with new information or situations, and generate
possible solutions to problems. Petitioner’s mental functioning detrimentally
affected his ability to defend himself, rationally understand the proceedings
against him or rationally aid and assist counsel from the time of arrest through the
trial proceedings, in that they effectively rendered him incapable of: (a) making
knowing and intelligent waivers of his constitutional and statutory rights; (b)
understanding the true nature of the charges brought against him; (c) assisting
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counsel in the preparation of his defense; (d) understanding the nature and object
of the legal proceedings; (e) understanding the nature and impact of the testimony
and evidence brought against him; (f) exercising his constitutional and statutory
rights, including his right to effective and conflict-free assistance of counsel, his
right to cross-examine witnesses, and right to an affirmative defense and reliable
penalty determination; and (g) understanding his waiver of the right to a reliable
determination of penalty.
509. Petitioner exhibited symptoms consistent with multiple impairments,
including, but not limited to, cognitive, psychiatric, psychological, neurological,
neuropsychological, and neuropsychiatric deficits and impairments; posttraumatic
stress disorder, bipolar and/or other mood disorders, and polysubstance addiction.
510. Petitioner incorporates by reference as though fully set forth in
Exhibits 31, 32, 38, 41, 42, 43, 72, 100, 99, 98, 96 which are the Declarations of
Dietrich Blumer, M.D., dated 05/10/2004; Marilyn Cornell, dated 06/16/2004;
Robert Schneider, M.D., dated 02/23/2004; William Vicary, M.D., dated
03/15/2004; Dale Watson, Ph.D., dated 04/24/2004; Jane Wells, J.D., Ph.D.,
dated 05/19/2004; and Anne Evans, Ph.D., dated 04/18/1995, as well as the
reports of George W. Woods, M.D., dated 04/19/1995; Elise Taylor, M.F.C.C.,
dated 03/06/1995; Myla H. Young, Ph.D, dated 03/13/1995; and the letter from
Victor Henderson, M.D., to Daniel Hernandez, dated 05/29/1987.
511. Beginning at age ten, close in time after he sustained a concussion
playing football, Petitioner began to suffer epileptic seizures. He suffered at least
three convulsive epileptic seizures at school, which prompted school officials to
call an ambulance to have Petitioner taken to the hospital, and numerous other
epileptic seizures outside of school. Petitioner was twice hospitalized at Hospital
Hotel Dieu following seizures: once in 1970, at age 10, and once in 1972, at age
12. In 1972, doctors diagnosed him with epilepsy and prescribed Phenobarbital
to control the seizures. EEGs administered at the time revealed abnormal results,
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which confirmed a diagnosis of epilepsy or seizure disorder. Petitioner took the
medication, which can have significant adverse effects, for approximately a year
and a half. Petitioner suffered at least twelve serious convulsive epileptic
seizures and continued to experience such seizures until he was seventeen years
old, and, from the age of ten on, he experienced partial or absence epileptic
seizures – characterized by brief periods of staring into space, unaware of his
surroundings – multiple times per day. (Ex. 32, M. Cornell Dec., ¶ 51; Ex. 103,
M. Ramirez Dec., ¶ 19; Ex. 104, Robert Ramirez Dec., ¶ 10; Ex. 105, Rosario
Ramirez Dec., ¶ 10-11; Ex. 102, I. Ramirez Dec., ¶ 21; Ex. 125, E. Milam Dec.,
Ex.121, Declaration of Elizabeth Duenas, dated 10/27/2008, ¶ 3; Ex. 50,
Schneider M.D.; Ex. 57, Hospital Hotel Dieu Records re Richard Ramirez;
Ex. 50, Articles on Epilepsy and Related Psychiatric Disorders; Ex. 31, D.
Blumer Dec., ¶ 8.)
512. An organic brain disorder such as Petitioner’s seizure disorder can
have, and in Petitioner’s case did have, profound neuropsychiatric effects. As a
result of the epilepsy/seizure disorder he experienced in adolescence, he
developed a severe thought disorder of psychotic proportions. (Ex. 31, D.
Blumer Dec., ¶¶ 9-10, 14-15.)
513. After the seizures, Petitioner’s behavior and personality changed
significantly. He became an insomniac and experienced anger. He became
socially withdrawn. He began leaving the house late at night, sometimes staying
out all night without telling anyone where he was or what he was doing. His
performance at school declined, and he became truant and eventually he dropped
out. He began drinking Coke and eating cookies and candy obsessively. He
suffered headaches and paranoid fears. He began to get in trouble with the law
and was known in the neighborhood for stealing. And he began to show
psychiatric and psychotic symptoms consistent with an organic brain disorder and
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temporal lobe epilepsy. (Ex. 31, D. Blumer Dec., ¶ 8; Ex. 32, M. Cornell Dec., ¶
517. Also around the age of 19, Petitioner became obsessed with Satan
and Satanism. He had developed an interest in Satanism and the occult as early
as the ninth grade. But in late adolescence and in his early twenties, he
experienced severe delusions, hallucinations, paranoia and disorganized,
psychotic thoughts concerning Satan as an actual presence in his life, with whom
he believed he had a significant personal relationship. After he moved to
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California, he called his mother and told her that he had met people involved with
Satanism who frightened him and that he had seen some scary things – including
a lamp moving by itself. At first his experiences frightened him, but over time
his psychosis and thought disorder developed and deepened. (Ex. 125, E. Milam
Dec., ¶ 12; Ex. 103, M. Ramirez Dec., ¶ 29; Ex. 124, C. Melendez Dec., ¶ 7; Ex.
122, Declaration of Gilbert Flores, dated 11/24/2008, ¶¶ 4-5.)
518. Shortly after Petitioner’s arrest, in September 1985, William Vicary,
M.D., a psychiatrist, briefly examined Petitioner at the request of his counsel at
the time the Los Angeles Public Defender.28 Dr. Vicary found that
Petitioner was psychotic, i.e., he suffered mental impairment that
interfered with his ordinary functioning. He appeared to be
irrational and self-destructive. [He] met the criteria for mental
incompetence, . . . in that he did not have the ability to rationally
assist counsel in his defense.
(Ex. 41, W. Vicary, M.D., Dec., ¶ 5.)
519. Only a few months later, on January 19 and 20, 1986, Dietrich
Blumer, M.D., neuropsychiatrist, examined Petitioner at trial counsel’s request
and found he suffered from temporal lobe disorder. “[T]here is evidence of a
disorder of psychotic proportion . . . .” (Ex. 31, D. Blumer, M.D., Dec., ¶ 10.)
Dr. Blumer opined that Petitioner was mentally incompetent and could not assist
counsel in his own defense. (Id., ¶ 8.)
520. Petitioner’s psychosis prevented him from thinking logically or
behaving in a rational manner. His judgment was impaired; he could not function
rationally. As Dr. Blumer stated:
Trial counsel provided ineffective assistance of counsel for failing to
obtain, review, follow up on, and fairly present Dr. Vicary’s findings. See infra.
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Petitioner suffers from a persistent thought disorder of psychotic
degree. His chief delusion consists of the conviction of having an
intimate relationship with Satan.
....
The neurological and psychiatric symptoms of epilepsy are
complicated; they require careful treatment and periodic monitoring
over a long period of time. Even when the patient no longer
experiences complex partial seizures, there is concern that additional
symptoms may appear, especially where, as here, the patient has
used illicit drugs and no longer takes prescribed medication. It is not
uncommon to see patients with temporal lobe epilepsy develop
psychotic disorders. Treatment for interictal (the phase free of
seizures) psychosis requires effective use of drugs.
(Ex. 31, D. Blumer, M.D., Dec., ¶¶ 9, 14; see Blumer, et al., Treatment of
Interictal Psychoses, J. Clin. Psychiatry 61:2 (Feb. 2000), attached to Exhibit 31.)
521. In May 1987, at the request of trial counsel, victor Henderson, M.D.,
a neurologist examined Petitioner and concluded that he had suffered brain
damage. He informed Daniel Hernandez, Petitioner’s trial counsel, of his
findings. (Ex. 96, Henderson letter.)
522. The opinions of Drs. Vicary, Blumer, and Henderson were known to
trial counsel (the Hernandezes).
523. In addition, counsel were aware of the bizarre nature of the crimes
that Petitioner was accused of committing; his bizarre behavior both in the
courtroom and in his jail cell. On September 2, 1985, for example, a jail deputy
observed Petitioner in his cell writing the number “666” and drawing a star in a
circle on the cell floor with blood from his right palm. (176 RT 20599-600.)
524. On numerous occasions, Petitioner engaged in bizarre behavior in
court. For instance, Petitioner loudly invoked the words “Hail, Satan” in the
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courtroom and displayed a bizarre pentagram on the palm of his hand at the
October 24, 1985 hearing held with respect to retention of counsel. A sheriff’s
investigator testified at trial that, at that hearing, he observed Petitioner raise his
hands and say aloud “Hail Satan.” The investigator saw an inverted star with a
circle around it and “666” written on the palm of Petitioner’s hand. (176 RT
20603-04, 20607.)
525. Trial counsel were fully aware that Petitioner repeatedly refused to
cooperate with them in his defense and repeatedly behaved in a strange and
bizarre manner that, by any measure, further raised doubts about his mental
competence. Petitioner continued to behave irrationally during trial: on January
30, 1989, he allegedly waived his right to wear an unobtrusive leg brace and
agreed to wear shackles before the jury (see Claim 22, infra); on February 6,
1989, he refused to remove his sunglasses at the court’s direction (see Claim 24,
infra); on May 8, 1989, he was unwilling to cooperate with counsel in order to
present a proper defense at the guilt trial (178 RT 20794-75); on September 20,
1989, he waived his presence at the guilt verdicts (216 RT 24710-11); on
September 27, 1989, he waived his right to present any mitigation evidence at the
penalty trial (217 RT 24774-76); and on November 7, 1989, he made an irrational
statement at the sentencing hearing.
526. And counsel were aware that prior counsel Joseph Gallegos had
declared his doubt as to Petitioner’s competence.
527. All of this information put counsel on notice that Petitioner was not
competent to stand trial or to waive rights. They provided constitutionally
deficient performance in failing to present the opinions of those expert to the trial
court in support of a motion to determine Petitioner’s competence to stand trial
and to waive rights.
528. Trial counsel also provided constitutionally deficient performance in
failing to investigate, develop, and present evidence of Petitioner’s incompetence
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to stand trial and waive rights that was developed and presented by counsel
representing Petitioner in subsequent legal proceedings – criminal trial
proceedings in the San Francisco County Superior Court and post-conviction
proceedings arising from the Los Angeles case. Evidence such as that obtained
by lawyers representing Petitioner in those proceedings could and should have
been presented in Petitioner’s proceeding in the Los Angeles County Superior
Court.
529. After Petitioner was convicted and sentenced to death in Los
Angeles, he was transferred to San Francisco for trial on additional criminal
charges arising from an incident that occurred there. San Francisco County
Superior Court, Case No. 140188. He was represented by the Office of the
Public Defender for the City and County of San Francisco (“SFPD”). His
counsel in the San Francisco case conducted the social history and mental health
investigation that his counsel in the Los Angeles case failed to undertake. The
social history and mental health investigation confirmed and expanded on the
various opinions of Drs. Vicary, Blumer, and Henderson that Petitioner was
psychotic, suffered an organic-based thought disorder of psychotic proportion,
had suffered brain damage, and was not competent to stand trial or to waive his
rights:
530. Dr. George W. Woods, M.D., retained by the SFPD, evaluated
Petitioner. He diagnosed Petitioner with a severe mental disorder: a Psychotic
Disorder due to Temporal Lobe Syndrome, which includes delusions that are both
paranoid and erotomanic. Dr. Woods also found that Petitioner exhibited
significant compulsive and obsessive behavior. And Dr. Woods concluded that
Petitioner suffers significant cognitive deficits of a kind typically associated with
prefrontal, frontal, and temporal areas of the brain. (Ex. 100, Woods Report, at
1.) He identified a number of symptoms resulting from Petitioner’s disorder that
impaired his ability to rationally assist counsel in his defense, including paranoia,
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impaired concentration, poor attention span, delusional thinking, forced thinking,
severe mood swings, inability to analyze and process relevant data, altered
sexual interest, limited insight and judgment, and profound depression. As a
result of this constellation of impairments, Dr. Woods opined that Petitioner was
incompetent to stand trial and to waive rights and that Petitioner’s incompetence
dated back at least to the time of his first contact with the criminal justice system
in 1985. (Id. at 4, 8.)
531. Dr. Wood’s conclusions are supported by the report of Myla H.
Young, Ph.D., who was retained by the SFPD and who administered a series of
neuropsychological and personality tests to Petitioner. Her diagnostic
impressions included: Axis I: Personality Change Due to Epilepsy, Combined
Type (Disinhibited, Aggressive, Paranoid Features) and Mood Disorder Due to
Epilepsy, with Depressive Features; Axis III: Epilepsy, partial, with Impairment
of Consciousness (Temporal Lobe). (Ex. 98, M. Young Report, at 7.) The
neuropsychological testing that she administered revealed particular impairments
in tasks of memory and higher cognitive functioning – a pattern similar to that of
individuals who have a known history of cognitive impairment secondary to
seizure disorder. (Id. at 3-4.) Petitioner’s impairments in those areas suggest that
he experiences brain impairment that affects his abilities for judgment, planning
ahead, anticipating consequences of his behavior, and modulating his impulses.
The personality testing that she administered revealed that Petitioner suffers
severe, painful depression, pervasive anger, and unmodulated, impulsive
emotionality and indicated that he tends to become lost in an internal world that is
perceptually inaccurate; at times that is grossly distorted; and at times reaches
delusional proportions. (Id. at 7.) Dr. Woods, in his report, reviews in some
detail examples of how Petitioner’s impairments undermined his ability to
rationally understand the proceeding against him and to rationally assist counsel
in his defense. (Id. at pp. 4-7.)
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532. The SFPD also retained Anne Evans, Ph.D., who evaluated
Petitioner and administered neuropsychological and personality tests. Dr. Evans
concluded, consistent with the findings of Drs. Vicary, Blumer, Henderson,
Woods, and Young, that Petitioner suffers from a serious mental disorder of long
standing. (Ex.72, A. Evans Dec., at pp. 4-5.) She believed it likely that his
impairments related to his temporal lobe system, noting that the constellation of
symptoms and behaviors are consistent with an organically based syndrome such
as seizure disorder. (Id. at pp. 32-33.) Dr. Evans opined that he suffers paranoid
delusions, that his thinking is severely psychotic, disturbed, disorganized, and
fragmented; his perceptions are markedly inaccurate; he is seriously out of touch
with reality, distorting the meaning of what is going on around him; and he is
unable to modulate his behavior or control his responses (Id. at pp. 7, 10, 31.)
Dr. Evans further opined that Petitioner suffers intense mood swings and long-
standing depression. (Id. at pp. 8.) She concluded that he was not competent to
assist counsel in a rational manner and not competent to stand trial or waive
rights and that his incompetence dated back at least to his first contact with the
criminal justice system in 1985. (Id. at pp. 11, 12, 14, 31, 34.) Dr. Evans, in her
declaration, reviews in detail examples of how Petitioner’s impairments
undermined his ability to rationally understand the proceedings against him and
to rationally assist counsel in his defense. (Id. at pp. 11-18, 19-31.)
533. Because Petitioner was incompetent to stand trial, based upon this
social history and mental health evidence developed by lawyers at the SFPD, his
criminal trial proceedings in the San Francisco County Superior Court were
stayed indefinitely in 1995 and were never brought to trial. For the same reasons,
he was incompetent to stand trial and waive rights in the Los Angeles
proceedings.
534. State post-conviction counsel in the instant proceedings retained two
additional mental health experts who evaluated Petitioner and opine that he was
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not competent to stand trial or to waive rights in the Los Angeles trial
proceedings: Dale Watson, Ph.D., and Jane Wells, J.D., Ph.D. Their opinions,
again, are consistent with, and corroborate and expand upon, the previous
opinions of Drs. Vicary, Blumer, Henderson, Woods, Young, and Evans, and
provide additional support that Petitioner was incompetent to stand trial and
waive rights in the Los Angeles proceedings. In addition, Petitioner’s trial
counsel performed deficiently in failing to investigate, develop, and present this
mental health evidence to the trial court.
535. Dale Watson, Ph.D., is a neuropsychologist who examined Petitioner
and administered neuropsychological testing at the request of state post-
conviction counsel and determined that Petitioner is severely impaired. Dr.
Watson’s testing shows that Petitioner has impaired executive functions –
abilities associated with supervisory or control functions including the
monitoring, initiation, inhibition, and shifting of behaviors and cognitive sets;
memory impairment; and impairment in the auditory processing centers of the
brain. Such impairments are typically associated with impairment in frontal and
temporal lobes. As a result of these impairments, Petitioner is unable to shift his
thinking or behaviors to, solve new situation, or make decisions and exercise
affects his behavior, personality, and functioning. (Ex. 42, D. Watson, Ph.D.,
Dec., ¶¶ 11-21.) Dr. Watson concluded that Petitioner has temporal lobe disorder
that was likely etiologically related to the psychotic disorder that other mental
health experts had diagnosed. (Id., at ¶¶ 19-20.) According to Dr. Watson’s
findings, Petitioner suffers from a neurocognitive brain-related disorder and is
psychotic – the same findings made by Dr. Blumer twenty-two years ago.
Petitioner remains severely impaired. Dr. Watson also concluded that Petitioner
appears to suffer from frontal lobe dysfunction with neurocognitive deficits and
that he suffers from depression, a mood disorder, and memory impairment. (Id.
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at ¶ 21-22.) Dr. Watson opines that Petitioner was not competent to stand trial or
waive rights in his state-court proceedings. (Id. at 24, 26.)
536. Jane Wells, J.D., Ph.D., evaluated Petitioner at the request of state
post-conviction counsel. She concluded that he suffers a myriad of mental
problems, including a psychotic disorder somewhere on the schizophrenic or
psychotic end of the spectrum. (Ex. 43, J. Wells, Dec., ¶ 49.) She observed him
to be significant paranoid, delusional, and thought-disordered. (Id.) She also
opined that he suffers a mood disorder with transient manic and depressive states
as well as agitation and hypersexuality. (Id.) And she concluded that he suffered
organic brain damage. (Id., at ¶ 52.) Based on her findings, Dr. Wells concluded
that Petitioner was incompetent to stand trial and to waive rights in his state-court
proceedings. (Id. at ¶ 51.)
537. The expert opinions described above establish that Petitioner was
incompetent to stand trial and to waive rights throughout the proceedings in the
Los Angeles County Superior Court. In addition, attorneys Manuel J. Barraza,
who represented Petitioner briefly following his arrest, Michael N. Burt and
Dorothy Bischoff, who represented Petitioner in his criminal trial proceedings in
the San Francisco County Superior Court, Geraldine Russell, who represented
Petitioner in his state post-conviction proceedings, and Sean J. Bolser, one of the
attorneys assigned to represent Petitioner in the instant proceedings, have, during
the course of their various representations, come to believe that Petitioner is
mentally incompetent, that he lacks a rational understanding of the proceedings,
and that he lacks the ability to communicate rationally with counsel and assist in
his own defense. Petitioner’s trial counsel provided constitutionally deficient
performance in failing to develop and present such evidence to the trial court.
538. Petitioner was incapable of understanding what he was entitled to
before, during, and after his trial. Petitioner did not understand how the court
functioned or how his attorneys should be functioning. He could not understand
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that he had a right to a strong and vigorous defense in a trial where his life was at
stake. Petitioner’s counsel failed to protect his interests throughout their
representation of him, a four-year period. In so failing, counsel prejudiced
Petitioner’s rights, including his purported waivers of his right to wear an
unobtrusive leg brace; his refusal to remove his sunglasses at the court’s
direction; his inability to present a proper defense at trial; his waiver of his
presence at the guilt verdicts; and his purported waiver of his right to present any
mitigation evidence at the penalty trial. Petitioner lacked the mental competency
and knowledge to remedy the repeated and glaring abuses in his case.
539. Petitioner was also unable to aid and assist counsel and mental
health professionals in their evaluations of his own mental functioning, including
his mental functioning at the time of the charged offenses, because he had severe
behavioral and cognitive impairments and was not able to provide his complete
sociomedical history. Petitioner could not provide all pertinent data regarding his
family history; neurological and medical history; academic history; childhood
physical, psychological, emotional trauma and abuse; history of head injuries;
history of emotional and physical neglect; history of institutional failure, and
other information critical to a competent mental health assessment. The neglect
and abuse that surrounded Petitioner – in his home, neighborhoods, schools, and
juvenile custody – was so ingrained that he was unable to understand, assess or
report on its severity and impact on him. For all these reasons, Petitioner was
unable to discuss with counsel, or the mental health professionals retained by
counsel, these very important factors and events that shaped his life. Moreover,
he could not aid in the discovery of mitigation evidence as a result of his
incompetence.
540. Petitioner’s intellectual and mental deficits resulted in his being
unaware of any rights he might have otherwise been deemed to have abandoned.
He was, and is, incompetent to waive defenses or exercise and/or waive any
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constitutional or statutory rights, including his right to counsel, or not incriminate
himself, to be present at trial, to cross-examine and confront witnesses against
him, and to present a defense.
541. Petitioner was incompetent at the penalty phase of his trial. As such,
Petitioner did not have a rational understanding of the proceedings regarding
presentation of evidence on his behalf, and he was likewise incompetent to make
any waiver of defense or his constitutional rights regarding those proceedings.
See infra.
542. Furthermore, Petitioner’s family history of mental disorders,
substance abuse, depression, mood disorders and other mental illness should have
alerted the court and counsel to Petitioner’s incompetence to stand trial. Drope v.
Missouri, 420 U.S. at 171; Pate v. Robinson, 383 U.S. at 385. Petitioner’s
deficits rendered him unable to knowingly, intelligently, and voluntarily waive
any constitutional rights to which he was entitled, or to disclose accurately the
events surrounding the incidents for which he was charged with capital murders,
other counts and other special allegations.
543. Petitioner’s constitutional rights were violated because he was
incompetent throughout the legal proceedings below, and he was therefore
deprived of a trial that was fundamentally fair and that comported with due
process and a fair, reliable and non-arbitrary penalty determination. Accordingly,
his conviction and sentence must be set aside.
544. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
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themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
B.
Petitioner Is Presently Mentally Incompetent
545. Petitioner re-alleges the facts set out above.
546. Petitioner is presently incompetent to assist undersigned counsel in
litigating his federal habeas corpus challenges to his state convictions and
sentences.
547. A capital habeas corpus petitioner has a right to competence during
federal proceedings on his petition. Rohan ex rel. Gates v. Woodford, 334 F.3d
803, 817 (9th Cir. 2003) (“Gates”). The right derives from the statutory right to
counsel, which
contemplates effective communication between lawyer and client. A
putative habeas petitioner’s mental incompetency – a condition that
is, obviously, an extraordinary circumstance beyond the prisoner’s
control – renders the petitioner unable to assist his attorney in the
preparation of a habeas petition. Such a condition would eviscerate
the statutory right to counsel.
Id. at 814 (quoting Calderon v. United States District Court (Kelly), 163 F.3d
(9th Cir. 1998) (en banc), overruled in unrelated part, Woodford v. Garceau,
U.S. 202, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003)).
548. Although the Gates court expressly left open the precise showing
that a petitioner must make to require a competency hearing (id. at 819 n.11), the
Ninth Circuit, in an analogous context, has described the threshold showing as
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one leading the court to “reasonably question[]” petitioner’s competence. See
Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993), vacatur of stay aff’d,
F.3d 964 (9th Cir.) (en banc), en banc mandated recalled and case remanded to
competence hearing “if there is reasonable cause to believe that the defendant
may presently be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense”)
(emphasis added).
549. Whatever the precise standard required to obtain a hearing or relief
on his claim of incompetence to assist federal habeas counsel, Petitioner has more
than met it in this case. The facts and expert opinions alleged above establish that
Petitioner is presently mentally incompetent to assist habeas counsel in his own
defense in the instant proceedings. In addition, attorneys Manuel J. Barraza, who
represented Petitioner briefly following his arrest, Michael N. Burt and Dorothy
Bischoff, who represented Petitioner in his criminal trial proceedings in the San
Francisco County Superior Court, Geraldine Russell, who represented Petitioner
in his state post-conviction proceedings, and Sean J. Bolser, one of the attorneys
assigned to represent Petitioner in the instant proceedings, have, during the
course of their various representations, come to believe that Petitioner is mentally
incompetent, that he lacks a rational understanding of the proceedings, and that
he lacks the ability to communicate rationally with counsel and assist in his own
defense. Gates, 334 F.3d at 819; see also Dusky v. United States, 362 U.S. 402,
402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
550. Present counsel for Petitioner have identified and presented in this
petition a number of potentially meritorious claims for habeas corpus relief from
his convictions and death sentences. Although undersigned counsel were able to
identify many facts in support of these claims, Petitioner’s competent
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communication is necessary to the complete development and successful
presentation of most of these claims – including claims concerning constructive
deprivation of counsel; counsel’s conflicts and constitutionally deficient
performance; prosecutorial misconduct; and mental state issues from the trial.
And Petitioner’s present incompetence may well have prevented him from
assisting undersigned counsel in identifying and developing facts and evidence in
support of additional claims, presently unknown. See Gates, 334 F.3d at
(counsel cannot be required to identify with particularity what petitioner would
tell them were he competent).
551. Accordingly, the instant proceedings must be stayed, pending
Petitioner’s restoration to competency. Id. at 819.
552. In addition, Petitioner’s present mental illness and other mental
impairments preclude his execution. Executing Petitioner would be
unconstitutionally cruel and unusual because he is incompetent to be executed
under Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d
(1986), and Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842, 168 L. Ed. 2d
662 (2007). Although this claim is not yet ripe because no date has been set for
Petitioner’s execution, Petitioner raises it now in this Petition in order to preserve
his right to review. Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct.
1618, 140 L. Ed. 2d 8 (1998).
CLAIM 2:
THE TRIAL COURT ERRED IN FAILING TO INITIATE
COMPETENCY PROCEEDINGS THUS IT VIOLATED
PETITIONER’S CONSTITUTIONAL RIGHTS
553. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section III of
the Opening Brief.
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554. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
555. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
556. Petitioner was charged with a series of bizarre and highly publicized
brutal murders and other crimes that raised serious questions about his mental
status. Abnormal acts accompanying the murders included the removal of the
eyes of murder victim Maxine Zazzara; mutilation-type wounds on victims
Vincow, Cannon, Maxon and Lela Kneiding; and a strange pentagram drawn on
the thigh of victim Bell. One victim also reported that the perpetrator laughed
diabolically during a sex crime; the suspect ordered another victim to swear upon
Satan.
557. The United States Supreme Court has “repeatedly and consistently
recognized that ‘the criminal trial of an incompetent defendant violates due
process.”’ Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d
498 (1996) (citing Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572,
L. Ed. 2d 353 (1992)).
558. To be found competent for due process purposes, a defendant must
meet two criteria: (1) “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding,” and (2) “a rational as well as
factual understanding of the proceedings against him.” Dusky v. United States,
295 F.2d 743, 746 (8th Cir. 1961). These criteria do not include a necessary
finding of “mental disease or defect” (specifically required under § 1367).
Moreover, in two of the seminal United States Supreme Court cases, failure to
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hold a hearing on competence was found reversible despite psychiatric reports
falling short of such findings.
A.
Doubts Raised in Municipal Court as to Petitioner’s Mental
Competency
559. After his arrest, on many occasions, Petitioner behaved in a bizarre
manner both in the courtroom and in his jail cell. On September 2, 1985, for
example, a jail deputy observed Petitioner in his cell writing the number “666”
and drawing a star in a circle on the cell floor with blood from his right palm.
(176 RT 20599-600.)
560. On numerous occasions, Petitioner engaged in bizarre behavior in
court. For instance, Petitioner loudly invoked the words “Hail, Satan” in the
courtroom and displayed a bizarre pentagram on the palm of his hand at the
October 24, 1985 hearing held with respect to retention of counsel. A sheriff’s
investigator testified at trial that, at that hearing, he observed Petitioner raise his
hands and say aloud “Hail Satan.” The investigator saw an inverted star with a
Although the defendant had a difficult time “relating” and appeared
agitated in an examination, and the psychiatrist recommended additional
psychiatric treatment, nonetheless, “[t]here was no sign as to the presence of any
delusions, illusions, hallucinations, obsessions, ideas of reference, compulsions or
phobias at this time.” Drope v. Missouri, 420 U.S. 162, 164 n.1, 95 S. Ct. 896,
43 L. Ed. 2d 103 (1975). In discussing Pate v. Robinson, 383 U.S. 375, 86 S. Ct.
836, 15 L. Ed. 2d 815 (1966), the Court indicated:
. . . that a history of irrational behavior is a relevant factor which, on
the record before it, was sufficient to require further inquiry
notwithstanding Robinson’s demeanor at trial and the stipulated
opinion of a psychiatrist that Robinson knew the nature of the
charges against him and could cooperate with counsel when the
psychiatrist examined him two or three months before.
Drope, 420 U.S. at 172 n.9.
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circle around it and “666” written on the palm of Petitioner’s hand. (
RT 20603-04, 20607.)
561. At the same hearing on October 24, 1985, then-counsel Joseph
Gallegos informed the court that he had grave concerns about Petitioner’s mental
condition and moved to suspend criminal proceedings pursuant to Penal Code
§ 1368 “as to [Petitioner’s] present mental state . . . .” (XVII CT 4995.)
562. Before ruling on counsel’s motion, the court asked Petitioner’s
former counsel, deputy public defender Henry Hall, regarding a confidential
psychiatric examination of Petitioner authorized several weeks before the
October 24, 1985 hearing and unrelated to a competency hearing pursuant to
Penal Code § 1368. Hall informed the court that a psychiatrist had spoken with
Petitioner for ten to fifteen minutes. Although Petitioner refused to talk very
long, the doctor concluded, based on his observations of Petitioner then, that
Petitioner appeared, at most, to be “borderline competent.” Hall also reported
that he had no knowledge about Petitioner’s mental condition at the time of the
October 24 hearing and the psychiatrist could not speculate about it. (XVII
CT 4996-98.)
563. Joseph Gallegos renewed his request that Petitioner undergo a
psychiatric examination pursuant to Penal Code § 1368. (Id. at 5002-03.) The
court, however, found that Petitioner was not mentally incompetent under §
because he “remembered things” and, based on Petitioner’s answers to the court’s
question on prior occasions, “I don’t have any problem with that.” (Id. at 5003.)
The court made no inquiry about Petitioner’s mental health background, his
ability to communicate and cooperate with Joseph Gallegos, or his
comprehension of the charges, the nature of the proceedings against him, or the
possible punishments involved. Petitioner indicated that he was sane and did not
want to go to a hospital. (Id. at 5003, 5005.)
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564. Six months later, at the April 14, 1986 preliminary hearing, trial
counsel – now the Hernandezes – requested an in camera hearing to address
Petitioner’s mental status and Petitioner’s continued presence at the preliminary
hearing. Without conducting an in camera hearing, the trial court indicated there
was no evidence to conclude Petitioner was unable to understand and participate
in the proceedings. (XII CT 3463-65.30 There was no determination of
Petitioner’s mental competency in Municipal Court.
B.
Doubts Raised in Superior Court as to Petitioner’s Mental
Competency
565. On February 26, 1987, the trial court expressed concern about
Petitioner’s mental competency. The court asked trial counsel whether they
intended to file a motion pursuant to Penal Code § 1368. Daniel Hernandez
replied:
We’ve been considering that from the beginning of course and we
haven’t made a decision on that and we are very aware and
concerned about that.
(22 RT 1333-34.)
566. On March 24, 1987, the trial court again raised the issue of
Petitioner’s mental competency and his ability to proceed to trial:
The [section] 1368 and related issues I would also like you to
consider. I realize that that is going to be a very difficult one for you,
but I would like you to get working on that as well.
Subsequently, an in camera hearing was held on April 14, 1986.
However, despite repeated, diligent efforts of state appellate counsel to obtain a
complete record on appeal, the sealed reporter’s transcript of the hearing held that
date was not made part of the record on appeal and no settled-statement
summarizing that hearing could be obtained. (See VII Supp. CT 166-69; VIII
Supp. CT 22-23 (order to prepare settled statement and declarations of Daniel
Hernandez and Arturo Hernandez).)
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(28 RT 2001.)
567. On April 7, 1987, a discussion was held in chambers in the presence
of all parties except Petitioner regarding trial counsel’s concern “that there was
some problems with our client.” (4-7-1987 Sealed RT 6.) Counsel asked to
address the court in camera regarding Petitioner’s mental status pursuant to Penal
Code §§ 1368, 1017, and 1026. However, according to the record on appeal the
court did not later conduct the requested hearing. (4-7-1987 Sealed RT 6-7.)
568. The trial court was fully aware that Petitioner repeatedly refused to
cooperate with counsel in his defense and repeatedly behaved in a strange and
bizarre manner that, by any measure, further raised doubts about his mental
competence. Petitioner continued to behave irrationally during trial: on January
30, 1989, he allegedly waived his right to wear an unobtrusive leg brace and
agreed to wear shackles before the jury (see Claim 22, infra); on February 6,
1989, he refused to remove his sunglasses at the court’s direction (see Claim 24,
infra); on May 8, 1989, he was unwilling to cooperate with counsel in order to
present a proper defense at the guilt trial (178 RT 20794-75); on September 20,
1989, he waived his presence at the guilt verdicts (216 RT 24710-11); on
September 27, 1989, he waived his right to present any mitigation evidence at the
penalty trial (217 RT 24774-76); and on November 7, 1989, he made an irrational
statement at the sentencing hearing.
Petitioner stated to the court:
It is nothing you would understand, but I do have something
to say. In fact, I have a lot to say, but now is not time or the place. I
don’t even know why I’m wasting my breath, but what the hell.
As for what is said of my life, there have been lies in the past
and there will be lies in the future. I don’t believe in the hypocritical
moralistic dogma of this so-called civilized society and need not
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C.
The Trial Court Violated Petitioner’s Constitutional Rights By Failing
to Initiate Proceedings Sua Sponte to Determine Petitioner’s
Competence
569. In Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d
(1966) the Supreme Court found that where sufficient evidence is presented that a
defendant may be mentally incompetent, due process requires that a hearing be
held on that issue. The defense in Pate presented testimony of four lay witnesses
who related defendant’s history of disturbed behavior and gave opinions of
present insanity, as well as evidence of a brief prior commitment. Pate v.
Robinson, 383 U.S. at 383-84. The Court found this showing sufficient to grant
look beyond this room to see all of the liars, the haters, the killers,
the crooks, the paranoid cowards, truly the trematodes of the earth,
each one in his own legal profession.
You maggots make me sick. Hypocrites one and all. We are
all expendable for a cause, and no one knows that better than those
who kill for policy, clandestinely or openly, as do the governments
of the world which kill in the name of God and country and for
whatever else they deem appropriate.
I don’t need to hear all of society’s rationalizations. I’ve
heard them all before and the fact remains that is what it is.
You don’t understand me. You are not expected to. You are
not capable of it. I am beyond your experience. I am beyond good
and evil.
Legions of the night, night breed, repeat not the errors of night
prowler and show no mercy. I will be avenged. Lucifer dwells
within us all.
(219 RT 24929.)
187Page 212 Page ID #:
habeas corpus relief due to failure to inquire as to the defendant’s competence to
stand trial. Id. at 385.
570. In Drope, the High Court reaffirmed Pate, holding that due process
requires that a hearing be held on the issue of a defendant’s mental competency
upon a proper showing. The Court considered, inter alia, evidence of
defendant’s absence from the courtroom resulting from injuries sustained in a
suicide attempt as supporting the need to inquire into the defendant’s
competence. First, the accused’s forced absence implied a demeanor making him
unable to cooperate with counsel in his defense; second, it deprived court and
counsel of a further opportunity to observe his capacity rationally to understand
the proceedings and contribute to his defense. 420 U.S. at 180-81. The Court
noted that “[e]ven when a defendant is competent at the commencement of his
trial, a trial court must always be alert to circumstances suggesting a change that
would render the accused unable to meet the standards of competence to stand
trial.” Id. at 181. The Court described the requirements of the inquiry:
The import of our decision in Pate v. Robinson, is that evidence of a
defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in
determining whether further inquiry is required, but that even one of
these factors standing alone may, in some circumstances, be
sufficient. There are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to determine fitness
to proceed; the question is often a difficult one in which a wide
range of manifestations and subtle nuances are implicated. That they
are difficult to evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.
Id. at 180.
188Page 213 Page ID #:
571. Here, trial counsel declared a doubt as to Petitioner’s competence.
In light of that declaration of doubt and on the other facts and information to the
trial court, the court’s failure to initiate competency proceedings violated
Petitioner’s federal due process rights.
D.
The Trial Court Violated Petitioner’s Constitutional Rights by
Granting the Motion for Substitution of Counsel Before Resolving the
Issue of Competency
572. For obvious reasons, once a reasonable doubt as to a defendant’s
competency has been raised, “the correct course [is] to suspend the trial until such
an evaluation [can] be made.” Drope, 420 U.S. at 181. Here, proceedings were
not suspended. The result was to permit an incompetent defendant to terminate
an attorney who wanted to raise competency and mental defenses, with counsel
who did not.
573. By effectively turning over the key strategic decision in the case to
the court and prospective counsel who had conflicts of interest, the court violated
Petitioner’s right to Fourteenth Amendment due process, and the Sixth
Amendment right to counsel. An incompetent defendant cannot assist counsel;
the Court should have deferred the motion for substitution of counsel until and
unless there was a proper determination of Petitioner’s mental competency to
proceed to trial.
E.
The Court’s Failure to Initiate Competency Proceedings Violated
Petitioner’s Constitutional Rights
574. On a proper showing, a trial court must inquire as to a defendant’s
mental competency as a matter of due process of law. Pate v. Robinson, 383 U.S.
375. A defendant who is incompetent may not be criminally prosecuted. Odle v.
Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001); see also Medina v. California,
505 U.S. 437, 449, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992).
189Page 214 Page ID #:
575. In Odle, the Ninth Circuit found that where a reasonable trial judge
would have a doubt as to the defendant’s competence, the defendant is entitled to
a competency hearing. The court also held that a defendant who may be
incompetent cannot knowingly and intelligently waive his right to a competency
hearing and cannot be presumed to be sufficiently intelligent to understand
evidence of his incompetence. Id. at 1089 n.5. “[A]n inquiry into whether [an
accused] possesses the mental acuity to participate in the proceedings is the
reasonable and appropriate course of action.” Id. at 1089. The trial court’s
failure to conduct a competency hearing in light of substantial evidence of mental
impairment, as in Odle, violates the defendant’s right to due process of law under
the Fourteenth Amendment, thus implicating Petitioner’s Fifth, Sixth, and Eighth
Amendment rights. Id. at 1087, 1089.
576. The Supreme Court has held that fundamental Fifth and Sixth
Amendment rights guaranteed at trial (e.g., effective assistance of counsel, the
right to confront witnesses, and the right to testify or remain silent) also depend
on an accused’s ability to function rationally and cooperate with counsel. Riggins
v. Nevada, 504 U.S. 127, 139-40, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992); see
also Pate v. Robinson, 383 U.S. 375.
577. The trial court erred in failing to hold a hearing on the issue of
Petitioner’s competence to stand trial and to waive rights and in failing to hold
the proceedings in abeyance unless and until Petitioner was restored to
competence. As the result of the trial court’s error, Petitioner was denied due
process of law by the acceptance of his purported waiver of a complete defense at
the guilt trial, of his waiver of the right not to wear visible restraints before the
jury, and of his waiver of the right to be present at the guilt verdicts. The trial
court’s failure to act in accordance with the mandatory provisions of Penal Code
§ 1368 violated Petitioner’s fundamental rights to due process of law and fair trial
guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Washington v.
190Page 215 Page ID #:
Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Further, as a result
of the trial court’s error, Petitioner’s waiver of mitigation evidence at the penalty
trial, were he incompetent, led to an unreliable determination of punishment in
violation of the Eighth and Fourteenth Amendments. Caldwell v. Mississippi,
472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); Johnson v. Mississippi,
486 U.S. 578 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988).
F.
Conclusion
578. On numerous occasions, both the court and counsel expressed
doubts about Petitioner’s mental competency. However, on each occasion, the
trial court failed in its duty to ensure that a proper inquiry was conducted and that
Petitioner was mentally competent to proceed.
579. The trial court failed properly to inquire about and conduct a full
hearing as to Petitioner’s mental competency to actively participate in the
proceedings. Petitioner was entitled to a full and fair determination of his mental
competency in this multiple murder capital case.
After all, competence to stand trial does not consist merely of
passively observing the proceedings. Rather, it requires the mental
acuity to see, hear and digest the evidence, and the ability to
communicate with counsel in helping prepare an effective defense.
Odle v. Woodford, at 1089; see Dusky v. United States. Petitioner’s rights to due
process and fair trial guarantees under the Sixth and Fourteenth Amendments
were violated. Moreover, as discussed in Claim 19, infra, the error also
implicated Petitioner’s Eighth Amendment right to a reliable determination of
penalty.
580. Prejudice inheres in the very fact that Petitioner was tried where the
evidence shows he was incompetent to understand and cooperate in his own
defense. A finding of incompetence automatically results in reversal of the
judgment – even absent a contemporaneous objection. Thus, prejudice is
191Page 216 Page ID #:
intrinsic. See Pate v. Robinson, 383 U.S. at 384 (failure to raise incompetence in
trial court does not waive issue on collateral review). This is because trial of an
incompetent defendant is a violation of due process under the Fourteenth
Amendment. Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125 L. Ed.
2d 321 (1993).
Competence to stand trial is rudimentary, for upon it depends the
main part of those rights deemed essential to a fair trial, including
the right to effective assistance of counsel, the rights to summon, to
confront, and to cross-examine witnesses, and the right to testify on
one’s own behalf or to remain silent without penalty for doing so.
Cooper v. Oklahoma, 517 U.S. at 354 (citing Drope v. Missouri, 420 U.S. at 171-
72, and Riggins v. Nevada, 504 U.S. at 139-140 (Kennedy, J., concurring)). The
loss of the ability to participate in all these fundamental trial protections is
particularly egregious in capital cases, for the defendant is precluded from
contributing to both the determination of guilt and the imposition of punishment
to an extent greater than non-capital prosecutions. Here, counsel’s failings
resulted in Petitioner being tried by a court lacking fundamental jurisdiction and
deprived him of due process and full participation in the trial process. The error
thus violated Petitioner’s most fundamental trial rights and was reversible per se.
Pate v. Robinson, 383 U.S. 374; Drope v. Missouri, 420 U.S. at 172.
581. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
192Page 217 Page ID #:
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
582. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 3:
TRIAL COUNSEL WAS SO INCOMPETENT THAT PETITIONER
WAS CONSTRUCTIVELY DENIED THE RIGHT TO COUNSEL
583. Exhaustion of the claim: A Portion of this claim was presented in the
2004 state habeas petition. It was presented in Claim XVIII of the petition.
Petitioner will present the claim with additional factual allegations to the
California Supreme Court in an exhaustion petition he will file no later than
March 17, 2009.
193Page 218 Page ID #:
584. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
585. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
A.
Petitioner Had The Right To Counsel Who Would Ensure that The
Trial Proceedings Were Fair
586. The assistance of counsel “is one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and
liberty.” Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 82 L. Ed
(1938). That a person who happens to be a lawyer is present at trial alongside the
accused, however, is not enough to satisfy the constitutional command.
Strickland, 466 U.S. at 685. A criminal defendant is entitled to be assisted by an
attorney, whether retained or appointed, who plays the role necessary to ensure
that the trial is fair. Id.
587. In order to receive a fair trial, a defendant is entitled to “a reasonably
competent attorney,” McMann v. Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441,
1449, 25 L. Ed. 2d 763 (1970), whose advice is “within the range of competence
demanded of attorneys in criminal cases.” Id., at 771, 90 S. Ct., at 1449. See also
Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)
(stating that the Constitution guarantees “adequate legal assistance.”); Engle v.
Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (Sixth
Amendment right refers to “a fair trial and a competent attorney.”) Id.
588. Counsel’s incompetence can be so serious that it rises to the level of
a constructive denial of counsel that can constitute constitutional error without
any showing of prejudice. See Cronic, 466 U.S. at 659-660. Cronic applies when
194Page 219 Page ID #:
“counsel [is] either totally absent, or prevented from assisting the accused during
a critical stage of the proceeding” or when “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Id. A presumption of
prejudice is required where the circumstances of the case indicate that “although
counsel is available to assist the accused during trial, the likelihood that any
lawyer, even a competent one,” could not provide effective assistance. Id. at 660,
citing Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932)
(defendants were charged with an atrocious crime and counsel was appointed so
close to trial that the chances that counsel could be effective was remote.)
589. Alternatively, if the Cronic test does not apply to a defendant’s
ineffective assistance of counsel claim, relief may nevertheless be obtained under
the usual Strickland standard. Under Strickland, a defendant must prove that his
counsel’s performance was deficient and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 694.
B.
Petitioner Was Denied Counsel the Assistance of Qualified Counsel
Who Had the Time and Experience To Properly Prepare His Defense
1.
Arturo and Daniel Hernandez Were Incompetent to Defend a
Capital Case
590. On September 3, 1985, the Municipal Court appointed the Public
Defender of Los Angeles County to represent Petitioner. (XIX CT 5465.) After
that, the court relieved the public defender and privately retained counsel Joseph
Gallegos appeared on Petitioner’s behalf on October 9, 1985. (XIX CT 5469.)
591. On October 22, 1985, Petitioner sought to substitute newly retained
counsel Daniel Hernandez and Arturo Hernandez in place of Joseph Gallegos.
(XVII CT 4981.) The Municipal Court noted that Petitioner’s case was unusual
and that he faced numerous serious charges and special circumstances that could
lead to the “gravest of possible consequences.” (XVII CT 4983-84.)
195Page 220 Page ID #:
592. Prior to allowing the substitution, the court held an in camera
hearing to question the Hernandezes on their qualifications which, as the
colloquy revealed, were seriously deficient for a case of this magnitude.32 Daniel
Hernandez had been admitted to practice for only three years and had handled
approximately 15-17 jury trials, only four of which involved charges of murder.
He had never handled a death penalty case. He admitted that he had been held in
contempt for not appearing on time and had, on one or two occasions, been fined
$100. He stated that “the most notorious time [he] had been held in contempt,”
he had been put in jail with his client in the middle of a murder trial for failing to
appear in another court in which his presence was required. (Sealed RT of
October 22, 1985, 3-14).
593. Arturo Hernandez was similarly lacking in experience. He had been
admitted to the bar only two years prior and had never tried a death penalty case.
He too admitted that he had been held in contempt twice and fined $100,
referring to his citations as a “ritual that we go through as young attorneys.”
(Sealed October 22, 1985 RT 15-17). The court then warned the Herndandezes
that if they did not have the financial resources to litigate the case, they would
have to proceed pro bono because they were not qualified to be appointed. (Id. at
32). Daniel Hernandez assured the court that the case was fully financed and that
Under Cronic, the character of a particular lawyer’s experience does not,
by itself, establish a presumption of prejudice but it does inform the evaluation of
his performance. 466 U.S. at 664. Here, Daniel and Arturo’s lack of experience
militates in favor of a finding that their failures and omissions were the result of
incompetence, not reasonably informed trial strategy.
One of the murder cases handled by Daniel Hernandez was People v.
Ortiz. (Sealed RT of October 22, 1985 hearing, 8.) In People v. Ortiz, 51 Cal. 3d
at 980, the state court held that both Daniel Hernandez and Arturo Hernandez
should properly have been discharged by the trial court as retained counsel on the
defendant’s motion based on their incompetence in a pending murder case.
196Page 221 Page ID #:
they would not seek appointment in the future, a promise he would not keep.
(Id.)
594. When the parties resumed in open court on October 22, 1985, the
court explicitly informed Petitioner that,
neither Daniel Hernandez nor Arturo Hernandez have the legal
experience which would qualify them to be appointed by this court
to represent him in this case, nor do either attorney meet the
qualifications set forth by the Los Angeles County Bar for the
indigent criminal defense appointment panel.
(XVII CT 4984-85.) The court specifically held that under the Bar plan, an
attorney must have practiced law for a minimum of ten years, have been counsel
of record in at least forty jury trials, thirty of which must have been felonies, and
have been counsel of record in at least three cases in which murder charges were
alleged and they must have tried at least one murder case to a jury. (XVII
CT 4985.) The court also referenced the past and pending contempt charges
against Daniel and Arturo Hernandez in Santa Clara county. (XVII CT 4986.)
595. The court ordered Daniel Hernandez and Arturo Hernandez to
disclose to Petitioner any complaints by clients, citations for contempt of court,
or allegations of ineffective assistance of counsel. Petitioner was offered the
assistance of independent counsel to help him review any information provided
by counsel. The matter was put over for two days. (XVII CT 4986-88.)
596. At the next hearing on October 24, 1985, before the court ruled on
the substitution motion, attorney Gallegos explicitly informed the court that he
was “gravely concerned” about Petitioner’s “present mental state, his ability to
choose his own attorney and other related matters concerning this trial,” and
moved for a psychiatric examination of Petitioner as to his mental state pursuant
to Penal Code § 1368. (XVII CT 4995.) After cursory colloquies with former
counsel Henry Hall, the Hernandezes and Petitioner, the court denied the motion
197Page 222 Page ID #:
for an examine Petitioner’s competency, including his ability to select counsel
and waive their apparent conflicts of interests.34 (XVII CT 4996-97.)
597. Despite having previously acknowledged that “it is the duty of the
trial court to protect the defendant’s right to a counsel who is effective” (XVII CT
4983, the court permitted substitution of unqualified trial counsel, Daniel
Hernandez and Arturo Hernandez.35 (XVII CT 5009-10, 5014-15.)
2.
Ray Clark’s Mid-Trial Appointment Did Not Provide Him With
Sufficient Time To Prepare an Effective Defense
598. A defendant is constructively denied the assistance of counsel when
“although counsel is available to assist the accused during trial, the likelihood
that any lawyer, even a fully competent one, could provide effective assistance is
so small that a presumption of prejudice is appropriate without inquiry into the
actual conduct of the trial.” Cronic, 466 U.S. at 659-660. Cronic cites Powell v.
Alabama as an example of these circumstances. Id. In Powell, the defendants
were being tried for a highly publicized capital case and counsel was appointed
on the first day of trial, with no time to prepare. Powell, 287 U.S. 45, 57-58,
S. Ct. 55, 77 L. Ed. 158 (1932). The Powell Court held that “such designation of
counsel as was attempted was either so indefinite or so close upon the trial as to
amount to a denial of effective and substantial aid in that regard.” Id. Ray
Clark’s appointment in the middle of trial constitutes constructive denial of
counsel within the meaning of Cronic and Powell.
599. In March 1989, the court appointed Ray Clark to assist Daniel
Hernandez because Hernandez felt he could not defend Petitioner alone, as he
A claim of trial court error for failing to hold a competency hearing is
separately alleged in Claim 2.
A claim of trial court error for allowing the substitution of unqualified
counsel is separately alleged in Claim 5.
198Page 223 Page ID #:
had been doing for months. (Ex. 16, R. Clark Dec., ¶ 5). Clark, however, was
not appointed until March 1989, when trial was underway, and he had “no time to
prepare for trial” or review discovery prior to his involvement in the case. (Id. at
¶¶ 1, 6.) Thus his role at the guilt phase was limited to cross examining
prosecution experts without advance preparation. (Id. at ¶ 6). His comments
during penalty phase closing reflect his total lack of knowledge of Petitioner’s
life history. See infra, Section (D)(3)(b). Under these circumstances, Petitioner
was constructively denied the assistance of counsel.
C.
Trial Counsel Was Absent During Critical Portions of Petitioner’s
Capital Trial
600. At various times, Arturo Hernandez abandoned Petitioner by failing
to appear in court for trial proceedings.36 For example, on October 3, 1988, the
trial court sent a letter to Arturo Hernandez regarding his absence from trial.
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
Arturo Hernandez. (XXVIII CT 8111.) However, after conducting a hearing on
October 25, 1988, the court decided not to require Arturo Hernandez to attend all
of the trial proceedings. (See I Supp. CT VIII 2133-2215; XXVIII CT 8114.)
Arturo Hernandez was absent from many trial proceedings critical to Petitioner’s
defense, including jury selection, the prosecution’s presentation of its entire case-
in-chief, and jury instruction conferences.37 The trial court subsequently ordered
Arturo Hernandez to maintain telephone contact with the court during trial. (See
In People v. Ortiz, 51 Cal. 3d at 981, the California Supreme Court
noted that both Daniel Hernandez and Arturo Hernandez failed to appear at trial.
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-19, 8121-26,
8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95, 8299,
8315, 8321, 8324, 8327-28, 8331-33, 8336-38, 8345, 8353, 8360, 8369-70, 837981, 8383; and XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412, 8419, 8426,
8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
199Page 224 Page ID #:
173 RT 20186.) Arturo Hernandez was absent for four months, September 26,
1988, through January 23, 1989, during voir dire, including Hovey38 examination.
601. On February 21, 1989, during the prosecution’s case in chief, Daniel
Hernandez informed the court by telephone that he was ill and would be absent
from trial for one week. Hernandez sent his law clerk, Richard Salinas, to appear
at trial on Petitioner’s behalf. Court had to recess until Hernandez could return.
(152 RT 17574.)
602. On March 1, 1989, the court held a hearing concerning trial counsel
Daniel Hernandez’s health. Daniel Hernandez submitted a letter from his
physician stating that he suffered from nervous exhaustion and would require an
absence from trial of four to six weeks to recuperate. (153 RT 17604-05.) Daniel
Hernandez explained that he was unable adequately to represent Petitioner – he
could not “carry the load” – and needed yet another counsel to assist “in this
enormous trial.” (153 RT 17610-11.) The court found no legal cause to delay the
trial. (153 RT 17606, 17614-16.)
603. On July 13, 1989, during the prosecutor’s guilt phase closing
argument Arturo Hernandez was absent and Daniel Hernandez failed to return
from the lunch break. (204 RT 23673.) The trial court issued a body attachment
for Daniel Hernandez and excused the jury, telling them “as you can see
Hernandez is not with us this afternoon. . . Frankly, we don’t know where he is.”
Id; (XXIX CT 8484.) On July 14, 1989, the court quashed the attachment and
ordered Daniel Hernandez to be present at all hearings. (Id. at 8487.)
604. Arturo Hernandez was again absent from closing argument in the
guilt trial on July 17, 1989. The court issued a body attachment for Arturo
Hovey v. Superior Court, 28 Cal. 3d at 80.
200Page 225 Page ID #:
Hernandez and ordered it held to August 18, 1989. (XXIX CT 8490, 8628-29,
8632.)
605. On August 18, 1989, the trial court conducted a contempt hearing
and found that Arturo Hernandez had failed to maintain telephonic contact with
the court as previously ordered. Arturo Hernandez admitted that he had traveled
to Europe on a honeymoon during trial after telling the court he was in Mexico
for his brother’s funeral. (214 RT 24609-11.) The court found Arturo Hernandez
in contempt and that he had abandoned Petitioner. (Id. at 24611-12.)
606. Arturo Hernandez offered a no contest plea and apologized to the
court. (214 RT 24613-14.) After considering Arturo Hernandez’s statement, the
trial court found Arturo Hernandez in contempt for failing “to notify the court by
phone each morning,” but withdrew its finding that counsel had abandoned
Petitioner.39 (Id. at 24614.)
607. On September 14, 1989, the trial court again found Arturo
Hernandez in contempt for failing to maintain contact with the court. (
RT 24690-91.) The court sentenced Arturo Hernandez to serve twenty-four days
in jail or pay a $2,400 fine to be paid on or before September 29, 1989. The court
ordered Arturo Hernandez to serve one day in jail.40 (Id. at 24698-700.)
608. Counsel’s numerous absences from critical portions of Petitioner’s
trial constituted deprivation of counsel within the meaning of Cronic.
The court ordered Arturo Hernandez to pay a fine of $100. (RT 24615.)
Arturo Hernandez paid the fine of $2,400 on September 29, 1989.
(XXX CT 8903.)
201Page 226 Page ID #:
D.
Trial Counsel Failed To Submit the Prosecution’s Case To Meaningful
Adversarial Testing
609. The adversarial process protected by the Sixth Amendment requires
that the accused have “counsel acting in the role of an advocate.” Anders v.
California, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399, 18 L. Ed. 2d 493 (1967).
The right to the effective assistance of counsel is thus the right of the accused to
require the prosecution’s case to survive the crucible of meaningful adversarial
testing. Cronic, 466 U.S. at 656-57. When a true adversarial criminal trial has
been conducted, even if defense counsel may have made demonstrable errors, the
kind of testing envisioned by the Sixth Amendment has occurred. But if the
process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated. Id. (footnotes omitted).
610. Because trial counsel failed to submit several portions of Petitioner’s
case to meaningful adversarial testing, the fundamental fairness of entire
proceeding was jeopardized and prejudice may be presumed. Id.
1.
Pre-Trial Proceedings
611. Prior to trial, counsel completely failed to perform several basic
functions necessary to ensure Petitioner’s rights. Counsel failed to seek hearing
on Petitioner’s competence, mishandled of the change of venue motion, and
engaged in various ethical violations that constructively deprived Petitioner of the
right to counsel.
a.
Failure to Challenge Petitioner’s Competence
612. First, counsel failed to raise a challenge to Petitioner’s competence
to stand trial, despite the fact that significant evidence suggested he suffered from
a major mental disorder. See XVII CT 5020 (Petitioner shouted “Hail, Satan!” in
court); (Ex. 18, H. Hall Dec., ¶ 4) (describing Petitioner as “irrational and
agitated”); Ex. 128, 1994 M. Barraza Dec., ¶ 7) (stating that Petitioner exhibited
202Page 227 Page ID #:
extreme mood swings; his dialogue was remarkable for it incoherence and
irrationality; Petitioner was unable to listen to counsel’s advice).
613. Evaluation by experts revealed Petitioner suffered disorder of
psychotic proportion. His psychotic disorder is the result of a temporal lobe
disorder that persisted after the remission of the seizures he suffered as an
adolescent. As a result of his disorder, Petitioner suffered impairments including,
disorganized and psychotic thinking, a frequent tendency to misperceive and
misinterpret reality and to become lost in a grossly distorted internal world with a
limited relationship to reality, obsessive behavior, and delusions, both paranoid
and erotomanic. His chief delusion consists of his conviction of having a
personal relationship with Satan, and he has experienced related hallucinations.
(Ex. 31, D. Blumer, M.D. Dec., ¶¶ 8-10; Ex. 41, W. Vicary, M.D. Dec., ¶¶ 5; Ex.
98, M. Young, Ph.D. Report, at 6, 7; Ex.72, A. Evans, Ph.D. Dec.; Ex.100, G.
Woods, M.D., Report at 2, 4; Ex. 42, D. Watson Dec., ¶¶ 19, 21, 24.)
614. Petitioner also suffered from a severe mood disorder, likely due to
his epilepsy, with depressive features. (Ex. 98, M. Young Report, at 7; Ex. 72, A.
Evans Dec., at 8; Ex. 42, D. Watson Dec., ¶ 19, 22.), and brain damage. (Ex. 96,
Letter from Victor Henderson, M.D., to Daniel Hernandez, dated 05/29/1987.)
615. Despite this information, counsel failed to challenge Petitioner’s
competence to stand trial, in violation of Mr. Ramirez’s Sixth Amendment right
to the effective assistance of counsel.
b.
Change of Venue Motion
616. Second, counsel failed to litigate the change of venue motion in a
competent manner. Counsel’s lack of familiarity with the rules of evidence
resulted in 28 exhibits not being admitted because counsel did not know how to
properly authenticate them. (See 16 RT 702-293).
617. On January 6, 1987, the court gave the following soliloquy in a
closed session:
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Now, I am calling this hearing, Mr. Ramirez, to tell you that I
reluctantly have to tell you that in my opinion your lawyers are
incompetent. Now, I have had this case for six months and I must
say that I am convinced that your lawyers are nice guys, good
company, maybe good fellows to spend an evening with. I am also
convinced that they are dedicated to your defense emotionally. But I
must tell you that in my opinion they are not competent to handle
your case. I don’t think that they have sufficient experience in the
law. I don’t think that they have the staffing, if you will, or
whatever, to do the job....
I am telling you now...I don’t think they know the law well enough, I don’t
think they know the rules of evidence well enough, they are not ready to
present the evidence and push it through....I am just telling you this
because I have no personal axe to grind at all, I simply want to see that
whatever happens in this case is done right and you get your rights
protected, that whatever conclusion is reached is right. And I am telling
you now that your rights are not being protected.
(Sealed RT of January 6, 1987, 16-A RT 733-737) (emphasis added.) The court’s
statements confirm that the change of venue motion was litigated so poorly that
Petitioner was effectively denied the assistance of counsel on that matter.
c.
Miscellaneous Conduct
618. At various times, counsel’s incompetence deprived Petitioner of the
benefits he would have ordinarily enjoyed in a relationship with his counsel,
including the right to confidentiality and the right to possess and review
discovery.
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619. Early in the case, counsel inexplicably violated the attorney-client
privilege by proving the press with an unflattering cartoon Petitioner had drawn
of the prosecutor. (Ex., 81, Paul Feldman, Ramirez Hearing: Daily Ritual of
Testimony and Stares, L.A. Times, April 14, 1986; Ex. 81, Bloody Testimony at
Stalker Suspects Hearing, April 2, 1986, L.A. Herald Examiner at A11.) The
cartoon was widely reproduced in the media, further contributing to the negative
publicity and contaminating the jury pool. Over two years later, at lest one juror
remembered the cartoon, said it made her angry at Ramirez, and rendered her
incapable of impartiality. (See 120 RT 13215 (excusing prospective juror Doris
Jaffe on November 21, 1988.)
On May 12, 1988, counsel gave Petitioner a tape of heavy metal music that
had been offered to him by a spectator in the audience. This was in direct
violation of the court’s previous orders that Petitioner was not allowed to possess
anything considered contraband. During an in camera session, the court told
counsel:
This is outrageous conduct for counsel, and you your stonewalling here in
court, in chambers, leaves me with no other choice, I think, but to order my
bailiff henceforth, before you go into the lockup area, that you be
submitted -- you will subjected to a patdown search for weapons or
contraband. There will be no briefcases permitted in the lockup area.
You have abused this court for the last time. You have, I guess desecrated
is as good a word as any, the honor of the legal profession in my opinion
and I think your conduct has been despicable.
(Sealed RT of May 12, 1988, Vol. 58-A, 4187) (emphasis added.) The court then
ordered the sheriff to confiscate the recording device and tapes that Petitioner was
allowed to retain as part of his legal materials. (Id.) Due to counsel’s unethical
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conduct, Petitioner was deprived of the opportunity to possess and review the
discovery in his case, a right that would have endured had his counsel been
competent.
2.
Trial
620. At trial, counsel completely failed to investigate and present a
mental health defense to the charges. Despite the existence of substantial
evidence that Petitioner suffered serious mental impairments, especially his
psychosis, severe mood disorder, neurological and cognitive deficits, PTSD,
counsel did not present a defense of not guilty by reason of insanity. The
multiple deficits and impairments described by Drs. Blumer, Vicary, Henderson,
Woods, Young, Evans, Wells, and Watson indicate that numerous mental state
and other defenses could have been presented at Petitioner’s guilt phase, but was
not due to counsel’s incompetence.
3.
Penalty
621. Trial counsel failed to submit the entire penalty phase of Petitioner’s
case to meaningful adversarial testing, rendering the entire proceeding
presumptively unreliable. See Cronic, 466 U.S. at 659. Not only did counsel
waive the presentation of mitigating evidence, he effectively conceded that no
mitigating circumstances were present in Petitioner’s case. Furthermore,
counsel’s repeated acknowledgments that Ramirez did not deserve the jury’s
kindness rendered his request for mercy ineffective. Compare United States v.
Swanson, 943 F.2d 1070 (9th Cir. 1991) (counsel’s concession of the only factual
issue in closing argument was ineffective under Cronic) with Bell v. Cone,
U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (counsel was not ineffective
under Cronic or Strickland for waiving evidence at penalty where he had
presented significant medical, psychological and social mitigation during the
guilt phase insanity defense; counsel referred to evidence already presented as a
basis for mercy in his penalty phase argument.)
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a.
Waiver of Mitigation Presentation
622. On September 27, 1989, Daniel Hernandez’s waived presentation of
a mitigation presentation, stating that “we have made a decision as a defense team
and decided [not to put on any evidence].” (217 RT 24775.) He did so despite
the fact that ample medical, psychological and social evidence could have been
presented in mitigation.
623. As described by Dr. Jane Wells, J.D., Ph.D., who evaluated
Petitioner at the request of state post-conviction counsel, Petitioner suffered from:
(1) a childhood characterized by extreme poverty, physical and
emotional neglect, physical and emotional abuse, and overall
deprivation; (2) a gross and persistent absence of parental attention,
guidance, affection, and protection due in part to his parents’ lack of
education and their impoverished lifestyle that resulted in a
pervasive pattern of neglect and left Petitioner on his own much of
the time; (3) a serious brain impairment of early origin known at the
time of trial; (4) a psychotic disorder that was evident and diagnosed
and/or diagnosable at the time of trial; (5) serious mood disorders
that often accompany psychosis with components of both mania and
depression that was treatable at an early age but that went untreated;
(6) early use with side effects of phenobarbital, exposure to illegal
depressants, stimulants and hallucinogens during Petitioner’s critical
formative years; (7) early childhood exposure to criminal activity by
Petitioner’s brothers and other adults; (8) childhood exposure to
violence and trauma, including extremely traumatic events outside
the range of normal human experience, including witnessing the
aftermath of the shooting death of his cousin’s wife; and finally (9)
commitment as a teenager to the Texas Youth Council and long-term
confinement while awaiting trial on capital charges in the Los
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Angeles County Jail, where the inadequate staffing, programming,
and other adverse conditions of confinement resulted in institutional
failure to address and provide appropriate intervention and
treatment.
(Ex. 43, Declaration of Dr. Jane Wells, J.D., Ph.D., dated 05/19/2004, ¶ 46.)
624. However, counsel presented none of this evidence in the penalty
phase. This omission constitutes a complete failure to submit the prosecution’s
penalty phase case to adversarial testing.
b.
Closing Argument
625. After the waiving introduction of aggravating evidence, the
prosecution gave closing argument in the penalty phase. Noting the number and
gravity of the crimes, and the lack of any mitigation evidence, the prosecution
concluded that Ramirez “the personification of evil and if anyone has ever
earned the death penalty, Richard Ramirez has.” (217 RT 24833). Instead of
presenting a strong counter-argument, Ray Clark opened his remarks by saying “I
think Mr. Halpin (the prosecutor) was right on most things.” (Id. at 24834). For
the remainder of his argument, he inexplicably told the jury that none of the
mitigating factors in Cal. Penal Code §190.3 applied Petitioner’s case.
626. As to Ramirez’s mental state at the time of the crimes, counsel told
the jury “what possessed Mr. Ramirez to do this we will not know soon.
Psychiatry is in whatever state it is in. What possessed [Petitioner] to permit Ms.
When not discounting the existence of mitigating facts, counsel
confused the jury with tangential references to Patrick Henry, the conflict in
Northern Ireland, and slavery, as well as bizarre hypotheticals, such as whether it
would make sense to call 911 if Ramirez had a heart attack after being sentenced
to death. (See 217 RT 24837-24856.) At one point, he admitted, “I’m not doing
as well as I thought I would do. It would seems like there were so many things I
had to tell you or I had to discuss with you within the confines of what I wanted
to say.” (Id. at 24846.)
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Kyle to live, I will never know.” (217 RT at 24840). Later, counsel suggested
that even if there were such evidence, it would not impact the jury. He said “I
think it is inescapable that something was wrong [with Richard Ramirez] and that
we don’t know what it was. Even if we knew what it was, I’m not sure that that
(sic)would change your task any.” (Id. at 24853). Later he added “there is a lot
we do not know about [Ramirez], about his behavior, which we will not know
probably in our lifetimes, which man will never know about man.” (Id. at
24857).
627. When discussing the possibility of abuse in Petitioner’s upbringing,
counsel told the jury “there is inferential evidence here that that (sic) is not the
kind of home from which Mr. Ramirez came.” (Id. at 24841.) He even suggested
that there was no evidence of the reverse—of Petitioner’s redeeming qualities--
noting “there is not a lot to be said here as to—as to he was a good boy, he did
this, he went to this school or that school. Obviously don’t even consider that.
That wasn’t presented and I don’t know what school he went to.” (Id. t 24853).
628. Even when discussing the only factor that was apparent without the
presentation of evidence, Mr. Ramirez’s age, counsel said it did not apply: “he is
a young man. . . . but there is nothing, absolutely nothing, not even close to
anything that would justify in any fashion whatsoever a single one of these
counts.” Id. at 24854.
629. At one point, counsel told the jury that even he would have killed
Petitioner: “Now I recognize that if anyone in this courtroom had come upon Mr.
Ramirez during the commission of one of these crimes, and we had the ability to
kill him, he would be dead right now, and I think that includes everybody in this
courtroom other than him.” Id. at 24848.
630. Ultimately, counsel’s argued that the jury should exercise “mercy,”
which he defined as “forbearance and compassion shown by one person to
another who is in his power and has no claim to receive kindness.” 217 RT
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24839. He made it clear to the jury that “Richard Ramirez. . . .has no claim to
your kindness.” Id. Because counsel had effectively negated the existence of any
mitigating circumstance, he told the jury “mercy doesn’t have to be based on
anything quantitative.” Id. at 24840. In making such comments, counsel failed
to focus on the key elements of a death penalty determination: “the character and
record of the individualized offender and the circumstances of the particular
offense.” Penry, 492 U.S. at 316.
631. Counsel’s closing argument—a request for mercy not based on any
evidence—was so ineffective as to be a complete failure to act as Petitioner’s
advocate.
E.
Counsel’s Performance Was the Equivalent of Total Denial of Counsel
632. In such a unique situation as this case, the harm to Petitioner caused
by the court’s error was equivalent to the total denial of the constitutional right to
representation. United States v. Cronic, 466 U.S. at 658-59. Counsel’s complete
failures, at numerous points throughout the trial, undermined the entire
adversarial process and the reliability of the resulting verdict. See Gerlaugh v.
Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997) (reviewing courts must consider the
totality of counsel’s errors, not just parts of them in isolation.) Under Cronic,
Petitioner is entitled to a presumption of prejudice. Cronic, 466 U.S. at 659.
F.
In the Alternative, Counsel’s Performance Was Ineffective Under
Strickland
633. Counsel’s failures in the pre-trial, trial and penalty phases were
numerous, and any one of them could have changed the outcome of the
proceeding. During pre-trial proceedings, a proper hearing on Petitioner’s
competence could have resulted in a finding that he was unfit to stand trial; a
competent presentation of the change of venue motion could have resulted in Mr.
Ramirez being tried more neutral jurisdiction; an aggressive mental health
defense could have resulted in an acquittal on some or all of the charges.
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634. Had the jurors known of Petitioners severe and long-standing mental
illness and impairments, they would have given full consideration to all the
relevant evidence bearing on the question of guilt and sentence. Several of the
trial jurors indicate they would have considered all evidence bearing on
Petitioner’s guilt. The jurors report that had the defense presented more
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30,
115, 117.)
635. A truly adversarial penalty phase mitigation presentation and
argument could have resulted in a life sentence. Several of the jurors indicate
they expected to hear evidence presented by the defense to save their client’s life.
Mitigation evidence could have had a difference in the outcome. Evidence
presented on Petitioner’s behalf would have been carefully considered during
four days of deliberations, particularly evidence of Petitioner’s background and
mental condition. (Exs. 28-30, 115, 117.) Counsel’s failings made Petitioner
even less sympathetic in the eyes of the jury and inclined it toward death.
636. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
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CLAIM 4:
TRIAL COUNSEL’S CONFLICTS OF INTEREST VIOLATED
PETITIONER’S CONSTITUTIONAL RIGHTS
637. Exhaustion of the claim: Portions of this claim was fairly presented
to the California Supreme Court in section VIII of the June 2004 petition for writ
of habeas corpus. Petitioner will present the claim with additional factual
allegations to the California Supreme Court in an exhaustion petition he will file
no later than March 17, 2009.
638. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
639. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
640. Petitioner’s conviction and sentence are illegal, and unconstitutional
and void under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments because his trial counsel’s financial conflict of interests adversely
affected the representation he received.
641. The violations of these rights, individually and cumulatively,
prejudicially affected and distorted the investigation, discovery, presentation, and
consideration of evidence as well as each and every factual and legal
determination made by trial counsel, the state courts and the jurors at all stages of
the proceedings from the time of Petitioner’s arrest through and including the
rendering of the judgment of death.
642. In considering counsel’s deficient performance individually and
cumulatively in conjunction with other claims alleged herein, the verdicts in both
the guilt phase and penalty phases of Petitioner’s trial must be set aside.
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Petitioner adopts and incorporates by reference as though fully set forth all facts
and claims set forth elsewhere in this petition.
A.
Petitioner Had a Constitutional Right to Conflict-Free Representation
at the Guilt and Penalty Phases of His Trial
643. The Sixth Amendment of the Constitution, as applied to the states
through the Fourteenth Amendment, guarantees criminal defendants the right to
the assistance of counsel. U.S. Const. amend VI, XIV; Gideon v. Wainwright,
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The Supreme Court has
long recognized that the Constitution’s guarantee is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct.
1441, 25 L. Ed. 2d. 763 (1970).
644. Where a defendant has a right to counsel, the Sixth Amendment also
provides a “correlative right to representation that is free from conflicts of
interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d
(1981). An attorney whose representation is adversely affected by a conflict of
interest is ineffective within the meaning of the Constitution. Cuyler v. Sullivan,
446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The Sixth
Amendment’s guarantee to effective assistance applies equally to attorneys who
are appointed and those who are retained by the defendant. Id.
645. In most circumstances, a defendant alleging an ineffective assistance
of counsel claim must demonstrate that counsel’s performance was deficient and
that he suffered prejudice: “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
(1984). However, the Supreme Court has held that there are certain
circumstances where the likelihood that the verdict is unreliable is so high that a
case-by-case inquiry is unnecessary. See United States v. Cronic, 466 U.S. 648,
658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Ineffective assistance resulting
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from counsel’s conflict of interest does not require a showing of prejudice. See
Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978);
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
646. Under Sullivan, to establish a Sixth Amendment violation based on a
conflict of interest, petitioner must show (1) that counsel actively represented
conflicting interests, and (2) that an actual conflict of interest adversely affected
his lawyer’s performance. Sullivan, 446 U.S. at 350-51. An “actual conflict of
interest” is a conflict that actually affects the representation, as opposed to a
“mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171,
122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
647. In Wood v. Georgia, 450 U.S. at 268-69, the Supreme Court
acknowledged that a conflict of interest can arise when a lawyer accepts payment
for a criminal defendant’s representation from a third-party. In Wood, the
defendants were low-level employees in an adult theater who were convicted,
sentenced to probation, and fined for distributing obscene material. Id. at 263.
After the defendants did not pay their fines, the county probation office moved to
revoke their probationary status and send them to jail. Id. The defendants
petitioned the Supreme Court, alleging that it was a violation of the Equal
Protection Clause to imprison a probationer simply because of his inability to
make payments on a fine. Id. at 264. When the case came before the Court,
however, it was revealed that all the defendants were represented by a single
lawyer who was paid by their employer. Id. at 267. The record suggested that
the lawyer did not seek leniency or a reduced fine for the defendants, but rather
allowed probation to be revoked in order to bring a “test case” on the
constitutional claim, an issue of interest to the employer. Id. at 268.
648. Declining to address the Equal Protection question, the Court instead
turned to the potential conflict, noting “courts and commentators have recognized
the inherent dangers that arise when a criminal defendant is represented by a
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lawyer hired and paid by a third party.” Wood, 450 U.S. 268-69. One risk is that
the lawyer will prevent the defendant from offering testimony that is unfavorable
to the party paying for the representation. Id. Another risk is that the lawyer will
defer to the third-party’s goals while sacrificing the defendant’s best interest. Id.
at 270, Given the “clear possibility of a conflict of interest,” the Court remanded
the case for hearing to determine whether an actual conflict existed within the
meaning of Sullivan.42 Id. at 267, 274.
649. Because trial counsel had a third-party fee agreement with Mr.
Ramirez’s family, they suffered from a conflict of interest that adversely affected
the representation Petitioner received at trial. Under Sullivan and Wood,
Petitioner is entitled to relief.43 Alternatively, he is entitled to relief under
Strickland because trial counsel’s conflict of interest caused their performance at
trial to be deficient, and Petitioner was prejudiced as a result.
Wood was technically decided under the due process clause rather than
the Sixth Amendment, as only the former provision sets constitutional bounds on
parole revocation hearings. The Court analogized defendants’ rights in Wood to
those in Sullivan because where a defendant has the right to counsel, “our Sixth
Amendment cases hold that there is a correlative right to representation that is
free from conflicts of interest.” Wood, 450 U.S. at 271.
Petitioner notes that the Supreme Court criticized the application of the
Sullivan standard to conflicts of interests not involving multiple concurrent
representation. Mickens, 535 U.S. at 174. Wood’s application of Sullivan to
third-party conflict claims is consistent with Mickens, however, because “some
third-party fee arrangements can develop into the functional equivalent of
multiple representation.” Beets v. Collins, 65 F.3d 1258, 1267 (5th Cir. 1995).
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B.
The Third Party Fee Agreement
1.
Counsel Obtained Separate Retainer Agreements from
Petitioner and His Family and Considered Both of Them
“Clients”
650. After Petitioner was arrested for murder in Los Angeles, police
searched the home of Petitioner’s older sister, Rosario, in El Paso, Texas. A
neighbor, Joe Mena, suggested to the Ramirez family that they talk to a local
lawyer Manual Barraza, a cousin of Mr. Mena’s wife. After meeting with the
family, Mr. Barraza traveled to California with the intention of defending
Petitioner. (Ex. 105, Rosario Ramirez Dec, ¶ 25.) Mr. Barraza’s representation
also included “protect[ing] the family’s interest related to Petitioner’s case.” (Ex.
13, M. Barraza Dec., ¶ 2 (June 7, 2004.))
651. On October 3, 1985, while still officially represented by the public
defenders Henry Hall and Alan Adashek, Petitioner executed a seven-page,
signed and notarized Assignment of Rights to his sister Rosario Ramirez. (Ex.
110, “Assignment of Rights”; see also Ex. 18, H. Hall Dec, ¶ 4 (noting that the
public defender’s office was not relieved as counsel until October 9, 1985.) The
document covered rights “in any and all present or future literary, publishing,
motion picture, television, interviews, serials, dramatizations, advertisements,
manuscripts, all whether written or unwritten, published or unpublished,
copyrighted or non-copyrighted, direct or subsidiary.” (Ex. 110, “Assignment of
Rights.”) In it, Petitioner “irrevocably consent[ed] to and forever authorize[d] the
use by the Assignee (Rosario) or anyone authorized by the Assignee, her legal
representatives, the absolute and unqualified right to use the Assignor’s life
material in any manner the Assignee may desire.” (Id.) The assignment also
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named Rosario Ramirez as Petitioner’s attorney-in-fact to execute any documents
necessary to secure copyrights to his life story.44 (Id.):
652. Mr. Barraza told Rosario that people immediately began calling his
office about book or movie deals. (Ex. 105, Rosario Ramirez Dec., ¶ 26.) Mr.
Barraza intended to assist the family in obtaining movie and/or book rights to
Petitioner’s case. (Ex. 13, M. Barraza Dec., ¶ 2.) In the event of a movie and/or
book deal, Mr. Barraza was to receive a percentage of the monies paid to the
family. (Id.) Rosario recalls signing documents for Barraza, including a
promissory note in excess of $100,000. (Ex. 105, Rosario Ramirez Dec., ¶ 26.)
653. Ultimately, Mr. Barraza could not take the Petitioner’s criminal case
because he was not licensed in California. (Ex. 105, Rosario Ramirez Dec., ¶
25.) Mr. Barraza referred the family to Arturo Hernandez, the only lawyer he
knew who practiced in California. (Ex. 13, M. Barraza Dec., ¶ 4.) At the same
time, Petitioner was meeting with Joseph Gallegos, a private attorney, who was
introduced to Petitioner through public defender Alan Adashek. According to
news reports, the Petitioner and Mr. Gallegos reached an agreement on retention
Both Mr. Barraza and Mr. Hall admitted that Petitioner was acting
unusually at and around the time the assignment of rights was executed. Mr. Hall
admitted that Petitioner was “agitated and irrational” during his contacts with
him. (Ex. 18, H. Hall Dec., ¶ 4.) Mr. Barraza admitted that during the times he
met with Petitioner in September and October 1985, Petitioner “exhibited
extreme mood swings and his dialogue was remarkable for its incoherence and
irrationality.... He was unable to focus or listen to [Barraza’s] attempted
explanation about what appeared to be in his best interests.” (Ex. 128, M.
Barraza Dec., ¶ 7) (Dec. 21, 1994).
During a hearing much later in the case, Arturo Hernandez told the court
the agreement with the family required an immediate $50,000 payment for
preliminary hearing and an additional $150,000 for trial. (Sealed RT of
September 29, 1987, Vol. 33C, 2355). He also admitted that he had not even
seen the Criminal Complaint at the time the retainer agreement had been signed.
(See Id.)
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on Monday, October 7, 1985, but Mr. Gallegos declined to state how he would be
paid. (Ex. 82, Paul Feldman, Ramirez Allowed to Switch Lawyers, L.A. Times,
Oct. 10, 1985.)
654. On October 9, 1985, Petitioner informed the court in an in camera
hearing that he had retained private attorney Joseph Gallegos. The court relieved
the public defender’s office as counsel, subject to Mr. Gallegos providing the
court with a written retainer agreement. That agreement was never provided to
the court. (Ex. 18, H. Hall Dec., ¶ 4; see XVII CT 4981) (October 22,
hearing referencing events that occurred on October 9, 1985.) According to news
reports, Mr. Barraza, Arturo and Daniel Hernandez, also attended court on
October 9, 1985. They attempted to address Judge Soper in open court but she
would not recognize them. (Ex. 82, Paul Feldman, Ramirez Allowed to Switch
Lawyers, L.A. Times, Oct. 10, 1985.)
655. Rosario met Daniel and Arturo Hernandez in court, on the day the
Hernandezes appeared to represent Petitioner. (Ex. 105, Rosario Ramirez Dec.,
¶ 27.) It was subsequently agreed that Daniel and Arturo Hernandez would
represent Petitioner in his capital murder case. They signed a retainer agreement
with Petitioner as well as a separate retainer agreement with Petitioner’s family.
2.
Counsel Lied To the Court Regarding Their Intention To
Obtain a Book or Movie Deal on Behalf of Petitioner’s Family
656. The family retainer agreement specified that the Hernandezes would
receive money from the family for their legal services when they received
payment for the book or movie rights to Petitioner’s story. They expected to be
paid early on in the case by the family’s attorney, Manuel Barraza, or by the
family. Petitioner’s agreement did not require him to pay any funds for his
defense. The client retainer agreement bound the attorneys to represent Petitioner
through trial court proceedings.
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657. On October 22, 1985, Petitioner appeared in a closed, in camera
hearing with Mr. Gallegos, and Daniel and Arturo Hernandez. Petitioner
indicated that he wished to substitute the Hernandezes as counsel. Daniel
Hernandez informed the court that he had been retained by Petitioner and his
family, and that an official contract had been prepared and signed by the parties.
When asked if he had been paid for the representation, Daniel Hernandez said he
was not comfortable discussing that information with the court. (Sealed RT of
October 22, 1985 hearing, 2-4.)
658. When the court asked trial counsel for assurances that they had the
financial resources to litigate the case, Arturo Hernandez stated
the financial...area in this case has no bearing on my duties and my
abilities to appear in this case. I think that once we undertake the
case, we have the ethical duty to the court and to our client primarily
to assist him and give him effective assistance of counsel, as is his
constitutional right. I feel awkward in being asked that type of
question. Of course I’m going to be available for this court.
(Sealed RT October 22, 1985 hearing, 20.) He further stated “we have made
arrangements for associate counsel. . . [for] people to assist and all the resources
are there. I don’t see any problems with that at all, no matter how long it takes, if
it takes, we are anticipating at least two years.” (Id.)
659. Once the prosecution was excused from the room, Daniel Hernandez
informed the court that they had agreements with both Mr. Ramirez and his
family and that the family was responsible for payment of Petitioner’s defense.
When asked what the family’s source was, Daniel Hernandez replied, “I really
can’t comment on that. I am really not necessarily aware of that, and I am not
necessarily anxious to discuss their finances at all.” (Sealed RT October 22,
hearing, 30.) The court noted that Mr. Barraza has been on television soliciting
attorneys to take the case based upon fee arrangements from television, movie
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and books rights. The trial court stated, “if there is any thought of that being
involved, it is necessary for [the court] to know because there are potential
conflicts...which Mr. Ramirez can waive, but the court must be aware of them
and Mr. Ramirez must be aware of them.” (Id. at 31.) Daniel Hernandez replied,
It is not really our business to know anything of where the family
gets its money....We have no interest. We have no contracts that
include those type of arrangements. We have had no conversations
or discussions with anyone concerning those type of arrangements. .
. It would be our ethical responsibility in our perspective, in our
eyes, to inform the court of all the developments in those directions.
(Id.)
660. At a hearing later that day, the court stated that it was “concerned
about any agreement regarding any rights, book rights, life story rights. . .even
though that agreement may be between Mr. Ramirez’ family and Mr. Barazza.”
Arturo Hernandez clarified that he never said such a thing regarding Mr. Barraza,
repeating again that “we have no knowledge, whatsoever, of any [book or movie
deal] negotiations.” (Id. at 37).
661. After the court noted that television reports indicate that the family
has very limited financial resources available to them, the court asked counsel,
“knowing that you may not be receiving funds or insufficient funds (sic) to cover
this type of case in the future, are you still willing to undertake this case, knowing
that you will not be appointed by the court?” (Id. at 38). In a statement that
would follow him for the rest of the case, Arturo Hernandez replied
[W]e undertake this case knowingly and fully conscious of the
possibilities that this case might extend beyond the means of the
family at this point. However, we are willing to undertake the case
under those circumstances anyway, and we are fully aware of the
tremendous amount of work that we are undertaking, but we have no
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problems with that. . . . Although we are retained in this case, if that
case comes about, we are willing to do the rest of it pro bono
anyway.
(Id.)
662. He also added that, “[the Ramirez family’s] means are modest, they
have a substantial amount of family members contributing to the case”—a highly
misleading statement, given that the Ramirez family had not paid the
Hernandezes at all. (Id. at 39)
663. Upon further questioning, it was revealed that Petitioner had not
signed a retainer agreement with the Hernandezes; rather, he had signed
substitution of counsel forms and it was Petitioner’s family who had signed a
written agreement. (Sealed RT October 22, 1985 hearing, 40.) The court
ultimately ordered the Hernandezes to reduce Petitioner’s retainer agreement to
writing so that an independent attorney could review it. The motion to substitute
counsel was put over for two days. (XVII CT 4984-4988).
664. On October 24, 1985, after denying attorney Gallegos’s motion for a
psychiatric evaluation of Petitioner, the trial court advised Mr. Ramirez that
“your attorneys have a contract with you and with your family, those two
contracts may at some point be in conflict. . . Do you understand that possibility
does exists?” Petitioner replied “it does exist but I feel there will be no conflict.”
(XVII CT 5006.)
665. The court noted that the Hernandezes had previously called the
family their “client” and advised counsel that Petitioner was to have “prime
consideration.” Counsel were further instructed to inform the court “if at any time
there is the slightest possibility that a potential conflict might exist.” Arturo
Hernandez assured the court that he understood the court’s directive and asserted
that they did not anticipate a conflict of interest, noting that they used their
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standard retainer agreement which had been used in many cases. (XVII CT
5007-08).
666. Despite what Daniel Hernandez told the court, he encouraged
Rosario, from the first day they met, to persuade Petitioner to sign a contract46 for
a book or movie deal. Daniel was very persistent, talking to her six or seven
times throughout the investigation and trial. Daniel told Rosario that in order for
he and Arutro Hernandez to provide Petitioner with a strong defense at trial, it
was important for Petitioner to sign a book or movie contract. Daniel told her
that they needed money to help build a defense and that a book deal would help
667. Daniel took Rosario to a meeting with a Hollywood producer
interested in Petitioner’s story. The deal fell through when Petitioner refused to
sign the contract. After that, Daniel told Rosario that he would continue to work
on obtaining a deal. (Id.)
C.
Trial Counsel’s Conflict of Interest Adversely Affected Representation
668. In order to obtain relief under Sullivan, a defendant must show that
his counsel’s performance was adversely affected by an actual conflict of interest.
Sullivan, 446 U.S. at 348. Actual conflict need not be a direct conflict, and it
need not be established separately from adverse effect. Hovey v. Ayers, 458 F.3d
892, 908 (9th Cir. 2006) (citing Mickens v. Taylor, 535 U.S. at 172 n. 5).
“Adverse affect” means that “that some plausible alternative defense strategy or
tactic might have been pursued but was not and that the alternative defense was
inherently in conflict with or not undertaken due to the attorney’s other loyalties
or interests.” Id.; see also United States v. Wells, 394 F.3d 725, 733 (9th Cir.
Even though Rosario was the legal holder of the rights to Petitioner’s
story, Mr. Ramirez’s cooperation was required to secure a media agreement
because he was presumably the only person who would know certain facts
pertaining to his alleged criminal activity.
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2005) (internal quotation marks omitted); see also United States v. Shwayder,
F.3d 1109, 1118 (9th Cir. 2002) (alternatively describing the standard as
requiring “that counsel was influenced in his basic strategic decisions” by the
conflict).
1.
Petitioner’s Interests and That of His Family Were In Conflict
669. Petitioner’s best interests before and during trial and that of his
family were divergent and irreconcilable. The fee agreement placed counsel in an
untenable position between client’s best legal strategy – which included the
adoption of a mental health defense at the guilt phase and/or and the presentation
of his impoverished and abusive upbringing at penalty – and the financial and
privacy interests of his family.
670. In this case, the prospect of a book or movie deal further divided
counsel’s loyalties. For example, more than once, Petitioner’s family voiced their
concerns about protecting their monetary interest in Petitioner’s case: the
Ramirezes expected to receive in excess of $300,000 for Petitioner’s story. (Ex.
18, H. Hall Dec., ¶ 3). Since trial counsel was dependent on the Ramirez family
for the entire balance of the retainer agreement, counsel could not offend or
embarrass them during the investigation or presentation of Petitioner’s case. The
fact that no book or movie deal developed during the case, only furthered the
Hernandezes’ indebtedness to the Ramirez family, and gave counsel an ongoing
incentive to defer to the interests of the family over Petitioner’s.
671. Counsel’s third-party fee arrangement was a violation of the
California State Bar rules in effect in 1985, which stated that counsel shall not
accept employment adverse to a client (Rule 4-101); knowingly acquire an
interest adverse to a client (Rule 5-101); or represent conflicting interest (Rule 5-
102). Under the 1989 State Bar rules, an attorney shall not accept compensation
from one other that the client unless “there is no interference with the member’s
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independence of professional judgment or the client-lawyer relationship.” (Rule
3-310(E)(1).)
2.
Counsel Failed to Pursue Mental Health Defenses Because Doing
So Would Have Diminished the Value of the Media Rights and
Brought Shame to the Ramirez Family
672. From the outset of Petitioner’s case, it was clear that a competency
hearing and/or a mental health defense should have been investigated and raised.
The bizarre nature of the crimes, Petitioner’s irrational outbursts in court, and his
unusual behavior in attorney-client meetings all indicated that he suffered from a
major mental disorder. (See XVII CT 5020 (Petitioner’s shouted “Hail, Satan!”
in court); Ex. 18, H. Hall Dec., ¶ 4 (describing Petitioner as “irrational and
agitated”); Ex. 128, M. Barraza Dec., ¶ 7 (stating that Petitioner exhibited
extreme mood swings; his dialogue was remarkable for it incoherence and
irrationality; Petitioner was unable to listen to counsel’s advice).)
673. However, when attorney Joseph Gallegos moved for a competency
evaluation just prior to the Hernandezes’ substitution, Arturo Hernandez
objected, stating that Petitioner had no trouble understanding the proceedings.
(XVII CT 5003.) The Hernandezes never again moved for a competency
evaluation, nor did they present any kind of mental health defense at trial. There
is no legitimate reason why competent counsel would have refrained from
pursuing a finding that Petitioner was incompetent or not guilty by reason of
insanity, given that it was true and it would have spared Petitioner the death
penalty.
Daniel and Arturo Hernandez claimed they did not pursue a mental state
defense at trial because Petitioner did not want to be considered mentally ill.
However, Ray Clark admits there was very little discussion about Petitioner’s
mental condition or his background. He believes that Petitioner was “nuts” and
unable to assist counsel in a rational manner. (Ex. 16, R. Clark Dec., ¶¶ 7-8).
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674. However, a finding that Petitioner was not criminally liable due to
his mental state would have diminished the value of the media rights held by the
family. A competency hearing, including a thorough examination of Petitioner
by a psychiatrist, might have answered some of the lingering questions the public
andpress held about Petitioner’s mental health, given the bizarre behavior
involved in some of the crimes. If such information were to come out as a public
hearing, it would lose its appeal to a literary agent seeking exclusive material.
Furthermore, if Petitioner had been found legally incompetent, the veracity of any
subsequent interview he gave would have been seriously undermined. Keeping
this information secret benefitted the Ramirez family as the holder of the rights to
Petitioner’s life story.
675. With regard to an insanity defense at trial, a finding that Petitioner
was not guilty by reason of insanity (NGRI) would have brought shame to the
Ramirez family. Although Petitioner would not be considered legally responsible
for his conduct, an NGRI verdict would have nonetheless been an
acknowledgment that he did have a role in committing the crimes. Such a finding
could have also given credence to law enforcement accusations that the Ramirez
family knew about the murders, or played a role in hiding clear evidence of
homicide. (See e.g. Ex. 83, Stalker May Have Mailed Eyes to Kin, undated,
(referencing the search of Rosario’s house for the eyes of one of the victims.
Because of the intense media scrutiny they received, the Ramirezes had a strong
desire to clear the family name, a goal that would not be accomplished if
Petitioner were found incompetent or not guilty by reason of insanity. See also
infra subsection D(2); Claim 8.
Because counsel has an obligation to investigate and present mental health
defenses where doing so is in the client’s best interest, counsel’s deference to
Petitioner’s alleged wishes is not a valid strategic reason for their performance.
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676. Counsel had no strategic reason to forgo pursuing a finding of
incompetence or not guilty by reason of insanity, particularly because a finding of
either incompetence or NGRI would have spared Petitioner the death penalty.
But because counsel could not pursue either of those alternatives without
diminishing the value of the media rights, or shaming the Ramirez family,
counsel’s representation was adversely affected by the conflict of interest created
by the third-party fee arrangement.
3.
Counsel Refrained from Obtaining and Presenting Penalty
Phase Mitigation Information that was Unfavorable to
Petitioner’s Family
677. The family’s adverse interests also interfered with Petitioner’s
constitutional right to an adequate penalty phase investigation and mitigation
presentation. One of the defense paraprofessionals declares that counsel limited
her investigation of the case to brief interviews of family members. (Ex. 14, K.
Baur Dec., ¶ 3-4.). Thus, she could not develop medical, psychosocial,
institutional, familial, or other sources of mitigation, because counsel and the
family essentially erected a wall around any information regarding Petitioner,
preventing her from conducting the critical investigation. (Id., ¶ 4 (“It seemed
purposeless to limit our work . . . when we were aware of many areas of
investigation, including . . . psychiatric, . . . and family dynamics that would have
yielded significant mitigation evidence on Petitioner’s behalf.”)
678. Had counsel conducted a thorough mitigation investigation,
including effective interviews with family members, neighbors and others, it
would have revealed information that was valuable to Petitioner’s defense but
embarrassing to the Ramirez family. For example, Petitioner’s mother may have
contributed to his brain impairments through her employment at the Tony Lama
Boot factory, where she worked while pregnant with Petitioner. She was told the
fumes might harm her unborn child, but continued working there because she
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needed the money. (Ex. 32, M. Cornell Dec., ¶ 21; Ex. 103, M. Ramirez Dec., ¶¶
5-6.) Meanwhile, Petitioner’s father, Julian Ramirez, Sr., had a violent temper
and beat his sons (except for the disabled Ignacio); he hit them with a water hose,
electrical cords, and belts. He beat Petitioner many times, hard enough to leave
bruises on Petitioner’s legs. He once brandished a gun at his son Robert. (Ex.
32, M. Cornell Dec., ¶¶ 64, 69; Ex. 104, Robert Ramirez Dec., ¶¶ 2-4; Ex. 105,
679. In addition to outright abuse, Petitioner suffered neglect because his
parents were focused on the numerous problems of his older brothers: Julian
Ramirez, Jr., was born with a birth defect, was mentally retarded, sexually abused
by a special education teacher and became a life-long heroin addict, who has been
in and out of jail, mostly on drug-related offenses. (Ex. 32, M. Cornell Dec., ¶¶
22-23; Ex. 67, J. Ramirez Dec., ¶¶ 4-6; Ex. 103, M. Ramirez Dec., ¶¶ 9-10; Ex.
105, Rosario Ramirez Dec., ¶ 3; Ex. 106, School Records of Julian Ramirez, Jr.).
680. Petitioner’s brother, Ignacio Ramirez, suffered painful bone
deformities in his legs and ankles that required frequent doctor visits and
numerous surgeries and was also mentally retarded. (Ex. 32, M. Cornell Dec.,
¶ 26; Ex. 103, M. Ramirez Dec., ¶ 12; Ex. 102, I. Ramirez Dec., ¶¶ 7-8, 15; Ex.
105, Rosario Ramirez Dec., ¶ 4; Ex. 109, School Records of Ignacio Ramirez.)
681. Petitioner’s brother, Robert Ramirez, had difficulty learning to speak
and was classified as the educable mentally retarded. Robert was sexually abused
by the same special education teacher who sexually abused his older brother
Julian, Jr. Robert began getting into trouble with the law when he was a teenager.
Robert dropped out of school in the tenth grade. He was convicted of theft and
other crimes, and. at the age of eighteen was incarcerated for approximately two
years. Thereafter, his life continued to be unstable. Robert has been diagnosed
with bipolar disorder and schizophrenia. (Ex. 32, M. Cornell Dec., ¶ 26; Ex. 103,
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M. Ramirez Dec., ¶ 13; Ex. 104, Robert Ramirez Dec., ¶¶ 15, 17; Ex. 105,
Rosario Ramirez Dec., ¶ 5; Ex. 107, School Records of Robert Ramirez.)
682. Petitioner was also exposed to extreme levels of violence through his
cousin Miguel Valle, a Viet Nam veteran. He showed, or described, to Petitioner
photographs that he claimed to have brought back from Viet Nam – photographs
that depicted Valles and others participating in rape, violence, torture, murder,
and other atrocities against Vietnamese prisoners. Valles sexualized the atrocities
he described to Petitioner. Petitioner was extremely upset after he spent time
with Valles, however, Valles remained a strong influence on Petitioner. When
Petitioner was thirteen years old, Valles shot and killed his wife – in front of
Petitioner. Valles was arrested and charged in the killing. Petitioner witnessed
the shooting, and, later, after Valles had been arrested, returned to and observed
the blood-soaked crime scene. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 69, M.
683. All of the above information could have been presented as part of a
compelling penalty phase mitigation presentation. But because counsel was
dependent upon the Ramirez family to recover the enormous costs of Petitioner’s
defense, they were not in a position to confront the family about the role they
played in Petitioner’s abusive, neglectful and traumatic upbringing.
4.
The Fee Arrangement Caused Petitioner’s Defense to be
Underfunded, Resulting in Unwarranted Delay and Counsel’s
Absence from Critical Portions of the Trial
684. The third-party fee arrangement the Hernandezes secured with
Petitioner’s family severely affected their ability to litigate the case in a
competent and timely manner. When the Hernandezes initially requested to be
substituted as counsel, Arturo Hernandez assured the court that “all the resources
are there . . . no matter how long it takes” to fully defend Petitioner’s case (Sealed
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RT of October 22, 1985 hearing, 20). He did not inform the court that neither he
nor Daniel Hernandez had actually been paid by the family, or that they expected
to be paid early on in the case from the proceeds of a book or movie deal. When
a deal did not materialize, Arturo Hernandez was forced to take additional
retained work over the next four years, from 1985 through 1989.
685. Even before trial began, it became apparent that counsel’s lack of
funding was causing unwarranted delay. Early on, Arturo Hernandez explained
that one of the reasons he had not filed a suppression motion was because “Mr.
Ramirez is an indigent defendant. . . . he doesn’t have the means or the resources,
as the People do, to maintain a pace that is required by the People.” (19 RT 906-
07). Failure to file timely motions became routine, causing the court to chastize
trial counsel for their tardiness (see, e.g., 26 RT 1855) and for raising financial
matters as grounds for delaying the case. (See, e.g., 41 RT 2933-40; 43 RT 3006-
08.) The Hernandezes were informed that “financial concerns are not reason
really (sic) to continue this case. You owe [Mr. Ramirez] a duty of at least warm
zeal on this case, and of course, as officers of the court—this court, owe prompt
attention to this case.” (Id. at 3007.)
686. By May 1987, the Hernandezes had to close down their local offices,
telling the court “we’re broke. We had to move home [to San Jose].” (Sealed
May 4, 1987, 30A RT 2199.) Even the court’s appointment of another attorney,
Michael Carney, to assist in writing motions, did not improve the situation
because Daniel and Arturo Hernandez were always in San Jose working on other
cases and were unable to confer on Petitioner’s case. (Sealed September 23,
1987, 33A RT 2331-32).
687. During an unsuccessful attempt to get appointed by the court, Arturo
Hernandez explained the shortage of funding by saying that “the case originally
seemed something that was totally indefensible....[now] we find the case has
turned out to be very defensible. . . .the monies we’ve agreed to with the family
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are totally inadequate” to defend the case. (Sealed September 29, 1987, 33B RT
2346.) With trial just one month way, Arturo Hernandez claimed that the
Ramirez family’s inability to pay would cause them “to give less than adequate
representation and render ineffective assistance of counsel to our client, because
we have to work and try to survive and maintain some sort of practice.” (Sealed
September 29, 1987, 33C RT 2358).
688. After trial began, Arturo Hernandez simply stopped appearing in
court. During Arturo Hernandez’s four-month absence between September 26,
1988, through January 23, 1989, Daniel Hernandez, who had no previous capital
litigation experience, conducted voir dire, including Hovey48 examination. (See
Hernandez was also absent during other proceedings critical to Petitioner’s
defense, including the prosecution’s entire case-in-chief, and jury instruction
conferences.
689. Eventually, Arturo was only maintaining contact with the court by
telephone, and even then, he often failed to do so. (173 RT 20186). At one
point, Daniel Hernandez could not locate Arturo through relatives, and did not
know whether he was even in the country. (Sealed October 3, 1988 96A RT
10144). “It is crippling to me to have someone on board as co-counsel who can’t
Hovey v. Superior Court, 28 Cal. 3d 80, 616 P.2d 1301, 168 Cal. Rptr.
128 (1980).
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-13, 8115-19,
8121-26, 8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286,
8294-95, 8299, 8315, 8321, 8324, 8327-28, 8331-33, 8336-39, 8341, 8353, 8360,
8369-70, 8379-81, 8383; XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412,
8419, 8426, 8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
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function. . . it is almost better not to have one,” Daniel Hernandez told the court
in his request to relieve Arturo from the case. (Id. at 10153.)
690. In January 1989, Daniel Hernandez attempted to force the court into
giving him county funding, claiming that his representation of Petitioner would
suffer without additional money for the defense. During an in camera hearing,
the court accused him of extortion:
Mr. Hernandez, when you tell the court that if you don’t get
appointed you are going to withdraw, or if you don’t get appointed
you are going to do less than diligent work on this case, as you
appear to state in these motions, that is frightening to me because
that is extortion. And I will be honest with you, this court is not
going to be extorted.
(Sealed January 20, 1989, 140A RT 16005.)
691. The court also correctly discerned that counsel had previously lied at
the time of their substitution, noting, “you said, in effect, that you misrepresented
to Judge Soper your [financial] position for matters of expediency.” (Id. at
16006.) The court denied Daniel Hernandez’s request for appointment and stated
“this kind of representation from a member of the bar is something I simply never
even contemplated.” (Id. at 16006-07.)
692. When that tactic did not work, Daniel Hernandez claimed that the
stress of defending the case alone caused his health to suffer such that he could
not attend trial. On February 21, 1989, Daniel Hernandez failed to appear. He
telephoned the court to report that he was ill and would be absent for one week.
In a letter to the court, his physician stated: “I do not feel he is presently capable
of functioning effectively as a trial attorney. My estimate of additional time
required to recuperate would be four to six weeks.” (Ex. 11, Letter from John
Pace, M.D., regarding patient Daniel Hernandez, Esq., dated 02/24/1989 (State
Habeas Exhibit 8A).) In a hearing on March 1, 1989, Daniel Hernandez
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explained that he was unable to adequately represent Petitioner – could not “carry
the load” – and needed yet another counsel to assist “in this enormous trial.”
(153 RT 17609-11.) The court found no legal cause to delay the trial. (Id. at
17606, 17614-16.)
693. The lack of funding also adversely affected counsel’s ability to
present defense witnesses. In June 1989, Daniel Hernandez claimed that he could
not comply with the court’s schedule regarding defense witnesses because he had
spent all of his money. Later, the court questioned how delaying the testimony
would change the situation, telling Daniel Herndandez “you are going to be in the
same boat, aren’t you? You are dead broke now. You are not eating.” (Sealed
June 26, 1989 hearing, 199A RT 23267). Hernandez replied “well I’m eating but
I’m not paying rent.” (Id.) When counsel could not get a continuance of the
testimony, Daniel Hernandez flatly told the court “I can’t do it.” (Id. at 23269.)
The then court accused Hernandez of attempting to create reversible error, to
which counsel replied, “I’ve been going without anything for myself for four
years and now I have to eat my pride again and say I’m broke, and even then you
stuff it down my throat.” (Id. at 23270.)
694. The lack of funding, a direct cause of counsel’s unethical third-party
repeated statements that they could not be effective under such circumstances
indicate that a presumption of prejudice is warranted.
5.
The Mid-Trial Appointment of Ray Clark Did Not Cure the
Adverse Affect Caused by the Hernandezes’ Third-Party Fee
Agreement
695. At various times, Daniel Hernandez sought appointment to
Petitioner’s case pursuant to § 987, citing his financial problems because the
family was unable to pay his fees. (XXVIII CT 8242-46.) The court refused to
appoint counsel under Penal Code § 987.2, which provides for appointment of
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counsel to represent an indigent defendant, because he was not qualified to be
appointed as counsel in a capital case. Eventually, the court appointed Ray Clark
to assist Daniel Hernandez because Hernandez felt he could not defend Petitioner
alone, as he had been doing for months. (Ex. 16, R. Clark Dec., ¶ 5). Clark,
however, was not appointed until March 1989, when trial was underway, and he
had no time to review discovery prior to his involvement in the case. (Id. at ¶¶ 2,
6.) Clark’s role was thus extremely limited, and he merely considered himself
Daniel Hernandez’s assistant. (See Id. at ¶ 6.)
696. This likely due to the fact that Ray Clark suffered from his own
third-party payment conflict of interest. Though he was appointed and paid by
the court, Clark had agreed to pay Daniel Hernandez 30% of all of his fees in
exchange for “referring” him the Ramirez case (Ex. 16, R. Clark Dec., ¶¶ 3),
which was not revealed to the court at the time of Clark’s appointment. (Sealed
March 7, 1989, 153A RT 17618-24.) Because Clark was dependent on Daniel
Hernandez’s continued consent to his appointment, Clark was in no position to
challenge Daniel’s strategy or judgment.
697. Clark’s presence did not cure the delays and errors that were made
prior to his appointment to the case. Furthermore, Clark did not exercise
sufficient authority over Daniel Hernandez to prevent the adverse affects that
occurred during the defective guilt and penalty phase presentation, due to the
Hernandezes’ third-party fee arrangement with Petitioner’s family.
D.
Alternatively, Counsel’s Conflict of Interest Rendered Them
Ineffective Within the Meaning of Strickland
698. If the Sullivan test does not apply to a defendant’s conflict of interest
claim, relief may nevertheless be obtained under the usual Strickland standard for
ineffective assistance of counsel. Under Strickland, a defendant must prove that
his counsel’s performance was deficient and that he was prejudiced as a result.
Strickland, 466 U.S. at 694.
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699. “Deficient performance” under Strickland is comparable to “adverse
affect” under Sullivan. See Mickens, 535 U.S. 174. Petitioner has demonstrated
that his counsel’s representation was adversely affected by the third-party fee
arrangement between the Hernandezes and the Ramirez family. Counsel’s
deference to the interests of the family caused Hernandezes to forgo a mental
health defense, a proper penalty phase investigation and presentation and
prevented Petitioner’s case from being litigated in a timely manner. There was
no valid strategical reason for any of these actions. As a result, counsel’s
performance was deficient.
700. Petitioner suffered prejudice from counsel’s failure to litigate his
competency, raise a mental health defense or present mitigation evidence at
penalty. Had the jurors known of Petitioner’s severe and long-standing mental
illness and impairments, they would have given full consideration to all the
relevant evidence bearing on the question of guilt and sentence. Several of the
trial jurors indicate they would have considered all evidence bearing on
Petitioner’s guilt. The jurors report, that had the defense presented more
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30.)
701. Several of the jurors indicate they expected to hear evidence
presented by the defense to save their client’s life. Mitigation evidence could
have had a difference in the outcome. Evidence presented on Petitioner’s behalf
would have been carefully considered during four days of deliberations,
particularly evidence of Petitioner’s background and mental condition. (Exs. 28-
30.) Counsel’s failings made Petitioner even less sympathetic in the eyes of the
jury and inclined it toward death.
702. Counsel’s conflicts of interest deprived Petitioner of any reasonable
opportunity of receiving a fair trial and fair and reliable determination of guilt
and penalty under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments.
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703. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 5:
THE COURT DENIED PETITIONER HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL BY PERMITTING THE
SUBSTITUTION OF COUNSEL WHO WERE UNQUALIFIED AND
SUFFERED FROM A PROFOUND CONFLICT OF INTEREST
704. Exhaustion of the claim: Portions of this claim was fairly presented
to the California Supreme Court in the direct appeal. It was presented in Section
I of the Opening Brief. This claim will also be presented in the state exhaustion
petition Mr. Ramirez will file in March 17, 2009.
705. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
706. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
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incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
A.
The Trial Court Violated Petitioner’s Constitutional Rights By
Allowing Him to be Represented By Unqualified Counsel
707. The trial court’s substitution of unqualified counsel who suffered
from an obvious conflict of interest violated Petitioner’s right to the effective
assistance of counsel. In denying this claim on direct appeal, the California
Supreme Court held that “the trial court correctly recognized that the defendant
has the right to counsel of his choice.” Ramirez, 39 Cal. 4th at 424. This holding
misapprehends Supreme Court jurisprudence on the qualified nature of the
defendant’s right to choose counsel as well as the court’s power to intervene
when the defendant’s choice would impair the fair and orderly administration of
justice.
1.
Trial Courts Have the Right to Refuse Counsel of Choice in
Order to Ensure the Fairness of the Proceedings
708. The Sixth Amendment’s guarantee to the right to the assistance of
counsel is accorded to “ensure that criminal defendants receive a fair trial.”
Strickland v. Washington, 466 U.S. at 689. Thus, while the right to select and be
represented by one’s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to ensure that each criminal
defendant receives an effective advocate who can ensure the fairness of the
adversarial process, rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers. Wheat v. United States, 486 U.S.
153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).
709. In most circumstances, a defendant has “the right to be represented
by an otherwise qualified attorney whom that defendant can afford to hire, or
who is willing to represent the defendant even though he is without funds.”
United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 165 L. Ed.
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2d 409 (2006). This right, however, is circumscribed in several important
respects. A defendant cannot insist on being represented by someone who is not
a member of the bar, or who suffers from a conflict of interest. Id. at 152; see
infra, Section (B)(1).
710. Likewise, the Supreme Court’s Sixth Amendment jurisprudence
“recognize[s] the authority of trial courts to establish criteria for admitting the
lawyers to argue before them.” Gonzalez-Lopez, 548 U.S. at 151. In exercising
this authority, courts have “wide latitude in balancing the right to counsel of
choice against the needs of fairness” and against the court’s schedule. Id.
711. Trial courts also have an “independent interest in ensuring that
criminal trials are conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.” Id. at 152, (citing
Wheat, 486 U.S. at 160); see also United States v. Stiles, 56 F.3d 1020 (9th Cir.
1995) (court properly refused the substitution of retained counsel who had
committed unethical conduct earlier in the proceeding, even though attorney’s
actions did not rise to the level of contempt); United States v. Walters, 309 F.3d
589, 592 (9th Cir. 2002) (defendants choice of counsel does not have to be
respected if “would unreasonably delay proceedings or burden the court with
counsel who was incompetent or unwilling to abide by court rules and ethical
guidelines.”); United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir. 2007) (court
properly refused counsel of choice where counsel had past and pending ethical
violations, filed motions of dubious merit and would delay proceedings).
2.
Counsel’s Lack of Qualification and Experience Posed An
Obvious Threat To The Fairness of Proceeding At The Time of
Substitution
712. On September 3, 1985, the Municipal Court appointed the Public
Defender of Los Angeles County to represent Petitioner. (XIX CT 5465.) After
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that, the court relieved the public defender and privately retained counsel Joseph
Gallegos appeared on Petitioner’s behalf on October 9, 1985. (Id. at 5469.)
713. On October 22, 1985, Petitioner sought to substitute newly retained
counsel Daniel Hernandez and Arturo Hernandez in place of Joseph Gallegos.
(XVII CT 4981.) Prior to allowing the substitution, the court held an in camera
hearing to question the Hernandezes on their qualifications which, as the
colloquy revealed, were seriously deficient for a case of this magnitude. Daniel
Hernandez had only been admitted to practice for three years and reported he had
handled approximately 15-17 jury trials, only four of which involved charges of
murder. He had never handled a death penalty case. He admitted that he had
been held in contempt for not appearing on time and had, on one or two
occasions, been fined $100. He stated that “the most notorious time [he] had
been held in contempt,” he had been put in jail with his client in the middle of a
murder trial for failing to appear in another court in which his presence was
required. (Sealed October 22, 1985, RT 3-14).
714. Arturo Hernandez was similarly lacking in experience. He had only
been admitted to the Bar two years prior and had never tried a death penalty case.
He too admitted that he had been held in contempt twice and fined $100,
referring to his citations as a “ritual that we go through as young attorneys.”
(Sealed October 22, 1985, RT 15-17).
715. When open court resumed on October 22, 1985, the court noted that
Petitioner’s case was unusual and that he faced numerous serious charges and
special circumstances that could lead to the “gravest of possible consequences.”
(XVII CT 4983-84.) Significantly, the court explicitly informed Petitioner that,
neither Daniel Hernandez nor Arturo Hernandez have the legal
experience which would qualify them to be appointed by this court
to represent him in this case, nor do either attorney meet the
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qualifications set forth by the Los Angeles County Bar for the
indigent criminal defense appointment panel.
(XVII CT 4984-85.) The court specifically held that under the Bar plan, an
attorney must have practiced law for a minimum of ten years, have been counsel
of record in at least forty jury trials, thirty of which must have been felonies, and
have been counsel of record in at least three cases in which murder charges were
alleged and they must have tried at least one murder case to a jury. (Id. at 4985.)
716. The court further noted that both Daniel Hernandez and Arturo
Hernandez had been found in contempt of court on at least two occasions in Santa
Clara County where they ordinarily practiced and that contempt proceedings in
another case were pending against Daniel Hernandez.50 (Id. at 4986.) Due to the
fact that Petitioner had been in custody and unable to interview various attorneys,
the court ordered counsel Daniel Hernandez and Arturo Hernandez to disclose to
Petitioner any complaints by clients, citations for contempt of court, or
allegations of ineffective assistance of counsel. The court also offered the
assistance of independent counsel to help Petitioner review any information
provided by counsel. (Id. at 4986-88.) The court put the matter over for two
days. (Id. at 4989.)
717. At the next hearing on October 24, 1985, before the court ruled on
the substitution motion, attorney Gallegos explicitly informed the court that he
was “gravely concerned” about Petitioner’s “present mental state, his ability to
choose his own attorney and other related matters concerning this trial,” and
Counsel Daniel Hernandez informed the court that he was counsel of
record in the trial court in People v. Ortiz. (See Misc. Sealed (October 22, hearing) RT 8.) In People v. Ortiz, 51 Cal. 3d at 980, the state court held that
both Daniel Hernandez and Arturo Hernandez should properly have been
discharged by the trial court as retained counsel on the defendant’s motion based
on their incompetence in a pending murder case.
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moved for a psychiatric examination of Petitioner as to his mental state pursuant
to Penal Code § 1368. (XVII CT 4995). The court asked briefly of Petitioner
regarding his education and potential conflicts of interest with respect to the
retainer agreements with Daniel Hernandez and Arturo Hernandez. (XVII
CT 5005-09.) The court denied Mr. Gallegos’s request to suspend criminal
proceedings under Penal Code § 1368. (Id. at 5003.)
718. Turning to the motion for substitution, the court inquired whether
counsel had disclosed “any facts, both positive and negative, which would
bear...on your ability to represent” Mr. Ramirez. (XVII CT 5009). Counsel
claimed this had been done. However, the court nothing to verify that either
Daniel Hernandez or Arturo Hernandez disclosed anything to Petitioner as the
court had previously ordered. (See Id.)
719. Despite having previously acknowledge that “it is the duty of the
trial court to protect the defendant’s right to a counsel who is effective” (XVII CT
4983), the court permitted substitution of unqualified Daniel Hernandez and
Arturo Hernandez. (XVII CT 5009-10, 5014-15.) This was a violation of the
court’s duty to ensure that the uninformed choice of a defendant’s counsel does
not endanger the fairness of the proceeding. Gonzalez-Lopez, 548 U.S. at 151.
3.
Counsel’s Incompetent And Unethical Conduct Throughout The
Trial Should Have Prompted Their Removal By The Trial Court
720. Later in the case, the judge hearing the motion for a change of venue
called a special in camera session to comment on the incompetence of
Petitioner’s attorneys:
Now, I am calling this hearing, Mr. Ramirez, to tell you that I
reluctantly have to tell you that in my opinion your lawyers are
See infra Section (B)(2) for a more detailed recitation of the facts
surrounding the court’s erroneous ruling on counsel’s conflict of interest.
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incompetent. Now, I have had this case for six months and I must
say that I am convinced that your lawyers are nice guys, good
company, maybe good fellows to spend an evening with. I am also
convinced that they are dedicated to your defense emotionally. But I
must tell you that in my opinion they are not competent to handle
your case. I don’t think that they have sufficient experience in the
law. I don’t think that they have the staffing, if you will, or
whatever, to do the job....
I am telling you now... I don’t think they know the law well enough, I
don’t think they know the rules of evidence well enough, they are not
ready to present the evidence and push it through.... I am just telling you
this because I have no personal axe to grind at all, I simply want to see that
whatever happens in this case is done right and you get your rights
protected, that whatever conclusion is reached is right. And I am telling
you now that your rights are not being protected.
(Sealed January 6, 1987, 16-A RT 733-37.) Despite the court’s clear
acknowledgment that Petitioner’s rights were not being protected, the court
declined to remove counsel from the case.
721. Once trial resumed, the court repeatedly failed to protect Petitioner’s
Sixth Amendment right to counsel despite being made aware of counsel’s lack of
qualifications, experience, knowledge, and professionalism with respect to
representation of Petitioner in a capital murder trial.
722. At various times, Arturo Hernandez abandoned Petitioner by failing
to appear in court for trial proceedings.52 For example, on October 3, 1988, the
In People v. Ortiz, 51 Cal. 3d at 981, the California Supreme Court
noted that both Daniel Hernandez and Arturo Hernandez failed to appear at Ortiz
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trial court sent a letter to Arturo Hernandez regarding his absence from trial.
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
Arturo Hernandez. (Id. at 8111.) However, after conducting a hearing on
October 25, 1988, the court decided not to require Arturo Hernandez to attend all
of the trial proceedings. (See I Supp. CT VIII 2133-2215; XXVIII CT 8114.)
Arturo Hernandez was absent from many trial proceedings critical to Petitioner’s
defense, including jury selection, the prosecution’s presentation of its entire case-
in-chief, and jury instruction conferences.53 The trial court subsequently ordered
Arturo Hernandez to maintain telephone contact with the court during trial. (See
173 RT 20186.)
723. Owing to the four-month absence of Arturo Hernandez between
September 26, 1988, through January 23, 1989, the court permitted Daniel
Hernandez, who had no previous capital litigation experience, to conduct voir
dire, including Hovey54 examination. (See XXVIII CT 8087-88, 8094, 8098,
724. Other instances of counsel’s ineffective assistance of counsel are
pervasive in the record. Daniel Hernandez and Arturo Hernandez failed on
numerous occasions to abide by court orders and failed to appear at trial. For
example, during the prosecutor’s guilt phase closing argument on July 13, 1989,
both Daniel Hernandez and Arturo Hernandez were absent from trial and the
trial.
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-19, 8121-26,
8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95, 8299,
8315, 8321, 8324, 8327-28, 8331-33, 8336-38, 8345, 8353, 8360, 8369-70, 837981, 8383; and XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412, 8419, 8426,
8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
Hovey v. Superior Court, 28 Cal. 3d at 80.
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court was forced to recess in their absence. The trial court issued a body
attachment for Daniel Hernandez. (XXIX CT 8484.) On July 14, 1989, the court
quashed the attachment and ordered Daniel Hernandez to be present at all
hearings. (Id. at 8487.)
725. Arturo Hernandez was again absent from closing argument in the
guilt trial on July 17, 1989. The court issued a body attachment for Arturo
Hernandez and ordered it held to August 18, 1989. (XXIX CT 8490, 8628-29,
8632.)
726. On August 18, 1989, the trial court conducted a contempt hearing on
Arturo Hernandez and specifically found that Arturo Hernandez had failed to
maintain telephonic contact with the court as previously ordered. Arturo
Hernandez admitted that he had traveled to Europe on a honeymoon during trial
after informing the court he was in Mexico for his brother’s funeral. (
RT 24609-11.) The court explicitly found Arturo Hernandez’s conduct
contemptuous and that he had abandoned Petitioner. (Id. at 24611-12.)
727. Arturo Hernandez offered a no contest plea and apologized to the
court. (214 RT 24613-14.) After considering Arturo Hernandez’s statement, the
trial court found Arturo Hernandez in contempt for failing “to notify the court by
phone each morning,” but withdrew its finding that counsel had abandoned
Petitioner.55 (Id. at 24614.)
728. On September 14, 1989, the trial court again found Arturo
Hernandez in contempt for failing to maintain contact with the court. (
RT 24690-91.) The court sentenced Arturo Hernandez to serve twenty-four days
The court ordered Arturo Hernandez to pay a fine of $100. (RT 24615.)
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in jail or pay a $2,400 fine to be paid on or before September 29, 1989. The court
ordered Arturo Hernandez to serve one day in jail.56 (Id. at 24698-700.)
729. On February 21, 1989, during the prosecution’s case in chief, Daniel
Hernandez informed the court by telephone that he was ill and would be absent
from trial for one week. Hernandez sent his law clerk, Richard Salinas, to appear
at trial on Petitioner’s behalf. (152 RT 17574.)
730. On March 1, 1989, the court held a hearing concerning Daniel
Hernandez’s health. Daniel Hernandez submitted a letter from his physician
stating that he suffered from nervous exhaustion and would require an absence
from trial of four to six weeks to recuperate. (153 RT 17604-05.) Daniel
Hernandez explained that he was unable adequately to represent Petitioner –
could not “carry the load” – and needed yet another counsel to assist “in this
enormous trial.” (153 RT 17610-11.) The court found no legal cause to delay the
trial. (Id. at RT 17606, 17614-16.)
731. On September 27, 1989, the trial court permitted Petitioner to waive
presentation of any mitigation evidence at the penalty trial based on Daniel
Hernandez’s representation that “we have made a decision as a defense team and
decided [not to put on any evidence].” (217 RT 24775.)
732. Counsel’s lack of qualifications, failures to appear, and
incompetence were obvious to the trial judge throughout the proceedings.
Furthermore, it is clear that counsel’s deficits endangered the fairness of the
proceedings, and diminished the integrity of the legal profession. The trial court
erred in allowing Petitioner to stand trial on capital charges with such ineffective
representation.
Arturo Hernandez paid the fine of $2,400 on September 29, 1989.
(XXX CT 8903.)
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B.
The Trial Court Erred in Allowing Petitioner to Be Represented By
Counsel Who Suffered an Obvious Conflict of Interest
1.
A Defendant Cannot Insist on Being Represented By An
Attorney Who Suffers from a Conflict of Interest
733. When counsel suffers from a conflict of interest, especially one
arising out of the joint representation, the fairness of the trial process is
undermined. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed.
2d 426 (1978). For that reason, trial courts “confronted with and altered to
possible conflicts of interest must take adequate steps to ascertain whether the
conflict warrants separate counsel.” Id. at 160. Where an actual conflict of
interest exists, “there can be no doubt that it may decline a proffer of a waiver”
and insist on separate representation.” Id. at 162. This wide latitude to insist on
conflict-free counsel is allowed “not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common cases where a
potential for conflict exists which may or may not burgeon into an actual conflict
as the trial progresses.” Wheat, 486 U.S. at 163; see also United States v.
Gonzalez-Lopez, 548 U.S. at 152 (defendant has no right to be represented by an
attorney with a conflict of interest.)
734. Likewise, the Supreme Court has held “whatever the full extent of
the Sixth Amendment’s protection of one’s right to retain counsel of his
choosing, that protection does not go beyond the individual’s right to spend his
own money to obtain the advice and assistance of ... counsel.” Walters v.
National Assn. of Radiation Survivors, 473 U.S. 305, 370, 105 S. Ct. 3180, 3215,
87 L. Ed. 2d 220 (1985) (Stevens, J., dissenting). That is, “a defendant has no
Sixth Amendment right to spend another person’s money for services rendered by
an attorney, even if those funds are the only way that that defendant will be able
to retain the attorney of his choice.” Caplin & Drysdale, Charted v. United
States, 491 U.S. 617, 626, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989).
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735. The California Supreme Court’s holding that Petitioner had a right to
insist on lawyers who suffered from a conflict of interest, and who were not being
paid by him, is contrary to clearly established Supreme Court law.
2.
Substitution
Counsel’s Conflict of Interest Was Apparent At The Time of
736. On October 22, 1985, Petitioner appeared in a closed in camera
hearing with Mr. Gallegos, Daniel and Arturo Hernandez. Petitioner indicated
that he wished to substitute the Hernandezes as counsel. Daniel Hernandez
informed the court that he had been retained by Petitioner and his family, and that
an official contract had been prepared and signed by the parties. When asked if
he had been paid for the representation, Daniel Hernandez said he was not
comfortable discussing that information with the court. (Sealed October 22,
RT 2.)
737. When the court asked trial counsel for assurances that they had the
financial resources to litigate the case, Arturo Hernandez stated
the financial... area in this case has no bearing on my duties and my
abilities to appear in this case. I think that once we undertake the
case, we have the ethical duty to the court and to our client primarily
to assist him and give him effective assistance of counsel, as is his
constitutional right. I feel awkward in being asked that type of
question. Of course I’m going to be available for this court.
(Sealed October 22, 1985 RT 20.) He further stated “we have made arrangements
for associate counsel... [for] people to assist and all the resources are there. I
don’t see any problems with that at all, no matter how long it takes, if it takes, we
are anticipating at least two years.” (Id.)
738. Once the prosecution was excused from the room, Daniel Hernandez
informed the court that they had agreements with both Mr. Ramirez and his
family and that the family was responsible for payment of Petitioner’s defense.
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When asked what the family’s source was, Daniel Hernandez replied “I really
can’t comment on that. I am really not necessarily aware of that and I am not
necessarily anxious to discuss their finances at all.” (Sealed October 22,
hearing, RT 30.) The court noted that Barraza has been on television soliciting
attorneys to take the case based upon fee arrangements from television, movie
and books rights. The trial court stated “if there is any thought of that being
involved, it is necessary for [the court] to know because there are potential
conflicts... which Mr. Ramirez can waive, but the court must be aware of them
and Mr. Ramirez must be aware of them.” (Id. at 31.) Daniel Hernandez replied
It is not really any of our business to know anything of where the
family gets its money....We have no interest. We have no contracts
that include those type of arrangements, we have had no
conversations or discussions with anyone concerning those type of
arrangements... It would be our ethical responsibility in our
perspective, in our eyes, to inform the court of all the developments
in those directions.
(Id.)
739. At a hearing later that day, the court stated that it was “concerned
about any agreement regarding any rights, book rights, life story rights...even
though that agreement may be between Mr. Ramirez’ family and Barazza.”
Arturo Hernandez clarified that he never said such a thing regarding Barraza,
repeating again that “we have no knowledge, whatsoever, of any [book or movie
deal] negotiations.” (Id. at 37).
740. After the court noted that television reports indicate that the family
has very limited financial resources available to them, the court sought asked
counsel “knowing that you may not be receiving funds or insufficient funds (sic)
to voer this type of case in the future, are you still willing to undertake this case,
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knowing that you will not be appointed by the court?” (Id. at 38). In a statement
that would follow him for the rest of the case, Arturo Hernandez replied
[W]e undertake this case knowingly and fully conscious of the
possibility that this case might extend beyond the means of the
family at this point. However, we are willing to undertake the case
under those circumstances anyway, and we are fully aware of the
tremendous amount of work that we are undertaking, but we have no
problems with that.... Although we are retained in this case, if that
case comes about, we are willing to do the rest of it pro bono
anyway.
(Id.)
741. Upon further questioning, it was revealed that Petitioner had not
signed a retainer agreement with the Hernandezes; rather, he had signed
substitution of counsel forms and it was Petitioner’s family who had signed a
written agreement. (Sealed October 22, 1985 RT 40). The court ultimately
ordered the Hernandezes to reduce Petitioner’s retainer agreement to writing so
that an independent attorney could review it. The motion to substitute counsel
was put over for two days. (XVII CT 4984-88).
742. On October 24, 1985, after denying attorney Gallegos’s motion for a
psychiatric evaluation of Petitioner, the trial court advised Mr. Ramirez that
“your attorneys have a contract with you and with your family, those two
contracts may at some point be in conflict... Do you understand that possibility
does exists?” Petitioner replied “it does exist but I feel there will be no conflict.”
(XVII CT 5006).
743. The court noted that the Hernandezes had previously called the
family their “client” and advised counsel that Petitioner was to have “prime
consideration.” Counsel were further instructed to inform the court “if at any
time there is the slightest possibility that a potential conflict might exist.” Arturo
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Hernandez assured the court that he understood the court’s directive and asserted
that they did not anticipate a conflict of interest, noting that they used their
standard retainer agreement which had been used in many cases. (XVII CT
5007-5008).
744. Thus it was clear at the time of substitution that Mr. Ramirez had
“chosen” counsel to which he had no right, i.e. counsel he could not pay for
himself. Caplin & Drysdale, Charted v. United States, 491 U.S. at 626.
Furthermore, it was clear that Arturo and Daniel Hernandez had joint loyalty to
both of their clients: Petitioner and the Ramirez family. Because of this,
Petitioner had no right to insist on being represented by the Hernandezes. The
court could have, and should have, required that Petitioner and his family be
represented by separate counsel. Wheat, 486 U.S. at 162. The California
Supreme Court’s holding that the trial court was bound to honor Petitioner’s
counsel of choice is contrary to clearly established federal law.
3.
Counsel’s Repeated Claims of Financial Hardship Should Have
Prompted Removal By The Trial Court
745. Even if the trial court was not adequately put on notice of counsel’s
conflict of interest at the time of substitution, the adverse affect on Petitioner’s
representation became clear later in the proceeding. Counsel repeatedly claimed
that they could not litigate the case properly or in a timely manner because their
third-party fee arrangement had resulted in the case being underfunded. On
several occasions, the court itself noted counsel’s ineffectiveness.
746. Even before trial began, it became apparent that counsel’s lack of
funding was causing unwarranted delay. Early on, Arturo Hernandez explained
that one of the reasons he had not filed a §1538.5 motion (suppression) was
because “Mr. Ramirez is an indigent defendant.... he doesn’t have the means or
the resources, as the People do, to maintain a pace that is required by the People.”
(19 RT 907). Failure to file timely motions became routine, causing the court to
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chastize trial counsel for their tardiness, (See, e.g., 26 RT 1855) and for raising
financial matters as grounds for delaying the case. (See, e.g., 41 RT 2933-40;
RT 3006-08.) The Hernandezes were informed that “financial reasons are not
reason really (sic) to continue this case. You owe [Mr. Ramirez] a duty of at least
warm zeal on this case, and of course, as officers of the court—this court, owe
prompt attention to this case.” (Id. at 3007.)
747. By May 1987, the Hernandezes had to close down their local offices,
telling the court “we’re broke. We had to move home [to San Jose].” (Sealed RT
May 4, 1987, 30A RT 2199.) Even the court’s appointment of another attorney,
Michael Carney, to assist in writing motions, did not improve the situation
because Daniel and Arturo Hernandez were always in San Jose working on other
cases and were unable to confer on Petitioner’s case. (Sealed September 23,
1987, 33A RT 2331).
748. During an unsuccessful attempt to get appointed by the court, Arturo
Hernandez explained the shortage of funding by saying that “the case originally
seemed something that was totally indefensible.... [now] we find the case has
turned out to be very defensible..... the monies we’ve agreed to with the family
are totally inadequate” to defend the case. (Sealed September 29, 1987 33B RT
2346.) With trial just one month way, Arturo Hernandez claimed that the
Ramirez family’s inability to pay would cause them “to give less than adequate
representation and render ineffective assistance of counsel to our client, because
we have to work and try to survive and maintain some sort of practice.”
(Id. at 2358.)
749. After trial began, Arturo Hernandez simply stopped appearing in
court. During Arturo Hernandez’s four-month absence between September 26,
1988, through January 23, 1989, Daniel Hernandez, who had no previous capital
litigation experience, conducted voir dire, including Hovey examination. (See
Hernandez was also absent during other proceedings critical to Petitioner’s
defense, including the prosecution’s entire case-in-chief, and jury instruction
conferences.
750. Eventually, he was only maintaining contact with the court by
telephone, and even then, he often failed to do so. (See 173 RT 20186). At one
point, Daniel Hernandez could not locate Arturo through relatives, and did not
know whether he was even in the country. (Sealed October 3, 1988 Vol. 96A RT
10144). “It’s crippling to me to have someone on board as co-counsel who can’t
function . . . it is almost better not to have one,” Daniel Hernandez told the court
in his request to relieve Arturo from the case. (Id. at 10153.)
751. In January 1989, Daniel Hernandez attempted to force the court into
giving him county funding, claiming that his representation of Petitioner would
suffer without additional money for the defense. During an in camera hearing,
the court accused him of extortion:
Mr. Hernandez, when you tell the court that if you don’t get
appointed you are going to withdraw, or if you don’t get appointed
you are going to do less than diligent work on this case, as you
appear to state in these motions, that is frightening to me because
that is extortion. And I will be honest with you, this court is not
going to be extorted.
(Sealed January 20, 1989, 140A RT 16005.)
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-13, 8115-19,
8121-26, 8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286,
8294-95, 8299, 8315, 8321, 8324, 8327-28, 8331-33, 8336-39, 8341, 8353, 8360,
8369-70, 8379-81, 8383; XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412,
8419, 8426, 8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
252Page 277 Page ID #:
752. The court also correctly discerned that counsel had previously lied at
the time of their substitution, noting, “you said, in effect, that you misrepresented
to Judge Soper your [financial] position for matters of expediency.” (Id. at
16006.) The court denied Daniel Hernandez’s request for appointment and stated
“this kind of representation from a member of the bar is something I simply never
even contemplated.” (Id. at 16007.)
753. When that tactic did not work, Daniel Hernandez claimed that the
stress of defending the case alone caused his health to suffer such that he could
not attend trial. On February 21, 1989, Daniel Hernandez failed to appear. He
telephoned the court to report that he was ill and would be absent for one week.
In a letter to the court, his physician stated: “I do not feel he is presently capable
of functioning effectively as a trial attorney. My estimate of additional time
required to recuperate would be four to six weeks.” (Ex. 11, Letter from John
Pace, M.D., regarding patient Daniel Hernandez, Esq., In a hearing on March 1,
1989, Daniel Hernandez explained that he was unable adequately to represent
Petitioner – could not “carry the load” – and needed yet another counsel to assist
“in this enormous trial.” (153 RT 17610-11.) The court found no legal cause to
delay the trial. (Id. RT 17606, 17614-16.)
754. The lack of funding also adversely affected counsel’s ability to
present defense witnesses. In June 1989, Daniel Hernandez claimed that he could
not comply with the court’s schedule regarding defense witnesses because he had
spent all of his money. Later, the court questioned how delaying the testimony
would change the situation, telling Daniel Herndandez “you are going to be in the
same boat, aren’t you? You are dead broke now. You are not eating.” (Sealed
RT June 26, 1989 199A RT 23267). Hernandez replied, “well I’m eating but I’m
not paying rent.” (Id.) When counsel could not get a continuance of the
testimony, Daniel Hernandez flatly told the court “I can’t do it.” (Id. at 23269.)
The then court accused Hernandez of attempting to create reversible error, to
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which counsel replied “I’ve been going without anything for myself for four
years and now I have to eat my pride again and say I’m broke, and even then you
shove it down my throat.” (Id. at 23270.)
755. The trial court’s failure to remove counsel once the effect of their
conflict of interest became clear violated Petitioner’s constitutional rights, as well
as the obligation of judges to ensure the fairness of criminal proceedings. United
States Supreme Court law allows trial courts to address conflicts of interest
whenever they become apparent, even in the late stages of a case. See Wood v.
Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)
(remanding for a hearing on counsel’s conflict of interest, even after the case had
reached the Supreme Court on a constitutional issue.) The California Supreme
Court’s holding that the trial court was bound to honor Petitioner’s choice of
counsel throughout the proceeding was contrary to clearly established Supreme
Court law.
756. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 6:
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THE TRIAL COURT’S REFUSAL TO GRANT RAMIREZ’S
MOTION FOR A CHANGE OF VENUE AND TRIAL
COUNSEL’S FAILURE TO PRESENT RAMIREZ’S MOTION
FOR A CHANGE OF VENUE COMPETENTLY VIOLATED
MR. RAMIREZ’S CONSTITUTIONAL RIGHTS
757. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section IV of the Opening Brief and in Section IX
of the June 2004 petition for writ of habeas corpus, although it includes
additional factual allegations. Petitioner will present the claim with the additional
factual allegations to the California Supreme Court in an exhaustion petition he
will file no later than March 17, 2009.
758. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
759. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
760. Petitioner’s alleged crimes, arrest, and trial constituted one of the
most notorious criminal cases in Los Angeles history. By the time Petitioner was
arrested as the alleged “Night Stalker,” the Los Angeles public was in a state of
hysteria. The mass-panic in Los Angeles, the official view of Petitioner as guilty
of the murders unless proven innocent, and the public sentiment declaring victory
over the Night Stalker, were reported in hundreds of articles and television
broadcasts throughout Petitioner’s pre-trial and trial proceedings. The
unprecedented publicity surrounding Petitioner and the Night Stalker
phenomenon served to heighten the existing anxiety, fear, and terror collectively
felt by Los Angeles County.
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761. Petitioner’s counsel filed a motion for change of venue on July 21,
1986. (XXI CT 6263-82.) On November 3, 1986, the court began the change of
venue hearing. The prosecution filed its opposition on July 24, 1986. (Id.,
6313-17.) The motion was heard on November 17 and 26, 1986, December 1, 2,
8, 9, 10, 12, and 16, 1986, and January 6 and 9, 1987. (See XXII CT 6439, 6463,
6485-6, 6490-91, 6494, 6530, 6538, 6547.) The trial court denied the motion on
January 9, 1987, adding, “If I err, I am sure somebody will tell me.” (17 RT
856.)
762. Counsel spent five days presenting testimony from various expert
and lay witnesses who would demonstrate personal knowledge of the panic
created in the Los Angeles community because of the “Night Stalker”
phenomenon. The presentation included the following witnesses:
a.
Defense expert Dr. Paul Strand, who testified on December
and 10, 1986. Dr. Strand testified regarding a telephone
survey he conducted of a random sample of the jury-eligible
population of Los Angeles County who resided within a
twenty-mile radius of the courthouse. (See 11 RT 317-23.)
Of those who responded, 94.3% had heard of Petitioner’s
case, and 52.7% had specific recollections. (13 RT 440-45.)
51.7% believed Petitioner was responsible for the Night
Stalker murders. (Id. at 455.) Of those surveyed, only one
said Petitioner was not responsible for the killings. Only
34.7% of the respondents said they would need more
information to know if Petitioner was responsible for the
murders. (Id.)
b.
Patrick Kelly testified that sales of handguns and ammunition
in the gun shop where he worked in Alhambra, Los Angeles
County tripled starting about August 15, 1985. (14 RT
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634-38.) Many of the customers coming into the store were
women and couples saying they were buying guns because of
fear of the Night Stalker. (Id. at 639-42.) Gun sales dropped
off immediately following Petitioner’s arrest. (Id. at 640.)
c.
Captain Joseph Santoro, of the Monterey Park Police
Department, testified about the fears of residents. (Id. at 622.)
During the summer of 1985, the volunteer Neighborhood
Watch program about doubled. (Id. at 613-14.) The police
department set up a night watch program involving “block
captains, and there was about a hundred and fifty-seven of
them” who set up all-night citizen vigils. (Id. at 623.) The
program included giving out free dead bolts, and there was
even “a training program on how to dial 911 in the dark, so
that they would not have to make their position known.” (Id.
at 619, 626.)
d.
Los Angeles Police Officer, George Willoth, testified that in
the San Fernando Valley, an area quite far from where the
Night Stalker crimes allegedly occured, calls on the night shift
during August 1985 went up from twenty to thirty per night,
“probably to 80 to a hundred calls a night, easy.” (15 RT 658,
661.) “Most citizens were concerned about their safety in
their residence and what their rights were and how to protect
themselves . . . . They were in fear.” (Id. at 665.)
e.
Defense expert psychiatrist Dr. Paul Blair testified regarding
the general sense of panic in the metropolitan Los Angeles
area. (14 RT 568, 574.) Although Dr. Blair’s direct
observations were in Orange County, he opined that fear and
tension would be greater geographically closer to the
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incidents, so would likely be greater in Los Angeles than in
Orange County. (Id. at 583.) In Dr. Blair’s opinion, “[P]eople
were very afraid . . . . [S]ome people were semi-panicky.
Other newspaper articles were reporting that people were
buying weapons in large numbers for the purpose of
self-protection.” (Id. at 574.)
f.
Dr. Blair testified about the special role that the randomness
of the murders and assaults play in increasing that fear: “The
concept of randomness does cause an increased amount of
fear . . . like a fear of the unknown, a fear of the dark[.] (Id.)
“The fact that someone was getting into these homes on a
regular basis without a whole lot of knowledge about who was
doing this or where this person was going to come to next, did
play a role [in the fear generated by the Night Stalker.]” (Id.
at 576.)
763. On November 26 and December 1, 1986, defense counsel played
five video-tapes: four from “Channel 11” local news and one from the “NBC”
local affiliate in open court. (9 RT 249-275.) Throughout the presentation of the
tapes, however, the court repeated its sentiment that it did not “feel that it would
be productive to sit through all of these tapes.” (Id. at 256.) After continuing to
admonish trial counsel to hurry through the showing of the video-tapes, the court
finally halted the video-tape viewing, citing “a responsibility to control the
amount of evidence to come in on any subject. This is cumulative.” (Id. at 270.)
Along with the Channel 11 video, trial counsel submitted scripts of the
introductory anchor-person’s comments during the broadcasts. Eventually, all of
the video-cassettes and Channel 11 scripts were admitted into evidence. (16 RT
767, 771, 778-80.)
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764. In addition to broadcast news-tapes, the Court admitted into
evidence various articles from the La Opinion, L.A. Times, Orange County
Register, Daily News, Pacific Citizen, and Dong-A; Dr. Strand’s survey; orders
issued by the Los Angeles Board of Supervisors concerning rewards offered in
the Night Stalker case; and a Los Angeles Herald Examiner circulation report.
(See Id. at 767, 770, 773, 776, 778-81, 784, 786-89.)
765. Petitioner’s Counsel was unsuccessful in admitting numerous
articles from the L.A. Times, San Gabriel Valley Tribune, Herald Examiner,
Press Telegram, Noticias Del Mundo, Daily Journal, Pomona Progress Bulletin,
Palisidian Post, the UPI News Wire, Pasadena Star News, Arcadia Tribune, Rafu
Shimpu, Torrance Daily Breeze, Monrovia news Post, Whittier Daily News,
Duartean Dispatch, Glendale News Press, and the Eagle Rock Sentinel. (See Id.
at 728, 744, 750, 754, 756-61, 764-65.)
a.
Because of counsel’s failure to authenticate or lay a
foundation for the articles, Petitioner requested that the trial
court take judicial notice of L.A. Times articles regarding “the
general feeling in the community of fear and of apprehension
of the so-called Night Stalker suspect.” (Id. at 710-11.)
Arguing that the defense was in effect asking the court to rely
upon hearsay under the guise of “judicial notice,” the
prosecutor objected on those grounds and the court sustained
the objection. (Id.) The court stated that “to the extent that
you have made a request that I infer from these articles and
news media things that the public agreed or responded to these
articles or items, that request is denied.” (Id. at 714.) The
court ruled that because Petitioner’s counsel failed to properly
lay foundation for, and authenticate the records, it excluded
the news reports. (See Id. at 742-54 (discussion and ruling.))
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b.
The trial court dismissed the remaining papers similarly for
lack of authentication and foundation. The court repeatedly
asserted, however, that it was aware of the evidence in the
articles and of their publication:
(1)
“I do notice . . . that I have seen some of these articles
in the Times . . . and I will conclude that they have
basically been published because I have seen some of
them and I have read most of them.” (Id. at 754.)
(2)
“Again, I have deny their admission. However, I am
aware of the fact there were numerous articles in the
Herald Examiner and that there was full coverage of
this case by that newspaper. I don’t read the Herald
with the regularity that I do the Times, but I do read it
on occasion, and so I am aware that it did give full
coverage as a newspaper in this community.” (Id. at
756.)
(3)
I am going to deny admission of [Noticia Del Mundo].
However, I will note that it does appear to be Spanish
language reporting of the case and there is an English
translation here.” (Id. at 758.)
(4)
“But again I note that there is evidence that [the
Pomona Progress Bulletin] have covered the incidents.”
(Id. at 759.)
(5)
coverage by the Palisidian Post.” (Id. at 760.)
It will be sustained, but the court will again note the
(6)
“But again, gentlemen, I do have knowledge and I will
accept the principle that all of the -- virtually all of the
local news media, including the small outlet media,
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local newspapers, ethnic-oriented publications, various
language publications, have covered this case, if that is
the point you are trying to make.” (Id. at 765.)
766. Following argument by counsel, the trial court denied the motion for
change of venue on January 9, 1987. The court was “not convinced by the survey
that the survey shows that the pretrial publicity in this case has created an
atmosphere where [Petitioner] cannot receive a fair trial.” (17 RT 853.) The
court found there was not a showing of a reasonable likelihood that Petitioner
could not have a fair trial in view of the size and diversity of the jury pool. (Id. at
854-55.)
767. The court conceded, however, that “I would characterize the news
coverage of this case as saturation, as much as they possibly can give. And I
would imagine that the reporters’ editors have told them ‘Go get everything you
can and cover the case every day.’” (Id. at 806.) The trial court stressed: “I
don’t think it is possible that much more publicity could have been given to this
case. I can’t imagine how.” (Id. at 846.)
768. In denying Petitioner’s motion for change of venue, the court relied
heavily on the size of potential jury pool in Los Angeles County: “You are
talking about what I think is the largest jury pool of any jurisdiction in the
country.” (Id. at 854.) “[T]his county is so large and the people here are so
sophisticated and so diverse that I just don’t think you can say that you can’t have
a fair trial in this county.” (Id. at 855.) “You could call in 2,000 jurors to talk to
them on voir dire in this case, and there is no place else that you can do that.’”
(Id. at 856.)
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A.
The Trial Court Erred in Failing to Grant a Change of Venue
769. The presumption of innocence and an impartial tribunal are essential
aspects of a fair trial. Irwin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed.
2d 751 (1961) (“In essence, the right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to
accord an accused a fair hearing violates even the minimal standards of due
process.”) (citing In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed.
(1948)). Pretrial publicity poses a grave threat to a fair trial by flipping the
presumption of innocence and imbedding bias into the jury pool. A recent study
concluded that “subjects exposed to negative [pretrial publicity] were
significantly more likely to judge the defendant guilty compared to subjects
exposed to less or no [pretrial publicity].” (Ex. 75, E. Bronson Dec., at ¶ 20.)
Pretrial publicity is so dangerous because it creates a story or narrative that
becomes the prism through which all the facts, including evidence at trial, is
viewed. (Id., ¶¶ 21-23.) This is an even greater problem where, as in Petitioner’s
case, there is a significant delay until trial (in this case, a nearly three-year delay.)
With delay, peoples’ memories tend to become distorted, and they tend to be
unable to recall events or facts that are inconsistent with the storyline they have
been presented; molding facts they do have to be consistent with that storyline.
(Id., ¶¶ 24-25.) This is especially troubling where, as in Petitioner’s case, errors
during voir dire uncovering this hidden bias.
770. Federal law recognizes that a change of venue is required when the
defendant shows either “presumed prejudice” or “actual prejudice” resulting from
pretrial publicity. Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d
589 (1975). “Presumed prejudice” appears in rare cases where the community
was saturated with media publicity about the case. Ainsworth v. Calderon,
F.3d 787, 795 (9th Cir. 1998). A Petitioner has shown presumed prejudice where
(1) there is a “barrage of inflammatory publicity immediately prior to trial,
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amounting to a huge . . . wave of public passion;” (2) “news accounts were
primarily factual because such accounts tend to be less inflammatory than
editorials or cartoons;” and (3) “media accounts contained inflammatory or
prejudicial material not admissible at trial.” Daniels v. Woodford, 428 F.3d 1181,
771. “Actual prejudice” is established when the record of voir dire shows
the jurors exhibited actual partiality or hostility that could not be laid aside.
Ainsworth, 138 F.3d at 795. This type of prejudice may be shown by the seating
of a juror who had preconceived opinions about guilt that could not be set aside
(id. at 796), or by the fact that an inordinate number of panelists admitted to
disqualifying prejudicial opinions during voir dire. Id.
772. In California, a “denial of a motion for change of venue will be
upheld on appeal unless the record shows both that it was reasonably likely that a
fair trial could not be had at the time the motion was made” and that it was
“reasonably likely a fair trial was in fact had.” People v. Massie, 19 Cal. 4th 550,
578, 967 P.2d 29, 79 Cal. Rptr. 2d 816 (1998). The California Supreme Court
has not reversed a single appeal based on venue since 1989, a string of
consecutive cases. (Ex. 75, E. Bronson Dec., ¶ 28.) The factors California courts
use to assess the necessity of a change of venue are the (1) nature and extent of
the publicity, (2) nature and gravity of the crime, (3) status of the victim(s) in the
community, (4) status of the defendant in the community, and (5) the size and
nature of the community. See People v. Massie, 19 Cal. 4th at 578; Williams v.
Superior Court, 34 Cal. 3d 584, 588, 668 P.2d 799, 194 Cal. Rptr. 492 (1983).
773. California’s five-factor inquiry combined with prejudice requirement
places a higher burden on a petitioner to prove the necessity of a change of venue
than the federal constitutional standard. The five California requirements for a
necessary change of venue inform and subsume the three federal factors for
finding presumed prejudice in the federal standard. Petitioner is entitled to de
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novo review as the California Supreme Court and trial court unreasonably applied
clearly established federal law. Petitioner is also entitled to de novo review for
the ineffective assitance of counsel claims and to the extent the California
Supreme Court did not address the merits of Petitioner’s federal claim.
774. When assessing these factors, California courts rely on three types of
evidence: (1) “qualified public opinion surveys[,]” (2) “opinion testimony
offered by individuals,” or (3) the court’s “own evaluation of the nature,
frequency, and timing of the material involved [i.e. a content analysis of the
media].” Main v. Superior Court of Mendocino County, 68 Cal. 2d 375, 383,
P.2d 372, 66 Cal. Rptr. 724 (1968) (citing the American Bar Association Project
on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and
Free Press (1966)).
775. With all three types of evidence before it, Petitioner’s trial court
erred in violation of Petitioner’s Fifth, Sixth, Eighth, and Fourteenth Amendment
rights by denying a change of venue. As shown below, the trial court’s ruling ran
afoul of both the federal and state factors considered when requiring a change of
venue.
1.
Extent of Publicity
776. The extent of publicity is the first part of the “Nature and Extent”
category of California’s venue analysis. It is also relevant in considering the
federal standard to find a “barrage” of publicity “amounting . . . to a huge wave
of public passion.” Ainsworth, 138 F.3d at 795.
777. The extent of coverage in Petitioner’s case was extraordinary and
unprecedented. As the trial court conceded, media coverage reached “saturation”
levels. (17 RT 806.) The trial court repeatedly made a record that it was
considering the vast number of articles, despite the fact counsel failed to admit
the actual articles themselves. (See Infra at ¶ 6.b.)
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778. Indeed, Petitioner’s current counsel were able to collect 903 articles
written about the case from the beginning of the Night Stalker murders through
September 1, 1989. (Ex. 75, E. Bronson Dec., ¶ 38.) This included 211 articles
from the L.A. Times, 197 articles from the Los Angeles Herald Examiner,
articles from the Los Angeles Daily News, 113 articles from the La Opinion,
articles from the Los Angeles Daily Breeze, and 154 articles from other smaller
local newspapers. (Id.) This number does not include additional articles
submitted to the trial court from newspapers with less circulation. (See 16 RT
779.) Further, among just three major Los Angeles newspapers, 167 articles were
written about Petitioner during his trial. (Ex. 78, Articles during trial.)
779. The enormity of these numbers become clear when comparing it to
other cases. Dr. Edward Bronson, a social scientist and venue expert, has
testified in one-hundred twenty trial cases over the course of twenty-five years.
Additionally, he has recommended against a need for a change of venue in over
one hundred other cases. In the one-hundred and twenty cases Dr. Bronson has
testified in, the median number of articles was 91.5. (Ex. 75, E. Bronson Dec., ¶
40.) Among Dr. Bronson’s cases with fewer than ninety-two articles where the
court reached the venue issue (fifty-five cases), the court granted a change of
venue 49.1% of the time. (Id.)
780. Dr. Bronson has worked on such high-profile cases as the Oklahoma
City Bombing cases (both the separate federal and state proceedings), the Enron
case (defendants Skilling and Lay), and the cases against the Allstate Insurance
Company arising from Hurricane Katrina. Of all of the 120 cases Dr. Bronson
has been involved with, Petitioner’s case “is approximately 10 times as great as
the median number and one of the very highest I have ever dealt with.” (Id.)
781. Dr. Bronson noted that out of the ninety-two California venue cases,
forty-one mentioned the number of articles, with some including radio and/or
televison coverage as well. (Ex. 75, E. Bronson Dec., ¶ 41.) The extent of
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publicity in Petitioner’s case, based solely on quantifying newspaper articles,
substantially exceeds every one of those forty-one California cases. (Id.)
782. The extent of coverage in the L.A. Times alone58 weighed heavily in
favor of a change of venue:
a.
In the Times alone, there were 211 articles published on the
“Night Stalker” or Petitioner between August 13, 1985 and
August 11, 1988.
b.
Of the 211 articles in the Times, 97 were either on the front
page of the entire paper or on the front page of an interior
section -- increasing the likelihood the article would have
been read by prospective jurors. (Ex. 75, E. Bronson Dec., ¶
48.)
c.
There were 97 pictures accompanying the articles, both
increasing the article readership and in some instances the
level of potential prejudice. (Id., ¶ 49.)
783. Further evidencing the vast extent of the media saturation, the
circulation data for five of the largest Los Angeles County newspapers in
show news-media reaching millions. 1985 audit reports from the Audit Bureau
of Circulations (“ABC”) showed copies of five Sunday newspapers having a
combined circulation of 1, 957,23659. (Ex. 77, ABC Circulation Reports.) These
The trial court stated it had seen “most” of the articles published in the
L.A. Times and would consider that in its venue determination. (See, e.g., 16 RT
754, 756.) Additionally, it was and is the newspaper with the widest circulation
in the Los Angeles area.
The Los Angeles Times had a circulation of 1,314,542; the Los Angeles
Herald Examiner had a circulation of 214, 705; the Los Angeles Daily News had
a circulation of 162,360; the Daily Breeze had a circulation of 124, 576; and the
Los Angeles Press-Telegram had a circulation of 141,053. (Ex. 77, ABC
Circulation Reports; Ex. 75, E. Bronson Dec., Table 3.)
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circulation numbers are more pronounced when considering there are an average
of 2.4 or more readers for each newspaper. (Ex. 75, E. Bronson Dec., ¶ 51.)
784. The trial court erred in dismissing the massive saturation of publicity
surrounding Petitioner’s case. To the extent the court was unaware of just how
immense the coverage was, Petitioner’s counsel was grossly and prejudicially
ineffective for failing to authenticate hundreds of articles that would have shed
light on the extent of publicity.
2.
Nature of Publicity
785. Examining the nature of the publicity is perhaps the trial court’s
most important duty in assessing the prejudice of pretrial publicity. It is during
this analysis that a trial court can assess to what degree the media was
inflammatory or whether there has been prejudicial material publicized in the
media that was not admissible at trial. See Daniels, 428 F.3d at 1211. (See also
Bronson Dec. ¶¶ 55-58 (discussing hierarchy of prejudice used in content-
analysis).)
786. The trial court had ample evidence of prejudicial publicity before it,
including copies of L.A. Times articles from August 9, 1985 through May 27,
1986 admitted as an exhibit during the venue motion, (See Def. Ex. FF in support
of motion for change of venue.), its own knowledge of “most” of the additional
L.A. Times articles not admitted, a sampling of other local newspapers, hours of
video footage of local broadcast footage, and anchor-scripts from a broadcast
channel.
787. The trial court failed to acknowledge the inflammatory and
prejudicial nature of the prejudicial publicity. The trial court admitted to reading
“most” of the L.A. Times articles and admitted multiple L.A. Times articles during
the motion. (Def. Ex. FF in support of motion for change of venue.) Therefore,
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Dr. Bronson conducted a content-analysis of only a statistical-sampling60 of the
L.A. Times newspapers published through August of 1988. (Ex. 75, E. Bronson
Dec., ¶ 59.) Even with the limited articles reviewed, Dr. Bronson’s analysis
shows the nature of the publicity weighed overwhelmingly in favor of granting a
change of venue. Further, his analysis, when combined with the extent of the
publicity, demonstrates a “barrage of inflammatory publicity” containing
prejudicial material, much of which was inadmissible at trial. See Daniels,
F.3d at 1211.
788. Inflammatory Material from the Times: A review of the L.A. Times
showed extremely prejudicial and inflammatory language used to describe and
characterize Petitioner and the “Night Stalker” crimes:
a.
“Night Stalker” or “Stalker” was referred to 158 times,
times in the headline. Additional monikers such as “Valley
Invader,” Valley Intruder,” “L.A. Intruder,” “Fearsome
Intruder,” and “Walk-in Killer” were used repeatedly. (Ex.
75, E. Bronson Dec., ¶ 65.)
b.
“Jack the Ripper” was mentioned as scrawled on a wall, (Ex.
76, L.A. Times Articles Reviewed by Dr. Bronson, A-12), and
“Jack the Knife” was mentioned as scrawled on lipstick. (Id.,
A-20; Ex. 75, E. Bronson Dec., ¶ 65.)
c.
Repeated and detailed allusions to Satan and Satan worship
were included in articles about Petitioner. Direct quotations in
the L.A. Times alone included but were not limited to the
following:
articles.
Every fourth article, or one-quarter of the actual amount of L.A. Times
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(1)
“Devil Worshiper” (Ex. 76, L.A. Times Articles
Reviewed by Dr. Bronson, A-20);
(2)
“Diabolical” (Id., A-4);
(3)
“Satan Worship” (Id., A-36);
(4)
“Satanic Cult” (Id., A-20);
(5)
“Satanism;” (Id., A-36);
(6)
“Satanic Overtones;” (Id., A-40)
(7)
“Satanic” (Id., A-184)
(8)
“Satanic rituals” (Id., A-40);
(9)
“Satanic activities” (Id., A-40)
(10) “Shouted ‘hail Satan!’ as he was being led from the
124.)
789. Inflammatory Material in Television Broadcasts. In addition to the
Times articles reviewed by Dr. Bronson, the Channel 11 broadcast scripts
admitted during the venue motion show Petitioner’s jury pool was exposed to
even more inflammatory and prejudicial publicity through television. The
exposure of the public to television news was overwhelming. According to Dr.
Stand’s survey61, admitted during the venue motion, “33.3 percent said they
watch a local television news program from one to six times a week day,” and
“64 percent say they watch a local television news program every day. The mean
number of days that people watch a local television news program is 5.42.” (
RT 460.) In other words, 97% watched televised news at least once per week,
and the average exposure was more than five days per week. Just a small
sampling of the inflammatory content in the Channel 11 scripts reveal shockingly
inflammatory statements about Petitioner and his alleged crimes:
a.
“since the Night Stalker has been on his rampage . . .” (Ex. 79,
Channel 11 scripts, p. 2340);
b.
“leading to the capture of the Night Stalker . . . the man who
has terrorized and brutalized residents . . .” (Id., p. 2345);
c.
“They call him the Night Stalker . . . and he’s hit again!” (Id.,
p. 2414);
The methodology Dr. Strand’s survey and Dr. Strand’s qualifications
are discussed in Dr. Bronson’s declaration. (Ex. 75, E. Bronson Dec., ¶¶ 138150.)
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d.
widespread fear and terror in the southland” (Id.);
e.
“Now people wait and wonder . . . where the Night Stalker
will hit next!” (Id., p. 2419);
“Not since the Hillside Strangler has a killer created such
f.
“either you close and lock your doors . . . or you leave
yourself vulnerable to the dreaded Night Stalker.” (Id., p.
2421);
g.
stalker [sic] . . .” (Id., p. 2499.)
“police say the trail of death left by the man call[ed] the nite
h.
These were only small portion of the countless examples of
inflammatory and emotionally-charged language read on the
air used to describe Petitioner and the Night Stalker crimes,
and were taken from only one of the many local television
stations. (See Id.)
790. Inadmissible Material in the Times: The Times articles randomly
sampled by Dr. Bronson also contain multiple reports of crimes for which
Petitioner ultimately was not charged during the Los Angeles trial. Media reports
of evidence or activities not admissible at trial are especially prejudicial to a
prospective jury. Not only will prospective jurors be told that certain acts or facts
are linked to a defendant, they will also be inclined to think the defendant is
deliberately hiding those facts when they never come out during the trial. A jury
may therefore weigh uncharged and even untrue crimes when assessing the guilt
or punishment for a defendant. For these reasons, the federal courts regard
publicity of inadmissible material as a factor weighing in favor of presuming
prejudice. See Daniels, 428 F.3d at 1211; Ainsworth, 138 F.3d at 795. The
publicity in Petitioner’s case contained multiple stories and accounts of facts that
Petitioner’s jury was never entitled to hear in the courtroom:
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a.
After a judge ruled an “8-year-old Eagle Rock rape victim
must testify in open court, the prosecutor . . . said the girl will
not take the witness stand and that no evidence on the incident
is likely to be presented.” (Ex. 76, L.A. Times Articles
Reviewed by Dr. Bronson, at p. A-120);
b.
“. . . the decision will not have a negative impact on the
overall case against Ramirez even if the charges concerning
the March, 1985, incident are dropped.” -- which they
eventually were. (Id., p. A-120.)
c.
Many other articles reported on Petitioner’s alleged
involvement in murders committed in San Francisco. At least
one article examined by Dr. Bronson quoted the Sheriff saying
the San Francisco murder is linked to the “Valley Intruder.”
(Id., p. A-8.) Still others referred to ballistic tests and
statements by officials, including the mayor of San Francisco,
tying the “Night Stalker” to the San Francisco crimes. (See
Id., pp. A-20, 80, 12.)
d.
One Times article reported Petitioner’s “many previous
arrests” with a “history” of drug offenses and driving stolen
vehicles, as well as having Petitioner having “several aliases.”
(Id., p. A-20.)
791. Inadmissible Material in Television Media: In addition to the
references of inadmissible material in the Times articles reviewed by Dr.
Bronson, the trial court was shown repeated television broadcasts that portrayed
Petitioner as a child molester and rapist. The scripts from the anchor-persons
narrating these broadcasts were admitted at trial and tell of officials implicating
Petitioner in multiple child-sex crimes using dramatic and inflammatory
language. As stated above, this television publicity posed an even greater danger
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to prejudicing Petitioner’s jury pool as the vast majority of prospective jurors
watched broadcast news. A small sampling of quotations of the Channel
script, admitted as evidence during the motion, include the following reports:
a.
“The tale of two cities continues . . . as an alleged sex offender
comes back to Santa Monica” (Ex. 79, Channel 11 scripts, at
p. 2313);
b.
“In addition to the string of Night Stalker attacks against
adults . . . it now appears this violent man may also be a child
molester.” (Id., p. 2436);
c.
“the investigating task force is now attempting to link recent
descriptions with that of a man suspected of four child
abductions earlier this year.” “In those cases, the children
were molested by the suspect, then released near freeways.
Asked if the description of the kidnap suspect matches that of
the serial killer, police say ‘close enough.’” (Id., pp. 2438-
39);
d.
“the so-called Night Stalker’s reign of terror might have
begun as early as last February. As they probe possible ties to
the February abduction of a Montebello schoolgirl, authorities
have issued a new composite drawing of the suspected killer.”
(Id., p. 2443);
e.
“More than a third of his murder victims have been Asian . . .
as well as at least one of the child molestation victims.” (Id.,
p. 2451);
f.
“the suspect . . .shown in a composite sketch drawn from
survivor’s descriptions . . . may be responsible for half a
dozen murders and dozens of rapes and assaults in the San
Gabriel and San Fernando valleys” (Id., p. 2324);
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g.
“The stalker task force is now exploring a possible link
between the latest adult attacks and a series of earlier child
molestations” (Id., p. 2444);
h.
the ‘Night Stalker’ may be growing.” (Id., p. 2612);
“The number of molestation and kidnaping cases attributed to
i.
“some of the charges against accused Night Stalker Richard
Ramirez will be dropped. Those charges deal with a case of
child molestation. And as Channel 11’s Tony Valdez Reports
. . . they depend on the testimony of one eight-year-old girl.”
(Id., p. 2724.)
792. The United States Supreme Court found presumed prejudice and
reversible error for failure to grant a venue change for publicity of inadmissible
material far less inflammatory than Petitioner’s case: “Much of the material
printed or broadcast during the trial was never heard from the witness stand such
as the charges that Sheppard had purposely impeded the murder investigation . . .
that he had sexual relations with numerous women” and many other character-
damning allegations. Sheppard v. Maxwell, 384 U.S. 333, 356-57, 86 S. Ct.
1507, 16 L. Ed.2d 600 (1966). The Eleventh Circuit found presumed prejudice
where just one article “noted the possibility that Coleman and his co-indictees
might have been responsible for the murder of a Pennsylvania youth . . . . The
article quoted . . . the director of the Georgia Department of Investigation, as
saying that the circumstantial evidence” was overpowering. Coleman v. Kemp,
778 F.2d 1487, 1491 (11th Cir. 1985). In Petitioner’s case, countless articles and
television broadcasts warned the Los Angeles Community that Petitioner was a
sexual predator, and child molester. Petitioner was never charged with child
molestation. Rather, the allegations resulted from overjealous police
investigation and journalism, not reliable facts. Nevertheless, the publicity led to
the pool of Petitioner’s prospective jurors getting a barrage of false and
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inadmissible information that imprinted a narrative of Petitioner as a threat not
just to adults but innocent children as well.
793. The publicity in Petitioner’s case went from inflammatory reports of
the fear, panic, and terror of the Los Angeles community to the collective sigh of
relief the Los Angeles community felt when Petitioner was taken into custody.
This led to local officials and the media covering the case presuming Petitioner’s
guilt at the outset. This presumption of guilt prejudiced Petitioner’s jury pool to
an extent that required a change of venue for a chance at a fair trial. In examining
only the L.A. Times, Dr. Bronson noted:
The entire tenor of the coverage reflects the view that Mr. Ramirez
was guilty and deserving of death, even if the stories often included
de regueur terms such as ‘alleged’ or ‘charged.’ One reading
through these articles is left with an abiding belief that the writers
are convinced of Ramirez’s guilt. This is not to say that the
reporters have written their stories unprofessionally -- it is to say that
their personal exposure to what happened and how so many people
over so long a period were so badly affected caused them to react as
most people would. And the way local jurors would if the trial is not
moved.
(Ex. 75, E. Bronson Dec., ¶ 74.) This presumption was exacerbated by media
accounts of Petitioner’s own statements, local officials giving statements
regarding Petitioner’s capture, and other statements and evidence against
Petitioner inferring his guilt:
a.
Dr. Bronson found multiple instances in his analysis of the
L.A. Times where articles quote Petitioner’s statements. The
Times reported that Petitioner boasted that he was a “super-
criminal” (Ex. 76, L.A. Times Articles Reviewed by Dr.
Bronson, A-20) who killed people because he enjoyed
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watching them die (Id., p. A-2.) Petitioner was quoted as
saying he “enjoyed killing people” and “I love to kill people.
I love watching people die. I would shoot them in the head
and then they would wiggle and squirm all over the place, and
then just stop or cut them with a knife and watch the face turn
real white . . . I love all that blood.” (Id., p. A-148.)
b.
Dr. Bronson also noted numerous statements implying
Petitioner’s guilty by expressing relief at his capture. Some of
the statements were made by local officials. Statements by
officials are especially prejudicial as they are assigned societal
roles of heightened responsibility and power in the
community. The media accounts of Petitioner’s capture
identified by Dr. Bronson in the Times included:
(1)
The mayor of Los Angeles stating that “California can
breathe a sigh of relief tonight” after Petitioner was
arrested. (Id., p. A-20);
(2)
A sheriff stating “we have now definitely tied
murders (including one in San Francisco) to this
individual and possibly as many as 33 cases.” (Id., p.
A-12.)
(3)
Local authorities publicly identifying Petitioner as the
Stalker. (Id., p. A-20);
(4)
“Thank god the caught him.” (Id., p. A-44);
(5)
An article describing how residents of Los Angeles felt
relief upon Petitioner’s arrest;
(6)
In one opinion piece in the Times, the author notes that
“California breathed a sigh of relief and celebrated their
release from fear.” (Id., p. A-64);
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c.
Publicity regarding specific evidence pointing to Petitioner
was also widely reported in the Times articles reviewed by Dr.
Bronson. Articles were written about the exhaustive
fingerprint identification of Petitioner, the State’s effective
fingerprinting system that “zeroed” in on Petitioner as the
Night Stalker suspect, and even quoted the San Francisco
mayor discussing how ballistics tests ties Petitioner to San
Francisco crimes. (Id., pp. A-12, 20, 24 32, 40, 68, 172); (Ex.
75, E. Bronson Dec., ¶ 77.)
794. The Times articles affecting Petitioner’s presumption of guilt
reviewed by Dr. Bronson led him to conclude that the media was “extremely
prejudicial.” (Id., ¶ 74.) This conclusion is supported by the Channel
television scripts considered by the trial court:
a.
“The Mayor was calling for early action on the offered reward
without waiting for a conviction.” (Ex. 79, Channel
Scripts, at p. 230);
b.
“Mayor Bradley says he would like to see the people of
Hubbard Street get the reward for catching the suspected
Night Stalker as soon as possible . . . even if Richard Ramirez
is not convicted.” (Id., p. 2557);
c.
world” (Id., p. 2497);
“Ramirez took what might be his last steps in the outside
d.
“Six people have been honored by the Los Angeles County
board of supervisors . . . one man was so happy that he cried .
. . it was a proud moment for the people of an East Los
Angeles neighborhood . . .” (Id., p. 2515);
e.
“a sheriff’s deputy received plaques of heroism from the L.A.
county board of supervisors” (Id., p. 2524);
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f.
“They are being called ‘the heroes of Hubbard Street’ . . . the
citizens credited with the capture of suspected Night Stalker
Richard Ramirez.” (Id., p. 2538);
g.
“The youngest of the heroes [who helped capture Petitioner]
was receiving an early reward.” (Id., p. 2576.)
3.
Gravity and Nature of Offense
795. Another factor relevant in determining whether a change venue is
required is the nature and gravity of the offense. The trial court found that “this
is as grave and serious a case as has been filed in this or any other state.” It
therefore admitted that “the gravity and nature of the crime would indicate that
venue ought to be changed.” (17 RT 846.) The trial court erred, however, in
limiting its analysis to simply the seriousness of Petitioner’s crimes.
796. The fact that Petitioner was charged with capital crimes carrying a
penalty of death requires an even greater assurance that a jury pool is not tainted
by prejudicial publicity. By virtue of having a possible penalty phase of trial,
jurors in a capital case are required to perform tasks that are unique and that make
having an impartial jury even more important. The California Supreme Court
described a capital jury as being “charged with a responsibility different in kind
from . . . guilt phase decisions: it’s role is not merely to find facts, but also -- and
most important -- to render an individualized, normative determination about the
penalty appropriate for a particular defendant -- i.e., whether he should live or
die.” People v. Brown, 46 Cal. 3d 432, 448, 758 P.2d 1135, 250 Cal. Rptr.
(1988); see also People v. Williams, 48 Cal. 3d at 1131 (“where the jury in its
discretion is responsible for determining whether a defendant lives or dies, the
need for juror impartiality is obviously most acute.”) (emphasis in original.)
797. Pretrial publicity combined with the expanded role of a capital juror
increases the danger that factors such as fear and anger will, in practice, be “part
of the calculus of penalty phase decision-making[.]” (Ex. 75, E. Bronson Dec., ¶
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83.) Extensive media exposure increases the risk a jury will rely on factors not
included in aggravation. “It can change the prism through which those unfairly
exposed to the media assess the aggravating and mitigating evidence presented by
the parties.” (Id., at ¶ 84.) In the penalty phase, where the defense wishes to
humanize a defendant and the prosecutor is seeking to do the opposite while
emphasizing the victim’s perspective, the media can interfere and prevent a fair
trial. In Petitioner’s case, the media did just that: performing the prosecutor’s
role with respect to both the defendant and the victims. (Id., at ¶ 85.)
a.
Dr. Bronson’s analysis of L.A. Times articles revealed
prejudicial publicity focusing on the fear generated among
individuals and in the broader Los Angeles community. One
article, an opinion piece, said Petitioner’s alleged crimes were
“even more horrendous because of the fact that this person
goes into people’s homes. He’s going into your sanctuary,
your private place.” (Ex. 76, L.A. Times Articles Reviewed by
Dr. Bronson, at p. A-4.) Multiple articles discussed the
paralyzing fear citizens across Los Angeles felt because of the
“Night Stalker” phenomenon -- causing them to lock their
doors and windows at night, be afraid to walk alone even to a
car, buy extra guns, barricade doors, and even move to
upstairs apartments. (See, e.g., id., p. A-4.) One article
describes a “climate of near hysteria.” (Id., p. A-124.) The
Times reported an increase in calls to police, (id., pp. A-4, 24),
homeowners organizing neighborhood patrolling, (id., pp. A-
40, 72), and fear hanging over the city “like a smog,” (id., p.
A-48).
b.
A jury pool drawn from an angry community, similar to a
fearful community, is far less likely to give Petitioner a fair
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trial and more interested in retribution. (Ex. 75, E. Bronson
Dec., ¶ 90.) The publicity in Petitioner’s case not only
reported on, but exacerbated the sense of anger at Petitioner in
the community. Articles described the community as “livid”
about the Night Stalker. (Ex. 76, L.A. Times Articles
Reviewed by Dr. Bronson, at p. A-4.) “I hope they give him
the electric chair, that’s what vicious killers deserve.” (Id.,. p.
A-20) Still another article described his capture: he was
beaten with a steel rod by angry citizens. (Id.) “Police arrest
Ramirez, taking him into custody after he is captured and
beaten by angry citizens who grab him on an East Los
Angeles street[.]” (Id., p. A-24.) These captors were hailed as
“heroes” by the City Council, the County Board of
Supervisors, and even the state legislature. (Id., p. A-48.)
c.
Further stoking the anger of a Los Angeles jury pool were the
L.A. Times descriptions of the crimes. They quoted victims as
saying Petitioner “pointed the gun on my head, said, ‘Bitch,
shut up’.” (Id., p. A-136.) A desperate call for police
sounded as if a victim was “choking or gurgling and gasping.”
(Id., p. A-116.) Dr. Bronson details Times various description
of Petitioner’s charges as including murder, burglarly,
robbery, rape, sodomy and forced oral copulation, twelve
murder counts, 61 new felony charges, at least 18 separate
incidents, attacking 28 people and murdering 15, and
related crimes. (See id., pp. A-52, 60, 76, 96, 100; ex. 75, E.
Bronson Dec., ¶ 91.)
d.
The randomness of the Night Stalker attacks created the
potential for even greater fear to be generated in the
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community. (Id., ¶ 93.) Hence, the coverage emphasizing the
randomness of the attacks poses a threat of prejudicing the
jury pool. As shown in the Times articles reviewed by Dr.
Bronson, this coverage was immense:
(1)
He was not killing “them” in a faraway, dingy place,
but people like “us” in comfortable, ordinary homes.
(Ex 76, L.A. Times Articles Reviewed by Dr. Bronson,
at p. A-48);
(2)
The serial killer is more fearsome because he attacks in
the home and without a discernable pattern. (Id., p. A-
4);
(3)
The attacks are random. (Id., pp. A-4, 180);
(4)
Murders include businessman, retired couples, students,
parking lot attendants and grandmothers. (Id., p. A-
124);
(5)
it makes you stop and think about it.” (Id., p. A-4.)
The police state “when it starts happening in your town
798. While the trial court did briefly mention that the nature and gravity
of the offense weigh in favor of a change of venue, it failed to account for the
increased prejudice of publicity on a possible penalty-phase juror. To the extent
trial counsel failed to clarify the impact of this category for the court, it was
prejudicially ineffective.
4.
Prominence of the Victims and Status of the Defendant
799. The trial court agreed with Petitioner’s counsel that the victim’s
“prominence” or status were such “that one would tend to identify with [them],
especially the type of people who tend to sit on juries.” (17 RT 849.) The trial
court erred, however, by failing to realize the full import of the victims’
blamelessness and randomness, and how publicity can exacerbate a prospective
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juror’s feelings of empathy for a victim that conflicted with Petitioner’s fair trial
rights.
800. By virtue of their number, the nature of the harm that befell them,
and their “ordinariness and random qualities,” the victims “acquired the special
kind of sympathy and empathy that likely generated the bias against the
defendant with which this factor is concerned.” (Ex. 75, E. Bronson Dec., ¶ 99.)
This empathy is pronounced because the victims “were entirely blameless.” (Id.,
¶ 100.) Therefore, unlike victims who make bad or unwise choices, the victims
in Petitioner’s case made it easy for a prospective juror to feel empathy.
801. The publicity in this case only exacerbated this effect. While some
stories did focus specifically on the group of victims, Dr. Bronson’s content-
analysis of the L.A. Times showed that the media focused on the entire
community as victims “during a reign of terror perpetrated by the Night Stalker.”
(Id., ¶ 103.) This sense of collective victimization by citizens living in the jury-
pool community, when combined with the documentation of fear, anger, and
inflammatory accounts of the crime, provided strong evidence of the need for a
change of venue. (Id.)
802. The trial court also did not properly assess the impact Petitioner’s
status in the community had on the need for a change of venue. The court
seemingly dismissed this factor because “Mr. Ramirez is a totally anonymous
individual . . . this is not a situation in which a person who already had an image
was involved in a case.” (17 RT 850.) It is precisely Petitioner’s status as an
“outsider” and “drifter,” however, that prejudiced Petitioner and weighed in favor
of the need for a change of venue. (Ex. 75, E. Bronson Dec., ¶ 104) In just the
sampling of L.A. Times articles reviewed by Dr. Bronson, Petitioner was
repeatedly referred to as a “drifter” and “native of El Paso.” (Ex. 76, L.A. Times
Articles Reviewed by Dr. Bronson, at pp. A-20, 40, 52, 60, 80, 96, 100, 116, 124,
136, 144, 168, 188.)
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803. Petitioner was portrayed by the media coverage “as a one-
dimensional, comic book-type of an archetypal evil figure: who was “repeatedly
linked to various forms and symbols of Satanism, pentagrams, and the like.” (Ex.
75, E. Bronson Dec., ¶ 106.) Petitioner was shown winking and grinning during
court and looking “cunning” and “dangerous.” (Ex. 76, L.A. Times Articles
Reviewed by Dr. Bronson, at pp. A-80, 148.) Readers of the Times were even
warned that “most serial murder[ers] don’t stop. They might relocate. They will
kill again.” (Id., p. A-8.)
804. Publicity of Petitioner was entirely devoid of sympathetic or
humanizing accounts of Petitioner’s life. Dr. Bronson does “not recall ever
encountering such an absence in the over 200 potential change-of-venue cases I
have previously dealt with.” (Ex. 75, E. Bronson Dec., ¶ 108.) Yet, the trial
court failed to acknowledge any of this evidence, or lack thereof, when ruling the
publicity in Petitioner’s case did not warrant a change of venue.
5.
Size and Nature of the Community
805. The California Supreme Court approved of the trial court’s reliance
on the size of Los Angeles county as the main factor weighing in favor of a
change of venue: “You are talking about what I think is the largest jury pool of
any jurisdiction in the country.” (17 RT 854.) “[T]his county is so large and the
people here are so sophisticated and so diverse that I just don’t think you can say
that you can’t have a fair trial in this county.” (Id., 855.) “You could call in
2,000 jurors to talk to them on voir dire in this case, and there is no place else that
you can do that.’” (Id., 856.) The trial court erred in relying so heavily on the
sheer size of Los Angeles County while failing to account for the nature of the
community as it responds to Petitioner’s case. Had it correctly addressed this
crucial factor, the court would have found a change of venue appropriate. To the
extent trial counsel failed to alert the court to its error, counsel was prejudicially
ineffective.
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806. At the time of trial, Los Angeles County had the highest population
of any county in California, at over eight million. While the courthouse where
Petitioner was tried only selected juries within a 20-mile radius, and not county-
wide, the jury-pool for Petitioner’s trial was still in the millions. Focusing on the
number of jurors without taking into account the specifics of Petitioner’s case,
however, does not accurately reflect the likelihood that Petitioner could have
received a fair trial. A large jury pool reduces the need for a change of venue
because of: (a) the greater numbers make it easier to pick a jury, (b) the
community communications network is less of a problem, (c) the attention on and
memory of the case may be less, and (d) the number of those with a case
connection will be a smaller percentage of the population. (Ex. 75, E. Bronson
Dec., ¶ 112.) Looking at these factors in the context of the coverage and
circumstances of Petitioner’s trial reveals the size of the community is not
availing.
a.
Theoretically it is easier to obtain a venire that is untainted by
pretrial publicity or other prejudice with a larger jury pool.
This fails to consider, however, the fact that resolution of a
venue motion requires examining the prejudice of prospective
jurors who may be qualified to be on the trial panel but still
express prejudice from pretrial publicity necessitating a
change of venue. (Ex. 75, E. Bronson Dec., ¶ 114.) With a
case as widely recognized as Petitioner’s, even if a particular
juror could state their lack of bias, the nature of the media
coverage demonstrated above can create pressure on local
jurors that would inhibit their impartiality. (Id., ¶ 115.)
b.
A second reason for the theory that a large jury pool weighs
against a venue change is the notion that as a venue gets
larger, the jury pool becomes less homogeneous. There is less
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informal gossip, rumors, and “coffee shop” interchanges. (Id.,
¶ 118.) Smaller communities tend to have a higher degree of
“cultural integration and shared values”that can make it more
difficult to find a fair jury. (Id., ¶ 119.) As shown by the
testimony of Patrick Kelly, Joseph Santoro, George Willoth,
and others during the venue motion, as well as media
coverage considered by the court, however, the Night Stalker
phenomenon essentially brought Los Angeles County together
as a small group. Neighborhood watch groups formed, and
neighborhoods united around a common fear of the Night
Stalker. Hence, any benefit to a large jury pool was lost when
all of Los Angeles experienced “such widespread fear and
terror[.]” (Ex. 79, Channel 11 Scripts, at p. 2414.)
c.
Related to the supposed heterogeneous effects of a larger jury
pool, the percentage of the total population that has a
connection with the case is thought to be smaller in larger
venues. Therefore, the risk of a prejudiced jury pool is less.
Yet, Petitioner’s case is an exception. Despite the large
population, most residents were directly affected by the Night
Stalker phenomenon: whether they lived in fear, participated
in block patrols, added locks to their doors and windows, or
bought guns, they were personally effected. Therefore the
percentages of those involved in Petitioner’s case would be
comparable to what is found in smaller communities. (Ex. 75,
E. Bronson Dec., ¶ 126.)
d.
Similarly unavailing is the reasoning that the attention and
collective memory of a particular case is less with a larger
venue. While in most cases that is true, Petitioner’s case “is
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now part of the collective memory of the community, and still
is imbedded there.” (Id., ¶ 120.) Indeed, coverage of
Petitioner’s case faced little competition and dominated the
news cycle up through Petitioner’s trial.
e.
The size of Los Angeles County is offset by what Dr. Bronson
describes as “salience.” This is when a case is especially
relevant to one’s own life, or as Dr. Bronson describes it,
“Salience may arise because of propinquity -- it could happen
to me, it happened near me or in a palace I know or have been,
it affects me, people like me are involved, and other similar
factors.” (Id., ¶ 121.) For example, Dr. Bronson
recommended a change of venue for the Oklahoma City
bombing case because it had salience with the people in
Oklahoma. Yet, he recommended against a change of venue
in the Unabomber case because there was no special salience
in Sacramento as compared to other areas. (Id.)
f.
In this case, Dr. Bronson found an extremely high rate of local
salience. While those in other parts of the state may have
known of the Night Stalker, those in Los Angeles county had
a unique fear of Petitioner and relationship with his alleged
criminal activity. (Id., ¶ 122.) Some examples of this salience
in the Times articles reviewed by Dr. Bronson include:
(1)
An article discussing the case as more fearsome because
he attacks the home and without a pattern (Ex. 76, L.A.
Times Articles Reviewed by Dr. Bronson, at p. A-4);
(2)
What made the crimes especially fearsome was that
they occurred in quiet suburbs, not “Skid Row” (Id., p.
A-48);
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(3)
“Seems even more horrendous because this person goes
into people’s homes, he’s going into your sanctuary,
your private place. That’s very frightening to me, and
he’s doing it in such a diabolical way.” (Id., p. A-4);
(4)
“you’re not even safe in your own home. It seems like
a violation of privacy even though you haven’t been
accosted.” (Id., p. A-4.)
g.
The trial court acted unreasonably by failing to take into
account the salience of Petitioner’s case, or any of the other
mitigating factors offsetting the benefit of Los Angels
county’s high population on obtaining a fair trial.
807. The witness testimony during the venue motion helped illustrate the
unique unrest, concern, collective action, and fear the Night Stalker phenomenon
generated in Los Angeles county. From the testimony, the trial court recognized
that law enforcement “certainly did solicit an enhanced level of community based
awareness activity and support, and got it.” (17 RT 849.) It also acknowledged
that “there was a feeling of fear across at least part of the community” but found
“it was not necessarily [a] county-wide feeling.” (Id.) The court’s glib
characterization of the evidence, however, failed to grasp the extent to which the
publicity of Petitioner’s case had already made a fair trial highly unlikely.
a.
Members of the “Guardian Angels,” an organization that
sends members to people’s homes for protection and a sense
of security, testified that the organization was involved in
setting traps for the Night Stalker. (12 RT 418-428.)
b.
Dr. Paul Blair, a psychiatrist who had dealt with hostage
negotiations, testified regarding the public’s fear of the Night
Stalker. Dr. Blair discussed the role random murders and
assaults play in increasing the fear of a community. “The
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concept of randomness does cause an increased amount of
fear . . . like a fear of the unknown, a fear of the dark.” (
RT 574.) He then discussed how the media in the Night
Stalker case only helped to increase the public’s fear: “The
more information that comes out in the press . . . the more
people will read it, the more people talk about it . . . . Things
begin to get distorted and the tension level goes up
dramatically.” (Id., 578.) Dr. Blair’s testimony also informed
the trial court about the issue of salience that increases the
likelihood of a prejudiced jury pool. (See Ex. 75, E. Bronson
Dec., ¶¶ 179-185 (discussing Dr. Blair’s testimony).)
c.
Witnesses Patrick Bates and Joseph Santoro testified that Los
Angeles had essentially joined together out of fear; taking
drastic steps to secure their safety. Santoro testified that 20%
of Monterrey Park had joined neighborhood watch groups to
protect themselves from the Night Stalker. The police
department had set up programs for elderly people to receive
free dead bolt locks, and calls to the police doubled or even
tripled. (14 RT 606-33.) Mr. Bates testified that gun sales at
his gun store had doubled, and even tripled among women,
but then returned to normal once Petitioner was arrested. (Id.,
634-652.)
d.
The testimony presented during the venue motion
demonstrated that the likelihood for obtaining a fair trial in
Los Angeles county was small. The Night Stalker crimes
affected so many personally and so dramatically, it would be
especially difficult for jurors to set aside their prejudice and
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for Petitioner to obtain a fair trial. (Ex. 75, E. Bronson Dec., ¶
189.)
808. The testimony at the venue motion was corroborated by the
sensational and inflammatory reports about how the Night Stalker thrust Los
Angeles into a state panic. As shown by just a small sampling of the Channel
scripts admitted in the venue motion, the panic was intense:
a.
“Authorities throughout the southland are urging everyone to
lock all doors and windows tonight . . . as the search goes on”
for the Night Stalker (Ex 77, Channel 11 Scripts, at p. 2315);
b.
“There is a degree of alarm among those who live in the
outlying valleys . . . people are fearful of where this random
killer will strike next.” (Id., p. 2329);
c.
“Residents are locking their doors and windows . . . and
arming themselves tonight . . . as neighbors are braced to
protect themselves . . . police are converging a special task
force” (Id., p. 2332);
d.
“many women . . . especially those who live alone . . . are
taking measures they never even considered before” (Id., p.
2368);
e.
take matters into their own hands” (Id., p. 2385);
“vicious series of Night Stalker attacks is making some people
f.
“Many Southern Californians are resorting to drastic measures
to protect themselves . . . as a result of the Night-Stalker series
of killings” (Id., p. 2446);
g.
“As each day goes by without the Night Stalker being brought
into custody . . .the anxiety of local residents continue to rise”
(Id., p. 2460.)
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809. While the trial court admitted personal knowledge of the contents
and extent of the L.A. Times coverage, the trial court’s ruling denying articles
submitted by trial counsel violated Petitioner’s federal due process rights because
of its flagrant violation of established state law relating to change of venue
motions under California Penal Code section 1033. Section 1033 provides that
the court shall order a change of venue when it appears that there is a reasonable
likelihood that a fair and impartial trial cannot be had. In support of change of
venue, a defendant is required to establish that pretrial publicity is prejudicial and
that there is a reasonable likelihood that a fair trial cannot be had. Smith v.
Superior Court, 276 Cal. App. 2d 145, 80 Cal. Rptr. 693 (1969).
810. In Powell v. Superior Court, 232 Cal. App. 3d 785, 283 Cal. Rptr.
777 (1991), the Court of Appeal held that change of venue was compelled for Los
Angeles police officers charged in the Rodney King incident. The reviewing
court considered pretrial publicity and other factors in support of change of
venue. Powell further observed that judicial notice of news media coverage not
presented in the trial court was appropriate on de novo review. Id. at 790 n.2.
The court ruled that “Los Angeles County is so saturated with knowledge of the
incident, . . . and so permeated with preconceived opinions that potential jurors
cannot try the case solely upon the evidence presented in the courtroom.” Id. at
802. Thus, in Petitioner’s case, the court was required to consider all relevant
matters related to change of venue. The court, likewise, was entitled to take
judicial notice of the vast array of prejudicial media coverage of this case.
811. Originally, a motion for change of venue was based principally on
the parties’ affidavits. See Maine v. Superior Court, 68 Cal. 2d at 378; People v.
Carter, 56 Cal. 2d 549, 364 P.2d 477, 15 Cal. Rptr. 645 (1961); People v.
McCracken, 39 Cal. 2d 336, 246 P.2d 913 (1952); People v. McKay, 37 Cal. 2d
792 236 P.2d 145 (1951). People v. Yeager, 194 Cal. 452, 229 P. 40 (1924), was
one of the first reported cases where newspaper clippings were appended as
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exhibits to the affidavit supporting the motion for change of venue. Since then,
parties have appended more extensive supporting exhibits so that, as a practical
matter, the exhibits overshadow the affidavits. This change in practice occurred
without explicit requirements by the courts or legislature. It follows that where
an affidavit alone is legally sufficient to support a motion for change of venue,
the court cannot deny the motion on the mere formality that exhibits were not
authenticated. Exhibits are not legally required for a sufficient motion for change
of venue, therefore, the failure to provide authentication of exhibits cannot be a
legitimate reason for denial of the motion. The trial court was required to rule on
the sufficiency of the assertions of the affidavits, for which the exhibits and
testimony merely demonstrated a reasonable likelihood of prejudice.
812. To prevail on a motion for change of venue, the moving party must
show a “reasonable likelihood” of prejudicial effect, a standard of proof less than
preponderance of the evidence. People v. Jenkins, 22 Cal. 4th 900, 943, 997 P.2d
1044, 95 Cal. Rptr. 2d 377 (2000). The “reasonable likelihood” standard fits the
original use of affidavits as the principal mode of proof. The trial court must
decide if the assertions of prejudice, as documented by credible supporting
exhibits, show a reasonable likelihood of prejudice. Requiring authentication of
hundreds of individual media reports is inconsistent with this standard. Trial
counsel provided reasonable authentication that the news reports in the exhibits
pertained to Petitioner’s case and were from the media sources. Hence, the trial
court erred in refusing to take judicial notice of the defense- proffered exhibits
that demonstrated the prejudicial nature of the media coverage in Petitioner’s
case. Powell v. Superior Court, 232 Cal. App. 3d at 790 n.2.
813. The trial court also erred by ruling the community survey was
unpersuasive to the venue question. Properly, the court was “convinced” that the
methodology was “scientifically based and properly done.” (17 RT 853-54; see
also Ex. 75, E. Bronson Dec., ¶¶ 139-150.) It dismissed the survey, however,
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solely because it asked respondents whether they felt Petitioner was
“responsible,” and not whether they would base their decision on media instead
of evidence in the courtroom. (17 RT 852-53.) Just as it did with the publicity
analysis and opinion testimony, the court again failed to recognize the staggering
degree of prejudice that the community survey demonstrated existed in the Los
Angeles jury pool.
a.
The question in the survey the court took issue with focused
on prejudgment. Respondents were asked whether they felt
Petitioner was responsible from the Night Stalker murders
based on what they had seen or heard. (Def. Ex. R in support
of motion for change of venue.) Only respondents who had
previously stated that they recognized the case were asked this
question. Yet, of all 300 respondents, 51.7% said they felt
Petitioner was responsible. While not shocking on its face,
this rate ranked third highest among California Supreme Court
cases that discussed a survey asking this question. (Ex. 75, E.
Bronson Dec., ¶ 158.) The prejudgment rate was also the
highest Dr. Strand had personally ever seen. (12 RT 463-64.)
Even so, the actual prejudgment in Petitioner’s case was
likely higher than the 51.7% rate indicated by the survey for
three reasons:
(1)
First, Dr. Strand only gave the prejudgment percentage
rate among the entire group of respondents (300.) The
entire group was not asked the question, however. The
percentage of those who found Petitioner responsible
increases to 55.4% when including only those who were
actually asked the question. (Ex. 75, E. Bronson Dec.,
¶¶ 160-62.)
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(2)
Another problem with the prejudgment percentage
reported by Dr. Strand is that the question gave
respondents an opt-out answer that was more socially
desirable than admitting they had prejudged Petitioner.
When asked if they felt Petitioner was responsible, they
were given the choices “yes,” “no,” and “or do you
need more information to make up your mind?” (Def.
Ex. R in support of motion for change of venue.)
Even where respondents were certain of Petitioner’s
guilt, this option allowed respondents to act on their
desire to appear open-minded and give a more
acceptable response. (Id., ¶¶ 164-69.)
(3)
Finally, the prejudgment question asked by Dr. Strand
did not scale the responses. In other words, it did not
give respondents the options of saying Petitioner is
“definitely responsible” or “probably” responsible.”
Giving respondents an all-or-nothing choice likely
diminished the number of those indicating they felt
Petitioner was responsible. (Id., ¶ 168.)
b.
The survey’s first question was designed to measure case
recognition, and asked respondents whether they had read or
While not in place at the time Dr. Strand conducted his survey, The
national standard for surveys promulgated by the American Society of Trial
Consultants (“ASTC”) now states “efforts should be made to avoid context,
wording or other influences that raise the likelihood of responses due to social
desirability or other response bias.” See ASTC (American Society of Trial
Consultants) website: ASTC Professional Code, Practice Area A. Venue Surveys,
Professional Standards, II. Basic Questionnaire Design (last visited Dec. 10,
2008) .
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heard anything about the Night Stalker case. A staggering
94.3% recognized the case, with only 17 respondents saying
they did not. (Def. Ex. R in support of motion to change of
venue.) Dr. Bronson, an expert of statistical surveys and one
of the authors of the guidelines for venue surveys adopted and
published by the ASTC, found this to be one of the highest
recognition rate of any case he has seen. Only eleven of the
121 cases Dr. Bronson has worked on had a higher
recognition rate, including the Oklahoma bombing and dog
mauling case in San Francisco. (Ex. 75, E. Bronson Dec., ¶
155.) Further, only three of the forty-two venue cases in the
California Supreme Court discussing a community survey had
a higher recognition rate -- one being the Rodney King case
where venue was transferred from Los Angeles County. (Id.,
¶ 154); see also Daniels, 428 F.3d at 1211 (venue denial
reversed where community survey showing that “eighty-seven
percent of the jury pool recognized the case” helped show
media saturation.) Such a high rate of recognition illustrates
the degree to which a respondent is exposed to the types of
prejudicial coverage discussed above.
c.
Additionally, the trial court failed to account for the extremely
high rate of prejudgment of penalty among the respondents
who were asked. While Dr. Strand testified that only 43.3%
of the 300 respondents indicated Petitioner should receive the
death penalty, only 155 people were asked the question.
When looking at the more meaningful percentage of those that
chose death who were actually asked about penalty, the
percentage jumps to 83.8% (or 130 of the 155people asked.).
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(Def. Ex. R in support of motion to change of venue.) In the
thirty-two cases in which Dr. Bronson has asked a death
penalty question in a survey, Petitioner’s case had the highest
level of support for the death penalty by almost ten percentage
points. (Ex. 75, E. Bronson Dec., ¶ 173.) Therefore, while
the possibility of receiving a fair trial with a prejudiced Los
Angeles jury pool was suspect, the “chances of a fair trial at a
penalty phase were de minimus.” (Id.)
d.
Had the trial court grasped the true import of the community
survey and accurately assessed Dr. Strand’s reports, it would
have been forced to acknowledge the prejudice infecting Los
Angeles County. The data provided to the court indicated
there was a high awareness of Petitioner’s case, a large
percentage of the jury pool that had prejudged Petitioner’s
guilt, and an even larger percentage that prejudged his
penalty. All of this data was supported by the nature and
extent of publicity and the opinion testimony presented by
Petitioner’s counsel. (Id., ¶¶ 139-90.)
814. The inflammatory nature and broad extent of publicity, the nature
and gravity of the Petitioner’s alleged offenses, and the community status of
Petitioner and the victim all weighed heavily in favor of a change of venue. The
size of Los Angeles County, while in most cases allowing for a high likelihood of
an impartial jury, was insufficient to protect Petitioner’s fair trial rights with such
extensive prejudicial publicity and wide-spread panic and fear throughout the
Southland. Yet, the trial court failed to grasp the obstacles Petitioner faced in
getting a fair trial. Further, despite the California Supreme Court’s duty to
“independently examine the record and determine de novo whether a fair trial is
or was obtainable” and its “de novo standard of review” of “our consideration of
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the five relevant factors,” Williams v. Superior Court, 39 Cal. 4th at 434, the
California Supreme Court only spent three paragraphs on all five factors. See
People v. Ramirez, 39 Cal. 4th 398, 433-37, 139 P.3d 64, 46 Cal. Rptr. 3d
(2006). It unreasonably found that “the defendant did not show that the media
coverage was unfair or slanted or revealed incriminating facts that were not
introduced at trial” despite the fact the trial court admitted knowledge of “most”
of the L.A. Times articles reviewed by Dr. Bronson and had before it television
footage of local broadcasts and Channel 11 scripts. Even a sampling of these
materials demonstrated the prejudicial nature of the publicity.
815. Moreover, the California Supreme Court and the trial court acted
unreasonably in light of the clearly established federal standard repeated by the
Ninth Circuit in Daniels and Ainsworth. Under this standard, the prejudice of the
jury pool, irrespective of what the actual voir dire indicates, is presumed where
there was a
barrage of inflammatory publicity immediately prior to trial,
amounting to a huge . . . wave of public passion; (2) whether the
news accounts were primarily factual because such accounts tend to
be less inflammatory than editorials or cartoons; and (3) whether the
media accounts contained inflammatory or prejudicial material not
admissible at trial.
Daniels, 428 F.3d at 1211 (citations omitted). With well over 903 articles
published up to the time of the first admonishment of the jury to avoid media in
September of 1989, 167 articles published throughout the trial, and even more
television and broadcast media present throughout the pre-trial and trial
proceedings, describing the media coverage as a “barrage” is more than accurate.
(Ex. 78, Articles published during trial.) As shown by both Dr. Bronson’s
analysis of a sampling of the L.A. Times articles, and the scripts of Channel
news, the media publicity was extremely prejudicial and inflammatory. (Ex. 75,
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E. Bronson Dec., ¶ ¶ 44-104.) While the articles were mostly factual, those facts
were inflammatory described with inflated emotional language. (Id., ¶ 136.)
Lastly, the media accounts of Petitioner and the Night Stalker phenomenon
contained numerous instances of inadmissible and highly inflammatory material -
- including references to Petitioner as a child molester, and sexual predator.
816. While the federal standard does take into account how close the
publicity occurred to trial, in Petitioner’s case, where the Night Stalker
phenomenon was etched into the collective memory of Los Angeles County, such
an inquiry is not dispositive. This is evidenced by the fact that prospective jurors
recognized the Night Stalker case at a higher rate (94.7%) in 1988 than
respondents did in Dr. Strand’s community survey in 1986 (94.3%.) (Id., ¶ 204.)
817. Even so, the publicity surrounding Petitioner’s case did not abate
during his trial. Among just three major newspapers63, counsel has identified
articles related to Petitioner that were published during Petitioner’s trial, (Ex. 78,
Articles published during trial), including inflammatory reports of a juror that
was murdered during deliberations. (See Claim IX; ex. 80.)
818. Therefore, prejudice in Petitioner’s case should be presumed under
the federal standard , and hence an examination of the voir dire is unnecessary.
See Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d
1250 (1959) (finding a change of venue necessary despite jurors at voir dire
stating they could be impartial); Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639,
L. Ed. 2d 751 (1961) (same); ABA Criminal Justice Standard 3.2(c) (explicitly
not requiring a showing of actual prejudice at trial for a venue motion.)
819. Even considering voir dire, both the trial court’s unreasonable and
improper restrictions on the publicity voir dire, and trial counsel’s ineffective and
prejudicial performance rendered the voir dire in Petitioner’s case inadequate to
The L.A. Times, Outlook, and The Daily Breeze.
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uncover bias and protect Petitioner’s fair trial rights. Voir dire was divided into
four distinct phases: (1) hardship questioning, (2) publicity questioning, (3)
questioning on attitudes regarding the death penalty, and (4) general voir dire.
After prospective jurors expressing hardships were dismissed, individual jurors
were sequestered and questioned individually about publicity. Those who
“passed” this stage were then given questionnaires. (See VI Supp. CT, Vols. 1-
17.) Finally, jurors were questioned generally and about their attitudes on the
death penalty.
820. While the trial court took precautionary steps during the publicity
questioning by sequestering the jury and allowing counsel to directly ask
questions, its errors during this phase of questioning prevented voir dire
discovering the extent to which the jury pool was prejudiced by publicity; thereby
failing to protect Petitioner’s fair trial rights.
821. Publicity voir dire began on July 21, 1988 and ended on September
1, 1988. (See 65 RT 4856 - 89 RT 9483.) On August 1, 1988, the trial court
decided “to limit counsel on both sides to ten minutes per prospective juror with
regards to this so-called publicity aspect of the case.” Counsel objected, and even
filed a memorandum of points and authorities, but the court kept the limitation in
place throughout the publicity voir dire. (See 81 RT 7727-28.)
a.
The trial court’s arbitrary time limit stifled counsel’s ability to
fully question jurors regarding their attitudes based on the
massive publicity surrounding the Night Stalker phenomenon.
The trial court’s apparent irritation with trial counsel that led
to the enactment of the time limit created a chilling effect on
counsel’s questioning of prospective jurors.
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b.
Dr. Bronson, who reviewed a reasonably representative
sampling64 of the publicity voir dire, found that of the near
sixty panelists he reviewed, the trial court warned trial counsel
five times that he was approaching the ten-minute mark. He
never once asked the court for additional time with a
prospective juror, “even when he seemed to be on to a
potential problem.” (Ex. 75, E. Bronson Dec., ¶ 236.) To the
extent counsel’s failure to follow up on crucial issues and
continuously object to the time limitation counsel’s error, trial
counsel was acting deficiently and prejudicially.
822. The trial court further stripped the publicity voir dire of its
effectiveness by giving repeated instructions to the panelists about their duty to
remain impartial and unbiased. This left panelists with a clear impression as to
what the appropriate answer should be. The panelists knew exactly what the trial
court wanted to hear and they were under a certain amount of pressure to deliver.
a.
Examples of the trial court’s admonishments to panelists
included the following:
(1)
“Because of the publicity surrounding this case, the
jurors must be examined to see if they have formed any
firm opinions about the guilt or innocence of Mr.
Ramirez and whether or not those opinions can be set
aside.” (65 RT 4830-31); and
Dr. Bronson reviewed the first ten panel members on three dates: the
first day of publicity voir dire, the last day of publicity voir dire, and the date
falling in the middle of the process. He also examined each of the seated and
alternate jurors’ publicity voir dire. (Ex. 75, E. Bronson Dec., ¶¶ 191, 193.)
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(2)
“It is important that jurors be unbiased and free from
any preconceived notions about whether this defendant
in a criminal case is guilty or innocent.” (65 RT 4856.)
b.
The trial court repeatedly reminded individual panelists of its
admonishments during the questioning. For example, the
court asked, “Do you remember my -- the last thing I gave to
the jury this morning about presuming the defendant
innocent?” (77 RT 7078.) “Could you follow the court’s
instruction that you heard this morning with regard to the
presumption of innocence?” (89 RT 9380.)
823. While a trial court certainly has an obligation to admonish a jury
regarding their requirements necessary for a fair trial, doing so before they have
been questioned by counsel or have even filled out questionnaires obstructs
counsel’s ability to accurately assess potential bias. (Ex. 75], E. Bronson Dec., ¶¶
197-99.) The prospective jurors quickly realized from the trial court’s
instructions that they should say they can be fair and impartial. An example of
this dynamic between a court and prospective juror can be seen in the following
interplay during publicity voir dire:
The Court: That’s right. The idea is whether or not he did them.
That is what this trial is all about.
Panelist:
Yeah, Yeah.
The Court: Whatever opinion you have for him, Ma’am, do you
believe you could set that opinion aside and be a neutral
and objective juror in this case?
Panelist:
Yes, considering what you said this morning.
The Court: Okay.
Panelist:
I think he’s entitled to a fair trial.
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The Court: Okay. Could you then follow the court’s instruction
about the presumption of innocence?
Panelist:
Yes.
(77 RT 7095.)
824. Instead of the trial court’s ill-timed admonishment to prospective
jurors about the need for a presumption of innocence and an unbiased jury, the
court should have given, as many courts do, an instruction tailored specifically to
voir dire. This admonishment would have instructed jurors to be honest and
forthright, that there are no right or wrong answers, and that their only obligation
is to answer truthfully. (Ex. 75, E. Bronson Dec., ¶ 201.) Instead, the trial
court’s implicitly suggestive instructions to the prospective jurors prevented the
voir dire process from performing its required function, and is another reason
why prejudice should be presumed when assessing the necessity of a change of
venue in Petitioner’s case.
825. Compounding the trial court’s errors, trial counsel’s performance
during the voir dire of prospective jurors amounted to incompetence and rendered
the voir dire inadequate to identify the extent of prejudicial publicity. Trial
counsel unconstitutionally deficient performance during its questioning of
prospective jurors, and by its failure to renew its motion for change of venue
following the publicity voir dire. But for the trial counsel’s deficient
performance, the voir dire would have revealed overwhelming prejudice due the
venire due to pretrial publicity and a change of venue would have been granted.
(See Id., ¶¶ 225-39.)
826. Trial counsel was prejudicially deficient in preparing and presenting
the questionnaire given to prospective jurors. Curiously, trial counsel allowed the
questionnaire, which contained five questions regarding publicity, to be given to
prospective jurors after they had already passed the publicity voir dire.
Therefore, counsel did not have the benefit of the written responses when
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questioning the jurors. When voir dire was already limited to just ten-minutes,
failure to have questionnaires given to the panelists before publicity questioning
wasted unnecessary and valuable time to get at juror bias. Competent counsel
would have strenuously objected to the trial court’s desire to give the
questionnaires in this order. (See 140 RT 15967.) There was no reasonable
strategic decision that could justify such a strategy, especially where the
questionnaire contained largely unhelpful and vague inquiries. (Ex. 75, E.
Bronson Dec., ¶ 227.) Indeed, in Dr. Bronson’s extensive career, he has never
once encountered such a procedure. (Id., ¶ 226.)
827. During the publicity voir dire, trial counsel prejudicially failed to
sufficiently question prospective jurors about their potential biases. In the fifty-
seven juror voir dires examined by Dr. Bronson, trial counsel never once
exceeded the ten minute time limit improperly imposed by the court, and only
came close to approaching the ten minute mark five times. (Id., ¶ 236.)
a.
In some instances, trial counsel failed to question prospective
jurors at all. There could be no reasonable strategic decision
not to do so. For example, two consecutive jurors were asked
no questions by counsel even though one admitted to reading
newspaper articles and another admitted watching television
and reading newspapers. (See 65 RT 4885-88.) As counsel
varied the degree and nature of his inquiry from panelist to
h.
Each of these examples demonstrate counsel’s deficient
performance in identifying and challenging potential jurors
who indicated prejudice due to pretrial publicity. Had counsel
effectively questioned the jurors, more evidence of actual
prejudice necessitating a change of venue would have become
apparent.
828. Even with the trial court’s improper handling of voir dire and trial
counsel’s deficient performance, a review of the publicity voir dire demonstrates
sufficient prejudice to warrant a change of venue. There was a 100% recognition
rate of Petitioner’s case among the thirty panel members not seated on
Petitioner’s jury and reviewed by Dr. Bronson. Fourteen of those thirty, or
46.7%, said that they thought Petitioner was guilty even after the trial court’s
attempts to rehabilitate them. Eleven of the thirty were excused for cause. (Ex.
75, E. Bronson Dec., ¶ 206.) Among the seated and alternate jurors, twenty-six
of twenty-seven jurors recognized Petitioner’s case prior to voir dire. (Id., ¶¶
209, 223.) The lone juror who did not recognize the case stated that he never
read the newspaper. (89 RT 9401-11.)
829. These numbers are buttressed by the fact that the questionnaires
filled out by jurors who passed publicity voir dire indicated a 94.7% recognition
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rate -- higher than the 94.3% rate obtained in Dr. Strand’s community survey
conducted in 1986. (Ex. 75, E. Bronson Dec., ¶ 204.) This becomes significant
when recognizing the length of time between the commencement of news
coverage (May of 1985) and the voir dire questioning (1988.) While traditional
logic indicates case-recognition lessens over time, Petitioner’s case was
essentially burned into the collective memory of the county, as the recognition
rate actually went up with the passage of time. This caused Los Angeles to
become the functional equivalent of a much smaller community in which
Petitioner faced a higher likelihood that he could not receive a fair trial. (Id.)
830. The raw numbers do not fully portray the extent of prejudice shown
by the voir dire. Rather, the publicity voir dire had many problems that
understated the true extent of prejudice due to pretrial publicity.
831. A phenomenon known as “response bias” causes prospective jurors
(as well as respondents interviewed in surveys) to pick up on even subtle clues as
to what the interviewer, or trial court, wants to hear. (Id., ¶¶ 213-14.) A
prospective juror’s preconceived notions of due process along with a trial court’s
admonishments give him/her a clear message that a “good” juror is not supposed
to have prejudicial biases against a defendant, and if he/she does, he needs to be
able to set them aside. Prospective jurors may therefore give the impression of
being a “good juror” even if they harbor such biases. (Id.) This is not an
intentional act of deceit by prospective jurors, but rather a masking of certain
information due to hidden response bias. (Id.)
832. The publicity voir dire in Petitioner’s case was ripe with examples of
response bias, where the prospective jurors were essentially taught to give
acceptable answers. For example, the trial court asked one panelist if she had an
opinion on guilt. She responded, “I have heard what you said this morning about
being innocent until you are proven guilty. I would go by that.” (77 RT 7094.)
Her assertion that she could follow the proper guilt presumption was bellied by
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her other statements that “I can’t understand how anybody could do such things
and be innocent,” (Id. at 7094), and “[Petitioner] claimed to have done it, you
know.” (Id. at 7097.) Her mere recitation of the court’s admonishment thus
appeared “to be more a product of training rather than her true feelings[.]” (Ex.
75, E. Bronson Dec., ¶ 207.)
833. In yet another example of the difficulty of ascertaining jurors’
prejudice because of their desire to give acceptable responses, one prospective
juror initially admitted that he had believed Petitioner was guilty. (89 RT 9389.)
The trial court then rehabilitated the panelist, asking him “do you feel that
[Petitioner is guilty] very strongly?” to which the juror replied “Well, I can’t say
strongly, but from the media attention and what they said and stuff, that’s what I
think inside my head.” (Id. at 9389-90.) It then asked the panelist if it would be
difficult to set aside his opinion and “be a neutral and objective juror” to which
the panelist said, “no.” (Id. at 9390.) When counsel began to question the juror,
however, it came out that he remembered everybody he knew was afraid or
worried about their safety and was relieved when Petitioner was arrested. The
panelist even conceded that once he saw that after Petitioner’s arrest no one was
“crawling through people’s windows and stuff” he knew thought Petitioner was
guilty. (Id. at 9393.) Illustrating response bias, the panelist said that he knew
“they say that you are not supposed to [prejudge a defendant].” (Id.) Only when
the panelist admitted, in contradiction to his initial statement to the court, that it
would be difficult for him to be impartial did the trial court excuse him. This,
however, was a rare occurrence of extensive questioning by counsel. Assuredly
much more information and prejudice went undiscovered through the court’s
approach at preinstructing the jury pool.
834. Where publicity voir dire did expose prejudice among prospective
jurors, often times the trial court would improperly ignore it, and “pass” the
prospective juror regardless of his/her indication of prejudice. Despite the trial
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court’s error, these panelists’ voir dire provides powerful evidence that pretrial
publicity raised a reasonable likelihood Petitioner could not have received a fair
trial in Los Angeles County:
a.
For example, one panelist said “he [Petitioner] is the Night
Stalker.” (77 RT 7046.) She added that her friends gave her
opinions about the case based upon their following of the
news stories. Trial counsel would get her to say, “Everyone
assumed right away he was guilty, why do they want to have a
trial,” (Id. at 7050), that “I have a couple girlfriends that
were afraid to see his face on T.V. They say he was evil, ‘Oh,
he looks evil.’” (Id. at 7053.) She talked about her friends
who “were sleeping with their guns under the bed,” one of
whom “couldn’t sleep at all until he was captured.” (Id.)
Despite trial counsel’s initial challenge for cause, the trial
court ended up passing this panelist.
b.
Another panelist noted the killings stopped after Petitioner
was arrested and that the media seems to think he is guilty.
The panelist even admitted to thinking Petitioner is guilty
based on what she has read, but understands the need to be
proven guilty in court. Curiously, she admits she does not
believe he is innocent but at the same time claims she could be
objective. The trial court denied trial counsel’s challenge for
cause. (67 RT 5255-5274.)
c.
In another example, a prospective juror talked extensively
about the fear everyone felt around the Night Stalker,
including the precautions she took and her relief when he was
arrested. The trial court denied trial counsel’s challenge for
cause. (69 RT 5554-80.)
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d.
A prospective juror admitted to thinking Petitioner was
probably guilty, that it was the publicity that made her feel
this way, and that she would have trouble setting that aside.
The trial court improperly rehabilitated the juror and denied
trial counsel’s challenge for cause. (79 RT 7357-73.)
e.
These examples, along with those instances where trial
counsel simply failed to challenge a juror for cause,
demonstrate the extent of prejudice the pretrial publicity in
Petitioner’s case had on the jury pool.
835. A weak voir dire process, brought about by deficient counsel and
trial court error, made it difficult to identify the scope of prejudice affecting
Petitioner’s jury pool. Even so, with such a high rate of recognition and
prejudgment, and an “unusual” number of panelists who admitted bias, the voir
dire revealed the need for a venue change. (Ex. 75, E. Bronson Dec., ¶ 224.)
Because of the trial court’s improper handling of the voir dire, trial counsel’s
deficient performance, and instances of response bias, the voir dire examination
prospective jurors provides little confidence that Petitioner could receive a fair
trial in a community so saturated with prejudicial and inflammatory media
publicity. (Id.) Therefore, if the Court decides not to presume prejudice based on
the pre-trial publicity in Petitioner’s case, the constitutional error by the trial
court in failing to grant a change of venue, and the unreasonable affirmation by
the California Supreme Court are demonstrated by the actual voir dire of
prospective jurors.
B.
To the Extent the Trial Court Did Not Commit Error by Denying
Petitioner’s Venue Motion, the Denial was the Result of Counsel’s
Ineffective and Deficient Performance
836. While Petitioner maintains the trial court violated his constitutional
rights by failing to grant a change of venue, to the extent the Court finds the trial
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court’s or the California Supreme Court’s determination was reasonable, trial
counsel was ineffective in presenting evidence that would have conclusively
shown a change of venue was required. Trial counsel’s failure to competently
voir dire prospective jurors, renew the venue motion after voir dire, or even file a
writ of mandamus from the trial court’s denial of the venue motion constituted
below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. 668.
837. As a result of trial counsel’s incompetence, there was a complete
breakdown in the adversarial process. Counsel’s performance impaired the
proper functioning of the criminal justice system such that the proceedings cannot
be relied on as having produced a just result. Id. at 686. There is a reasonable
probability that but for counsel’s failings, the result of the venue motion would
have been more favorable. Id. at 687-96. Moreover, the failure to obtain a
change of venue prejudiced Petitioner at the guilt phase and particularly at the
penalty phase.
838. Trial counsel’s incompetence was most apparent in their attempts to
admit evidence of the extent and nature of prejudicial publicity in Petitioner’s
case. Trial counsel lacked basic knowledge of the law, including the most
fundamental rules governing authentication of documents under the evidence
code. Further, trial counsel’s haphazard and sloppy attempts at introducing
evidence, riddled by mistakes and clerical errors, only exacerbated the prejudicial
effects of its ignorance of the law.
839. Trial counsel offered into evidence hundreds of newspaper articles
and computerized printouts of local television stories65. This included the
Trial counsel admitted it did not attempt to retrieve all articles from
various sources because it did not have time and because it felt the court would
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following exhibits presented during the defense trial motion for a change of
venue, which can be found in Exhibit 9 to Petitioner’s State Petition for Writ of
Habeas Corpus:
a.
from the Los Angeles Daily News.
b.
Exhibit B -- computerized printouts of at least 225 television
stories from Channel 7 News.
c.
Exhibit A -- computerized printouts of sixty-seven articles
Exhibit C -- fifty articles from the San Gabriel Valley
Tribune.
d.
Exhibit D -- thirty-three newspaper articles from the Los
Angeles Times.
e.
Exhibit F -- eighteen articles from the Los Angeles Herald.
f.
Exhibit F -- two articles from the Press Telegram.
g.
Exhibit G -- five articles from the Pomona Press Bulletin.
h.
Exhibit H -- one article.
i.
Exhibit I -- three articles from the Pasadena Star News.
j.
Exhibit J -- four articles from the Arcadia Tribune.
k.
Exhibit K -- three articles from Rafu Shimpu.
l.
Exhibit L -- four articles from the Torrence Daily Breeze.
m.
Exhibit M -- two articles from the Monrovia News.
n.
Exhibit N -- three articles from La Opinion (in Spanish
language.)
o.
Exhibit O -- one article from the Whittier Daily News.
p.
Exhibit P -- three articles from the Glendale News Press.
find multiple articles repetitive. (16 RT 757-58.) This proffered reason fails to
recognize the importance of showing the “extent” of media coverage as required
by the five California venue factors.
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q.
Exhibit Q -- one article from the Eagle Rock Sentinel.
r.
Exhibit R -- set of television ratings. No documentary
evidence was offered with respect to the significance of the
ratings. The court indicated that many cases held an expert
should be called to interpret ratings, but counsel did not
present an expert. (16 RT 769-70.)
s.
Exhibit S -- computerized printouts of 265 wire service
stories.
t.
Exhibit U -- letter from KABC forwarding printouts.
u.
Exhibit V -- letters from San Gabriel Tribune.
v.
Exhibit W -- declaration of editor of La Opinion.
w.
Exhibit X -- six videotapes from Channel 4.
x.
Exhibit Y -- videotape from Channel 52.
840. Within these documents were hundreds of media accounts that
recounted the gruesome details of the crimes, the pervasive sense of terror that
had gripped Los Angeles County, and inflammatory and prejudicial accounts of
the “Night Stalker” and Petitioner. Yet trial counsel failed to have these materials
admitted because of its failure to lay a foundation or authenticate the articles: a
basic requirement and rule of evidence.
a.
For example, the trial court rejected Defense Exhibit A
because counsel failed to introduce any evidence that the
documents were actually published. (16 RT 722-26.) To
compound matters, trial counsel had mistakenly labeled the
articles as being from television broadcast channels when they
were actually printouts of articles from the Los Angeles Daily
News. (Id. at 718-721.)
b.
Another example of trial counsel’s almost brazen
incompetence occurs when, responding to an objection that
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the defense failed to authenticate the articles by showing they
were actually published, trial counsel attempts to prove
authentication by pointing to a letter sent to counsel from the
news company attesting that the articles were published. The
problem: trial counsel did not introduce that letter into
evidence so the court did not have it to consider. (Id. at 726.)
c.
To authenticate articles from the San Gabriel Valley Tribune,
counsel offered a declaration from a librarian dated July 31st.
The articles included stories up through September 3rd,
however. Therefore, the court dismissed the declaration as
unreliable and misleading, as it did not, as proffered by trial
counsel, account for the authenticity of over a month’s worth
of articles. (Id. at 747-750.)
841. Trial counsel’s argument for having the articles admitted had no
support in the law. For example, in a December 23, 1986 motion, trial counsel
requested that the court “should take judicial notice” of certain articles from the
Los Angeles Times, San Gabriel Valley Tribune and United Press International.
(XXII CT 6548.) Counsel also requested that the trial court “should acknowledge
that the comments reported in the following articles correctly reflect the opinions
and concerns of the officials being quoted” and the “type of community
awareness and preoccupation with the ‘NIGHT STALKER’ crimes.” (Id. at
6548.) Counsel repeated this argument during the argument as well. (See 16 RT
717, 741.)
a.
Trial counsel’s attempt to introduce records by judicial notice
was fatally flawed. Judicial notice was legally unavailable for
admission of documentation for the purpose of proving
community attitudes. Under the clear wording of California
Evidence Code § 451 (matters which must be judicially
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noticed) and § 452 (matters which may be judicially noticed.),
the law does not contemplate its use to prove community
attitudes in a change of venue hearing. (Id. at 712-13.) On
more than one occasion, counsel insisted that authentication
was not necessary. (Id. at 704, 717.) The trial court refused
to admit the material. (Id. at 705-17; see Evidence Code §
1400; People v. Mayfield, 14 Cal. 4th 668, 928 P.2d 485,
Cal. Rptr. 2d 1 (1997).
b.
More importantly, trial counsel’s argument focused solely on
the subject of the articles, e.g. the community feelings
regarding the Night Stalker, rather than the fact that the
articles were published. This misplaced focus improperly
ignored the relevance of the nature and extent of publicity,
and the effect of publicity on a jury pool. The fact that an
article was published, and repeated inflammatory or
prejudicial statements, is just as important as whether the
article was accurate or truthful in its account of the
community’s feeling. In fact, an article misrepresenting facts
may be even more powerful evidence supporting a change of
venue than articles that were purely factual. Counsel’s failure
to grasp this point was unreasonable.
842. Perhaps realizing its deficient performance, counsel admitted, “I am
under some medication, I am not making a lot of sense sometimes and I advise
the court I have been under medication for the last two weeks. Let the record be
clear that if you are having some problems, it is perhaps because of my
medication.” (16 RT 741.) A reasonable justification for abridging Petitioner’s
right to counsel does not include being medicated.
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843. Trial counsel’s confusing, mistake-riddled, and legally baseless
attempts to introduce evidence at the venue hearing led the trial court to the
extraordinary step of finding trial counsel incompetent on the record. On January
6, 1987, in the presence of only Petitioner and his counsel, the trial court
personally addressed Petitioner:
[In] my opinion your lawyers are incompetent. Now I
have had this case for six months . . . in my opinion
they are not competent to handle your case. I don’t
think that they have sufficient experience in the law. . .
. I don’t think they know the law well enough, I don’t
think they know the rules of evidence well enough, they
are not ready to present the evidence. . . . And I am
telling you now that your rights are not being protected.
(16-A RT 733-734 (sealed).) While the trial court erred in not protecting
Petitioner’s rights once it realized they were being infringed by trial counsel, this
was powerful evidence of deficient performance.
844. Trial counsel’s deficient performance was not limited to its attempts
to introduce evidence, but permeated the entire venue motion, including the
presentation of television media and witness testimony. For example, trial
counsel insisted the court view video-cassettes consisting of television broadcasts
related to the Night Stalker crimes and Petitioner’s arrest. (9 RT 248-67.) Yet
counsel appeared to have no idea what information the tapes contained; merely
pressing the “play” button on the VCR and encumbering the trial court with hours
of unfocused television viewing. Despite the apparent annoyance by the trial
court at viewing endless video without any explanation as to its relevance, trial
counsel presented no explanation or analysis of what was being viewed or why it
was prejudicial or inflammatory.
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845. Trial counsel’s incompetent presentation of the video-tape evidence
allowed the trial court to commit error by finding the only relevance from the
tapes were their demonstration of the “frequency and saturation” of coverage.
(Id. at 268-70.) Perhaps even more important than showing extent of coverage,
the video tapes should have been considered for the “nature” of the coverage
about Petitioner -- including inflammatory, inaccurate, and inadmissible materials
being broadcasts throughout Los Angeles County. (See e.g. Ex. 79, Channel
Scripts.) Trial counsel failed to explain to the court how the content, and even
the repetitiveness, of the broadcasts provided evidence of the prejudicial
publicity inundating Los Angeles County’s jury pool.
846. In examining witnesses during the venue hearing, counsel at times
seemed unable to frame questions to witnesses. For example, when questioning
defense expert Dr. Paul Blair, trial counsel could not pose a basic hypothetical,
even with clear direction from the court. (14 RT 595-97.) Finally, the court had
to take over questioning and ask the hypothetical itself. In another example, trial
counsel could not perform the basic task of laying the foundation for a question
about a witness’s ability to perceive, forcing the court to ask the proper question
instead. (15 RT 669-70.)
847. At the conclusion of voir dire, trial counsel unreasonably and
prejudicially failed to renew the change of venue motion or file a writ of
mandamus to the appellate court challenging the trial court’s adverse ruling. This
procedure was standard practice after the 1968 California Supreme Court
decision of Maine v. Superior Court, 68 Cal. 2d at 381 (discussing procedures to
file a writ of mandamus challenging the denial of a change of venue and for
renewing a motion.) Trial counsel’s failure to renew the motion following voir
dire unreasonably suggested counsel was satisfied with the jury. More
importantly, counsel’s failure to file a writ of mandamus prejudiced Petitioner
because the “reasonable likelihood” standard does not include an actual prejudice
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assessment during a writ, and because courts are more willing to grant a change
of venue on appeal before the trial takes place. See id. (“it is proper, and often
preferable, to determine the place of trial prior to the actual trial of the case rather
than afterwards.”)
848. Had counsel operated at even a minimal standard of competency, the
trial court would have accorded appropriate weight to the evidence of pretrial
publicity and granted Petitioner’s motion for a venue change. While the court did
consider and acknowledge news articles not formally accepted into evidence,
competent counsel could have ensured the court appropriately considered the
evidence before it.
849. Trial counsel did not offer a content-analysis similar to what Dr.
Bronson performed. Left with unfiltered and unexplained video of television
broadcasts, a sampling of various newspaper articles, and its own knowledge of
the L.A. Times and other media publicity, the trial court failed to notice or
consider the nature of the publicity that saturated Los Angeles county. Instead,
the trial court unduly focused on the “extent” of coverage when it assessed the
850. Further evidence of the prejudice resulting from trial counsel’s
deficient performance can be seen in the California Supreme Court’s discussion
of the venue motion. When discussing the “nature” of the publicity, the
California Supreme Court noted the “defendant did not show that the media
coverage was unfair or slanted against him or revealed incriminating facts that
were not introduced at trial.” Ramirez, 39 Cal. 4th at 433. While this finding by
the California Supreme Court is an unreasonable determination of the facts based
on what was actually presented and considered during the motion, (see e.g. ex.
79, Channel 11 Scripts), it does indicate that had counsel been more explicit in
explaining the nature of the publicity, the venue motion would have been granted.
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851. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993) Even assuming, however, the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
852. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
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CLAIM 7:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REJECTING
PETITIONER’S FOR-CAUSE CHALLENGES OF JURORS
WHO WERE NOT LIFE-QUALIFIED
853. Exhaustion of the claim: The portion of this claim regarding Robert
Domney was fairly presented to the California Supreme Court in the direct
appeal in Section VIII of the Opening Brief. The remaining portion will be
presented to the California Supreme Court in an exhaustion petition that
Petitioner will file no later than March 17, 2009.
854. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the trial court erroneously denied his for-cause challenges
against jurors who were not life-qualified, forcing him to use peremptory
challenges, which he exhausted. Morgan v. Illinois, 504 U.S. 719, 728, 112 S.
Ct. 2222, 119 L. Ed. 2d 492 (1992).
855. In support of this claim, Petitioner alleges the following facts,
among
others to be presented after full discovery, investigation, adequate funding, access
to this Court’s subpoena power, and an evidentiary hearing.
856. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
857. Robert Domney: On his questionnaire, prospective juror Robert
Domney stated that he believed the State should impose the death penalty upon
everyone who for any reason intentionally kills another human being, during the
course of a robbery or otherwise. (IV Supp. CT 9, at 2715.) During Hovey voir
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dire, Domney stated that he considered himself a strong supporter of the death
penalty in California; that on a scale of one to ten, he would call himself an eight;
and that he considered the death penalty a just punishment for some crimes,
including murder, unless it was in self-defense. (See 120 RT 13261-76.)
Domney indicated that he would automatically vote for the death penalty if no
mitigation evidence were presented at a penalty trial. However, on examination
by the prosecutor, Domney said that he would not vote for the death penalty
automatically in a case of first degree murder, and that he could consider all of
the facts and consider life imprisonment without the possibility of parole equally
along with the death penalty. (120 RT 13261-76.)
858. Based on Domney’s responses, Petitioner challenged him for cause.
The prosecutor asserted that Domney should not be disqualified on the ground
that he would “automatically” vote for the death penalty. The trial court, in
substance, agreed with the prosecutor, saying that the juror was “about 80 percent
in favor of the death penalty,” which was not sufficient for disqualification.
Petitioner’s challenge for cause of Robert Domney was denied. (120 RT 13276;
XXVIII
CT 8182.)
859. Petitioner subsequently exercised a peremptory challenge to remove
Domney from the jury. (141 RT 16054.) Petitioner exercised all twenty
peremptory challenges and moved to increase the number of peremptory
challenges. On January 10, 1989, the trial court denied this request. (See
RT 14937; XXVIII CT 8260.)
860. The California Supreme Court has repeatedly held that “neither the
prosecution nor the defense has the burden of proof” during the penalty phase.
People v. Daniels, 52 Cal. 3d 815, 890, 802 P.2d 906, 277 Cal. Rptr. 122 (1991).
Robert Domney made it clear that he favored the death penalty as the appropriate
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punishment and would place a burden on a defendant to prove that death was not
the appropriate punishment.
861. In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d
(1985), the Supreme Cou held that the proper standard for a determination of
when a court may excuse a prospective juror for cause because of his views on
the death penalty is whether the juror’s views would “prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath.” Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct.
2521, 65 L. Ed. 2d 581 (1980)) (emphasis added).
862. Domney clearly stated his views: he was a strong supporter of the
death penalty and favored the death penalty in nearly all situations – unless the
defendant proved self-defense or demonstrated at a penalty trial why his life
should be spared. There was no doubt in his mind that the defense had a burden
of persuasion with respect to the death penalty. Even though the juror stated that
he would consider the evidence, he could not “faithfully and impartially apply the
law.” Witt, 469 U.S. at 426.
863. The record here shows that Domney held views that would
substantially impair his ability, conscientiously and impartially, to perform his
duty to judge the evidence and determine the penalty. The record reflects that
there was nothing equivocal or conflicting in his answers. People v. Breaux,
Cal. 4th 281, 309-10 821 P.2d 585, 3 Cal. Rptr. 2d 81 (1991); see also People v.
Mattson, 50 Cal. 3d 826, 844, 789 P.2d 983, 268 Cal. Rptr. 802 (1990); People v.
the trial court erred in denying the challenge for cause as to Domney.
864. In Morgan v. Illinois, 504 U.S. 719, 728, 112 S. Ct. 2222, 119 L. Ed.
2d 492 (1992), the Supreme Court held that a defendant is entitled to challenge
for cause any prospective juror who has already formed an opinion on the merits
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and would automatically vote for death. Such a juror who would act otherwise
would not give the defendant an impartial trial as required by the Sixth
Amendment or a reliable penalty determination under the Eighth Amendment as
required by Woodson v. North Carolina; Lockett v. Ohio, 438 U.S. 586, 98 S. Ct.
2954, 57 L. Ed. 2d 973 (1978); and Caldwell v. Mississippi, 472 U.S. 320, 105 S.
Ct. 2633, 86 L. Ed. 2d 231 (1985). To ensure his right to jury impartiality under
the Sixth and Fourteenth Amendments, Petitioner was entitled to have
prospective juror Domney removed for cause.
865. Because of the court’s erroneous ruling, Petitioner exercised a
peremptory challenge to excuse Domney. Petitioner ultimately exercised all his
peremptory challenges. (See 133 RT 14873, 14923-26, 14937, 14939, 14952,
14970.) The court denied Petitioner’s request for additional peremptory
challenges. (See id. at 14887; XXIV CT 6976-86; XXVIII CT 8260.) The trial
court’s denial of the challenge for cause thus prejudiced Petitioner.
866. The trial court’s error in denying Petitioner’s challenge of Domney
for cause, combined with the limited number of peremptory challenges, interfered
with Petitioner’s constitutional rights to an impartial jury, due process, and to
equal protection of the laws.
867. Johnnie Sansberry: At Hovey voir dire, prospective juror Johnnie
Sansberry stated that he “strongly” supported the death penalty in a case of
multiple murders. (105 RT 11520.) “[I]f it is premeditated murder, it would be
the death penalty,” Sansberry testified, although he later stated that “normally I
probably would” vote for the death penalty in such a case. (Id. at 11521.)
Sansberry testified that he would not vote for the death penalty if a killing were
accidental, but that he would always vote for the death penalty if the defendant
had committed an intentional murder during a burglary. (Id. at 11522-24.)
868. The defense challenged Sansberry for cause, but the challenge was
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denied. (Id. at 11528.) The court held that it would grant defense challenges of
prospective jurors who had given disqualifying answers only if defense counsel
had asked whether the jurors would automatically vote for death even after
considering mitigation evidence. (Id. at 11528-29.)
869. The trial court erred in denying the motion for cause. Sansberry was
not qualified to sit as a penalty phase juror in a case involving multiple murders
or murder in the course of a burglary. His views on the death penalty in such
cases “substantially impaired” his ability to serve impartially. As with Robert
Domney, Petitioner was forced to use a peremptory strike to remove Sansberry
from the jury. (129 RT 14494.) Furthermore, the trial court erred in placing
upon Petitioner the responsibility to “rehabilitate” jurors by asking them about
mitigation evidence.
870. Josie Carter: Josie Carter wrote on her juror questionnaire that,
“[r]egarding the death penalty, any person involved or has been proved guilty of
committing a series of murders and proven guilty beyond a reasonable doubt
should serve the death penalty.” (108 RT 11855.) She affirmed this
questionnaire response at Hovey voir dire. (Id. at 11856-59.) Carter also said the
death penalty was used too seldom in California, and that she would always vote
for the death penalty in a case of intentional murder during the course of a
burglary. (Id. at 11863-65; VI Supp. CT 8, at 2363.) Although she said that she
wanted to hear “everything” before voting on a penalty (108 RT 11868.), when
her voir dire testimony is read as a whole, it becomes clear that by “everything,”
Carter meant all evidence regarding the defendant’s guilt. (See id. at 11871.)
871. The trial court denied defense counsel’s motion for cause (id. at
11874.), and defense counsel later used a peremptory challenge to remove Carter
(130 RT 14527.). The trial court’s decision was error. The court noted that
Carter’s answers favoring imposition of the death penalty were not phrased in
absolute terms (108 RT 11873.), but the relevant question is whether Carter’s
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views “substantially impaired” her ability to serve impartially. Clearly Carter
was substantially impaired in a case involving multiple murders or murder during
the course of burglary. Because Petitioner’s case involved both circumstances,
Carter was not qualified to serve in his case.
872. William Christopher Conklin: Prospective juror Conklin believed
that
the death penalty was given too seldom. (IV Supp. CT 9, at 2522.) On his
questionnaire, he stated that he believed that the state should impose the death
penalty upon everyone who for any reason intentionally kills another, and anyone
who intentionally kills another during the course of a burglary. (Id.) At Hovey
voir dire, Conklin testified that there were some cases in which he would vote for
the death penalty regardless of any information about the defendant or his
background. (108 RT 11935.) A case involving multiple brutal murders would
be one such case. (Id. at 11937.) Conklin even went so far as to say that, based
on what he knew of Petitioner’s case at the time, he would automatically vote for
the death penalty in Petitioner’s case. (Id. at 11939.)
873. At this point, the court stepped in and “rehabilitated” Conklin by
leading him to state that he would consider mitigation evidence before voting on
the appropriate penalty. (Id. at 11939-40.) Defense counsel objected to the
court’s suggestive “rehabilitation,” but the court denied defense counsel’s
challenge nonetheless. (Id. at 11943.) The trial court’s decision was
constitutional error, as Conklin was “substantially impaired” in his abilities to
serve on a capital jury in a case, like Petitioner’s, involving multiple brutal
murders.
874. The trial court’s decision to retain the aforementioned jurors because
they stated that they could “consider” mitigation evidence was particularly
unreasonable in light of the introduction the court gave to each group of new
prospective jurors. In this introduction, the court instructed the jurors that they
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were required to consider such mitigating evidence. It stated that even after
convicting a defendant of first degree murder and finding the special
circumstances to be true, the jury “must listen to, consider and weigh all of the
[mitigation] evidence before they come back with a verdict.” (See, e.g., 119 RT
13086.) In other words, the trial court informed the prospective jurors of the
answer that was acceptable to the question they were about to be asked. Only a
blatantly rebellious juror would, after this introduction from the court, state that
he would not consider mitigation evidence.
875. The jurors’ assurances that they would do so cannot negate the other
responses establishing that their views on the death penalty “substantially
impaired” their ability to serve. If a juror expresses a disqualifying dogmatic
preference in favor of imposing the death penalty, a concomitant pledge to
“follow the law” will not save him. “It may be that a juror could, in good
conscience, swear to uphold the law and yet be unaware that maintaining such
dogmatic beliefs about the death penalty would prevent him or her from doing
so.” See Morgan, 504 U.S. at 735.
876. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
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fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
877. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
CLAIM 8:
THE TRIAL COURT DEPRIVED PETITIONER OF HIS RIGHT TO
AN IMPARTIAL JURY BY ERRONEOUSLY EXCLUDING
POTENTIAL JURORS WHOSE CONCERNS ABOUT THE DEATH
PENALTY WOULD NOT HAVE SUBSTANTIALLY IMPAIRED
THE PERFORMANCE OF THEIR DUTIES
878. Exhaustion of Claim: Ramirez will present this claim to the
California Supreme Court in an exhaustion petition that he will file no later than
March 17, 2009.
879. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the trial court erroneously excluded for cause two
prospective jurors who were actually qualified to serve, thus depriving Ramirez
of his right to an impartial jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct.
1770, 20 L. Ed. 2d 776 (1968); see Gray v. Mississippi, 481 U.S. 648, 668, 107 S.
Ct. 2045, 95 L. Ed. 2d 622 (1987).
880. The exhibits filed with this Petition and the allegations set forth
elsewhere in this Petition are hereby incorporated by reference into this claim as
though set forth in full.
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881. The facts in support of this claim, among others to be presented after
full investigation, discovery, access to this Court’s subpoena power, and an
evidentiary hearing, include the following:
882. The trial court committed prejudicial error by granting the
prosecution’s motions to exclude prospective jurors Ross Arakaki and Jose
Garrido for cause. Neither of these jurors expressed views regarding the death
penalty that justified their exclusion under Witherspoon, 391 U.S. 510, or
Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).
883. In Witherspoon, the Supreme Court held that the prosecution in a
capital case may challenge a juror for cause, on the basis of opposition to the
death penalty, only when the juror makes it unmistakably clear that he “would
automatically vote against the imposition of capital punishment without regard to
any evidence that might be developed at the trial of the case before [him].”
U.S. at 523 n.21. The Court explained that “a sentence of death cannot be carried
out if the jury that imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.” Id.
at 522.
884. The Court has never retreated from the central constitutional point it
made in Witherspoon, that “[a] man who opposes the death penalty, no less than
one who favors it, can make the discretionary judgment entrusted to him by the
State and can thus obey the oath he takes as a juror.” 391 U.S. at 519. Indeed,
“those who firmly believe that the death penalty is unjust may nevertheless serve
as jurors in capital cases so long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the rule of law.” Lockhart
v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). A
challenge for cause is warranted only when a juror’s views on capital punishment
would “prevent or substantially impair the performance of his duties as a juror in
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accordance with his instructions and his oath.” Witt, 469 U.S. at 424 (quoting
Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980))
(internal quotation marks omitted).
885. Accordingly, prospective jurors are not excludable under
Witherspoon and Witt merely because they (1) “voice[] general objections to the
death penalty or express[] conscientious or religious scruples against its
infliction,” Witherspoon, 391 U.S. at 522; (2) express nervousness or emotion
stemming from the “potentially lethal consequences of their decision,” Adams,
448 U.S. at 49-50; or (3) are otherwise “hesitant in their ability to sentence a
defendant to death,” see Morgan v. Illinois, 504 U.S. 719, 732, 112 S. Ct. 2222,
119 L. Ed. 2d 492 (1992). This is because “[i]t is entirely possible, of course,
that even a juror who believes that capital punishment should never be inflicted
and who is irrevocably committed to its abolition could nonetheless subordinate
his personal views to what he perceived to be his duty to abide by his oath as a
juror and to obey the law of the State.” Witherspoon, 391 U.S. at 515 n.7.
886. “[I]t is the adversary seeking exclusion who must demonstrate,
through questioning, that the potential juror lacks impartiality.” Witt, 469 U.S. at
423. The Supreme Court has recognized that prospective jurors who express
concerns about the death penalty may “clarif[y] their positions upon further
questioning and reveal[] that their concerns about the death penalty [are] weaker
than they originally stated.” Gray, 481 U.S. at 662-63. Improper exclusion of
jurors in violation of Witt is harmful per se and no prejudice need be shown. Id.
at 659-60.
887. Ross Arakaki: On his juror questionnaire, Arakaki wrote that he was
“undecided” about the death penalty. (VI Supp. CT 7, at 1796.) In response to
the court’s questioning at Hovey voir dire, Arakaki stated that he believed he
could vote for the death penalty knowing that it would confirm a man to death.
(101 RT 10903.) He said that he would consider the degree of premeditation,
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violence, and remorse in determining whether the death penalty were appropriate.
(Id. at 10906.) Arakaki told the prosecutor that he had some “repugnance” for the
death penalty, but that he was still “undecided” about its propriety in specific
cases. (Id. at 10910-11.) He said that he’d prefer not to have to confront the
issue, but if he were required to do so, he would “have to weigh all the evidence
and weigh my conscience at the same time.” (Id. at 10911.)
888. At this point, the court, apparently believing that Arakaki was
“backing off” from his earlier affirmation that he could vote for the death penalty,
began to question him again. The court asked whether, “if you thought it were
appropriate that the death penalty should be imposed, do you think that you could
impose that penalty, you personally say to defendant ‘X,’ ‘You are going to die.
I’m going to tell you you’re going to die’? Could you do that?” (Id. at 10914-
15.)
889. The court and Arakaki then had the following exchange:
[Arakaki]: Perhaps. I don’t know.
The Court: Perhaps not. So right now you don’t know if you could
do it?
[Arakaki]: I guess the bottom line, yes, I don’t know.
The Court: So your answer before that, yes, you could do it, wasn’t
really an accurate reflection of how you feel about that?
[Arakaki]: That’s correct.
The Court: Is it more likely that you would not be able to vote for
the death penalty because of some conscientious objections that you
have?
[Arakaki]: I really don’t have a decision of swaying either way at
this time.
(Id. at 10915.)
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890. The prosecutor challenged Arakaki for cause because he was,
allegedly, “obviously unable to make a decision with respect to the issue of death
penalty.” (Id. at 10916.) The court stated that “we’re in that very, very gray
area.” (Id.) Defense counsel argued that Arakaki was simply being
conscientious, and pointed out that he had testified that he could in fact vote for
the death penalty. (Id. at 10917.) The court called the challenge a “very, very
close case.” (Id.) It said that “[f]ive years ago . . ., this would not disqualify.”
(Id. at 10918.) The prosecutor argued that the law had changed “immensely” in
five years, and assured the court that “I certainly don’t think that we should even
concern ourselves with Witherspoon at this juncture.” (Id. at 10918-19.) The
trial court granted the challenge, finding that Arakaki “does not at this point have
the capacity to -- to really make a decision on life or death for a defendant in a
capital case,” and thus, that his views would “substantially impair” the
performance of his duties. (Id. at 10919.)
891. The trial court gravely erred in its questioning and dismissal of
Arakaki. It was entirely improper for the court to ask Arakaki whether he could
“personally say to defendant ‘X,’ ‘You are going to die. I’m going to tell you
you’re going to die’?” Of course, no juror would ever be required to do this, and
Arakaki’s responses to the court’s misleading and inflammatory question cannot
possibly be used to disqualify him.
892. The decision between life and death should be a difficult one. The
Constitution does not tolerate exclusion of prospective jurors who state that “the
potentially lethal consequences of their decision would invest their deliberations
with greater seriousness and gravity or would involve them emotionally.”
Adams, 448 U.S. at 49. Nor does “repugnance” toward the death penalty in
general disqualify a juror from serving.
893. Similarly, the trial court’s reliance on Arakaki’s indecision is
misplaced, as equivocation or uncertainty often reflects the “seriousness” that
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Adams condones. See Gray, 481 U.S. at 653, 659 (holding that the exclusion of a
juror whose testimony was “somewhat confused,” but who “ultimately stated that
she could consider the death penalty in an appropriate case,” violated the
Constitution); see also Gall v. Wilson, 231 F.3d 265, 331-32 (6th Cir. 2000)
(holding that trial court committed reversible error by excusing prospective juror
who was “undecided” on capital punishment and who stated that “it is just one of
those things you would have to cross when you got to it”), superseded by statute
on other grounds, Bowling v. Wilson, 344 F.3d 487 (6th Cir. 2003).
894. “As Witt makes clear, . . . our inquiry does not end with a
mechanical recitation of a single question and answer.” Darden v. Wainwright,
477 U.S. 168, 176, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). It is necessary to
“examine the context surrounding [the juror’s] exclusion.” Id. Although Arakaki
described himself as “undecided,” his testimony overall makes clear that he
believed himself able to make the decision if necessary.
895. “[I]f prospective jurors are barred from jury service because of their
views about capital punishment on ‘any broader basis’ than inability to follow the
law or abide by their oaths, the death sentence cannot be carried out.” Adams,
448 U.S. at 47-48 (quoting Witherspoon, 391 U.S. at 522 n.21). Taking into
account the entire context of Arakaki’s exclusion, it is clear that his exclusion
was improper.
896. Jose Garrido: Prospective juror Jose Garrido was a Catholic who had
religious scruples against the death penalty. While at first Garrido indicated that
he would always vote against the death penalty, he also made clear that he was
confused about the hypothetical nature of the questions at Hovey voir dire. (
RT 12501-02.) Garrido said that he was reluctant to make a decision about the
death penalty, but that his view might change after hearing the case. In
particular, it would depend on “weighing the case, . . . how serious the
defendant.” (Id. at 12508.) Garrido understood that he would have certain duties
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as a juror, and said that he might vote for the death penalty if he became a seated
juror. (Id. at 12512.)
897. The prosecutor asked Garrido whether he understood that if he were
seated on the jury, “it is possible that you will be asked to take that man’s life.”
(Id. at 12515.) “[A]re you willing to put aside your religion and take a man’s life
for the State of California?” (Id. at 12516.) Garrido responded that “I might put
away my religious belief and apply the state belief, you know, however you want
to call it.” (Id.) The prosecutor then had Garrido concede that if he voted for the
death penalty, he would be committing “a mortal sin.” (Id. at 12517.) The
prosecutor asked: “Are you saying that you are willing to commit a mortal sin, to
condemn yourself to everlasting hell in voting for the death penalty for an
individual?” (Id.) The court sustained defense counsel’s objection, but the
prosecutor followed by asking, “Are you saying that you are willing to commit a
mortal sin and condemn someone to death?” Garrido replied that he was not.
(Id.) The court granted the prosecutor’s challenge for cause. (Id. at 12521.)
898. Garrido’s statements on his questionnaire amounted to an expression
of opposition to capital punishment based on “religious scruples.” It is absolutely
clear under Supreme Court precedent that such a position is not sufficient to
render a prospective juror excludable. Garrido was clear that he understood the
obligations of a juror and that he was open to applying the “state’s belief” instead
of his “religious belief.” This is precisely what the Witherspoon inquiry
endeavors to determine: whether a juror, though opposed to capital punishment,
is able and willing to “temporarily set aside [her] own beliefs in deference to the
rule of law.” McCree, 476 U.S. at 176; see also Witherspoon, 391 U.S. at 515 n.
(“It is entirely possible, of course, that even a juror who believes that capital
punishment should never be inflicted and who is irrevocably committed to its
abolition could nonetheless subordinate his personal views to what he perceived
to be his duty to abide by his oath as a juror and to obey the law of the State.”).
332Page 357 Page ID #:
899. Moreover, the prosecution’s questions about whether Garrido was
willing to “take a man’s life for the State of California” and “condemn [himself]
to everlasting hell” were improper and misleading. No juror would be asked to
“take” a man’s life in any active sense of the word. These inflammatory
questions served only to back Garrido into a position in which he would
disqualify himself. Garrido’s exclusion violated the Constitution.
900. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
901. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
CLAIM 9:
333Page 358 Page ID #:
VOIR DIRE AT PETITIONER’S TRIAL WAS INADEQUATE TO
SECURE HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL
AND LIFE-QUALIFIED JURY
902. Exhaustion of Claim: This claim will be presented to the California
Supreme Court in an exhaustion petition that he will file no later than March 17,
2009.
903. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the voir dire proceeding conducted at his trial was
inadequate to secure his right to an impartial and life-qualified jury. Morgan v.
Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992).
904. The exhibits filed with this Petition and the allegations set forth
elsewhere in this Petition are hereby incorporated by reference into this claim as
though set forth in full.
905. The facts in support of this claim, among others to be presented after
full investigation, discovery, access to this Court’s subpoena power, and an
evidentiary hearing, include the following:
906. The voir dire proceeding conducted at Ramirez’s trial was
constitutionally inadequate to secure his right to an impartial, life-qualified jury.
Three major factors contributed to the infirmity of the proceeding: (1) the trial
court’s conduct at hardship and publicity voir dire taught the jurors that they were
to follow the court’s lead in answering voir dire questions; (2) at Hovey voir dire,
the court instructed the jurors that they would be required to consider mitigation
evidence before asking them whether they would do so; and (3) defense counsel
was forbidden from asking prospective jurors questions specific enough to
determine whether they could fairly and impartially serve, not on an abstract
capital case, but on Ramirez’s case in particular. As a result, Ramirez was unable
to probe prospective jurors in a meaningful fashion to determine whether they
334Page 359 Page ID #:
could be impartial. Ramirez was similarly prevented from exercising his
peremptory strikes in an informed and intelligent fashion.
907. The Sixth Amendment guarantees criminal defendants trial by an
impartial jury. A juror who is not “life-qualified” -- that is, one who would
automatically vote for the death penalty after conviction in every capital case -- is
not considered impartial. Morgan, 504 U.S. at 729. “[P]art of the guarantee of a
defendant’s right to an impartial jury is an adequate voir dire to identify
unqualified jurors.” Id. “Voir dire plays a critical function in assuring the
criminal defendant that his [constitutional] right to an impartial jury will be
honored. Without an adequate voir dire the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s
instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v.
United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981)
(plurality opinion).
908. “Were voir dire not available to lay bare the foundation of
petitioner’s challenge for cause against those prospective jurors who would
always impose death following conviction, his right not to be tried by such jurors
would be rendered as nugatory and meaningless as the State’s right, in the
absence of questioning, to strike those who would never do so.” Morgan,
U.S. at 733-34. “Inadequacy of voir dire” itself -- completely apart from whether
any of the seated jurors was actually biased -- requires the reversal of a death
sentence. Indeed, this was the result in Morgan itself. Id. at 739.
909. As for the substance of voir dire, general questions about
prospective jurors’ fairness and impartiality are not sufficient to satisfy the
Constitution. Morgan, 504 U.S. at 735. The defendant must be permitted to
inquire about the jurors’ ability to discharge their sentencing obligations in the
case at hand. Uttecht v. Brown, 127 S. Ct. 2218, 2226, 167 L. Ed. 1014 (2007)
(upholding a trial court finding that a prospective juror was disqualified under
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Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968),
because his voir dire questioning revealed that “he had both serious
misunderstandings about his responsibility as a juror and an attitude toward
capital punishment that could have prevented him from returning a death
sentence under the facts of this case” (emphasis added)).
910. It is both permissible and necessary to explore juror bias with
respect to particular aggravating and mitigating factors likely to be presented to
the jurors in the case before them. See generally United States v. Johnson, 366 F.
Supp. 2d 822 (N.D. Iowa 2005). For example, a prospective juror who states, in
response to abstract questions, that he could vote for life without parole, while in
actuality, he could never so vote in a case of murder-for-hire, would not be
qualified to serve in a murder-for-hire case. Such a juror would certainly vote for
death following conviction in that case, rendering the penalty phase a
meaningless exercise. If the defendant were forbidden from inquiring about the
prospective juror’s views on the death penalty in cases of murder for hire, the
juror’s bias could never be uncovered. See State v. Williams, 550 A.2d 1172,
1184, 113 N.J. 393 (1988) (reversing conviction and death sentence largely
because defendant was prevented from inquiring about prospective jurors’ ability
to vote for life in the case at hand, which involved murder and rape); see also
State v. Maxie, 653 So. 2d 526, 538, 93-2158 (La. 4/10/95) (“A potential juror
who indicates that she will not consider a life sentence and will automatically
vote for the death penalty under the factual circumstances of the case before her
is subject to a challenge for cause.”); People v. Kirkpatrick, 7 Cal. 4th 988, 1005,
30 Cal. Rptr. 2d 818 (1994) (as modified) (“A prospective juror who would
invariably vote . . . for . . . the death penalty because of one or more
circumstances likely to be present in the case being tried, without regard to the
strength of aggravating or mitigating circumstances, is therefore subject to
challenge for cause . . . .”).
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911. The same principle applies to types of mitigating evidence. A juror
who would never consider evidence of an abusive childhood to be mitigating, for
example, is not qualified to sit on a case in which the defendant relies wholly or
primarily on such evidence, even if the juror could, in theory, find some other
type of evidence to have a mitigating effect. Such a juror could not, in the case at
hand, follow the constitutional imperative to “consider[] any constitutionally
relevant mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.
Ct. 757, 139 L. Ed. 2d 702 (1998); Eddings v. Oklahoma, 455 U.S. 104, 114-15,
102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (“Just as the State may not by statute
preclude the sentencer from considering any mitigating factor, neither may the
sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.
. . . [Sentencers] determine the weight to be given relevant mitigating evidence.
But they may not give it no weight by excluding such evidence from their
consideration.”).
912. Petitioner’s voir dire did not live up to the demands of the
Constitution -- it was not a serious, meaningful inquiry into the qualifications and
biases of the prospective jurors. The judge’s offhanded comments taught the
jurors to regard voir dire as a boring necessity to be endured. “I know it is
boring,” the judge remarked at one point, “but try doing it for a living sometimes,
it is tough.” (66 RT 4970.)
913. Voir dire was treated as a rote and vacuous exercise. At one point
during publicity voir dire, after defense counsel questioned a prospective juror
about the conversations she had had with her coworker about Ramirez and the
Night Stalker killings, the trial judge referred to defense counsel’s questioning as
honor, this is voir dire. I expect the court not to constantly refer to it as a waste
of time.” (Id.)
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914. Even more important, the trial court’s conduct at hardship and
publicity voir dire taught the jurors that they were to follow the court’s lead in
answering voir dire questions. Countless times, the court, in front of large panels
of prospective jurors, led or attempted to lead panelists to give answers that
qualified them for hardship dismissal. The court emphasized that there were
certain “lines” that could get a prospective juror dismissed. (See, e.g., 68 RT
5358 (“That is known as a leading and suggestive question, sir. If you don’t pick
up on the first one, I’m not going to do it again.”); id. at 5368 (after prospective
juror answered “yes,” court instructed, “[w]ell, now wait a minute. Just give me
a no . . . .”); 70 RT 5772 (“That is the line I’m waiting for. Give me that one.”);
id. at 5773 (“Will you do me a favor, Mr. Nemecek, and have your boss tell you
that you won’t be paid . . . .”); 72 RT 6188 (Court: “Just tell me you think you got
a health hardship and I will let you go.” Juror: “I think I have a hardship, health
hardship.”); 74 RT 6499 (“I give you these lines, Mr. Dill, and you don’t pick
them up.”); 76 RT 6851 (“I can only feed you straight lines for so long.”).)
915. Just as there were “lines” that could get a prospective juror
dismissed, there were lines that could insulate a juror from dismissal, as the court
made fairly clear. Defense counsel objected at length to the court’s pattern:
I think this is educating the individuals on this panel that is left to at
least leaning them in the direction where they can know what they
have to say if they want to be on the jury, whatever the motive is for
wanting to be on the jury.
I think it is detrimental and I think on those grounds I want to
challenge the panel that is left because I feel th court has, in essence,
educated those who want to remain on this jury, just like sometimes
we give them leads as to how to get a hardship. The court gives
them leads as to how to get hardship.
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The court gave them the ultimate lead as to how to stay on this jury,
if they want to, by saying they haven’t formed an opinion. I don’t
think that that is up to the court to do that.
I think the court should just be very objective, very brief in letting
them know just the topic, the areas that we’re going into, and not
making any statements or conclusions or leading statements that will
open the door to the jury room or the key to the jury room door.
....
Basically what . . . I’m objecting to is basically that once the court
starts giving them concrete positions that they could take in order to
be on the jury or to get off the jury, either way, that it is no longer up
to the questioning or the inquiring by the attorneys.
(86 RT 8583-85.) Instead of admonishing prospective jurors about the gravity of
their oath, and the constitutional significance of the voir dire process, the trial
judge encouraged the jurors to choose the outcome they desired -- excusal or
retention -- and answer the questions accordingly. The trial court’s actions
devalued the jurors’ oath and rendered their responses untrustworthy.
916. The second major flaw in Ramirez’s voir dire intensified the harmful
effects of the first. In explaining the trial process, the trial court informed the
prospective jurors what answers were acceptable to the questions they were about
to be asked at Hovey voir dire. In particular, the court instructed the jurors that
they were required to consider and weigh mitigation evidence before voting on
the penalty. It stated that even after convicting a defendant of first degree murder
and finding the special circumstances to be true, the jury “must listen to, consider
and weigh all of the [mitigation] evidence before they come back with a verdict.”
(See, e.g., 119 RT 13086.) Only a blatantly rebellious juror would, after this
introduction from the court, state that he would not consider mitigation evidence.
339Page 364 Page ID #:
917. A number of times, however, jurors who appeared to be disqualified
because they would automatically vote for death after finding guilt and special
circumstances in a case such as Ramirez’s were saved by asserting that they
would “consider” mitigation. Chris Conklin, for example, testified that in a case
like the Charles Manson case, or Ramirez’s case as far as he knew, he would
automatically vote for the death penalty after finding guilt and special
circumstances. (108 RT 11938-39.) The court followed up: “Hang on a minute.
When you say automatically, Mr. Conklin, do you mean no matter what you
heard during the penalty phase, whether you heard any mitigation or not, you
would vote in the Manson case, let’s say, for death, without regard to what you
heard in mitigation during the penalty phase?” (Id. at 11939.) Conklin replied
that he would consider mitigation, the defense’s challenge for cause was denied.
(Id. at 11939-40, 11944-45.)
918. Petitioner’s life should not hang on the assurances of prospective
jurors regurgitating answers that were fed to them by the court. The jurors’
answers were meaningless because the judge had devalued their oath and fed
them the answers they had to give to obtain his approval and to appear to be fair.
919. The third major flaw in Ramirez’s voir dire was that defense counsel
was forbidden from asking prospective jurors questions specific enough to
determine whether they could fairly and impartially serve on Ramirez’s case. For
months, defense counsel asked prospective jurors at Hovey voir dire whether they
could consider imposing a life sentence for a murder committed during the course
of a burglary or residential robbery. One of the questions on the juror
questionnaire probed precisely this issue. One day, however, the court suddenly
decided to limit counsel’s questioning. “[I]f you will couch your questions in
terms of felony/murder perhaps and leave out burglary or residential robbery, I
guess that will be required of you,” the court ordered. (121 RT 13412-13; see
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also id. at 13414 (“Do not ask jurors if they would -- could give a life without
parole punishment on a residential burglary/murder, okay?”).)
920. The heightened restrictions made it impossible for defense counsel
to examine prospective jurors in a meaningful fashion. The fact of the matter is
that the offenses charged did involve murders during the course of residential
burglaries or robberies. Even a defendant charged with such crimes, however,
has a constitutional right to put on a guilt and penalty phase defense before jurors
who are not too biased to consider it impartially. Without such jurors, the penalty
phase is a useless exercise the outcome of which is already known. A juror who
would automatically vote for death after conviction on such charges was not
qualified under the Constitution to serve in this case. The trial court’s restriction
made it impossible for Ramirez to identify such jurors and, thus, deprived him of
his constitutional rights.
921. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
922. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel rendered ineffective assistance in not asserting
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it sooner, and the Court should consider the claim on the merits. Coleman v.
Thompson, 501 U.S. 722, 753-54, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991);
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
(1984).
CLAIM 10:
INEFFECTIVE ASSISTANCE DURING JURY SELECTION
923. Exhaustion: This claim will be presented to the California Supreme
Court in an exhaustion petition that he will file no later than March 17, 2009.
924. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because he was deprived of the effective assistance of counsel in
connection with the jury selection phase of his trial. See Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
925. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
926. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
927. Defense counsel rendered ineffective assistance in the following
ways, considered both individually and cumulatively:
A.
Failing To Challenge or Adequately Question Jurors Whose
Convictions About the Death Penalty Substantially Impaired the
Performance of Their Duties
928. Defense counsel failed adequately to voir dire and challenge seated
juror Donald McGee, who expressed opinions in favor of the death penalty that
would “prevent or substantially impair the performance of [his] duties” as a juror
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with respect to the choice of penalty. Wainwright v. Witt, 469 U.S. 412, 424,
S. Ct. 844, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45,
100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)). Trial counsel rendered ineffective
assistance in failing to challenge McGee or question him carefully and reasonably
in order to expose or confirm views concerning capital punishment that would
have supported a challenge for cause or the intelligent exercise of a peremptory
strike. Trial counsel challenged seated juror Chakalit Harris for cause, but failed
to voir dire her adequately to establish a basis for her removal, and failed to
exercise a peremptory strike against her. This, too, constituted prejudicial
ineffective assistance of counsel.
929. A prospective juror who would automatically impose a sentence of
death upon conviction of a capital offense is disqualified from sitting on a capital
jury. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d
(1992). “[T]he belief that death should be imposed ipso facto upon conviction of
a capital offense reflects directly on that individual’s inability to follow the law. .
. . Any juror who would impose death regardless of the facts and circumstances
of conviction cannot follow the dictates of law.” 504 U.S. at 735. Such
individuals deem mitigating evidence to be irrelevant to the penalty
determination, despite the constitutional imperative that it be considered. See,
e.g., Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S. Ct. 869, 71 L. Ed. 2d
(1982).
930. A juror who would never consider evidence of an abusive childhood
to be mitigating, for example, is not qualified to sit on a case in which the
defendant relies wholly or primarily on such evidence, even if the juror could, in
theory, find some other type of evidence to have a mitigating effect. Such a juror
could not, in the case at hand, follow the constitutional imperative to “consider[]
any constitutionally relevant mitigating evidence.” Buchanan v. Angelone,
U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998); Eddings, 455 U.S. at
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114-15 (“Just as the State may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer refuse to consider, as
a matter of law, any relevant mitigating evidence. . . . [Sentencers] determine the
weight to be given relevant mitigating evidence. But they may not give it no
weight by excluding such evidence from their consideration.”).
931. If a juror expresses a disqualifying dogmatic preference in favor of
imposing the death penalty, a concomitant pledge to “follow the law” will not
save him. “It may be that a juror could, in good conscience, swear to uphold the
law and yet be unaware that maintaining such dogmatic beliefs about the death
penalty would prevent him or her from doing so.” See Morgan, 504 U.S. at 735.
932. Donald McGee: Seated juror Donald McGee stated on his juror
questionnaire that the death penalty should be imposed on everyone who for any
reason intentionally kills another, during the course of a burglary or otherwise.
(VI Supp. CT 15, at 4270.) He wrote that “[a]n accidental killing may not
warrant the death penalty. Premeditated murder may warrant death penalty.”
(Id.)
933. At Hovey voir dire, McGee rated himself a seven of ten in favor of
the death penalty. (97 RT 10303.) He explained that the propriety of the death
penalty depended, in his opinion, upon the nature of the crime: “I’m not a person
who says that whoever commits a crime must have the death penalty. . . . I don’t
think that everybody that is convicted of a crime . . . should be lumped into one
group of people . . . . Everybody who is convicted of a crime should -- maybe
they don’t deserve the death penalty, maybe their particular crime doesn’t warrant
the death penalty, and I think that is where my seven comes in.” (Id. at 10309.)
934. Crucially, defense counsel never asked McGee whether a case
involving multiple murders, brutal murders, or intentional murders during the
course of a residential burglary or rape would be the type of case in which the
death penalty was always appropriate. Counsel’s failure to do so is inexplicable
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in light of the fact that he asked other prospective jurors some of these questions.
935. In light of McGee’s statements -- in his questionnaire and at voir
dire -- that he believed that the death penalty should be imposed in any case of
intentional murder, and that the propriety of the death penalty depended upon the
nature of the crime, defense counsel should have either challenged McGee for
cause or voir dired him further to explore and confirm his predisposition for a
death verdict. If the trial court had denied a for-cause challenge, counsel should
have exercised a peremptory strike to remove McGee from the jury. Counsel
rendered ineffective assistance of counsel in permitting McGee to serve.
936. Chakalit Harris: Seated juror Chakalit Harris wrote on her
questionnaire that “[s]ome people need to be put to death; some don’t.” (105 RT
11485.) At Hovey voir dire, she clarified that “those that willfully did what they
were doing for their own purpose” deserve to be put to death. (Id. at 11486.)
“[I]f they’re willfully doing it because they’re getting a kick out of it or whatever
it is doing for them, they don’t need to be alive. If they’re getting off . . . killing
other people, then maybe they have ought to be dead, too.” (Id.)
937. In response to the court’s questioning, Harris said that she would be
“willing to listen to other circumstances in mitigation” in such a case, although
she had earlier said that she did not “know what any other circumstances could be
added to that to make it any different.” (Id. at 11487, 11489-90.) The court
denied the defense’s challenge for cause. (Id. at 11498.)
938. Despite Harris’s harsh answers, and despite the fact that the defense
bore the burden of proving that Harris was disqualified, defense counsel failed
entirely to question Harris about her ability to consider the types of mitigation
evidence that may have been at issue in Ramirez’s case. For example, defense
counsel never questioned Harris about whether, in a case involving multiple
intentional murders, she could meaningfully consider and give effect to evidence
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regarding addiction, seizure disorder, mental illness, child abuse, or any of a host
of other factors. Had Harris answered no to any of these questions, the defense’s
challenge for cause would have succeeded. Failing this, defense counsel should
have used a peremptory strike to remove Harris from the jury.
B.
Failing To Adequately Question or Attempt To Rehabilitate
Prospective Jurors Who Initially Suggested That They Could Not Vote
for the Death Penalty
939. The 1989 American Bar Association Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases stated that “[c]ounsel should
be familiar with techniques for rehabilitating potential jurors whose initial
indications of opposition to the death penalty make them possibly excludable.”
Guideline 11.7.2.B.67 Yet Ramirez’s trial counsel failed entirely, or almost
entirely, to attempt to rehabilitate a substantial number of prospective jurors in
his case. Counsel either failed to test the prospective jurors’ stated opposition to
the death penalty -- for example, by asking whether they would fail to consider
the death penalty even for a defendant who committed multiple, brutal,
intentional murders during the course of residential burglaries or robberies -- or
failed to re-examine the jurors after the prosecutor had led them to give
disqualifying answers.
prospective jurors who express concerns about the death penalty may “clarif[y]
940. The Supreme Court has recognized that
The trial court’s erroneous denial of several of the defense’s for-cause
challenges, coupled with its refusal to expand the number of peremptory strikes
available, may have contributed to the defense’s failure to use a peremptory strike
against Harris. (See Claim 7.)
See Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d
471 (2003) (explaining that ABA Guidelines provide guidance in assessing
defense counsel’s performance under Strickland and citing other cases that
support the same principle).
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their positions upon further questioning and reveal[] that their concerns about the
death penalty [are] weaker than they originally stated.” Gray v. Mississippi,
U.S. 648, 662-63, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987).
941. Counsel’s failure to rehabilitate prospective jurors permeated the
entire Hovey voir dire and resulted in a record substantially different from the one
that would have been produced through competent questioning. It is impossible
to identify with confidence all of the stricken jurors who might have been
rehabilitated by competent counsel, potentially changing the makeup of
Petitioner’s jury. As an example, counsel did not meaningfully attempt to
rehabilitate the following prospective jurors “whose initial indications of
opposition to the death penalty ma[d]e them possibly excludable”: Weasner (
RT 9653); Kirkpatrick (98 RT 10515); Martinez (107 RT 11728); Cortez (
RT 11734); Jackson (108 RT 11907); Shuldiner (112 RT 12347); Takai (117 RT
12804); Beckstrom (119 RT 13146); and Foland (120 RT 13313).
942. There is a reasonable probability that competent counsel could have
rehabilitated at least one prospective juror and prevented his or her excusal. If
any juror were still excused after being rehabilitated on the record, the dismissal
would then have constituted reversible error under Gray v. Mississippi, 481 U.S.
648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987). Trial counsel’s failing constituted
ineffective assistance of counsel under Strickland and deprived Ramirez of his
right to “a jury empaneled in compliance with the Fourteenth Amendment.”
Morgan v. Illinois, 504 U.S. 719, 739, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992).
C.
“Rehabilitating” for the Prosecution’s Benefit, Instead of Striking,
Jurors Who Were Not Actually Life-Qualified
943. On many occasions throughout Hovey voir dire, defense counsel
failed to challenge for cause prospective jurors whose responses in favor of
imposing the death penalty rendered them excludable. These were jurors who
wrote or testified that they would always or automatically vote for the death
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penalty after finding guilt and special circumstances in a case involving
intentional murder, multiple murder, or some other circumstance present in
Petitioner’s case. Instead of challenging these jurors, defense counsel essentially
stepped into the prosecutor’s shoes and “rehabilitated” them by leading them to
affirm that they would “consider” mitigation testimony before choosing between
life and death.68 Defense counsel’s actions constituted ineffective assistance of
counsel that prejudiced Petitioner.
944. For example, defense counsel “rehabilitated” the following jurors
whom he should have moved to strike: Ortiz (97 RT 10269); Willis (97 RT
D.
Failing To Examine Jurors Adequately About Aggravating and
Mitigating Factors Likely To Be Involved in the Case
945. The 1989 American Bar Association Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases stated that “[c]ounsel should
be familiar with the precedents relating to questioning and challenging potential
jurors, including the procedures surrounding ‘death qualification’ concerning any
potential juror’s beliefs about the death penalty.” Guideline 11.7.2.B. “Death
qualifying” a jury requires examining prospective jurors about both aggravating
Entirely apart from the fact that defense counsel should not have been
the one to “rehabilitate” these prospective jurors, the jurors’ assurances that they
would “consider” mitigation evidence cannot lend much comfort because the trial
judge had just instructed them that they were required to consider such evidence.
(See Claim 7.)
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and mitigating factors that are likely to be involved in the case. Trial counsel did
so only sporadically at best.
946. For jurors who appear to be opposed to imposing the death penalty,
trial counsel must question them about whether they would refuse to impose the
death penalty even in a case involving the aggravating factors present in the case
at hand. In this case, for example, trial counsel should have questioned such
jurors about whether they would refuse to impose the death penalty even in a case
involving multiple murders, murders in the course of rape, and murders in the
course of residential burglary or robbery. Many prospective jurors who were
inclined against the death penalty in the abstract may have considered it an option
in a case involving such aggravation. These jurors were fit to serve.
947. Similarly, for prospective jurors who appeared inclined to impose
the death penalty after convicting and finding special circumstances to be true,
trial counsel should have examined them about whether they could meaningfully
consider life without parole even in a case involving the aforementioned
aggravation.
948. Trial counsel must also examine prospective jurors about whether
they could meaningfully consider and give effect to various types of mitigating
evidence -- in this case, addiction, mental illness, seizure disorder, and child
abuse, among other factors. Jurors who could not give effect to such mitigation -
- in a case involving the aggravation at issue here -- would have been removable
for cause.
949. In general, counsel’s questioning at Hovey voir dire often seemed to
follow little pattern. He asked confusing questions that the jurors had trouble
understanding, as the court noted on the record. (104 RT 11325 (“If you could
ask a direct question . . . and stay to the point, you probably wouldn’t have this
problem. . . . I think if you clean up your questions and if you would stop
digressing in the middle and stop putting all the exceptions and -- because it is -349Page 374 Page ID #:
I know where you are going and it is very difficult for me to follow and I’m sure
it is almost impossible for these people to follow and they’re kind of flipping the
coin and saying yes or no and not knowing really what they come up with.”)).
And while he neglected to ask some of the jurors certain crucial questions, he
asked other questions repeatedly within the same examination. (109 RT
(Judge: “You are not going to beat this dead horse again. You are reverting to
form . . . . [Y]ou were repetitive to a terrible degree.”)) In one instance, defense
counsel passed for cause on the last prospective juror of the day without asking a
single question. (105 RT 11535.)
950. Counsel’s failure to examine prospective jurors about aggravation
and mitigation permeated the entire Hovey voir dire and resulted in a record
substantially different from the one that would have been produced through
competent questioning. It is impossible to identify with confidence all of the
stricken jurors who might have been rehabilitated by competent counsel, or all of
the retained jurors who might have been stricken. The makeup of Petitioner’s
jury would have been substantially different, and more favorable to Petitioner,
had his counsel engaged in competent voir dire.
951. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
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fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
952. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
953. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
CLAIM 11:
THE TRIAL COURT FAILED TO ENFORCE THE LEGAL
STANDARD FOR HARDSHIP DISMISSAL, RESULTING IN A
“JURY OF VOLUNTEERS”
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954. Exhaustion: This claim will be presented to the California Supreme
Court in an exhaustion petition that he will file no later than March 17, 2009.
955. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the trial court failed to enforce the legal standard for
hardship dismissal and, as a result, Ramirez was tried by a “jury of volunteers.”
956. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
957. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
958. Throughout hardship and publicity voir dire, the trial judge made it
clear that he would excuse virtually anyone who asked to be excused. “I’m up
front with you,” the court explained at one point. “I’m going to be real liberal at
this point. You tell me you are sick or you got a sick kid, I’m going to believe
you. There is not going to be any cross-examination with you.” (80 RT 7432;
see also 79 RT 7338-39 (“Some of you may have some interesting ways to
excuse yourself. We had a lady yesterday who was fine in the morning . . . . So I
put her back in the jury room waiting to come out for the other part. And when
she came out, she . . . had picked up laryngitis in an hour or so from the air
conditioning. So I thought this was very interesting and nice and novel and, of
course, I honored that.”); 77 RT 7031 (“If you have a problem that -- let’s just
say it is a medical problem that you think is important enough to keep you off,
just say that. You don’t have to come here up [sic].”).)
959. The court’s conduct at this phase of voir dire taught the jurors that
they were to follow the court’s lead in answering the voir dire questions.
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Countless times, the court, in front of large panels of prospective jurors, led or
attempted to lead panelists to give answers that qualified them for hardship
dismissal. The court emphasized that there were certain “lines” that could get a
prospective juror dismissed. (See, e.g., 68 RT 5358 (“That is known as a leading
and suggestive question, sir. If you don’t pick up on the first one, I’m not going
to do it again.”); id. at 5368 (after prospective juror answered “yes,” court
instructed, “[w]ell, now wait a minute. Just give me a no . . . .”); 70 RT
(“That is the line I’m waiting for. Give me that one.”); id. at 5773 (“Will you do
me a favor, Mr. Nemecek, and have your boss tell you that you won’t be paid . . .
.”); 72 RT 6188 (Court: “Just tell me you think you got a health hardship and I
will let you go.” Juror: “I think I have a hardship, health hardship.”); 74 RT
(“I give you these lines, Mr. Dill, and you don’t pick them up.”); 76 RT 6851 (“I
can only feed you straight lines for so long.”); 77 RT 7147.) The court’s
behavior devalued the jurors’ oath and taught them to answer the questions
instrumentally rather than honestly.
960. A sizable slew of jurors was dismissed for “health problems”
without any further explanation. (See, e.g., 80 RT 7442, 7446, 7451, 7454, 7455;
81 RT 7608; 82 RT 7766.) Other jurors were dismissed despite uncertainty about
their employers’ pay policies. (See, e.g., 68 RT 5409; 69 RT 5667; 71 RT
(juror uncertain how long her Catholic school-employer will pay; judge dismisses
her, saying, “I don’t think they got money to throw around, . . . so I will excuse
you.”); 76 RT 6849.) Yet others were excused for reasons that never became
clear. (See, e.g., 66 RT 4975 (“too much . . . to deal with”); 79 RT 7345 (“I’m
past seventy years old and I don’t feel like I could put in two years of my life.”).)
The jurors, of course, carried this lesson with them into the life- and
death-qualification process at Hovey voir dire, drastically reducing the reliability
of that process. (See Claim 7.)
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Additionally, the court almost never asked whether jurors who would not be paid
by their employer had access to another source of financial support, and thus
never truly established that they would suffer an actual financial hardship worthy
of a hardship dismissal.
961. On several occasions, the trial judge became distracted and failed to
obtain even the bare minimum of information from the prospective jurors he then
dismissed (see, e.g., 71 RT 6945); this included a particularly inappropriate
interchange in which he joked about a juror’s name:
[Hou]: My name is Robert Hou. I’m employed --
[Prosecutor]: I didn’t get that.
The Court: Yes?
[Hou]: Robert Hou.
The Court: Who’s on first? I didn’t get the last name.
[Hou]: Hou, H-O-U.
The Court: Thank you, sir. I apologize, Mr. Hou. I don’t get a
chance like that very often. You are excused, sir.
(75 RT 6691-92.)
962. The result of all this is that Petitioner was tried by a jury culled from
a throng of “volunteers” -- persons who for whatever reason wanted to serve on
his jury. Particularly in a high-profile multiple-murder trial like Petitioner’s, this
group was highly unlikely to constitute an impartial tribunal consistent with the
guarantees of due process and the Sixth and Eighth Amendments. This is why
prospective jurors are supposed to be dismissed only for legitimate financial
hardship, and not based on a thinly veiled personal preference against serving:
Jury service is a duty as well as a privilege of citizenship; it is a duty
that cannot be shirked on a plea of inconvenience or decreased
earning power. Only when the financial embarrassment is such as to
impose a real burden and hardship does a valid excuse of this nature
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appear. . . . “The motives influencing such tendencies may be of the
best must not blind us to the dangers of allowing any encroachment
whatsoever on this essential right. Steps innocently taken may one
by one, lead to the irretrievable impairment of substantial liberties.”
Thiel v. S. Pacific Co., 328 U.S. 217, 224-25, 66 S. Ct. 984, 90 L. Ed.
(1946) (quoting Glasser v. United States, 315 U.S. 60, 86, 62 S. Ct. 472, 86 L.
Ed. 680 (1942)).
963. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
964. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
CLAIM 12:
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THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
REMOVE FEMALE AFRICAN-AMERICAN JURORS BECAUSE
OF THEIR RACE
965. Exhaustion of Claim: Ramirez will present this claim to the
California Supreme Court in an exhaustion petition that he will file no later than
March 17, 2009.
966. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the prosecution exercised peremptory challenges against
black female prospective jurors on the basis of race. Batson v. Kentucky,
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
967. The exhibits filed with this Petition and the allegations set forth
elsewhere in this Petition are hereby incorporated by reference into this claim as
though set forth in full.
968. The facts in support of this claim, among others to be presented after
full investigation, discovery, access to this Court’s subpoena power, and an
evidentiary hearing, include the following:
969. Petitioner is a Hispanic man who stood trial for multiple murders,
nearly all of which were interracial. The prosecution exercised peremptory
challenges to remove 14 of the 27 black women examined during general voir
dire. (139 RT 15926.) The prosecution dismissed nine black female prospective
jurors and five black female prospective alternate jurors. Defense counsel
objected to the prosecution’s challenge of the 14 black women, citing People v.
Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890 (1978), the California counterpart to
356Page 381 Page ID #:
Batson v. Kentucky, 476 U.S. 79.70 The trial court held a hearing to consider the
defense’s motion, finding that Ramirez had made out a prima facie case that the
black female jurors had been excluded because of their race. (140 RT 15950.)
The prosecution presented race-neutral justifications for exercising the
peremptory challenges against each of the 14 black women. (Id. at 15972-87.)
The court provided defense counsel an opportunity to present argument in
response to the prosecution’s justifications. (Id. at 15991). However, the defense
submitted without providing any response. (Id.) The trial court denied the
defense’s Wheeler motion, finding the prosecution’s justifications to be
satisfactory and rejecting any implication that the prosecuting attorneys were
bigoted. (Id. at 15994-95)
970. In addition to striking the 14 black female prospective jurors, the
prosecutor also used peremptory strikes to remove five of six Hispanic
prospective alternate jurors. See Claim 13.
971. The law in support of this claim includes:
972. The Equal Protection Clause forbids the prosecution from exercising
peremptory challenges on the basis of race. Batson, 476 U.S. at 89. When a
defendant claims that a prosecutor’s peremptory strikes were racially motivated,
the court must apply a three-step process for evaluating the challenge.
973. First, at step one, the defendant must make a prima facie showing
that race motivated the prosecutor’s strikes. Batson, 476 U.S. at 89. To meet this
burden, the defendant need only raise an “inference” of discrimination. Id. at 96.
“In making this showing, the defendant is entitled to rely on the fact that
peremptory challenges provide a useful vehicle for those intent on
discriminating.” United States v. Esparza-Gonzalez, 422 F.3d 897, 904 (9th Cir.
A Wheeler challenge is sufficient to preserve a Batson claim. Paulino v.
Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004).
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2005). When a proceeding is bound up with racial issues -- such as in a case of
interracial murder -- this, too, may be considered in evaluating the existence of a
prima facie case. Id. at 905-06.
974. The prima facie showing may, but need not, be satisfied based upon
(quoting Batson, 476 U.S. at 94, 96). A defendant can make out a prima facie
case “by offering a wide variety of evidence, so long as the sum of the proffered
facts gives ‘rise to an inference of discriminatory purpose.’” California v.
Johnson, 545 U.S. 162, 169, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (quoting
Batson, 476 U.S. at 94) (footnote omitted). “[T]he threshold for making a prima
facie Batson claim is quite low.” Boyd, 467 F.3d at 1145; see also id. at
(“[T]he burden for making a prima facie case is not an onerous one.”).
976. If a prima facie case is established, the burden then shifts to the State
to articulate a race-neutral explanation for the challenge. Batson, 476 U.S. at 97.
The prosecutor “must give a ‘clear and reasonably specific’ explanation of his
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‘legitimate reasons’ for exercising the challenges.” Id. at 98 (quoting Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 67 L. Ed. 2d
(1981)). Vague assertions or even good faith denials of discriminatory intent do
not suffice. Batson, 476 U.S. at 98; Bui v. Haley, 321 F.3d 1304, 1316 (11th Cir.
2003) (“[V]ague explanations will be insufficient to refute a prima facie case of
racial discrimination.”). In addition, the purported justification must be “related
to the particular case to be tried.” Batson, 476 U.S. at 98 & n.20.
977. If the second step is satisfied, the court must then reach “the ultimate
question of intentional discrimination.” Hernandez v. New York, 500 U.S. 352,
359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality opinion). At this third
and final stage of the Batson analysis, the court must undertake “a sensitive
inquiry into such circumstantial and direct evidence of intent as may be
available.” Batson, 476 U.S. at 93 (quoting Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d
(1977)) (internal quotation marks omitted); see also Snyder, 128 S. Ct. at
(“In Miller-El v. Dretke, the Court made it clear that in considering a Batson
objection, or in reviewing a ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity must be consulted.”
(emphasis added)). Such evidence includes, at the least, all of the evidence
presented at step one. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 341,
S. Ct. 1029, 154 L. Ed. 2d 931 (2003). A reviewing court should engage in
comparative juror analysis, considering whether the prosecutor’s “proffered
reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve.” Miller-El II, 545 U.S. at 241. If so, “that is
evidence tending to prove purposeful discrimination.” Id. Similarly,
discrimination is more likely when the prosecutor’s justifications are unsupported
or directly refuted by the record. Lewis v. Lewis, 321 F.3d 824, 834 (9th Cir.
2003); Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993). A reviewing court
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should consider “how reasonable, or how improbable, the explanations are; and . .
. whether the proffered rationale has some basis in accepted trial strategy.”
Miller-El I, 537 U.S. at 339.
978. In some cases, the prosecutor may offer more than one reason for a
strike. “[I]f a review of the record undermines the prosecutor’s stated reasons, or
many of the proffered reasons, the reasons may be deemed a pretext for racial
discrimination.” Lewis, 321 F.3d at 830; United States v. Chinchilla, 874 F.2d
695, 699 (9th Cir. 1989) (explaining that the pretextual nature of two of the
prosecutor’s four proffered reasons militated against the sufficiency of the
remaining two facially acceptable reasons); see also Kesser v. Cambra, 465 F.3d
351, 369 (9th Cir. 2006) (en banc).
A.
Gwendolyn Thomas
979. Gwendolyn Thomas was a thirty-two-year-old black prospective
juror. (VI Supp. CT 4, at 934.) The prosecutor peremptorily challenged Thomas.
(128 RT 14392.) In her juror questionnaire, Thomas expressed that she did not
have a firm opinion about the death penalty and that her position would depend
on the crime. (VI Supp. CT 4, at 941.) She also opined in her questionnaire that
the State should impose the death penalty upon everyone who for any reason
intentionally kills another. (VI Supp. CT 4, at 941.) During Hovey voir dire,
Thomas told the prosecutor that she would vote to keep the death penalty if it
were up for reconsideration during a general election. (98 RT 10456.) She did
express some concern about implementing a death penalty sentence, stating that
such a decision should not be taken lightly. (Id. at 10446-49.) However, Thomas
also said that she could vote for the death penalty if the evidence showed that
such a sentence was warranted. (Id. at 10456-57.) During general voir dire,
Thomas revealed that she participated in a twelve-step program for compulsive
gamblers. (Id. at 14099.)
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980. The prosecutor offered three justifications for striking Thomas, all of
which are patently pretextual. In support of his challenge, the prosecutor pointed
to Thomas’s questionnaire answer reflecting that she did not have a strong
opinion about the death penalty, her Hovey statement that it would be a difficult
penalty to implement, and her admission about being part of a twelve-step
program. (140 RT 15972.) The prosecutor emphasized his last justification by
stating:
Bottom line is when she came in for general voir dire and finally
asked to approach the bench, it turns out she was a compulsive
gambler and belonged to an organization that is designed to help
people with those problems. . . I didn’t want to take a chance on
someone who could be overcome by such a compulsion.
(Id.)
981. The prosecutor’s justifications pertaining to Thomas’s written and
verbalized sentiments about the death penalty were taken out of context. While
she indicated that her stance on the death penalty would depend on a person’s
crime, her questionnaire also said that she would favor the death penalty for any
person who intentionally kills another. (VI Supp. CT 4, at 941.) Additionally,
while she expressed some reservations about having to give someone the death
penalty, she also said that she could do it. (98 RT 10456-57.) With respect to
Thomas’s questionnaire answer, the prosecutor’s justification is undermined by
the fact that many seated and alternate jurors also wrote that the implementation
of the death penalty should depend on the crime. (See the juror questionnaires of
Lilian Aragon (VI Supp. CT 6, at 1764); Chakalit Harris (VI Supp. CT 12, at
3470); Alfred Carrillo (VI Supp. CT 8, at 2331); Donald McGee (VI Supp. CT
15, at 4270); Verbe Sutton (VI Supp. CT 3, at 861); Arlena Wallace (VI Supp.
CT 5, at 1238); Martha Salcido (VI Supp. CT 1, at 162); Phyllis Singletary (VI
Supp. CT 2, at 587); Sandra Perkins (VI Supp. CT 17, at 4876); and Bonita Smith
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(VI Supp. CT 3, at 652).) Like Thomas, two alternate jurors, Janice McDowell
and Max DeRuiter, wrote on their questionnaires that they did not have firm
opinions about the death penalty. (McDowell (VI Supp. CT 15, at 4254);
DeRuiter (VI Supp. CT 10, at 2683).) Shirley Zelaya, a seated juror, did not
respond to the question at all. (VI Supp. CT 6, at 1573.)
982. Similarly, Thomas’s Hovey statement that implementing the death
penalty would be challenging not only reflected a realistic and thoughtful
consideration of capital jury service, but also echoed the ambivalence raised by
other seated and alternate jurors. Lilian Aragon, for example, stated during
Hovey voir dire that she did not consider herself a supporter of the death penalty
and that she did not have a well-defined opinion about the death penalty. (97 RT
10324.) Arthur Johnson likewise stated that he never had strong feelings for or
against the death penalty, and said that life in prison and a death sentence are
equally serious. (Id. at 10331-33.) “If a proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.” Miller-El II, 545 U.S. at 241.
983. The prosecutor’s final justification for challenging Thomas, based
on her treated gambling problem and twelve-step-program membership, was
likewise undermined by his failure to challenge Donald McGee, a seated juror
who was a self-professed “recovering alcoholic” and who attended Alcoholics
Anonymous meetings every day. (VI Supp. CT 15, at 4278.)
B.
Katherine Sanford
984.
Katherine Sanford was a forty-four-year-old black female potential
juror. (VI Supp. CT 2, at 370.) The prosecutor peremptorily challenged Sanford.
(132 RT 14802.) She had worked for the city of Los Angeles for twenty-two
years. (VI Supp. CT 2, at 370.) During her twenty-two years of civil service for
the city, she rotated between the Los Angeles Police Department and the
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Department of Water and Power, and was employed two times by each agency.
(VI Supp. CT 2, at 370.) On her juror questionnaire, Sanford reflected, “I
personally would not want to sentence anyone to death but if it was a decision I
had to make I’d make it.” (VI Supp. CT 2, at 377.) She also stated that she was
in support of the death penalty, and would be inclined to sentence any person
who intentionally killed another while committing a burglary to death. (Id.)
During her Hovey voir dire, Sanford told the prosecutor that she could give the
death penalty to a defendant if it were the appropriate sentence. (93 RT 9746).
During general voir dire, Sanford provided details about her work as a secretary
for the Los Angeles Police Department’s Homicide Division. (132 RT 14793-
95.) She explained that “Whenever I see or hear about a victim I have sympathy
for the person or for anybody that has been wronged.” (Id. at 14796.). On her
juror questionnaire, Sanford used the explanation sheet to elaborate that while she
would find it personal difficult to implement the death penalty, she could do it.
(VI Supp. CT 2, at 385.) Sanford stated that she would follow the orders of the
court and would “abide by the judge, court or state whether I believe or agree
with it.” (Id.)
985. The prosecutor offered several justifications for striking Sanford.
He stated that he found her alternation between jobs signaled that either “people
are passing her around or she can’t find a place where she is happy, and I didn’t
expect her to be any happier on the jury.” (140 RT 15981.) The prosecutor also
said that he was troubled by her explanation sheet. He called it a “rambling
history really of her life and defeats that she had been dealt and her beliefs and
almost a purging of something within her.” (Id.) Finally, the prosecutor justified
his strike based on Sanford’s questionnaire statement that she would not like to
personally be the one to sentence someone to die. (Id. at 15982.) All of these
justifications are pretextual.
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986. The prosecutor’s justification regarding Sanford’s job changes was
undermined by the fact that several seated and alternate jurors had employment
records with numerous job changes. Alfred Carrillo, a seated juror, had six jobs
in ten years. (VI Supp. CT 8, at 2324-25.) His term of employment at each
position ranged from eight months to two years. (Id.) Cynthia Hayden, a seated
juror, had four job changes over the last ten years. (VI Supp. CT 12, at 3399-
3400.) Felipe Rodriguez, the jury foreperson, had four jobs over the last ten
years and stayed at each job for only two to four years. (VI Supp. CT 1, at 146-
47.) Bonita Smith, an alternate juror, had four jobs in the last ten years, ranging
from nine months to three years. (VI Supp. CT 3, at 644-45.) Neither attorney
specifically examined Sanford about why she had changed jobs between the
police and water departments, nor did they ask her if she was unhappy with her
current or past positions. At the very least, the prosecutor should have followed
up with Sanford “before getting to the point of exercising a strike.” Miller-El II,
545 U.S. at 244; id. at 250 n.8 (“[T]he failure to ask undermines the
persuasiveness of the claimed concern.”). Clearly, frequent job change did not
disqualify, in the prosecutor’s mind, the four seated and alternate jurors listed
above. Sanford’s occupational record was not a significant factor in her ability to
be a good juror, and the prosecutor’s reliance on this justification is pretextual.
987. The prosecutor’s justification relating to Sanford’s explanation sheet
inaccurately characterized what Sanford actually wrote. Sanford’s explanation
sheet did not include a rambling history of her life’s defeats or anything of the
sort. Instead, she elaborated on her personal thoughts about capital jury service.
(VI Supp. CT 2, at 385.) Her explanation reflected a thoughtful consideration of
the importance of jury service and her ability to follow the law. (Id.) By relying
on a contorted and inaccurate description what Sanford wrote, the prosecutor
revealed that his justification was pretextual.
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988. Finally, the prosecutor’s justification for striking Sanford based on
her questionnaire response that she would “personally would not want to sentence
anyone to death” is likewise incomplete. She also said, in the same sentence, that
she could in fact do so. (VI Supp. CT 2, at 377.) These sentiments were further
elaborated in the explanation sheet that the prosecutor derogated as “rambling.”
(VI Supp. CT 2, at 385.) Furthermore, she also expressed that she would be
inclined to give the death penalty in a case similar to Ramirez’s, where a person
was found guilty of intentionally killing another during a burglary. (Id.)
989. The prosecutor’s justification is also undermined by the fact that
other jurors also stated some ambivalence about implementing the death penalty.
Lilian Aragon, for example, stated during Hovey voir dire that she did not
consider herself a supporter of the death penalty and that she did not have a well-
defined opinion about the death penalty. (97 RT 10324.) Arthur Johnson
likewise stated that he never had strong feelings for or against the death penalty,
and said that life in prison and a death sentence are equally serious. (Id. at
10331-33.) Additionally, Sanford was likely more strongly inclined toward the
death penalty than some of the selected jurors were. Lilian Aragon and Cynthia
Hayden both stated that they could not think of a type of case that would always
require the death penalty. (Aragon, id. at 10323; Hayden, 93 RT 9775.) Max
DeRuiter, an alternate juror, stated in his questionnaire that it was “very hard to
explore [his] feelings regarding something like the death penalty.” (VI Supp. CT
10, at 2683.)
990. Totality of Sanford’s questionnaire and voir dire responses,
especially those reflecting her experience working and sympathizing with crime
victims as part of her police department duties, reveal that she would have likely
been a strong juror for the prosecution. For all of these reasons, the prosecutor’s
justifications for striking her were pretextual.
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C.
Johnnie Sue Lang
991. Johnnie Sue Lang was a forty-four-year-old black female
prospective juror. (VI Supp. CT 14, at 4008.) Lang was peremptorily challenged
by the prosecution. (130 RT 14545.) Lang had two relatives who worked in law
enforcement. Her husband was a peace officer for the California Youth
Authority, and her niece’s husband was an LA County Sheriff. (VI Supp. CT 14,
at 4009; RT 14515.) On her juror questionnaire, Lang opined that the death
penalty is pursued too seldom. (VI Supp. CT 14, at 4015.) Lang also stated that
she had not formed an opinion about the validity of psychiatric opinions and
understood that she was not bound to accept any psychiatrist or psychologist
opinions as conclusive. (VI Supp. CT 14, at 40017). Like many of the seated
and alternate jurors, Lang wrote on her questionnaire that the implementation of
the death penalty should depend on the crime. (VI Supp. CT 14, at 40015.) Lang
wrote that such a decision should also be based on the evidence, including any
psychiatric evaluation brought forth. (Id.) In response to defense counsel’s
questioning during Hovey voir dire, Lang reiterated that she would consider
psychological evidence when determining the appropriateness of the death
penalty. (94 RT 9890-91.). Also during Hovey voir dire, Lang told the
prosecutor that her two sons were currently incarcerated for drug-related charges
and had been prosecuted by the Los Angeles County District Attorney’s office.
(Id. at 9897-98.) When asked if her sons’ cases would bias her against the
prosecution or otherwise affect her ability to remain impartial, she responded,
“No it would not. They broke the law.” (Id. at 9899.).
992. The prosecution offered several justifications for striking Lang, all
of which were pretextual. The prosecutor stated that Lang was too “concerned
with the psychology of [the] case,” as indicated by her questionnaire and Hovey
answers and that she might be biased against the prosecution because of her sons’
criminal cases. The prosecutor also expressed his vague impression that Lang’s
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voir dire “demeanor indicated to me that shoe [sic] did not want to be here,” and
“that she was trying to get out of here.” The prosecutor elaborated on this notion,
explaining:
I just don’t want to have to deal with that issue after we’ve been in
trial for a number of months, somebody who didn’t want to be here
in the first place becomes belligerent, and for those reasons we
regarding psychological evidence. Her questionnaire answers only indicated that
she would consider psychiatric evidence, if presented, along with all other
evidence, before determining the appropriateness of a death sentence. (VI Supp.
CT 14, at 4015.) This is exactly what a juror sitting on a capital murder case is
supposed to do -- weigh and consider all of the mitigating and aggravating
evidence presented. When considered in the context of Lang’s other psychology-
related questionnaire answers, it is clear that she was not in fact very “concerned
with the psychology of the case.” To the contrary, her questionnaire answers
revealed that she had not formed an opinion about the validity of psychiatric
opinions and understood that she was not bound to accept such evidence as
conclusive. (VI Supp. CT 14, at 40016-17.) Furthermore, her Hovey statement
that she would consider such evidence when determining the appropriateness of
the death penalty came in response to the defense attorney’s questions, which
indicated that such evidence should be considered during the penalty phase. (
RT 9890-91.)
994. The prosecutor’s justification pertaining to Lang’s statements
regarding her consideration of psychological evidence is undermined by the fact
that several seated jurors stated that they would consider psychological evidence
before implementing a death sentence. Cynthia Hayden expressed in her juror
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questionnaire that she had valued her personal experience in psychological
therapy and had read a lot about the psychology of human development. (VI
Supp. CT 12, at 3408, 3414.) Donald McGee had been employed as a
psychological technician, and stated a psychiatric evaluation is a very important
way to determine a person’s state of mind. (VI Supp. CT 15, at 4271.) Felipe
Rodriquez, the jury foreperson, also stated that he had previously studied
psychology and thought that it has merit. (VI Supp. CT 1, at 154.) Martha
Salcido answered that psychological evidence is relevant, including information
about developmental psychology, such as evidence about upbringing and
childhood. (VI Supp. CT 1, at 170.)
995. The prosecution’s justification for challenging Lang based on her
sons’ prosecutions is undermined by the fact that two seated jurors had family
members also prosecuted for drug-related crimes. Lilian Aragon’s husband was
prosecuted for drug possession. (VI Supp. CT 6, at 1759.) Alfred Carrillo’s two
brothers were prosecuted by the Los Angeles County District Attorney’s office
and incarcerated for drug-related crimes, just like Lang’s sons. (106 RT 11570-
72.) Carrilo’s Hovey statement about why his brothers’ prosecutions would not
affect his ability to serve as an impartial juror was very similar to the explanation
provided by Lang. Carrilo stated, “They did what they did and. . . had to go to
prison for it.” (Id. at 11571.).
996. Finally, the prosecution’s justifications based on a vague notion of
Lang’s courtroom demeanor also ring hollow. Nothing in the record corroborates
the prosecutor’s characterization of Lang’s demeanor. Neither the court nor the
defense commented on the prosecution’s characterization. Because the court did
not discuss the prosecutor’s characterization of Lang’s court demeanor, it “cannot
be presume[d] that the trial judge credited the prosecutor’s assertion.” Snyder,
128 S.Ct. at 1209. Nothing in the record demonstrates that the prosecutor
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“credibly relied on demeanor in exercising a strike.” Id. As such, the
prosecutor’s justification cannot sustain his challenge.
D.
Hortensia Roberts
997. Hortensia Roberts was a black female potential juror. The
prosecutor peremptorily challenged Roberts. (131 RT 14626.) During her Hovey
voir dire Roberts said that a person who kills and then mutilates the deceased’s
body should always get the death penalty, regardless of their state of mind or
other types of mitigating evidence. (RT 10828-29.) Like Lang, in response to
the defense attorney’s Hovey questions, Roberts stated that she would consider
evidence of the defendant’s background and psychology when considering the
appropriateness of the death penalty. (101 RT 10830.) Similarly, Roberts’s juror
questionnaire reflected that during the penalty phase, she would consider all of
the circumstances of the crime, including the defendant’s psychological state,
before implementing the death penalty. (Id. at 10832.)
998. The prosecutor justified his challenge of Roberts by citing her
reliance on psychological evidence. (140 RT 15977.) Roberts’s statement that
she would consider the circumstances of the crime, including evidence pertaining
to the defendant’s psychological state, was not extraordinary. As stated above,
several seated and alternate jurors likewise stated that such information was
valuable and would be part of the evidence they would consider during the
penalty phase. The prosecutor’s justification for challenging Roberts, based
solely on her consideration of psychological evidence, was patently pretextual for
all of the same reasons that his similar justification of Lang’s strike was
pretextual.
999. The prosecution also justified dismissing the two following women
due to their purported “immaturity.” The challenges of these women were also
pretextual and therefore improper.
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E.
Demetrius Joseph
1000. Demetrius Joseph was a twenty-five-year-old black female
prospective juror. (VI Supp. CT 14, at 3912.) She was dismissed by the
prosecution with a peremptory challenge. (131 RT 14645.) Joseph was a mail
handler and had worked for the United States Postal Service for four years. (VI
Supp. CT 14, at 3912.) She was the mother of three children aged six years, four
years, and nineteen months. (Id.) During general voir dire, the defense attorney
asked her if she had ever experienced racial discrimination. (131 RT 14631.)
She described a situation in which a store clerk did not give her proper change,
and when she asked for it, the clerk called her and her friend “niggers.” She
explained that her friend ran at the man. (Id. at 14632.) When counsel asked her
the store clerk’s race, she responded that she thought he was Chinese. (Id. at
14633.) She stated that the incident did not make her feel prejudiced against
people of Chinese decent because “I figure that’s just the way he was. You
know, I don’t have anything against the whole race; it’s just the person
themselves.” (Id.) The prosecutor passed for cause for Joseph without any
further inquiry. (Id. at 14634.)
1001. The prosecutor justified his strike of Joseph by saying she appeared
to be “immature.” The prosecutor made specific reference to her incident with
the store clerk, stating:
I just concluded that she was so immature that she seemed to have a
problem in that regard. Certainly concerning this Chinese store
owner. We have Chinese victims in this case. We’re going to have
Chinese witnesses in this case. If there was some carry over, I didn’t
want to be the recipient of it, and basically her immaturity was why I
exercised a challenge with respect to Miss Joseph.
(140 RT 15978.)
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1002. Nothing in the record supports the prosecution’s assertion that
Joseph was an immature person. To the contrary, her employment and
parenthood spoke to her maturity. Just like seven of the seated and alternate
jurors, Joseph had a stable job as a U.S. Postal Service employee. (VI Supp. CT
14, at 3912; see juror questionnaires of the following postal employees: Mary
Herrera (VI Supp. CT 13, at 3543); Arthur Johnson (VI Supp. CT 14, at 3832);
Martha Salcido (VI Supp. CT 1, at 162); Shirley Zelaya (VI Supp. CT 6, at
1566); James Muldrow (VI Supp. CT 16, at 4680); and Sandra Perkins (VI Supp.
CT 17, at 4870). She was also a mother to three young children. (VI Supp. CT
14, at 3912.) The fact that a seated juror, Alfred Carrillo, was only one year older
than she was, undermined any implicit assertion that Joseph’s age made her too
immature to be on the jury. (VI Supp. CT 8, at 2324.) Nothing about Joseph’s
story regarding her incident with the store clerk suggested that she was immature.
She was the victim of racial discrimination, yet she refused to respond in kind.
She reasoned that it was not the clerk’s race, but his personal ignorance, that
caused him to treat her the way he did. Her reasoning demonstrated her maturity,
and the prosecutor’s justification was plainly pretextual.
1003. To the extent that the prosecutor believed that Joseph was immature
based on her demeanor, he failed to make a record of this fact; the trial court, too,
made no comment on Joseph’s demeanor. Her demeanor, therefore, cannot help
to support the prosecution’s strike. Snyder, 128 S.Ct. at 1209.
F.
Alicia Alex
1004. Alicia Alex was a nineteen-year-old black female potential alternate
juror. (VI Supp. CT 6, at 1676.) The prosecutor peremptorily challenged Alex
(135 RT 15213). Alex did not work, but did attend cosmetology classes in the
evening. (134 RT 15145.) On her juror questionnaire, Alex answered that she
had not really thought much about the death penalty. (VI Supp. CT 6, at 1683.)
During Hovey voir dire, Alex said that she would lean toward the death penalty in
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a case in which a person purposefully killed another person and felt no remorse.
(100 RT 10647). She also told the prosecutor that she would probably vote to
keep the death penalty if it were up for reconsideration in a general election. (Id.)
1005. The prosecutor justified striking Alex because he said that she
seemed immature, as exemplified by her age and lack of a job. (140 RT 15983).
The prosecutor also justified his strike by saying that she had not thought much
about the death penalty. (Id.) He also asserted that she paused too much during
her voir dire answers. (Id.) However, the prosecutor did note that such pausing
was not reflected in the record, because such things “don’t always show in the
transcript . . . but there was reluctance here. She was slow to answer.” (Id. at
15984.) The prosecutor’s justifications were pretextual.
1006. The prosecutor’s justification regarding Alex’s ambivalent death
penalty sentiments, as expressed on her juror questionnaire, is undermined by
similar ambivalence expressed by seated and alternate jurors. During Hovey voir
dire, two seated jurors stated that they had not formed a strong opinion about the
death penalty, and did not firmly know if they even supported it. Lilian Aragon
said she was not necessarily a supporter of the death penalty. (97 RT 10324.)
Arthur Johnson said that he did not have strong feelings either for or against the
death penalty. (Id. at 10333.) Since Alex stated during Hovey that she favored
the death penalty in some situations, and would likely vote for it during a general
election, her stance in favor of the death penalty was apparently stronger than
both Aragon’s and Johnson’s. The prosecutor’s justification was also
undermined by the presence of seated juror Shirley Zelaya, who took no position
about the death penalty on her juror questionnaire, and alternate juror Max
DeRuiter, who wrote that it was hard for him to “explore his feelings” about the
death penalty. (Zelaya, VI Supp. CT 6, at 1573; DeRuiter, VI Supp. CT 10, at
2683.)
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1007. The justification regarding Alex’s immaturity, based on her age, is
similarly undermined by the presence of Alfred Carrillo as a seated juror, who
himself was only twenty-six years old. (VI Supp. CT 8, at 2324.) Additionally,
although Alex was unemployed, she was attending school in the evenings.
1008. The prosecutor’s final statement that Alex’s pausing during voir dire
served as a basis for his challenge also seems thinly veiled, especially in light of
all of the other demonstrated pretexts. Even the prosecutor noted that the record
did not reflect Alex’s apparent speaking style and the trial court made no finding
on this issue. As such, it “cannot be presume[d] that the trial judge credited the
prosecutor’s assertion” of Alex’s demeanor or even that the prosecutor “credibly
relied on demeanor in exercising a strike” against Alex. Snyder, 128 S.Ct. at
1209. But even assuming Alex was “slow to answer,” the prosecutor provided no
explanation as to why that would make her a bad juror. (140 RT 15984.)
G.
The Prosecution’s Other Strikes
1009. In addition to the six black women described above, the prosecutor
peremptorily challenged eight additional black female prospective jurors. While
each and every one of the above peremptory challenges by itself constituted a
violation of the Equal Protection Clause under Batson, the prosecutor’s entire
record of peremptory challenges against black women was especially egregious
and constitutes additional evidence of discrimination at step three of the Batson
inquiry. The prosecution also struck five out of six Hispanic prospective
alternate jurors.
1010. Defense counsel, for his part, failed to challenge the pretextual
justifications provided by the prosecutor. The court gave defense counsel two
opportunities to respond to the prosecutor’s justifications for striking the 14 black
women. (140 RT 15991-92.) The following exchange ensued:
Mr. Hernandez: I think the court should look at the transcripts that
they referred to and the questionnaires they referred to, and look
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beyond their explanation before making a determination whether
their explanation is sufficient.
...
Mr. Halpin: Let me ask that Mr. Hernandez at this point, if he has
any specifics, refer them to the court.
Mr. Hernandez knew the subject of this inquiry and he had the
opportunity, the same as we did, to sit down and review his material.
(Id. at 15992.)
1011. Defense counsel failed entirely to respond to the prosecutor’s
patently pretextual justifications for the unconstitutional strikes of the 14 black
and prejudicial assistance of counsel insofar as he failed to respond. Counsel’s
incompetence deprived the court of valuable evidence of discrimination -- to wit,
the comparative analysis performed above. Strickland v. Washington, 466 U.S.
668 (1984).
1012.
The court denied Ramirez’s Batson motion. In doing so, it
relied primarily upon its longstanding personal relationship with the prosecuting
attorneys, and its opinion that neither of the attorneys was a “bigot”:
I, too, find these accusations -- these kind of accusations
troublesome and I have known Mr. Yochelson for some years and I
don’t think there is a man in this court building that does not have a
high respect for him.
Mr. Halpin and I have been acquainted for probably close to
18 or 19 years, I as a public defender and Mr. Halpin as a District
Attorney . . . nobody in this building, and certainly not this court,
has ever accused him of being dishonest or deceitful or a bigot.
And I see nothing in this record to indicate any of that.
(140 RT 15994.)
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1013. The trial court’s decision was entirely inappropriate. To deny
Ramirez’s Batson motion, the court relied upon evidence outside the record --
that is, his personal opinion of the prosecuting attorneys, formed from years of
interactions that occurred before Ramirez’s trial. Because this extrajudicial
evidence was not in the record, there was no possible way for defense counsel to
respond to it or attempt to rebut it. The trial judge essentially became a witness
in the case -- testifying to the good character of the prosecuting attorneys -- yet
defense counsel had no opportunity to cross-examine him or to present contrary
evidence. Furthermore, the trial court’s willingness to allow his personal
opinions to color his legal decisions suggests that he was anything but an
impartial adjudicator. In addition to the fact that the trial court’s decision
denying Ramirez’s Batson motion was substantively incorrect, the manner in
which the court reached that decision did not comport with due process.
1014. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
In addition, the trial court had earlier stated on the record that it did not
believe that racial bias was a genuine problem in Southern California in 1988,
suggesting that it was not an impartial adjudicator with respect to the Batson
motion, but instead approached the motion already disinclined to grant it. (RT 13884 (“I suspect that the issue of racial bias might be a little bit more
pertinent in South Carolina than it is in Southern California.”).)
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foregoing violations of Petitioner’s rights had a substantial and injurious effect or
influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1015. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); see Davis v. Sec’y for the Dep’t of Corr.,
F.3d 1310, 1314-17 (11th Cir. 2003) (addressing failure to preserve a Batson
claim).
CLAIM 13:
THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
REMOVE HISPANIC ALTERNATE JURORS BECAUSE OF
THEIR RACE
1016. Exhaustion of Claim: This claim will be presented to the California
Supreme Court in an exhaustion petition that he will file no later than March 17,
2009.
1017. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because the prosecution exercised peremptory challenges against
Hispanic prospective alternate jurors on the basis of race. Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
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1018. The exhibits filed with this Petition and the allegations set forth
elsewhere in this Petition are hereby incorporated by reference into this claim as
though set forth in full.
1019. The facts in support of this claim, among others to be presented after
full investigation, discovery, access to this Court’s subpoena power, and an
evidentiary hearing, include the following:
1020. Petitioner is a Hispanic man who stood trial for multiple interracial
murders. The prosecution exercised peremptory challenges to remove both of the
first two Hispanic prospective alternate jurors who were called to the jury box
and were not dismissed for hardship -- Eugene Mendez and John Lucero.
Defense counsel brought a motion under People v. Wheeler, 22 Cal. 3d 258,
Cal. Rptr. 890 (1978), the California counterpart to Batson v. Kentucky, after the
second strike.72 The trial court denied the motion at Batson’s step one, finding no
“systematic exclusion” of Hispanic alternates. (135 RT 15234-36.) The court
specifically stated, however, that “I would think that if we have another Latin
excluded, . . . that a hearing would be in order. (Id. at 15234.)
1021. Defense counsel renewed the Batson motion after the prosecution
struck Deloris Reserva. (139 RT 15881.) The court originally listed Reserva as a
“Latin,” but the prosecution asserted that she was not Hispanic. (Id. at 15882.)
The trial court again found no prima facie case -- no “pattern” -- even assuming
that Reserva was Hispanic. (Id. at 15883, 15890.) At this point, counting
Reserva as Hispanic, and not counting jurors removed for hardship dismissals,
the prosecution had struck three out of the four Hispanic prospective alternate
jurors who were called to the box. (Id. at 15883-87.)
A Wheeler challenge is sufficient to preserve a Batson claim. Paulino
v. Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004).
377Page 402 Page ID #:
1022. Voir dire continued, and eventually the prosecution struck two more
Hispanic alternates, Ramon Lopez and Celia Lucero. Defense counsel renewed
the Batson motion. By now the prosecution had struck five out of the six
Hispanic prospective alternates (four out of five if Reserva is not counted). The
prosecutor had also used peremptory strikes to remove 14 of the 27 black female
prospective jurors. See Claim 12. The trial court again found that no prima facie
case had been established and denied the motion without explanation. (141 RT
16076.)
1023. Petitioner incorporates by reference the statement of law regarding
Batson v. Kentucky and its progeny presented in Claim 12.
1024. The trial court’s determination that Ramirez failed to make out a
prima facie Batson claim was objectively unreasonable. The prosecutor struck
five of six, or 83 percent, of the available Hispanic alternate jurors who were
called to the jury box.73 This statistical figure is easily sufficient, by itself, to
raise an inference of discriminatory purpose. See Fernandez v. Roe, 286 F.3d
1073, 1078 (9th Cir. 2002) (four of seven (57%) Hispanic jurors satisfied prima
facie showing); Turner v. Marshall, 63 F.3d 807, 813 (9th Cir. 1995) (five of
nine (55%) African Americans stricken), overruled on other grounds by Tolbert
v. Page, 182 F.3d 677, 684 (9th Cir. 1999) (en banc); United States v. Lorenzo,
995 F.2d 1448, 1453-54 (9th Cir. 1993) (assuming prima facie case where three
of nine (33%) Hawaiian jurors stricken); United States v. Bishop, 959 F.2d 820,
822 (9th Cir. 1992) (assuming prima facie case where two of four (50%) African
American jurors stricken), overruled on other grounds, Boyde v. Brown, 404 F.3d
1159, 1171 n.10 (9th Cir. 2005).
Because the trial court found no prima facie case even assuming that
Reserva was Hispanic, Petitioner counts her as Hispanic here. In any event, the
data is clearly sufficient to make out a prima facie case even if Reserva is not
counted.
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1025. “[C]ourts should engage in a rigorous review of a prosecution’s use
of peremptory strikes. If a trial court’s conclusion that a defendant failed to make
a prima facie case could insulate from review a prosecution’s use of peremptory
strikes, the holdings of [Johnson and Miller-El II] would be undermined.” Boyd
1026. The trial court did not state what prima facie standard it applied in
rejecting Ramirez’s claim, but statements during voir dire strongly suggest that
the court applied the onerous Wheeler standard of which the U.S. Supreme Court
disapproved in Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed.
2d 129 (2005). The court first denied Ramirez’s Batson challenge because it
found no “systematic exclusion” of Hispanic alternates. (135 RT 15234-36.) It
later stated that it had found no “pattern.” (139 RT 15883.) This understanding
of the Batson threshold is incorrect: no invidious pattern must be shown, as even
a single race-based strike violates the constitution. United States v. Vasquez-
Lopez, 22 F.3d 900, 902 (9th Cir. 1994); see also Batson, 476 U.S. at 95 (“‘A
single invidiously discriminatory governmental act’ is not ‘immunized by the
absence of such discrimination in the making of other comparable decisions.’”
(quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
266 n.14, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)); accord Snyder v. Louisiana,
128 S. Ct. 1203, 1208 (2008). The Wheeler standard is contrary to Supreme
Court precedent. Johnson, 545 U.S. at 173.
1027. The only remaining question is whether “other relevant
circumstances” surrounding the strikes refute the inference of discrimination
raised by the statistical disparity. See Williams v. Runnels, 432 F.3d 1102,
(9th Cir. 2006). Because the issue that ultimately matters is the prosecutor’s real
reasons for the strikes, “to rebut an inference of discriminatory purpose based on
statistical disparity, the ‘other relevant circumstances’ must do more than indicate
that the record would support race-neutral reasons for the questioned challenges.”
379Page 404 Page ID #:
Id. at 1108, 1109. In other words, it is not appropriate for a reviewing court to
survey the record for race-neutral reasons that might have supported the
prosecutor’s five peremptory strikes of the Hispanic jurors.
1028. Far from rebutting the inference of discriminatory purpose, the
totality of the circumstances helps confirm it. As noted, Ramirez is a Hispanic
man. The prosecutor may have feared that Hispanic jurors would be sympathetic
to Petitioner and his family. The prosecutor’s strikes against 14 of the 27 black
female jurors are also relevant circumstances militating in favor of an inference
of discrimination. See Snyder, 128 S. Ct. at 1208 (explaining that the strike of
one juror must be considered as it bears on the strike of another juror claimed to
have been removed based on discriminatory intent); Fernandez, 286 F.3d at
(relying in part on prosecutor’s strikes against Hispanic jurors in determining that
prima facie case existed with respect to African American jurors).
1029. To the extent that the trial court relied on the presence of one
Hispanic alternate juror, Mary Herrera, to refute any finding of a prima facie
case, this was error. It is hornbook law that the presence of such jurors does not
immunize the prosecution’s race-based strikes. See, e.g., Miller-El II, 545 U.S. at
240, 266 (granting relief where black juror served); Turner, 63 F.3d at 811 (four
black jurors served); Id. at 814 (“In denying a Batson motion, . . . a trial court
may not rely solely on the fact that some African-Americans remain on the
jury.”). The threshold for making a prima facie Batson claim is quite low.” Boyd
v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006) (as amended). Ramirez has
passed that threshold here.
1030. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
380Page 405 Page ID #:
Ct. 1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1031. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel who failed to present the claim after the facts
on which it is based became known or should have been known rendered
ineffective assistance in not asserting it sooner, and the Court should consider the
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); see Davis v. Sec’y for the Dep’t of Corr.,
F.3d 1310, 1314-17 (11th Cir. 2003) (addressing failure to preserve a Batson
claim).
CLAIM 14:
PETITIONER’S STATEMENTS WERE UNRELIABLE AND
INVOLUNTARILY OBTAINED AND COUNSEL FAILED TO
COMPETENTLY LITIGATE A MOTION TO EXCLUDE
THEM
1032. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XI of the June 2004 petition for writ of
habeas corpus, although it includes additional factual allegations. Petitioner will
present the claim with the additional factual allegations to the California Supreme
Court in an exhaustion petition he will file no later than March 17, 2009.
381Page 406 Page ID #:
1033. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1034. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1035. Petitioner’s conviction and sentence are illegal, unconstitutional and
void under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution because counsel failed to effectively prosecute the
motion to exclude Petitioner’s admission and protect Petitioner’s rights to due
process, a fair trial, and reliable determination of guilt and penalty.
1036. Petitioner’s conviction and sentence of death were rendered in
violation of his rights to due process; a fair trial; present a defense; compulsory
process; disclosure of all material, exculpatory and/or impeaching evidence; a
reliable, rational and accurate determination of guilt, death eligibility and death
worthiness, free of any unconstitutionally unacceptable risk that such
determinations were the product of bias, prejudice, arbitrariness or caprice; and
effective assistance of counsel under the Constitution.
1037. On March 17, 1987, the defense filed “Points and Authorities for
Motion to Exclude Statement of Defendant.” (XXIII CT 6713-18.) Counsel
asserted that Petitioner’s statements were involuntary without specifying any
grounds, other than invoking his Fifth Amendment rights.74 With respect to
statements allegedly made by Petitioner following his arrest and before his
After an evidentiary hearing, the court suppressed Petitioner’s
statements that were made after he invoked his Fifth Amendment rights.
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advisory, counsel failed to litigate any reasonable factual or legal grounds to
exclude the statements. (See 37 RT 2701-15.)
1038. The court found the statements were made voluntarily and were
spontaneous. (37 RT 2717.) The motion to suppress Petitioner’s statements was
denied. (Id. at 2716.)
1039. Had counsel conducted a competent investigation, they would have
learned of Petitioner’s background, his history of mental illness, psychosis, and
other significant neurological, cognitive, psychological and psychiatric
impairments. Competent counsel would have presented such evidence to the
court in support of their motion to suppress and the evidence would have
established the statements’ lack of voluntariness and spontaneity.75 Counsel
knew that Petitioner acted out while he was in police custody. He sustained a
head injury upon arrest and was observed by police banging his head on a table at
least ten times. (See 26 RT 1884, 1888.) There was ample evidence, known or
available to counsel, that Petitioner suffered from serious mental impairments.
1040. At the motion hearing, counsel failed to introduce evidence of
Petitioner’s long-standing temporal lobe epilepsy; mental incompetency in
September 1985; thought disorder of psychotic proportion, resulting from organic
brain disorder; psychotic disorder; disorganized speech, thought, and behavior;
hallucinations, delusions, paranoia; severe mood disorder; brain damage; severe
impairments in memory tasks and higher cognitive functioning, of a kind
typically associated with impairment of the frontal and temporal lobes;
impairments in his ability to inhibit behavior and responses and obsessive and
compulsive behaviors; and the impact on his behavior and personality of multiple
At a minimum, counsel was well aware of Petitioner’s history of
temporal lobe epilepsy, psychosis and mental illness having had Dietrich Blumer,
M.D., a neuropsychiatrist, examine Petitioner on January 19 and 20, 1986.
(Ex. 31, Blumer Dec.)
383Page 408 Page ID #:
disorders – all of which established that Petitioner was seriously mentally ill and
which rendered Petitioner’s statements involuntary and not spontaneous.
Petitioner incorporates by reference as though fully set forth in Exhibits 31, 32,
38, 41, 42, 43, 72, 100, 99, 98, 96 which are the Declarations of Dietrich Blumer,
M.D., dated 05/10/2004; Marilyn Cornell, dated 06/16/2004; Robert Schneider,
M.D., dated 02/23/2004; William Vicary, M.D., dated 03/15/2004; Dale Watson,
Ph.D., dated 04/24/2004; Jane Wells, J.D., Ph.D., dated 05/19/2004; and Anne
Evans, Ph.D., dated 04/18/1995, as well as the reports of George W. Woods,
M.D., dated 04/19/1995; Elise Taylor, MFCC, dated 03/06/1995; Myla H.
Young, Ph.D, dated 03/13/1995; and the letter from Victor Henderson, M.D., to
Daniel Hernandez, dated 05/29/1987.
1041. Competent counsel would also have introduced evidence that
Coerced Confessions.) Thus, competent counsel would have established that
Petitioner was so impaired he was unable to function in a rational manner, and his
statements were involuntary.
1042. Petitioner was prejudiced by counsel’s failure to object or refute the
evidence at trial. Evidence of Petitioner’s guilt was established by his statements.
Petitioner’s statement that he would be blamed for the killings and would be sent
to the electric chair was crucial to the prosecution’s case. Trial counsel’s failure
to properly object to introduction of the statements and refute the prosecution’s
evidence was damaging to Petitioner. Petitioner was prejudiced by the
prosecutor’s closing argument that Petitioner’s admissions established his guilt.
(209 RT 24069.) There was no mental state evidence introduced on Petitioner’s
behalf. The jury was not informed as to the involuntary nature of the statements.
1043. Had counsel properly developed Petitioner’s case, evidence would
have been presented of Petitioner’s mental illness and of the circumstances of
Petitioner’s arrest; continuing objections would have been made on the grounds
384Page 409 Page ID #:
that the statements lacked the indicia of reliability; and counsel’s closing
argument to the jury would have explained that Petitioner’s statements were
unreliable and not reflective of his guilt.
1044. Trial counsel’s failure to investigate, develop and present evidence
of Petitioner’s state of mind, basis for the admissions, the fearful setting, and the
stress at the time that the statements were allegedly uttered deprived Petitioner of
effective assistance of counsel and the full panoply of his constitutional rights.
1045. The Due Process Clause bars the use of involuntary confessions in
criminal trials, independently of whether a violation of the Miranda prophylaxis
is established. See, e.g., Fikes v. Alabama, 352 U.S. 191, 193, 197, 77 S. Ct. 281,
1 L. Ed. 2d 246 (1957). Use of an involuntary confession is a separate violation
of due process of law regardless of whether the specific parameters of Miranda
were observed in obtaining the statement. For this reason, the Supreme Court has
stated that “any criminal trial use against a defendant of his involuntary
confession is a denial of due process . . . .” Mincey v. Arizona, 437 U.S. 385, 398,
98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (emphasis in original); see also Doody v.
1046. One reason why use of an involuntary statement at trial violates due
process is because of the high risk of its lack of reliability and accuracy. Leading
pre-Miranda case law on involuntary confessions repeatedly stressed the
reliability/accuracy rationale that bars the admission of involuntary confessions.
See, e.g., Stein v. New York, 346 U.S. 156, 182, 73 S. Ct. 1077, 97 L. Ed.
(1953) (due process entails concerns for the accuracy of the evidence adduced in
the trial process); see also Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963) (exculpatory evidence); Drope v. Missouri, 420 U.S. at
172-173 (defendant’s participation); Ake v. Oklahoma, 470 U.S. at 77 (defense
access to expert evidence).
385Page 410 Page ID #:
1047. The indicia of reliability of an involuntary confession was a valid
issue regardless of whether the statements were made pursuant to an official
police interrogation in violation of Miranda.76 Petitioner raises precisely such
concerns about the accuracy and reliability of the evidence against him. Counsel
failed to investigate, substantiate or argue Petitioner’s mental impairments to
establish the unreliable nature of his statements and violation of his due process
rights. Because of counsel’s failure to investigate or present any evidence of the
circumstances of Petitioner’s statement, available evidence of involuntariness
was never presented. Counsel’s failure was unreasonable in light of case
authority and statutory authority prohibiting use of involuntary statements.
1048. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
Involuntary statements are excludable if there is some element of
coercion present. See Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L.
Ed. 2d 473 (1986). Remediable claims of involuntary statements do not require
the usual trappings of a police interrogation. See Arizona v. Fulminante
(involuntary statement made to jailhouse informant).
386Page 411 Page ID #:
1049. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 15:
COUNSEL’S INEFFECTIVE ASSISTANCE AT PRETRIAL PHASE:
FAILURE TO PROPERLY CHALLENGE THE LEGALITY OF
THE SEIZURE OF EVIDENCE
1050. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XII of the June 2004 petition for writ of
habeas corpus.
1051. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1052. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
387Page 412 Page ID #:
1053. Petitioner’s conviction and sentence are illegal, and unconstitutional
and void under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments because counsel failed to effectively represent Petitioner and
protect his rights to due process and a fair trial and reliable determination of guilt
and penalty.
1054. Petitioner’s conviction and sentence of death were rendered in
violation of his rights to due process; to a fair trial; to present a defense; to
compulsory process; to disclosure of all material, to exculpatory and/or
impeaching evidence; to a reliable, rational, and accurate determination of guilt,
death eligibility and death worthiness, free of any unconstitutionally unacceptable
risk that such determinations were the product of bias, prejudice, arbitrariness or
caprice; and to effective assistance of counsel under the above-referenced
provisions of the Constitution.
1055. The violations of these rights, individually and cumulatively,
prejudicially affected and distorted the investigation, discovery, presentation, and
consideration of evidence as well as each and every factual and legal
determination made by trial counsel, the state courts and the jurors at all stages of
the proceedings from the time of Petitioner’s arrest through and including the
rendering of the judgment of death.
1056. Counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 693-
94. As a result of trial counsel’s deficiencies, there was a complete breakdown in
the adversarial process. Counsel’s performance impaired the proper functioning
of the criminal justice system such that the proceedings cannot be relied on as
having produced a just result. Id. at 686. There is a reasonable probability that
but for counsel’s failings, the result in the guilt and penalty phases would have
been more favorable. Id. at 687-96.
388Page 413 Page ID #:
1057. On March 2, 1987, defense counsel moved to suppress evidence.
The motion was exceedingly short and without a statement of adequate grounds.
(XXIII CT 6703-06.) Counsel failed to move to quash and traverse the search
warrant. The court noted that counsel had failed to file a motion to quash and
traverse the search warrant but permitted counsel to examine the witnesses
concerning grounds for issuance of the warrant. (26 RT 1855.) Counsel also
failed to follow the evidentiary procedures required for a § 1538.5 hearing,
including calling witnesses to testify and raising a legal claim that evidence had
been illegally seized. (See, e.g., 27 RT 1976.)
1058. Trial counsel failed to properly investigate the circumstances
surrounding Petitioner’s arrest, the actions of various police agents, and the
seizure of incriminating physical evidence, including the contents of a bag
retrieved from a storage locker at a Greyhound bus station, and a green Pontiac
vehicle. Petitioner’s statements led police to search his person, the Greyhound
bag, and the car. Trial counsel’s failure to investigate and present evidence of the
circumstances surrounding the seizure of evidence amounted to ineffective
assistance of counsel.
1059. Allegations of probable cause contained in the search warrant
affidavit were based on statements Petitioner made while in custody without
being advised of his Miranda rights. He allegedly told a police officer that he
had in his possession a ticket to a bus locker in which a handgun was stored.
Another officer seized the ticket from Petitioner. Police relied on this
information as support for obtaining a search warrant for Petitioner’s person and
property, the Greyhound bag, and the vehicle. (Ex. 21, Search Warrant, Search
Warrant Affidavit and Return of Search Warrant (State Habeas Exhibit 11), p.
14.) Trial counsel were also ineffective because they failed to investigate and
present evidence that Petitioner’s statements were involuntary. See supra. The
seizure of evidence based on information obtained from Petitioner’s involuntary
389Page 414 Page ID #:
statements was unlawful and violated Petitioner’s fundamental constitutional
rights.
1060. On March 24, 1987, the court denied the motion to suppress
evidence. (XXIII CT 6722.) The court specifically found the search warrant had
been properly issued based on ample probable cause and that the police acted
properly with respect to the warrantless seizure of evidence from Petitioner.
(Ex. 21, Search Warrant, Search Warrant Affidavit and Return of Search
Warrant.)
1061. Had counsel properly investigated the circumstances that led to the
issuance of the search warrant and seizure of evidence, it is reasonably probable
that counsel would have been able to demonstrate Petitioner’s statements were
involuntary, that the evidence was unlawfully seized, and that there were
insufficient grounds to justify seizure of property from Petitioner’s person and
lack of legally sufficient probable cause to issue the search warrant.
1062. Competent counsel would have investigated, developed and
presented evidence to challenge the validity of information set forth in the search
warrant affidavit. Competent counsel would have established that Petitioner’s
statements lacked voluntariness due to Petitioner’s long-standing mental
impairments, including neurological and neurocognitive deficits, impaired and
psychotic thought processes, his severely compromised ability to shift mental sets
and make decisions, and the coercive setting in which Petitioner was held at the
time of the statements. Counsel would have properly moved to suppress
evidence seized from Petitioner’s person, the Greyhound bag, and the green
Pontiac because the statements were involuntary and the police lacked probable
cause. The seizure of evidence violated Petitioner’s Fourth and Fifth Amendment
rights.
1063. Evidence seized from Petitioner’s person, the Greyhound bag, and
the green Pontiac vehicle, was admitted at trial. As a result of counsel’s failures,
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the jury considered evidence that implicated Petitioner in the crimes of which he
was convicted. In failing to properly challenge and object to the seized evidence,
trial counsel deprived Petitioner of his fundamental constitutional rights.
1064. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1065. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
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that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 16:
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE
PRETRIAL PHASE: FAILING TO CHALLENGE
EFFECTIVELY IDENTIFICATION PROCEDURES
1066. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section X of the June 2004 petition for writ of
habeas corpus, although it includes additional factual allegations. Petitioner will
present the claim with the additional factual allegations to the California Supreme
Court in an exhaustion petition he will file no later than March 17, 2009.
1067. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1068. Those facts and allegations set forth elsewhere in the petition,
declarations, claims of constitutional violations, and the accompanying exhibits
are incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1069. Petitioner’s conviction and sentence are illegal, and unconstitutional
and void under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution because counsel failed to meaningfully test eyewitness
identification evidence and protect Petitioner’s rights to due process, a fair trial
and a reliable determination of guilt and penalty.
1070. In considering counsel’s deficient performance individually and
cumulatively in conjunction with other claims alleged herein, the verdicts in both
the guilt phase and penalty phases of Petitioner’s trial must be set aside.
Petitioner adopts and incorporates by reference, as though fully set forth, all facts
and claims set forth elsewhere in this petition.
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1071. Petitioner’s conviction and sentence of death were rendered in
violation of his rights to due process; a fair trial; to present a defense; compulsory
process; disclosure of all material, exculpatory and/or impeaching evidence; a
reliable, rational, and accurate determination of guilt, death eligibility and death
worthiness, free of any unconstitutionally unacceptable risk that such
determinations were the product of bias, prejudice, arbitrariness or caprice; and
effective assistance of counsel under the above-referenced provisions of the
Constitution.
1072. Counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 693-
94. There is a reasonable probability that but for counsel’s failings, the result in
the guilt and penalty phases would have been more favorable. Id. at 687-96.
1073. The prosecutor’s eyewitness identification evidence purportedly
linked Petitioner to nine of the sixteen incidents. It consisted of testimony of
eyewitnesses who viewed photographic spreads, assisted in the preparation of
composite drawings, and made identifications at a live lineup, and in court.
1074. Trial counsel failed to properly and adequately investigate, develop,
and present evidence through the meaningful adversarial testing of the evidence
to demonstrate in each incident the witness’s opportunity to view the suspect; the
stress the witness was under at the time; the witness’s ability to provide a
description; cross-racial and cross-gender aspects of the identification; multiple
viewings of Petitioner; and, most importantly, whether the identification was
based on independent grounds and not contaminated by the lineup procedures,
extensive media coverage, or other factors in the highly publicized case.
1075. Trial counsel failed to present all the relevant grounds to challenge
the evidence, including, as described in more detail below, irregularities at the
live lineup that contaminated the in-court identification; and unreliability due to
inconsistencies in the physical descriptions of the suspect. Counsel consistently
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failed to adequately cross-examine the witnesses, test the evidence, and object to
the lack of independent grounds for in-court identifications.
1076. Trial counsel failed to challenge the reliability of the prosecution’s
evidence effectively or to test the evidence. At pretrial hearings to suppress
identification based on the live lineup, counsel presented only limited information
about the circumstances surrounding the live lineup. Counsel failed to develop
and present evidence of the prejudicial impact of recent pervasive and prejudicial
media coverage of the crimes for which Petitioner was charged; multiple
opportunities the witnesses had to see Petitioner’s face on television and in the
print media following his arrest; crowded conditions at the lineup room; the
property lineup conducted at the same time in an adjoining room; conducting a
group live lineup and property lineup with a person who knew Petitioner well and
who was found to be in possession of some of the stolen property from the crimes
(see Ex. 86, witness card of Felipe Solano, Sr.; 172 RT 20115-16, 22-32, 42-44);
pressure and bias of witnesses to make an identification in the case; the lack of
independent grounds for the in-court identification; and the impact of stress, fear,
memory retrieval, and cross-racial factors on the reliability of eyewitness
identification. Counsel failed to elicit evidence of the tainted identification
procedures from defense expert witness Elizabeth Loftus, Ph.D. (See Ex. 37,
Declaration of Dr. Elizabeth Loftus).
1077. In addition, although trial counsel presented testimony of an
eyewitness identification expert, Dr. Elizabeth Loftus, trial counsel failed to
provide Dr. Loftus with an adequate background regarding the incidents in the
case to allow her to identify the factors that would likely have been relevant to
the witnesses’ identifications of Petitioner. As a result, Dr. Loftus was unable to
present testimony that related to the facts of the case. This had an adverse impact
on Petitioner’s case because Dr. Loftus’ testimony was general and not specific
to his case; the jury was less likely to be able to link the substance of the
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testimony to the facts; and Dr. Loftus’ testimony was less likely to actually
enhance the jurors’ sensitivity to the credibility of the eyewitness evidence
presented. (See Ex. 71, Declaration of Dr. Kathy Pezdek, ¶ 134).
1078. Also, during trial, counsel failed to adequately link the facts of
Petitioner’s case and the eyewitness identification factors that Dr. Loftus
described in her testimony. Thus, her testimony did not seem to be relevant to
the case, and was particularly dry and academic. (See id.) One example is that
many witnesses had seen Petitioner on television or in the newspaper before they
identified him at the lineup or in court. Because the witnesses had previously
seen Petitioner in the media, there was a high probability that the witnesses’
memories were suggestively influenced before they identified Petitioner at the
lineup or in court, at the preliminary hearing or the trial. (See id., pp. 134-35).
Although Dr. Loftus testified regarding the effect of “post event information” on
the memory of the witnesses, trial counsel never explained to the jury what the
term meant with respect to Petitioner’s case, and why it would call into question
the reliability of the identifications in this case. (See Dr. Loftus’ testimony,
RT 22699-838, Ex. 71, Declaration of Dr. Kathy Pezdek, pp. 134-35).
1079. Trial counsel failed to establish, through cross examination, through
the presentation of evidence, and through the presentation of expert testimony,
that the witnesses’ identifications of Petitioner were faulty. For example, many
of the witnesses initially described a suspect who was arguably different than
Petitioner. For example, Petitioner was a 25 year old, Mexican male, 6’1”, and
150 pounds. (See Ex. 94, 8/31/85 Supp. Report, p. 2830). Maria Hernandez
described the suspect as a light-skinned male, either Mexican or Caucasian. (See
Ex. 88, 4/15/85 LASO Supp. Report , p. 2809). Sophie Dickman initially told the
police that the suspect was a White male, approximately, 5’8” to 5’9”. (See Ex.
90, 7/7/85 Police Report, p. 2819.) She also helped to prepare a sketch of the
suspect, and indicated that the suspect was 5’8 or 5’9”. She later testified that
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she had described his height to the police as 6’ or 6’1” (CR 3202, 3218, 160 RT
18628, 18644). Somkid Khovananth described the suspect as White male, with a
tan complexion, who was 30-35 years old. (See Ex. 91, LAPD Press Release,
8/5/85, p. 2820). Virginia Petersen described the suspect as a male with a light
complexion. (See Ex. 92, 8/8/85 Police Interview, p. 2822). Sakina Abowath
initially described the suspect as a White male with light brown or blond curly
hair. (See Ex. 93, 8/8/85 Supp. Report, p. 2823). Jorge Gallegos only saw the
suspect from behind, and he could not be sure if the person was Asian or Latino.
(See Ex. 87, 3/18/85 Supp. Report, p. 2804).
1080. Trial counsel failed to provide the jury with examples of how “post
event information”, as described by defense expert Dr. Loftus, could possibly
have affected the identifications in Petitioner’s case. Trial counsel should have
provided the following examples to the jury to establish how “post event
information” may have had an effect on the memories of the eyewitnesses in
Petitioner’s case:
Maria Hernandez first identified Ramirez as the man who shot her at the
live lineup (3 CT 791), and then subsequently at the Preliminary Hearing
(3 CT 738). However, she admitted at the Preliminary Hearing that prior
to attending the lineup, she had seen his picture in the newspaper and saw
him on television about 5 times (3 CT 775-6), and that she specifically saw
his picture on television the day before he was arrested (8 CT 777).
Carol Kyle first identified Ramirez at the live lineup and then subsequently
at the Preliminary Hearing (8 CT 2286). However, she testified at the
Preliminary Hearing that prior to attending the lineup, she had seen his
picture in the newspaper and after the police identified him as the Night
Stalker (8 CT 2343, 2345-46). She testified that in the days leading up to
the lineup, she saw news reports “probably every day” (8 CT 2345-46).
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Officers had indicated to her that the Night Stalker would be in the lineup
(8 CT 2346).
Sophie Dickman first identified Ramirez at the live lineup (11 CT 3164-66)
and then subsequently at the Preliminary Hearing (11 CT 3135). However,
she testified at the Preliminary Hearing that she had seen Ramirez’s
photograph in the news “lots of times” before she picked him out of the
lineup, and she read the newspaper daily (11 CT 3221, 3224). She learned
from the news that the Night Stalker was responsible for her attack about
days after his arrest (11 CT 3224), which was prior to the live lineup.
Launie Dempster testified that while she was delivering newspapers very
early in the morning in the Monterey Park area, she saw the same man on
three different occasions. (16 CT 4624-26, 29-33, 37-38, 162 RT 18755,
60-61, 65-66, 69). She was shown a composite drawing by the police, but
it did not depict the same person that she saw. (162 RT 18802-04, 18845).
She testified that she saw Mr. Ramirez’s picture on the television news the
day before he was arrested (16 CT 4649-50, 162 RT 18777). After he was
arrested, she saw his picture in the newspaper paper and kept up with the
news for about a month (16 CT 4662). At the trial and at the Preliminary
Hearing, she identified Mr. Ramirez in court (16 CT 4624-25, 162 RT
18775). She did not attend the live lineup.
Somkid Khovananth first identified Ramirez at the live lineup (12 CT
3528, 164 RT 19110) and then subsequently in court at the Preliminary
Hearing (12 CT 3513). She testified that prior to the live lineup, she had
seen his picture on television a few weeks after she was attacked and knew
it was him although she did not call the police (12 CT 3551, 3563, 3570,
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3580). She also saw Ramirez’s picture in the news before he was arrested
(12 CT 3572).
Virginia Petersen first identified Ramirez at the live lineup (12 CT 3673)
and then subsequently in court at the Preliminary Hearing (12 CT 3672).
At the trial, she again identified Ramirez (165 RT 19189) and testified that
she had seen his picture on television and in newspaper at least 6-7 times
before attending the lineup. However, although she recognized him as the
man who attacked her, she never called the police to tell them (165 RT
19215, 19222).
(See Ex. 71, Declaration of Dr. Kathy Pezdek, at 135-37).
1081. In the Okazaki/Hernandez incident, counsel failed to effectively
cross-examine eyewitness Maria Hernandez about the lineup procedures or her
multiple opportunities to see Petitioner’s face on television or in the print
media.77 Counsel failed to establish the nature and extent of the witness’s
exposure to the coverage. Ms. Hernandez was not examined about the effect of
“weapon focus” during her quick viewing of the suspect, her inability to recall
the suspect’s features, or her stress and fear during the brief encounter. Counsel
failed to establish that poor viewing conditions rendered her identification
inherently unreliable. There was no defense challenge to the various lineups and
photographic spreads seen by the witnesses prior to Petitioner’s arrest and how
that affected the reliability of the evidence.
1082. In the Yu incident, prosecution witness Joseph Duenas testified that,
while he was on his balcony, he saw two cars parked on the street. The defense
The massive publicity surrounding Petitioner’s arrest gave witnesses
many opportunities to see Petitioner’s face on television and in newspapers
before the live lineup was held.
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failed to question the witness about his contacts with another witness, Jorge
Gallegos, related to identification of the suspect. Similarly, Mr. Gallegos was not
examined by the defense about multiple opportunities to view Petitioner’s face on
television; his contact with witness Mr. Duenas who was related to his girlfriend,
or others who knew Mr. Duenas, and their conversations about the case and
Petitioner’s arrest; the prejudicial impact of the media coverage to which he was
exposed; and failure of memory based on the length of time from the incident
(March 17, 1985), the preliminary examination approximately one year later, and
at trial four years later.
1083. Trial counsel failed to competently challenge the testimony of
Launie Dempster related to the Doi and Nelson incidents. There were unusual
circumstances surrounding her identification due to the fact that Ms. Dempster
delivered newspapers early in the morning when it was still dark. She failed to
timely report her sightings of a possible suspect but later identified Petitioner
after seeing his face on television. There was no adequate defense examination
of her sightings, multiple opportunities to view Petitioner’s face, or the basis for
identification, including length of time viewing the person’s face or particular
features of the face. There was no defense examination with respect to
individuals depicted in the composite drawing and lack of independent grounds
for the in-court identification. Moreover, Ms. Dempster’s credibility for failing
to report her sightings during the rash of killings was suspect, but trial counsel
failed to establish her motivation for failing to do so.
1084. In the Kyle incident, trial counsel failed to establish that stress, fear,
weapon focus, lighting, memory retrieval, and related factors rendered the
eyewitness identification unreliable even though the suspect description given to
The prosecution attacked the inadequate defense photographic evidence
in the Yu, Doi, Nelson, and Petersen incidents.
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police was unreliable and inaccurate. The witness recalled the suspect’s teeth
were straight and white, unlike Petitioner’s. Ms. Kyle participated in several pre-
lineup identification procedures but the defense failed to adequately question her
about the features of the suspects depicted in the photo spread and composite
drawings. Counsel also failed to establish likely contamination due to the
witness’s multiple contacts with law enforcement and numerous opportunities to
modify and change the description from the original description given to police.
1085. Similarly in the Dickman incident, there were numerous factors trial
counsel overlooked. Ms. Dickman’s initial suspect description varied in key
respects with her trial testimony; she first described the suspect as possibly white,
5’8” to 5’9” tall. At the trial nearly four years later, she identified Petitioner as
the suspect. Counsel failed to establish cross-racial factors, stress and fear,
unreliability, lack of independent grounds for in-court identification, memory
retrieval, and contamination due to preparation of a composite drawing, viewing
a lineup prior to Petitioner’s lineup, and multiple opportunities to see Petitioner’s
face on television and the print media.
1086. In the Khovananth incident, trial counsel failed to establish
unreliability of the identification by the eyewitness based on cross-racial factors,
the composite drawing, multiple opportunities to see Petitioner’s face, to meet
with police and discuss the suspect’s descriptions, stress, fear, and bias that
influenced the in-court identification. Counsel failed to explore in any detail the
impact of these factors on the witness’s testimony.
1087. In the Petersen incident, trial counsel failed to prove the viewing
conditions at night prevented the witness from making a reliable identification.
Moreover, counsel failed to examine the witness about the multiple opportunities
to see Petitioner’s face on television and in newspapers, and to discuss, modify,
or change her memory of the suspect based on contacts with police and her
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husband who had also been shot. There was no attempt by counsel to establish
lack of independent grounds for the in-court identification.
1088. In the Abowath case, the witness described the suspect as a light-
skinned caucasian male. Trial counsel did not examine the witness about the
composite drawing, viewing conditions, stress, fear, bias, and cross-racial factors
that rendered the in-court identification unreliable.
1089. In each incident, competent counsel would have demonstrated the
unreliability of the identification and the live lineup, the nature of media exposure
encountered by the eyewitnesses and their respective police contacts, including
viewing of composite drawings, conversations about Petitioner’s case and arrest,
transportation to and from the live lineup, intense feelings of bias and pressure to
make an identification, and lack of independent grounds to establish reliability of
the in-court identification.
1090. Competent counsel would have presented evidence of the actual
extent of media coverage exposure by each eyewitness, including media
exposure, thorough examination of police personnel involved in preparing careful
composite drawings, and unreliability of eyewitness identification. The evidence
would have established that the witnesses were not able to accurately and
independently identify Petitioner as the suspect.
1091. Trial counsel’s performance fell below the objective standard of
reasonableness because trial counsel failed to present several relevant eyewitness
factors to the jury, factors which were known by eyewitness identification experts
at the time of the trial in 1989. Trial counsel failed to present evidence on the
following relevant factors:
Voice Identification Accuracy - Several of the eyewitnesses in this case
identified Mr. Ramirez at the live lineup based on his voice. The research
on voice identification suggests that voice identification is even less
reliable, and fades over time even faster than face identification (cf.
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Clifford, 1983). For example, when Carol Kyle identified Ramirez at the
live lineup (156 RT 17972) she noted down on her witness card “I’m
absolutely positive. Even the infliction [sic] in his voice is the same, . . .”
Tainted Identification Procedure - In a live lineup, all individuals should
match the description given by the eyewitnesses (Luus & Wells, 1991) and
be presented such that extra attention is not drawn to the suspect
(Buckhout, 1974). To the extent that this does not occur in a lineup, the
lineup is tainted and biased. It appears that the 6 individuals in the live
lineup did not all match the eyewitness descriptions. Also, to the extent
that the witnesses noticed the bald spot on the back of Ramirez’s head at
the lineup and knew the circumstances of his arrest, this would have drawn
attention to the defendant and thus enhanced the bias of the live lineup.
Another factor that could have tainted the live lineup was the fact that
during the lineup, apparently with the witnesses present, a deputy sheriff
stood in front of the room and held up 2 fingers (see Ex. 85, Photograph of
Lineup). Mr. Ramirez was in position #2.
Bias of an In-Court Identification - An in-court identification is not a fair
and unbiased identification procedure because the eyewitnesses are not
given a set of similar looking individuals from which to select the
perpetrator. There is also the suggestion in court that the defendant must
be guilty because he is there. All in-court identifications at the Preliminary
Hearing and the Trial would have suffered from this bias. In addition, two
witnesses identified Mr. Ramirez for the first time in Court. Launie
Dempster first identified the defendant at the Preliminary Hearing (16 CT
4624-25) having not attended the live lineup. Jorge Gallegos first identified
Ramirez at the Preliminary Hearing. He did not attend the live lineup (4 CT
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1080, 1107). He had reported to police that he only saw the suspect as the
suspect drove away (3/18/85 Monterey Park Police interview of Gallegos).
Nonetheless, he did identify Ramirez at the Preliminary Hearing. (4 CT
1103).
Experimenter Expectancy Effect - The Experimenter Expectancy Effect is
a specific type of suggestive identification procedure. If the officer
administering a lineup knows which person is the suspect, the officer may
find it difficult to avoid giving subtle cues to the witness regarding which
individual is the suspect. This effect has been known in the literature for
several decades.
(Ex. 71, Declaration of Dr. Kathy Pezdek, pp. 137-39).
1092. In addition, trial counsel failed to argue to the jury in closing
argument the full extent of the evidence that would have demonstrated
eyewitness identification lacked sufficient credibility to warrant conviction in the
Okazaki/Hernandez, Yu, Doi, Nelson, Kyle, Dickman, Khovananth, Petersen, and
Abowath incidents. Counsel’s failure to effectively challenge the eyewitness
identifications in this case is further evinced by observations of several jurors
who sat through Petitioner’s trial. (See e.g., Ex. 120, B. Smith Dec., ¶ ¶ 3, 5 and
6; Ex. 119, F. Sendejas Dec., ¶ 3; Ex. 117, D. McGee Dec., ¶ 3; Ex. 118, J.
Muldrow Dec., ¶ 4.)
1093. The defense expert witness, Elizabeth Loftus, Ph.D., testified in
general terms about the factors involved in eyewitness identification. Trial
counsel failed to elicit critical expert testimony about the specific factors
involved in the identification process, and reliability and accuracy of the
witnesses’ identification in the nine incidents discussed above.
1094. Competent counsel would have presented expert testimony in each
of the incidents, Okazaki/Hernandez, Yu, Doi, Nelson, Kyle, Dickman,
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Khovananth, Petersen, and Abowath, regarding the length of time of the witness’s
observation, fear and stress at that time, the witness’s focus during the time of the
observation, such as weapon focus, and the impact of fear and stress on memory
and retrieval of information. An expert such as Dr. Loftus would also have
explained the factors that influenced identification at the live lineup, including
the impact of media coverage, bias and pressure to identify a potential suspect.
(Ex. 37, Declaration of Dr. Elizabeth Loftus). The expert would have explained
other factors as well, such as the impact of the crowded lineup and the property
lineup held at the same time.
An adequate explanation of the facts and circumstances surrounding
identification is critical to the jury’s understanding of the
identification process.
. . . I was not asked to render an opinion about the facts and
circumstances of eyewitness identification. If I had been asked, I
would have rendered an opinion based on the following:
(a)
drawings prepared by law enforcement with the assistance of
eyewitnesses;
(b)
inconsistencies in physical descriptions of the
suspect given by eyewitnesses;
Procedures employed during preparation of composite
(c)
massive publicity following Petitioner’s arrest on
August 31, 1985, including
extensive television coverage
of Petitioner’s face; and
(d)
the impact of post-event information on eyewitness identification, including
5, 1985, pretrial live lineup and simultaneous property lineup, and multiple
viewing of Petitioner in court, which had the potential to alter, supplement, or
contaminate the witnesses’ recollection.
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In my opinion, expert testimony pertaining to the above facts and
circumstances was important for the jury to consider in assessing the
credibility of eyewitness identification evidence.
(Ex. 37, Declaration of Dr. Elizabeth Loftus, pp. 1267-68). Expert testimony
about the unique factors in Petitioner’s case was crucial evidence for the jury to
consider in assessing credibility of eyewitness testimony.
1095. A competent examination of an expert witness that adequately
explores the individual factors that influence identification evidence, such as
length of opportunity to view the suspect, race of the witness and suspect,
weapon focus, fear and stress, and memory retrieval, is set forth in the deposition
given by Dr. Loftus in a criminal prosecution in the State of South Carolina.
(Ex. 40, Deposition of Elizabeth Loftus, Ph.D., in South Carolina v. John Boyd
Frazier, 02/11/2000).
1096. In failing to properly and adequately test the prosecution’s
The jury was misinformed as to the relevant criteria to consider with respect to
the factors affecting reliability and accuracy of identification evidence in nine
incidents, and thus had no basis for a verdict more favorable to Petitioner.
1097. Trial counsel failed to explain to the jury the critical flaws in
eyewitness testimony, and thus failed to rebut the prosecution’s misstatements
and misrepresentations of the evidence in closing argument. Trial counsel failed
to request appropriate pinpoint instructions related to credibility of identification
testimony, including identification made at the live lineup and the impact of
extensive media coverage of Petitioner and his case. Counsel’s failures deprived
Petitioner of his fundamental rights to a fair trial and reliable determination of
guilt and penalty.
1098. After reviewing the eyewitness identification evidence presented in
this case, Dr. Kathy Pezdek, an expert on eyewitness memory, found as follows:
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“[g]iven the strong reliance on eyewitness evidence in this case - the fact that the
prosecutor’s eyewitnesses linked Petitioner to nine of the sixteen incidents - it is
my opinion that it was ineffective for defense counsel not to have presented a
more competent eyewitness defense.” (Exhibit 71, Declaration of Dr. Kathy
Pezdek, p. 140).
1099. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1100. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
406Page 431 Page ID #:
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 17:
PETITIONER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND TO A FAIR AND RELIABLE
DETERMINATION OF GUILT AND PENALTY BY COUNSEL’S
PREJUDICIALLY DEFICIENT PERFORMANCE: FAILURE TO
CHALLENGE THE PROSECUTION’S CASE
1101. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XII of the June 2004 petition for writ of
habeas corpus, although it includes additional factual allegations. Petitioner will
present the claim with the additional factual allegations to the California Supreme
Court in an exhaustion petition he will file no later than March 17, 2009.
1102. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1103. Those facts and allegations set forth elsewhere in this petition, and
the claims of constitutional violations and accompanying exhibits, are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication.
1104. Petitioner’s convictions and sentence of death were rendered in
violation of Petitioner’s rights to a fair and impartial jury, to a reliable, fair, non-
arbitrary, and non-capricious determination of guilt and penalty, to the effective
assistance of counsel, to present a defense, to confrontation and compulsory
process, to the enforcement of mandatory state laws, to a trial free of materially
false and misleading evidence, and to due process of law as guaranteed by the
407Page 432 Page ID #:
Fifth, Sixth, Eighth and Fourteenth Amendments of the federal constitution
because Petitioner’s trial counsel rendered constitutionally deficient
representation at all critical stages of the criminal proceedings.
1105. Trial counsel unreasonably failed to conduct a timely or adequate
investigation of the potential guilt and penalty phase issues, did not develop or
present a coherent trial strategy, and were unable to make informed and rational
decisions regarding potentially meritorious defenses and tactics. Trial counsel’s
errors and omissions were such that a reasonably competent attorney acting as a
diligent and conscientious advocate would not have performed in such a fashion.
Reasonably competent counsel handling a capital case at the time of Petitioner’s
trial would have known that a thorough investigation of the prosecution’s
theories of guilt, independent analyses of the physical evidence supporting those
theories, and a thorough investigation of potential defenses was essential to the
development and presentation of a defense at trial. Reasonably competent
counsel also would have recognized that a thorough investigation of Petitioner’s
background and family history, including, but not limited to, Petitioner’s medical,
mental health, academic, and social history, was essential to the adequate
preparation of both the guilt and penalty phases.
1106. Counsel’s failures to investigate adequately and present defenses and
protect Petitioner’s statutory and constitutional rights prejudiced the defense. It
is reasonably likely that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
1107. Trial counsel unreasonably and prejudicially failed to investigate,
develop, and present a coherent trial strategy to challenge the multiple charges of
murder, attempted murder, burglary, rape, oral copulation, sodomy, and multiple
special circumstances. Instead of undertaking a reasonable investigation of
potential defenses to these charges, trial counsel abdicated their duty to
investigate and present a defense at trial, conceded the truth of much of the
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prosecution’s evidence, and failed to challenge the prosecution’s case with
respect to many of the charges. Reasonably competent counsel would have
investigated and developed possible defenses to the charges, including the
defense that Petitioner (1) was not present at the crime scenes; (2) did not shoot
or kill the victims; (3) did not act with intent to kill; or (4) suffered from impaired
mental functioning that precluded him from forming the requisite mental state to
commit capital murder. (Ex. 1, Guideline 11.41.1.) See, e.g., (Terry) Williams v.
Taylor, 529 U.S. 362, 396 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (defense
counsel in a capital case has an “obligation to conduct a thorough investigation of
the defendant’s background”); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.
2000) (“To perform effectively in the penalty phase of a capital case, counsel
must conduct sufficient investigation and engage in sufficient preparation to be
able to ‘present[] and explain[] the significance of all the available [mitigating]
evidence.’”); Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999) (“[i]t is
imperative that all relevant mitigating information be unearthed for consideration
at the capital sentencing phase”); Stouffer v. Reynolds, 168 F.3d 1115, 1167 (10th
Cir. 1999) (“[i]n a capital case the attorney’s duty to investigate all possible lines
of defense is strictly observed”) (emphasis added); Bell v. Ohio, 438 U.S. 637,
S. Ct. 2977, 57 L. Ed. 2d 1010 (1978). As a result, counsel provided ineffective
assistance.
1108. Trial counsel unreasonably and prejudicially failed to conduct a
complete and thorough investigation of possible defenses to the charged crimes
and special circumstances. Trial counsel failed to properly challenge admission
of Petitioner’s inherently unreliable statements and police seizure of evidence.
1109. Trial counsel unreasonably and prejudicially failed to investigate and
challenge the prosecution’s theory that Petitioner was present at the crime scenes
and participated in the crimes. Reasonably competent counsel would have
investigated, developed, and presented evidence and argument to the jury
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supporting the conclusion that Petitioner was not culpable of the crimes for which
he was convicted.
A.
Introduction
1110. At trial, counsel were unable to agree among themselves about
decisions in Petitioner’s case. (See 178 RT 20789-90.) Counsel failed to raise
reasonable and adequate defenses to the 43 charged offenses, or to the uncharged
Monrovia burglary. Through their incompetent representation, the defense failed
to challenge critical evidence in support of the prosecution’s case: the uncharged
Monrovia burglary,79 and the shoe print impressions and ballistics evidence.80 In
nine incidents (Zazzara, Doi, Bell/Lang, Cannon, Bennett, Nelson, Khovananth,
Abowath, and the uncharged case), trial counsel failed to challenge or refute the
testimony of the prosecution’s unqualified, inexperienced shoe print witness. In
eight incidents, ballistics evidence went unchallenged. The testimony of the
prosecution’s firearms expert attempted to link the Okazaki homicide to those of
Yu and Kneiding; attempted to link the Zazzara homicide to the Khovananth
incident; attempted to link a Jennings semi-automatic pistol that fires .22-caliber
long-rifle ammunition81 to the Doi case; and attempted to link the Petersen and
Abowath incidents. Defense counsel failed to competently challenge this
evidence.
See 210 RT 24225 (closing argument).
See 210 RT 24197, 24201, 24224-24225, 24228-29 (closing argument).
In this context, “long-rifle ammunition” refers to ammunition of a
designated length and weight that is longer and heavier than “short-rifle”
ammunition.
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B.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the State’s Evidence in the Vincow
Incident, Counts 1-2 (burglary, murder, burglary-murder special
circumstance)
1.
1111. On June 28, 1984, the apartment of Jennie Vincow was broken into
The Prosecution’s Case
and ransacked, and Vincow was killed. Entry was gained through a window near
the front door. The victim’s throat was slashed; a coroner’s investigator opined
at trial that Vincow may have been sexually assaulted; however, no physical
evidence supported this assertion, except for the investigator’s observation that
Vincow’s girdle was pulled down and her dress partially lifted. (143 RT 16402-
04.) Deputy medical examiner Joseph Cogan estimated Vincow’s time of death
as within two or three hours of 2:00 p.m. (144 RT 16588.)
1112. According to Los Angeles County Deputy Sheriff Hannah Woods, a
partial fingerprint found on the window screen matched Petitioner’s.
1113. In closing argument, the prosecutor emphasized that Petitioner was
guilty of burglary murder by virtue of his entry to commit theft, even if nothing
in the apartment had been taken. (204 RT 23663.) The prosecutor urged
conviction based upon fingerprint identification. (204 RT 23664-65.)
2.
1114. Daniel Hernandez argued outside the presence of the jury that one of
Defense Evidence
the victim’s sons, Manny Vincow, had a motive to kill his mother.83 The court
rejected the theory after the prosecution represented to the court that Manny
Palm print and shoe print evidence allegedly linked Petitioner to the
May 9, 1985 uncharged Monrovia burglary.
The defense failed to litigate and obtain a ruling as to the viability of a
third-party culpability defense before trial.
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Vincow was in New York at the time of the killing, and the defense had been
provided with discovery of that fact. (142 RT 16213-15.) The defense also
failed to make an adequate offer of proof that Jack Vincow had killed his mother.
(142 RT 16235-37.)
1115. Trial counsel did not introduce any evidence challenging the
Reynaldo Clara regarding the age and duration of the latent prints found at the
scene. (143 RT 16392.)
1116. The defense offered only the testimony of forensic pathologist Dr.
Werner Spitz regarding time of death. (191 RT 22450-543)
3.
The Defense Failed to Competently Challenge the Charges
1117. Testifying for the defense, Dr. Spitz attempted to establish the time
of death was consistent with a defense theory that the victim’s son, Jack Vincow,
may have killed her. On cross-examination, Dr. Spitz admitted having never seen
photographs of the victim that were relevant as to the time of death. (
RT 22540.) As a result of counsel’s failure to adequately prepare their expert
witness, the prosecution succeeded in challenging and impeaching Dr. Spitz’s
testimony as to the time of death. (206 RT 23700-24.)
1118. As a result of trial counsel’s failures, no affirmative evidence was
introduced on Petitioner’s behalf with respect to fingerprint evidence, third-party
suspect(s), or mental state.
1119. Trial counsel failed to present a competent and adequate defense to
the incident which occurred nearly nine months before the March 17,
incident. The defense failed to challenge or refute the only physical evidence
linking Petitioner to the crime: the fingerprint on the window screen. They did
not present exculpatory evidence based upon the presence of other, unidentifiable
prints on the same window screen. (210 RT 24186.)
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1120. Standing alone, it was unlikely that the Vincow case would have
resulted in conviction. The dissimilarities between this case and the other
incidents would have led a reasonable juror to conclude the state overreached in
its efforts to link Petitioner to all of the cases. There was a lengthy period of time
between the 1984 Vincow incident and the 1985 crimes. The Vincow case did
not fit the prosecution’s assertion of a “pattern.” This was the only incident
involving the daytime death of a lone woman by means of stab wounds and the
only charged incident in which a partial fingerprint was identified as Petitioner’s.
No property from Vincow’s apartment was recovered. (Ex. 40, Declaration of
Steve Strong, dated 06/11/2004.)
1121. Trial counsel failed to investigate, develop, and present expert
testimony regarding fingerprint evidence or the significance of other prints found
at the scene.84 The defense failed to object, challenge, or request sanctions for the
prosecution’s failure to preserve the prints. At a pretrial hearing, trial counsel
sought sanctions for the prosecution’s failure to preserve evidence, i.e., the
unidentifiable prints on the window screen at the Vincow apartment. (
RT 3225-27.) At trial, the defense failed to challenge the unidentifiable prints
through cross-examination of the prosecution’s latent print technician, Reynaldo
Clara, the print examiner, Deputy Woods, or the victim’s son, Jack Vincow.
Trial counsel failed to challenge the reliability of partial fingerprint comparison
Fingerprint examiner, Ron Smith, has been retained by federal habeas
counsel to review the fingerprint evidence introduced against Petitioner at trial;
however, he requires the release of the fingerprint exhibits to his care in order to
do so. (See Ex. 74, Declaration of Ron Smith.) Petitioner has filed a request with
the Superior Court to release the exhibits to Mr. Smith’s care; the government has
opposed Petitioner’s request.
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and identification during cross-examination of the prosecution’s expert.85 (See
175 RT 20507-11.)
1122. The defense failed to argue against the prosecution’s case and raise a
reasonable doubt about Petitioner’s guilt. The jury questioned the unidentifiable
fingerprints during deliberations. At the outset of their protracted deliberations,
the jury asked the court for a definition of unidentifiable fingerprints.
What is the legal definition of an unidentifiable fingerprint? Is it
because there is not enough of a print to make an I.D. or because the
print is not a part of the records the police have with which to make
a comparison.
(XXIX CT 8609.) Thus, the defense should have explained to the jury the
significance of unidentifiable prints and argued that the prints were not
Petitioner’s.
1123. Trial counsel failed to object to the prosecutor’s misconduct with
respect to the fingerprint evidence during closing argument. The prosecution
effectively shifted the burden of proof to the defense to prove when Petitioner’s
fingerprints were left at the scene.
And there is no evidence that the defendant was ever at that location
at any time other than this time when the screen upon which his
fingerprints were located was found inside.
(204 RT 23665.)
See Ex. 23 (Article entitled “Letter from the National Institute of Justice
Regarding the Solicitation of Forensic Friction Ridge (Fingerprint) Examination
Validation Studies” July 2000, Vol. 2, Number 3 (State Habeas Exhibit 11).)
414Page 439 Page ID #:
1124. The defense failed to investigate, develop, and present competent
evidence regarding time of death.86 Dr. Spitz testified only about the Vincow and
Yu homicides. The prosecution impeached Dr. Spitz because of his inadequate
preparation. Counsel lacked even the most basic skills to competently prepare
their witnesses, develop defense strategy, properly ask questions, and lay the
necessary foundation for the expert’s opinion. 87 Because counsel had failed to
provide Dr. Spitz with the Vincow autopsy photographs, Spitz was unable to
render an opinion about the lack of distinctive features of the wounds. (
RT 22539-40.)
1125. The defense failed to investigate, develop, and present a third-party
defense. In order to assert a third-party culpability defense, counsel was required,
at a minimum, to properly investigate potential suspects and make an adequate
offer of proof in a timely manner. Counsel did neither, with the result that no
third-party evidence was admitted. Counsel failed to lay a proper foundation to
impeach Jack Vincow regarding his prior mental hospitalization (142 RT 16233-
40); his less than enthusiastic cooperation with the police investigation (
RT 16247-50); and his unwillingness to take a polygraph examination (
RT 16256, 16259-62).
1126. Ultimately, counsel failed to present a defense to the charges. In
closing argument, after conceding the fingerprint evidence, counsel offered a
wholly inadequate basis for acquittal: that Petitioner’s fingerprints found on the
window screen were an insufficient basis for conviction because his fingerprints
were not found inside the apartment. (210 RT 24185-86.)
The only conceivable relevance of the time of death was to show that
Jack Vincow had an opportunity to commit the crime. However, the defense
failed to offer any third-party culpability evidence.
Dr. Spitz mistakenly testified that he evaluated photographs and autopsy
reports pertaining to all of the murder charges. (191 RT 22452.)
415Page 440 Page ID #:
1127. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
In addition, counsel failed to conduct a reasonable investigation that would have
permitted them to make a reasonable tactical decision to forego such defenses in
favor of a defense based on innocence.
C.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
Murder, Murder, Burglary-Murder Special Circumstance)
1.
1128. On March 17, 1985, Maria Hernandez entered the garage of her
The Prosecution’s Case
condominium in Rosemead, where an assailant pointed a gun at her and shot her
in the right hand. As she fell to the ground, the assailant pushed past her and
opened the door to her residence. Hernandez ran out of the garage and saw the
assailant by her front door. The assailant pointed a gun at her but did not fire the
weapon. Hernandez went inside her residence and found her roommate, Dale
Okazaki, lying on the floor; Okazaki had been shot in the head.
1129. Maria Hernandez identified Petitioner as her assailant at a live lineup
conducted September 5, 1985, at Los Angeles County Jail. She subsequently
identified Petitioner at pretrial hearings and at trial. (203 RT 23601)
1130. A baseball cap with the letters AC/DC was found on the garage
floor. Following his arrest, Petitioner allegedly hummed a song by the rock
group AC/DC. He allegedly said he was a killer and deserved to die. (171 RT
19916-19; 19944.)
416Page 441 Page ID #:
1131. A firearms examiner testified that the .22-caliber firearm with which
Okazaki was shot was also used in the Yu and Kneiding homicides. Deputy
Sheriff Edward Robinson opined that projectiles recovered from all three scenes
were fired from the same weapon.
1132. The prosecutor argued in closing argument that a burglary was
committed even though no evidence was presented that property was taken.
[O]nce he’s through the door, the burglary is committed, and the fact
that it did not go as he planned . . . the burglary has still been
committed.
(206 RT 23719-20.)
1133. The prosecutor also argued that the defense undermined its own case
by failing to prove representations made in opening statement that the garage
door closed in one to two seconds, thus depriving Hernandez of the opportunity
to identify the suspect (203 RT 23599) and that sweat on the cap found in the
garage did not originate from Petitioner (203 RT 23601-02).
2.
1134. Trial counsel sought to impeach Maria Hernandez’s identification
Defense Evidence
based on a prior inconsistent statement and lack of independent basis for the in-
court identification.88 (210 RT 24195.) In closing argument, counsel argued that
Elizabeth Loftus testified generally about the effects of stress on
eyewitness identification. However, once again the prosecution undermined the
expert’s testimony because of trial counsel’s failure to investigate and prepare
their expert about relevant issues in the case. Trial counsel failed to present
evidence about improprieties inherent in eyewitness identification and lineup
procedures. (See Ex. 37, E. Loftus Dec.)
Dr. Kathy Pezdek, an eyewitness expert retained by federal habeas counsel,
has further examined the trial record in Petitioner’s case as it relates to
eyewitness identification issues. Dr. Pezdek details the ineffectiveness of
Petitioner’s trial counsel in challenging identification evidence as well as the
ineffective use of the eyewitness identification expert at trial. (See Ex. 71, K.
417Page 442 Page ID #:
Hernandez was under great stress at the time she observed the suspect. (
RT 24196-97.)
1135. With respect to ballistics evidence, trial counsel offered no evidence,
instead stating: “[Y]ou have to assume that the [prosecution’s] ballistics evidence
is correct . . . .” (210 RT 24197.) Counsel unreasonably conceded evidence that
the prosecution used to link Petitioner to other incidents.
3.
1136. The defense presented no affirmative evidence on Petitioner’s behalf
The Defense Failed to Competently Challenge the Charges
with respect to ballistics evidence, mental state, or the circumstances of the
eyewitness identification and the September 5, 1985, live lineup.
1137. Trial counsel failed to investigate, develop, or present evidence to
refute the prosecution’s ballistics findings connecting three unrelated murders.
Trial counsel failed to present any evidence with respect to ballistics testing,
accuracy of scientific findings, chain of custody, or qualifications and reliability
of the examiners who tested the projectiles and weapons. Expert testimony
would have challenged the conclusions reached by Deputy Sheriff Edward
Robinson because law enforcement analysis conducted by three different
examiners was inaccurate and unreliable.
1138. Firearms expert Paul Dougherty explains that the law enforcement
work up was inaccurate and inadequate. In reviewing the work up performed in
this case, he found that “there are internal conflicts in the written reports with
regard to the testing conducted, such as condition of the bullets.” (Ex. 35,
Declaration of Paul Dougherty, dated 06/12/2004, ¶ 4.) In Dougherty’s opinion,
all of the ballistics evidence should be retested. (Id., ¶ 5.) The State, in its zeal to
convict Petitioner, presented evidence that was unreliable. “It is impossible to
say with certainty whether the findings . . . are accurate. [T]here are internal
Pezdek Dec.)
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conflicts in the written reports with regard to the testing . . . such as the condition
of the bullets.” (Id., ¶ 4.)
1139. Trial counsel failed to adequately cross-examine Hernandez
regarding lack of an independent basis for her in-court identification. Trial
counsel failed properly to lay the foundation with respect to factors that influence
and contaminate eyewitness identification, i.e., massive media exposure of
Petitioner’s face, pressure to make an identification, and lack of reliability due to
stress, fear, and limited viewing of the suspect. (Ex. 37, E. Loftus Dec.) (See also
Ex. 71, K. Pezdek Dec.)
1140. Competent counsel would have argued to the jury specific factors set
forth in CALJIC No. 2.92 related to bias, stress, poor lighting, limited viewing,
and other factors that influence the accuracy of eyewitness identification. (XXIX
CT 8538-39.) However, the defense failed to competently establish that
Hernandez’s eyewitness testimony was unreliable. In closing argument trial
counsel weakly observed: “Hernandez’s identification of Petitioner was of
insufficient certainty to tie him to the crime.” (210 RT 24197.)
1141. In his opening statement, trial counsel claimed to have proof that the
cap found at the scene was not Petitioner’s. However, incompetent counsel had
not provided the cap for testing before trial, and there was no evidence available
regarding test results. (Ex. 44, Declaration of Brian Wraxall, dated 05/25/2004.)
1142. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
In addition, trial counsel failed to conduct a reasonable investigation that would
419Page 444 Page ID #:
have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
D.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
Yu Incident, Count 6 (murder)
1.
1143. On March 17, 1985, shortly after the Hernandez/Okazaki incident
The Prosecution’s Case
and several miles away, Tsai-Lian Yu was found unconscious in the street in
Monterey Park. She had been shot twice; there was evidence of stippling around
one of the wounds. She was pronounced dead at a nearby hospital.
1144. Eyewitness Jorge Gallegos testified that he saw two cars stopped on
a street where he was parked. Gallegos saw a man trying to pull a woman from
one of the two cars. He thought they were having a “lover’s quarrel.” He heard
someone call for help. He did not hear any shots. He saw an Asian woman
crawling on the ground. Gallegos went to her aid. At trial, Gallegos identified
Petitioner as the man he saw at the scene.
1145. Joseph Duenas was in his residence when he heard a woman scream
for help. He saw a man and a woman across the street. The woman screamed
again and held onto the man’s jacket. The man got in a car and left. Duenas
called police. At trial, he was unable to positively identify Petitioner as the man
he saw at the scene.
1146. The prosecution introduced ballistics evidence in an attempt to link
the Yu incident to the Hernandez/Okazaki and Kneiding incidents.89 Deputy
Sheriff Robinson testified that projectiles recovered from all three scenes were
The defense theory that Petitioner was not the perpetrator necessarily
entailed refuting ballistics evidence linked him to other incidents; yet, the defense
presented no ballistics evidence to refute the prosecution’s case.
420Page 445 Page ID #:
fired from the same .22-caliber firearm. Robinson could not determine the
manufacturer and exact type of firearm used in the incidents.
1147. In closing, the prosecutor pointed out that the defense had failed to
prove matters raised in opening statement: specifically, that a silver medallion
found at the scene would be shown to belong to an assailant (not Petitioner); that
Yu was involved in a “lover’s quarrel”; that Gallegos had identified a car from
Pomona that had nothing to do with the shooting; and that Yu was shot while
seated in her car. (203 RT 23603-07.)
1148. Earlier in the trial, the court asked Petitioner to remove his
sunglasses. Petitioner refused. The prosecutor argued in his closing argument
that Petitioner’s refusal to remove his sunglasses when the prosecutor asked
Gallegos if he could identify Petitioner in court as the man he saw amounted to
consciousness of guilt.
You might conclude from that that he didn’t want to give Mr.
Gallegos any more opportunity to identify him than was necessary.
(206 RT 23743.)
1149. The prosecution attacked defense witness Dennis Lew and
photographs Lew had taken of the crime scene. The photographs failed to
simulate the approximate lighting at the time of the incident. (203 RT 23605.)
The prosecution attacked the defense theory that the crime was manslaughter
because it was inconsistent with defense counsel’s contention that Petitioner was
not present at the scene and did not kill the victim; thus there was no plausible
support for a verdict less than murder. (211 RT 24346-47.)
2.
1150. The defense theory was that Petitioner was not present at the scene
Defense Evidence
and did not shoot Ms. Yu.
1151. Dr. Werner Spitz testified regarding the circumstances of the Yu
shooting and rendered an opinion as to the nature of the injuries. On cross421Page 446 Page ID #:
examination, Dr. Spitz participated in a demonstration with the prosecution that,
in effect, undermined his own testimony that Yu could have been shot while in
the driver’s seat. On cross-examination, the prosecutor also impeached Dr.
Spitz’s testimony regarding Yu’s injuries by establishing that Dr. Spitz was
unfamiliar with crime scene and autopsy photographs. (191 RT 22471-512.) The
defense had failed to prepare Dr. Sptiz by providing him with the relevant
photographs. (191 RT 22470.) In closing, the prosecution denigrated Dr. Spitz’s
testimony as “worthless.” (211 RT 24346.)
1152. Dennis Lew photographed the scene in an effort to show that the
lighting conditions impaired the eyewitnesses’ ability to identify a passerby from
inside a parked vehicle. The prosecution assailed Mr. Lew’s testimony, calling
the photographs inaccurate and unreliable. (See 206 RT 23756-63 (closing
argument).)
1153. In closing, defense counsel inexplicably and unreasonably
highlighted the defense’s failure to challenge the prosecution’s ballistics
evidence: “I didn’t have any evidence to prove that it was a different gun,
therefore you didn’t hear any. [¶] I certainly would have brought it in if I had,
you could rest assured of that.”90 (210 RT 24201.)
3.
1154. The defense failed to defend against the prosecution’s case by failing
The Defense Failed to Competently Challenge the Charges
to present competent evidence that: (1) the identification by eyewitness Gallegos
was inherently suspect; (2) ballistics evidence was inaccurate and less than
conclusive proof of Petitioner’s guilt; (3) Petitioner’s refusal to remove his
sunglasses in order for witness Gallegos to view him at trial did not evince a
The defense argued alternatively that Petitioner was guilty of
manslaughter: “Lover’s quarrel came out a couple of times from both witnesses.
Maybe something to it. There may be something to the way they characterize it.”
(210 RT 24200-01.)
422Page 447 Page ID #:
consciousness of guilt; and (4) circumstances of the shooting supported a
manslaughter verdict.
1155. In closing argument, the prosecution emphasized the defense’s
failings. (See 206 RT 23735-40, 23745-86, 23788-826 (closing argument).) The
prosecutor argued: “[B]ut you do know that it was with the same gun that
murdered Ms. Okazaki, and the same gun that later murdered the Kneidings.”
(206 RT 23735-36.) The prosecutor recalled that in response to defense
questioning of Gallegos: “The court asked [Petitioner to stand up and take off his
sunglasses] and the defendant, ‘no,’ he said. [¶] You might conclude from that
that he didn’t want to give Mr. Gallegos any more opportunity to identify him
than was necessary. [¶] I think that is a reasonable conclusion.” (206 RT 23743.)
1156. The defense failed to competently investigate, develop, and present
evidence that Gallegos’s identification of Petitioner as the assailant was
unreliable. Gallegos’s identification was unreliable based on his limited viewing
of the assailant, the poor lighting conditions, and the stress of the events. The
defense failed to properly present evidence regarding these factors that adversely
affected his eyewitness identification.
1157. The defense failed to investigate, develop, and present competent
photographic evidence of the scene in order to establish that Gallegos’s
identification was less than reliable. Competent evidence would have
demonstrated that night-time lighting impaired the witness’s ability to make an
accurate and reliable eyewitness identification while seated inside a vehicle. The
defense photographs did not accurately depict the conditions or visibility.
1158. The defense failed to investigate, develop, and present evidence to
refute the prosecution’s ballistics evidence. No evidence was introduced on
Petitioner’s behalf to contest the prosecution’s findings with respect to accuracy
of the comparison of projectiles in the Okazaki and Kneiding cases. The defense
failed to competently examine the prosecution witness about the testing and
423Page 448 Page ID #:
findings made in each instance. Defense counsel limited his cross-examination of
Deputy Sheriff Edward Robinson to generic information about ballistics testing
and findings. (172 RT 20081-104.) Mr. Clark was unprepared to challenge the
prosecution’s case. (Ex. 16, R. Clark Dec., ¶ 6.)
1159. Counsel incompetently prepared defense expert Dr. Spitz to testify
by failing to provide him with vital crime scene and autopsy records. The
defense elicited an uninformed opinion about the cause of death.
1160. Additionally, the prosecutor impeached defense photographer
Dennis Lew regarding his less than accurate depiction of the scene. Competent
counsel would have presented evidence of the lighting at or near the time of the
incident to accurately depict the viewing conditions.
1161. During his preliminary evaluation, firearms expert Paul Dougherty
found that faulty testing protocol rendered the evidence unreliable. (See Ex. 35,
P. Dougherty dec., ¶¶ 4-5.) His opinion regarding validity of the testing results
provides support for relief. Had trial counsel investigated and presented evidence
challenging the accuracy and reliability of firearms evidence – instead of
conceding the evidence – the result would have been more favorable as there
would have been a reasonable doubt regarding the prosecution’s evidence.
1162. Counsel’s failure to challenge the firearms evidence allowed the
prosecution to link Petitioner to both the Okazaki and Kneiding incidents. An
alternative defense based on mental state was supported by the observations of
bystanders who reported witnessing a quarrel between two parties --
circumstances of the offense which would have supported a finding of
manslaughter. However, trial counsel failed to investigate and develop this
crucial mental state evidence. Failure to investigate alternate defenses does not
excuse as tactical a decision not to present a readily available line of defense.
attorney’s failure to consider alternate defenses constitutes deficient performance
424Page 449 Page ID #:
when the attorney ‘neither conduct[s] a reasonable investigation nor ma[kes] a
showing of strategic reasons for failing to do so.’” Rios v. Rocha, 299 F.3d 796,
805 (9th Cir. 2002). The allegations in the petition and supporting
documentation show counsel made no reasoned investigation of reasonable
alternate defenses to the charges. Absent a proper and adequate investigation, the
decision not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
1163. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
In addition, trial counsel failed to conduct a reasonable investigation that would
have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
E.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1164. On March 28, 1985, Vincent and Maxine Zazzara were found dead
The Prosecution’s Case
inside their home. Vincent Zazzara had been shot in the head with a small-caliber
gun. Maxine Zazzara had a gunshot wound to her neck and check. Her eyes had
been gouged out. Stab wounds to the eyes and abdomen appeared to be
postmortem injuries.
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1165. Shoe prints found at the scene matched an Avia shoe size 11-½ to
12. Ballistics evidence determined that projectiles were fired from the same .22-
caliber firearm as in the Khovananth case.
1166. In closing, the prosecutor urged that Petitioner was the assailant
based on throat wounds; ligature marks; Avia shoes, size 11-½ to 12; and
testimony that the weapon used in the Zazzara crimes was the same .22-caliber
gun used in the Khovananth case. (207 RT 23839-41.) The prosecution also
argued that the defense failed to prove matters raised in opening statement:
specifically, that shoe print impressions of Avia and Van shoes were found in the
front of the house; evidence the modus operandi was not unique, and evidence
that unidentified fingerprints were not Petitioner’s. (203 RT 23611-14.)
2.
Defense Evidence
1167. Trial counsel presented no evidence on Petitioner’s behalf.
1168. In closing argument, counsel argued that “Zazzara was the first place
that the Avia showed up . . . .” (210 RT 24224.) The defense argued that the
prosecution linked Petitioner to Zazzara based upon palm prints and an Avia shoe
print found at the May 9, 1985, uncharged Monrovia burglary. (210 RT 24224.)
Trial counsel stated that Petitioner “is not a choir boy.” (Id.) Trial counsel urged
that “when you find this man [at a crime scene], you should find no people. That
is the way [Sandra Hotchkiss and Petitioner] operated.” (210 RT 24224.) The
defense unreasonably, and inexplicably, conceded that Petitioner committed the
Monrovia burglary: “No question he was there. [¶] It was a typical Ramirez
burglary.” (210 RT 24225.)
3.
The Defense Failed to Competently Challenge the Charges
1169. Trial counsel failed to investigate, develop, and present evidence to
refute the prosecution’s evidence. The defense presented no evidence or expert
testimony to challenge the prosecution’s physical and forensic evidence; defense
counsel presented no evidence about third-party suspects; and they presented no
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evidence about Petitioner’s mental state. Nor did defense counsel present
evidence to refute the ballistics evidence introduced by the prosecution in an
attempt to link the Zazzara crimes to the Khovananth crimes.
1170. A competent defense expert could have testified that the conclusions
made by the prosecution’s criminalist, Burke, regarding Avia shoe prints were
inaccurate, unreliable, and misleading.
1171. No police investigation was conducted of Petitioner’s appearance,
clothing, or shoe size. There was no law enforcement follow-up investigation of
witnesses or potential suspects with respect to footwear.91 According to Lisa
DiMeo:
In the first case involving shoe print evidence, there were
Avia shoe prints – one right, one left, and several partial impressions
– observed in dry soil outside the residence. Photographs and casts
(approximately 12-12-½) were collected. The impressions were
consistent with many Avia shoes: Aerobics, All Sport/Court and
Basketball models, men’s and women’s styles, which exhibit a
convex dam inset that meets the flex joint. Models 252, 255 255W,
552R, 560, 565, 565W, 652, and 655 were eliminated based on heel
design. (See Avia chart attached to the declaration.)
In addition, a partial herringbone pattern was observed on a
bucket outside a window. However, contrary to accepted
professional standards and practice, there was no scale in the
photographs. A Van’s right shoe print also was recovered from soil
outside the scene.
By failing to challenge the shoe print identification, the defense allowed
the prosecution to make the argument that there was only one pair of size 11½–to–12 Avia shoes involved in the case.
427Page 452 Page ID #:
(Ex. 33, L. DiMeo Dec. dated 05/21/2004, ¶¶ 22-23.)1172. No defense evidence was presented with respect to nondistinctive
features of throat wounds. Counsel’s cross-examination was limited to the time
period in which the wounds were inflicted. (154 RT 17690-95.) A competent
defense expert would have testified that the prosecution’s case lacked distinctive
features of pattern evidence. (See Ex. 40, S. Strong dec.)
1173. Ms. DiMeo has found that two shoe impressions were Avia
Aerobics; however, she specifically found the prosecution’s evidence “incorrect”
with respect to size of shoe. (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s
supplemental declaration addresses discrepancies with respect to Gerald Burke’s
measurement of shoe impression evidence. DiMeo also found that “[a]ny shoe
exhibiting a similar herringbone pattern could have been the source of th[e]
partial print.” (Ex. 34, Supplemental Declaration of Lisa DiMeo, dated
11/10/2005, ¶ 17.) The defense unreasonably failed to present, through the
testimony of an expert such as DiMeo, available evidence about the large pool of
possible shoes and testimony regarding shoe measurement to challenge the
prosecution’s case. Competent counsel would have done so.
1174. Trial counsel failed to elicit evidence from the prosecution’s
witnesses or their own witnesses to show that the Zazzara incident lacked a
connection to the other charged crimes. Steve Strong’s opinion the crimes were
not related is based on his training and his analysis of modus operandi evidence,
as well as his consideration of physical evidence that went unchallenged by the
Lisa DiMeo, who has been retained by federal habeas counsel, requires
additional access to the shoe print evidence introduced against Petitioner at trial
in order to give even greater depth and detail to her findings and conclusions.
Petitioner has filed a request with the Superior Court to release the shoe print
evidence to Ms. DiMeo’s care; the government has opposed Petitioner’s request.
(See Ex. 75, Lisa DiMeo Dec. dated 12/12/2008).
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defense. (Ex. 40, S. Strong dec., ¶¶ 9-22.) Strong identified specific factors
signifying the lack of a distinctive pattern: the nature of the wounds, the location
of the crime scene, and the lack of fingerprint evidence. (Id., ¶ 20 (chart).)
Counsel failed to challenge the prosecution’s false and unreliable physical
evidence. Reasonable investigation of the case necessarily included an
investigation into third-party culpability. Petitioner has established that there was
evidence available to trial counsel with respect to several potential suspects,
including Manuel Hechevarria (also known as “Cuba”), Julio, and Sandra
Hotchkiss. These individuals admitted having committed crimes during the same
period as the charged crimes.93 (See Ex. 22, Los Angeles County Sheriff’s
Department - Supplementary Report, dated 09/11/1985 by Sgt. William S. Stoner
and Investigator Michael W. Griggs, p. 3.)
1175. Counsel failed to challenge the prosecution’s firearms evidence,
even though there was evidence of bullet distortion and lack of unique rifling
characteristics. (Ex. 35, P. Dougherty dec., ¶ 3.) Although three firearms
examiners generally were involved in firearms testing, only one examiner
testified at trial. Firearms expert Paul Dougherty has declared that the
prosecution’s test results are unreliable because of faulty testing results in certain
incidents. (Id.) At a minimum, Mr. Dougherty’s preliminary evaluation raises
serious questions about the validity of the prosecution’s evidence. Based on his
preliminary findings, a comprehensive examination of the evidence would likely
raise further questions about the reliability of the evidence. Trial counsel’s
Cuba claimed to have ended his involvement in residential burglaries by
November 1984; however, he was in possession of stolen property when
contacted by sheriff deputies on September 3, 1985. (Ex. 22, Los Angeles
County Sheriff’s Department - Supplementary Report, dated 09/11/1985 by Sgt.
William S. Stoner and Investigator Michael W. Griggs (State Habeas Exhibit
11I), p. 6.)
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failure to investigate, develop, and present evidence related to reliability of
testing procedures and accuracy of the evidence constituted ineffective
representation.
1176. Counsel’s failure to challenge shoe print and firearms evidence
prejudiced Petitioner. Trial counsel also unreasonably failed to investigate
available evidence that supported an alternative defense based on mental state.
Given Petitioner’s lengthy history of serious mental illness, impoverished living
conditions, illicit drug usage, and psychotic behavior at or near the time of the
offense, counsel were required, at a minimum, to investigate and develop mental
state evidence before reaching a decision regarding the theory of the case.
1177. As discussed above, counsel’s failure to investigate any alternate
defenses does not excuse as tactical a decision not to present a readily available
line of defense. See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure
to consider alternate defenses constitutes deficient performance when the attorney
‘neither conduct[s] a reasonable investigation nor ma[kes] a showing of strategic
reasons for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the
petition and the supporting documentation show counsel made no reasoned
investigation of alternate defenses to the charges. Absent a thorough and
adequate investigation, the decision not to present a reasonable alternate defense
was unsound and resulted in constitutionally deficient representation.
1178. Furthermore, trial counsel failed to investigate, develop, or present
any evidence with respect to alternative defenses based on lack of requisite
mental state due to Petitioner’s history of serious mental illness, neurocognitive
and neurological deficits, psychosis, mood disorders, mind-altering substance
abuse, and brain impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D.
Blumer, M.D.; R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J.
Wells, J.D., Ph.D.) In addition, trial counsel failed to conduct a reasonable
430Page 455 Page ID #:
investigation that would have permitted them to make a reasonable tactical
decision to forego such defenses in favor of a defense based on innocence.
F.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
Doi Incident, Counts 10-11 (burglary, murder, burglary-murder
special circumstance)
1.
1179. On May 14, 1985, William Doi suffered a gunshot wound to the
The Prosecution’s Case
head at his home in Monterey Park. His wife, Lillian Doi, sustained injuries to
her face and hand. Their home was ransacked. A shoe print was discovered
under the Doi’s front bedroom window. A bathroom window screen had been
removed. A blood-stained pillowcase was found in the bathtub.
1180. The prosecution introduced evidence in an attempt to show that a
bullet fragment recovered from William Doi had been fired from a Jennings
pistol, later recovered from ex-convict Jesse Perez on August 30, 1985.
1181. In closing, the prosecutor urged conviction based on Avia shoe
prints and ballistics evidence, including recovery of the .22-caliber Jennings
semi-automatic pistol. (211 RT 24375.)
1182. Ms. Launie Dempster testified that she delivered newspapers on
May 14, 1985, in Monterey Park. During her route, she saw a man sitting in a car
opposite the Doi residence. She later identified photographs of a car and stated
that Petitioner was the man she had seen sitting in the car, based on seeing his
face on television.
1183. Property purportedly stolen from the Doi residence on May 14, was identified by the Doi’s daughter, Linda Doi-Fick, at the September 5, 1985,
431Page 456 Page ID #:
property lineup.94 Felipe Solano, a “fence”, testified that he bought property from
Petitioner. In closing, the prosecutor told the jury that although Solano was
involved in receiving stolen property, the State would have to release Petitioner if
they wanted to prosecute Solano.95 (209 RT 24085.) The prosecution credited
Dempster for her supposed familiarity with the Monterey Park neighborhood,
despite the fact that her deliveries took place in the dark. (211 RT 24391.) The
prosecutor also argued that defense photographs of the neighborhood were
inaccurate. (208 RT 23959-61.)
2.
Defense Evidence
1184. Dennis Lew testified about lighting conditions at night on the street
in front of the Doi residence and photographs of the area.
1185. No other evidence was presented on Petitioner’s behalf.
1186. In closing argument trial counsel argued that Jesse Perez could not
be believed (210 RT 24173-79); that Felipe Solano lied about the stolen property
(210 RT 24181); and that recovery of property did not mean Petitioner was the
killer, absent his prints on the property. (210 RT 24243.)
3.
1187. Trial counsel did not mount a reasonable or adequate defense to the
The Defense Failed to Competently Challenge the Charges
charges. The defense did not present any evidence related to the origin of the
stolen property. The defense failed to challenge the physical evidence or
impeach Dempster about her sightings and eyewitness identification. (Ex. 37, E.
Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
1188. The defense failed to investigate, develop, or present evidence to
challenge the accuracy and reliability of the prosecution’s ballistics findings.
The Doi home had reportedly been burglarized a few weeks prior to the
incident.
The defense failed to object to the inflammatory remarks.
432Page 457 Page ID #:
(Ex. 35, P. Dougherty dec.) Moreover, the defense failed to investigate, develop,
and present evidence to challenge recovery and chain of custody of a Jennings
.22-caliber semi-automatic pistol. Mr. Perez claimed to have retrieved the
firearm from a friend in Tijuana, Mexico, more than three months after the Doi
shooting. (170 RT 19663-65.)
1189. The defense failed to present expert testimony challenging the
prosecution’s case with respect to the shoe print impressions.
1190. Photographs and casts were taken of two partial shoe impressions at
the scene. Concentric circles were noted on the impressions. However, the
questioned impressions were too poor to make any meaningful comparison. It
was not possible to exclude any Avia Aerobics, Basketball, Referee/Coach or All
Court Sport model, which exhibited a similar design to the partial questioned
impressions. (Ex. 33, L. DiMeo dec., ¶ 24.)
1191. The defense also failed to introduce reasonably competent evidence
to demonstrate the poor lighting conditions at the time that Dempster claimed to
have seen the suspect as well as other factors affecting reliability of her
identification. The defense photographs failed to depict accurately the viewing
conditions.
1192. Trial counsel unreasonably failed to introduce evidence to challenge
the prosecution’s assertion that the crimes were necessarily a series committed by
one person. (Ex. 40, S. Strong dec., ¶ 22.)
1193. Trial counsel failed to challenge the eyewitness testimony of Launie
Dempster. By failing properly to cross-examine this eyewitness regarding
lighting conditions, stress, fear, memory, multiple viewings, and her lack of
independent basis for identification, and by failing to properly prepare the
defense eyewitness identification expert, trial counsel deprived Petitioner of a
meaningful defense. As discussed, supra, the defense was obligated to prepare
433Page 458 Page ID #:
their expert to testify as to relevant factors that influence reliability of eyewitness
identification. This they consistently failed to do.
1194. Trial counsel improperly conceded firearms and shoe print evidence.
Counsel were obligated adequately to defend their client by challenging the
prosecution’s false and unreliable evidence. Petitioner has shown preliminary
review of firearms evidence in certain incidents to be unreliable. Mr. Dougherty
stated that the testing was faulty and inaccurate; the reliability of the test results is
in question. (Ex. 35, P. Dougherty dec., ¶ 4.) Based on the preliminary findings,
there are serious questions as to the validity of the prosecution’s evidence.
Competent counsel would have investigated, developed, and presented testimony
to challenge the reliability and accuracy of the firearms evidence.
1195. Lisa DiMeo found that “there were many possible models and sizes
of shoes that could have been identified from the shoe print impressions. Mr.
Burke’s testimony . . . was incorrect.” (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s
findings undermine the validity of the prosecution’s evidence as to size and
model of shoe:
[the two casts] represent a large possible pool of shoes as the source
of the impressions.
(Ex. 34, L. DiMeo suppl. dec., ¶ 8.) Shoe print evidence did not conclusively
link Petitioner to the incident. Petitioner has provided specific showing of
prejudice with respect to the individual incidents charged against him, including
false and unreliable physical evidence, unreliable eyewitness identification, and
lack of a reasonable defense theory of the case.
1196. Steve Strong’s declaration that the crimes were not related is based
on his training and analysis of lack of distinctiveness of modus operandi evidence
and consideration of physical evidence. (Ex. 40, S. Strong dec., ¶¶ 8-9.) Mr.
Strong has identified specific factors pointing to lack of distinctive pattern:
specifically, the nature of the wounds, the lack of fingerprints, and the location of
434Page 459 Page ID #:
the crime scene, all of which the defense failed to challenge. (Id., ¶ 17.) The
unreliability of the shoe print and firearms evidence introduced against Petitioner
further support s Mr. Strong’s findings.
1197. As previously discussed, counsel’s decision to forego investigation
of a mental health defense was neither reasonable nor informed. Having
conceded physical evidence of shoe print and firearms evidence, trial counsel
failed to investigate evidence to support an alternate mental state defense. Given
Petitioner’s lengthy history of serious mental illness, impoverished living
conditions, illicit drug usage, and psychotic behavior at or near the time of the
offense, counsel were required, at a minimum, to investigate and develop mental
state evidence before reaching a decision regarding the theory of the case.
1198. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
G.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1199. Between May 29 and June 1, 1985, two elderly women were
attacked in their home in Monrovia. Mabel Bell subsequently died; the cause of
death was head trauma. Florence Lang suffered head injuries, ligature marks on
The Prosecution’s Case
435Page 460 Page ID #:
both wrists, and bruising on the face. A treating physician also observed an
injury to the vaginal tissue.
1200. Physical evidence found at the scene included a shoe print
impression on a clock, found to be consistent with the concentric circle pattern of
an Avia shoe. Fabric marks were found on a telephone and clock, which
indicated they were handled by someone possibly wearing gloves. A star-circle
had been drawn on the wall over Lang’s bed. A relative identified a cassette tape
player stolen from the residence and later recovered from Felipe Solano.
1201. In closing, the prosecutor urged conviction based on an Avia shoe
print (207 RT 23868), identification of property stolen from the residence and
recovered from Felipe Solano (207 RT 23869), a pentagram found at the scene
(207 RT 23873), the use of restraints (207 RT 23888), fabric glove impressions
(207 RT 25868), and failure of the defense to present a credible alibi (207 23897-
900).
2.
Defense Evidence
1202. Despite dental records that conclusively showed Petitioner was in
Los Angeles on May 30, 1985, the defense attempted to show that Petitioner was
in El Paso, Texas at the same time. Petitioner’s father, another relative, and a co-
worker testified that he was in El Paso around May 23, 1985, and left on May 31,
1985. While in El Paso, Petitioner attended a family party for his niece who
received her First Communion. In closing argument, trial counsel’s own remarks
defeated the alibi defense by asserting there was no basis to doubt the dental
records: “I believe the doctor’s testimony from Chinatown regarding the 30th was
436Page 461 Page ID #:
accurate. I have no reason to believe that it is not accurate . . . .”96 (211 RT 24308.)
3.
The Defense Failed to Competently Challenge the Charges
1203. The defense offered no affirmative evidence to refute the
prosecution’s physical evidence, including shoe print, fabric gloves, restraints, or
identification of stolen property.
1204. The defense failed to investigate, develop, and present competent
evidence pertaining to shoe print impression evidence. As indicated supra,
expert testimony would have established that the prosecution’s evidence was
inexact.
A partial concentric circle pattern was developed with
fingerprint power on a plastic clock case. Based on the lack of
sufficient detail, it was not possible to eliminate any Avia athletic
shoe model, size, or style, or any manufactured shoe that exhibited a
similar concentric circle pattern as the source of the impression.
(Ex. 33, L. DiMeo dec., ¶ 25.)
1205. The defense failed to investigate, develop, and present evidence to
challenge the prosecution’s evidence about fabric glove impressions. Competent
defense counsel would have presented evidence that fabric impressions were
incapable of yielding identifiable prints. (Ex. 24, Articles on Latent Prints (State
Habeas Exhibit 11E).)
1206. In failing to present a reasonably competent alibi defense, trial
counsel lost any credibility they had with the jury. In addition to failing to
account for the alibi witnesses’ lack of specificity, the defense failed to account
Trial counsel argued the crime occurred on May 29. However, no
substantial proof was presented to support the theory. (211 RT 24309, 24314.)
Counsel’s argument contradicted Petitioner’s alibi.
The appearance of a pentagram-like drawing at the scene by itself did
not connect Petitioner to the crime.
437Page 462 Page ID #:
for dental records that the prosecution introduced to demonstrate that Petitioner
was in Los Angeles.
1207. The prosecution also presented evidence to impeach Petitioner’s
father. A local newspaper reporter testified that, in an interview, Petitioner’s
father stated that he had not seen his son for more than two years before his
arrest. The defense failed to rehabilitate their witness or to clarify that
Petitioner’s father had been mistaken in his recollection.
1208. The defense failed to investigate, develop, and present evidence that
restraints allegedly used during the incident were unremarkable and easily
obtainable.
1209. The defense failed to adequately investigate, develop, and present
evidence that Felipe Solano’s testimony was not credible. Competent counsel
would have established that Solano’s self-serving testimony was false and that
law enforcement agencies had knowledge about other individuals who sold
property to Solano.
1210. The prosecution’s shoe print evidence was neither accurate nor
reliable. (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s findings demonstrate that many
shoes could have made the impressions. (Ex. 34, Lisa DiMeo suppl. dec., ¶ 28.)
With respect to the fabric glove impressions, cross-examination of the
prosecution’s witness, Mr. Vander Wende, would have established that the fabric
impressions could not yield identifiable prints and were unreliable. Competent
counsel would have challenged the evidence. (See also Ex. 24, Articles on Latent
Prints; Ex. 46, R. Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint
“Science” Is Revealed, 75 So. Cal. L.R. 605 (2002).)
1211. Evidence was available to trial counsel of potential third-party
suspects who committed burglaries and likely sold stolen property to Solano.
(Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Law enforcement identified
potential third-party suspects but the defense failed to investigate, develop, or
438Page 463 Page ID #:
present any evidence on Petitioner’s behalf. Hechavarria, also known as “Cuba,”
admitted having committed burglaries allegedly with Petitioner. He denied
committing burglaries after November 1984; yet, he was in possession of stolen
property on September 3, 1985. (Id., pp. 2-6.) Eva Castillo admitted having
committed burglaries with Cuba. (Id., p. 6.) Sandra Hotchkiss admitted
burglarizing residences with Petitioner. Third-party evidence would have
benefitted Petitioner by establishing a reasonable likelihood that Solano, who was
well-acquainted with Castillo, obtained stolen property from Castillo and from
other persons Castillo knew. Counsel failed to cross-examine Felipe Solano
regarding Castillo’s background and criminal activity, as well as her knowledge
of and involvement with Cuba, Julio, and Charlie. (Id., p. 7.)
1212. Having failed to present an adequate alibi defense, counsel failed to
investigate, develop, and present an alternate defense. Having conceded the
Prosecution’s shoe print evidence and at the same time arguing a less-than-
credible alibi defense, trial counsel deprived Petitioner of any reasonable defense.
Given Petitioner’s lengthy history of serious mental illness, impoverished living
conditions, illicit drug usage, and psychotic behavior at or near the time of the
offense, counsel were required, at a minimum, to investigate and develop mental
state evidence before reaching a decision regarding the theory of the case.
1213. Failure to investigate alternate defenses does not excuse as tactical a
decision not to present a readily available line of defense. Phillips, 267 F.3d at
976-79. “A defense attorney’s failure to consider alternate defenses constitutes
deficient performance when the attorney ‘neither conduct[s] a reasonable
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
documentation show counsel made no reasoned investigation of alternate
defenses to the charges. Absent a proper and adequate investigation, the decision
439Page 464 Page ID #:
not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
1214. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
H.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1218. The defense presented no evidence on Petitioner’s behalf except for
the failed alibi defense discussed in the Bell/Lang incident, supra. Trial counsel
argued unconvincingly in closing argument that the identification by Ms. Kyle
was inconsistent with her statements that her suspect had straight teeth. “If the
person who committed these crimes . . . had straight white teeth, the person was
not Petitioner.” (210 RT 24255.)
3.
The Defense Failed to Competently Challenge the Charges
1219. The defense failed to investigate, develop, and present competent
evidence to support a credible alibi defense, as in the Bell/Lang incident, supra.
1220. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
1221. As in the Bell/Lang incident, trial counsel presented a wholly
discredited alibi. Counsel failed to present any credible evidence that Petitioner
was somewhere other than in the Los Angeles area on May 30, 1985. In fact,
uncontroverted evidence from a Los Angeles dental office established that
Petitioner was in Los Angeles on May 30, 1985.
441Page 466 Page ID #:
1222. Viewing conditions at the time of the incident were crucial to a
determination of the reliability of the victim’s identification. There was evidence
in the record regarding lighting, stress, and fear, as well as memory and
post-event information, which competent defense counsel would have used to
show that the identification was inaccurate and unreliable. Dr. Loftus was not
asked to testify about many factors that influence a witness’s ability to accurately
recall physical features of a suspect. Competent counsel would have elicited
testimony from the eyewitness and expert as set forth in Dr. Loftus’s declaration
with respect to stress, fear, lighting, and memory contamination by post-event
information such as multiple viewings of the same suspect. (Ex. 37, E. Loftus
Dec., ¶ 6.) (See also Ex. 71, K. Pezdek Dec.) Competent counsel would have
urged the jury to consider relevant factors in evaluating eyewitness testimony.
1223. Defense counsel unreasonably failed to investigate mental state
evidence. Given Petitioner’s lengthy history of serious mental illness,
impoverished living conditions, illicit drug usage, and psychotic behavior at or
near the time of the offense, counsel were required, at a minimum, to investigate
and develop mental state evidence before reaching a decision regarding the
theory of the case.
1224. Counsel presented a defense that was inherently flawed and
incompetent. As noted above, failure to investigate alternate defenses does not
excuse as tactical a decision not to present a readily available line of defense. See
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
supporting documentation show counsel made no reasoned investigation of
alternate defenses to the charges. Absent a proper and adequate investigation, the
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decision not to present a reasonable alternate defense was unsound and
uninformed, resulting in constitutionally deficient representation.
I.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1225. On July 2, 1985, Mary Louise Cannon was found dead in her
Arcadia home. She had suffered blunt trauma head and face wounds, stab
The Prosecution’s Case
wounds to the neck and carotid artery, and manual strangulation. A partial shoe
print on a piece of tissue paper was consistent with an Avia shoe; a shoe print
found on carpeting was similar to an Avia shoe, size 11 or 11-½. Jewelry stolen
from her residence was recovered from Felipe Solano and later identified at the
property lineup held September 5, 1985.
1226. The state urged conviction based on Avia shoe prints and jewelry
stolen from the residence. The prosecutor compared the wounds to the Zazzara
case: “the slash/stab wound to the neck” (207 RT 23915); “same types of stab
wounds” (207 RT 23916); and a similar type of weapon: “[the sharp object
might] not have facilitated the sawing slashing act as much as these others” (
RT 23916).
2.
Defense Evidence
1227. The defense offered testimony regarding hairs found at the scene and
blood stains found near the victim’s head and on a mitten. A sheriff’s criminalist
testified that the findings of the PGM subtype on the glass were inaccurate
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because the sample was degraded.98 Blood found on the mitten was not
Petitioner’s. Hair examined from the scene was dissimilar to Petitioner’s.
1228. Trial counsel offered no evidence concerning shoe print impressions
or stolen property recovered from Felipe Solano. In closing, trial counsel argued
that the Cannon homicide was not part of a unique pattern: “[S]tabbings and
beating people with things is the most common method of killing someone” (
RT 24272); “you [cannot] take them all together and try to put some sort of
pattern to it” (211 RT 24273); “once again, you cannot give these shoes to
Petitioner.” (Id.)
3.
The Defense Failed to Competently Challenge the Charges
1229. The defense failed to investigate, develop, and present a competent
defense, including a third-party culpability defense. Defense counsel failed to
challenge the shoe print evidence or the recovery of property.
1230. As discussed above, competent defense counsel would have refuted
the prosecution’s evidence, particularly the shoe print comparison. Expert
testimony would have cast doubt on the conclusions of the prosecution’s experts’.
1231. At trial, the prosecution introduced a photographic display of a shoe
impression in carpet. (Prosecution’s Trial Ex. 20A-1.) The impression was
consistent in general shape and gross pattern with any model and style of Avia
athletic shoe.
1232. A photograph taken of a facial tissue on the floor with a partial print
revealed a series of straight lines and a block-shaped element, consistent with any
model, size, and style Avia athletic left shoe. No measurement scale was used in
the photographs. (Ex. 33, L. DiMeo Dec., ¶¶ 26, 27.)
The defense failed to move for sanctions for the prosecution’s failure to
preserve the evidence.
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1233. The defense failed to investigate, develop, or present evidence to
challenge Felipe Solano’s testimony. Competent counsel would have established
that other persons engaged in selling stolen property to Solano could have been
involved in committing the crimes. (Ex. 40, S. Strong Dec., ¶ 22.)
1234. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
1235. Counsel unreasonably failed to investigate potential third-party
suspects, challenge the prosecution’s shoe print evidence, and develop a
reasonable theory of the case.
1236. Counsel unreasonably failed to investigate potential third-party
suspects: Sandra Hotchkiss, Eva Castillo, Monje, Cuba, Julio, and Charlie.
was not investigated, developed, or presented at trial. Some of these individuals
were interviewed by law enforcement and admitted involvement in criminal
activity. (Id.) Cuba admitted he had committed burglaries with Petitioner and
Julio in 1984. (Id., pp. 1-6.) On September 3, 1985, he was found in possession
of stolen property. (Id., p. 6.) Castillo admitted to committing burglaries in
with Cuba and Julio. (Id., pp. 7-8.) She also reported that Charlie and Cuba
burglarized her apartment. (Id., p. 7.) Moreover, Sandra Hotchkiss testified that
she committed burglaries with Petitioner in 1985. (185 RT 21698.) Counsel’s
failure to investigate and develop third-party culpability evidence precluded the
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jury from making a connection between Felipe Solano and third-party suspects.
The jury had little to consider because counsel failed to adequately impeach
Solano regarding his involvement with Cuba, Monje, and Castillo. (Ex. 22,
LACSD - Suppl. Rpt., 09/11/1985, p. 6.) The prosecutor observed that trial
counsel had failed properly to investigate Solano. (See 177 RT 20663-66.)
1237. Counsel failed to challenge the prosecution’s shoe print evidence.
Petitioner’s habeas expert, Lisa DiMeo, has reviewed the evidence and
determined that the impression evidence compares to different models and sizes
of Avias. DiMeo established a valid basis for examination and comparison of the
impressions. The lack of distinctive marks makes it impossible to exclude many
models and sizes. (Ex. 33, L. DiMeo Dec., ¶ 35.) DiMeo explains that
prosecution expert Burke’s identification was unsubstantiated and conflicted with
his examination of the evidence. (Ex. 34, L. DiMeo Suppl. Dec., ¶¶ 19-25.) Trial
counsel unreasonably failed to cross-examine the prosecution’s expert as to
comparison methods and lack of distinctive marks.
1238. Trial counsel failed to develop a reasonable defense theory of the
case. By conceding shoe print evidence, while at the same time challenging the
prosecution’s bloodstain evidence, the defense presented an inconsistent and
illogical defense. Competent counsel would have properly challenged the
Prosecution’s physical evidence and investigated and presented third-party
culpability evidence. Trial counsel failed to investigate and develop a reasonable
theory of the case and a reasonable alternate defense. Given Petitioner’s lengthy
history of serious mental illness, impoverished living conditions, illicit drug use,
and psychotic behavior, competent counsel would have, at a minimum,
investigated and developed mental state evidence before reaching a decision
regarding the theory of the case.
1239. Trial counsel presented an inconsistent defense. Moreover,
counsel’s failure to investigate alternate defenses does not excuse as tactical a
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decision not to present a readily available line of defense. See Phillips, 267 F.3d
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
deficient performance when the attorney ‘neither conduct[s] a reasonable
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
documentation show counsel made no reasoned investigation of alternate
defenses to the charges. Absent a proper and adequate investigation, the decision
not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
J.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1240. On July 5, 1985, 16-year-old Whitney Bennett was attacked in her
The Prosecution’s Case
sleep in her Sierra Madre home. When she woke up early that morning, her head
and hands hurt. She suffered head lacerations, skull fractures, fracture of the eye
socket, and fracture to a finger on her left hand. Marks around her neck were
likely caused by a rope or cord. Her head injuries were consistent with blunt
force trauma caused by a tire iron. She had no recollection of the assault.
1241. Evidence found at the scene included a tire iron, curtain sash, and a
bed comforter. The tire iron had not been there before she went to sleep. A shoe
impression on the comforter appeared similar to shoe prints found at the Cannon
and Zazzara scenes. A photograph of a shoe impression on the comforter was
identified as an Avia aerobics shoe, size 11 to 12. Fabric glove impressions were
found on the bedroom window sill.
1242. In closing argument the prosecution urged conviction based on shoe
prints, ligature marks, blunt force trauma, fabric glove marks, and evidence of
ransacking. (207 RT 23924-27.) The prosecutor argued that the Bennett
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residence was near Cannon’s home as well as Bell and Lang’s. (207 RT 23919-
20.)
2.
1243. The defense presented evidence only with respect to hair and blood.
Defense Evidence
A buckled hair found on the carpet was similar to Petitioner’s pubic hair and
dissimilar to the victim’s; however, it lacked unique characteristics. Antigens
found on the sash did not originate from the victim or Petitioner.
1244. Trial counsel conceded the shoe print impression evidence. (RT 24279.) Trial counsel argued to the jury that “Petitioner is not wearing Avias,
never been seen with Avias on . . . .” (Id.)
3.
1245. Trial counsel failed to investigate, develop, and present evidence to
refute the prosecution’s physical evidence, including shoe print and fabric glove
marks and failed to challenge the prosecution’s assertion that the case fit a pattern
of crimes linked to Petitioner.
The Defense Failed to Competently Challenge the Charges
1246. Trial counsel failed to challenge the prosecution’s findings related to
shoe print impressions.99 Competent counsel would have presented evidence of
the following:
Found at the scene was a partial shoe print – ball area – in
apparent blood on a fabric comforter. This was consistent with an
Avia athletic right shoe that exhibited similar class characteristics to
the Aerobics model. Only the Avia Referee/Coach model 552R can
be eliminated as the source of the print based upon the break
between the dam element and flex joint. A second partial print on
Trial counsel argued in closing that Petitioner was never seen wearing
Avia shoes, but failed to present evidence in support of this assertion.
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the comforter in apparent blood exhibited herringbone elements, but
no further description could be determined.
(Ex. 33, L. DiMeo dec., ¶¶ 28, 29.)
1247. The defense failed to investigate, develop and present evidence with
respect to fabric glove marks. Expert testimony would have established that no
identifiable prints could be obtained.
1248. The defense failed to investigate, develop and present evidence to
establish that the case did not fit the prosecution’s theory of a pattern of crimes;
specifically, trial counsel failed to assert differences between this case and other
incidents.100 By failing to competently argue that the Bennett case and the vast
geographical range did not fit the overall pattern, counsel undermined Petitioner’s
defense. (See Ex. 40, S. Strong dec., ¶ 22.) Moreover, the defense failed to offer
a logical scenario with respect to hair and blood findings that may have involved
other suspects. (Id.) Thus, Petitioner was deprived of an adequate defense.
1249. Trial counsel failed to investigate, develop or present any evidence
on alternative defenses based on lack of requisite mental state due to Petitioner’s
history of serious mental illness, neurocognitive and neurological deficits,
psychosis, mood disorders, mind-altering substance abuse, and brain impairment.
(See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.; R. Schneider,
M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.) In
addition, trial counsel failed to conduct a reasonable investigation that would
have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
By contrast, the prosecutor summed up the relative differences in
closing argument and offered an explanation as to how the crime fit an overall
pattern with other incidents. (207 RT 23919-29.)
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1250. Without conducting a proper investigation, trial counsel conceded
that shoe print evidence linked Petitioner to the crime. There was no reasonable
basis for trial counsel’s failure to challenge this evidence. DiMeo’s testimony
would have cast a reasonable doubt on Mr. Burke’s conclusions with respect to
the size and model of shoes involved, as well as the prosecution’s theory that
there was only one pair of shoes that could have been involved. (Ex. 33, L.
DiMeo Dec., ¶ 17.)
1251. The defense did not challenge the glove-print evidence. As
discussed previously, there was no reasonable basis for counsel not to challenge
this unreliable evidence. Petitioner has demonstrated grounds for challenging the
1252. Petitioner has demonstrated evidence of potential third-party
suspects that was not investigated or presented at trial. (Ex. 22, LACSD - Suppl.
Rpt., 09/11/1985.) As discussed earlier, competent counsel would have
investigated potential suspects based on interviews of individuals who had
admitted involvement in burglaries.
1253. Steve Strong’s declaration shows “there was significant evidence to
demonstrate lack of pattern . . . crimes were not related, including inexactness of
the shoe print evidence; distance between crime scenes; different weapons . . .,
and lack of physical evidence found at the scenes indicating there could have
been additional suspects.” (Ex. 40, S. Strong Dec., ¶ 22.) Thus, there was crucial
evidence the defense failed to present to distinguish Bennett from other incidents,
and to demonstrate potential third-party suspects.
1254. As a result, trial counsel presented an inconsistent defense. Trial
counsel failed to investigate an alternate defense, despite evidence of Petitioner’s
lengthy history of serious mental illness, impoverished living conditions, illicit
drug usage, and psychotic behavior at or near the time of the offense. Counsel
450Page 475 Page ID #:
were required, at a minimum, to investigate and develop mental state evidence,
before reaching a decision regarding the theory of the case.
1255. As noted above, failure to investigate alternate defenses does not
excuse as tactical a decision not to present a readily available line of defense. See
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
supporting documentation show counsel made no reasoned investigation of
alternate defenses to the charges. Absent a proper and adequate investigation, the
decision not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
K.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
Nelson Incident, Counts 23-24 (burglary, murder, burglary-murder
special circumstance)
1.
1256. On July 7, 1985, Joyce Nelson was found dead in her Monterey Park
The Prosecution’s Case
home. Death resulted from a head injury and manual strangulation. Shoe print
impressions found at the scene were similar to a sole pattern found at the
Bell/Lang incident. Shoe prints at the scene also were similar in appearance to
shoe prints found at the Zazzara, Cannon, and Bennett scenes.
1257. Ms. Dempster identified Petitioner as the person she saw in the
neighborhood around July 5, 1985.
1258. The prosecutor argued to the jury that Nelson resembled the Cannon
case in terms of injuries (208 RT 23938); that shoe print impressions were
identified as Avia shoes (208 RT 23943-45); that Dempster saw a person she
identified as Petitioner in the neighborhood (208 RT 23950); that the residence
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had been ransacked; and that a jewelry box was found on Nelson’s bed (
RT 23946-47).
2.
1259. The defense evidence was limited to Dennis Lew’s inaccurate
Defense Evidence
photographs, and testimony regarding hairs recovered from the scene.
1260. In closing, defense counsel argued that the shoe print evidence failed
to tie Petitioner to the crimes (210 RT 24228); that the prosecution did not prove
Petitioner wore Avia shoes (210 RT 24238); and that Dempster’s eyewitness
identification was not credible (211 RT 24303).
3.
1261. Trial counsel failed to investigate, develop, and present evidence to
challenge the physical evidence and to discredit Dempster’s identification. The
defense also failed to explain to the jury the differences between the Nelson
incident and the other charged crimes, to refute the prosecution’s argument that
the crimes fit a pattern.
The Defense Failed to Competently Challenge the Charges
1262. The defense failed to challenge the shoe print evidence. Competent
counsel would have presented expert testimony to explain that there were
thousands of pairs of shoes that compared to the impressions.
Two partial overlapping shoe prints exhibiting herringbone
elements and a flex joint were found in dry soil outside the scene.
They were consistent with any model and style of Avia athletic
shoes.
Of four shoe prints on the concrete floor, the following
findings were made:
a) Left Avia. Cannot exclude any Aerobics, Basketball, or
All Court Sport model, which exhibited similar class characteristics
as the questioned print. Heel area was not captured in the
photograph.
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(b) Right Avia. Cannot exclude any Aerobics, Basketball,
Referee/Coach or All Court Sport model, which exhibited similar
class characteristics as the questioned print. Heel area was not
captured in the photograph.
(c) Right Avia. Cannot exclude Aerobics, Basketball, or All
Court Sport model, which exhibited similar class characteristics as
the questioned print. Heel – three graduating length parallel bars –
observed in the photograph are consistent with models 252, 255,
255W, 552R, 560, 565W, and 565.
(d)
Left Avia. Cannot exclude any Aerobics, Basketball,
Referee/Coach All Court Sport model, which exhibited similar class
characteristics as the questioned print. Heel area was not captured in
the photograph.
(Ex. 33, L. DiMeo Dec., ¶¶ 30, 31.)
1263. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
In addition, trial counsel failed to conduct a reasonable investigation that would
have permitted them to make a reasonably informed decision to forego such
defenses in favor of a defense based on innocence.
1264. Shoe print evidence purportedly linked Petitioner to the scene. But
the prosecution presented unreliable and inaccurate shoe print evidence about the
make, model, and size of shoe, and the defense presented no evidence to refute
the prosecution’s case. Trial counsel failed to challenge the shoe print evidence,
and effectively conceded the truth of the prosecution’s evidence in closing
453Page 478 Page ID #:
argument. Counsel thus deprived Petitioner of a reasonable defense. Forensic
specialist Lisa DiMeo disputes Burke’s findings and would have testified that his
conclusions are not supported by the evidence; specifically, she would have
testified that the model and size of the shoes cannot be determined. Many other
shoes could have been responsible for the impressions. (Ex. 24, Articles on
Latent Prints; Ex. 34, L. DiMeo Suppl. Dec., ¶ 26.)
1265. Counsel were ineffective in failing to challenge Dempster’s
identification. They failed to introduce substantial evidence pointing to
unreliability of eyewitness identification. Expert testimony would have
established fear, stress, memory, poor lighting, and multiple viewings impacted
eyewitness identification. (Ex. 37, E. Loftus Dec., ¶ 4.) (See also Ex. 71, K.
Pezdek Dec.) Trial counsel did not properly cross-examine Dempster about the
reliability of her identification. The record establishes that the viewing
conditions were poor, but counsel failed to cross-examine the witness effectively
about her observations.
1266. Steve Strong opines there were significant differences between
various incidents demonstrating lack of pattern, which trial counsel failed to
develop and present. (Ex. 40, S. Strong dec., ¶ 21.) Moreover, available
1269. On July 7, 1985, Sophie Dickman was awakened in the bedroom of
The Prosecution’s Case
her Monterey Park home. A man was standing there, holding a metallic silver
handgun. He handcuffed her, stole her jewelry and money, then sexually
attacked her. The man left after handcuffing Dickman to the bed. According to
police, the handcuffs appeared to be an inexpensive novelty item. The house had
been ransacked. At trial Dickman identified a .22-caliber Jennings firearm as
similar to the weapon used by the intruder. She identified Petitioner as the
assailant. She also identified jewelry at the September 5, 1985 lineup.
1270. The prosecution urged the jury to convict Petitioner based on alleged
similarities to the Kyle case (208 RT 23987); evidence that a similar handgun
was used in Doi (208 RT 23988); evidence that handcuffs were used to restrain
the victim (208 RT 23985); evidence that jewelry was placed in a pillowcase
taken from her home (208 RT 23991); and the proximity of Dickman’s home the
to the Nelson incident (208 RT 23997-98).
455Page 480 Page ID #:
2.
Defense Evidence
1271. The defense presented testimony with respect to a photographic
lineup held before Petitioner’s arrest. Dickman identified one of the photographs
as the suspect; Petitioner’s photograph was not included in the lineup. No other
evidence was presented on Petitioner’s behalf.
1272. In closing argument, trial counsel argued that the circumstances of
the Dickman crime did not fit the alleged modus operandi of other charged
crimes, such as Zazzara, Doi, Bell/Lang, Okazaki, and Khovananth. (
RT 24281-82). Counsel also argued that Dickman’s description of her assailant
did not match Petitioner’s physical appearance. (211 RT 24281.)
3.
The Defense Failed to Competently Challenge the Charges
1273. Trial counsel failed to present a reasonable and competent defense to
the incident. Counsel failed to investigate, develop, and present evidence to
challenge the prosecution’s case, including eyewitness identification and
recovery of stolen property.
1274. Trial counsel failed to properly challenge the eyewitness
identification. The only direct evidence linking Petitioner to the incident was
Dickman’s identification.
1275. As discussed supra, trial counsel failed to investigate, develop, and
present evidence that the in-court identification was tainted due to the victim’s
repeated exposure to Petitioner’s photographs, extensive media coverage of the
case, inconsistencies in the initial physical description, and factors related to
limiting viewing, lighting, and stress of the events at the time of the incident.
(Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
1276. Trial counsel failed to impeach Felipe Solano with respect to his
fencing activities with other parties who may have been involved in the crimes
for which Petitioner was on trial. As discussed supra, there were individuals
engaged in selling stolen property to Solano; they were not called as witnesses at
456Page 481 Page ID #:
Petitioner’s trial. (Ex. 40, S. Strong dec., ¶ 22.) Thus, Petitioner was deprived of
competent and effective representation.
1277. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
1278. The prosecution introduced eyewitness identification testimony in an
attempt to link Petitioner to the Dickman case. Trial counsel unreasonably failed
to competently cross-examine the eyewitness in order to establish the
unreliability of her identification. Counsel failed adequately to cross-examine the
witness as to memory, recall, and independent grounds for identification.
Counsel also failed to elicit testimony from the defense expert regarding factors
that influence eyewitness identification, such as lack of independent grounds for
the identification, unreliability of memory and retrieval due to multiple viewings,
and the impact of stress, fear, and physical conditions at the time of the incident.
1279. Pursuant to discovery provided by the prosecution, trial counsel
knew of third-party suspects. (Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Eva
Castillo and several other individuals (Cuba, Charlie, and Julio) had been
involved in burglaries and may have committed crimes with which Petitioner was
charged. Counsel’s failure to investigate, develop, and present available evidence
of third-party culpability was inexcusable. Third-party evidence established that
other suspects allegedly committed crimes and sold stolen property to Felipe
Solano. Eva Castillo did not testify; however, she had been involved in
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drug-related activities, and had a relationship with Felipe Solano. Trial counsel
failed to establish the link between Castillo, Julio, Charlie, and Cuba that
involved stolen property and would have further discredited Solano.
1280. Counsel failed adequately to refute the prosecution’s case, including
eyewitness identification and Petitioner’s link to Solano. As a result of counsel’s
deficient performance, Petitioner was deprived of his fundamental rights.
Competent counsel would have investigated reasonable alternate defenses. Given
Petitioner’s lengthy history of serious mental illness, impoverished living
conditions, illicit drug usage, and psychotic behavior at or near the time of the
offense, counsel was required, at a minimum, to investigate and develop mental
state evidence before reaching a decision regarding the theory of the case.
1281. As discussed above, failure to investigate alternate defenses does not
excuse as tactical a decision not to present a readily available line of defense. See
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
supporting documentation show counsel made no reasoned investigation of
alternate defenses to the charges. Absent a proper and adequate investigation, the
decision not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
458Page 483 Page ID #:
M.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1282. On July 20, 1985, Maxon and Lela Kneiding were found dead in
The Prosecution’s Case
their Glendale home. Maxon died from a gunshot wound to the neck. No bullet
was recovered. Four incised wounds to the neck occurred before the gunshot
wound. Lela suffered two gunshot wounds to the head; both were fired at close
range. There were cuts to her neck, hand, and arms that appeared to have been
inflicted before death. The house had been ransacked. The Kneidings’ daughters
identified their mother’s jewelry at the property lineup. A projectile recovered
from Lela Kneiding was fired from the same .22-caliber firearm in the Okazaki
and Yu cases.
1283. In closing argument the prosecution argued that the incident was
very similar to Zazzara (209 RT, 24014); property was recovered from Solano
(209 RT 24016); and ballistics evidence established that the same weapon fired
the rounds in Okazaki, Yu, and Kneiding (209 RT 24018). The state also argued
that “within minutes virtually of the murder of Maxon and Lela Kneiding, the
defendant arrived in Sun Valley [Khovananth] . . . again the same morning . . . .”
(209 RT 24020.)
2.
1284. Trial counsel presented a limited defense to the Kneiding charges. A
Defense Evidence
shirt discovered near the scene appeared to have been dropped or thrown there;
hairs found on the shirt were dissimilar to Petitioner’s hair. The defense
The prosecutor falsely characterized Felipe Solano as less than a “major
receiver of stolen property . . . .” (209 RT 24017.)
459Page 484 Page ID #:
presented no evidence with respect to the prosecution’s ballistics findings or as to
Felipe Solano’s testimony regarding stolen property.
3.
The Defense Failed to Competently Challenge the Charges
1285. The defense failed to investigate, develop, and present evidence to
defend against the charges. The defense’s failure to challenge the prosecution’s
ballistics evidence in Okazaki and Yu, prejudiced Petitioner’s defense in the
Kneiding case. Competent defense counsel would have presented evidence
regarding conflicts and inaccuracies of the prosecution’s ballistics evidence in all
three cases. (See Ex. 35, P. Dougherty dec.)
1286. Trial counsel failed to adequately and properly impeach Felipe
Solano. Competent counsel would have offered evidence to show that other
parties sold stolen property to Solano and that oher suspects may have been
involved in the crimes for which Petitioner was on trial. (See Ex. 22, LACSD -
Suppl. Rpt., 09/11/1985.)
1287. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
1288. Trial counsel unreasonably conceded the inaccurate and unreliable
firearms evidence the prosecutor introduced in an attempt to link Petitioner to the
Okazaki and Yu incidents. As previously explained, competent counsel would
have challenged this evidence based on the distortion of the bullets and the fact
that the ballistics evidence lackedreliability. At a minimum, competent counsel
460Page 485 Page ID #:
would have challenged the testing results of the firearms evidence. Paul
Dougherty reviewed the Okazaki, Yu, and Kneiding incidents and concluded that
“there are internal conflicts in the written reports with regard to the testing
conducted, such as condition of the bullets.” (Ex. 35, P. Dougherty dec., ¶ 4; see
also attachment to Ex. 35.)
1289. Trial counsel failed to investigate third-party culpability evidence.
Individuals with ties to Eva Castillo included Cuba, Charlie, and Julio, all of
whom had been involved in burglaries. (Ex. 22, LACSD - Suppl. Rpt.,
09/11/1985, pp. 3, 6-7.) Cuba turned over stolen property to police agents on
September 3, 1985. (Id., p. 6.) According to the supplemental Los Angeles
Sheriff report (Ex. 22), Cuba was not prosecuted for his criminal activity. (Id.)
Steve Strong’s analysis of the case adds further support for relief: other
individuals had motive and opportunity to commit crimes and sell stolen property
to Solano. (See Ex. 40, S. Strong dec.) Trial counsel failed to investigate,
develop, and present evidence that pointed to Castillo and others with whom she
associated as the perpetrators. (Ex. 22, LACSD - Suppl. Rpt., 09/11/1985, pp. 3,
6-7.)
1290. Competent counsel would have investigated reasonable alternate
defenses, including a mental state defense. Given Petitioner’s lengthy history of
serious mental illness, impoverished living conditions, illicit drug usage, and
psychotic behavior at or near the time of the offense, counsel was required, at a
minimum, to investigate and develop mental state evidence before reaching a
decision regarding the theory of the case. There was substantial evidence of
Petitioner’s long-standing impairments that would have been admissible at trial.
1291. Trial counsel’s failure to investigate alternate defenses does not
excuse as tactical their decision not to present a readily available line of defense.
See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider
alternate defenses constitutes deficient performance when the attorney ‘neither
461Page 486 Page ID #:
conduct[s] a reasonable investigation nor ma[kes] a showing of strategic reasons
for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and
the supporting documentation show counsel made no reasoned investigation of
alternate defenses to the charges. Absent a proper and adequate investigation, the
decision not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
462Page 487 Page ID #:
N.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
copulation, sodomy, burglary-murder special circumstance)
1.
1292. On July 20, 1985, Somkid Khovananth was attacked in her home.
The Prosecution’s Case
She was sexually assaulted and forced to turn over jewelry and money to her
assailant. Her husband, Chainarong Khovananth, was shot in the head at very
close range. The prosecution introduced evidence that a small-caliber bullet
recovered from Mr. Khovananth’s scalp had been fired from the same .22-caliber
firearm that was used in the Zazzara case.
1293. Shoe prints found at the scene were similar to impressions at the
Nelson and Bell/Lang residences. Khovananth identified Petitioner as her
assailant. She also identified jewelry at the property lineup.
1294. The prosecution urged conviction based on similarities to the
Abowath case (see infra); argued that the same .22-caliber gun was used in
Zazzara; that ligature marks on her arm were similar to marks on Zazzara’s arm;
and that eyewitness and property identification linked Petitioner to the
Khovananth crimes. (209 RT 24024-32.)
2.
1295. Trial counsel conceded the truth of the prosecution’s ballistics
evidence that purportedly linked Petitioner to the Zazzara case. (210 RT 24201.)
Defense Evidence
1296. Trial counsel presented the testimony of Chainarong Khovananth’s
sister regarding the initial description given by Somkid Khovananth of her
assailant as dark-skinned.
1297. Trial counsel argued that Somkid Khovananth’s initial suspect
description should be believed and the case did not fit a distinctive pattern. (
RT 24284-89.)
463Page 488 Page ID #:
3.
The Defense Failed to Competently Challenge the Charges
1298. The defense failed to investigate, develop, and present evidence with
respect to the Prosecution’s ballistics evidence, shoe print impression evidence,
and the property recovered from Felipe Solano. Trial counsel’s failures deprived
Petitioner of adequate assistance of counsel.
1299. Competent defense counsel would have challenged the ballistics
evidence and the lack of accuracy and unreliability of the prosecution’s findings.
The findings were inaccurate. Firearms expert Paul Dougherty has stated that
there are internal conflicts in the reports of various law enforcement examiners
and the evidence should be retested. (Ex. 35, P. Dougherty dec., ¶ 4.)
1300. Competent counsel would have presented expert testimony
regarding shoe print impressions.
A partial print on the floor developed with black fingerprint powder
consisted of eight straight parallel bar elements; a second partial
print consisted of four half-circles.
A photograph of an Avia left shoe print on the floor was made
by a possible wet soil transfer that was subsequently treated with
black fingerprint powder and lifted with tape. It was consistent with
Avia Aerobics model, or any other Avia model, which exhibited
similar class characteristics: convex dam area, which meets the last
straight bar element of the flex joint. The heel area is
indistinguishable. Exemplars of all other shoe models would be
needed for elimination.
(Ex. 33, L. DiMeo Dec., ¶¶ 32, 33.)
1301. Trial counsel failed to impeach the testimony of Felipe Solano
regarding his fencing activities with other individuals. Competent counsel would
have introduced evidence to show that individuals other than Petitioner sold
464Page 489 Page ID #:
stolen property to Solano during the same time period. (Ex. 22, LACSD - Suppl.
Rpt., 09/11/1985.)
1302. Trial counsel failed to investigate, develop, and present evidence to
challenge eyewitness identification. Trial counsel failed to introduce evidence to
show that the eyewitness’s initial description of her assailant was more reliable
than her later description. Expert testimony would have established the factors
that influenced the identification and rendered the in-court identification
unreliable. (See Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
1303. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation and
thus could not have made a reasonable, tactical decision to forego such defenses
in favor of a defense based on innocence.
1304. The prosecution sought to link Petitioner to the Zazzara and
Khovananth incidents using firearms evidence. Trial counsel’s failure to
challenge the firearms evidence -- effectively, a concession -- allowed the
prosecution to link Petitioner to both incidents. As a result of trial counsel’s
deficient performance, the jury never heard evidence related to the inaccuracy of
the testing results and internal discrepancies in the firearms examiners’ reports.
(Ex. 35, P. Dougherty dec., ¶ 2.) Counsel unreasonably failed to investigate and
challenge the bullet distortion and firearms identification evidence. (See id.;
Ex. 47, U.S. Department of Justice Press Release, “FBI Laboratory Announces
Discontinuation of Bullet Lead Examinations, 09/01/2005; Los Angeles County
Sheriff’s Department – General Rifling Characteristics Report, by Sgt. J.D.
465Page 490 Page ID #:
Smith, 04/01/1985, pp. 28-29.) Petitioner has demonstrated, based on
preliminary evaluation, that the prosecution’s firearms testing was faulty,
unreliable, and inaccurate. Competent counsel would have challenged the
prosecution’s evidence. Petitioner has provided specific showing of prejudice
with respect to individual incidents and incidents linked together by unreliable
evidence.
1305. Trial counsel also conceded the truth of the prosecution’s shoe print
evidence. However, forensic specialist DiMeo found that the prosecution’s
evidence was insufficient to determine the exact model of the shoe. A partial
print on the floor and indistinguishable heel area of another print preclude further
identification. (Ex. 33, L. DiMeo Dec., ¶ 17.) Many models and sizes could have
made the shoe print impression in question. (Ex. 34, L. DiMeo Suppl. Dec.,
¶ 19.) Trial counsel were required to investigate the prosecution’s evidence,
which was inaccurate, misleading, and unreliable. Competent counsel would not
have conceded the evidence and would have elicited testimony from a forensic
specialist such as Dimeo, which would have raised a reasonable doubt in the
jurors’ minds as to reliability and accuracy of the prosecution’s evidence.
1306. Trial counsel knew or should have known of third-party culpability
evidence, based upon the Los Angeles Sheriff Supplemental Report dated
known to Eva Castillo, including Cuba, Charlie, and Julio, had been involved in
burglaries and thefts. Available evidence would have established that these
persons committed crimes and were likely to have sold stolen property to Felipe
Solano. Trial counsel also failed to investigate Eva Castillo’s background, her
criminal activities, her illicit drug use, and her relationship with Felipe Solano, all
of which would have further impeached Solano.
1307. Eyewitness identification evidence went unchallenged by the
defense. Evidence related to factors that affect memory, recall, and retrieval was
466Page 491 Page ID #:
not elicited on cross-examination of eyewitnesses by trial counsel or from the
defense expert. Petitioner has demonstrated grounds to impeach eyewitness
identification, i.e., factors related to confidence of memory, retention, retrieval,
and unreliability of eyewitness identification described in Dr. Loftus’s deposition
which are critical to a determination of reliability of eyewitness identification.
(Ex. 37, E. Loftus Dec., pp. 1-113.) (See also Ex. 71, K. Pezdek Dec.)
1308. Competent counsel would have investigated alternate defenses,
including a mental state defense. Given Petitioner’s lengthy history of serious
mental illness, impoverished living conditions, illicit drug usage, and psychotic
behavior at or near the time of the offense, counsel was required, at a minimum,
to investigate and develop mental state evidence before reaching a decision
regarding the theory of the case.
1309. Counsel undermined Petitioner’s defense by conceding the truth of
physical evidence introduced by the prosecution in an attempt to link Petitioner to
the crime. There was no sound reason for failing to investigate alternate
defenses. Moreover, as discussed above, failure to investigate alternate defenses
does not excuse as tactical a decision not to present a readily available line of
defense. See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to
consider alternate defenses constitutes deficient performance when the attorney
‘neither conduct[s] a reasonable investigation nor ma[kes] a showing of strategic
reasons for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the
petition and the supporting documentation show counsel made no reasoned
investigation of alternate defenses to the charges. Absent a proper and adequate
investigation, the decision not to present a reasonable alternate defense was
unsupported and resulted in constitutionally deficient representation.
467Page 492 Page ID #:
O.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
1310. On August 5, 1985, Virginia and Christopher Petersen were shot
The Prosecution’s Case
while asleep in their Northridge home. No weapon was recovered. The
prosecution introduced evidence that expended .25-caliber cartridge casings and a
slug were fired from the same firearm as the bullet recovered in the Abowath
incident. The prosecution also introduced evidence that .25-caliber ammunition
found in the bag in the locker at the Greyhound Bus Station after Petitioner’s
arrest had the same tool marks as the expended casings in both cases. Fingerprint
lifts from the doors in the house appeared to have been made by garden gloves.
Virginia Petersen identified Petitioner as her assailant.
1311. The prosecution urged conviction based on ballistics evidence,
eyewitness identification, and similarities to other cases. (209 RT 24034, 24038-
43.) The prosecutor argued that photographs taken by the defense showed that
Virginia Petersen could readily monitor her daughter’s movement at the end of
the hallway and thus had an adequate opportunity to view the suspect.
And I don’t know exactly what the point was, but the point
couldn’t have been made better by anyone else, . . . Mrs. Petersen
could look down there and she (sic) her, and that is a reasonable
thing to do.
(209 RT 24035.)
2.
Defense Evidence
1312. Trial counsel conceded the truth of ballistics evidence that the
prosecutor introduced in an attempt to link Petitioner to the Abowath case.
Counsel offered only testimony regarding photographs taken of the house in an
effort to show the limited view of a person in the hallway from the bed in the
468Page 493 Page ID #:
back bedroom. Counsel argued that the photographs proved the lighting was
insufficient to identify a person standing the hallway. Defense counsel also
argued that Virginia Petersen did not call the police to identify Petitioner once his
photograph was shown on television and in the newspaper and that her
identification was suspect. Counsel observed that this case did not involve any
Avia shoe prints. (211 RT 24296.)
3.
1313. Trial counsel failed to challenge the prosecution’s case. By
conceding the truth of the prosecution’s ballistics evidence in the Petersen and
The Defense Failed to Competently Challenge the Charges
Abowath crimes, counsel deprived Petitioner of a competent defense.
1314. Trial counsel failed to investigate, develop, and present evidence to
refute ballistics evidence. Competent defense counsel would have challenged the
ballistics evidence and the lack of accuracy and unreliability of the prosecution’s
findings. Firearms expert Paul Dougherty states that there are internal conflicts
in the reports of various law enforcement examiners and the evidence should be
retested. (Ex. 35, P. Dougherty dec., ¶ 4.)
1315. Trial counsel failed to investigate, develop, and present evidence to
refute eyewitness identification. Expert testimony would have challenged the
basis for eyewitness identification; there were sources of contamination that led
to unreliable identification. (Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek
Dec.)
1316. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
469Page 494 Page ID #:
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
1317. Mr. Dougherty found evidence of inaccuracies and internal
inconsistencies in the firearm examiners’ reports related to other incidents.
(Ex. 35, P. Dougherty dec., ¶ 4.) Trial counsel were required to investigate the
firearms evidence and properly determine accuracy of testing results, bullet
distortion, and firearm identification. Counsel improperly conceded firearms
evidence. Eyewitness identification evidence was presented with respect to each
of these crimes. Counsel were ineffective in failing to investigate, develop, and
present evidence through cross-examination of the eyewitness and the defense
expert with respect to memory and retrieval of information, including the effect
of fear, stress, and multiple viewings of a suspect. The eyewitness was not
questioned about the extent to which publicity surrounding the case resulted in
contamination of her identification. Petitioner has demonstrated that Dr. Loftus
would have testified about the impact of various factors, including contamination
and thus would have established the identification lacked reliability. (Ex. 37, E.
Loftus Dec., ¶ 4.) (See also Ex. 71, K. Pezdek Dec.)
1318. Trial counsel failed to challenge the firearms evidence and conceded
the truth of the prosecution’s evidence linking Petitioner to the Abowath incident.
Thus, counsel were required to properly investigate, develop, and present
evidence of an alternate defense. Competent counsel would have investigated
and considered reasonable alternate defenses. Counsel failed to investigate
evidence of a mental state defense. Given Petitioner’s lengthy history of serious
mental illness, impoverished living conditions, illicit drug usage, and psychotic
behavior at or near the time of the offense, counsel was required, at a minimum,
to investigate and develop mental state evidence before they could reach a
decision regarding the theory of the case.
470Page 495 Page ID #:
1319. Failure to investigate alternate defenses does not excuse as tactical a
decision not to present a readily available line of defense. See Phillips, 267 F.3d
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
deficient performance when the attorney ‘neither conduct[s] a reasonable
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
documentation show counsel made no reasoned investigation of alternate
defenses to the charges. Absent a proper and adequate investigation, the decision
not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
P.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
copulation, sodomy, burglary-murder special circumstance)
1.
1320. On August 8, 1985, Sakina Abowath was attacked and sexually
The Prosecution’s Case
assaulted in her Diamond Bar home. Her husband, Elyas Abowath, was shot in
the head; the weapon had been fired at close range. The bullet recovered during
autopsy was fired from the same .25-caliber firearm as the bullets fired in the
Petersen incident. The prosecution introduced evidence that Stadia shoes taken
from Petitioner upon his arrest matched the shoe print impressions on the dining
room floor.
1321. Ms. Abowath identified Petitioner as the assailant. She also
identified property recovered from Felipe Solano.
1322. In closing, the prosecution urged the jury to convict Petitioner
because of similarities to the Khovananth case (209 RT 24044); shoe print
evidence (209 RT 24045); ballistics evidence (209 RT 24048); use of restraints
(209 RT 24050); eyewitness identification (209 RT 24033); and discovery of .25471Page 496 Page ID #:
caliber ammunition that purportedly matched tool marks on the bullet recovered
from Mr. Abowath. (209 RT 24067.)
2.
1323. The defense case was limited to impeachment of the eyewitness; and
to the introduction of hair and semen findings that were negative as to Petitioner.
Defense Evidence
1324. Trial counsel conceded the truth of the prosecution’s ballistics and
shoe print evidence.
3.
The Defense Failed to Competently Challenge the Charges
1325. As indicated supra, the defense failed to investigate, develop, and
present a competent defense with respect to ballistics evidence. Expert testimony
would have established that the prosecution’s ballistics findings were not
accurate or reliable. (Ex. 35, P. Dougherty dec., ¶ 4.)
1326. Competent counsel would have presented evidence that the incident
was not part of a pattern that linked Petitioner to numerous crimes.
1327. Trial counsel failed to impeach Ms. Abowath with respect to
eyewitness identification. Expert testimony would have established important
factors that influenced her identification, including pressure and bias to make an
identification, fear, stress, and memory retrieval. (Ex. 37, E. Loftus Dec.) (See
also Ex. 71, K. Pezdek Dec.)
1328. Trial counsel failed to investigate, develop, or present any evidence
with respect to alternative defenses based on lack of requisite mental state due to
Petitioner’s history of serious mental illness, neurocognitive and neurological
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
would have permitted them to make a reasonable tactical decision to forego such
defenses in favor of a defense based on innocence.
472Page 497 Page ID #:
1329. Trial counsel conceded the truth of the prosecution’s firearms
evidence and failed to challenge this evidence. Counsel failed to challenge the
accuracy and reliability of the firearms examiner’s findings. Preliminary review
raises serious concerns about the firearms testing results. Further examination of
the firearms evidence would likely show additional problems with bullet
distortion and identification. Trial counsel failed to challenge reliability and
accuracy of the testing results that linked numerous incidents. Thus, counsel
failed to defend against the charges effectively.
1330. Defense counsel unreasonably failed to introduce available evidence
to show that the Abowath crimes were not related to other cases. (See Ex. 40, S.
Strong dec., pp. 7-9.) Defense counsel unreasonably failed to challenge the
prosecution’s evidence or investigate and present evidence of dissimilarities
between the Abowath crimes and other incidents. Counsel unreasonably failed to
refute the prosecution’s shoe print and firearms evidence, pattern evidence, and
eyewitness identification testimony.
1331. Trial counsel unreasonably failed to challenge eyewitness
identification evidence. Counsel failed to elicit crucial evidence of memory and
retrieval related to the witness’s identification. Counsel failed to properly
investigate eyewitness identification, then failed to prepare the defense expert to
address specific factors related to eyewitness identification, including the effects
of fear, stress, and focus on memory and retrieval, all of which impact reliability
of identification.
1332. Competent counsel would have investigated reasonable alternate
defenses, including a mental state defense. Given Petitioner’s lengthy history of
serious mental illness, impoverished living conditions, illicit drug usage, and
psychotic behavior at or near the time of the offense, counsel was required, at a
minimum, to investigate and develop mental state evidence before reaching a
decision regarding the theory of the case.
473Page 498 Page ID #:
1333. Failure to investigate alternate defenses does not excuse as tactical a
decision not to present a readily available line of defense. See Phillips, 267 F.3d
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
deficient performance when the attorney ‘neither conduct[s] a reasonable
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
documentation show that counsel made no reasoned investigation of alternate
defenses to the charges. Absent a proper and adequate investigation, the decision
not to present a reasonable alternate defense was unsound and resulted in
constitutionally deficient representation.
Q.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
Uncharged Incident (Burglary)
1334. The prosecution presented evidence of a palm print identified as
Petitioner’s and an Avia shoe that left an impression at the scene.
1335. Trial counsel failed to challenge the prosecution’s evidence.
Competent counsel would have demonstrated that the shoe print impression
evidence was less conclusive; “[the partial shoe print] was consistent with any
model and style of an Avia athletic right shoe exhibiting similar class
characteristics . . . .” (Ex. 33, L. DiMeo dec., ¶ 34.) Moreover, counsel failed to
challenge the reliability of the fingerprint evidence.
1336. Petitioner has described available evidence, including Lisa DiMeo’s
declaration regarding inaccurate and unreliable shoe print evidence. (Ex. 33,
L. DiMeo Dec., ¶ 35; Ex. 34, L. DiMeo Suppl. Dec., ¶ 27.) Grounds also existed
to challenge fingerprint evidence. (Ex. 24, Articles on Latent Prints; Ex. 46,
“Fingerprints Meet Daubert”.)
1337. Petitioner has shown a partial shoe print found at the scene “was
consistent with any model and style of an Avia athletic right shoe exhibiting
474Page 499 Page ID #:
similar class characteristics . . . .” (Ex. 33, L. DiMeo dec., ¶ 34.) However, trial
counsel failed to challenge the evidence or show lack of distinctive shoe print
characteristics. Avia shoes were not a rare commodity in the Los Angeles area.
As DiMeo has stated:
. . . there were many possible models and sizes of shoes that could
have been identified from the shoeprint impressions. ¶ There were
actually many models . . ., totaling tens of thousands of shoes . . .
that could have been the source of the impression evidence.
(Ex. 33, L. DiMeo Dec., ¶¶ 35-36.) Here, no evidence linked Petitioner to the
crime other than shoe print evidence. By failing to present any evidence in
Petitioner’s defense, and failing to challenge -- effectively, conceding -- the truth
of the prosecution’s unreliable shoe print evidence, trial counsel failed to
reasonably defend Petitioner against the uncharged offense.
R.
Failure to Competently Present an Opening Statement
1338. Trial counsel failed to present an opening statement that reasonably
reflected a rational defense to be presented at trial. During closing argument, the
prosecution made repeated reference to counsel’s opening statement, and
exploited the lack of a cohesive and competent defense strategy.
[O]n May 9, Tuesday May 9, 1989, in volume 179 if (sic) our daily
transcript here beginning at page 20819, Mr. Hernandez made his
opening statement in this case.
because there were a lot of errors in that opening statement. . . .
[M]aybe he just misunderstood it or maybe they are going to try to
show that we were wrong . . . . But we came to the end of the
And I want to talk about that,
Trial counsel consistently failed to object to the prosecution’s
argument.
475Page 500 Page ID #:
defense case and most of that stuff is not addressed . . . . Mr.
Hernandez . . . failed to deliver . . . .
(203 RT 23576.)
Page 20839, . . . Mr. Hernandez, . . . indicated that the defendant will
show that Felipe Solano bought items that he said he bought from
the defendant but were actually bought from other people. Now, this
is important. There is no such evidence in this case. ¶ [T]hat is not
true. That was never proved.
(203 RT 23594-95.)
1339. The prosecution argued numerous other instances of defense
incompetency during opening statement.
[T]here were a lot of errors in [Daniel Hernandez’s] opening
statement.
(203 RT 23576.)
[I]t turns out to be something Mr. Hernandez told you he was going
to present and failed to deliver . . . .
(Id.)
[A] diagram . . . purported to be the Kneiding, household. . . . It is
not in evidence . . . [o]n that diagram there were some locations . . .
Avia shoeprints were recovered. [¶] Well, that is not so. . . . This
is something that was made up.
(203 RT 23579.)
[T]here must be something here then in his opening statement. What
does Mr. Hernandez tell you? . . . [Y]ou never heard from Mr.
Hernandez again on the subject. . . . [¶] Why? Because it was all
bunk.
(203 RT 23585-86.)
476Page 501 Page ID #:
And again, again in his opening statement Mr. Hernandez promised
you he was going to prove that Eva and Julio were committing these
burglaries. . . . ¶ Never happened, bunk, never happened.
(203 RT 23587.)
So again, Mr. Hernandez harps upon Eva and Julio and yet nothing
came forward; nothing.
(203 RT 23588.)
The same volume at page 20834, Mr. Hernandez told you that the
defendant was working with a fellow . . . . Well, you really don’t
have any evidence of that.
(203 RT 23592.)
Oh, again now, again . . . page 20837, talking about Felipe Solano
. . . dealing in all sorts of things . . . there is absolutely no evidence
of that at all, . . . so that again is off the wall.
(203 RT 23593.)
Page 20839 . . . Mr. Hernandez . . . indicated that the defendant will
show that Felipe Solano bought items that he said he bought from
the defendant but were actually bought from other people.
Now, this is important. There is no such evidence in this case.
(203 RT 23594.)
You see, Hernandez stands up and gives the clear indication that . . .
Solano is a big dealer . . . .
Absolutely not one shred of evidence of that . . . .
(203 RT 23597.)
Mr. Hernandez told you that he was going to prove that an
examination of the sweatband of that cap showed that the blood type
. . . was different from that of the defendant’s.
477Page 502 Page ID #:
Absolutely bogus. You never heard any more about it. That never
existed, never happened.[103]
(203 RT 23601-02.)
[Blood evidence] does not exist and it was not presented, because it
does not exist. . . . [Y]ou should not speculate about those things that
are discussed by counsel and were never forthcoming.
You should not speculate about any of it, whether it is bogus
or whether it just was some – some inadvertence and didn’t make it
this far.
(203 RT 23602.)
And when you start talking about reasonable doubt at some point in
these arguments, that is not reasonable doubt. That is not the
creation of reasonable doubt.
You do that by the presentation of evidence or the lack of
presentation of evidence, but not by suggesting something to a jury
and then not showing up.
(203 RT 23604.)
And that part begins at page 20870. Mr. Hernandez was telling you
what he was going to present in the Bennett incident.
...
That [fingerprint evidence] is non-existent, . . . . [Y]ou just can’t
throw this stuff out if you are a lawyer. This is serious business here
and it is not just because you are on the defense side you can throw
this stuff out and let it flow.
The defense failed to present any evidence about the cap. The cap was
never tested by the defense expert. (Ex. 44, B. Wraxall dec., ¶ 4.)
478Page 503 Page ID #:
There was not evidence of that at all. If there was such
evidence, then the defense, and they considered it relevant, the
defense had the obligation to bring it forward.
(203 RT 23615-17.)
[T]hese things were referred to by counsel, and yet there was no
evidence on it . . . .
In Mr. Hernandez’ opening statement, again volume 179, this
time at page 20879, he referred to the Nelson incident . . . he did
make the remark that . . . [hair recovered] . . . was compared to . . .
family members, that type of thing. That is not true.
(204 RT 23627-28.)
Mr. Hernandez told you that they were going to prove to you
that there was a private security guard in the area of the Abowath
murder . . . .
...
No nothing, no evidence of that at all.
I mean that is – you know, you are not allowed to make up
evidence, and that is one of the rules.
(204 RT 23648.)
S.
Further Evidence of Failure to Defend Against the Charges
1340. Trial counsel failed to properly and Competently Challenge the
charges, due in part to its failure to properly and competently examine the
prosecution’s witnesses. The prosecution capitalized on the failings during
closing argument by arguing that the burden of proof was on the defense to prove
Petitioner’s innocence.
[The fingerprint witness] was here and could have been examined
. . . and was not.
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So if there was some evidence there that was going to be helpful to the
defense, they didn’t bother to ask anybody any questions about it.
(203 RT 23613.)
First of all, Mr. Clark indicated that he saw nothing wrong with our
firearms identification. If he did, if he had some contra evidence, he
would present it, and of course that is true, and you know the
testimony was not presented. . . . And nothing came from the
defense about firearms. So I presume we’ll take Mr. Clark at his
word, that the firearms in this case was done, was done right.
(211 RT 24335.)
1341. Petitioner has demonstrated that (1) counsel failed to adequately
defend against the charges and competently examine the prosecution’s witnesses,
and (2) the prosection, without any objection from trial counsel, improperly
argued that the burden of proof was on the defense to prove Petitioner’s
innocence. It is not merely the prosecutor’s opinion that is at issue, but the
prosecution’s improper argument shifting the burden of proof to the defense.
1342. Counsel failed to develop a coherent theory of defense. Counsel
failed competently to challenge fingerprint, shoe print, and ballistics evidence.
Competent counsel would have evaluated the prosecution’s testing protocol,
uncovered inaccuracies and discrepancies in the testing, and cross-examined the
prosecution’s witnesses. Competent counsel would not have conceded the
prosecution’s case. Petitioner has shown a more favorable result would have
occurred had counsel properly defended against the charges and objected to the
prosecutor’s improper argument.
T.
Failure to Challenge the Prosecution’s Evidence
1343. Trial counsel’s failure to competently defend Petitioner is further
illustrated by the prosecution’s final comments in closing argument regarding
promises made by the defense to produce evidence.
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And I talked to you before about promises that were made by the
defense that were unfulfilled.
The real problem with Mr. Clark’s argument is the same as
with Mr. Hernandez’ opening statement, and that is this:
Mr. Clark told you to forget what I said about Mr. Hernandez’
opening statement because the defense was a team and the members
of the team can get together and change their mind (sic) about their
approach to a case at any given time.
They had the entire people’s case plus there were two weeks
between the people’s case and the defense. That was the time when
the team should have gotten together and decided what they were
going to do.
And if they weren’t going to present evidence, nobody should
have talked about it, you see?
Well, that is dishonest. That is not true. If there was
evidence, it would be here. It should be here.
(211 RT 24319-20.)
U.
Failure to Object to the Prosecutor’s Closing Argument
1344. Trial counsel failed to object to the prosecutor’s closing argument on
the grounds that the State committed misconduct, improperly commented on
matters not in evidence, shifted the burden of proof, and misled the jury. In
failing to object, trial counsel was incompetent.
1345. The prosecutor argued the case to the jury over a seven-day period.
The defense failed to object to the prejudicial and inflammatory argument and
numerous instances of prosecutorial misconduct discussed infra.
V.
Other Guilt Phase Errors Rendered the Guilt Trial Verdict Unreliable
1346. Counsel failed in numerous other respects, including but not limited
to the following:
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(a) Trial counsel failed to investigate all available defenses, and as a
result failed to properly voir dire prospective jurors and exercise peremptory
challenges, and failed to give a reasonable and coherent presentation of the
defense case during voir dire, in opening statement and closing argument.
(b) Trial counsel were on notice that there was evidence that pointed
to third-party suspects, including in the Vincow and uncharged incidents.
Counsel failed to properly investigate, present evidence of third-party culpability;
counsel failed to challenge the Prosecution’s case and failed to object to
misconduct by law enforcement officers, the district attorney, and other state
actors who acted independently and in concert to present unreliable and
misleading testimony regarding Petitioner’s alleged statements, Felipe Solano,
Cuba, and other potential third party suspects. The district attorney and law
enforcement officers consistently presented evidence in a misleading and
factually inaccurate way to establish that Petitioner acted alone in order to obtain
a conviction of capital murder and a sentence of death against Petitioner. This
misconduct infected the adversarial process so as to deny Petitioner his right to a
fair trial and reliable determination of guilt and penalty.
(c) Trial counsel failed to object to, cross-examine the prosecution’s
experts, and present competent evidence with respect to ballistics testing, shoe
print impressions findings, chain of custody, and preservation of physical
evidence. Counsel failed to properly challenge the prosecution’s evidence. Had
counsel done so, the jury would have known that the evidence was inaccurate and
unreliable.
(d) Counsel failed to seek a ruling on all grounds of admissibility of
the physical evidence, including failure to preserve evidence, Hitch sanctions,
and failure to request and obtain jury instructions. Counsel failed to present
evidence to establish that the State had not proven Petitioner’s guilt beyond a
reasonable doubt, nor proven all the elements required to convict Petitioner of the
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capital charges. Had counsel adequately investigated and presented these
defenses, issues and instructions, it is reasonably probable that the jury would
have found Petitioner not guilty of capital murder and rendered a sentence less
than death.
(e) Counsel failed to object to, cross-examine the prosecution’s
experts, and present competent evidence to challenge the prosecution’s theories
regarding evidence of pattern and how the physical evidence and Solano’s
testimony bore on Petitioner’s culpability; and counsel failed to assert proper
grounds for severance of counts.
(f) Counsel failed to investigate and present guilt phase defenses
including Petitioner’s inability to form the requisite mental state. Competent
counsel would have investigated and properly determined the evidence of
Petitioner’s intoxication, drug usage, as well as his cognitive and mental
impairments, his resulting inability to plan, organize, orchestrate, and execute
complex motor and intellectual functions, and his impoverished and limited
background. Competent counsel would have investigated all available defenses
and made a reasoned tactical decision regarding the defense. Had counsel done
so, it is reasonably probable that the jury would have determined that Petitioner
was not culpable for capital murder and rendered a verdict other than capital
murder and a sentence less than death.
(g) Counsel failed to properly request and obtain necessary jury
instructions on all matters raised above, and other material including but not
limited to Petitioner’s appearance at trial in shackles, improper inference of
consciousness of guilt by Petitioner not removing his sunglasses, and failure of
the evidence.
(h) The cumulative errors that occurred at the guilt trial were due to
counsel’s ineffectiveness.
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1347. The resulting failure of counsel to subject the case against Petitioner
to a constitutionally acceptable adversarial process denied him effective
assistance of counsel and the full panoply of federal and state constitutional rights
to which he is entitled under the First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution and their California
analogues.
1348. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 18:
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE GUILT AND
PENALTY PHASES: SOCIAL HISTORY AND MENTAL HEALTH
1349. Petitioner’s confinement, convictions, and death sentences are illegal
and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution, because he was denied the effective assistance
of counsel at the guilt and penalty phases of his trial. The performance of
Petitioner’s counsel fell below reasonable standards of representation, to
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Petitioner’s prejudice, in that counsel failed to exercise the skill, judgment and
diligence expected of a reasonably competent criminal defense lawyer in
investigating the case, preparing for trial, retaining, preparing, and presenting
defense experts, challenging the prosecution’s evidence, and presenting evidence
and a defense at both phases of his trial. Rompilla v. Beard, 545 U.S. 374, 125 S.
Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.
Ct. 2527, 156 L. Ed. 2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 694;
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
1350. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XVIII of the June 2004 petition for writ of
habeas corpus, although it includes additional factual allegations. Petitioner will
present the claim with the additional factual allegations to the California Supreme
Court in an exhaustion petition he will file no later than March 17, 2009.
1351. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1352. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
throughout Petitioner’s trial proceedings. Trial counsel improperly failed to
conduct a comprehensive inquiry into the events and circumstances of
Petitioner’s childhood, life, and family history, as well as Petitioner’s long-
standing history of neurological, cognitive, psychological, and psychiatric
impairments. A thorough and competent investigation would have developed
crucial evidence and information, and counsel’s failure to conduct such an
investigation infected their representation of Petitioner throughout the
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proceedings and prevented counsel from (a) obtaining and presenting a complete
mental state evaluation; (b) developing and presenting mental state and other
defenses to the guilt-phase charges, including Petitioner’s incompetence to stand
trial and to waive his rights; (c) developing and presenting significant mitigating
evidence at the penalty phase; and (d) discharging their constitutional and ethical
obligations to provide Petitioner with informed, competent advice.
1354. Trial counsel improperly failed to research and otherwise educate
themselves about the medical, neurological, psychological, psychiatric, and legal
issues necessary to competently advise Petitioner and to investigate, develop, and
present evidence and information concerning Petitioner’s background, social and
family history, and his significant cognitive, neurological, psychological, and
psychiatric impairments.
1355. Trial counsel improperly failed to retain and consult with
appropriate medical, mental health, and other experts. Trial counsel failed to
provide retained experts with information and evidence necessary to obtain
crucial expert opinions, including a thorough and competent mental health
evaluation of Petitioner. The assistance of a psychiatrist is crucial to a capital
defendant’s ability to marshal a defense to the charges and in mitigation of
sentence. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 84 L. Ed. 2d
(1985). Unlike lay witnesses, psychiatrists can identify the “elusive and often
deceptive” symptoms of mental illness. “[P]sychiatrists gather facts, through
professional examination, interviews, and elsewhere, that they will share with the
judge or jury; they analyze the information gathered and from it draw plausible
conclusions about the defendant’s mental condition, and about the effects of any
disorder on behavior; and they offer opinions about how the defendant’s mental
condition might have affected his behavior at the time in question.” Id. at 80.
1356. Trial counsel improperly failed to recognize, competently
investigate, develop, and present to the trial court and to the jury evidence
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pertaining to Petitioner’s family and social history and his significant medical,
neurological, cognitive, psychological, and psychiatric impairments. Counsel
improperly failed adequately to prepare and consult with lay witnesses and
qualified experts with regard to these topics. Counsel improperly failed to
present expert or lay testimony with regard to these topics: among other failures,
counsel failed to challenge Petitioner’s competence to stand trial and to waive his
rights; failed to present mental health and other available defenses to the charges
at the guilt-phase of his trial; failed to present to the sentencing jury significant
mitigating evidence; failed to provide Petitioner constitutionally and ethically
required competent advice.
1357. Trial counsel’s failings constituted an abandonment of Mr. Ramirez
and ineffective assistance of counsel. And, but for this ineffective assistance, it is
reasonably probable that the jury would have returned more favorable verdicts at
the guilt- and penalty-phases of his trial.
1358. Trial counsel’s performance prior to and during the trial fell below
the standard of care that reasonably competent attorneys would have provided
and that the Sixth Amendment commands. Trial counsel’s deficient performance
prejudiced Petitioner because, had trial counsel performed competently,
Petitioner would have been found incompetent to stand trial and have been
provided with a powerful and compelling defense at both the guilt and penalty
phases. The result of the trial would have been more favorable to Petitioner but
for counsel’s deficient performance. The evidence that counsel failed to
investigate, develop, and present demonstrated that Petitioner was incompetent to
stand trial and to waive his rights and explained Petitioner’s behavior, provided a
basis for Petitioner’s acquittal or reduced culpability and established that he
should not be sentenced to death.
1359. Counsel’s failures impaired the representation they gave to
Petitioner, and the fundamental fairness of the trial he received, on numerous
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occasions and with respect to numerous issues throughout the guilt and penalty
phases of his trial. These issues include but are not limited to the following:
Petitioner’s mental state at the times of the charged offenses; Petitioner’s lack of
competency to waive rights, his inability to assist counsel and to stand trial; the
waiver of powerful mitigation case at penalty phase; effective challenges to the
prosecution’s case at guilt and penalty phases; and effective voir dire of jurors.
1360. Trial counsel’s errors and omissions denied Petitioner the right to
present a defense and to present all relevant evidence; the right to cross-examine
and confront witnesses; the privilege against self-incrimination; the right to a jury
determination of every material fact; the right to compulsory process; the right to
a reliable, rational, and accurate determination of guilt, death-eligibility and
death-worthiness, free from any constitutionally unacceptable risk that those
determinations were the product of bias, prejudice, arbitrariness or caprice; the
right to be subjected to the death penalty only if reliable evidence was properly
introduced proving that Petitioner was death-eligible and death-worthy; the right
to a trial free of intentionally, demonstrably or inferentially false inculpatory
evidence; the right to the effective assistance of counsel; the right to due process
and the equal protection of law; and the right to a fair trial and to a reliable and
appropriate penalty as guaranteed by the Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments.
A.
Trial Counsel Failed to Adequately and Competently Investigate,
Develop, and Present Petitioner’s Life History and Evidence of
Petitioner’s Significant Cognitive, Neurological, Psychological, and
Psychiatric Impairments
1361. According to Marilyn Cornell, a licensed Marriage and Family
Therapist who prepared a social history in Petitioner’s post-conviction
case:
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[Petitioner’s] development as an infant, child, and adolescent was severely and
adversely affected by poverty, neglect, physical and emotional deprivation and
abuse, exposure to violence, family dysfunction and instability, lack of parental
supervision, guidance and protection, trauma, and a host of cognitive, emotional,
environmental, psychological, neuropsychological, and psychiatric impairments.
(Ex. 32, Declaration of Marilyn Cornell, M.F.T., dated 06/16/2004, ¶ 88.)
1362. As described by Dr. Jane Wells, J.D., Ph.D., who evaluated
Petitioner at the request of state post-conviction counsel: Petitioner’s background
severely impaired his overall functioning. According to Dr. Wells, Petitioner
suffered from:
(1) a childhood characterized by extreme poverty, physical and
emotional neglect, physical and emotional abuse, and overall
deprivation; (2) a gross and persistent absence of parental attention,
guidance, affection, and protection due in part to his parents’ lack of
education and their impoverished lifestyle that resulted in a
pervasive pattern of neglect and left Petitioner on his own much of
the time; (3) a serious brain impairment of early origin known at the
time of trial; (4) a psychotic disorder that was evident and diagnosed
and/or diagnosable at the time of trial; (5) serious mood disorders
that often accompany psychosis with components of both mania and
depression that was treatable at an early age but that went untreated;
(6) early use with side effects of phenobarbital, exposure to illegal
depressants, stimulants and hallucinogens during Petitioner’s critical
formative years; (7) early childhood exposure to criminal activity by
Petitioner’s brothers and other adults; (8) childhood exposure to
violence and trauma, including extremely traumatic events outside
the range of normal human experience, including witnessing the
aftermath of the shooting death of his cousin’s wife; and finally (9)
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commitment as a teenager to the Texas Youth Council and long-term
confinement while awaiting trial on capital charges in the Los
Angeles County Jail, where the inadequate staffing, programming,
and other adverse conditions of confinement resulted in institutional
failure to address and provide appropriate intervention and
treatment.
(Ex. 43, Declaration of Dr. Jane Wells, J.D., Ph.D., dated 05/19/2004, ¶ 46.)
1363. Petitioner’s trial counsel, however, failed to adequately and
competently investigate, develop, and present such evidence concerning
Petitioner’s life history and his significant cognitive, neurological, psychological
and psychiatric impairments. Competent investigation was necessary to
formulate a competent theory of the case at guilt and penalty, to adequately
prepare mental health professionals in order to obtain competent and reliable
diagnoses, to meaningfully and adequately voir dire jurors, to competently
challenge jurors for cause and exercise peremptory challenges, and to present a
constitutionally adequate defense in all phases of the trial, including challenging
Petitioner’s competence to stand trial. Competent counsel would have
recognized, investigated, developed, and presented to the court and to the jury, at
the guilt and penalty phases of Petitioner’s trial, evidence including, but not
limited to, the following:
1364. Petitioner incorporates herein, as though fully set forth, the
declarations of Robert Schneider, M.D.; William Vicary, M.D.; Dietrich Blumer,
M.D.; Marilyn Cornell, M.F.T.; Mercedes Ramirez, Julian Ramirez, Jr., Ignacio
Ramirez, Robert Ramirez, Rosario Ramirez, Katharine Baur, A.C.S.W., Dale
Watson, Ph.D., Jane Wells, J.D., Ph.D., Steve Strong, Howard Kessler, Ph. D;
Anne Evans, Ph.D., Cynthia Melendez, Edward Milam, David Palacios, Patricia
Kassfy, Elizabeth Duenas, and Gilbert Flores; the reports of Myla H. Young,
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Ph.D., and George Woods, M.D.; and the letter from Victor Henderson to Daniel
Hernandez, dated May 29, 1987.
1.
Family Background
1365. Petitioner was born into an impoverished family on February 28,
1960, in El Paso, Texas. (Ex. 55, Birth Certificate of Richard Ramirez; Ex. 69,
1367. Petitioner’s father had a first-grade education and no significant job
skills when he entered the United States. After his arrival in the United States, he
struggled to find regular, full-time employment; for some periods he was unable
to find work, and, at other times, could only find part-time work. He worked
various jobs, including construction, and at the Tony Lama boot factory and the
ASARCO oil refinery. He eventually found employment with the Santa Fe
Railroad, where he worked installing ties and tracks. He worked for the Santa Fe
Railroad at the time of Petitioner’s birth. Mr. Ramirez’s job with the railroad
frequently kept him away from home for long periods of time; it was not unusual
for him to be gone for days at a time or longer. Julian Ramirez ultimately worked
for the Santa Fe Railroad for nearly 40 years, retiring in 1990. He died from
cancer in 1991. (Ex. 32, M. Cornell Dec., ¶¶ 14-19; Ex. 69, M. Ramirez Dec., ¶
1; Ex. 103, M. Ramirez Dec., ¶ 3; Ex. 103, I. Ramirez Dec., ¶ 2; Ex. 105,
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Declaration of Rosario Ramirez, dated 11/25/2008, ¶ 6; Ex. 104, Declaration of
Robert Ramirez, dated 11/19/2008, ¶ 2.)
1368. Petitioner’s mother had a fifth-grade education and no significant
job skills when his parents moved to El Paso. She worked for a while as a
domestic, cleaning homes. Later she found full-time employment at the Tony
Lama boot factory. Ms. Ramirez worked at Tony Lama while she was pregnant
with Petitioner. (Ex. 32, M. Cornell Dec., ¶¶ 15, 20-21; Ex. 69, M. Ramirez
Dec., ¶¶ 4-5; Ex. 102, I. Ramirez Dec., ¶ 3 .)
1369. Generally, Ms. Ramirez worked eight hours a day, five days a week.
The working conditions were very difficult. Other than lunch breaks, she spent
all day on her feet. She typically did not use the restroom all day, because the
restrooms at the plant did not provide privacy from the male workers. Her job
involved polishing, shining, and treating the leather boots with various chemicals,
dyes, paints, paint thinners, rubber cement, and glue. Her fingers were nearly
always stained black, and the dyes and paints were nearly impossible to wash off
her skin. She was not provided gloves, masks, or eye protection, and the factory
was poorly ventilated. The fumes from the chemicals in the factory often made
her dizzy and nauseated, and she suffered headaches. (Ex. 32, M. Cornell Dec.,
¶¶ 20-21; Ex. 69, M. Ramirez Dec., ¶ 4; Ex. 103, M. Ramirez Dec., ¶¶ 5-6.)
1370. While she was pregnant with Petitioner, Ms. Ramirez suffered
nausea, headaches, and dizziness from the fumes at the factory, and, as a result,
she consulted a medical specialist. The doctor advised her to take some time off
from work; he told her that continuing to work might harm her and her unborn
child. She was able to take two months off from work just before Petitioner’s
birth. She also took forty days off from work after he was born. Despite the
terrible working conditions, she had no choice but to continue to work at the
factory because her family needed the money. (Ex. 32, M. Cornell Dec., ¶ 21;
Ex. 103, M. Ramirez Dec., ¶¶ 5-6.)
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1371. Richard was the youngest of five children born to Julian and
Mercedes Ramirez.
1372. Petitioner’s brother, Julian Ramirez, Jr., was born on June 10, 1950.
He was born with a large bump behind his left ear, and doctors were not sure he
would live. He remained hospitalized for nearly one month after his birth. Even
after he was released, his mother frequently had to take him to a clinic for
treatment of the growth. Growing up, Julian, Jr., had problems with his studies at
school and had to attend special education classes in high school. Intelligence
testing administered at school indicated that Julian, Jr.’s I.Q. met the diagnostic
criterion for mental retardation, and he was classified as the educable mentally
retarded. He was sexually abused by a special education teacher. Julian, Jr.,
began getting in trouble with the law when he was a teenager. Julian, Jr., became
addicted to heroin and dropped out of high school after sustaining a knife wound
that disabled the use of one arm. He is a life-long heroin addict, who has been in
and out of jail, mostly on drug-related offenses. (Ex. 32, M. Cornell Dec.,¶¶ 22-
23-24; Ex. 67, J. Ramirez Dec., ¶¶ 4-6; Ex. 103, M. Ramirez Dec., ¶¶ 9-10; Ex.
105, Rosario Ramirez Dec., ¶ 3; Ex. 105, School Records of Julian Ramirez, Jr.)
1373. Petitioner’s brother, Ignacio Ramirez, was born May 31, 1951.
Although he appeared healthy at birth, when he began to learn to walk his parents
realized Ignacio had health problems. He suffered painful bone deformities in his
legs and ankles that required frequent doctor visits and numerous surgeries,
throughout his childhood and adolescence and even into adulthood. Ignacio
underwent surgery every summer from the age of five to the age of eighteen. The
surgeries often involved painful, lengthy recovery periods. Ignacio was forced to
wear special shoes and braces for much of his childhood, and walking was always
difficult for him. His leg was amputated a few years ago. Intelligence testing
administered at school indicated that Ignacio’s I.Q. met the diagnostic criterion
for mental retardation. The same special education teacher who sexually abused
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his brothers Julian, Jr., and Robert, visited Ignacio at home while his parents were
at work and once visited him in the hospital following one of his surgeries. The
teacher did not sexually abuse Ignacio. (Ex. 32, M. Cornell Dec., ¶ 26; Ex. 103,
M. Ramirez Dec., ¶ 12; Ex. 102, I. Ramirez Dec., ¶¶ 7-8, 15; Ex. 105, Rosario
Ramirez Dec., ¶ 4; Ex. 109, School Records of Ignacio Ramirez.)
1374. Petitioner’s brother, Robert Ramirez was born December 1, 1953.
When Mercedes Ramirez was pregnant with Robert, Julian Ramirez, Sr., had
been laid off from work, and the family worried about making ends meet. Robert
had difficulty learning to speak, and he was unable to form words clearly. He
also had problems understanding things. Robert attended special education
classes at school. Intelligence testing administered at school indicated that
Robert’s I.Q. met the diagnostic criterion for mental retardation, and he was
classified as the educable mentally retarded. Robert was sexually abused by the
same special education teacher who sexually abused his older brother Julian, Jr.
Robert began getting into trouble with the law when he was a teenager. Robert
dropped out of school in the tenth grade. He was convicted of theft and other
crimes, and, at the age of eighteen was incarcerated for approximately two years.
Thereafter, his life continued to be unstable. Robert has been diagnosed with
bipolar disorder and schizophrenia. (Ex. 32, M. Cornell Dec.,¶ 26; Ex. 103, M.
Rosario Ramirez Dec., ¶ 5; Ex. 107, School Records of Robert Ramirez.)
1375. Petitioner’s sister, Rosario (“Rosa”) Ramirez was born February 6,
1955. Rosa and Petitioner were always very close, from the time that Petitioner
was a young boy. Petitioner followed Rosa everywhere she went. Rosa was like
a second mother to Petitioner and often cared for him while his parents were
away at work. When Rosa got married, Petitioner, who was then around 13, was
very depressed and afraid because she was leaving. He was so upset that he
would not allow anyone to photograph him at the wedding. Petitioner eventually
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moved in with Rosa and her husband, before he moved to California. (Ex. 32, M.
Cornell Dec.,¶ 30; Ex. 103, M. Ramirez Dec., ¶ 14.)
1376. Petitioner, as a young boy, was a happy and seemingly healthy child,
who was sweet natured and loved music and animals. He was something of a
loner, more likely to play alone than with other children. He was quiet as a
young boy and never a trouble maker. (Ex. 103, M. Ramirez Dec., ¶¶ 15, 18; Ex.
102, I. Ramirez Dec., ¶ 16.)
1377. Petitioner’s upbringing, however, was characterized by parental
neglect and a lack of adult supervision. To make ends meet, both of his parents
worked and were frequently absent from the home. For a few years, until
Petitioner was three years old, his parents employed a young girl to watch him,
while his mother was at work. From the time that Petitioner was three or four
years old, when his parents were at work, the children were left unsupervised.
Lacking adult supervision, he and his siblings engaged in wild horseplay in and
around the home and had to fend for themselves. And, even when his parents
were not at work, Petitioner’s siblings required most of their attention and care.
His brother Ignacio, in particular, given his severe medical needs, received most
of their parents’ love and concern. Even Ignacio, however, at the age of eleven,
had to take himself to the hospital for one of his surgeries, because his mother
could not afford to take time off from work. His brothers Julian, Jr., and Robert,
too, with their difficulties in school and, later, their problems with the law,
worried their parents and absorbed the little time they had outside of work. (Ex.
32, M. Cornell Dec., ¶¶ 59-63, 67; Ex. 103, M. Ramirez Dec., ¶ 12; Ex. 104,
Robert Ramirez Dec., ¶ 2; Ex. 105, Rosario Ramirez Dec., ¶¶ 6-7; Ex. 102, I.
1378. Petitioner and his siblings were also subjected to physical abuse by
Julian Ramirez, Sr., who was a very strict father and who had a violent temper.
Julian Ramirez, Sr., once became so enraged while trying to fix the kitchen sink
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that he hit himself repeatedly in the head with a hammer; on another occasion,
when attempting to repair the brakes on a car, he became so frustrated that he
kicked the jack, knocking the car to the ground. Julian Ramirez, Sr., beat his sons
(except for the disabled Ignacio); he hit them with a water hose, electrical cords,
and belts. He beat Petitioner many times, hard enough to leave bruises on
Petitioner’s legs. He once brandished a gun at his son Robert. (Ex. 32, M.
1379. Petitioner was also subjected to the abusive and neglectful treatment
of his older brothers. Petitioner’s brother Julian, Jr., abused Petitioner when he
was a young child, and Petitioner’s sister Rosa tried to protect him from the
brothers’ abuse. Petitioner’s sister sought to care for him and protect from his
older brothers. After Rosa left home, she allowed Petitioner to stay at her home.
Rosa knew that Petitioner was having difficulties at home as well as at school.
(Ex. 32, M. Cornell Dec., ¶ 59; Ex. 67, J. Ramirez, Jr. Dec., ¶ 7; Ex. 70, Rosario
Ramirez Dec., ¶ 2.)
1380. Petitioner attended school in El Paso, where records show that he
had a history of learning problems. Petitioner attended Lincoln Elementary
School from 1966 to 1970. (Ex. 56, Cumulative School Records of Richard
Ramirez.) In 1970, Petitioner attended Cooley Elementary School and his grades
began to decline. When he attended Henderson Junior High School in 1972,
Petitioner experienced serious learning problems. He was unable to read or solve
mathematical problems at the eighth grade level. His grades suffered and he
began to stay away from his classes. He first experienced difficulties with law
enforcement in 1974, when he was 14 years old. Petitioner attended Jefferson
High School in 1975, but was unable to finish the ninth grade. He was found
truant and eventually left school followed by his commitment to Texas Youth
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Council on March 17, 1977. (Ex. 56, Cumulative School Records of Richard
Ramirez; Ex. 60, Texas Youth Council Records re: Richard Ramirez.)
2.
1381. Petitioner was exposed to multiple traumas and “suffered a
significant history of physical and psychological trauma, beginning as a young
child. (Ex. 32, M. Cornell Dec., ¶ 54.) “He received no treatment or help of any
kind for the lengthy pattern of traumatic experiences he had endured. Institutions
responsible for Petitioner’s care . . . ignored his disturbed background and
consistently failed to provide necessary treatment.” (Id.)
Experience with Injury, Trauma, and Violence
1382. In addition to the physical abuse that he suffered at the hands of his
father and older brothers, described above, examples of injuries, trauma, and
violence that Petitioner experienced include the following:
1383. At age three, Petitioner climbed up on a dresser to turn on a radio
that was too high for him to reach. The dresser and other objects fell on him,
hitting him on the back of the head and cutting his face. He bled profusely. His
mother rushed him to the hospital, where he was treated for a bump on the back
of his head and a large gash. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M.
1385. When Petitioner was seven or eight years old, his older brother,
Julian Ramirez, Jr., was stabbed in an altercation. Friends rushed him to the
hospital and then came to Petitioner’s home to inform his family. Petitioner’s
parents went to the hospital, leaving Robert, Ignacio, Rosario, and Petitioner at
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home. Petitioner ran out to look at the car in which Julian Jr. had been
transported to the hospital. The inside of the car was soaked with blood,
including pools of blood on the floor of the car. Petitioner was very frightened
and disturbed by what he saw and deeply affected by his brother’s injuries when
Julian, Jr., returned from the hospital. Julian, Jr., lost full use of his arm as a
result of his injuries. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M. Ramirez Dec., ¶
125, E. Milam Dec., ¶ 11.)
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1392. When Petitioner was approximately fourteen or fifteen years old, his
sister’s husband frequently stole through the neighborhood late at night, spying in
people’s windows and trying to catch women undressing. Her husband derived
sexual gratification from the spying, and he sometimes took Petitioner with him.
(Ex. 105, Rosario Ramirez Dec., ¶ 19.)
1393. When Petitioner was approximately sixteen years old, he was a
passenger in a car driven by one of his good friends. The car was in an accident,
and the driver was impaled and killed. Petitioner witnessed his friend’s death and
was deeply saddened and upset by the event. For four or five months after the
accident, Petitioner suffered nightmares and seemed very nervous and scared.
(Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M. Ramirez Dec., ¶ 24; Ex. 105, Rosario
Ramirez Dec., ¶ 16.)
1394. At age sixteen, Petitioner was thrown from a horse. He was
experimenting with acid (LSD), and he tried to ride the horse while high. The
horse threw him, and Petitioner injured his ribs, arm, and head in the fall. He
suffered a concussion. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 102, I. Ramirez Dec.,
¶ 20.)
1395. Having been repeatedly traumatized in his childhood and
adolescence, Petitioner was re-traumatized in jail following his arrest in 1985.
Men who have been traumatized in the past and experience any significant degree
of psychiatric morbidity are vulnerable to new traumas and with trauma their
conditions tend to worsen. (Kupers, M.D. “Trauma and its Sequelae in Male
Prisoners: Effects of Confinement, Overcrowding, and Diminished Services,”
(2) Am. J. Orthopsychiatry, 194 (1996); Ex. 48, County of Los Angeles, County
Counsel 06/15/1988 Opinion re: Los Angeles County Jail Overcrowding .)
1396. Petitioner’s long history of injuries, trauma, and experience of
violence went entirely untreated. This history profoundly affected Petitioner’s
development.
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3.
1397. Petitioner’s parents scraped by raising five children in the Segundo
Barrio of El Paso, next to the Juarez border and close to the ASARCO smelting
plant. An Environmental Protection Agency (EPA) Superfund Cleanup is
underway in El Paso for lead poisoning caused by the long-term presence of the
ASARCO smelting plant.104 This was one of the poorest areas in the United
States.
Exposure to Neurotoxins and Other Environmental Risk Factors
1398. As stated above, Petitioner’s mother, Mercedes Ramirez, worked at
the boot factory where she was exposed daily to high levels of toxins and other
substances used in curing, dying, manufacture, and finishing of leather.
Petitioner’s father worked for a time at the ASARCO plant, and then for the
Santa Fe Railroad where he was similarly exposed to high levels of chemicals
and other toxic substances in connection with his work. And the family lived
near the ASARCO plant.
1399. Petitioner, his siblings, and his parents were thus exposed to various
neurotoxins, including lead, arsenic, leather tanning chemicals, paint thinner,
glue, and other chemicals that his parents unwittingly transported into the family
home through their work clothing, shoes, tools, and other implements that they
wore and utilized at their respective places of employment. This exposure to
neurotoxins was in addition to the neurotoxins that emanated from the ASARCO
smelting plant, which was in close proximity to the family home. Petitioner’s
family members suffered from symptoms and impairments consistent with
exposure to high levels of these chemicals and other neurotoxins, including
headaches, neurocognitive deficits and learning disorders, depression and other
Ex. 49 (Environmental Protection Agency (EPA) Literature on El Paso
Neurotoxins.)
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psychological and psychiatric impairments, bone disease and cancer. (Exs. 61-
70, declarations of Ramirez family members, and birth and death certificates.)
1400. It is well-documented that neurotoxins cause impairment to
developing brains. “Exposure to . . . lead as a child – even at low levels – can
result in neurodevelopmental disorders and lowered IQ’s.” (Ex. 36, Declaration
of Howard Kessler, Ph.D., dated 06/16/2004, ¶ 3.) These and other factors likely
contributed to Petitioner’s multiple impairments, including but not necessarily
limited to genetic markers for Marfan Syndrome (see attachment to Ex. 42, Dr.
Dale Watson Declaration, dated 04/24/2004), a genetic predisposition to
depression and mood disorders (Ex. 43, J. Wells Dec.), and his lifelong learning
disabilities and cognitive, neurological, psychological, and psychiatric
impairments.
4.
Petitioner’s Long-Standing History of Neurological, Cognitive,
Psychological, and Psychiatric Impairments
1401. Beginning at age ten, close in time after he sustained a concussion
playing football, Petitioner began to suffer epileptic seizures. He suffered at least
three convulsive epileptic seizures at school, which prompted school officials to
call an ambulance to have Petitioner taken to the hospital, and numerous others
outside of school. Petitioner was twice hospitalized at Hospital Hotel Dieu
following seizures: once in 1970, at age 10, and once in 1972, at age 12. In 1972,
doctors diagnosed him with epilepsy and prescribed Phenobarbital to control the
seizures. EEGs administered at the time revealed abnormal results, which
confirmed a diagnosis of epilepsy or seizure disorder. Petitioner took the
prescribed phenobarbital, which can have significant adverse effects, for
approximately a year and a half, before stopping on his own. Petitioner suffered
at least twelve serious convulsive epileptic seizure and continued to experience
such seizures at least until he was seventeen years old, and, from the age of ten
on, he experienced partial or absence epileptic seizures – characterized by brief
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periods of staring into space, unaware of his surroundings – multiple times per
day. (Ex. 32, M. Cornell Dec., ¶ 51; Ex. 103, M. Ramirez Dec., ¶ 19; Ex. 104,
Robert Ramirez Dec., ¶ 10; Ex. 105, Rosario Ramirez Dec., ¶ 10-11; Ex. 102, I.
Ramirez Dec., ¶ 21; Ex. 125, E. Milam Dec., ¶¶ 3-4, 9; Ex. 123, Declaration of
Patricia Kassfy, dated 10/28/2008, ¶¶ 3-4; Ex. 121, Declaration of Elizabeth
Duenas, dated 10/27/2008, ¶ 3; Ex. 50, Declaration of Robert Schneider, M.D.;
Ex. 57, Hospital Hotel Dieu Records re Richard Ramirez.)
1402. After the seizures, Petitioner’s behavior changed significantly. He
became an insomniac. He became socially withdrawn. He began leaving the
house late at night, sometimes staying out all night without telling anyone where
he was or what he was doing. His performance at school declined, and eventually
he dropped out. He began drinking Coke and eating cookies and candy
obsessively. He suffered headaches and paranoid fears. He began to get in
trouble with the law and was known in the neighborhood for stealing. And he
began to show psychiatric and psychotic symptoms consistent with an organic
brain disorder and temporal lobe epilepsy. (Ex. 32, M. Cornell Dec., ¶ 51; Ex.
1403. At age 17, Petitioner was committed to the Texas Youth Council.
He was evaluated by a psychologist, who concluded Petitioner was unable to
separate reality from fantasy, exhibited disorganized thinking, weakness in
ideation, depression, and withdrawal. Psychiatric treatment was recommended,
but Petitioner never received such treatment. (Ex. 32, M. Cornell Dec., ¶ 75-79;
Ex. 60, Texas Youth Council Records re: Richard Ramirez.)
1404. Around the age of 19, Petitioner moved to California. After living
briefly with his brother, Julian Ramirez, Jr., Petitioner essentially became
homeless, living on the streets and failing to care for himself. His family became
worried, and his parents and his sister traveled to California to attempt to find
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him and bring him home. On one such trip, his sister found him living on the
street, but his physical appearance had worsened so significantly that she failed to
recognize him initially, (Ex. 103, M. Ramirez Dec., ¶ 28; Ex. 105, Rosario
Ramirez Dec., ¶ 22; I. Ramirez Dec., ¶¶ 34-35; Ex. 124, Declaration of Cynthia
1405. Also around the age of 19, Petitioner became obsessed with Satan
and Satanism. He had developed an interest in Satanism and the occult as early
as the ninth grade. But in late adolescence and in his early twenties, he
experienced severe delusions, hallucinations, and disorganized, psychotic
thoughts concerning Satan as an actual presence in his life, with whom he
believed he had a significant personal relationship. After he moved to California,
he called his mother and told her that he had met people involved with Satanism
who frightened him and that he had seen some scary things – including a lamp
moving by itself. At first his experiences frightened him, but over time his
psychosis and thought disorder developed and deepened. (Ex. 125, E. Milam
Dec., ¶ 12; Ex. 102, M. Ramirez Dec., ¶ 29; Ex. 124, C. Melendez Dec., ¶ 7; Ex.
122, Declaration of Gilbert Flores, dated 11/24/2008, ¶¶ 4-5.)
5.
History of Significant Drug Use from an Early Age
1406. Beginning around the age of thirteen, at approximately the same
time he stopped taking the Phenobarbital that doctors had prescribed to control
his epileptic seizures, Petitioner began using illegal and potentially unadulterate
drugs. From age thirteen on, he smoked marijuana heavily – almost every day,
frequently all day. He also began snorting cocaine two or three times a week. At
the age of approximately seventeen, he began taking LSD. After he moved to
California at age nineteen, Petitioner developed a serious cocaine addiction, using
as much as $500 worth of cocaine daily, and he injected the cocaine
intravenously. Petitioner’s heavy drug use from such a young age, impaired his
development and exacerbated his cognitive, neurological, psychological, and
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psychiatric impairments. (Ex. 32, M. Cornell Dec., ¶¶ 54, 68-73; Ex. 67, J.
Petitioner’s Mental State at the Time of the Offenses and His
Arrest and Throughout the Trial Proceedings
1407. At the time of the crimes of which Petitioner was convicted and of
his arrest and throughout the trial proceedings, Petitioner suffered severe
psychiatric impairments and disorders that rendered him incompetent to stand
trial and to waive his rights and that reduced his culpability for the crimes and
constituted significant mitigating evidence in favor of a sentence less than death.
Competent counsel would have presented to the trial court and to the jury at both
phases of Petitioner’s trial mental health evidence including, but not limited to:
1408. Shortly after Petitioner’s arrest, in September 1985, William Vicary,
M.D., a psychiatrist, briefly examined Petitioner at the request of his counsel at
the time the Los Angeles County Public Defender.105 Dr. Vicary found that
Petitioner was psychotic, i.e., he suffered mental impairment that
interfered with his ordinary functioning. He appeared to be
irrational and self-destructive. [He] met the criteria for mental
incompetence, . . . in that he did not have the ability to rationally
assist counsel in his defense.
(Ex. 41, W. Vicary, M.D., Dec., ¶ 5.)
1409. Only a few months later, on January 19 and 20, 1986, Dietrich
Blumer, M.D., neuropsychiatrist, examined Petitioner at trial counsel’s request
Trial counsel provided ineffective assistance of counsel for failing to
obtain, review, follow up on, and fairly present Dr. Vicary’s findings. See infra.
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and found he suffered from temporal lobe disorder. “[T]here is evidence of a
disorder of psychotic proportion . . . .” (Ex. 31, D. Blumer, M.D., Dec., ¶ 10.)
1410. Petitioner’s psychosis prevented him from thinking logically or
behaving in a rational manner. His judgment was impaired; he could not function
rationally. As Dr. Blumer stated:
Petitioner suffers from a persistent thought disorder of psychotic
degree. His chief delusion consists of the conviction of having an
intimate relationship with Satan.
....
The neurological and psychiatric symptoms of epilepsy are
complicated; they require careful treatment and periodic monitoring
over a long period of time. Even when the patient no longer
experiences complex partial seizures, there is concern that additional
symptoms may appear, especially where, as here, the patient has
used illicit drugs and no longer takes prescribed medication. It is not
uncommon to see patients with temporal lobe epilepsy develop
psychotic disorders. Treatment for interictal (the phase free of
seizures) psychosis requires effective use of drugs.
(Ex. 31, D. Blumer, M.D., Dec., ¶¶ 9, 14; see Blumer, et al., Treatment of
Interictal Psychoses, J. Clin. Psychiatry 61:2 (Feb. 2000), attached to Exhibit 31.)
1411. Dr. Blumer opined that Petitioner was mentally incompetent and
could not assist counsel in his own defense. (Ex. 31, at ¶ 8.) He further opined
that Petitioner’s psychotic disorder bore directly on the criminal charges that
Petitioner faced, and it would have been vital for the jury to consider such
evidence with respect to Petitioner’s state of mind at the time of the crimes, at the
time of his arrest, and with respect to sentencing. (Id. at ¶¶ 10, 16.)
1412. In May 1987, at the request of trial counsel, Dr. Victor Henderson, a
neurologist, examined Petitioner and concluded that he had suffered brain
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damage. He informed Daniel Hernandez, Petitioner’s trial counsel, of his
findings. (Ex. 96, Henderson letter.)
1413. The opinions of Drs. Vicary, Blumer, and Henderson were known to
trial counsel. They provided constitutionally deficient performance in failing to
present the opinions of those expert to the trial court in support of a motion to
determine Petitioner’s competence to stand trial and to waive rights. The
opinions of these experts, and the factual bases for those opinions, moreover,
would have constituted mental health and other defenses to the charged crimes at
the guilt phase and powerful mitigation at the sentencing phase of Petitioner’s
trial, and counsel performed deficiently in failing to present such defenses to the
jury.
1414. Trial counsel also provided constitutionally deficient performance in
failing to investigate, develop, and present evidence of Petitioner’s mental illness
and impairments that was developed and presented by counsel representing
Petitioner in subsequent legal proceedings – criminal trial proceedings in the San
Francisco County Superior Court and post-conviction proceedings arising from
the Los Angeles case. Evidence such as that obtained by lawyers representing
Petitioner in those proceedings could and should have been presented in
Petitioner’s proceeding in the Los Angeles County Superior Court.
1415. After Petitioner was convicted and sentenced to death in Los
Angeles, he was transferred to San Francisco for trial on additional criminal
charges arising from an incident that occurred there. San Francisco County
Superior Court, Case No. 140188. He was represented by the Office of the
Public Defender for the City and County of San Francisco (“SFPD”). His
counsel in the San Francisco case conducted the social history and mental health
investigation that his counsel in the Los Angeles case failed to undertake. The
social history and mental health investigation confirmed and expanded on the
opinions of Drs. Vicary, Blumer, and Henderson that Petitioner was psychotic,
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suffered an organic-based thought disorder of psychotic proportion, had suffered
brain damage, and was not competent to stand trial or to waive his rights. Such
evidence, which would have been discovered and developed by competent
counsel, would have reduced or eliminated Petitioner’s culpability for the
charged crimes and would have mitigated sentence in the Los Angeles
proceedings.:
1416. George W. Woods, M.D., retained by the SFPD, evaluated
Petitioner. He diagnosed Petitioner with a severe mental disorder: a Psychotic
Disorder due to Temporal Lobe Syndrome, which includes delusions that are both
paranoid and erotomanic. Dr. Woods also found that Petitioner exhibited
significant compulsive and obsessive behavior. And Dr. Woods concluded that
Petitioner suffers significant cognitive deficits, of a kind typically associated with
prefrontal, frontal, and temporal areas of the brain. (Ex. 100, Woods Report, at p.
1.) He identified a number of symptoms resulting from Petitioner’s disorder that
impaired his ability to rationally assist counsel in his defense, including paranoia,
severe mood swings, inability to analyze and process relevant data, altered
sexual interest, limited insight and judgment, and profound depression. As a
result of this constellation of impairments, Dr. Woods opined that Petitioner was
incompetent to stand trial and to waive rights and that Petitioner’s incompetence
dated back to the time of his first contact with the criminal justice system and had
impaired his cognitive, intellectual, and emotional functioning since childhood.
(Id. at pp. 2, 4, 8.)
1417. Dr. Wood’s conclusions are supported by the report of Myla H.
Young, Ph.D., who was retained by the SFPD and administered a series of
neuropsychological and personality tests to Petitioner. Her diagnostic
impressions included: Axis I: Personality Change Due to Epilepsy, Combined
Type (Disinhibited, Aggressive, Paranoid Features) and Mood Disorder Due to
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Epilepsy, with Depressive Features; Axis III: Epilepsy, partial, with Impairment
of Consciousness (Temporal Lobe). (Ex. 98, Young Report, at p. 7.) The
neuropsychological testing that she administered revealed particular impairments
in tasks of memory and higher cognitive functioning – a pattern similar to that of
individuals who have a known history of cognitive impairment secondary to
seizure disorder. (Id. at 3-4.) Petitioner’s impairments in those areas suggest that
he experiences brain impairment that affects his abilities for judgment, planning
ahead, anticipating consequences of his behavior, and modulating his impulses.
The personality testing that she administered revealed that Petitioner suffers
severe, painful depression, pervasive anger, and unmodulated, impulsive
emotionality and indicated that he tends to become lost in an internal world that is
perceptually inaccurate; at times that is grossly distorted; and at times reaches
delusional proportions. (Id. at 7.)
1418. The SFPD also retained Anne Evans, Ph.D., who evaluated
Petitioner and who administered neuropsychological and personality tests. Dr.
Evans concluded, consistent with the findings of Drs. Vicary, Blumer,
Henderson, Woods, and Young, that Petitioner suffers from a serious mental
disorder of long standing. (Ex. 72, A. Evans Dec., at pp. 4-5.) She believed it
likely that his impairments related to his temporal lobe system, noting that the
constellation of symptoms and behaviors are consistent with an organically based
syndrome such as seizure disorder. (Id. at pp. 32-33.) Dr. Evans opined that he
suffers paranoid delusions, that his thinking is severely psychotic, disturbed,
disorganized, and fragmented; his perceptions are markedly inaccurate; he is
seriously out of touch with reality, distorting the meaning of what is going on
around him; and he is unable to modulate his behavior or control his responses
(Id. at pp. 7, 10, 31.) Dr. Evans further opined that Petitioner suffers intense
mood swings and long-standing depression. (Id. at pp. 8.) She concluded that he
was not competent to assist counsel in a rational manner and not competent to
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stand trial or waive rights and that his incompetence dated back at least to his first
contact with the criminal justice system in 1985 and that his mental problems
have been of a long-standing and severe nature. (Id. at pp. 11, 12, 14, 31, 34.)
1419. Petitioner’s mental illness and other mental impairments, evidence
of which lawyers at the SFPD discovered and developed, rendered him
incompetent to stand trial in the San Francisco County Superior Court case. For
that reason, proceedings there were stayed indefinitely in 1995, and he was never
brought to trial. Petitioner’s counsel in the Los Angeles proceeding could and
should have developed and presented the same evidence, to challenge Petitioner’s
competence and to raise guilt- and penalty-phase defenses, and their failure to do
deprived him of the effective assistance of counsel.
1420. State post-conviction counsel in the instant proceedings retained two
additional mental health experts, Dale Watson, Ph.D., and Jane Wells, J.D.,
Ph.D., who evaluated Petitioner and opined that he suffers significant mental
illness and other impairments. Their opinions, again, are consistent with, and
corroborate and expand upon, the previous opinions of Drs. Vicary, Blumer,
Henderson, Woods, Young, and Evans. Again, Petitioner’s Los Angeles County
trial counsel performed deficiently in failing to investigate, develop, and present
this mental health evidence to the trial court and the jury.
1421. Dale Watson, Ph.D., is a neuropsychologist who examined Petitioner
and administered neuropsychological testing at the request of state post-
conviction counsel and determined that Petitioner is severely impaired. Dr.
Watson’s testing shows that Petitioner has impaired executive functions –
abilities associated with supervisory or control functions including the
monitoring, initiation, inhibition, and shifting of behaviors and cognitive sets;
memory impairment; and impairment in the auditory processing centers of the
brain. Such impairments are typically associated with impairment in frontal and
temporal lobes. As a result of these impairments, Petitioner is unable to shift his
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thinking or behaviors to, solve new situation, or make decisions and exercise
affects his behavior, personality, and functioning. (Ex. 42, D. Watson, Ph.D.,
Dec., ¶¶ 11-21.)
1422. Dr. Watson concluded that Petitioner has temporal lobe disorder that
was likely etiologically related to the psychotic disorder that other mental health
experts had diagnosed. (Id., at ¶¶ 19-20.) According to Dr. Watson’s findings,
Petitioner suffers from a neurocognitive brain-related disorder and is psychotic –
the same findings made by Dr. Blumer twenty-two years ago. Petitioner remains
severely impaired. Dr. Watson also concluded that Petitioner appears to suffer
from frontal lobe dysfunction with neurocognitive deficits and that he suffers
from depression, a mood disorder, and memory impairment. (Id. at ¶ 21-22.)
1423. Dr. Watson opined that Petitioner was not competent to stand trial or
waive rights in his state-court proceedings. (Id. at ¶¶ 24, 26.) He further opined
that his mental health findings were linked directly to Petitioner’s culpability for
the crimes charged, his competence to stand trial, his waiver of fundamental
rights, including penalty trial and a reliable determination of penalty and would
have been crucial to provide to the jury. (Id. at ¶¶ 26.)
1424. Dr. Jane Well, J.D., Ph.D., evaluated Petitioner at the request of state
post-conviction counsel. She concluded that he suffers a myriad of mental
problems, including a psychotic disorder somewhere on the schizophrenic or
psychotic end of the spectrum. (Ex. 43, Wells, Dec., ¶ 49.) She observed him to
be significant paranoid, delusional, and thought-disordered. (Id.) She also
opined that he suffers a mood disorder with transient manic and depressive states
as well as agitation and hypersexuality. (Id.) And she concluded that he suffered
organic brain damage. (Id., at ¶ 52.) Based on her findings, Dr. Wells concluded
that Petitioner was incompetent to stand trial and to waive rights in his state-court
proceedings. (Id. at ¶ 51.)
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1425. In light of the above, competent counsel could and should have
investigated, developed, and presented evidence that Petitioner, from his
childhood and continuing to the present day, suffered from long-standing and
severe psychiatric, psychological, neurological, and cognitive impairments,
including, but not limited to, long-standing temporal lobe epilepsy; mental
incompetency in September 1985; thought disorder of psychotic proportion,
resulting from his seizure disorder; psychotic disorder; disorganized speech,
thought, and behavior; hallucinations, delusions, paranoia; severe mood disorder;
brain damage; severe impairments in memory tasks and higher cognitive
functioning, of a kind typically associated with impairment of the frontal and
temporal lobes; impairments in his ability to inhibit behavior and responses and
obsessive and compulsive behaviors; and the impact on his behavior and
personality of multiple disorders – all of which established that Petitioner was
seriously mentally ill and incompetent to stand trial and waive his rights and
which would have constituted effective defenses, at guilt and penalty, to the
crimes charged against him. Indeed, Petitioner’s conduct throughout his life was
consistent with these types of mental disorders.
B.
Petitioner Was Prejudiced at Both Phases of His Capital Trial by Trial
Counsel’s Failure to Conduct an Adequate Social History
Investigation, to Present that Information to Appropriate Mental
Health Experts, and to Present to the Jury on Petitioner’s Behalf All
the Evidence that Bore on Petitioner’s Competence to Stand Trial and
to Waive Rights and on Guilt and Penalty
1426. While the prosecution portrayed Petitioner as a cold-blooded,
remorseless killer, in fact, Petitioner’s myriad impairments indicate that he was
incompetent at the time of the offenses charged and throughout his trial
proceedings. Had the jury known about Petitioner’s serious mental impairments,
especially his psychosis, severe mood disorder, neurological and cognitive
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deficits, PTSD, and other mental impairments, it would have better understood
Petitioner and his background. The multiple deficits and impairments described
by Drs. Blumer, Vicary, Henderson, Woods, Young, Evans, Wells, and Watson
indicate that numerous mental state and other defenses could have been presented
at Petitioner’s guilt and penalty phases. Had the jury been presented an accurate
profile of Petitioner’s history and life, this evidence would have mitigated the
prosecution’s case because the jurors would have had a proper context in which
to judge Petitioner’s behavior and assess his culpability. Similarly, had the jurors
known that Petitioner was suffering from serious and bona fide mental illness,
they would have viewed the guilt evidence in a manner that comported with all
the relevant facts and reached a verdict more favorable to Petitioner. (Exs. 28, M.
Herrera Dec., dated 06/12/2004; 29, D. McGee Dec., dated 06/09/2004; 117, D.
McGee Dec., ¶ 10; 30, M. Salcido Dec., dated 06/09/2004; Ex. 115, M. De Ruiter
Dec., ¶ 3.)
1427. At the guilt trial, the defense counsel ineffectively relied on or
presented the testimony of several witnesses, including an expert who testified
regarding time of death in the Vincow case and the circumstances of Yu’s death;
two witnesses who testified regarding visibility and viewing conditions at night
in Yu, Doi, Nelson, and Petersen incidents; alibi witnesses regarding Petitioner’s
whereabouts at the end of May 1985; testimony about hair and serology in six of
the cases; testimony from an expert regarding eyewitness identification generally;
and finally, testimony of convicted felon Sandra Hotchkiss who testified about
her contact with Petitioner in the course of committing burglaries. While this
evidence had some potential to undermine the prosecution’s case, it was not even
remotely as powerful or relevant to the issues before the jury as the compelling
mental health evidence that was readily available, bore directly on Petitioner’s
legal and moral culpability, and unequivocally negated the mental states required
to convict Petitioner and sentence him to death.
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1428. Had the jurors known of Petitioners severe and long-standing mental
illness and impairments, they would have given full consideration to all the
relevant evidence bearing on the question of guilt and sentence. Several of the
trial jurors indicate they would have considered all evidence bearing on
Petitioner’s guilt. The jurors report that had the defense presented more
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30,
115, 117.)
1429. Several of the jurors indicate they expected to hear evidence
presented by the defense to save their client’s life. Mitigation evidence could
have had a difference in the outcome. Evidence presented on Petitioner’s behalf
would have been carefully considered during four days of deliberations,
particularly evidence of Petitioner’s background and mental condition. (Exs. 28-
30, 115, 117.) Counsel’s failings made Petitioner even less sympathetic in the
eyes of the jury and inclined it even more toward death.
1430. The account of Petitioner’s life presented in this petition, although
incomplete, as a result of Petitioner’s present incompetence to assist habeas
counsel, nevertheless evokes sympathy for Petitioner by providing an
explanation, grounded in documents and facts about his history, of the conduct
that led to his current circumstances. This critical evidence, which was never
presented on Petitioner’s behalf, clearly establishes Petitioner’s reduced
culpability and the utter inappropriateness of the death sentence imposed by the
jury. Indeed, it presents a prima facie case of ineffective assistance of counsel –
counsel’s performance fell below the stand of competent performance articulated
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
(1984) and its progeny, and but for counsel’s errors, Petitioner would have
received a more favorable outcome at both phases of his capital trial. Had
counsel performed competently, and conducted a minimally adequate
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investigation, they would have been able to present a wealth of evidence on
Petitioner’s behalf, including but not necessarily limited to the following proof:
(a) A childhood characterized by extreme poverty, physical and
emotional neglect, physical and emotional abuse, and overall deprivation;
(b) A gross and persistent absence of parental attention, guidance,
affection, and protection that resulted in a pervasive and premature independence
from authority;
(c) Cognitive, neurological, psychological and psychiatric
impairments of early origin as disclosed in pre-existing medical reports, pretrial
neuropsychiatric reports, and post-conviction neuropsychological testing and
psychiatric evaluation;
(d) Early childhood exposure to alcohol and illegal depressants,
stimulants and hallucinogens during Petitioner’s critical formative years;
(e) Early and repeated childhood exposure to extreme levels of
violence, trauma, and abuse;
(f) Early childhood exposure to criminal activity by older brothers
and others in the community;
(g) Extreme traumatic events outside the range of normal human
experience, including witnessing the aftermath of the shooting death of his
cousin’s wife;
(h) Petitioner’s commitment as a teenager to Texas Youth Council
and his incarceration in the Los Angeles County Jail while awaiting trial on the
capital charges as a young adult.
1431. Trial counsel’s failure to investigate and discover detailed and
documented information about Petitioner’s personal and family history, and to
present evidence of Petitioner’s background and impairments to appropriate
mental health experts, denied Petitioner the right to a reliable mental health
evaluation and precluded Petitioner from presenting the jury powerful statutory
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and nonstatutory mitigation evidence as a basis for a sentence less than death.
Had counsel performed competently and presented the wealth of evidence that
existed regarding Petitioner’s life, upbringing, and multiple cognitive, organic,
and mental health impairments, a result more favorable to Petitioner would have
been obtained. Counsel’s substandard performance prejudiced the defense by
failing to present the jury with readily available evidence that demonstrated
Petitioner’s lessened moral and legal culpability.
1432. Counsel’s many failings rendered both the trial court and the jury
completely ignorant and unaware of the existence of significant and compelling
evidence of Petitioner’s multiple cognitive, neuropsychological, neurological,
emotional and psychiatric impairments and deficits. This evidence was critical to
Petitioner’s constitutional rights to, inter alia, effective assistance of counsel, due
process and a fair trial. The failure to present this evidence assured that
Petitioner’s trial was anything but fair; under these circumstances, Petitioner’s
trial could not comport with the constitutional requirements of the due process
mandated by capital jurisprudence. Counsel had a duty to present all evidence
that demonstrated that Petitioner was not competent to stand trial or waive rights,
that potentially negated Petitioner’s culpability and that provided a basis for a
sentence less than death. There was significant available mitigating evidence of
Petitioner’s serious mental illness, his youthfulness, lack of prior felony record,
close family ties, and even in the circumstances of charged offenses, particularly
the instances in which victims were not killed. Counsel’s failings are
inexcusable.
1433. The lack of mitigation evidence clearly was not lost on the court. In
preparation for instructing the jury at penalty trial, the court observed that defense
requested special instruction setting forth mitigating factors (see XXX CT 8893)
was not warranted by the evidence.
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The Court: Well, since none of this has been done, it is really not a
relevant instruction.
(217 RT 24789.) Similarly, the court denied the defense requested instruction
concerning Petitioner’s age. (See XXX CT 8894.)
The Court: I do not believe, Mr. Clark, that the instruction is
pertinent to any evidence that I’ve heard in this case.
(217 RT 24790.)
1434. Counsel’s failure to present any extenuating evidence was repeatedly
called to the jury’s attention by the prosecution in argument. First, the prosecutor
structured his argument based on the list of aggravating and mitigating factors
that the statute directed the jury to take into account in fixing the penalty. See
former Cal. Penal Code § 190.3. Reviewing each of those factors, (d) through
(k), the prosecutor found none favorable to Petitioner. (See 217 RT 24807-18.)
The prosecutor told the jury:
There has been no evidence presented to you in terms of mitigation
here, and I submit because there is none. There is no mitigating this
person. . . .
This man is the personification of evil and if anyone ever has earned the
death penalty, Petitioner has.
(217 RT 24832-33.)
1435. In response to the prosecution’s argument, trial counsel’s
substandard performance left them no choice but to concede what the prosecution
had already argued. No mitigating evidence regarding Petitioner’s character,
background or history was presented. And, as if counsel’s own failings were not
enough, as the prosecutor had done, trial counsel reminded the jury of the
absence of mitigation evidence. “I don’t think anybody knows and I don’t think
anybody will ever know [Petitioner’s motivation].” (217 RT 24840.) Counsel
had the temerity to comment on the lack of mental state evidence: “What
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possessed Petitioner to do this we will not know soon.” (Id. at 24841.) Indeed,
counsel told the jury “it is your job to search for [mitigating evidence] if you
decide to extend mercy for Petitioner, that is, permit him to live.” (Id. at 24852.)
Given the very serious charges against Petitioner, it is difficult to imagine a more
impotent closing argument or more troubling example of ineffective assistance of
counsel.
1436. Trial counsel totally failed to present any positive evidence of
Petitioner’s attributes, actions, his youth, or family relationships in mitigation.
Although trial counsel claimed to have spoken with witnesses in Texas, it is not
clear what, if anything, was actually done to prepare for the penalty trial. Indeed,
given the nature of this case with numerous brutal killings, any hope or chance
that the jury would return anything less than a death verdict rested exclusively on
the efforts of counsel to present mitigating evidence at penalty trial and to explain
and make understandable for the jury Petitioner’s background, upbringing, and
motivations – in essence, to humanize Petitioner in the eyes of the jury. Trial
counsel’s tactics cannot be construed as reasonable. Trial tactics or strategy did
not militate in favor of abandoning mitigating evidence; to the contrary,
appropriate tactics and strategy in this case above all demanded a vigorous
presentation of all possible evidence on Petitioner’s behalf. Strickland v.
Washington.
1437. Had all the information described herein been adequately
investigated, developed and presented to mental health experts at Petitioner’s
trial, they would likely have concluded, that Petitioner’s history was rife with
serious mental illness, brain impairment, psychosis; he in fact exhibited
symptoms of mental illness and disturbance, including but not necessarily limited
to schizophrenia, mood disorders, depression and trauma, and that these disorders
would likely have supported a mental state defense at trial and would have
mitigated the evidence against him.
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1438. Trial counsel’s submission of the case without offering any tangible
mitigating evidence during the penalty trial was tantamount to a concession that
the death penalty was proper in this case. The refusal to present any mitigating
evidence of which counsel was aware constitutes a miscarriage of justice. While
nothing in the pertinent statutory provisions or jury instructions suggested that a
death penalty was required in the event Petitioner failed to offer any mitigating
evidence (See § 190.3), the absence of any mitigating evidence in light of the
prosecution’s overwhelming case against Petitioner offered the jury no alternative
but to vote for the death penalty.
1439. Petitioner’s conviction and death sentence must be reversed and
vacated due to the failure of Petitioner’s counsel to render effective assistance of
counsel in the preparation, investigation and presentation of the defense case at
the guilt and penalty phases. Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.
Ct. 2574, 91 L. Ed. 2d 305 (1986); Strickland v. Washington, 466 U.S. at 685.
1440. The declarations of Drs. Blumer, Vicary, Woods, Evans, Young,
Henderson, Watson, and Wells, and of Marilyn Cornell make clear that Petitioner
was prejudiced by the ineffective assistance of his trial lawyers in failing to
present available mitigating evidence on Petitioner’s behalf at the penalty trial.
Trial counsel’s substandard performance resulted in their failure to discover and
develop this evidence, even though they had information in their possession that
should have put them on notice that such investigation was necessary.
Petitioner’s habeas experts have discovered and developed the evidence that was
readily available to counsel at the time of trial, had they performed even
minimally adequate investigation into Petitioner’s life. Had trial counsel
presented the trial experts with the evidence which current counsel has
developed, and had the trial experts performed competently, they would have
reached the same conclusions as Petitioner’s habeas experts.
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1441. Petitioner was severely prejudiced by counsel’s failure to investigate
and present all mitigating evidence at trial. This evidence would have provided a
powerful counterpoint to the prosecutor’s damning argument that Petitioner
deserved to die. In fact, the combination of Petitioner’s deprived history of
mental illness and impairment, neglect, abuse, exposure to neurotoxins, excessive
exposure to trauma and violence, PTSD, and depression, would have provided the
jurors with powerful evidence of his impairments and garnered the jury’s
sympathy. Petitioner’s impairments cast serious doubt on the prosecution’s case
and on the outcome at the guilt and penalty phases of trial.
1442. Given this evidence, which was not presented on Petitioner’s behalf
due to the ineffective assistance of counsel and experts, Petitioner’s conviction
and sentence must be set aside. This evidence should have been presented on
Petitioner’s behalf at both the guilt and penalty phases of his capital trial. But for
counsel’s errors, it’s more probable than not, that the jury would have returned
verdicts more favorable to Petitioner and that they would have rendered a
sentence of life, not death.
C.
Additional Constitutional Violations
1443. Counsel failed in numerous other respects, including but not limited
to the following;
(a) Trial counsel were on notice of Petitioner’s serious mental
impairments and his mental incompetency. Their performance in not
investigating and presenting mental state evidence fell below the standard of care
at the time of Petitioner’s trial. Because of the history of mental impairments,
Petitioner’s purported waivers taken by the court were not knowing, voluntary, or
intelligent, including but not limited to use of restraints at trial, waiver of a guilt
and penalty defense, absence from trial proceedings, self-incrimination, and
impermissible consciousness of guilt inference due to Petitioner’s refusal to
remove his sunglasses.
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(b) Trial counsel incompetently conducted the Hovey voir dire and
failed to explain a reasonable defense strategy and mental state and mitigation
evidence to prospective jurors.
(c) Counsel failed to explain Petitioner’s mental state at the time of
the murders, including brain impairment, psychosis, mental illness, drug use, and
addiction that would have persuaded the jury at the guilt trial that Petitioner was
not culpable for first degree murder and at the penalty trial, that Petitioner was
not death-worthy.
(d) Counsel failed to explain Petitioner’s mental state with respect
to his post-arrest conduct. On one occasion, Petitioner was observed by a jail
deputy in his cell sitting on the toilet with blood on his hands drawing a
pentagram on the floor. (176 RT 20599-600.) On numerous occasions in the
courtroom, Petitioner invoked the words “Hail, Satan” and displayed a pentagram
on the palm of his hand in the courtroom. (See Id. at 20603-04, 20607.) On
January 30, 1989, Petitioner appeared at trial in leg shackles. The court accepted
a waiver from Petitioner to wear shackles instead of a less obtrusive leg-brace.
Petitioner was absent from the courtroom for the guilt verdicts on September 20,
1989. He was housed in a holding cell near the courtroom. (XXX CT 8789). On
November 7, 1989 prior to being sentenced, Petitioner made a bizarre and
incoherent statement to the court.
(e) Counsel failed to properly defend Petitioner. On May 8, 1989,
trial counsel was not prepared to present its case because Petitioner said that he
did not want any defense. (178A RT 20759-60). Later that day, Mr. Clark
indicated that Petitioner “flip-flopped” again, and he wanted a limited defense.
However, Daniel Hernandez stated that he did not intend to present a complete
defense because without Petitioner’s cooperation it would not be in the client’s
best interests. (Id. at 20789, 20794).
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(f) Petitioner has been prejudiced by the ineffective assistance of
trial counsel due to failures discussed above and for their failure to request legally
correct and accurate jury instructions at guilt and penalty phases and by their
failure to formulate appropriate jury instructions.
(g) Petitioner certainly was not asked to waive his right to have the
jury fully instructed. Without such a waiver, Petitioner’s counsel are simply not
authorized to deprive him of these important constitutional rights. A fundamental
decision to waive constitutional rights to have a jury fully instructed on the law is
not something that can be waived without an express waiver given by Petitioner
in open court.
(h) Petitioner was denied his constitutional rights to due process and
a reliable penalty determination because his trial counsel failed to present
mitigating evidence of Petitioner’s age and the trial judge refused to instruct the
jury as to Petitioner’s age.
(i) Because Petitioner’s trial counsel failed to present mitigation
evidence, the prosecution relied on the language of CALJIC No. 8.85, which
undermined Petitioner’s right to a reliable determination of penalty.
(j) Petitioner was denied his constitutional rights to due process and
a reliable penalty determination because his trial counsel failed to propose an
appropriate admonition pursuant to CALJIC No. 8.84.1. (RB 310-12.) The
deficiencies in this instruction prejudiced his substantial rights because the
instruction was fundamentally flawed. Petitioner has been prejudiced from the
ineffective assistance of trial counsel for their failure to propose an appropriate
instruction.
(k) Trial counsel requested and then withdrew a jury instruction on
the meaning of life without the possibility of parole. It was ineffective assistance
of counsel not to submit a properly worded instruction regarding life without the
possibility of parole.
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(l) The cumulative errors that occurred at the guilt and penalty trials
were due to counsel’s ineffectiveness.
(m) Counsel failed to adequately prepare, litigate, and represent
Petitioner at the motion for modification of the verdict under § 190.4(e) based on
the omissions discussed above. Under the statute, before a trial judge may
impose the death penalty after a jury’s recommendation thereof, the judge must
undertake an independent reweighing of the evidence, make an independent
determination as to whether imposition of the death penalty is appropriate, give a
specific statement on the record of the reasons for its decision on those matters,
and provide for the entry of such reasons on the clerk’s minutes.
CLAIM 19:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS WITH RESPECT TO
PETITIONER’S MENTAL COMPETENCY TO WAIVE
PRESENTATION OF MITIGATION EVIDENCE
1444. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XIX
of the Opening Brief.
1445. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1446. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1447. Petitioner exhibited irrational and bizarre behavior before and during
the guilt trial, as described, supra.
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1448. On August 23, 1989, counsel informed the trial court that Petitioner
would “do whatever he can physically and otherwise to resist coming into the
courtroom” on August 31, 1989, the date for hearing on his mistrial motion. (I
Supp. CT VIII 2433.) The trial court expressed concern about “any unnecessary
physical altercations, that means everybody, and there is a chance of injury all the
way around.” (Id. at 2433.) The court did not want to have televised coverage of
a fight in the courtroom. (Id. at 2434.) The court informed counsel that
Petitioner allegedly made a threat against the court. (Id. at 2433-34.) The
prosecutor was upset about Petitioner’s behavior; Petitioner previously disrupted
court proceedings and called the trial court “a bunch of names.” (Id. at 2435.)
1449. Trial counsel told the court that Petitioner would be disruptive if he
were required to appear in court on August 31, 1989. Counsel requested that
Petitioner be allowed to listen to court proceedings in a holding cell. (
RT 24624-25.) Counsel Daniel Hernandez also stated:
I am representing to the court that it is a serious situation. ¶ At this
point I’m concerned that I may not be able to maintain that type of
situation [courtroom decorum].
(Id. at 24625.)
1450. The trial court commended counsel for a “stellar job that you have
done in keeping this guy under control,” and credited the law clerk, “who spends
a great deal of his time at counsel table talking with him or amusing one another.”
(Id. at 24625.)
1451. Shortly thereafter, Petitioner appeared in court and stated: “This
trial is a joke.” (Id. at 24629.) He also directed crude remarks to the court:
“Piece of shit” and “Fuckin’ asshole,” before being escorted from the courtroom.
(Id. at 24629.)
1452. Petitioner subsequently absented himself from two crucial court
proceedings: the hearing on the motion for mistrial and the guilt trial verdicts.
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At the hearing on the mistrial motion, held on August 17, 1989, Petitioner was
placed in a holding cell with a “piped-in sound system.” (215 RT 24653.) The
next occasion when Petitioner appeared in court on September 20, 1989, the jury
returned its verdicts. Petitioner wore jail clothes and chains, and sought to waive
his appearance before the jury. (216 RT 24705-08.) On accepting Petitioner’s
waiver, the trial court observed that “if [Petitioner] decides to raise a physical
fight by being in court and we have to chain him, rather than do that, I will take a
waiver from him and let him sit this one out. ¶ He can listen to it in the lockup.”
(Id. at 24709.) The court advised Petitioner that, “we have no way of knowing
what sort of an impact [your absence] will have on the jury,” and that “if there is
a penalty phase . . . that unknown impact may very well go against your best
interests.” (Id. at 24710.)
1453. Before the verdicts were read, the court informed the jury that
Petitioner was absent from trial.
We took a waiver from him. He did so. He waived his right to be
here. I found that was freely and voluntarily and intelligently made,
and I went along with his desires and he is listening to these
proceedings in a cell below us. We have piped in sound, and so he
is aware of what is going on and to that extent is present in court, but
physically he is not.
So please do not consider this for any purpose. It is just a request
that he has made and I think the law requires to me to along with that
request.
(216 RT 24714-15.)
1454. Following Petitioner’s conviction of thirteen murders, thirty lesser
crimes, and true findings of nineteen special circumstances, one week later, on
September 27, 1989, the court accepted Petitioner’s waiver of presenting any
mitigating evidence on his behalf. At the time of the waiver, and despite manifest
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and substantial evidence of Petitioner’s continued bizarre behavior, including his
lack of cooperation with counsel, his refusal to appear in court, his outbursts in
court, and his irrational comments to the court, the court made no inquiry of
counsel, or Petitioner, as to Petitioner’s present mental condition or competency.
The court was aware that Petitioner repeatedly had refused to cooperate with
counsel in his defense and repeatedly had made strange and bizarre expressions,
all of which, by any measure, cast doubt on his mental competence.
Illustrative of Petitioner’s delusional and psychotic thinking and mental
incompetence was his statement at his sentencing:
It is nothing you would understand, but I do have something
to say. In fact, I have a lot to say, but now is not time or the place. I
don’t even know why I’m wasting my breath, but what the hell.
As for what is said of my life, there have been lies in the past
and there will be lies in the future. I don’t believe in the hypocritical
moralistic dogma of this so-called civilized society and need not
look beyond this room to see all of the liars, the haters, the killers,
the crooks, the paranoid cowards, truly the trematodes of the earth,
each one in his own legal profession.
You maggots make me sick. Hypocrites one and all. We are
all expendable for a cause, and no one knows that better than those
who kill for policy, clandestinely or openly, as do the governments
of the world which kill in the name of God and country and for
whatever else they deem appropriate.
I don’t need to hear all of society’s rationalizations. I’ve
heard them all before and the fact remains that is what it is.
You don’t understand me. You are not expected to. You are
not capable of it. I am beyond your experience. I am beyond good
and evil.
Legions of the night, night breed, repeat not the errors of night
prowler and show no mercy. I will be avenged. Lucifer dwells
within us all. (219 RT 24929-30.)
This was but a sample of Petitioner’s statements and conduct throughout trial,
which put the trial court on notice that Petitioner was not competent to waive
presentation of mitigation evidence, including evidence of his mental
incompetency.
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1455. In the Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d
815 (1966), the Supreme Court found that where sufficient evidence is presented
that a defendant may be mentally incompetent, due process requires that a hearing
be held on that issue. The defense in Pate presented testimony of four lay
witnesses who related defendant’s history of disturbed behavior and gave
opinions of present insanity, as well as evidence of a brief prior commitment. Id.
at 383-84. The court found this showing sufficient to grant habeas corpus relief
due to failure properly to inquire as to defendant’s competence to stand trial. Id.
at 385.
1456. In Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d
(1975), the Court reconfirmed Pate, that due process requires a hearing on the
issue of a defendant’s mental competency upon a proper showing. The Court
considered evidence of defendant’s absence from the courtroom resulting from
injuries sustained in a suicide attempt as supporting the need to inquire into the
defendant’s competence. First, the accused’s forced absence implied a demeanor
making him unable to cooperate with counsel in his defense; second, it deprived
court and counsel of a further opportunity to observe his capacity rationally to
understand the proceedings and contribute to his defense. Id. at 180-81. The
Court noted that, “[e]ven when a defendant is competent at the commencement of
his trial, a trial court must always be alert to circumstances suggesting a change
that would render the accused unable to meet the standards of competence to
stand trial.” Id. at 181. The Court described the requirements of the inquiry:
The import of our decision in Pate v. Robinson is that evidence of a
defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in
determining whether further inquiry is required, but that even one of
these factors standing alone may, in some circumstances, be
sufficient. There are, of course, no fixed or immutable signs which
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invariably indicate the need for further inquiry to determine fitness
to proceed; the question is often a difficult one in which a wide
range of manifestations and subtle nuances are implicated. That they
are difficult to evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.
Id. at 180.
1457. There is a basic presumption against the waiver of constitutional
rights. Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 16 L. Ed. 2d
(1966). To properly waive a constitutional right a defendant must do so
voluntarily, knowingly and intelligently, with a sufficient understanding of the
relevant circumstances and the likely consequences. See Brady v. United States,
397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Johnson v. Zerbst,
304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). To meet this standard when
waiving the right of presenting mitigating evidence to a penalty phase jury, an
individual must understand what constitutes mitigating evidence and whether any
such evidence exists in his case. Against this backdrop, Petitioner’s decision did
not constitute a valid waiver.
1458. Counsel’s performance was deficient. Trial counsel failed properly
to investigate mitigating evidence their cursory investigation had revealed.
Evidence of childhood abuse, institutional failure, poly drug use, and long-
standing mental illness and organic brain disorder was available to trial counsel.
Counsel decided not to go forward at trial without fully investigating and
understanding the impact of the mitigation evidence and Petitioner’s impaired
mental state. Thus, the primary evidence the jury heard was extremely violent
criminal acts.
1459. A proper investigation by trial counsel using the evidence in their
possession would have uncovered significant, readily available mitigating
evidence regarding childhood abuse and neglect, institutional failure, polydrug
528Page 553 Page ID #:
use, multiple mental impairments, including organic brain damage, and
psychosis. Petitioner’s purported waiver was based on lack of advisal and
understanding of the consequences and was therefore not a knowing and
intelligent waiver under Brady. Petitioner cannot be held to have waived his
fundamental right to present penalty phase evidence as he was mentally
incompetent.
1460. The Court has repeatedly held that the criminal trial of an
incompetent defendant violates due process. Medina v. California, 505 U.S. 437,
112 S. Ct. 2572, 120 L . Ed. 2d 353 (1992); Pate, 383 U.S. at 378.Competence to
stand trial is rudimentary, for upon it depends the main part of those rights
deemed essential to a fair trial, including the right to effective assistance of
counsel, the rights to summon, to confront, and to cross-examine witnesses, and
the right to testify on one’s own behalf or to remain silent without penalty for
doing so.
Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S. Ct. 1810, 118 L. Ed. 2d
(Kennedy, J., concurring) (citation omitted).
1461. As demonstrated above, following the guilt trial, there was further,
substantial evidence of Petitioner’s unsound mental condition that placed the
court on notice that Petitioner was mentally incompetent to stand trial and to
waive his rights, thus, triggering the trial court’s duty of inquiry regarding
Petitioner’s mental state. Despite ample evidence that Petitioner was mentally
unsound and incompetent, the court failed to order a competency hearing sua
sponte. Under the circumstances of this case, federal due process obligated the
court to initiate proceedings to determine Petitioner’s competency to waive
presentation of mitigation evidence. Before accepting Petitioner’s purported
waiver of mitigation evidence at the penalty trial, the court was required by law
to determine his competency. Failing to do so, the court erred and abused its
discretion.
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1462. An error in failing to declare a doubt as to competence is reversible
per se. Pate, 383 U.S. at 389. Such an error may not be cured by a retrospective
determination of Petitioner’s mental competence.
1463. Were a lesser standard of error other than prejudice per se to apply,
the trial court’s failure to inquire as to Petitioner’s mental competence to waive
penalty trial ultimately prejudiced Petitioner. First, a retrospective determination
of Petitioner’s competence would demonstrate that Petitioner was, in fact,
incompetent to stand trial and incompetent to waive his rights. Second, in the
alternative, the jury considered the mass of evidence at guilt trial. Following the
guilt verdicts, the jury deliberated for a lengthy period of time at the penalty trial.
However, the jury was prevented from considering any mitigation evidence in
the penalty phase because the court turned a blind eye to Petitioner’s mental
incompetence and permitted him to waive presentation of significant mitigating
evidence to the jury. The Supreme Court in Godinez v. Moran, 509 U.S. 389,
396, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), reaffirmed that a defendant
cannot stand trial if he cannot “consult with his lawyer with a reasonable degree
of rational understanding,” or lacks “a rational as well as factual understanding of
the proceedings against him.” The Court has long held that an incompetent
person cannot be permitted to proceed to trial: “We have repeatedly and
consistently recognized that ‘the criminal trial of an incompetent defendant
violates due process.’” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373,
134 L. Ed. 2d 498 (1996).
1464. The error constituted a federal due process violation under the
Fourteenth Amendment and penalty reliability under the Eighth and Fourteenth
Amendments with respect to the heightened need for the determination that death
is the appropriate punishment. Woodson v. North Carolina, 428 U.S. 280, 96 S.
Ct. 2978, 49 L. Ed. 2d 944 (1976); California v. Ramos, 463 U.S. 992, 103 S. Ct.
3446, 77 L. Ed. 2d 1171 (1983). Petitioner’s right to a fair penalty determination
530Page 555 Page ID #:
was prejudiced as a result of the court’s failure to conduct a proper competence
and waiver inquiry.
1465. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1466. In addition, the denial of his right to effective assistance of counsel
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
unfair, eroded the reliability of the verdict and had a substantial and injurious
effect on the verdict. But for the denial of this right, it is reasonably probable that
a more favorable result would have been attained. Under these circumstances,
the adversarial system completely broke down, and Petitioner was left without
meaningful representation. Although many of trial counsel’s errors were, by
themselves, so egregious as to require reversal, the extraordinary accumulation of
errors and omissions over the course of the trial created a total breakdown in the
adversarial process, so that prejudice is conclusively presumed. United States v.
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d
(1984). Even assuming a showing of prejudice is required, Petitioner has made
531Page 556 Page ID #:
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
L. Ed. 2d 674 (1984).
CLAIM 20:
THE TRIAL COURT’S DENIAL OF PETITIONER’S
MOTION TO SEVER UNRELATED INCIDENTS VIOLATED
HIS CONSTITUTIONAL RIGHTS AT BOTH PHASES OF
THE TRIAL
1467. Exhaustion of the claim: The argument in this claim regarding the
guilt phase was fairly presented to the California Supreme Court in the direct
appeal, in Section V of the Opening Brief. The argument as to the effect of the
violation at the penalty phase was fairly presented to the California Supreme
Court, in Section XXI of the Opening Brief.
1468. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1469. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
A.
Facts
1470. On September 30, 1987, Petitioner moved to sever counts
comprising fifteen incidents: forty-three charges, and nineteen special
circumstances. (XXIV CT 7003-17.) Petitioner offered two principal grounds in
support of his motion: (1) the crimes charged were not connected in their
commission and (2) the offenses were not cross-admissible. He sought to sever
the charged crimes into eight different trials based on cross-admissibility of
physical evidence as follows:
532Page 557 Page ID #:
(a) Petersen and Abowath (common ballistics evidence)107;
(b) Hernandez/Okazaki, Yu and Kneiding (common ballistics evidence);
(c) Khovananth and Zazzara (common ballistics evidence);
(d) Higgins108 (absence of any cross-admissible evidence);
(e) Vincow (absence of cross-admissible evidence);
(f) Kneiding, Bennett, Bell/Lang, Cannon, Nelson, and Doi (similar shoe
print evidence);
(g) Dickman (absence of cross-admissible evidence); and,
(h) Kyle (absence of cross-admissible evidence).
(XXIV CT 7119.)
1471. Petitioner conceded the existence of eyewitness identification
evidence in nine incidents: Hernandez/Okazaki, Yu, Doi, Kyle, Nelson,
Dickman, Khovananth, Petersen, and Abowath. (XXIV CT 7120-22.)
According to the prosecution’s case, there were four different firearms
used in three separate sets of incidents and one unrelated incident. At trial, the
prosecution established that the same .22-caliber firearm was used in
Hernandez/Okazaki, Yu and Kneiding, but a different .22-caliber firearm was
used in Zazzara and Khovananth. A third weapon was used in Doi, a .22-caliber,
Jennings semi-automatic pistol. Bullets and cartridge casings recovered in
Petersen and Abowath were identified as fired from the same .25-caliber firearm
which was not recovered.
At the hearing on the severance motion, the prosecution conceded that
the Higgins incident was dissimilar and moved to dismiss counts 19 and 20 of the
information pursuant to § 1385. The court so ordered. (40 RT 2865-67.) The
dismissal is reflected in the amended information filed December 9, 1987. (XIX
CT 5372-5417.) Petitioner was neither tried for nor convicted of any crimes
involving Higgins. That incident is thus not included in this claim for relief.
Shoe prints were identified as having been made by Avia aerobic shoes,
size 11 to 12, except in Abowath, where the shoe print matched Stadia brand
shoes worn by Petitioner at the time of his arrest.
533Page 558 Page ID #:
1472. The prosecution argued that all counts had been properly joined and
that all evidence would be cross-admissible. It argued, for example, that stab
wounds inflicted on the victim in the Vincow incident were shared common
marks with evidence in other incidents in which a sharp instrument was used.
(See 40 RT 2865.)
1473. The trial court ruled that all crimes were of the same class. In all
incidents in which a homicide had occurred, it reasoned that burglary charges
formed the basis for alleged felony-murder special circumstances, and that all
evidence in every incident was cross-admissible because of the existence of a
common scheme and design. (40 RT 2868.) The court also ruled that the need
for judicial economy outweighed any potential prejudice to Petitioner. (Id. at
2869-70; XXV CT 7217.)
B.
Argument
1474. Joinder of separate offenses in a single trial is permitted under §
if the alleged crimes are all related by stemming from the same incident, being
alternate statements of the same offense, or belonging to the “same class of
crimes or offenses.” Section 954 grants discretion to a trial court to sever counts
that are otherwise joinable under the statute. However, a trial court must sever
separate offenses if the defendant makes a clear showing of potential prejudice
from the joinder. People v. Kraft, 23 Cal. 4th 978, 1030, 5 P.3d 68, 99 Cal. Rptr.
2d 1 (2000); People v. Bradford, 15 Cal. 4th 1229, 1314-15, 939 P.2d 259,
Cal. Rptr. 2d 145 (1997).
1475. The party seeking severance has the burden to show there is a
“substantial danger of prejudice requiring that the charges be separately tried.”
People v. Bradford, 15 Cal. 4th at 1315. A trial court’s ruling denying severance
is reviewed under an abuse of discretion standard. Id. Appellate review of the
denial of a motion to sever is judged by the information “available to the court at
534Page 559 Page ID #:
the time the motion is heard.” People v. Cummings, 4 Cal. 4th 1233, 1284,
P. 2d 1, 18 Cal. Rptr. 2d 796 (1993).
1476. The factors to be considered in granting or denying severance are
well-established. Denial of a motion to sever may constitute an abuse of
discretion when: (1) evidence of the crimes to be tried jointly would not be
cross-admissible in separate trials; (2) certain charges are unusually likely to
inflame the jury against the defendant; (3) a relatively “weak” case has been
joined to a relatively “strong” one; and (4) a capital offense is joined to
noncapital ones or the joinder itself causes the case to be a capital one.110 People
v. Bradford, 15 Cal. 4th at 1315; People v. Kraft, 23 Cal. 4th at 1030.
1477. The process of determining the first of these factors (cross-
admissibility) essentially involves an application of Evidence Code § 1101 to the
evidence of each incident.111 Kraft, 23 Cal. 4th at 1030-31. As noted in People v.
Evidence Code § 1101 subdivision (a) expressly prohibits the use of
an uncharged offense if the only theory of relevance is that the
The Yu incident was a non-capital homicide charge that was elevated to
a capital case by reason of joinder.
In relevant part, § 1101 provides as follows:
(a) . . . [E]vidence of a person’s character or a trait of
his character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances
of his conduct) is inadmissible when offered to prove
his conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of
evidence that a person committed a crime, civil wrong,
or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan
knowledge, identity, or absence of mistake or accident)
other than his disposition to commit such acts.
535Page 560 Page ID #:
accused has a propensity (or disposition) to commit the crime
charged and that this propensity is circumstantial proof that the
accused behaved accordingly on the occasion of the charged offense
. . . . Subdivision (a) does not permit a court to balance the
probative value of the evidence against its prejudicial effect. The
inference of a criminal disposition may not be used to establish any
link in the chain of logic connecting the uncharged offense with a
material fact. If no theory of relevancy can be established without
this pitfall, the evidence of the uncharged offense is simply
inadmissible.
1478. Evidence Code § 1101(b), however, permits evidence of other
crimes if offered to prove identity or intent, for example, not simply propensity:
[E]vidence of ‘other crimes’ or prior acts of misconduct may be
admissible provided that it has relevance to the issues of the intent or
identity of the accused . . . . Thus, for example, evidence of a
common design or plan, which might be highly probative of the
identity of the perpetrator or of his intent to commit the offense, may
very well meet relevancy standards.
Williams v. Superior Court, 36 Cal. 3d 441, 449, 683 P.2d 699, 204 Cal. Rptr.
700 (1984).
1479. If the evidence supporting the joined counts does not meet the test
under Evidence Code § 1101, it would not be cross-admissible in separate trials
and, therefore, joinder is potentially prejudicial although not dispositive. People
v. Bradford, 15 Cal. 4th at 1315-16.
1480. The proffered evidence must first be analyzed to determine what
facts are in dispute. See People v. Alcala, 36 Cal. 3d 604, 634, 685 P.2d 1126,
205 Cal. Rptr. 775 (1984); People v. Thompson, 27 Cal. 3d at 316 ((the trial court
“must examine the precise elements of similarity between the offenses with
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respect to the issue for which the evidence is proffered and satisfy itself that each
link of the chain of inference between the [offenses] is reasonably strong.”)
(quoting People v. Schader, 71 Cal. 2d 761, 775, 457 P.2d 841, 80 Cal. Rptr.
(1969)).
1481. Before admitting evidence of one crime to prove commission of
another crime, this Court requires a strong chain of inference to show that the
facts surrounding the commission of one crime are probative of the identity or
intent of the perpetrator in another crime. The court should resolve any doubts
regarding admissibility in favor of exclusion. See, e.g., People v. Bean, 46 Cal.
twelve blocks apart in which victims were struck on the head were not
sufficiently similar to allow cross admission); People v. Alcala, 36 Cal. 3d at 631-
36 (evidence of attacks on young girls not admissible in prosecution for murder
of a young girl); People v. Thompson, 27 Cal. 3d at 316-21 and note 22 (evidence
of prior robbery not sufficiently similar to charged robberies); People v.
Guerrero, 16 Cal. 3d 719, 548 P. 2d 366, 129 Cal. Rptr. 166 (1976) (rape of a 17-
year-old girl six weeks earlier not admissible to prove rape of a murder victim).
1482. In admitting other crimes evidence, the California Supreme Court
has also found the requirement of common marks a touchstone of cross-
admissibility:
[O]nly common marks having some degree of distinctiveness tend to
raise an inference of identity and thereby invest other-crimes
evidence with probative value. The strength of the inference in any
case depends upon two factors: (1) the degree of distinctiveness of
individual shared marks, and (2) the number of minimally distinctive
shared marks.
People v. Thornton, 11 Cal. 3d 738, 756, 523 P.2d 267, 114 Cal. Rptr. 467 (1974)
(overruled on other grounds in People v. Flannel, 25 Cal. 3d 668, 684 n.12, 537Page 562 Page ID #:
P.2d 1, 160 Cal. Rptr. 84 (1979) (emphasis in original). The evidence required to
lead to the different inferences is significant. To show common scheme or plan,
“the common features must indicate the existence of a plan rather than a series of
similar spontaneous acts, but the plan thus revealed need not be distinctive or
unusual.” People v. Ewoldt, 7 Cal. 4th 380, 403, 867 P.2d 757, 27 Cal. Rptr. 2d
646 (1994). To show identity via modus operandi, the evidence must disclose
common marks or identifiers that, considered singly or in combination, support a
“strong inference” that the defendant committed all the crimes so joined. People
v. Bean, 46 Cal. 3d at 937; People v. Ewoldt, 7 Cal. 4th at 403; Bradford, 15 Cal.
4th at 1316.
1483. In Petitioner’s case, many incidents were dissimilar. For example,
the Yu incident occurred on a public street and involved the shooting of a woman
following a struggle near a parked car. That case was completely dissimilar to
the stabbing death that occurred in the Vincow incident or the shooting deaths in
the Zazzara incident. They, in turn, were dissimilar to the sexual assaults in the
Kyle and Dickman incidents. Under People v. Bean, 46 Cal. 3d at 937, there
were insufficient distinctive marks among the various incidents to support a
strong inference that Petitioner committed all the crimes. The court should not
have permitted joinder under Evidence Code §§ 1101(a) or (b).
1484. Petitioner’s case was so unusual and unique that once some evidence
linked Petitioner to one incident, the jury would presume his guilt of every
charged crime. At the time of the trial court’s ruling, each of the joined offenses
was highly inflammatory. The media had identified Petitioner as the perpetrator
of four non-homicide incidents. Some physical evidence linked Petitioner to the
brutal killings of other elderly or vulnerable victims in eleven other incidents.
However, the disparity in the strength of evidence between non-homicide and
homicide incidents was likely to result in impermissible bootstrapping and
538Page 563 Page ID #:
spillover effects, leading inevitably to Petitioner’s conviction on all counts
despite the state or strength of the evidence.
1485. The joinder of forty-three counts involving fifteen separate incidents
also allowed the prosecution unfairly to exploit relatively strong fingerprint
evidence that existed solely in the Vincow incident to bolster evidence in other
incidents, such as Yu, Cannon, and Kneiding, where there was only a weak,
inferential link to Petitioner. Moreover, joinder of non-homicide offenses in the
Kyle, Bennett, Dickman, and Petersen incidents with the more inflammatory
murders committed in the Zazzara, Khovananth and Abowath incidents was
highly likely to preclude the jury from dispassionately evaluating any of the
evidence and from returning any verdict based solely on the evidence of each
particular crime.
1486. The prosecution needed joinder of all fifteen incidents to make its
case on all forty-three counts, since evidence of Petitioner’s identity as the
perpetrator was derived from inferential links from those incidents with
seemingly solid identification evidence to those with none whatsoever. In
closing argument, the prosecutor used the circumstantial links between the
attempted murders in the Petersen incident and the Zazzara murders, and those
between the sexual assault incidents in Dickman and Kyle, and the murders in
Doi, Nelson, and Bell\Lang to urge the jury to convict Petitioner on all counts.
1487. The prosecutor also argued that generic marks in some incidents
proved Petitioner’s guilt in all of the incidents. With respect to the Kneiding and
Zazzara incidents, for example, the prosecutor argued Petitioner’s guilt was
demonstrated by evidence that, although different weapons had been used, the
victims commonly suffered gunshot wounds to the head and three of the four
victims in unrelated incidents suffered cuts to the throat. (209 RT 24007.)
539Page 564 Page ID #:
1488. Manifesting the extent to which purported common marks were
used, the prosecutor stressed that the Kneiding residence was underneath a
freeway that was near another freeway that led to Vincow’s apartment:
[T]his was an incident that took place in Glendale, . . . just almost
virtually underneath the freeways there, a couple of freeways that
join, and just up the way there from our very first murder, that is the
murder of Jennie Vincow, just over the border from Los Angeles
into Glendale.
(209 RT 24007.)
1489. Similarly, the prosecutor urged that in the Khovananth incident
marks found on Mrs. Khovananth’s arm had some similarity to marks on Mrs.
Zazzara. (209 RT 24025.) The prosecution argued similarities in the Petersen
and Zazzara incidents. (209 RT 24039.) In the Dickman incident, the prosecutor
argued Petitioner’s guilt based on similar evidence in the Nelson and Doi
incidents:
Just like the Nelson situation, somebody has torn that screen opened
and tried to get in there and then opted for the cat door . . . .
...
And so we showed her the gun that we had here that was associated
with the Doi murder, and she said ‘yeah,’ it appeared similar to that
gun . . . .
(208 RT 23984-85; 208 RT 23988.)
1490. In the Kyle incident, the prosecutor argued there was evidence that
was identical to the Bell and Lang incident:
[W]e actually have the handcuffs here and the key. The key is still
hooked there, and you will see that that key is identical to the one
that was found at the Bell and Lang residence.
(207 RT 23893.)
540Page 565 Page ID #:
1491. The prosecutor premised the theory of guilt in all incidents on
tenuous common links or marks among all crimes. The prosecutor’s closing
argument insured that the jury would focus on inferential links and would use
weak, but inflammatory evidence from one incident unfairly to bolster the
evidence in other incidents.
1492. In evaluating inflammatory evidence in the fifteen unrelated
incidents, the Court should consider that nighttime attacks on vulnerable victims
in their homes, often in their own beds, are shocking and disturbing to average
jurors. Besides this reality, other evidence heightened the potential prejudice
from joinder of unrelated crimes. For example, the nature of some wounds was
particularly gruesome (postmortem removal of victim Maxine Zazzara’s eyes). A
pentagram was discovered drawn on a victim in another case. Satanist elements
were found in the Abowath incident.
1493. Empathy for a particularly vulnerable victim, revulsion at gruesome
acts committed on the bodies of some victims, and random attacks on average
citizens were likely to provoke strong emotional reactions by the jury and prevent
unbiased evaluation of the evidence concerning each separate incident. The
joinder of less sensational incidents – the attempted murders of Hernandez,
Bennett and the Petersens; murders in the Okazaki, Yu, Doi, Nelson, and Cannon
incidents; and sexual assaults in the Kyle and Dickman incidents with the more
sensational and inflammatory incidents – Zazzara, Bell/Lang, Kneiding,
Khovananth, and Abowath was thus highly prejudicial.
1494. In evaluating the trial court’s ruling on Petitioner’s severance
motion, this Court should also examine the relative levels of inflammatory
evidence. People v. Balderas, 41 Cal. 3d at 174-76. Inflammatory evidence
generally induces an irrational or emotional reaction in the jury. See, e.g., People
v. Karis, 46 Cal. 3d 612, 638, 758 P.2d 1189, 250 Cal. Rptr. 659 (1988)
(evidence that evokes emotional bias against a defendant but has little effect on
541Page 566 Page ID #:
the issues is prejudicial). One such category of evidence in this case was
evidence of sexual misconduct or deviant behavior. Sexual acts have an
exponentially greater potential for inducing emotional responses from jurors,
inflaming their passions, than other types of evidence. Although the state court
has not found that a sexual offense is inherently inflammatory (see People v.
Balderas, 41 Cal. 3d at 174 (in joinder of sex offense and robbery to homicide
count, “there was no charge or evidence particularly calculated to inflame or
prejudice a jury” since the behavior was not “particularly brutal, repulsive, or
sensational”)), there is little doubt that this sort of evidence stirs profound
emotions. See Coleman v. Superior Court, 116 Cal. App. 3d 129, 172 Cal. Rptr.
86 (1981) (joinder of child molestation count to adult rape and murder counts was
inflammatory).
1495. In Coleman, the court specifically found prejudice from the joinder
of unrelated incidents to be great because evidence of charged sex crimes would
inflame the jury in its consideration of a charged murder. Coleman v. Superior
Court, 116 Cal. App. 3d at 138.
This difficulty would be exacerbated by the fact that the murder
case consists primarily of circumstantial evidence; [palm and thumb
prints] . . . . If a juror has a reasonable and appropriate doubt about
the identity of the murderer, the jury may find it difficult to maintain
that doubt in the face of direct evidence concerning [the] repulsive
crimes . . . .
Id. Petitioner’s case is more analogous to Coleman than Balderas in that the jury
here, as in Coleman, had many opportunities to become inflamed by relatively
weak evidence that was simply brutal, repulsive, and sensational. In Balderas,
multiple sexual assaults all involved the same victims during a single, continuing
episode. The victims in Balderas were not physically harmed beyond the sexual
assaults. People v. Balderas, 41 Cal. 3d at 170. Here, in contrast, Petitioner’s
542Page 567 Page ID #:
jury was presented with multiple sexual assaults in four unrelated incidents
(Kyle, Dickman, Khovananth, and Abowath). In two of the four incidents, the
victims’ husbands were murdered. In eleven other incidents, sex offenses were
not alleged. Thus, both the number and nature of sexual assaults in some, but not
all, incidents constituted highly inflammatory evidence likely to infect evaluation
of the evidence in all remaining incidents unlike Balderas. In view of the number
of incidents and victims, and the extensive media attention given to events
surrounding Petitioner’s apprehension and trial, this case is both quantitatively
and qualitatively different from such cases as Balderas where joinder was upheld.
1496. Joinder has also been upheld where a defendant failed to
demonstrate prejudice. For example, in People v. Mendoza, 24 Cal. 4th 130, 162,
6 P.3d 150, 99 Cal. Rptr. 2d 485 (2000), the court held that evidence as to each of
the consolidated counts was of the same relative strength and, further, that
“counts likely to inflame a jury . . . were sufficiently distinct from the
consolidated counts as to render the likelihood of prejudice minimal.” In People
v. Bradford, 15 Cal. 4th at 1317, the court found that two unrelated murders were
“similar in nature and equally gruesome.” The court held the defendant failed to
show prejudice by the joinder of both counts where the prosecution’s case as to
each murder was “nearly equal in strength.” Id. In People v. Davis, 10 Cal. 4th
463, 896 P.2d 119, 41 Cal. Rptr. 2d 826 (1995), the defendant conceded that
evidence of sexual assault against one victim and sexual assault and murder
against another victim was cross-admissible. Id. at 508-09. The court ruled the
defendant failed to show the evidence was inflammatory. In Cummings, 4 Cal.
4th at 1284-85, the court held that robbery and murder charges were properly
joined where eyewitnesses identified the defendant as a participant in the murder,
thus ruling out any possibility that evidence of the robbery unfairly influenced the
jury.
543Page 568 Page ID #:
1497. Here, however, the prosecutor linked Petitioner to weak incidents
simply because the cases were joined. The tremendous difference in the
inflammatory nature of some murders, such as the Zazzara incident as compared
to the Yu incident or the Petersen attempted murder incident, rendered the joinder
of all incidents highly prejudicial. This case thus contrasts dramatically with
People v. Bradford, 15 Cal. 4th at 1315, where evidence as to some counts was
not sufficiently inflammatory to infect or taint other counts. See also People v.
Kraft, 23 Cal. 4th at 1030 (murder, mayhem, and sodomy charges alleged against
same victims).
1498. A prejudicial spillover effect also occurred in this case by joining
counts involving relatively weak evidence with those involving relatively strong
evidence. In People v. Smallwood, 42 Cal. 3d 415, 722 P.2d 197, 228 Cal. Rptr.
913 (1986), the court held that such erroneous joinder of counts likely
contributed to the defendant’s convictions. The court found that the verdicts on
some counts could have been the result of a compromise due to the spillover
effect arising from the jury’s consideration of unrelated charges. Citing Williams
v. Superior Court, 36 Cal. 3d 441, the court further observed that evidence on one
joined count was weak, thus making it more likely that joinder affected the
outcome. People v. Smallwood, 42 Cal. 3d at 429.
1499. In People v. Musselwhite, 17 Cal. 4th 1216, 954 P.2d 475, 74 Cal.
Rptr. 2d 212 (1998), the court again considered the potential spillover effect of
joining two unrelated offenses in a consolidated trial. The court stressed that the
evidence was not inflammatory and that the spillover effect was minimal largely
owing to the mental state defense and brain disorder evidence offered by the
defendant as to both murders. Id. at 1245-46.
1500. In Petitioner’s case, in contrast, strong evidence supported some
counts; other counts were only weakly supported. The weak counts, however,
were extremely inflammatory. The prosecution’s eyewitness identification
544Page 569 Page ID #:
evidence established that Petitioner was the assailant in Hernandez and Okazaki,
Kyle, Dickman, Khovananth, Petersen, and Abowath. Eyewitness testimony of
bystanders in Yu, Doi and Nelson pointed to Petitioner as the perpetrator. As to
the other counts, Bell and Lang, Cannon, and Nelson, there was either no
identification evidence or at best weak physical evidence that only tenuously
linked Petitioner to the crimes.
1501. Moreover, the evidence in each incident was not of equal strength.
People v. Balderas, 41 Cal. 3d at 173 (joinder of weak and strong cases may alter
the outcome). The spillover effect thus made it impossible for the jury to
compartmentalize evidence of fifteen unrelated incidents, including cases in
which there were eyewitnesses as compared with cases in which there were no
eyewitnesses and very little physical evidence to connect Petitioner to the crimes.
There was no safeguard against a significant spillover effect of the evidence in
some incidents in this case that would otherwise have been prevented had
Petitioner’s severance motion been granted. The trial court’s instructions did not
deal with the possibility of the spillover effect. (See 212 RT 24418.)
1502. Judicial economy was not an overriding concern. It should not have
outweighed inflammatory evidentiary concerns or the spillover effect. The court
could have easily severed Petitioner’s case, for example, into four separate
groups: the distinct Vincow incident; those incidents involving inflammatory
evidence, such as mutilation and Satanism;112 incidents with minimal
inflammatory evidence;113 and incidents in which no murders occurred.
The Zazzara, Bell/Lang, Cannon, Nelson, and Khovananth incidents.
The Hernandez/Okazaki, Yu, Kneiding, and Abowath incidents.
The Bennett, Kyle, Dickman, and Petersen incidents.
545Page 570 Page ID #:
Petitioner’s trials overall would have been substantially shortened. As the
Williams court observed:
Although there is inevitably some duplication in cases where the
same defendant is involved, it would be error to permit this concern
to override more important and fundamental issues of justice. Quite
simply, the pursuit of judicial economy and efficiency may never be
used to deny a defendant his right to a fair trial.
Williams v. Superior Court, 36 Cal. 3d at 451-52.
1503. The state court has condemned joinder that bolsters a weak case. In
Bradford, for example, the court found that where evidence of guilt was stronger
in one case, joinder may bolster an otherwise weak case due to the cumulative
effect of the evidence. That is precisely what occurred here. Because of
similarities of some incidents, coupled with inflammatory evidence in others, the
cumulative effect of the evidence as a whole could not be compartmentalized by
the jury. Where “it would be difficult for jurors to maintain doubts about the
weaker case when presented with stronger evidence as to the other,” prejudice
has been demonstrated. Williams v. Superior Court, 36 Cal. 3d at 453; see also
Coleman v. Superior Court, at 138; People v. Davis, 10 Cal. 4th at 508; Bradford,
at 1318.
1504. Improper joinder of fifteen unrelated incidents was highly
prejudicial. Judicial economy did not justify it. There was a strong likelihood
that the spillover effect would ineluctably lead to Petitioner’s conviction on all
counts despite the evidentiary gaps in some cases.
1505. Overall, the joint trial of forty-three counts and nineteen special
circumstance allegations was unfair and amounted to a denial of due process.
People v. Ochoa, 19 Cal. 4th 353, 409, 966 P.2d 442, 79 Cal. Rptr. 2d
(1998); People v. Arias, 13 Cal. 4th 92, 127, 913 P.2d 980, 51 Cal. Rptr. 2d
(1996); see also People v. Johnson, 47 Cal. 3d 576, 590, 764 P.2d 1087, 253 Cal.
546Page 571 Page ID #:
Rptr. 710 (1988). Denial of due process of law in a capital trial violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
See Estelle v. McGuire (erroneous trial court evidentiary rulings implicate federal
due process guarantees); Walters v. Maass (infringement on federal constitutional
protections deprives a defendant of due process); Caldwell v. Mississippi (reliable
determination of penalty required under the Eighth Amendment).
1506. Federal authority fully protects state defendants against improper
joinder of inflammatory charges. See Park v. California, 202 F.3d 1146 (9th Cir.
2000); Procter v. Butler, 831 F.2d 1251 (5th Cir. 1987); Breeland v. Blackburn,
786 F.2d 1239 (5th Cir. 1986). In Bean v. Calderon, 163 F.3d 1073 (9th Cir.
1998), the Court ruled that the defendant was deprived of his fundamental right to
a fair trial because of the improper joinder of weak and strong cases. The Court
noted that a high risk of prejudice occurs when other-crimes evidence is
introduced, making it difficult for jurors to compartmentalize the damaging
information. The Court concluded after review of the record that joinder of the
two cases was fundamentally unfair because weak counts consolidated with more
compelling charges led the jury “to infer criminal propensity.” Id. at 1083; see
also United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986).
1507. In Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991), the
Court held that consolidation of separate incidents taints proceedings and renders
a trial fundamentally unfair where the jury is unable properly to
compartmentalize the evidence. In Featherstone, however, the jury failed to
convict the defendant on one count, thus demonstrating by its verdicts that it had
properly compartmentalized the evidence. In Petitioner’s case, nothing in the
record shows that the jury compartmentalized the highly inflammatory evidence.
1508. In addition, Petitioner was further prejudiced by the continued
impact and spillover effect of the court’s ruling during the penalty trial in
547Page 572 Page ID #:
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution.
1509. A prejudicial spillover effect first occurred during the guilt trial as a
result of the joinder of weak and strong counts. At the penalty trial, the joinder
also created a spillover effect. In closing argument, the prosecutor urged
Petitioner’s convictions of noncapital crimes as a basis for a death verdict:
May 30, 1985, we get to the first instance where the defendant
committed one of these crimes, that is Carol Kyle, . . . and someone
survived that he did not intend to kill.
...
And I submit to you, if somebody tells you, well, that was an
act in mitigation, maybe so if the killing had ended there, see?
Maybe so.
(217 RT 24827.)
1510. The prosecutor compared less sensational murders, such as the Yu
incident to more sensational murders which involved mutilation:
. . . so you didn’t have the mutilation [in Okazaki] that you had in a
number of these other cases, but certainly very cold-blooded,
deliberate act and inexcusable.
...
March 17 also, the murder of Ms. Yu out on the street . . . .
Another terrible act again with no time to mutilate . . . .
(217 RT 24824.)
1511. In addition, any lingering doubt about Petitioner’s guilt on some
counts sought to be severed was removed by the prosecutor’s prejudicial
argument that Petitioner deserved death because of his convictions in all of the
fifteen unrelated incidents. (See 217 RT 24823-31; People v. Marshall, 13 Cal.
548Page 573 Page ID #:
4th 799 (1996); People v. Osband, 13 Cal. 4th 622, 919 P.2d 640, 55 Cal. Rptr.
2d 26 (1996)).
1512. Based on the length of the jury’s deliberations, it is reasonably likely
that in the absence of the prejudicial joinder, at least one juror would have voted
for a sentence less than death. Thus, Petitioner’s right to a reliable determination
of penalty was violated. Caldwell v. Mississippi, 472 U.S. at 341. The error
implicated Petitioner’s Eighth and Fourteenth Amendment rights.
1513. For the same reasons set forth supra, the inflammatory evidence
pertaining to fifteen consolidated incidents produced a spillover effect and
precluded a fair and reliable determination of penalty. Given the nature of the
defense at the guilt trial coupled with the total absence of mitigation evidence at
the penalty trial, the penalty of death determination was unreliable in this case in
violation of the Eighth Amendment. Caldwell v. Mississippi, 472 U.S. at 341.
1514. The erroneous denial of a severance motion or improper joinder of
charges is of federal constitutional dimension. For the same reasons discussed in
Bean v. Calderon, 163 F.3d 1073, and Park v. California, 202 F.3d 1146, joinder
of fifteen unrelated incidents in the present case violated Petitioner’s rights to due
process of law and fair trial in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. In light of
Petitioner’s convictions – twelve counts of first degree murder, one count of
second degree murder, thirty additional felony counts, and nineteen true special-
circumstance findings – it cannot be said that the jury was effectively able to
compartmentalize the damaging, spillover information. Considering as well the
absence of any mitigating evidence at the penalty trial, the conclusions are
inescapable that joinder could not have been harmless beyond a reasonable doubt
and that Petitioner was denied a reliable and meaningful determination of penalty
in violation of the Eighth Amendment. Caldwell v. Mississippi, 472 U.S. at 329.
549Page 574 Page ID #:
1515. Violation of federal due process and fair trial rights occurs where the
improper joinder of charges renders a trial unfair. Park v. California, 202 F.3d
1146 (9th Cir. 2000). Petitioner’s Fifth, Sixth, Eighth, and Fourteenth
Amendment rights were violated by the improper consolidation of charges at
trial. Petitioner’s rights to due process, a fair trial, and a reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments were
also violated because the improper joinder unfairly tipped the scales toward
death. Washington v. Texas, 338 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d
(1967); Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d
(1991).
1516. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
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CLAIM 21:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION
TO HAVE A JURY DRAWN FROM A REPRESENTATIVE
CROSS-SECTION OF THE COMMUNITY
1517. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section VI of
the Opening Brief.
1518. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1519. Those facts and allegations set forth elsewhere in this petition, and
the claims of constitutional violations and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication.
1520. Petitioner’s trial was held in the Superior Court of Los Angeles
County in the downtown region of the City of Los Angeles. Both the superior
and municipal courts housed in the downtown courthouse were part of a segment
of Los Angeles County courts known as the “Central Judicial District.” All
superior and municipal courts of every district in Los Angeles County shared the
same jury pool managed by the Los Angeles County Office of the Jury
Commissioner.
1521. On January 20, 1988, prior to jury selection, Petitioner challenged
the composition of Los Angeles County jury pools and moved to quash all
existing panels.115 Petitioner alleged that Los Angeles County jury selection
The motion was not part of the record on appeal. Subsequent to record
certification, Petitioner filed with the California Supreme Court, pursuant to
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procedures failed to comply with California Code of Civil Procedure § 190 et
seq., that cognizable groups were unconstitutionally excluded from the jury pool
for Los Angeles County and its downtown superior court, and that Petitioner was
denied his right to a representative cross-section of the community guaranteed by
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In response, the prosecution asserted that Petitioner failed to make a prima facie
showing of systematic exclusion of a cognizable group. (26 CT 7578-88.)
1522. The trial court heard Petitioner’s motion during various hearings in
April and May 1988. (See 26 CT 7650-53, 7659, 7661-62, 7680-82, 7684.)
1523. On April 1, 1988, defense counsel moved to continue both the jury
composition hearing and the trial because the new 1988-1989 master list
containing most of Petitioner’s jurors would not be completed or available to
study until sometime in May or June 1988. (51 RT 3392, 3397, 3413.) The
prosecution argued that the claim could be proven using statistics from any fiscal
year’s master list. “(I)f the jury selection system is systematically invalid at this
time, . . . it will be systematically invalid in the future . . . . The statistics are not
going to change.” (51 RT 3383, 3506.) The court agreed with the prosecution
that no statistically significant difference existed from one fiscal year to the next
and denied defense counsel’s motion to continue. (51 RT 3511.) Defense
counsel objected. (51 RT 3513.)
1524. Beginning in 1984, the California legislature required jury
commissioners to merge the Registrar of Voters (ROV) list with the California
Department of Motor Vehicle (DMV) list of drivers when creating their master
list of qualified and eligible jurors. (51 RT 3462; 52 RT 3629.) The DMV list in
California Rules of Court, Rule 12, a motion to augment the record on appeal to
include Petitioner’s motion challenging the composition of the jury pool
summoned to the Los Angeles County Superior Court in downtown Los Angeles.
On February 13, 2002, the court so ordered.
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Los Angeles County at the time of Petitioner’s trial contained 5 million names
compared to the Registrar of Voters (ROV) list which contained 3 million names.
(52 RT 3582.) According to testimony of Raymond Arce, Director of Jury
Management, Los Angeles County Office of the Jury Commissioner, a merger of
the larger DMV list with the smaller ROV list was expected to result in a more
inclusive jury pool and remedy under-representation of minority groups. Yet Mr.
Arce found no statistically significant increase in minorities on the master jury
lists from 1984 to 1987 as a result of his office’s annual merging of ROV and
DMV lists for Los Angeles County. (51 RT 3431; 58 RT 4212.)
1525. Mr. Arce was unaware that his data processing staff was erroneously
deleting multiple names from the master jury list. (58 RT 4230.) During his first
appearance at the jury composition hearings, Mr. Arce explained why he had
instructed Los Angeles County data processors to include a field for driver and
voter addresses in the county’s matching software program. He said, “(T)he
more information you have, the more likely you are to make a good decision . . .
(when) eliminating a name as being (a) duplicate.” (58 RT 4197, 4213, 4215.)
Mr. Arce’s staff’s error became evident when expert witnesses from both sides
met with his staff at the Department of Data Processing to discuss their matching
software and merger procedures. (52 RT 3618, 3628; 57 RT 4146-48.) Mr.
Arce’s computer staff explained that their matching software was capable of
including fields for driver and voter addresses, birth dates, age, and sex. They
just had not complied with Mr. Arce’s instruction to include the address field and
to check whether addresses matched before deleting duplicate names. (57 RT
4103, 4105, 4146-47, 4150.) Mr. Arce testified that addresses should have been
included, that no name should have been deleted without first checking its
address, and that he had never questioned his staff to check whether or not his
instructions had been followed. (58 RT 4232.)
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1526. Mr. Arce testified that his staff was comparing only last names and
the first four letters of first names. They were “tak(ing) a common name such as
Jose Jiminez” from the ROV list and deleting it wherever it appeared again in the
DMV list when in fact those names on the DMV list represented “a unique person
and should (have been) added” to the master list. (52 RT 3673; 58 RT 4207.)
1527. Petitioner introduced Dr. John Weeks, a demographics expert and
professor of sociology at San Diego State University, who testified that the
problem of common first and last names is even more prevalent for Spanish-
origin names. The mismanagement of the matching software had caused a
disproportionate exclusion of Hispanics from the master jury list. (57 RT 4146-
47; 53 RT 3749; 57 RT 4101.)
1528. Both Mr. Arce and Dr. Nancy Minter, the prosecution’s expert in
demographics employed by the County of Los Angeles, agreed with Dr. Weeks
that adding an address field would increase the number of Hispanics in the jury
pool for the downtown Los Angeles County courthouse, although they disagreed
on the extent of the increase. (60 RT 4488; 62 RT 4660-65.)
1529. Experts also agreed it would take minimal cost and about two
months for changes to the matching program to increase the number of Hispanics
in the jury pool. (51 RT 3408; 58 RT 4225; 60 RT 4409-12, 4488-89.) Mr. Arce
informed the trial court that the new master jury list for the 1988-89 fiscal year
would be compiled in May and go into effect in early June; however, any changes
to the matching program could not be implemented until the end of August
at the very earliest. (52 RT 3526; 58 RT 4225.) Voir dire of jurors for
Petitioner’s trial began in July 1988.
1530. Taking note of “a certain lightness . . . in the number of Hispanics . .
. in the jury lounge,” the trial court suggested to Mr. Arce that he take steps to
include addresses in the matching software. The trial court declined to order Mr.
Arce to make that change because it did “not want to take over the jury selection
554Page 579 Page ID #:
process in this county or the Jury Commissioner’s Office.” (61 RT 4653.) Mr.
Arce reported to the trial court on June 7, 1988, that he had not been able to add
addresses to the matching software as the trial court requested. (62 RT 4660-65.)
Mr. Arce explained that the Department of Data Processing had experimented on
a sample list using new software and adding a field for birth dates but not
addresses. Jurors from the resulting list were mailed questionnaires and would
enter the jury lounge with jurors from older lists by approximately mid-July. Full
first names were still not included, and addresses would not be included until
September or October, well after Petitioner’s jurors were summoned to court.
(Id.)
1531. Petitioner renewed his request to continue the trial until Mr. Arce
could institute agreed upon changes to the 1988-1989 master jury list. Defense
counsel wanted to prevent re-litigation of the issue. (69 RT 4244.) The trial
court denied a continuance and said, “We’re not going to re-litigate this issue that
we have litigated once.” (68 RT 4253.)
1532. Mr. Arce also testified that potential jurors were deleted from the
master jury list whenever their preliminary questionnaires were incomplete, lost,
or otherwise unreturned. (52 RT 3553.) He added that California Code of Civil
Procedure § 204.3(B) made it optional for courts to send follow-up letters to track
lost, unreturned, or incomplete jury questionnaires, so Los Angeles County courts
had opted not to follow up. (51 RT 3448; 52 RT 3559.) Mr. Arce estimated that
11 percent more Hispanics would qualify for jury service if Los Angeles County
changed the policy and required courts to follow up on lost, unreturned, and
incomplete questionnaires. (51 RT 3443.)
1533. Dr. Weeks testified that the lack of follow up by Los Angeles
County courts disproportionately excluded Hispanics from the jury pool since
more than half of all lost, unreturned, and incomplete jury questionnaires were
originally sent to people with Hispanic last names. Dr. Weeks estimated that 555Page 580 Page ID #:
percent of Hispanics excluded for not properly responding to questionnaires
would have otherwise qualified as eligible jurors. (51 RT 3401, 3404, 3487-88;
52 RT 3636, 3639-40; 53 3685.)
1534. While Dr. Minter agreed that Hispanics are disproportionately
represented among people who do not respond to the jury questionnaire, she
theorized that Hispanics disqualify themselves and purposefully fail to return the
questionnaires because they are non-citizens or do not speak English. (55 RT
4005-4008.) Dr. Weeks suggested that Dr. Minter was overestimating self-
disqualification among Hispanics compared to any other ethnic group. He cited
supporting studies in Riverside and San Diego Counties. (52 RT 3620-24; 53 RT
3671, 3690.) Dr. Weeks asked for the Court’s permission and time to take a
sample of recently sent and returned questionnaires to determine the population
of self-disqualifying Hispanic jurors in Los Angeles County and to determine
whether follow-ups would increase all races proportionately, or whether it would
disproportionately increase the number of jury-eligible Hispanics. (53 RT 3686.)
The court disallowed the study and suggested that Dr. Weeks had enough
information from other counties to give his opinion. The court called the issue
“nebulous” and “a filigree” with no statistical significance. (53 RT 3826-27.)
1535. In Dr. Weeks’ opinion the timing of the DMV/ROV merger
systematically excluded eligible 18 and 19-year-old jurors and by extension,
eligible Hispanic jurors. Mr. Arce testified that the first step in the merger of the
two lists was to remove anybody on the DMV list who was under 18 years old.
(52 RT 3582.) Dr. Weeks noted that because DMV lists were created in
November, DMV data was outdated before the ROV/DMV merger in July. On
the date of the master jury list’s production, half of 18 year olds on the DMV list
had turned 19 and half of the 19-year-olds had turned 20. By the end of the fiscal
year, the list had no 18-year-old potential jurors. (60 RT 4422.) Dr. Weeks
estimated that 84 percent of Los Angeles County’s 18 to 20-year-olds were
556Page 581 Page ID #:
under-represented on the jury master list. Two-thirds of that under-representation
related to Los Angeles County’s merger timing problem. (Id.) Dr. Weeks
offered the solution of leaving all drivers on the DMV list, adding birth dates to
the matching software, and phasing eligible jurors in as they became 18-years-
old. (60 RT 4422.) Although Mr. Arce and his staff eventually added a birth
date field to the matching software, the Office of the Jury Commissioner did not
rectify the timing issue. (62 RT 4660.) According to Dr. Weeks, young people
in Los Angeles County are disproportionately Hispanic, so their exclusion from
the master jury list further reduced the percentage of Hispanics in the jury room.
(53 RT 3685.)
1536. Dr. Weeks testified that the jury commissioner’s system for merging
ROV and DMV lists relied too heavily upon the ROV list as the primary source
for jurors. The result was a jury lounge more closely aligned to the list of voters
than to the population in Los Angeles County. (57 RT 4095-4101.) Even
Hispanics who were eligible to vote were three-fourths less likely to register to
vote than non-Hispanics. (60 RT 4418.) Consequently, the ROV list was
missing a significant portion of eligible Hispanic jurors. (52 RT 3621, 3627.)
The DMV list more closely represented the population of Los Angeles County.
(52 RT 3628.)
1537. The trial court ordered Mr. Arce and Dr. Weeks to perform a test to
determine whether it mattered which list the jury commissioner used as the
primary list when merging and matching names. (53 RT 3812-14.) Dr. Weeks
and Mr. Arce took a 1 percent sample from both the ROV and DMV lists to
create a test sample master lists. The list was 26 percent Hispanic when the
DMV list was the primary source and only 19 percent Hispanic when the ROV
list was the first source. (57 RT 4144; 58 RT 4201.) Dr. Weeks concluded that
the DMV list was more representative and the ROV list was inadequate; that an
inadequate primary source list creates an inadequate master jury list; and that Los
557Page 582 Page ID #:
Angeles County should either use the DMV list as the primary source or merge
both lists to avoid the primary source list problem. (52 RT 3625, 3629.)
1538. Dr. Weeks supposed that a preference in procedure that gave the
ROV list greater weight, the invasive deletion of eligible jurors’ names from the
list, the six-month delay in merging the DMV list, and the lack of follow up for
lost, incomplete, or unreturned questionnaires could account for the fact that Mr.
Arce had found no statistically significant increase in eligible Hispanic jurors
even after DMV lists began to be merged in 1984. (52 RT 3628.)
1539. Population of Hispanics in the jury lounge: Dr. Weeks and Mr. Arce
did a study of jurors who appeared in the downtown Los Angeles County
Superior Court from August 5 to December 14, 1987. Of the 10,125 jurors
sampled from the court’s jury lounge, 14 percent identified themselves as
Hispanic. (52 RT 3596.) Experts on both sides used 14 percent as their base for
comparison.
1540. Community: The trial court heard testimony from all of the expert
witnesses defining the community from which jurors were summoned to the
downtown Los Angeles Superior Court. Three possibilities were discussed: the
Central Judicial District, a 20-mile radius, and Los Angeles County.
a.
The “Central Judicial District” community was defined as a
relatively small geographic area around the courthouse in downtown
Los Angeles. Experts agreed that the “Central Judicial District”
community contained the largest percentage of Hispanics among all
of the definitions of community, though they could not agree upon
exact population figures. (60 RT 4500.) In Dr. Minter’s opinion,
the “Central Judicial District” community was too small of an area to
represent the population from which jurors were drawn to the
courthouse in downtown Los Angeles. Dr. Minter thought this
definition of community was statistically unworkable and unrealistic
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because “20 percent of the population (of Los Angeles County) is
not supplying 40 percent of the jurors.” (60 RT 4454.) Asked by
the prosecution how he could make population comparisons for the
“Central Judicial District” community when jurors presently sitting
in the jury lounge were drawn from an area larger than the “Central
Judicial District” community, Dr. Weeks conceded that it required
certain mathematical assumptions, but fewer than the assumptions
required to make the same comparisons using the community
defined as the 20-mile radius. (53 RT 3740.)
b.
The idea of a community of jurors within a 20-mile radius of the
courthouse originated from language in California Code of Civil
Procedure § 203: “No juror shall be required to serve at a distance
greater than 20 miles from his or her residence.” (52 RT 3529.) Mr.
Arce of the Jury Commissioner’s Office testified that in Los Angeles
County, a juror’s name would be pulled randomly from the master
list. If a court within 20 miles of the juror’s residence needed jurors
that day, the juror would be summoned to that court. If no court
within 20 miles of the juror’s residence needed a juror, then that
juror was rejected and a new juror’s name was pulled from the
master list.
i.
Many courts in Los Angeles County were closer then
20 miles from each other and shared portions of jurors
from both of their 20-mile radii. (52 RT 3544.) Dr.
Weeks testified that the overlapping nature of these 20-
mile radius communities created a “non-probability
sample” since it was not possible to establish in
advance the probability that any eligible juror within
the 20-mile radius of a given courthouse could be
559Page 584 Page ID #:
drawn to that court. (57 RT 4107.) The population of
the 20-mile radius was unpredictable and unquantifiable
on any given day. At the Los Angeles County level, a
juror was drawn randomly and placed on the master list.
The juror’s name then could be drawn randomly from
the master list. But if that juror resided within the 20-
mile radii of two or more courthouses that required
jurors on the same day, the jury commissioner’s staff
had to decide which courthouse to place the juror. The
decision was based upon the juror’s residence, but it
was no longer random.
ii.
Mr. Arce testified that the Los Angeles County master
jury list provided jurors for both the superior and the
municipal courts. (52 RT 3527.) The downtown Los
Angeles court where Petitioner’s case was heard shared
an overlapping 20-mile radius with the municipal court
in the same building and with other courts in Los
Angeles County as well. Dr. Weeks said the 20-mile
radius around the downtown court in Los Angeles was
not a community from which jurors could be adequately
counted or compared because its population could not
be statistically defined. Too many variables remained
consistently unknowable. (53 RT 3752-69, 3771,
3784.) Dr. Minter added that the smaller size of the 20-
mile radii made those communities more fluid in
population and increased the possibility of statistical
error. (55 RT 4055; 60 RT 449.)
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iii.
In Williams v. Superior Court, 49 Cal. 3d 736, 781 P.2d
537, 263 Cal. Rptr. 503 (1989), a case litigated in Los
Angeles County at the same time as Petitioner’s case,
the prosecution maintained that the community was the
The prosecution argued in Williams that the “20-mile
radius” community created overlaps such that jurors
could reside in multiple “communities” at once and be
counted multiple times, and would require the jury
commissioner to violate numerous provisions of state
and federal statutory and constitutional law in the
course of jury selection, thus a “community” so defined
would not be a “community” in any meaningful sense.
Id. In Petitioner’s case, the prosecution preferred to
define community as the “20-mile radius” to include
predominantly Caucasian neighborhoods outside the
predominantly Hispanic “Central Judicial District.” It
is evident that the prosecution manipulated definitions
of “community” differently to suit their cases.
iv.
The trial court had a more intuitive understanding of the
20-mile radius and could not comprehend why the “20-
mile radius” community would not work for
comparisons, as so many Hispanics lived near the
downtown courthouse in Los Angeles. Dr. Weeks
explained to the trial court that its bull’s eye approach
was a statistically inaccurate way to measure the issue.
(53 RT 3771-72.) Dr. Minter gave a similar
explanation to the trial court about why prudence is
561Page 586 Page ID #:
required in making statistical assumptions about the
race of residents within the different 20-mile radii. (
RT 4502.)
c.
All of the experts agreed that Los Angeles County was well defined
and its population statistics were easily determined. (57 RT 4110;
60 RT 4500.) According to Dr. Weeks, “The only disparity
(figures) that we can really rely upon in this case is the disparity that
we have found in the master list, because we know what the entire
community of Los Angeles (County) should look like in terms of
(the) percent(age) of Hispanic(s).” (57 RT 4110.) In Dr. Minter’s
opinion, county-wide calculations were more specific and required
less assumption than the other community models. (60 RT 4504.)
1541. Standard Deviation: Dr. Weeks calculated that 37.6 percent of the
population of Los Angeles County were Hispanic as of the 1980 census. (52 RT
3597; 3615.) Dr. Weeks and Mr. Arce studied a sample of 10,125 jurors in the
downtown Los Angeles Superior Court over a period of four months. (57 RT
4144; 58 RT 4201.) Given the population of 37.6 percent Hispanic in Los
Angeles County, Dr. Weeks would have expected the number of Hispanics
among the 10,125 people summoned to serve at the downtown courthouse over
months to be 3,807. The observed number of Hispanics in the courthouse was
percent, or 1,418 Hispanics. (Id.) Dr. Weeks testified that the difference between
the expected value (3,807) and the observed number (1,418) with 49 standard
deviations is so large that “there is less than one chance in a ... million that we
would get this kind of difference only by chance alone.” (57 RT 4129-31; see
562Page 587 Page ID #:
also 53 RT 3763-64, 4130; 57 RT 4110.) Generally, a standard deviation of 2 or
3 is considered large enough to be suspect.
1542. Even after subtracting for lack of English proficiency and
citizenship, Dr. Weeks said that he would expect to find a 24.3 percent
Hispanic population in jury pools at the “bare minimum.” (52 RT 3601.) He
cautioned, though, that calculating in the language and citizenship disqualifiers
for Hispanics only and not for other non-English-speaking and non-citizen groups
skewed the statistics. (53 RT 3741-48, 3774, 3804; 57 RT 4113.) Dr. Minter did
not have an estimate for 1987 but did give an estimate of the population of
Hispanics in Los Angeles County in 1985. Subtracting a percentage of Hispanics
which she believed would be disqualified for language and citizenship, Dr.
Minter gave her opinion that the population in Los Angeles County in
included 15.7 percent jury-eligible Hispanics.118 (60 RT 4453.)
The data reflect a difference between the expected and observed
number of Hispanics of approximately 49 standard deviations since the square
root of 10,125 multiplied by .376 multiplied by .624 is 49. “As a general rule ...
if the difference between the expected value and observed number is greater than
2 or 3 standard deviations, then the hypothesis that the jury drawing was random
would be suspect to a social scientist.” Casteneda v. Partida, 430 U.S. 482, n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (explaining how to calculate
standard deviations); see also United States v. Rodriguez-Lara, 421 F.3d 932,
943 n.10 (9th Cir. 2005); Hirst v. Gertzen, 676 F.2d 1252, 1258 n.14 (9th Cir.
1982) (suggesting courts are incorrect to rely upon “absolute disparity” analysis
which can be less accurate than standard deviation in some cases).
The data reflect a difference between the expected and observed
number of Hispanics of approximately 43 standard deviations. (The square root
of 10,125 multiplied by .243 multiplied by .757 is 43.)
The data reflect a difference between the expected and observed
number of Hispanics of approximately 36 standard deviations. (The square root
of 10,125 multiplied by .157 multiplied by .843 is 36.)
563Page 588 Page ID #:
1543. Absolute and Comparative Disparities: Mr. Arce provided Drs.
Weeks and Minter with 1980 United States Census data for two geographic areas
within the boundaries of the “Central Judicial District” and the “20-mile radius”
communities. Dr. Weeks requested data for the entire Los Angeles County but
never received that information from Mr. Arce. (53 RT 3702.)
a.
Dr. Weeks estimated 37.6 percent of the “Central Judicial District”
community to be Hispanic. Compared to the 14 percent population
in the downtown Los Angeles jury lounge survey, Dr. Weeks
calculated an absolute disparity119 of 23.6 percentage points. (51 RT
3476.) This meant a relative or comparative disparity of 63 percent
under-representation of Hispanics in the jury pool.120 Dr. Minter did
not contest Dr. Weeks’ figures as to the “Central Judicial District”
community. (60 RT 4479-81.)
b.
Dr. Weeks estimated 27 percent of the population within the “20-
mile radius” community to be Hispanic. (52 RT 3615.) Compared
to the 14 percent population in the downtown Los Angeles jury
lounge survey, Dr. Weeks calculated an absolute disparity of
percentage points. This meant a 48 percent under-representation of
Hispanics in the jury pool.
1544. One dispute with the census numbers was whether upward
adjustments were needed to reflect a disproportionate Hispanic population growth
from 1980 to 1987. All of the expert witnesses agreed that the 1980 census data
was outdated and that the Hispanic population had increased in Los Angeles
“Absolute disparity” is the difference between the percentage of a
group within a community and its percentage in the jury pool.
“Comparative” or “relative” disparity is a ratio of the absolute disparity
and the expected number in the population (census data).
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County from 1980 to 1987, though Dr. Minter was not certain that the Hispanic
population had grown more rapidly than the remainder of the population. (51 RT
3486; 55 RT 3998-99; 4019, 4023.)
1545. Dr. Weeks adjusted upward for an estimated 8 percent growth in the
jury-eligible Hispanic population from 1980 to 1987. He used data of similar
growth in the population between 1970 and 1979 of jury-eligible Hispanics over
the age of eighteen. (52 RT 3611-14; 53 RT 3713.) Dr. Minter estimated a 7.
percent population growth from 1980 to 1985. (60 RT 4481.)
a.
Accounting for a disproportionate increase in the population of
Hispanics in Los Angeles County, Dr. Weeks gave what he
considered a conservative estimate that 26.3 percent of the “Central
Judicial District” community was Hispanic. (52 RT 3611.)
Compared to the 14 percent in the downtown Los Angeles jury
lounge survey, Dr. Weeks calculated an absolute disparity of 12.
percent. This meant a relative disparity of 47 percent under-
representation of Hispanics in the jury pool.
b.
Accounting for a disproportionate increase in the population of
Hispanics in Los Angeles County, Dr. Weeks estimated 17.
percent of the “20-mile radius” community to be Hispanic. (52 RT
3615.) Compared to the 14 percent in the downtown Los Angeles
jury lounge survey, Dr. Weeks calculated an absolute disparity of
3.5 percent. This meant a relative disparity 20 percent under-
representation of Hispanics in the jury pool.
c.
Dr. Minter disagreed with Dr. Weeks that population growth
statistics could be applied uniformly below the Los Angeles County
level to smaller communities such as the “20-mile radius”
community. (60 RT 4453; 4498.)
565Page 590 Page ID #:
1546. Another dispute regarding the 1980 census figures was whether
downward adjustments were needed to reflect jury disqualifications of language
and citizenship particular to the Hispanic population. The trial court believed that
a downward adjustment of the Hispanic population in the 1980 census was
required. (53 RT 3778-80.) Experts on both sides disagreed with the trial court.
Dr. Weeks explained that a downward adjustment for one race would skew
disparity and deviation calculations. (53 RT 3748.) Dr. Minter said there was no
statistical difference in excusals between non-Hispanics with a 62.8 percent
excusal rate, and Hispanics, with a 63.5 percent excusal rate for all reasons,
including citizenship, language difficulties, and hardship. (53 RT 3748; 55 RT
4034.) Dr. Weeks explained, “When you meet an Hispanic on the street, he or
she is just as likely to be qualified for jury service as the non-Hispanic that you
meet on the street.” (52 RT 3638, 3652.) Dr. Weeks’ advice was to take out all
eligibility factors, or include them all, but not to take out some factors piecemeal.
(57 RT 4113.) The trial court acknowledged a “standstill” on the issue and
requested that Dr. Weeks “try to convince me I’m wrong on this or . . . confine
yourself to numbers involving people of Hispanic descent who would be eligible
to serve on a jury.” (53 RT 3778-80; 3804; 57 RT 4112.)
a.
To accommodate the trial court, Dr. Weeks made estimates taking
into account English language deficiency and non-citizenship. He
estimated 24.3 percent of the “Central Judicial District” community
to be Hispanic. (52 RT 3600.) Compared to the 14 percent in the
downtown Los Angeles jury lounge survey, Dr. Weeks calculated an
absolute disparity of 10.3 percentage points. (53 RT 3751.) This
meant a 42 percent under-representation of jury-eligible Hispanics in
the jury pool.
b.
Accounting for English language deficiency and non-citizenship, Dr.
Weeks estimated 16.1 percent of the “20-mile radius” community to
566Page 591 Page ID #:
be Hispanic. (52 RT 3615.) Compared to the 14 percent in the
downtown Los Angeles jury lounge survey, Dr. Weeks calculated an
absolute disparity of 2.1 percentage points. This meant a 13 percent
under-representation of jury-eligible Hispanics in the jury pool.
c.
Dr. Minter testified that the percentage of Hispanics with citizenship
and proficiency in the English language was 16.3 percent of the
population in the “20-mile radius” community. (55 RT 3988.)
Compared to the 14 percent in the downtown Los Angeles jury
lounge survey, Dr. Minter found an absolute disparity of 2.3 percent.
This meant a 14 percent under-representation of Hispanics in the
jury pool. (55 RT 4913.)
1547. On May 31, 1988, the court denied Petitioner’s motion and declined
to order any changes in the jury pool selection or the ROV/DMV merger
procedures. The trial court suggested, but did not order, that Mr. Arce should
make changes to the merger software to include an address match, but changes
were not implemented before voir dire of the jury for Petitioner’s trial. (
RT 4653, 4660-65.)
1548. The trial court found that the jury selection process and procedures
in Los Angeles County complied with Code of Civil Procedure § 190 et. seq. (
RT 4653.)
1549. As a matter of law, the court found that the appropriate community
for comparison was the “20-mile radius” and not the “Central Judicial District” or
Los Angeles County. (61 RT 4652.)
1550. Although finding Hispanics a cognizable group and stating that it
was “frankly troubled by the number” (61 RT 4652), the trial court did not find a
constitutional violation in the deviations and disparities between the percentage
of Hispanics in the “20-mile radius” community and Hispanics summoned to the
downtown Los Angeles County Superior Court. (See id. at 4650-53.) The trial
567Page 592 Page ID #:
court said the disparity “does not appear to this court to be of constitutional
significance, but it does appear to this court that there is a certain lightness, if you
will, in the number of Hispanics that actually appear in the jury lounge.” (Id. at
4652.)
A.
The Los Angeles County Jury Selection Procedures Violated the “Fair
Cross Section” Requirements of the Sixth Amendment and the Equal
Protection Clause of the Fourteenth Amendment
1551. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law.
1552. The rights to jury trial guaranteed by the Sixth Amendment and the
California Constituion are “coextensive protections and the analysis identical.”
People v. Bell, 49 Cal. 3d 502, 525 n.10, 778 P.2d 129, 262 Cal. Rptr. 1 (1989).
The federal guarantee of a trial by a jury of one’s peers is a fundamental
constitutional right. People v. Collins, 26 Cal. 4th 297, 304, 27 P. 3d 726,
Cal. Rptr. 2d 836 (2001). Indeed, there is no more fundamental provision of the
Bill of Rights than the right of a criminal defendant to a trial by an impartial jury
selected from a representative cross-section of the community. Taylor v.
Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).
1553. In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d
(1979), the Supreme Court held that the fair cross-section requirement of the
Sixth Amendment was violated by the disproportionate exclusion of women from
jury venires. Duren found that jury venires must represent the community and
systematic exclusion of women from juries by virtue of automatic exemption
violated the Sixth Amendment. Id. at 363-64. To establish a prima facie
violation of the fair cross-section requirement, Duren held, a defendant must
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show: (1) that a group alleged to be excluded is “distinctive” in the community
(Duren prong one); (2) the representation of this group in jury venires is not fair
and reasonable in relation to the number of such persons in the community
(Duren prong two); and (3) the under-representation is the result of systematic
exclusion of the group in the selection process (Duren prong three). Duren v.
Missouri, 439 U.S. at 364; see also Thomas v. Borg, 159 F.3d 1147, 1149-50 (9th
Cir. 1998). In People v. Sanders, 51 Cal. 3d at 491-93, the court held that a jury
must be drawn from a representative cross-section of the community and
reaffirmed the Duren three-pronged analysis. See People v. Ochoa, 26 Cal. 4th
398.
1.
Duren prong one
1554. All parties below, and the trial court, agreed that Hispanics are a
distinctive group. The Supreme Court has so held. Castaneda v. Partida,
U.S. 482, 97 S. Ct. 1272, 51 L. Ed.2d 498 (1977); Lockhart v. McCree, 476 U.S.
162, 175, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). Duren prong one was
satisfied in this case as to the Hispanic population in the downtown Los Angeles
courthouse.
2.
Duren prong two
1555. As to the second Duren prong, the Supreme Court ruled that a
defendant may rely on census data for adults to establish “the percentage of the
community made up of the group alleged to be under represented, for this is the
conceptual benchmark for the Sixth Amendment fair cross-section requirement.”
Duren, 439 U.S. at 364. The use of census data on the actual population of the
community, rather than more detailed data on the “jury eligible” population of the
community, was reaffirmed in Castaneda v. Partida, 430 U.S. 482; see also
People v. Harris, 36 Cal. 3d at 53-54.
1556. In Harris, the court rejected the prosecution’s argument that
evidence of studies comparing the entire population base rather than just a jury569Page 594 Page ID #:
eligible population were inadequate to meet the second Duren prong. In People
v. Morales, 48 Cal. 3d 527, 548, 770 P.2d 244, 257 Cal. Rptr. 64 (1989), the
court confirmed that Harris had allowed “challenges based upon gross population
statistics, rather than ‘voter eligible’ statistics,” where voter eligibility was
tantamount to juror eligibility.
1557. In People v. Bell, 49 Cal. 3d 502, the court held that for cases tried
before its decision (September 5, 1989), total population figures rather than jury-
eligible population figures could be used to establish a prima facie case under the
second Duren prong. Once a significant disparity is shown the prosecution may
introduce evidence to more accurately define the presumptively jury-eligible
population in order to rebut the prima facie case. Bell, 49 Cal. 3d at 526 n.12;
accord Sanders, 51 Cal. 3d at 490 n.4, 496 n.8.
1558. In Petitioner’s hearing, the trial court required the expert witnesses
to base population comparisons upon jury-eligible Hispanics who could speak
English proficiently and who were citizens. When Dr. Weeks explained the error
of discounting juror disqualifications for Hispanics without also discounting juror
disqualifications for non-Hispanics, the trial court could not understand his
reasoning and stood by its own intuition. The court said:
I’m honestly not sure I can accept that. And again because maybe
my training hasn’t been adequate in this arcane science, but if these
folks aren’t going to be eligible legally . . . then it seems to this court
that they need not be accounted for . . . whereas folks that are just
excused for . . . hardship or whatever, are legally eligible, and
therefore, . . . appropriate to include . . . in the analysis.
(53 RT 3802.)
1559. The prosecution’s expert witness, Dr. Minter, made comparisons that
began with an estimate of Hispanics who were jury-eligible. Her statistical
comparisons were not helpful in the determination of whether Petitioner made a
570Page 595 Page ID #:
prima facie showing of an unreasonable relationship between population and jury
pool under the second Duren prong. Rather, her numbers were more relevant as a
rebuttal to an established prima facie case. The trial court told Dr. Weeks, “Try
to convince me I’m wrong on this or . . . confine yourself to numbers involving
people of Hispanic descent who would be eligible to serve on a jury.” (57 RT
4112.) On the same subject, the court told Dr. Weeks, “I guess we’re at a
standstill on this one.” (53 RT 3804.) It is evident in the court’s finding of no
constitutional disparity between the population of Hispanics in the county and the
number of Hispanics serving as jurors in its courthouse that the trial court was
unconvinced by mathematical calculations to sway from his own intuitions about
race in the community. (61 RT 4652.)
1560. Petitioner presented expert testimony proving that Hispanics were
substantially under-represented in the relevant community. Dr. Weeks found an
absolute disparity of 23.6 percent in the Central Judicial District and of
percent in the 20-mile radius. With a correction of 8 percent for growth of the
Hispanic population, Dr. Weeks found an absolute disparity for the 20-mile
radius of 3.5 percent and comparative disparity of 20 percent; the absolute
disparity for the Central Judicial District was 12.3 percent and the comparative
disparity was 47 percent.
1561. Petitioner also demonstrated that the absolute disparity, as defined
for purposes of a prima facie showing (the percentage of Hispanics in the adult
population minus the percentage in the jury pool), was 23.6 percent for the
“Central Judicial District” community and 13 percent for the “20-mile radius”
community. Petitioner proved that the “Central Judicial District” community
could not be compared to the courthouse jury lounge because of its small and
inherently unrepresentative size. Petitioner proved that the “20-mile radius” was
not a random sample and contained too many unknown variables to be
statistically relevant in an analysis by comparison. Petitioner proved disparity
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and a large standard deviation by comparing Los Angeles County’s population of
Hispanics in 1980 to the sample in the juror lounge of the downtown Los Angeles
Superior Court. Petitioner’s expert witness provided multiple methods to repair
the disparity, but did not, nor was he required to, guarantee those methods would
repair the disparity. His recommendations were largely ignored.
1562. Petitioner met the second Duren prong. Petitioner showed that the
Los Angeles County jury commissioner’s office, fully aware of the problem, had
failed to remedy the disparities in the downtown Los Angeles County courthouse,
although means were readily available to do so. The prosecution expert largely
conceded Petitioner’s evidence that overwhelmingly showed that the jury pool in
Los Angeles County was unrepresentative of the community. Petitioner showed
by clear, convincing and largely uncontroverted evidence that representation of
Hispanics was not fair and reasonable under the Constitution.
3.
Duren prong three
1563. As to the third Duren prong, Petitioner also demonstrated, by largely
uncontroverted evidence, that the under-representation of Hispanics resulted from
a systematic exclusion inherent in the procedures used in the Los Angeles County
disproportion itself demonstrates an infringement of the defendant’s
interest in a jury chosen from a fair community cross section. The
only remaining question is whether there is adequate justification for
this infringement . . . . [O]nce the defendant has made a prima facie
showing of an infringement of his constitutional right to a jury
drawn from a fair cross section of the community, it is the State that
bears the burden of justifying this infringement by showing
attainment of a fair cross section to be incompatible with a
significant state interest.
572Page 597 Page ID #:
Duren, 439 U.S. at 368 n.26.
1564. Under the most stringent test, Petitioner showed an absolute
disparity for Hispanics of more than 10 percent in the “Central Judicial District”
community. An absolute disparity of more than 10 percent is generally deemed
substantial. People v. Bell, 49 Cal. 3d at 528. Certainly, the higher absolute
disparity demonstrated here must also be considered substantial. Sanders, 51 Cal.
3d at 492 n.5 (absolute disparity measures representativeness between under-
represented group in the general population and under-represented group in the
jury pool).
1565. By demonstrating that the disparity resulted in systematic
disproportion, Petitioner also met the test outlined by the court in Bell. The
failure to merge DMV and ROV lists correctly, match names before deletion of
“duplicates,” follow-up on lost, incomplete, or unreturned questionnaires, or use
a recent and updated DMV list resulted in systematic exclusion of Hispanics. Mr.
Arce mismanaged his staff and failed to supervise or inquire whether his
instruction to add addresses to the DMV/ROV matching software had been
implemented until he was made aware of the problem by Petitioner’s expert
witness. Even after the trial court suggested the inclusion of an address field in
the software and a comparison of addresses before deletion, Mr. Arce did not
make those changes although he expressed a desire to make the changes and his
opinion that adding addresses would increase the number of Hispanics in the Los
Angeles County jury pool at a minimal cost of time or money. The statistical
evidence offered by Petitioner showed a direct, causal relationship between the
absolute and comparative disparities and the merger process.
1566. A jury selection process that results in significant under-
representation of a cognizable group, such as Hispanics here, violates the
fundamental and explicit purpose of the Sixth Amendment: maintenance of the
appearance and reality of “impartial” juries.
573Page 598 Page ID #:
1567. In his motion before the trial court, Petitioner asserted his intent to
incorporate equal protection claims to the extent supported by the facts. The third
Duren prong need not be established when a prima facie claim of discrimination
is established. Cf., Castaneda v. Partida, 430 U.S. 482. Petitioner showed a
presumption of discrimination by at least three facts, individually and
cumulatively:
(a)
the prosecution’s insistence on the “Central Judicial District”
community in the context of Caucasians surrounded by
minorities in Williams v. Superior Court, 49 Cal. 3d 736,
while insisting in Petitioner’s case that the “20-mile radius”
community was the community of jurors for comparison in
the context of minorities surrounded by Caucasians;
(b)
the jury commissioner’s failure to institute follow-up
procedures for unreturned, lost, or incomplete questionnaires
with the knowledge that this practice reduced Hispanic
representation (see VI Supp. CT XII 3487-88, 3559); and
(c)
the objections of the prosecution, the trial court, and the jury
commissioner (i) to modification of the jury selection software
to do what the jury commissioner had originally intended and
instructed his staff to do, i.e., add addresses and check
matches before deleting names; (ii) to merging of the ROV
and DMV lists with matching weights or with the DMV list as
the primary and; (iii) to adjusting the timing of the merger to
avoid using outdated DMV lists, knowing that this would
likely help correct the under-representation of Hispanics in the
jury pool.
Accordingly, Petitioner established a prima facie showing of intentional
discrimination which the State was obliged to but failed to rebut.
574Page 599 Page ID #:
1568. In any event, in People v. Anderson, 25 Cal. 4th 543, 22 P.3d 347,
106 Cal. Rptr. 2d 575 (2001), the court found no dispute in the record that
Hispanics were a cognizable group and were under-represented in the jury pool
(prongs one and two of Duren). However, the court held that evidence of
systematic exclusion was speculative and thus failed to satisfy the third prong of
Duren. Id. at 564-68. By contrast, Petitioner has shown clear, convincing, and
largely uncontroverted evidence statistically establishing the disparity, resulting
from systematic exclusion inherent in the Los Angeles County jury selection
procedures, thus satisfying the third prong of Duren as well. The evidence here
established that the disparity among Hispanics arose from improper DMV/ROV
merger procedures (conceded by the county) and the erroneous use of a 20-mile
radius for cross-sectional analysis improperly approved by the trial court. The
causes of the under-representation among Hispanics were well documented.
1569. In conclusion, Petitioner met all three prongs of Duren. Petitioner
established that Hispanics are a cognizable group under Duren prong one. Jury-
eligible Hispanics were under-represented in the venire under Duren prong two.
Under-representation resulted from systematic exclusion under Duren prong
three. Duren, 439 U.S. at 366-67. The prosecution failed to show any state
interest in justifying the disproportionate exclusion of Hispanics from the Los
Angeles County Superior Court in downtown Los Angeles County as required
under Duren. Id. at 367-68.
B.
The Constitutional Violations Were Prejudicial Per Se
1570. The denial of Petitioner’s fundamental federal constitutional right to
trial by jury drawn from a representative cross-section of the community was
prejudicial per se. Duren v. Missouri, 439 U.S. at 369-70; Rose v. Clark,
U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
1571. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
575Page 600 Page ID #:
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 22:
THE TRIAL COURT UNCONSTITUTIONALLY SHACKLED
PETITIONER THROUGHOUT THE CAPITAL TRIAL
1572. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XVII of the June 2004 petition for writ of
habeas corpus, and in Section IX of the Opening Brief, although it includes
additional factual allegations. Petitioner will present the claim with the additional
factual allegations to the California Supreme Court in an exhaustion petition he
will file no later than March 17, 2009.
1573. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1574. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
576Page 601 Page ID #:
1575. Petitioner’s conviction, death sentence and confinement were
unlawfully obtained in violation of his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights to due process, a fair and open trial, the presumption of
innocence, equal protection, the right to be present and the opportunity to be
heard, the effective assistance of counsel, and a fair, reliable and accurate
determination of guilt and penalty by the trial court’s decision to shackle
Petitioner at trial.
1576. Prior to trial, on February 24, 1986, at a hearing in the court’s
chambers, outside of the presence of Petitioner, the court stated that even though
it had already indicated that Petitioner would be required to wear handcuffs and
no leg shackles to court, the court had decided that Petitioner would be required
to wear leg shackles, and no handcuffs. The court made the decision based on the
advice of the marshal. The court stated that the marshal had indicated to the court
that Petitioner had made some statements indicating that he was going to try to
escape, if he could, and he would do so by taking the officer’s weapon if he
could. ( I CT 8.).121 The court stated as follows:
Based upon that, we have elected to proceed in this fashion. I am not
welded (sic) to it. If things go well, we may change. It is also better for
your client’s benefit to have a rather peaceful Marshal’s Corp.
(I CT 8.).
After a recess, in another hearing held in the court’s chambers which was
held outside of the presence of Petitioner, the court and the parties discussed
The statements allegedly made by Petitioner were provided to the court
ex parte by the marshal. They were also relayed to the court out of the presence
of petitioner, trial counsel, and the district attorney. There was never an
evidentiary hearing held, so that the marshal who allegedly heard the statements
could be cross-examined, or to determine the reliability of the alleged statements.
See (CR 8-11).
577Page 602 Page ID #:
courtroom security. Trial counsel was concerned that there had been no
screening of the members of the public which were coming to watch the trial.
Trial counsel was concerned because the defense attorneys had received death
threats. The court allowed a law enforcement officer, who was referred to as “the
sergeant,” to discuss the issue. (I CT 9-11.). The sergeant indicated that since
the metal detector had failed, courtroom security had to opt for either hand
searching, or no searching. They decided not to search individuals based upon
what they had learned from other deputies that had provided security for
Petitioner’s case, and based on intelligence that they had received. (I CT 9-10.).
The sergeant indicated that if the metal detector was repaired or replaced, then
they would consider whether it was necessary to use it on a day-to-day basis,
taking into account what the court wanted. (I CT 10.)
Next, the court discussed that Petitioner did not pose a danger in the
courtroom. The exchange took place as follows:
The Court:
Now what is it that gives you your sense of
satisfaction with the security status of the
courtroom now?
The Bailiff:
The fact that the defendant has not proven to be
violent. He has had contact with a lot of our
deputies.
The Court:
I am not worried about him, I am worried about
the people in the audience. Why do they not
present a threat to him or you or to counsel?
The Bailiff:
cases as the trials progress...
We do monitor the audience in these security
(I CT 11.)
1577. Even though Petitioner had contact with many deputies and had not
proven to be violent, at trial, Petitioner was visibly restrained. During jury
578Page 603 Page ID #:
selection, on December 19, 1988, he was restrained with shackles, which could
be observed by the jurors, and a discussion was held regarding whether Petitioner
was to be restrained in shackles or a leg brace. (127 RT 13961-68.) Deputy
District Attorney Halpin addressed the court and indicated as follows:
I was just going to bring up another issue that we talked about briefly at the
bench, but the defendant was not party to the conversation, and that is the
fact that the defendant is wearing chains in the courtroom.
I was going back over some old material and did come across those cases
where we’re admonished not to -- not to do that. We are back now in a
smaller situation, smaller courtroom again, and I’m told the jury is going to
have to walk by the counsel table here to get up to the jury box, apparently,
because the other gate is blocked by some chairs.
I think we probably better address the issue of chains again.
(127 RT 13961.)
When the court inquired as to what trial counsel, Daniel Hernandez, would
suggest regarding restraints, trial counsel suggested that all restraints should be
removed from Petitioner. (127 RT 13963.) Deputy District Attorney Halpin
suggested that a leg brace be utilized, since it would not be visible. (
RT 13964.) The court noted that the leg brace was physically painful for
Petitioner, and indicated that the court was not going require Petitioner to be
“uncomfortable and physically in pain” during the trial. (id.) The court stated
that because of some statements Petitioner had made, and the history of the case,
restraints were required. (id.) Trial counsel noted that any statement allegedly
made by Petitioner had never been established at a hearing, and questioned
whether such baseless allegations were sufficient grounds for the shackles. (id.)
The court acknowledged that the restraints had been visible to the jurors, and
stated as follows:
579Page 604 Page ID #:
I mean, quite frankly, gentleman, Mr. Ramirez has been in restraints the
entire period of jury selection and his legs, I would assume, have been in
view of the prospective jurors as they came in individually and sat in the
jury box and looked down the table and saw him.
I don’t think it is any surprise.
(See 127 RT 13964-65.)
Trial counsel suggested building a barrier or putting up a curtain so that the
jurors would not see the leg shackles worn by petitioner. The court denied that
request. (See 127 RT 13966.) Thus, it is apparent from the record, that
beginning at jury selection, Petitioner was visibly restrained in front of the jury.
1578. The record reflects that at a closed hearing held at the beginning of
trial on January 30, 1989, the trial court ordered Petitioner to be restrained in
chains, which were visible to the jury. Trial counsel had previously objected to
Petitioner being restrained in chains. The court gave Petitioner a choice of either
wearing a leg brace, that Petitioner had indicated was uncomfortable, or wearing
shackles, that were visible to the jury. Petitioner indicated that he did not want to
wear anything. (I Supp. CT VIII 2284-85.) The court responded, stating “I
understand that you would prefer not to have any kind of restraint at all, but that
appears to be a security measure that the sheriff feels is necessary.” (I Supp.
CT VIII 2285.) The court then took a “waiver” from Petitioner and trial counsel
which purported to assert Petitioner’s “willingness” to wear leg shackles at trial
instead of a leg brace in light of his complaints that a leg brace was painful and
uncomfortable. (I Supp. CT VIII 2284-86.)
1579. The waiver was not valid, however. The court did not advise
Petitioner that he had a constitutional right not to wear visible restraints without
manifest need and, further, that there was a recognized danger the jury would
likely consider him guilty or dangerous, thus affecting both the guilt and penalty
determinations. See infra. In addition, the court essentially gave Petitioner a
580Page 605 Page ID #:
choice between wearing an uncomfortable leg brace during a trial that was going
to be extremely long, or wearing shackles, which were visible to the jury. Such a
choice was unreasonable, and thus, the waiver was invalid.
1580. At the conclusion of the guilt trial, the prosecutor requested the trial
court to instruct the jury regarding Petitioner’s restraints. (208 RT 23931-32;
RT 24004.) The trial court instructed the jury as follows:
You may have observed that the defendant has worn restraints while
in the courtroom. This fact shall have no bearing upon your
determination of the defendant’s guilt or innocence. That
determination must be based solely upon the evidence presented to
you.
(212 RT 24413.)
1581. The juror and alternate jurors were aware that Petitioner was
shackled during the trial. (Ex. 120, Declaration of Bonita Smith, ¶ 10; Ex, 129,
Declaration of Martha Salcido, p. Ex. 129,¶ 6). Alternate juror Janice McDowell
recalled as follows:
I remember seeing leg chains on Mr. Ramirez. Sometimes I could hear the
chains rattle when he entered the courtroom or shifted in his seat.
(Ex. 116, Declaration of Janice McDowell, ¶ 5) Another alternate juror, Max De
Ruiter, believed that Petitioner was shackled at trial, and he believed that the
shackling was necessary because he had heard that Petitioner had tried to attack
someone in the court room. (Ex. 115, Declaration of Max De Ruiter, ¶ 5). The
unconstitutional and visible shackling of Petitioner during his trial deprived him
of a fair trial because jurors believed that Petitioner was dangerous and that it was
necessary to shackle him during the trial for security purposes.
1582. The Ninth Circuit has stated:
It is axiomatic that our criminal justice system affords every accused
individual a presumption of innocence. Coffin v. United States, 581Page 606 Page ID #:
U.S. 432, 453, 15 S. Ct. 394, 402, 39 L. Ed. 481 (1895), cited in
[Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973)]. When an
accused is forced to appear before his peers in chains, this
presumption is seriously jeopardized. See Holbrook v. Flynn,
U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d 525 (1986) . . . .
Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989) (other citations omitted); see
also People v. Duran, 16 Cal. 3d 282, 290, 545 P.2d 1322, 127 Cal. Rptr.
(1976) (United States Supreme Court decisions collected); Williams v. Woodford,
306 F.3d 665, 689 (9th Cir. 2003) “A criminal defendant has a constitutional
right to be free of shackles and handcuffs in the presence of the jury absent an
essential state interest that justifies the physical restraints.”).
1583. Jones v. Meyer, 899 F.2d 883, 885 (9th Cir. 1990) described the
analysis a reviewing court must undertake:
First, the [trial] court must be persuaded by compelling
circumstances ‘that some measure was needed to maintain the
security of the courtroom.’ Spain, 883 F.2d at 720. Second, the
court must ‘pursue less restrictive alternatives before imposing
physical restraints.’ Id. at 721; see also Illinois v. Allen, 397 U.S. [at
344] (stating that shackling and gagging should only be used as a
‘last resort’).
1584. There was insufficient justification in Petitioner’s case for physical
restraints. Petitioner had no history of escape or violence in the courtroom.
There was no showing of manifest need to restrain Petitioner. See Duran, 16 Cal.
3d at 291. The only apparent reasons the court ordered Petitioner restrained were
the nature of the charges, the high media profile of Petitioner’s case, and
statements allegedly made by Petitioner.
1585. In relation to these apparent bases for the shackling, Petitioner’s case
compares with Spain v. Rushen, 883 F.2d 712 (9th Cir. 1989). There, the
582Page 607 Page ID #:
petitioner was a high-profile prisoner serving a life sentence for crimes
committed in connection with his membership in the Black Panther Party. He
was tried for murder allegedly committed during a prison escape attempt. The
trial was held in the same courthouse where, not long before, another escape
attempt had resulted in the killing of a trial judge. Thus, the atmosphere created
concern for security and safety; Spain and his five co-defendants were ordered
heavily shackled throughout the proceedings. Despite this background, and
despite evidence that Spain posed a serious escape and security risk while in
court, the Ninth Circuit affirmed the district court’s finding that Spain had been
denied his constitutional rights by being shackled at trial. The trial court was
deemed to have erred and abused its discretion in not considering and applying
less extreme measures of courtroom control. Spain, 883 F.2d at 728-29.
1586. While Petitioner’s case also involved a very high degree of media
attention and public awareness, there was no evidence that Petitioner posed an
immediate threat to security or safety while in the courtroom during trial. In
Spain, the petitioner was charged with conspiring to violently escape from
custody with the assistance of outside conspirators and was associated with
previous actual deadly attempts. Here, Petitioner committed no such acts and
was never shown to pose any sort of security or escape risk. In fact, prior to trial,
the bailiff stated that many deputies had been in contact with Petitioner, and that
he was not violent.
(I CT 11.) The court also indicated that it was not worried about Petitioner as a
security risk. ( id.)
1587. The improper restraints violated Petitioner’s Fifth, Sixth, Eighth, and
Fourteenth Amendment rights. See Rhoden v. Rowland, 172 F.3d 633 (9th Cir.
1999) (unjustified shackling of defendant in trial violated due process). The trial
court’s ruling in ordering Petitioner restrained interfered with his fundamental
rights, including his right to counsel, and his right to a reliable determination of
583Page 608 Page ID #:
guilt and penalty under the Sixth, Eighth and Fourteenth Amendments.
Petitioner’s right to a fair trial was violated in that the improper restraints created
a negative impression of him that undermined the presumption of innocence.
Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). As a
result, Petitioner was prejudiced in the eyes of the jury. The visible restraints
detracted from the dignity of the proceedings and impeded Petitioner’s ability to
communicate with counsel. Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir.
1995).
1588. Moreover, the trial court’s cautionary instruction in Petitioner’s case
was legally and factually deficient. The instruction admonished the jury not to
use the fact of restraints in the determination of guilt or innocence. However, the
language of CALJIC No. 1.04 is much broader and prohibits consideration of
restraints for any purpose:
The fact that physical restraints have been placed on defendant [
must not be considered by you for any purpose. They are not
evidence of guilt, and must not be considered by you as any
evidence that [he] [she] is more likely to be guilty than not guilty.
You must not speculate as to why restraints have been used. In
determining the issues in this case, disregard this matter entirely.
CALJIC No. 1.04 (6th ed. 1996). CALJIC No. 1.04, adopted in 1992, must be
given sua sponte if restraints are visible.123 People v. Jackson, 14 Cal. App. 4th
1818, 1825, 18 Cal. Rptr. 2d 586 (1993). CALJIC No. 1.04 clarifies the general
rule that restraints have no role in the weighing of any evidence. The instruction
]
The Use Note to CALJIC No. 1.04 cites People v. Duran, 16 Cal. 3d
282.
There is no sua sponte duty to give CALJIC No. 1.04 if the restraints
are not visible. People v. Medina, 11 Cal. 4th 694, 732, 906 P.2d 2, 47 Cal. Rptr.
2d 165 (1995).
584Page 609 Page ID #:
given here, however, failed adequately to clarify that the jury was not to consider
Petitioner’s restraints for any purpose. The approved instruction contains a
specific admonition against speculation as to the purpose or reason for restraints;
the instruction given in Petitioner’s case did not. Finally, CALJIC No. 1.
reiterates that restraints serve no function whatsoever in the jury’s consideration
of the evidence; the instruction given here was limited only as to the issue of guilt
or innocence.
1589. As the Supreme Court has reiterated, due process under the federal
Constitution forbids visible shackling of a criminal defendant in the presence of
the jury absent a showing of an “essential state interest.” Deck, 544 U.S. 622,
125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005). In Deck, Justice Breyer, writing for
the majority, held that the ban on shackling of a defendant in front of the jury was
so long-standing and universal that it applied equally to guilt and penalty phases
of a capital trial. Deck, 544 U.S. at 632-33. Noting that American courts have
long followed this “principle deeply embedded in the law” (id. at 629), the Court
held fundamental due process bans such practice even in the penalty phase of a
capital trial absent “indisputably good reasons.” Id. at 634-35. This is so because,
even though there is no longer a concern the jury will attribute guilt to the
defendant on account of the shackles, the decision as to life or death is akin to a
guilt determination, so that adverse inferences arising from visible shackling are
as grave a matter as at the guilt phase:
Although the jury is no longer deciding between guilt and
innocence, it is deciding between life and death. That decision, given
the “ ‘severity’ “ and “ ‘finality’ “ of the sanction, is no less
important than the decision about guilt. [¶] Neither is accuracy in
making that decision any less critical. The Court has stressed the
“acute need” for reliable decision making when the death penalty is
at issue. . . . It also almost inevitably affects adversely the jury’s
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perception of the character of the defendant. And it thereby
inevitably undermines the jury’s ability to weigh accurately all
relevant considerations – considerations that are often unquantifiable
and elusive – when it determines whether a defendant deserves
death. In these ways, the use of shackles can be a “thumb [on]
death’s side of the scale.”
Id. at 632-33 (citations omitted). Noting the Court had previously held that
shackling is “inherently prejudicial” (Id. at 635 (quoting Holbrook v. Flynn
U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)), and that the prejudice
accruing “cannot be shown from a trial transcript,” Deck ruled improper restraint
orders require no showing of prejudice by the defendant under the Due Process
clause, and the burden lay on the prosecution to show “beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.”
Deck, 544 U.S. at 635. (quoting Chapman v. California, 386 U.S. at 24).
1590. The court violated Petitioner’s right to appear before the court with
the appearance, dignity and self-respect of a free and innocent man, that is,
without restraints. Petitioner was charged with numerous crimes of violence and
lesser felonies. Petitioner did not testify on his own behalf at the guilt trial. The
jury found Petitioner guilty on all counts. The use of chains and shackles to
restrain Petitioner adversely affected the jury’s impression of him and likely
contributed to the jury’s view that he had violent propensities and must be guilty
as charged. Finally, at the penalty trial, Petitioner’s jury was allowed improperly
to draw the inference of Petitioner’s future dangerousness and greater culpability
by virtue of the instruction permitting the jury to consider all guilt evidence. See
Claim 36, infra.
1591. In addition, during the trial, there were times when Petitioner
appeared before the jury in prison clothes. During the penalty phase, the court
found that Petitioner waived his right to appear in civilian clothes. (217 RT
586Page 611 Page ID #:
24775-76.) The court instructed the jury to disregard the fact that Petitioner
appeared in jail clothes. (Id. at 24798-99.) Jurors also observed Petitioner in
prison clothes at times during the trial. (Ex. 118, J. Muldrow Dec., ¶ 7) The
United States Supreme Court has held that it is a violation of the Fourteenth
Amendment to force a defendant to appear before a jury in prison clothes. See
Estelle v. Williams, 425 U.S. 501, 512 (1976). Petitioner was unconstitutionally
restrained in shackles, and he unconstitutionally appeared in prison clothes before
the jury at his trial
1592. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 23:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY ADMITTING
INFLAMMATORY PHOTOGRAPHS
1593. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section X of
the Opening Brief.
587Page 612 Page ID #:
1594. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1595. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1596. The prosecution sought to introduce autopsy and crime scene
photographs of victims in fifteen unrelated incidents. (See, e.g., 143 RT 16427;
see also XXVIII CT 8355-59.) Petitioner objected to the introduction of
photographs of the victims and crime scenes under Evidence Code § 352. (Id. at
8310-14.)
1597. With respect to the Vincow incident, Petitioner objected to
photographs of the victim taken at the scene and autopsy (People’s Exs. 1-F, 1-G,
1-H, 2, 2-A, and 2-B), because the photographs were not relevant; rather, they
were gruesome and highly inflammatory. (143 RT 16428; 145 RT 16595-96;
RT 18215-18.) The trial court admitted the photographs, finding they were
relevant to the time and manner of death and were not “unduly gruesome.” (
RT 16429; 158 RT 18219.)
1598. With respect to the Hernandez/Okazaki incident, Petitioner objected
to photographs of the victim taken at the scene and autopsy (People’s Exs. 4-D,
4-E and 5) on relevance and prejudice grounds. (See 146 RT 16803-06.) The
trial court admitted the photographs, finding they were probative as to cause of
death. (Id. at 16804, 16806, 16811.)
1599. With respect to the Yu incident, Petitioner objected to introduction
of coroner photographs of the victim (particularly People’s Ex. 5-F showing the
victim while intubated) because the photographs were irrelevant and prejudicial.
(See 147 RT 16971-73; 148 RT 17119.) The court admitted the photographs,
588Page 613 Page ID #:
ruling that People’s Exhibit No. 6-F was unpleasant but was relevant. (
RT 16974-75.)
1600. With respect to the Zazzara incident, Petitioner objected to
photographs of Maxine Zazzara at the scene (People’s Exs. 9-A and 9-B) as
“extremely grotesque and prejudicial.” (151 RT 17554-55.) The court ruled that
the photographs, although unpleasant, were relevant to the cause of death. (Id. at
17555.) Petitioner also objected to coroner photographs of Mrs. Zazzara
(People’s Exs. 9-C, 9-D, 9-E, and 9-F). (151 RT 17557.) The court ruled the
photographs were relevant to establish the nature of the wounds. (Id. at 17557-
58.)
1601. With respect to the Doi incident, Petitioner objected to a coroner’s
photograph of William Doi with a breathing apparatus in his mouth and a
photograph of Lillian Doi in a hospital bed with a bruise on her face (People’s
Exs. 11-A and 10-X, respectively). (151 RT 17545-48.) The court ruled that the
photographs were probative and not inflammatory. (Id. at 17547-48.)
1602. With respect to the Cannon incident, Petitioner objected to
photographs of the victim which depicted neck wounds (People’s Exs. 20-G, 20-
H and 20-1) as gory and inflammatory. (157 RT 18070-71.) The court admitted
two photographs of the victim (People’s Exs. 20-H and 20-1) pursuant to
1603. With respect to the Kneiding incident, Petitioner objected to coroner
photographs of victim Lela Kneiding (People’s Exs. 30, 30-B and 30-C) as
irrelevant and inflammatory. (164 RT 18992-95; 165 RT 19249.) The court
admitted two photographs (People’s Exs. 30 and 30-C). (164 RT 18993, 18997-
98; 165 RT 19249.)
1604. It has long been held to be an abuse of discretion for a trial court to
admit explicit autopsy photographs or photographs of postmortem examinations
where the victim’s body is badly decomposed or disfigured. See People v. Cox,
589Page 614 Page ID #:
53 Cal. 3d 618, 665-66, 809 P.2d 351, 280 Cal. Rptr. 692 (1991). In Cox, the
court held that the introduction of autopsy photographs did not constitute an
abuse of discretion where they were small and not particularly gruesome.
Significantly, in Cox, the prosecution also declined to introduce even more
graphic depictions of the victim’s wound. People v. Cox, 53 Cal. 3d at 666.
1605. As to the Vincow incident, photographs of the victim were not
probative because the cause of the victim’s death was not at issue, only the time
of death. The admitted photographs did not assist the jury in determining the
time of death. Matters relevant to time of death, such as body temperature and
lividity, were not discernible from the photographs.
1606. As to the Okazaki incident, the coroner photograph of the victim
(People’s Ex. 5) was not probative of any material issue at trial. Any slight
probative value was far outweighed by the prejudicial effect of the autopsy
photograph. Other photographs of the scene and the victim (People’s Exs. 4-D
and 4-E) admitted by the court were cumulative. The photographs did not aid the
jury in its determination of any contested fact. Contrast People v. Scheid, 16 Cal.
1609. In Doi, photographs of the two victims were not probative of the
determination of guilt. Petitioner was charged only with the death of William
Doi. The prejudicial effect of having the jury view both the decedent and his
injured wife outweighed any probative value under Evidence Code § 352. The
photographs did not assist the jury in deciding any contested fact in the case.
People v. Frank, 51 Cal. 3d at 735.
1610. Similarly, in Cannon, photographs of the victim’s wounds were
inflammatory and not probative of any issue related to the determination of guilt.
The photographs did not assist the jury in deciding any contested facts. Id.
1611. As to the Kneiding incident, photographs of the victim Lela
Kneiding taken at the scene were inflammatory and not probative of any
contested issues in the case. The nature and extent of the victim’s injuries,
although brutal, were not at issue. Id.
1612. Petitioner was prejudiced by the gruesome and inflammatory
photographs in the joint trial of fifteen unrelated incidents. The photographs did
not aid the jury in its determination of the evidence; they were highly prejudicial.
The photographs had little, if any, relevance to the determination of guilt.
1613. In closing argument, the prosecutor urged the jury to consider
photographs of the gaping throat wound in the Vincow incident as evidence of a
591Page 616 Page ID #:
signature mark. (See 206 RT 23701.) However, the prosecution’s speculation
about the possible significance of the wounds failed adequately to demonstrate
relevance; the photographs should have been excluded under Evidence Code
§ 352. In the Yu incident, the prosecutor relied on photographs of the victim’s
injuries to support his theory of her death. (See 206 RT 23781-84, 23789-825.)
The gruesome photograph objected to by Petitioner was not instructive as to the
cause of death; it was inflammatory, cumulative and prejudicial. In the Okazaki
incident, the prosecution relied on photographs of the victim in order to speculate
about a motive for the killing consistent with a possible motive in other incidents.
(See Id. at 23718-20.)
1614. In the Zazzara incident, the prosecution argued that ligature marks
and throat wounds on Maxine Zazzara were similar to marks observed on victims
in other incidents. (207 RT 23839-40.) The prosecutor also argued that the
photographs of Maxine Zazzara’s injuries showed her eyes had been cut out. (Id.
at 23839.) However, there was no relevance as to the injuries to her eyes; the
photographs were highly inflammatory, prejudicial and cumulative. In the Doi
incident, the prosecution engendered sympathy for the victim by emphasizing
photographs of both William Doi and Lillian Doi that were not probative of the
determination of guilt. (Id. at 25854.)
1615. In many instances, the prosecutor’s argument created an
impermissible spillover effect. By comparing inflammatory photographs of
victims and crime scenes in incidents with stronger evidence to photographs of
victims and crimes scenes in incidents with weaker evidence, the prosecution
created a prejudicial spillover effect which the jury was unable to
compartmentalize. The prejudicial photographs were also used to link Petitioner
to many of the numerous crimes in violation of his rights to a fair trial, to a fair
and reliable determination of guilt, to have every element of the charge proven
beyond a reasonable doubt, and to due process and fundamental fairness under
592Page 617 Page ID #:
the Fifth, Sixth, Eighth, and Fourteenth Amendments. In re Winship, 397 U.S.
358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The erroneous ruling also violated
Petitioner’s right to a reliable determination of penalty. Caldwell v. Mississippi.
For the reasons discussed above, the trial court erred in admitting cumulative and
prejudicial evidence. A number of death judgments have been reversed due, at
least in part, to the failure to exclude gruesome photographs. Cf. Spears v.
sentencing proceeding with unfairness as to render the jury’s imposition of the
death penalty a denial of due process”); People v. Love, 53 Cal. 2d 843, 856,
P.2d 705, 3 Cal. Rptr. 665 (1960) (photographs “served primarily to inflame the
passions of the jurors;” probative value “was more than adequately” conveyed
“by the doctor”); accord Clark v. Commonwealth, 833 S.W.2d 793, 794-95 (Ky.
1991); Tobler v. State, 688 P.2d 350, 355-56 (Okla. Crim. App.1984); see also
United States v. Sampson, 335 F. Supp. 2d 166, 181-83 (D. Mass. 2004)
(photographs excluded to protect the defendant’s “due process right … to a
fundamentally fair [penalty] trial”).).
1616. As the jurors were improperly inflamed and impassioned by the
erroneous admission of the photograph, Petitioner’s right to a reliable
adjudication at all stages of a capital case was denied. Ford v. Wainwright,
U.S. 399, 411, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986); see also Beck v.
Alabama, 447 U.S. at 638. The trial court abuse of discretion in admitting this
photograph also violated Petitioner’s right to due process and made his trial
fundamentally unfair. Estelle v. McGuire, 502 U.S. at 67-69; Kealohapauole v.
Shimoda, 800 F.2d at 1465 (citing Lisenba v. California, 314 U.S. 219, 236, 62 S.
Ct. 280, 86 L. Ed. 166 (1941)).
1617. The court’s rulings admitting the photographs into evidence violated
Petitioner’s constitutional right to due process, a fundamentally fair trial, and a
reliable adjudication at all stages of a capital case. U.S. Const. amends V, VIII,
593Page 618 Page ID #:
XIV; Ford v. Wainwright, 477 U.S. 399; Gardner v. Florida, 430 U.S. 349; Hicks
v. Oklahoma, 447 U.S. 343.124 For these reasons, Petitioner’s death sentence
must be reversed.
1618. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 24:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY
THAT PETITIONER’S REFUSAL TO REMOVE HIS
SUNGLASSES WAS EVIDENCE OF CONSCIOUSNESS OF
GUILT
1619. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XI of
the Opening Brief.
See note, supra.
594Page 619 Page ID #:
1620. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1621. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1622. During Jorge Gallegos’ testimony regarding the Yu incident, the
court advised Petitioner to take off his sunglasses to permit the witness to view
Petitioner’s profile. Petitioner refused to remove his glasses. (146 RT 16889.)
1623. The prosecution requested an instruction on consciousness of guilt
relating to Petitioner’s refusal to remove his glasses at trial. The prosecution
contended that Petitioner’s refusal to remove his glasses demonstrated
objected to such an instruction, contending that Petitioner’s conduct did not give
rise to an inference or consciousness of guilt. (Id. at 23347-48, 23352-53.) The
trial court recalled that Petitioner had been warned at the time the request was
made that as a consequence of his refusal, the prosecution would be permitted to
argue that Petitioner’s conduct was evidence of consciousness of guilt.125 (
RT 23350-53.) Overruling Petitioner’s objections, the trial court thus instructed
the jury as follows:
If you find that the defendant was offered and refused the
opportunity in court to stand and remove his sunglasses for the
purpose of viewing by a witness, such refusal is not sufficient
The record does not support the trial court’s recollection that Petitioner
had been so advised or admonished at the time of his refusal. (See RT 16889.)
595Page 620 Page ID #:
standing alone and by itself to establish the guilt of the defendant,
but it is a fact which, if proved, may be considered by you in the
light of other facts in deciding whether the defendant is guilty or not
guilty. ¶ The weight to which such a circumstance is entitled and
whether or not such conduct shows a consciousness of guilt are
matters for your determination.
(212 RT 24430.)
1624. Generally, a defendant’s efforts to suppress evidence indicate
consciousness of guilt.
1625. The trial court erred by failing to determine whether Petitioner’s
refusal supported an inference of consciousness of guilt. The court did not
conduct a hearing to determine whether Petitioner’s conduct amounted to an
inference of consciousness of guilt. In addition, the court failed properly to
advise Petitioner of the prejudicial inferences to be drawn from his refusal.
1626. Prior to Petitioner’s refusal to remove his glasses, the prosecution
established through Gallegos’ testimony the following:
•
Gallegos identified Petitioner as the perpetrator and stated that
at trial Petitioner looked “a little different” as to his hair and
clothing (146 RT 16848-50);
•
and
Gallegos saw the suspect’s profile at the scene (Id. at 16875);
•
Gallegos previously identified Petitioner based on a
photograph in a newspaper (Id. at 16879).
1627. The trial court also failed appropriately to guide the jury’s
deliberations and proper evaluation of key evidence.
1628. The prosecutor, in closing argument, urged the jury to find Petitioner
guilty of the Yu murder because of his refusal to remove his glasses. The
prosecutor quoted the trial testimony of witness Gallegos:
596Page 621 Page ID #:
‘But are you sure this is the man? Does he look different
today than he did on this occasion?’
‘Yeah, hair might be a little longer and he’s wearing
sunglasses.’
‘Could he stand up and take his sunglasses off, please?’
The court asked him to do that and the defendant, ‘no,’ he
said.
You might conclude from that that he didn’t want to give Mr.
Gallegos any more opportunity to identify him than was necessary.
I think that is a reasonable conclusion.
(206 RT 23743.) By the prosecutor’s argument, the jury was urged to convict
Petitioner on all counts by virtue of his refusal to remove his sunglasses at trial.
1629. Petitioner’s refusal to remove his glasses did not impinge upon or
adversely impact in any meaningful way the witnesses’s identification of
Petitioner. Thus, the evidence failed to “supply the necessary nexus between
defendant and the alleged suppression of evidence.” People v. Hannon, 19 Cal.
1630. Reducing the prosecution’s burden to prove every element of the
crime beyond a reasonable doubt is a violation of federal due process guarantees.
Sandstrom v. Montana, 442 U.S. 510, 520, 99 S. Ct. 2450, 61 L. Ed. 2d
(1979). Instructional error may constitute a federal due process violation where
the issue of intent is removed from the jury’s consideration. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Without sufficient
evidence to warrant the consciousness of guilt instruction, the jury was
effectively compelled to draw an improper inference of guilt in violation of
Petitioner’s right to due process of law. Sandstrom, 442 U.S. 510; In re Winship,
397 U.S. 358, 361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
597Page 622 Page ID #:
1631. In the absence of the trial court’s erroneous instruction, it is
reasonably probable that the jury would have properly considered the evidence.
For example, in respect to the Yu incident, and incidents involving weaker
counts, and eyewitness identifications such as in the Kyle, Dickman and Petersen
incidents, and found that Petitioner’s refusal did not in itself signify his guilt.
Thus, the error was prejudicial.
1632. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 25:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REMOVING JUROR
ROBERT LEE DURING DELIBERATIONS
1633. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XII of
the opening appeal brief.
598Page 623 Page ID #:
1634. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1635. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1636. Jury selection in this case began on July 21, 1988. (65 RT 4803.)
Robert Lee became one of the regular, impaneled jurors. (See XXVIII CT 8295.)
The trial commenced on January 30, 1989. (Id. at 8299) During closing
argument on July 25, 1989, the court received a note from a member of the jury
regarding Juror Lee and his tendency “to catnap during the day.” (XXIX
CT 8498.) In response to the juror’s note, the court instructed the jury to report
to the court if “you’ve missed any of the evidence that has come before the court
. . . .” (211 RT 24268-69.) Following the court’s admonition, the jury reported
no such incidents to the court. Thereafter, at the conclusion of trial and following
the court’s instructions, jury deliberations began on July 26, 1989. (
RT 24483.)
1637. On August 11, 1989, after Juror Lee had served for six months of
trial and after 13 days of deliberations, the trial court was presented with a note
from the jury foreman. The note read as follows:
Your honor, fellow jurors have brought it to my attention that juror
No. 3, Mr. Robert Lee, has fallen asleep on two occasions during our
deliberations. I have also seen him not quite as attentive as a result
of this – of his dozing off. ¶ As foreman I find it my responsibility
to bring this to your attention.
(213 RT 24522-23; XXIX CT 8622.) Trial counsel told the court: “I just don’t
think the jury should be able to select the jury, and it appears as though this is
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what is happening.” (213 RT 24524.) The prosecutor remarked for the first time
that this juror had previously been sleeping in court, a characterization the court
questioned: “I can’t say he has slept, but he certainly has jerked his head up
abruptly from time to time as if he were nodding off or had nodded off and was
awakening, but I cannot say that I have ever found him to be asleep.” (Id. at
24524.)
1638. The court held a hearing at which the foreman was questioned, not
under oath, as to what had occurred. He said that from his vantage point he could
see all the jurors well. He saw Juror Lee nod off for four to five minutes on
Tuesday, August 8, just before the lunch break, and again briefly in the afternoon
on Wednesday, August 9, the eleventh day of deliberations. Significantly, the
foreman stated he had not noticed Juror Lee sleeping before Tuesday, nor did any
of the other jurors mention it before then. (213 RT 24525-30.) The foreman also
represented that Juror Lee appeared on both occasions during deliberations to be
asleep; the foreman called his name, and he awakened and said he had been
reading. (Id. at 24528-29.) In a contradictory representation, the foreman said
the second incident was not after lunch but “during lunch actually.” (Id. at
24531.) Proceeding to discuss Juror Lee’s participation during deliberations –
which was not at issue – the foreman characterized Juror Lee’s comments on
matters under discussion as “a little off the wall sometimes.” (Id. at 24527.)
1639. In the prosecutor’s view, the jury, having been out two weeks, was
“at a point where they should start making decisions,” but “what they’re trying to
tell you is that there is some interference here.” (213 RT 24534.)
1640. Only two other jurors had allegedly noticed that Juror Lee may have
briefly fallen asleep, but they were not questioned by the court. (See Id. at
RT 24531.) On August 11, 1989, on the basis of the information provided by the
jury foreman, without exploring alternatives and without questioning Juror Lee
himself, the court decided to remove Juror Lee from the jury. Trial counsel
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objected. (Id. at 24533, 24535-36.) The court found that “[g]ood cause exists to
excuse him because of his sleeping . . . . I think I really have no choice and I find
good cause to excuse Mr. Lee. ¶ I don’t think there is any other finding I need
make.” (Id. at 24537.)
1641. On August 28, 1989, Petitioner filed a mandamus petition in the
Court of Appeal, Case No. B044368, to compel the trial court to discharge the
jury and dismiss the case against Petitioner, and issue a writ of prohibition to bar
refiling of the charges in Petitioner’s case. Relief was sought on the basis of the
trial court’s failure to conduct a sufficient inquiry and determine whether good
cause existed to discharge Juror Lee under § 1089. Petitioner argued that he had
been placed in jeopardy by virtue of the trial court’s order to renew jury
deliberations. The appellate court summarily denied the petition on August 29,
1989. (See I Supp. CT 9-58.)
1642. Over 180 years ago in United States v. Perez, 22 U.S. 579, 6 L. Ed.
165 (1824), the Supreme Court stated:
[T]he law has invested Courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in their opinion,
taking all the circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice would otherwise be
defeated. They are to exercise a sound discretion on the subject; and
it is impossible to define all the circumstances, which would render
it proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very plain
and obvious causes; and, in capital cases especially, Courts should
be extremely careful how they interfere with any of the chances of
life in favour of the prisoner.
Id., at 580 (emphasis added).
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1643. Ever since Perez, courts have recognized that once a jury is sworn,
the defendant has a constitutional right to have his case decided by that particular
jury. See United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993). The
Supreme Court has held that this right is rooted in the double jeopardy clause of
the Fifth Amendment. United States v. Jorn 400 U.S. 470, 484, 91 S. Ct. 547,
L. Ed. 2d 543 (1971). As elsewhere noted by the United States Court of Appeals
for the Eleventh Circuit, the necessity referred to in Perez is intended to
accommodate an accused’s right to have his trial completed by the tribunal sworn
to hear the case. United States v. Chica, 14 F.3d 1527, 1531 (11th Cir. 1994).
1644. In addition to the defendant’s right under the Fifth Amendment to
have his case decided by the particular jury selected, the requirements imposed
by the Sixth Amendment right to a jury trial, the Eighth Amendment requirement
of a reliable fact-finding process in a capital case, the federal rights to a
unanimous determination of guilt and penalty beyond a reasonable doubt, and the
rights to an impartial jury and to equal protection of the laws, also preclude
interference by the jury itself in its composition.
1645. In Tanner v. United States, 483 U.S. 107, 115-16, 107 S. Ct. 2739,
97 L. Ed. 2d 90 (1987), the Court held that evidence of juror incompetence was
too “meager” even to allow for an evidentiary hearing, let alone the discharge of
a juror as in this case. In Tanner, allegations arose during trial that the foreperson
was an alcoholic and that other jurors daily imbibed large quantities of alcohol,
marijuana and cocaine, and slept their way through Tanner’s trial. At least one
offending juror “felt like . . . the jury was on one big party.” Id. Even under
those circumstances, the Supreme Court concluded that the evidence of juror
incompetence was too “meager” to warrant a hearing. Tanner v. United States,
483 U.S. at 126.
1646. When one or more members of a jury complain to a trial court about
relatively innocuous behavior, such as occasional instances of napping or
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sleeping during trial or even during deliberations, extreme care is thus required to
avoid unnecessary inquiry. In this case, Juror Lee did not sleep throughout
deliberations; he was observed sleeping a few minutes on two brief occasions.
The foreman’s report itself was contradictory as to what had actually occurred as
one incident of sleeping actually may have occurred during lunch and not
deliberations. Evidence of Juror Lee’s sleeping was thus insufficient to establish
that he was either incompetent, had committed misconduct warranting discharge,
or was unable to perform his duties during deliberations. By taking the
statements of the foreman at face value, without further inquiry of Juror Lee, and
by discharging Juror Lee for two brief unsubstantiated incidents, the court erred
and abused its discretion. The court also impermissibly allowed the jurors to
exercise control over the composition of the jury.
1647. The court failed to conduct an appropriate hearing sufficient to
establish good cause to remove Juror Lee. The court limited its inquiry by
speaking briefly only with the jury foreman. The court did not question Juror
Lee. Thus, the court’s investigation court was inadequate. Absent sufficient
inquiry, the court did not marshal or obtain the facts needed to decide whether
Juror Lee’s ability to continue his deliberations was impaired. The trial court
thus erred in removing Juror Lee.
1648. The discharge of Juror Lee violated Petitioner’s rights to due process
and a fair trial. Petitioner had a constitutional right to have his trial completed by
the tribunal selected and sworn to hear the case. “[W]here the judge, acting
without the defendant’s consent, aborts the proceeding, the defendant has been
deprived of his ‘valued right to have his trial completed by a particular tribunal.’”
United States v. Jorn, 400 U.S. at 484; United States v. Shafer, 987 F.2d 1054.
1649. Moreover, the Supreme Court has explicitly recognized that “in
capital cases especially, Courts should be extremely careful” in exercising their
limited discretion to remove jurors after they have been sworn, especially after
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they have commenced deliberations. United States v. Perez, 22 U.S. at 579. The
long-ago ruling in Perez was a premonition of current Eighth Amendment
jurisprudence that particular care is required to protect a defendant’s right to a
reliable determination of penalty under such circumstances.
1650. The removal of Juror Lee violated Petitioner’s fundamental rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The court’s failure
to conduct a sufficient inquiry to determine whether the juror’s conduct
warranted removal flawed the deliberative process. Petitioner was denied his
constitutional right to a fair trial by a particular jury. United States v. Jorn,
U.S. at 484. Affecting the framework within which Petitioner’s trial proceeds and
rendering the trial fundamentally unfair, the error constituted a structural error
that was reversible per se. Arizona v. Fulminante, 499 U.S. at 310.
1651. Petitioner was entitled to have his case decided by the particular jury
sworn to hear the case, which included Juror Lee. The trial court’s unwarranted
removal of Juror Lee violated Petitioner’s constitutionally protected right to a
particular jury. United States v. Jorn, 400 U.S. at 484. Following removal of
Juror Lee, the newly-constituted jury ultimately returned guilty verdicts on all
counts, made true findings on 19 special-circumstance allegations, and rendered a
death verdict. Thus, the trial court’s error was prejudicial. Under the federal
standard, it cannot be said that the error was harmless beyond a reasonable doubt.
1652. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
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integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 26:
THE TRIAL COURT’S REFUSAL TO VOIR DIRE THE
JURY AND GRANT MR. RAMIREZ’S MOTION FOR A
MISTRIAL AFTER A JUROR WAS MURDERED DURING
TRIAL, AND TRIAL COUNSEL’S FAILURE TO
COMPETENTLY PRESENT MR. RAMIREZ’S MOTIONS
VIOLATED MR. RAMIREZ’S CONSTITUTIONAL RIGHTS
1653. Mr. Ramirez’s convictions, confinement, and sentence are illegal
and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution because (1) the trial court erroneously refused to
voir dire the jury and grant Mr. Ramirez’s motion for a mistrial after a juror was
murdered just after guilt-phase deliberations had begun, and (2) trial counsel
performed deficiently in failing to competently present motions to voir dire the
jury and for a mistrial. These errors deprived Mr. Ramirez of his rights to be free
from cruel and unusual punishment; to a fair and impartial jury; to a reliable, fair,
non-arbitrary, and non-capricious determination of guilt, death eligibility, and
penalty; to the effective assistance of counsel; to present a defense; to
confrontation and compulsory process; to the enforcement of mandatory state
laws; to a trial free of materially false and misleading evidence; to equal
protection of law; and to due process of law as guaranteed by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the Untied States Constitution; and
international human rights law as established by treaties, customary law, and
under the doctrine of jus cogens.
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1654. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XIII
of the Opening Brief, although it includes additional factual allegations.
Petitioner will present the claim with the additional factual allegations to the
California Supreme Court in an exhaustion petition he will file no later than
March 17, 2009.
1655. The facts in support of this claim, among others to be presented after
full investigation, discovery, access to this Court’s subpoena power, and an
evidentiary hearing, include the following:
1656. Mr. Ramirez’s jury began guilt phase deliberations on July 26, 1989.
(212 RT 24483.) In the middle of guilt-phase deliberations, Phyllis Singletary,
Juror No. 8, was murdered. The circumstances of Juror Singletary’s murder were
eerily similar to the murders of which the jury was deciding Mr. Ramirez’s
responsibility for. Ms. Singletary was found in her home dead: beaten very badly
and then shot.
1657. On the Monday afternoon of August 14, 1989, the trial court was
told over lunch that Juror Singletary “was dead in her home of a gunshot wound.”
(213-A RT 23549.) During the afternoon session, the court informed counsel,
outside the presence of the jury, that it believed Juror Singletary was killed. The
court recognized that “this is going to make a splash whether [the jury]
conscientiously avoid news media material or not. I think it’s going to be very,
very difficult for them to avoid this[.]” (Id. at 24550.)
1658. The court then brought the jury out and informed them that it is
“attempting to find out exactly what is going on with Juror Singletary. We
haven’t anything definitive yet to tell you.” (Id. at 24553.) After a brief
admonishment, the court excused the jury and ordered them to return the next
day.
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1659. That evening, as the trial court had predicted, Los Angeles county
was inundated with media accounts of Juror Singletary’s murder -- much of
which was prejudicial to Mr. Ramirez and falsely implied the murder was related
to his case. On Tuesday, August 15, 1989, a Herald Examiner newsstand located
directly in front of the Criminal Courts building displayed the headline from the
daily paper reading “NIGHT STALKER JUROR SHOT DEAD” with the
subheading “No mistrial seen in case beset with problems.” (29 CT 8670); (Ex.
80.)
1660. On the morning of Tuesday, August 15, 1989, the court again
addressed counsel outside of the jury’s presence, suggesting a stern
admonishment to the jury and then “get on with the business of selecting an
alternate jury -- juror and then proceed with their deliberations.” (213-B RT
24555.) Defense counsel indicated that its only concern was when the jury was
to resume deliberations, but otherwise had no objection to the trial court’s initial
plan. (Id. at 24556.) The trial court then told counsel, “What I was going to do,
and I think this also might be required, would be to poll them as a group, if there
is anybody who, because of this tragedy, could no longer be a fair and impartial
juror.” (Id. at 24557.)
1661. At this time, trial counsel informed the court it anticipated making a
motion for a mistrial but the court told counsel he needed to make the motion
immediately to which counsel responded, “I can’t do it this morning.” (Id. at
24558.) Clearly perturbed, the court dismissed the idea of a mistrial: “I know
you can’t and I don’t think there are any grounds for it, Mr. Hernandez.” (Id.)
The trial court then told Mr. Hernandez “If you could find that there are grounds .
. . I think you might be able to bring them up at a later date, in a day or two, if we
decide to go forward with this thing.” (Id. at 24559.)
1662. The court admitted the jurors were shaken by the incident: “[T]here
are some very distraught people walking into this courtroom that went into the
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jury room. I mean, there were some very, very --“ (Id.) It then told counsel its
intention to inform the jury as to what happened, question the jury as to whether
they could be impartial, and select an alternate. (Id. at 24561-62.) This
procedure, however, never occurred.
1663. Instead, before the jury was brought out, the prosecution objected to
the court’s intended plan; in part because “polling at this time might in fact elicit
emotional responses and could well cause a mistrial.” (213 RT 24564.) The
court agreed: “I think Mr. Halpin has an excellent point, and I think people are
shocked by a situation of sudden death and that perhaps requesting an immediate
response is not appropriate.” (Id. at 24565.)
1664. The court then brought out the jury to inform them of the murder.
Rather than put the jurors’ minds at ease, however, its tepid explanation only
exacerbated whatever feelings of fear for their personal safety they may have
already had. First, the court explained to the jury why it had not informed them
the previous day about he murder of Juror Singletary, stressing that it “didn’t
want to alarm you, I didn’t want to panic you and I didn’t want to give you false
information that I would have to retract later on, so I made a decision simply to
not give you any information at all.” (Id. at 24568.)
1665. The court then, for the first time, acknowledged to the jury that
“your friend, and our juror here in court, Phyllis Singletary, has been shot.” (Id.)
1666. Then, in giving a half-hearted admonition, the court added to
speculation that the juror’s murder was related to the trial: “I want to emphasize
it has, as far as we are able to determine, and I’m sure, has nothing to do with
this case.” (Id. (emphasis added.))
1667. After this less-then-reassuring statement, the court stoked the jurors’
fears, warning them “I talked to the undersheriff of this county and an arrest [has]
not been made, but that is the latest we have.” (Id. at 24569.)
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1668. The court then selected the distraught and overwhelmed alternate
juror Herrerra to replace Ms. Singletary -- certainly traumatizing her as she
replaced a juror who was murdered just days ago.
1669. Before dismissing the jury for the evening, the trial court morbidly
told the jury, “I feel sorry for all of you,” and ordered them to resume
deliberations the next morning at 9:30 a.m. Finally, the court ended with a
cautionary warning to “take care of yourselves.” (213 RT 24571.) Even the
prosecutor recognized the court’s speech created a “misimpression” that the
murder could have been related to petitioner’s case. (Id. at 24583.)
1670. The next morning, on Wednesday, August 16, 1989, out of the
presence of the jury, the court and counsel again discussed juror Singletary’s
death and the impact of her murder on the jury. Trial counsel moved for
suspension of jury deliberations to enable the defense to discuss the matter with
its jury consultant, Jo-Ellen Dimitrius, Ph.D., who had assisted the defense
throughout the jury selection process, and with Dr. Carlo Webber, a clinical
psychologist specializing in trauma and crisis intervention. (Id. at 24574-76.)
The trial court dismissed counsel’s proposal to suspend deliberations, “perhaps as
long as a week, so that the jury can go through the three-or four-step process that
they must to get back on some kind of equilibrium that they will need to possibly
deliberate on this case.” (Id. at 24582.)
1671. Instead, the court opted merely to “inquire of the jury foreman as to
his belief” about the other eleven jurors’ state of mind. (Id. at 24590.) The court
deemed a mere three-question inquiry sufficient to gauge the ability of the jurors
to fairly and impartially continue deliberations. The three questions posed to the
foreperson were improperly leading and required answers well beyond his ability
to perceive:
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The Court: Do you have an opinion as to whether or not the events
of the last few days have sort of settled down now and that the jury
is able to continue on with their deliberations?
Juror Seven (Mr. Rodriguez): Yea, I feel that it is somewhat
tranquil, but it is -- I feel that we can probably continue today.
The Court: Nobody has indicated in the jury room that they are
unable to proceed?
Juror Seven (Mr. Rodriguez): No.
The Court: They all seem to be able to carry out their duties then as
jurors?
Juror Seven (Mr. Rodriguez): Right. Everyone appears to have put
it behind them.
(Id. at 24591.)
1672. If there were any doubt as to the answer the court hoped to elicit
from his leading questions, it was made obvious by its response to the foreperson
at the conclusion of his two-question interview: “I am delighted to hear that.”
(Id. at 24591.)
1673. Immediately after the foreperson left the stand, the court ruled:
“Unless someone has some authority to give me, the court is reasonably satisfied
that the jurors are able to proceed with their deliberations and that upon further
admonishment I propose that is exactly what we do.” (Id. at 24592.) The court
then denied trial counsel’s objections and motion for further inquiry.
1674. By 10:45 A.M. on Wednesday, August 16th, a mere two days after
the jury learned one of their colleagues was brutally murdered in a similar
manner as the charged murders of which they were deliberating, the jury had
resumed their deliberations.
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A.
The Trial Court Violated Petitioner’s Constitutional Rights by Failing
to Grant Counsel’s Motion for a Mistrial and Immediately Voir Dire
the Jury
1675. The trial court committed egregious error and violated Petitioner’s
federal and constitutional rights in failing to declare a mistrial after Juror
Singletary was murdered.
1676. On Tuesday, August 15, 1989, defense counsel informed the court
that they would file a motion for a mistrial. (213-B RT 24557.) The trial court
curtly and improperly told counsel “I don’t think there are any grounds for it.”
(Id. at 24558.) After counsel’s insistence that it was his “obligation” to bring a
motion, the court instructed counsel “bring them up at a later date, in a day or
two, if we decide to go forward with this thing.” (Id. at 24559.)
1677. On August 23, 1989, Petitioner moved to disqualify the jurors and
for a mistrial. Petitioner alleged that under the California Constitution and the
Sixth Amendment, the jury was unable to deliberate in an unbiased manner
because of the death of Juror Singletary and should be disqualified. Trial counsel
further argued that the jury committed misconduct through their volitional, as
well as unavoidable, exposure to media coverage of the juror’s death. (XXIX CT
8667-77.) The prosecution opposed the motion on August 31, 1989. (XXX CT
8692-94.)
1678. The trial court denied Petitioner’s motion on September 5,
without conducting any inquiry. The court found no good cause to grant relief as
the jury had resumed deliberations without any reported difficulty. (215 RT
24674-75.) At the hearing, however, the court indicated it had made clear its
ruling long before it formally denied the motion: “the motion for mistrial is also
denied for reasons stated last week.” (Id. at 24675.)
1679. Trial counsel’s motion and accompanying declaration provided
alarming details regarding the extent of shock and dismay felt by the jurors. In
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his declaration counsel stated he noticed the alternate juror replacing Juror
Singletary as “conspicuously distraught and unable to proceed to take juror chair
number 8.” (XXIX CT 8670.) Counsel also informed the court that it learned
“Ms. Herrera was emotionally overcome with grief in the corridor just prior to the
hearing. One person informed defense counsel that Ms. Herrera was ‘hysterical.’
The entire panel of regular jurors as well as all the alternate jurors were teary
eyes and appeared subdued by emotion.” (Id. at 8671.)
1680. Trial counsel’s declaration also stated “A Herald Examiner
newsstand located directly in front of the Criminal Courts Building displayed” a
headline referring the Juror Singletary’s murder. Indeed, the August 15,
edition of the Herald Examiner carried as its headline: “Night Stalker juror shot
dead” in large bold letters. (Ex. 80.)
1681. Moreover, the murder of a female juror by a male perpetrator was
similar in execution to many of the charges in Petitioner’s case, leaving jurors
with a psychological attachment between the two perpetrators and victims that
would endanger their ability to remain impartial during deliberations.
1682. Further, the jury was not unaccustomed to acts of violence, which
they could have reasonably associated as purposefully targeted against them. For
example, Juror Singletary’s car windows were previously broken out during trial
(133 RT 14822-26), and Juror Salcido had her car stolen and recovered. (Ex.
129, J. Salcido Dec., ¶ 10.)
1683. The events surrounding the murder of Juror Singletary led to juror
bias and constituted a legal ground to discharge the jury. The murder of Juror
Singletary substantially interfered with the discharge of the jury’s duties. As the
trial court noticed, the jurors were “very distraught.” (213-A RT 24559.) Having
spent months enveloped in a trial beset with violent and disturbing facts, having
the jurors’ bond broken by a brutal murder required the court to declare a
mistrial.
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1684. The trial court also committed error by refusing even to question
jurors regarding their ability to remain impartial. As early as Tuesday, August
15, 1989, counsel objected to the court’s decision to solely question the juror
foreperson, and instead made a “request that the other jurors be questioned[.]”
(213 RT 24595.) However, the court immediately dismissed counsel’s objection,
stating, “Mr. Hernandez, it is never my intention to permit counsel to do any
polling whatsoever, so I mean the most I was inclined to read and consider any
questions you had to offer.” (Id.)
1685. On August 21, 1989, Petitioner submitted a written motion to voir
dire the jurors regarding their impartiality in light of Juror Singletary’s death.
(XXIX CT 8639-44, 8647-55.) On August 23, 1989, Petitioner filed
supplemental points and authorities in support of his motion to voir dire jurors.
(Id. at 8661-64.) The prosecution filed its opposition on August 24, 1989. (Id. at
8681-83.)
1686. In a remarkable display of ‘putting the cart before the horse,’ the
court denied trial counsel’s motion to question the jurors about their thoughts and
feelings regarding the murder because the court had not yet gotten any indication
of the juror’s thoughts and feelings about the murder. “This court has had
nothing that would put it on notice, either by the jury or by its own observations,
that would indicate that this jury is not able to continue on with its deliberations .
. . I so find . . . that they are able to deliberate, that we have had no words from
the jury indicating otherwise . . . so your motion to have the jury polled, either by
court or counsel, is denied.” (215 RT 24665.)
1687. Had the court conducted a voir dire, it would have realized the jury
could not have fairly deliberated on petitioner’s guilt. For example, one juror
recalls already having sleepless nights “because of the gruesome nature of the
crimes and the evidence presented in the courtroom.” (Ex. 120, B. Smith Dec., ¶
11.) After Juror Singletary’s murder, the juror “became even more uneasy.” (Id.)
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1688. Another juror remembered Petitioner always staring at the jurors as
they were brought in. (Ex. 114, J. Dabney Dec., ¶ 5.) While this did not
necessarily trouble the juror before, Juror Singletary’s murder suddenly made
Petitioner’s courtroom conduct bothersome. (Id.)
1689. A Los Angeles Times newspaper article reported at least three jurors
expressing concerns over the murder of Juror Singletary:
Several jurors also told of fears for their personal safety when they
learned of Singletary’s murder on the night of Aug. 14 -- mostly
from television news bulletins. At the time, it had not been
determined who killed the woman. [Juror Cynthia] Haden was in
her Glendale home -- only two blocks from the scene of a Night
Stalker double homicide -- when a news flash interrupted a late-
night TV movie. ‘My first thought was that we were all going to be
picked off, one by one. Who’s next?’ she recalled. Her roommate
got his gun out and kept it handy. Moments later, Haden got a
frantic call from Chakalit Harris, another juror, expressing the same
concern. But Harris was less fearful for her own safety. During the
course of the trial, she had installed window bars on her home -- and
had bought a third dog, a Great Dane. When [juror] Rodriguez
heard the news, while watching an Angels baseball game, he quickly
gathered up his two children and locked up the house. His wife was
still at work.
(Ex. 78, at p. 2208-09.)
1690. The trial court similarly erred in refusing to question jurors
regarding the impact of prejudicial publicity on their ability to be impartial. The
morning the court learned Jury Singletary was murdered, it admitted “this is
going to make a splash whether they conscientiously avoid news media material
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or not. I think it is going to be very, very difficult for them to avoid this[.]
(213A-RT 24550.)
1691. The jury was not told by the trial court what happened to Juror
Singletary on Monday, August 15, 1989. Instead, they were sent home. As the
trial court predicted, news of the juror’s murder inundated the county. Rather
than from the court, the media’s inflammatory and sensational reporting about the
jurors’ murder were the first the jury heard about their fellow juror’s murder.
a.
newspaper, the Herald Examiner, read the headline: “Night
Stalker juror shot dead.” (Ex. 80.)
Plastered in a front page headline across a major Los Angeles
b.
One juror recalls finding out about the murder of Juror
Singletary “while I was watching a movie on the television.”
(Ex. 113, L. Casselli Dec., ¶ 3.) Even with the most diligent
attempt to follow the court’s admonishment to avoid media
surrounding the case, it was impossible to avoid hearing of her
death as a “news flash came up that said one of the Ramirez
jurors had been murdered.” (Id.) She explained that upon
hearing the news, her “first thought was that the murder as
related to the Ramirez case and for a few days we jurors
believed that to be true.” (Id.)
c.
Despite trying to follow the court’s admonishment, another
juror admitted to catching “a glimpse of the murdered juror
being wheeled out on a gurney but I immediately looked
away. I was nervous on the way to court. I wondered what
was going on.” (Ex. 129, J. Salcido Dec., ¶ 2.)
d.
Still another juror still remembers that he “was at home one
night and passed by a television set and caught a fleeting
glimpse of a fellow juror named Phyllis Singletary. When
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that happened, I remember saying, ‘My God, I know that
lady.’” (Ex. 117, J. McGee Dec., ¶ 4.)
1692. The Supreme Court has long held that a defendant has a
constitutional right to an impartial tribunal. An impartial jury is at the core of our
criminal justice system. Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct.
654, 56 L. Ed. 1038 (1912). Jurors must render a verdict based on evidence
presented at trial. Irwin v. Dowd, 366 U.S. 717, 721-22, 81 S. Ct. 1639, 6 L. Ed.
2d 751 (1961). Testimony of jurors in situations where an extraneous influence
may have affected the jury is required in Mattox v. United States, 146 U.S. 140,
149, 13 S. Ct. 50, 36 L. Ed. 917 (1892) (jurors heard and read prejudicial
information not admitted at trial); Parker v. Gladden, 385 U.S. 363, 365, 87 S.
Ct. 468, 17 L. Ed. 420 (1966) (comments about defendant made by bailiff); and
Remmer v. United States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 98 L. Ed.
(1954) (juror offered a bribe.)
1693. An inquiry into the jury’s exposure to the news coverage of Juror
Singletary’s death was required, yet the trial court did nothing to determine the
nature and extent of the jurors’ exposure to publicity. Comments by the court,
the prosecution and trial counsel clearly indicated that jurors had been exposed to
media coverage of the juror’s death and that one, several, or all of the jurors were
likely to have been influenced to Petitioner’s potential detriment.
1694. Petitioner’s right to an inquiry by the trial court to determine
possible juror bias (exposure to material outside the record) or other bias leading
to the necessity of a mistrial has been fully recognized and protected in federal
law. See Remmer, 347 U.S. at 230. Where a defendant alleges facts raising the
possibility of juror misconduct, for example, the trial court should order an
evidentiary hearing to ascertain what occurred and whether a defendant has been
prejudiced. As one prominent federal commentator has summarized: “A party
who makes a proper preliminary showing is entitled to an evidentiary hearing,
616Page 641 Page ID #:
and in criminal cases the entitlement is of constitutional dimension.” Mueller,
Jurors’ Impeachment of Verdicts and Indictments in Federal Court Under Rule
606(b), 57 Neb. L. Rev. 920, 962-63 (1978) (footnotes omitted.)
1695. In Remmer, someone approached one of the jurors during trial and
suggested “he could profit by bringing in a verdict favorable to the [defendant].”
Id. at 228. The matter was brought to the attention of the trial court and
prosecutors who investigated the matter. They apparently concluded the
statement had been made in jest. Defense counsel was not informed about the
matter until after the verdict. Counsel moved for a new trial. The trial court
denied the motion without an evidentiary hearing. In reversing the conviction,
the Supreme Court explained:
The trial court should not decide and take final action ex parte on
information such as was received in this case, but should determine
the circumstances, the impact thereof upon the juror, and whether or
not it was prejudicial, in a hearing with all interested parties
permitted to participate.
Id. at 229-30.
1696. The United States Courts of Appeals have regularly used evidentiary
hearings to explore claims of jury misconduct and bias. E.g., United States v.
Madrid, 842 F.2d 1090 (9th Cir. 1988); United States v. Bagnariol, 665 F.2d 877,
884 (9th Cir. 1981); United States v. Mirkin, 649 F.2d 78, 80 (1st Cir. 1981); Port
Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328 (11th Cir.
1983); Morgan v. United States, 380 F.2d 915 (5th Cir. 1967). As one Court of
Appeals has noted, a party claiming an improperly influenced jury returned a
verdict against him is entitled to the opportunity to prove the claim. In response
to such an allegation, the trial judge “must conduct a full investigation to
ascertain whether the alleged jury misconduct actually occurred; if it occurred, he
must determine whether or not it was prejudicial.” United States v. Brantley, 617Page 642 Page ID #:
F.2d 1429, 1439 (11th Cir. 1984) (quoting United States v. McKinney, 429 F.2d
1019, 1026 (5th Cir. 1970)); accord, Bagnariol, 665 F.2d at 885 (trial court, upon
learning of a possible incident of juror misconduct, must hold an evidentiary
hearing to determine the precise nature of the extraneous information); Haley v.
Blue Ridge Transfer Co., Inc., 802 F.2d 1532, 1535 n.1 (4th Cir. 1986)
(allegations of juror prejudice arising from extraneous communications during
trial raise serious questions about the fairness of the result and, in most cases,
require a probing factual inquiry into the substance of the allegations – an inquiry
that is reviewable on appeal); see also United States v. Corbin, 590 F.2d 398,
(1st Cir. 1979).
1697. While district courts have discretion to decide whether and how to
conduct evidentiary hearings dealing with allegations of jury misconduct and
tampering (e.g., United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir.
1986); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977)), abuse of
discretion has been invariably found where evidentiary hearings, necessary to
fairly and adequately determine the extent to which the allegations of misconduct
were true, were not conducted, as in the present case. See, e.g., Remmer,
U.S. 227; United States v. Brantley; Richardson v. United States, 360 F.2d 366,
369 (5th Cir. 1966); Wheaton v. United States, 133 F.2d 522, 527 (8th Cir. 1943).
1698. The California Supreme Court unreasonably attributed the trial
court’s error in failing to grant a mistrial and voir dire the jurors to the court
being “asked to rule on this request more than two weeks after the jury had
resumed deliberations.” People v. Ramirez, 39 Cal. 4th 398, 460, 139 P.3d 64,
Cal. Rptr. 3d 677 (2006). As described above, as early as August 16, 1989 - one
day after learning of the murdered juror, trial counsel indicated to the court its
objection to questioning only one juror and asked that all jurors be questioned.
(213 RT 24595.) While the written motions for voir dire and a mistrial were
submitted on August 21st and 23rd, the rules regarding notice did not allow for a
618Page 643 Page ID #:
hearing until September 5, 1989. Indeed, it was the trial court itself that endorsed
the idea of counsel proceeding by notice motion, which under California rules
stalled the ability of the trial to hear the matter. (See 213-B RT 24557-59.) In
any event, to the extent counsel was to blame for the court’s failure to grant a
mistrial and voir dire the jurors, counsel acted deficiently and prejudicially. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
CLAIM 27:
COUNTS 3 AND 5 – THE EVIDENCE WAS INSUFFICIENT
TO SUPPORT PETITIONER’S CONVICTIONS OF
BURGLARY AND FIRST-DEGREE FELONY-MURDER
1699. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XIV
of the Opening Brief.
1700. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1701. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1702. The prosecution alleged commission of burglary with the intent to
commit larceny in fourteen of the fifteen charged incidents (counts 1, 3, 7, 10, 12,
15, 19, 21, 23, 25, 28, 31, 36, and 39). (See XIX CT 5419-57.) The prosecution
relied on burglary charges as to those counts to support felony-murder allegations
in ten of the incidents involving Vincow, Okazaki, Zazzara, Doi, Bell, Cannon,
619Page 644 Page ID #:
Nelson, Kneidimg, Khovananth, and Abowath (counts 2, 5, 8, 9, 11, 13, 20, 24,
29, 30, 32, and 40).126 (See Id. at 5420-58.)
1703. The case was submitted to the jury on alternative theories of first
degree felony murder and willful, deliberate and premeditated murder. Jury
instructions on deliberate and premeditated murder (CALJIC No. 8.20) as well as
first degree felony murder (CALJIC No. 8.21) were given by the trial court. (See
212 RT 24445-48; XXIX CT 8548-50.) The trial court instructed the jury on
burglary (CALJIC No. 14.50) (212 RT 24471-73), and theft by larceny (CALJIC
Nos. 14.00 and 14.02) (Id. at 24470-71). During closing argument, the
prosecutor focused exclusively on the felony-murder theory of liability on count
5. (See 206 RT 23719-20.) The jury convicted Petitioner of all burglaries and
felony murders as charged. Death sentences were imposed on counts 2, 5, 8, 9,
11, 13, 20, 24, 29, 30, 32, and 40. (See XXX CT 8727-88; XXXI CT 9076.)
1704. In respect to the Okazaki incident (counts 3 and 5), the evidence was
insufficient to support his conviction of burglary and felony murder based on the
commission of burglary. The evidence failed to establish that a theft occurred –
before, during, or after the homicide. There was insufficient evidence that a
burglary had occurred. There was insufficient evidence of specific intent to
commit burglary. And there was insufficient evidence to prove beyond a
reasonable doubt that Petitioner was the perpetrator of the charged crimes.
1705. A conviction or other finding which is not supported by sufficient
evidence constitutes not just an error of state law, but also a denial of due process
and a violation of an accused’s federal constitutional rights. Jackson v. Virginia,
443 U.S. at 309. The federal constitutional standard for determining the
sufficiency of evidence is identical to the standard under California law. People
v. Staten, 24 Cal. 4th 434, 460, 11 P.3d 968, 101 Cal. Rptr. 2d 213 (2000). Under
The Yu homicide (count 6) took place on a public street.
620Page 645 Page ID #:
both, reversal is required if one of the essential elements of the crime is not
supported by substantial evidence. People v. Hernandez, 47 Cal. 3d 315, 345-46,
763 P.2d 1289, 253 Cal. Rptr. 199 (1988).
1706. The elements of burglary to commit larceny are defined in CALJIC
No. 14.50. The commission of burglary consists of (1) entry into a structure, (2)
a specific intent to take away someone else’s property at the time of the entry,
and (3) the intent to permanently deprive the owner of such property. Theft by
larceny is defined in CALJIC No. 14.02.
1707. The commission of theft by larceny consists of (1) taking the
personal property of another, (2) with the specific intent to permanently deprive
the person of such property, and (3) obtaining physical possession and control of
the property for some period of time.
1708. An attempt to commit burglary requires a specific intent to commit
burglary and a direct but ineffectual act done towards its commission. (CALJIC
No. 6.00.)
1709. Burglary requires proof of entry into a structure with the intent to
commit theft or a felony. If there is evidence of the requisite intent to commit
theft or a felony, the offense is deemed completed whether or not the underlying
act actually is committed. People v. Montoya, 7 Cal. 4th 1027, 1041-42,
P.2d 903, 31 Cal. Rptr. 2d 128 (1994). However, where there is a lack of intent
to commit the underlying felony or theft, the evidence fails to establish a
burglary. People v. Teamer, 20 Cal. App. 4th 1454, 1457-58, 25 Cal. Rptr. 2d
296 (1993).
1710. The evidence at trial was insufficient to support the underlying
burglary conviction in count 3. There was no evidence of theft, ransacking, or
attempted taking of property. The discovery of Okazaki’s body in the
condominium without any sign of theft did not support the commission of a
burglary with the specific intent to commit theft.
621Page 646 Page ID #:
1711. A charge of first-degree murder based on the theory of felony
murder requires proof of an independent felonious intent separate from the intent
to commit homicide. People v. Ireland, 70 Cal. 2d 522, 539, 450 P.2d 580,
Cal. Rptr. 188 (1969). In other words, if the theory of homicide is felony murder
based on a killing in the course of a burglary, the intent to commit an assault or to
commit murder cannot be the felonious intent which underlies the burglary.
People v. Teamer, 20 Cal. App. 4th at 1459-60; People v. Wilson, 1 Cal. 3d 431,
436-42, 462 P.2d 22, 82 Cal. Rptr. 494 (1969); People v. Garrison, 47 Cal. 3d
746, 778, 765 P.2d 419, 254 Cal. Rptr. 257 (1989). There must be an
independent intent to commit another felony (e.g., theft) underlying the burglary
for it to serve as the basis for a felony- murder conviction. See People v. Sears,
Cal. 3d 180, 188, 465 P.2d 847, 84 Cal. Rptr. 711 (1970) (first degree murder
conviction reversed on basis of Ireland and Wilson); People Sanders, 51 Cal. 3d
471, 509 (1990) (burglary based on intent to assault cannot support felony-
murder instruction, following Ireland and Wilson); People v. Baker, 74 Cal. App.
murder rule to conspiracy to commit assault with deadly weapon, following
Wilson).
1712. Here, the evidence at best showed that a killing occurred but not in
the course of a burglary. The evidence offered at trial in respect to count
demonstrated that the perpetrator’s intent fell within the Ireland merger doctrine,
that is, an intent to commit murder or assault, rather than a separate, primary
intent to commit theft. The manner of the victim’s death and the absence of any
attempt to take property from the victim failed to support a finding of first degree
felony murder. The evidence at trial more reasonably supported the view that the
entry was merely incidental to the killing.
1713. Although reasonable inferences must be drawn in support of the
judgment, an appellate court may not “go beyond inference and into the realm of
622Page 647 Page ID #:
speculation in order to find support for a judgment. A finding of first degree
murder which is merely the product of conjecture and surmise may not be
affirmed. People v. Memro, 38 Cal. 3d 658, 695-96, 700 P.2d 446, 214 Cal. Rptr.
832 (1985). Considered as a whole, the evidence is neither strong nor substantial.
No rational trier of fact could have found that Petitioner was the perpetrator of a
burglary with the intent to commit theft.
1714. Consequently, Petitioner’s burglary conviction in count 3 cannot be
sustained. Moreover, the jury’s determination of guilt failed to support the
burglary-murder conviction in count 5. Because the jury considered legally
insufficient evidence in rendering its verdicts, Petitioner’s right to due process
and fundamental fairness under the Fifth, Sixth, Eighth, and Fourteenth
Amendments were violated. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475,
L. Ed. 2d 385 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). Absent sufficient evidence, his convictions on counts 3 and
also violated the Eighth Amendment requirement of a reliable determination of
penalty. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d
(1985).
1715. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
623Page 648 Page ID #:
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 28:
COUNT 5 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE SPECIAL CIRCUMSTANCE FINDING OF
BURGLARY/MURDER
1716. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XV of
the Opening Brief.
1717. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1718. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1719. The burglary-murder special circumstance is defined as the
commission of “murder . . . while the defendant was engaged in . . . the
commission of, attempted commission of, or the immediate flight after
committing or attempting to commit,” the felony of burglary. Cal. Pen. Code
§ 190.2(a)(l7)(vii). The jury found this alleged special circumstance to be true in
count 5. (See XXX CT 8733.)
1720. In reviewing the sufficiency of the evidence for a special
circumstance, the question to be addressed on appeal is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the allegation beyond a reasonable
doubt. People v. Rowland, 4 Cal. 4th at 271.
624Page 649 Page ID #:
1721. For the same reasons as set forth in Argument 22, supra, the
evidence in this case was also insufficient to support the charged burglary-murder
special circumstance within the meaning of § 190.2(a)(l7)(vii). It follows that if
evidence is insufficient as to the underlying burglary and first degree felony
murder, the finding of the felony-murder special circumstance must automatically
be set aside. People v. Green, 27 Cal. 3d at 52.
1722. The foregoing violations of Petitioner’s rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 29:
COUNT 6 – THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
PETITIONER’S CONVICTION OF SECOND-DEGREE MURDER
IN THE YU INCIDENT
1723. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XVI
of the Opening Brief.
625Page 650 Page ID #:
1724. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1725. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1726. At the initial jury instruction conference, the court held in abeyance
Petitioner’s request for instructions on manslaughter as to the Yu incident
pending further research of the case law. (200 RT 23320-21.) Subsequently,
Petitioner argued that there was sufficient evidence in the record for a
manslaughter instruction predicated on heat of passion on the basis of witness
Gallegos’s characterization of the encounter between the suspect and the victim
as a “lover’s quarrel,” and witness Duenas’s description of the incident as an
argument between two parties. (201 RT 23363-68.)
1727. The trial court ruled that evidence of a fight supported an instruction
on voluntary manslaughter. (201 RT 23368-69, 23373.) The jury was instructed
pursuant to CALJIC Nos. 8.37 (definition of manslaughter), 8.40 (voluntary
manslaughter), 8.42 (quarrel and heat of passion defined), 8.43 (cooling period),
8.44 (heat of passion non-specific) and 8.50 (murder vs. manslaughter). (
RT 24450-54; XXIX CT 8552-58.)
1728. In closing argument, the prosecution urged the jury to find Petitioner
guilty of first degree murder in the Yu incident based on a theory of deliberate
and premeditated killing with malice aforethought. (206 RT 23749.) In rebuttal
argument, the prosecution stated that Petitioner’s denial of involvement in the Yu
shooting abrogated the jury’s need to consider any of the manslaughter
instructions. (211 RT 24347-48.) The jury returned a verdict of second-degree
murder. (XXX CT 8734.)
626Page 651 Page ID #:
1729. The jury was instructed on three homicide theories in regard to the
Yu incident: first-degree murder, second-degree murder, and voluntary
manslaughter. For the jury to have found Petitioner guilty of any degree of
murder, there had to be evidence at trial of malice aforethought, as the element of
malice distinguished murder from manslaughter. People v. Blakeley, 23 Cal. 4th
82, 87, 999 P.2d 675, 96 Cal. Rptr. 2d 451 (2000). That is, Petitioner must have
had an intent to kill or killed without considerable provocation and under
circumstances showing an abandoned and malignant heart. Penal Code § 188.
1730. The evidence of malice aforethought was insufficient to support
Petitioner’s conviction of second degree murder on count 6. The evidence at trial
was not sufficient to show either an intent to kill or reckless disregard for human
life, the bases for express and implied malice respectively. As for express malice,
there was no showing of an express or verbalized intent to kill. However, intent
to kill can sometimes be inferred from the method or manner of death. Malice
may be implied when “the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his [or her] conduct endangers the life of
another and who acts with conscious disregard for life.” People v. Blakeley,
Cal.4th at 87. Here, the evidence was insufficient to prove beyond a reasonable
doubt that Petitioner acted with the intent to fire the weapon and kill the victim.
1731. Nor did the manner of Yu’s death manifest an intent to kill. While
the firing of a weapon at close range may be sufficient to demonstrate express
malice (see, e.g., People v. Jackson, 49 Cal. 3d 1170, 1201, 783 P.2d 211,
Cal. Rptr. 852 (1989) (“[T]he very act of firing a shotgun toward the officer . . .
would permit an inference of intent to kill from the manner of killing”); People
evidence of intent to kill malice present where defendant aimed and fired a .22-
caliber rifle in victim’s direction at a range and in a manner that would have
627Page 652 Page ID #:
inflicted a mortal wound had the bullet been on target)), Petitioner’s case differs
significantly from those cases where such a finding was made.
1732. In Jackson, the defendant argued that the evidence showed he had
aimed a shotgun at a patrol car’s light bar, not at the officer who was hit.
Witnesses, however, had seen the defendant aim at the victim, and a shotgun blast
at a short distance was certain to hit the officer even if not aimed precisely at him.
There was also evidence that the defendant had removed a police shotgun from
the patrol car and attempted to cock the weapon before pointing it at the officer.
People v. Jackson, 49 Cal. 3d at 1201. Similarly, in Lashley, there was evidence
of the defendant’s threat to do bodily harm. Testimony at trial established that he
took aim before firing. This fact, coupled with the proximity in time of the
shooting and the nature of the wound, was held sufficient evidence of intent to
kill. People v. Lashley, 1 Cal. App. 4th at 945.
1733. In contrast, the evidence in Petitioner’s case did not establish any
prior threat or intent to harm the victim. Witnesses did not see a weapon aimed at
the victim in a manner suggesting an intent to kill. The expert testimony of two
pathologists established that the shots were not fired at a vital organ. The
wounds, the direction of each bullet, and the number of shots fired demonstrated
at most a chaotic encounter, not a determined effort to inflict lethal harm.
1734. Even in cases where there may be sufficient evidence of express or
implied malice, where the evidence also shows the presence of a condition which
negates or mitigates the finding of malice, the crime committed is voluntary
manslaughter, not murder. People v. Rios, 23 Cal. 4th 450, 463 n.10, 2 P.3d
1066, 97 Cal. Rptr. 2d 512 (2000). Thus, if evidence shows that a killing was
committed in the heat of passion, upon a sudden quarrel, or pursuant to an
unreasonable belief in the need to defend oneself, notwithstanding any other
evidence suggesting the presence of malice aforethought, an accused can be
convicted of no greater crime than voluntary manslaughter. These conditions
628Page 653 Page ID #:
legally negate the finding of malice. People v. Lasko, 23 Cal. 4th 101, 110-11,
999 P.2d 666, 96 Cal. Rptr. 2d 441 (2000).
1735. The logical corollary to the Blakeley-Lasko rule is that if there is
evidence of a negating factor which creates a burden of proof on the prosecution
as to the absence of that negating factor, it follows that the defense need only
raise a reasonable doubt that the factor is present to avoid a conviction of murder
as a matter of law. Where the evidence warrants the imposition of the burden on
the prosecution, that burden must be discharged by proof beyond a reasonable
doubt. Thus, an accused need only raise a reasonable doubt in support of that
defense. See, e.g., People v. Flannel, 25 Cal. 3d at 680-83.
1736. Similarly, in the context of the presumption of malice under Penal
Code § 189.5, the state court has held in a line of cases deriving from People v.
Cornett, 33 Cal. 2d 33, 42, 198 P.2d 877 (1948), that “the defendant is not
required to prove mitigating circumstances by a preponderance of the evidence,
but need only introduce evidence of such circumstances to raise a reasonable
doubt.” This long established rule is firmly ensconced in criminal jurisprudence:
The prosecution bears the burden of proving all elements of the
offense charged and must persuade the factfinder ‘beyond a
reasonable doubt’ of the facts necessary to establish each of these
elements . . . .
Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d
(1993) (citations omitted).
1737. In Petitioner’s case, there was ample evidence to support a
reasonable doubt as to the charge of second degree murder. First, percipient
witnesses observed what appeared to be a “lovers’ quarrel.” The prosecution
conceded more than once in closing argument that witnesses Gallegos and
Duenas so characterized the confrontation as a two-way altercation. (
RT 23730, 23732, 23734.) Second, the eyewitness observations were objectively
629Page 654 Page ID #:
supported by evidence of a struggle, including, most significantly, attempts by
the assailant to get away, and his overheard statement “Get away from me.” (
RT 16846, 16872; 147 RT 16988-89.) While physical evidence showed that the
assailant attempted to pull the victim from the car, the evidence also showed that
the victim may have been dragged in an effort by the assailant to leave the scene.
Finally, another eyewitness placed the victim and the assailant outside the
victim’s car standing by the curb, indicating that they were likely to have been
engaged in a mutual confrontation or struggle. (Id. at 16981-84.)
1738. The evidence at trial thus did not strongly support a finding of
express or implied malice in light of the countervailing evidence that the shooting
involved a struggle between the victim and assailant. The fatal encounter by all
accounts and evidence occurred during the heat of passion or a sudden quarrel
between the victim and assailant. With weak evidence of intent to kill and the
presence of malice-negating factors, the evidence on the whole thus failed to
support Petitioner’s conviction of second degree murder on count 6. People v.
Blakeley, 23 Cal. 4th at 87.
1739. Because the jury considered legally insufficient evidence in
rendering its verdicts, Petitioner’s right to due process and fundamental fairness
under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated.
Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Absent sufficient evidence, his convictions on counts 3 and 5 also violated the
Eighth Amendment requirement of a reliable determination of penalty. Caldwell
v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).
1740. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
630Page 655 Page ID #:
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. Id. at 622, 637-38.
631Page 656 Page ID #:
CLAIM 30:
THE PROSECUTION KNOWINGLY AND IN BAD FAITH
PRESENTED UNRELIABLE AND FALSE EVIDENCE
1741. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XIII of the June 2004 petition for writ of
habeas corpus.
1742. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1743. Those facts and allegations set forth elsewhere in this petition, and
the claims of constitutional violations and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication.
1744. Petitioner’s convictions and sentences were obtained by reason of
prosecution misconduct in knowingly presenting inaccurate, misleading and
unreliable evidence in violation of his rights to a fair trial, impartial jury, jury
trial, effective assistance of counsel, to confront and cross-examine witnesses, to
present a defense, a reliable determination of guilt and sentence, and to due
process and fundamental fairness, and in violation of Petitioner’s right to be free
from cruel and unusual punishment, under the Sixth, Eighth, and Fourteenth
Amendments.
1745. The constitutional violations had a substantial and injurious effect
upon the verdict and were it not for the errors, it is reasonably probable that the
results at guilt and penalty would have favored Petitioner.
1746. The prosecution’s case was based primarily on physical evidence,
including shoe print impression evidence and ballistics, and the testimony of a
“fence.” The state relied heavily on an inexperienced law enforcement witness
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and presented false, misleading and unreliable testimony in an effort to connect
Petitioner to the crimes.
1747. The shoe print evidence was misleading and based on inaccurate
findings by an unqualified witness with no prior experience in the field of shoe
print impressions. According to the prosecution expert Gerald Burke, the overall
findings in eight incidents pointed to a size 11-½ to 12 Avia aerobics shoe. The
prosecution presented evidence that only one such pair of shoes was sold in
Southern California from January to July 1985. Burke did not properly examine
the impression evidence and was not qualified to render an opinion. Thus, the
prosecution knowingly presented materially unreliable and false evidence.
1748. Forensic specialist Lisa DiMeo disputes Mr. Burke’s findings.
Based on my review of the trial testimony and exhibits
described above and my findings, it is my opinion that the trial
testimony of Gerald Burke was misleading in several critical
respects: his findings and conclusions regarding size and models
were inaccurate and based on improper information; he lacked the
necessary experience and training to properly compare impression
evidence; distortion in casting sizes led to inaccurate findings; the
lack of individual shoeprint characteristics, including wear patterns
rendered his findings scientifically unreliable. In this case, there
were many possible models and sizes of shoes that could have been
identified from the shoeprint impressions. Mr. Burke’s testimony
that the impression evidence originated from an Avia 445B model,
In conjunction with Mr. Brewer’s testimony that only one
Avia model 445B size 11-½ was sold in Southern California in the
first half of 1985 (see 174 RT 20280-81), the jury was led to believe
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that only one pair of shoes could be identified from the shoeprint
impression evidence. There were actually many models of Avia
athletic shoes, and numerous sizes of shoes totaling tens of
thousands of shoes, which were distributed throughout the United
States through sales and promotions that could have been the source
of the impression evidence. (See generally 174 RT 20286-89.)
(Ex. 33, L. DiMeo dec., ¶¶ 35-36.) In the absence of Mr. Burke’s conclusions as
to Zazzara, Doi, Bell and Lang, Cannon, Bennett, Nelson, Khovananth, and the
uncharged incident, the evidence failed to link shoe print impression evidence to
Petitioner. The jury was misled by the unreliable evidence.
1749. The prosecution relied on ballistics evidence to try to link the crimes
in Okazaki and Yu to Kneiding, Zazzara to Khovananth, and Petersen to
Abowath. Prosecution witness Edward Robinson testified that ballistics evidence
conclusively linked the incidents above (172 RT 20034-52.) He also testified that
a recovered Jennings .22-caliber semi-automatic pistol was positively compared
to the Doi case (172 RT 20061.) Robinson was the last of three law enforcement
firearms examiners to evaluate the general rifling characteristics of the ballistics
evidence. Yet the two other examiners, who did not reach entirely the same
conclusions, were not called to testify at trial. For example, in the report
prepared by Robert Christiansen on March 28, 1985, he concluded that due to
distortions of the .22-caliber bullet in the Okazaki case, no positive comparison
can be made to the Yu case. In the Kneiding case, firearms examiner Hawkins
found there was 60% mutilation of an expended bullet but identified the bullet as
having been fired from the same firearm as the bullets fired in the Yu case. This
finding raises questions about the reliability of the testing. (See Ex. 35, P.
Dougherty dec., and attached GRC reports.)
1750. Firearms expert Paul Dougherty explains that the law enforcement
work up was inaccurate and inadequate. In reviewing the work up performed in
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this case, he found that “there are internal conflicts in the written reports with
regard to the testing conducted, such as condition of the bullets.” (Ex. 35, P.
Dougherty dec., ¶ 4.) In his opinion, all of the ballistics evidence should be
retested. (Id., ¶ 5.)
1751. The prosecution improperly relied on evidence that was inaccurate
and unreliable.
1752. The prosecution also relied on the uncorroborated testimony of
Felipe Solano, who was granted immunity from prosecution, to establish that
property belonging to some of the victims allegedly was sold to him by
Petitioner. Property recovered from Solano was identified by witnesses in the
Doi, Bell and Lang, Cannon, Kneiding, and Abowath incidents. The prosecution
improperly based its case on Solano’s unreliable and self-serving testimony. The
testimony of Mr. Solano was suspect because there was evidence that other
individuals also sold him stolen property and may have been involved in the
crimes with which Petitioner was charged. See infra.
1753. In closing argument, the prosecution emphasized to the jury that
physical evidence, specifically shoe print impression and ballistics, linked
Petitioner to the commission of a series of crimes. (See, e.g., 206 RT 23724;
RT 24044, 24060; 211 RT 24329-41, 24377.)
1754. The prosecution argued improperly that the crimes constituted a
pattern of offenses. There was significant evidence to show that the offenses
were not all linked to one another. Private investigator Steve Strong describes
the prosecution’s evidence as demonstrating a lack of pattern with respect to
many of the incidents.
In the Vincow incident, Petitioner’s fingerprints were found on a
window screen but not inside the residence. Time of death was
estimated to be in the afternoon, unlike the nighttime intrusions in
the other incidents. Based on the conditions of the crime scenes in
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many of the cases (Vincow, Zazzara, Doi, Bell and Lang, Cannon,
Bennett, Nelson, Kneiding, and the uncharged incident), it is not
possible to determine how many persons were involved in each
incident. It is not so obvious that Petitioner was the only suspect
due, in part, to the lack of evidence at the scenes. For example, it is
just as likely that one person could have opened a window to allow
another person to enter the residence.
The reason it was hard to apprehend a suspect was because
there was no discernable pattern among the crimes. The locations of
the scenes had no particular pattern, except for four incidents in
Monterey Park. The killings had no distinctive pattern; different
weapons were used in many incidents. The state’s theory that
Petitioner must have put gloves on upon entry does not make sense
because the crimes lacked organization according to the victims’
testimony.
Ballistics evidence was involved in only eight of the incidents.
The firearms comparison evidence did not determine who fired the
weapons. Shoeprint impressions were discovered in only eight
incidents.
(Ex. 40, S. Strong dec., ¶¶ 18-20.) Mr. Strong concludes:
There was substantial evidence to show that the crimes were
not related, including inexactness of the shoeprint evidence; distance
between crime scenes; different weapons that were not recovered,
nondistinctive wounds, and lack of evidence found at the scenes
indicating there could have been additional suspects.
(Ex. 40, S. Strong dec., ¶ 22.)
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1755. Throughout the guilt trial, the prosecution knowingly and repeatedly
emphasized unreliable and inaccurate evidence, urging its significance upon the
jury in a manner calculated to win a conviction and sentence of death.
1756. The prosecution’s reliance on the evidence led to the jury’s incorrect
and prejudicial assumptions about the evidence presented against Petitioner and,
in turn, to his conviction and sentence. Reliance upon incorrect assumptions
from the evidence when passing upon guilt and sentence violates due process and
constitutes plain error. United States v. Tobias, 662 F.2d 381, 388 (5th Cir.
1981); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d
(1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1960 (1948).
Petitioner’s conviction and sentence rest upon materially false evidence and
misinformation. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
(1959). The prosecution’s abuse of its power and discretion denied Petitioner’s
rights to fair trial and a judicial process that comports with minimal constitutional
standards under federal decisional and statutory law.
1757. Because the death penalty is qualitatively different from any other
criminal punishment, there is a corresponding difference in the need for reliability
in the determination that death is the appropriate punishment in a specific case.
In capital cases the finality of the sentence imposed warrants protections that may
not be required in other cases. The Supreme Court has repeatedly condemned
sentencing procedures that inject unreliability into jury deliberations in capital
cases. Petitioner’s death sentence is based on evidence introduced at the guilt
trial and relied on by the jury at the penalty trial, that does not meet the
constitutional requirement of heightened reliability for capital cases and which
was materially false and inaccurate.
1758. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
637Page 662 Page ID #:
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 31:
THE PROSECUTION MISLED THE JURY ABOUT
PETITIONER’S INVOLVEMENT IN THE OFFENSES
1759. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XIV of the June 2004 petition for writ of
habeas corpus.
1760. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1761. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1762. Petitioner’s convictions and sentences were obtained by reason of
prosecution misconduct in knowingly presenting inaccurate, misleading and
unreliable evidence in violation of his rights to a fair trial, impartial jury, jury
trial, effective assistance of counsel, to confront and cross-examine witnesses, to
present a defense, a reliable determination of guilt and sentence, and to due
638Page 663 Page ID #:
process and fundamental fairness, and in violation of Petitioner’s right to be free
from cruel and unusual punishment, under Sixth, Eighth and Fourteenth
Amendments.
1763. The prosecution asserted that Petitioner alone committed the crimes
with which he was charged. In closing argument, the prosecutor argued to the
jury that no other suspects were involved in the crimes charged against Petitioner.
(See, e.g., 203 RT 23613.) However, the prosecutor was aware of the police
interview with Manuel “Cuba” Hechevarria in which the witness professed his
involvement with Petitioner in committing thefts and burglaries, along with
another accomplice. Hechevarria reportedly committed burglaries with Petitioner
on many occasions in 1984, including four to five residential burglaries. He
claimed to have terminated his involvement with Petitioner when he became
employed as a security guard in November 1984. (Ex. 22, L.A. Sheriff Dept.
Supp. Report dated 9/11/85.) The state did not call Mr. Hechevarria to testify at
Petitioner’s trial.
1764. In the September 11, 1985 interview, Hechevarria admitted having
been involved in committing burglaries with Petitioner and another person,
“Julio,” whom he described as a male Mexican, approximately 21 years old,
feet, 160 pounds and, blond hair parted in the middle. (Id.) The description of
Julio fit the description of the suspect given by eyewitnesses in the
Okazaki/Hernandez and Abowath incidents.
1765. Hechevarria mentioned in the police interview that Julio introduced
him to Eva Rosa (Rosa Solis) – Solano’s friend. (Id.) Solis and Hechevarria also
sold stolen property to Solano. Hechevarria’s statements provided strong
evidence that he participated in residential burglaries near the time of Vincow’s
death; stolen property allegedly received by Solano from Petitioner came from
other sources, including Hechevarria and Julio; and Julio was involved in
committing burglaries at the time the crimes alleged against Petitioner were
639Page 664 Page ID #:
committed. Moreover, the witnesses’ statement and description of Julio comport
with Steve Strong’s conclusions that other parties could have been involved in
the crimes charged against Petitioner. (Ex. 40, S. Strong dec., ¶ 22.)
1766. Despite evidence to the contrary, the prosecution did not present any
evidence of the involvement of Manuel Hechevarria or Julio in the crimes with
which Petitioner was charged. It did not present evidence of any involvement by
other parties in the crimes charged against Petitioner, and thus misled the jury to
Petitioner’s culpability.
1767. Based on the Sheriff Department’s investigation, the prosecution
misrepresented Petitioner’s involvement in the offenses and misled the jury. This
misconduct led to the jury’s incorrect and prejudicial assumptions about the
evidence presented against Petitioner and, in turn, to his conviction and sentence.
Reliance upon incorrect assumptions from the evidence when passing upon guilt
and sentence violates due process and constitutes plain error. Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); United States v. Tobias,
662 F.2d 381, 388 (5th Cir. 1981); United States v. Tucker, 404 U.S. 443, 92 S.
Ct. 589, 30 L. Ed. 2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct.
1252, 92 L. Ed. 1960 (1948). The prosecution’s abuse of its power and discretion
denied Petitioner’s rights to a fair trial and a judicial process that comports with
minimal constitutional standards under federal decisional and statutory law.
1768. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
640Page 665 Page ID #:
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 32:
PETITIONER’S CONSTITUTIONAL RIGHTS WERE
VIOLATED BY THE PROSECUTOR’S PREJUDICIAL
MISCONDUCT
1769. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XVI of the June 2004 petition for writ of
habeas corpus.
1770. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1771. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1772. The prosecution violated Petitioner’s constitutional rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution during closing argument by making improper comment on the
evidence, improper argument regarding matters not in evidence, stating his
personal beliefs, misleading the jury as to reasonable doubt, improper shifting of
the burden of proof, misrepresentation of the prosecution’s power and authority,
and misstating legal concepts.
1773. The violations of these rights, individually and cumulatively,
prejudicially affected and distorted the investigation, discovery, presentation, and
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consideration of evidence, as well as each and every factual and legal
determination made by trial counsel, the state courts and the jurors at all stages of
the proceedings from the time of Petitioner’s arrest through and including the
rendering of the judgment of death.
1774. The prosecution misstated the legal standard of proof beyond a
reasonable doubt and improperly argued that failure of the evidence did not
amount to reasonable doubt.
Reasonable doubt does not have anything to do with the prospective.
It does not have anything to do with something to come in the future,
. . . . [¶] And it has nothing to do with your belief that it may come
true or may not. [¶] Reasonable doubt is only retrospective. . . . [¶]
So reasonable doubt can only be applied to something in the past.
(211 RT 24317.)
And the argument was, well, there with (sic) no prints found inside,
just on this screen. [¶] Well, the screen was inside, . . . [the
defendant] was a burglar so he might have burglarized that house
sometime in the past and his prints were still on the screen. [¶] He
might have. Might have is not reasonable doubt.
(Id. at 24341.)
1775. The prosecutor improperly shifted the burden of proof, and argued
the State had no interest in convicting the wrong person.
The real problem with Mr. Clark’s argument is the same as
with Mr. Hernandez’ opening statement . . . .
...
Well, let me submit to you that they had plenty of time to
[decide their approach to the case] before Mr. Hernandez made his
opening statement.
...
642Page 667 Page ID #:
And if they weren’t going to present evidence, nobody should
have talked about it, you see?
...
That there is evidence, but the team has just decided late in the game
that they didn’t have to present it, see?
Well, that is dishonest. That is not true. If there was
evidence, it would be here. It should be here.
...
If a man says that to you, you are going to have to disbelieve
him.
They have had every opportunity to fulfill those grandiose
statements made by Mr. Hernandez at the opening of their case.
(Id. at 24319-20.)
[A]nd I always wonder at that point why would a prosecutor want
the wrong guy? Why would he want to prosecute the wrong guy?
(Id. at 24324.)
Mr. Clark doesn’t have to worry about how many Avias were
sold and who was wearing them because his position is the
defendant never owned them.
(Id. at 24374.)
[If the defense] could have done better than Kong, then of course
they would have brought in their own experts.
(Id. at 24377-78.)
1776. The prosecution improperly argued that its authority guaranteed that
prosecution witness Solano was telling the truth.
[S]o there was no reason for [Solano] . . . to testify falsely, because
the immunity applied no matter what he said. I mean, once the court
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signs the order, that is it.
(Id. at 24333.)
1777. Additionally, in closing argument at the guilt phase, the prosecutor
improperly shifted the burden of proof by arguing that defense counsel raised
matters in his opening statement but failed to prove them at trial. (See, e.g.,
RT 23576 (“[T]here were a lot of errors in [Daniel Hernandez’s] opening
statement.”) and (“[I]t turns out to be something Mr. Hernandez told you he was
going to present and failed to deliver . . . .”); see also id. at 23579; 23585-86;
23627-28; 23648 (all similar)
1778. The prosecutor improperly and in bad faith argued that the State
would be forced to release Petitioner from custody if its witness Felipe Solano
were arrested and charged with receiving stolen property. (Id. 24085.)
1779. The prosecutor, an employee of county government himself, argued
that government funding influenced an expert’s findings. (209 RT 24122.)
1780. The prosecution improperly and prejudicially asserted references to
the devil in an effort to link Petitioner to the crimes. (211 RT 24336.)
1781. The prosecutor misled the jury with respect to the prosecution’s
eyewitness identification evidence. (Id. at 24373-74.)
1782. After Petitioner waived the penalty trial, in his closing argument, the
prosecutor referenced religious views and the morality of the death penalty
repeatedly.
. . . it seems to me to be as difficult as that admonition in the Bible
which says ‘Thou shalt not kill.’
And I submit that that is a difficult philosophical issue, . . .
you have to arrive at the conclusion that the death penalty is not the
moral equivalent of murder.
644Page 669 Page ID #:
The death penalty is not the moral equivalent of murder by the
state; it is a banding together of people in the society to attempt to
survive.
(217 RT 24804-05.)
A friend of mine is a biblical scholar, and . . . suggests to me
that perhaps the King James version that employs the language
‘Thou shalt not kill’ was a departure from the original language.
. . . Suppose then that the language was instead of ‘Thou shalt not
kill’ was simply ‘Thou shalt not commit murder’ and suppose that
the language specified that that base antisocial activity of taking a
life under those circumstances that amount to murder, that that tends
to make more sense in the scheme of a death penalty in a society. [¶]
I submit to you that – that that may well be a morally acceptable
translation . . . of the Old Testament that call[s] for the death penalty
in certain cases.
(Id. at 24806.)
1783. The prosecutor improperly urged the jury to consider everything
considered at the guilt trial. (Id. at 24813.)
1784. The prosecutor improperly argued there was no evidence of extreme
mental or emotional disturbance under factor (d) or (h). (Id. at 24813-16.) The
prosecutor urged the jury not to consider Petitioner’s age as evidence in
mitigation. (Id. at 24816 (“No evidence of anything like that here.”).)
1785. The prosecution improperly argued that, under aggravating factor (j),
there was “[n]o evidence of anyone else being involved in this case, the defendant
apparently being a lone actor throughout this case.” (Id. at 24817.) The
prosecutor argued under factor (k) there was no mitigating evidence. (Id. at
24819.)
645Page 670 Page ID #:
1786. The prosecutor contended the defense waiver of the penalty trial
signified that there was no mitigation. The prosecution argued that the defense
presented no evidence “because there is none. There is no mitigating this person.
¶ . . . It is difficult for us as human beings to face this type of evil . . . . [¶] This
man is the personification of evil . . . .” (Id. at 24832-33.)
1787. The prosecutor’s argument at the guilt and penalty trials was
improper and constituted misconduct by urging the jury to misapply the law to
the evidence, and shifting the burden of proof. This misconduct led to the jury’s
incorrect and prejudicial assumptions about the evidence presented against
Petitioner and, in turn, to his conviction and sentence. Reliance upon incorrect
assumptions from the evidence when passing upon guilt and sentence violates
due process and constitutes plain error. Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959); United States v. Tobias, 662 F.2d 381, 388 (5th
Cir. 1981); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed.
(1948); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948);
Sechrest v. Ignacio, No. 04-99004, 2008 WL 510988, at *16 (9th Cir. 2008) .
Petitioner’s conviction and sentence rest upon materially false evidence and
misinformation. The prosecution’s abuse of its power and discretion denied
Petitioner’s rights to a fair trial and a judicial process that comports with minimal
constitutional standards under federal decisional and statutory law.
1788. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
646Page 671 Page ID #:
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 33:
THE GUILT PHASE CUMULATIVE ERRORS VIOLATED
PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH,
AND FOURTEENTH AMENDMENTS
1789. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XVII
of the Opening Brief.
1790. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1791. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1792. At the outset of the trial proceedings, Petitioner was substantially
prejudiced due to denial of qualified counsel, denial of conflict-free counsel, and
denial of a proper determination of his mental competency. See related claims,
supra.
1793. At trial, the trial court erred in denying Petitioner’s change of venue
motion and challenge to the jury composition. The court also erred in denying
Petitioner’s severance motion. See related claims, supra. Other trial court
rulings violated Petitioner’s constitutional right to a fair trial.
647Page 672 Page ID #:
1794. The Court should address not only the individual errors that may
have occurred during the guilt phase but also their cumulative impact. People v.
considered the combined effect of prosecutorial misconduct, improper shackling
of the defendant, error regarding testimony by the bailiff, and Carlos127 error.
While acknowledging that an accused is not entitled to a perfect trial, only a fair
one, the court nonetheless observed: “Lengthy criminal trials are rarely perfect,
and this court will not reverse a judgment absent a clear showing of a miscarriage
of justice. Nevertheless, a series of trial errors, though independently harmless,
may in some circumstances rise by accretion to the level of reversible and
prejudicial error.” People v. Hill, 17 Cal. 4th at 844-45. This is particularly true
if some of the errors permeate the entire process of the adjudication or are so
numerous as to amount to a heightened level of prejudice. Id. at 845.
1795. Moreover, the state court has found that the weight of numerous,
individually harmless errors can also combine to create an even greater effect on
the jury, which is exposed to them over the course of a trial, than accrues to each
one considered on its own or altogether. Multiple error may create a negative
synergistic effect, rendering a degree of overall unfairness to the defendant more
than that flowing from the sum of individual errors. Id. at 847.
1796. In the present case, the errors at the outset of the proceedings and at
trial, and demonstrated elsewhere in this petition, combined together so that the
prejudicial whole was greater than the sum of its parts. The combined weight and
effect of the errors on the jury prejudiced Petitioner. Significantly, all of the
errors were of federal constitutional magnitude.
Carlos v. Superior Court, 35 Cal. 3d 131, 672 P.2d 862, 197 Cal. Rptr.
79 (1983).
648Page 673 Page ID #:
1797. Under federal constitutional standards, the cumulative effect of
multiple errors in violation of Petitioner’s Fifth, Sixth, Eighth, and Fourteenth
Amendment rights must be considered to determine the overall prejudice to the
defendant. In Mak v. Blodgett, 970 F.2d at 622, the Ninth Circuit observed: “We
do not need to decide whether these deficiencies alone meet the prejudice
standard because other significant errors occurred that, considered cumulatively,
[warrant relief].”
1798. The Court in Mak cited improper preclusion of third-party evidence
and erroneous jury instructions as combining with the ineffective assistance of
counsel to produce overall prejudice justifying reversal. Id. at 622-25; accord
Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995).
1799. As a result of judicial, prosecutorial, and trial counsel error in this
case, Petitioner’s federal constitutional rights were violated:
1.
Petitioner was denied his right to qualified counsel;
2.
Petitioner was denied his right to conflict-free counsel;
3.
Petitioner was denied his right to a proper determination of his
mental competency;
4.
Petitioner was improperly restrained in trial;
5.
The trial court erred by permitting the jury to view inflammatory and
irrelevant autopsy and crime scene photographs;
6.
on an impermissible consciousness of guilt inference;
7.
8.
The evidence was insufficient to support the burglary-murder special
circumstance in the Okazaki incident;
The evidence was insufficient to support burglary and burglarymurder convictions in the Okazaki incident;
The trial court erred by permitting the jury to base Petitioner’s guilt
9.
The evidence was insufficient to support findings that Petitioner
committed second degree murder in the Yu incident;
649Page 674 Page ID #:
10.
deliberations; and,
The trial court erred by improperly excusing a juror during
11.
The trial court erred by failing to conduct an inquiry of juror
misconduct during deliberations.
1800. The errors specified above violated the federal Constitution. The
errors cumulatively and in the aggregate deprived Petitioner of his right to a fair
trial (Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991));
violated due process guarantees (Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct.
2227, 65 L. Ed. 2d 175 (1980)); rendered the proceedings unreliable in violation
of the prohibition against cruel and unusual punishment (Woodson v. North
Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)); and
impermissibly lightened the prosecution’s burden of proof (Yates v. Evatt,
U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991)). In short, the errors
violated Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments. In light of the seriousness and constitutional ramifications of the
errors involved, under either Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967), or People v. Watson, 46 Cal. 2d 818, 836 (1956),
Petitioner was prejudiced. The combination and cumulative impact of the errors
adversely influenced the jury; but for the errors, a more favorable result would
have occurred in this case. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475,
L. Ed. 2d 385 (1991).
1801. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
650Page 675 Page ID #:
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 34:
THE ABSENCE OF ANY MITIGATING EVIDENCE
RENDERED THE CAPITAL SENTENCING PROCESS
CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF
THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS
1802. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XX of
the Opening Brief,, although it includes additional factual allegations. Petitioner
will present the claim with the additional factual allegations to the California
Supreme Court in an exhaustion petition he will file no later than March 17,
2009.
1803. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1804. The trial court accepted Petitioner’s waiver of mitigating evidence at
the penalty. (See 217 RT 24774-76.) Petitioner did not offer or present any
mitigating evidence on his behalf in support of a sentence less than death. In
closing argument, the State vigorously argued under factors (a) and (b), Penal
Code § 190.3, that Petitioner must be sentenced to death. (See Id. at 24823-31.)
1805. In his closing argument, the prosecutor urged the jury to return a
death verdict in part because of the absence of mitigating evidence. (See 651Page 676 Page ID #:
RT 24813-19.) The prosecutor argued there was “no evidence [under factor (d)]
of that at all, . . . .” (Id. at 24814.) The prosecutor argued that under (e), “Of
course there is no evidence of that at all . . . .” (Id. at 24815.) Under factor (g),
the prosecutor argued: “It doesn’t exist. No evidence of that here.” (Id.) The
prosecutor further argued that there was no evidence under factors (h), (I), and
(j). (Id. at 24816-17.) The prosecutor argued against application of factor (k):
“Now, I submit to you that there has been virtually no mitigating evidence in the
case, but you might find some.” (Id. at 24819.)
1806. Evolving due process standards and requirements of reliability of the
death sentencing procedure have undermined any argument that a one-sided
presentation of penalty evidence is sufficient to constitute a reliable determination
of penalty. Absent mitigation evidence, a penalty trial becomes a mere
formalistic proceeding and fails to provide any rational foundation for the jury to
weigh the evidence or make a normative decision on punishment. See, e.g.,
(Terry) Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d
(2000) (defense counsel in a capital case has an “obligation to conduct a
thorough investigation of the defendant’s background”); Mayfield v. Woodford,
270 F.3d 915, 927 (9th Cir. 2001) (“To perform effectively in the penalty phase
of a capital case, counsel must conduct sufficient investigation and engage in
sufficient preparation to be able to ‘present[] and explain[] the significance of all
the available [mitigating] evidence.’”); Caro v. Calderon, 165 F.3d 1223,
(9th Cir. 1999) (“[i]t is imperative that all relevant mitigating information be
unearthed for consideration at the capital sentencing phase”); Stouffer v.
Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (“[i]n a capital case the
attorney’s duty to investigate all possible lines of defense is strictly observed”)
(emphasis added). As a result, counsel failed to prepare and present readily
available mitigation evidence at trial.
652Page 677 Page ID #:
1807. There was no penalty verdict reliability in Petitioner’s case. No
mitigation was presented at the penalty trial. Thus, his penalty trial violated the
requirement of reliability in two ways. First, the penalty jury had no facts
pertaining to Petitioner on which to base its decision. Absent appropriate
mitigating evidence, the penalty verdict became a mere procedural hurdle devoid
of evidentiary substance. In People v. Weaver, 26 Cal. 4th 876, 976-77, 29 P.3d
103, 111 Cal. Rptr. 2d 2 (2001), the court found no constitutional infirmity at the
penalty trial by virtue of counsel’s performance where the defendant (in contrast
to the present case) presented some mitigation evidence of mental disturbance
under factor (d), and testified about the circumstances surrounding an assault. As
Weaver demonstrated, there always is some evidence in mitigation that may be
offered and considered by the jury. Here, there was none. No one spoke for
Petitioner. Nothing was offered. There was only dead silence in response to the
evidence in aggravation.
1808. Second, the lack of penalty trial or any mitigating evidence on
Petitioner’s behalf deprived the jury of a rational basis for conducting its
constitutionally required balancing process. The scales of justice were lopsided
and ineluctably skewed toward death from the start absent mitigation evidence; a
death verdict was inevitable. The process of normative weighing of the evidence
at the heart of the penalty determination, as described in People v. (Albert)
People v. Bacigalupo, 6 Cal. 4th 457, 468, 862 P.2d 808, 24 Cal. Rptr. 2d
(1993), was not logically possible; there was nothing for the jury to weigh.
[W]ith respect to the process of selecting from among that class
those defendants who will actually be sentenced to death, ‘[w]hat is
important . . . is an individualized determination on the basis of the
character of the individual and the circumstances of the crime.’ It is
not simply a finding of facts which resolves the penalty decision,
653Page 678 Page ID #:
‘but . . . the jury’s moral assessment of those facts as they reflect on
whether defendant should be put to death . . . .’ The jury must be
free to reject death if it decides on the basis of any constitutionally
relevant evidence or observation that it is not the appropriate
penalty.
People v. (Albert) Brown, 40 Cal. 3d. at 540 (citations omitted).
1809. Brown signifies that a capital jury cannot carry out its sentencing
duties on a rational basis if it lacks requisite balancing evidence on which to
make that assessment. Here, the jury considered circumstances of the offenses
under factor (a), and other acts of force or violence under factor (a), as argued by
the prosecution, factors contributing only one side of the normative equation.
(See 217 RT 24823-31.) An individualized moral assessment of the
appropriateness of the penalty was impossible given the evidentiary vacuum.
When considered additionally through the lens of trial counsel’s vacuous
argument against his own client which stressed the absence of any mitigating
evidence concerning Petitioner’s background (id. at 24853 (“I don’t know what
school he went to”)); lack of mitigating evidence of Petitioner’s mental state (id.
at 24841 (“What possessed Petitioner to do this we will not know soon”)); and,
trial counsel’s feelings of retribution (id. at 24848 (“if anyone in this courtroom
had come upon Petitioner during the commission of one of these crimes, and we
had the ability to kill him, he would be dead now, and I think that includes
everybody in this courtroom other than him”)), the jury was precluded from
performing its constitutionally mandated weighing process to reach a reliable
penalty verdict in this case. Absent any evidence in mitigation, the penalty could
not have involved an individualized determination or rational moral assessment
as required.
1810. The Supreme Court has stressed that capital-sentencing bodies must
be allowed to examine and consider all available mitigation that a defendant
654Page 679 Page ID #:
wishes to present. Lockett v. Ohio, 458 U.S. 586, 98 S. Ct. 2954 57 L. Ed. 2d
(1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d
(1982); Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d
(1986); Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d
(1988). This requirement is rooted in the notion that society and the state need to
ensure that the death penalty is imposed only in appropriate situations when fully
and constitutionally warranted. By allowing the jury to hear and consider all
evidence relevant to its decision, society can be satisfied that the process has been
fair and just.
1811. For this reason, “[t]he fundamental respect for humanity underlying
the Eighth Amendment’s prohibition against cruel and unusual punishment gives
rise to a special ‘need for reliability in the determination that death is the
appropriate punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S.
578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988). The Court has stressed that
reliability of the penalty determination underpins scrutiny of error in capital
sentencing proceedings. Petitioner’s jury neither considered mitigating evidence
nor properly performed the requisite weighing process. Thus, society cannot be
satisfied that the capital sentencing jury reliably determined death was the
appropriate punishment. See Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.
Ct. 2633, 86 L. Ed. 2d 231 (1985).
1812. The California Supreme Court has rejected contentions that the
weighing process described in People v. (Albert) Brown, 40 Cal. 3d 512, requires
presentation of mitigating evidence. People v. Stansbury, 4 Cal. 4th 1017, 1066,
846 P.2d 756, 17 Cal. Rptr. 2d 174 (1993). However, the court has not
considered a situation as extreme as Petitioner’s case in which no mitigation
evidence at all was offered and the reasons offered to justify that decision were
absolutely devoid of merit. Unlike virtually every other capital case, the jury
here lacked any type of essential mitigating evidence with which to perform the
655Page 680 Page ID #:
requisite weighing process to determine penalty. Absent mitigating evidence, the
jury’s putative or normative evaluation of appropriate penalty amounted to a
mere pretense, a virtual sham of penalty reliability.
1813. Despite the absence of mitigation evidence, the jury deliberated four
days before returning its verdict of death. The jury thus worked long and hard
but in a vacuum, considering or balancing nothing. The penalty jury’s function
was reduced to a one-sided effort full of formalism without substance. Had the
defense presented mitigating evidence of Petitioner’s background, his childhood,
family life, good deeds, and, most significantly, of his mental condition, only
then could it be said that a meaningful, constitutionally sufficient weighing
process had been performed. Indeed, there was a reasonable possibility that at
least one juror would have considered mitigating evidence and weighed such
evidence in favor of a verdict of life imprisonment without the possibility of
parole rather than death. People v. (John) Brown, 46 Cal. 3d 432, 448-49,
P.2d 1135, 250 Cal. Rptr. 604 (1988).
1814. The jurors and alternate jurors have indicated that trial counsel was
unprepared and not qualified to handle Petitioner’s case. (See Ex. 117, Donald G.
McGee dec., ¶ 2; Ex. 120, Bonita Smith dec., ¶ 2; Ex. 115, Max De Ruiter dec., ¶
2.) Alternate Juror Hernease Dabney stated that it was obvious that trial counsel
“didn’t have a clue as to how to defend a capital case”. (See Ex. 114, Hernease
Dabney dec., ¶ 3.) Hernease Dabney also indicated that it appeared as if trial
counsel was trying to cause a mistrial. (Id.) Another juror indicated that Daniel
Hernandez and Arturo Hernandez were “both idiots”. (See Ex. 119, Fernando
Sendejas dec., ¶ 2.) Jurors indicated that had the defense presented some
evidence at the penalty phase, they would certainly have considered it in
determining the appropriate penalty verdict. For example, Donald G. McGee, a
juror in Petitioner’s case, stated as follows: “[i]f the defense had presented
evidence about the defendant’s background and his mental condition, I would
656Page 681 Page ID #:
have carefully considered that evidence before reaching my decision on the
penalty.” (See Ex. 117, Donald G. McGee dec., ¶ 10.) In addition, alternate
Juror Max De Ruiter stated as follows:
[i]n the penalty phase of the trial, I do not remember the defense
presenting anything to the jury about Mr. Ramirez’s mental state, his
mental history, or his life history. The defense lawyers did nothing
to help us understand why Mr. Ramirez did the things he was found
guilty of doing. I believe that it would have been important for Mr.
Ramirez’s lawyers to help us understand why Mr. Ramirez did what
he did. If I had deliberated as a juror in this case, I would have
considered any and all mitigating evidence presented by the defense
before making a decision as to the proper penalty for Mr. Ramirez.”
(See Ex. 115, Max De Ruiter dec., ¶ 3.)
1815. Based on the state of the evidence and the nature of the jury’s
deliberations absent mitigating evidence, it cannot be said that the error had “no
effect” on the verdict. Caldwell v. Mississippi, 472 U.S. at 341. Accordingly, the
death judgment must be reversed.
1816. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
657Page 682 Page ID #:
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
658Page 683 Page ID #:
CLAIM 35:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY THAT PETITIONER’S AGE IS A MITIGATING
FACTOR
1817. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXI
of the Opening Brief.
1818. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1819. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1820. Petitioner requested the following jury instruction:
One of the factors for you to consider in determining the
penalty is the age of the defendant at the time of the offense(s).
Chronological age, by itself, is a matter over which the
defendant has no control, and which is not relevant to the choice of
penalty.
However, the factor relating to ‘defendant’s age,’ as set forth
in these instructions, refers to any matter concerning defendant’s
age, maturity, and judgment which common experience or morality
might indicate to be relevant to the issue of penalty.
You shall therefore give any age-related factors and argument
consideration in arriving at a judgment as to penalty.
659Page 684 Page ID #:
(XXX CT 8894.) The trial court refused the proffered instruction, indicating that
there was no evidence in the record to support the instruction. (217 RT 24789-
90.) The court instructed the jury in the standard language of CALJIC No. 8.
(penalty trial – factors in consideration) which permitted the jury under factor (i),
to consider “[t]he age of the defendant at the time of the crime.” (Id. at 24870-
73.)
1821. Petitioner was present at trial and observed by the jury. His youthful
appearance was a matter to be considered under Penal Code § 190.3(i). Petitioner
was twenty-four to twenty-five years old at the time of the offenses. (See XXXV
CT 10429.) Thus, there was evidence in the record of Petitioner’s age that was
relevant to the jury’s determination of penalty.
1822. The California Supreme Court has long recognized that the statutory
factor of age of the defendant can be legitimately argued by either side at penalty
phase. People v. Rodriguez, 42 Cal. 3d 730, 789, 726 P.2d 113, 230 Cal. Rptr.
667 (1986). Thus, the court has recognized the prosecution may constitutionally
argue to the jury the absence of any mitigation under this factor without
committing Davenport error. See People v. Davenport, 41 Cal. 3d 247, 288,
P.2d 861, 221 Cal. Rptr. 794 (1985).
1823. CALJIC No. 8.85, as given by the trial court, clearly required the
jury to consider all applicable factors, including the age of Petitioner at the time
of the crimes. However, the instruction given by the trial court did nothing more
than state that age was a factor for consideration; it provided no guidance to the
jury about how it should apply Petitioner’s age to the penalty determination. A
bare instruction, as given by the trial court, caused confusion with factor (i) in
that the prosecution was thereby justified in arguing lack of age-related
mitigation as weighing in favor of death. To avoid that danger, the court was
obligated to give a more explicit statement of the meaning of factor (i) to indicate
what and how the jury could weigh under this factor. In the absence of a
660Page 685 Page ID #:
clarifying instruction, as submitted by Petitioner, the jury could have overlooked
relevant mitigation or have treated the apparent absence of this factor as
aggravation.
1824. The California Supreme Court has held that pinpoint instructions at
penalty phase are inappropriate if they are argumentative or duplicative of
standard instructions. People v. Catlin, 26 Cal. 4th 81, 174, 26 P.3d 357,
Cal. Rptr. 2d 31 (2001).
[T]he proffered special instruction for the most part in effect argued
the evidence by ‘highlight[ing] certain aspects . . . without further
illuminating the legal standards at issue [citations].’ [Citation.]
Other instructions given by the trial court and summarized above
adequately covered the defense theory in the penalty phase. Those
elements of defendant’s special instruction that were not
argumentative were thus duplicative, and the trial court did not err in
declining to give them. [Citation.] There was no error.
People v. Musselwhite, 17 Cal. 4th 1216, 1269-70, 954 P.2d 475, 74 Cal. Rptr. 2d
fact, the proffered instruction relied on language in Lucky, indicating that age
alone is neither aggravating nor mitigating. People v. Lucky, 45 Cal. 3d, 259,
301-02, 753 P.2d 1052, 247 Cal. Rptr. 1 (1988). Nor was the instruction merely
duplicative of the standard instruction or language in CALJIC No. 8.85. CALJIC
No. 8.85 provided no guidance at all to the jury about how to apply factor (i); no
other instruction guided the jury that age could be considered either way in its
661Page 686 Page ID #:
penalty determination or age-related considerations that evidence the jurors’
common experience, or morality reasonably bore on the penalty decision. In fact,
the prosecutor even argued that under factor (i) actual age was not relevant. (See
217 RT 24816.) Finally, the statement of law set forth in the proffered
instruction was neither biased toward one side nor duplicated in other
instructions; it was appropriate, and in view of the statement made in CALJIC
No. 8.85 as to age generally, the instruction was necessary to provide the jury
with proper guidance on this factor.
1826. The trial court rejected the special instruction, not on the ground that
it was an inappropriate pinpoint instruction, but that there was no evidence to
support it. In this regard, the court’s ruling was also erroneous as there was
evidence of Petitioner’s age before the jury. The jury was certainly required to
make a proper penalty verdict based on the statutory factors. Trial counsel’s
failure otherwise to present a case in mitigation on Petitioner’s behalf did not
relieve the jury of the duty to consider each of the factors in reaching its decision.
Moreover, under Lucky, the jury was to consider not only “evidence” on age-
related factors, but “common experience or morality that might reasonably
inform the choice of penalty.” People v. Lucky, 45 Cal. 3d at 302. That is, the
jury was to apply its experience and conscience on this factor regardless of
whether it was suggested by specific evidence in the record. For that reason, the
special instruction was both proper and necessary.
1827. Petitioner’s age was vital evidence that the jury was entitled to
consider. Eddings v. Oklahoma, 455 U.S. 104, 115 102 S. Ct. 869, 71 L. Ed. 2d
(1982); Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d
(1986). In the absence of the presentation of mitigating evidence at the penalty
trial, evidence of Petitioner’s age was the one discernible mitigating factor that
the jury properly could have weighed in Petitioner’s favor. Thus, the
662Page 687 Page ID #:
prosecutor’s argument based on CALJIC No. 8.85, that there was no mitigating
evidence with respect to Petitioner’s age, was especially harmful.
1828. Petitioner was entitled to have the jury consider mitigation evidence
of age. The trial court’s refusal to instruct on mitigating evidence under factor (i)
rendered the jury’s penalty determination unreliable under the Eighth
Amendment. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.
2d 231 (1985). Given the four days of penalty deliberations, it cannot be said that
the error had no effect on the jury. Thus, it is both reasonably possible and
probable that had the jury properly been instructed regarding age, a more
favorable result would have occurred. The court’s error denied Petitioner due
process of law. Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d
175 (1980).
1829. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
663Page 688 Page ID #:
CLAIM 36:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY
IN THE LANGUAGE OF CALJIC NO. 8.85, THUS
UNDERMINING HIS RIGHTS TO A RELIABLE PENALTY
DETERMINATION
1830. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXIII
of the opening appeal brief.
1831. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1832. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1833. In his closing argument, the prosecutor urged the jury to return a
death verdict in part because of the absence of mitigating evidence. (See
RT 24813-19.) The prosecutor argued there was “no evidence [under factor (d)]
of that at all, . . . .” (Id. at 24814.) The prosecutor argued that under (e), “[o]f
course there is no evidence of that at all . . . .” (Id. at 24815.) Under factor (f),
the prosecutor argued: “It doesn’t exist. No evidence of that here.” (Id.) With
respect to factor (g), the prosecutor argued, ‘No evidence of that here. Not to be
considered by you.” (Id. at 24815.) The prosecutor further argued that there was
no evidence under factors (h), (i), and (j). (Id. at 24816-17.) The prosecutor
argued against application of factor (k): “Now, I submit to you that there has
been virtually no mitigating evidence in the case, but you might find some.” (Id.
at 24819.)
664Page 689 Page ID #:
1834. The trial court instructed the jury in the standard language of
CALJIC No. 8.85. (217 RT 24870-71; see also XXX CT 8881-83.)
1835. The court’s use of CALJIC No. 8.85 as given was constitutionally
deficient. The instruction failed properly to inform the jury of its duty and
interfered with the jury’s proper determination of the appropriate penalty.
Specifically, the instruction was given without deleting inapplicable language.
The wording of most enumerated factors suggested that, even in their absence,
they could be weighed by the jurors either as factors in mitigation or aggravation.
1836. CALJIC No. 8.85 as given provided jurors with largely irrelevant
considerations. The instruction expressed aggravating and mitigating factors in a
manner that invited improper attention by jurors. Notwithstanding the court’s
admonition, the instruction failed to eliminate the probability that jurors would
treat the absence of mitigation as aggravation.
1837. CALJIC No. 8.85 as given was severely defective. It invited
arbitrary and capricious responses to capital sentencing according to how each
juror individually may have perceived the instruction’s meaning. See Proffitt v.
Florida, 428 U.S. 242, 260, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
1838. Empirical evidence and the jurors’ actual trial experience support the
conclusion that it was both reasonably possible and probable (People v. Brown,
46 Cal. 3d at 448-49; Chapman v. California, 386 U.S. at 24) that the jury
misunderstood and therefore misapplied the various sentencing factors on which
they were instructed. Misapplication of sentencing factors violated Petitioner’s
rights under the Eighth Amendment by making the death determination
constitutionally unreliable. Johnson v. Mississippi, 486 U.S. at 584. Considering
as well the absence of mitigating evidence and the prosecutor’s argument
emphasizing absence of mitigation, the instructional error was particularly
harmful. As a result, Petitioner’s rights to due process and a fair jury trial under
the Fifth, Sixth, and Fourteenth Amendments were also violated. Estelle v.
665Page 690 Page ID #:
McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991); Gardner v.
Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
1839. The Court must examine the propriety of CALJIC No. 8.85 in light
of the need for consistency of federal due process guarantees. See People v.
Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988).
1840. As with many pattern jury instructions, CALJIC No. 8.85 contains
factors and conditions which may not be applicable to the facts of a particular
case. The usual procedure followed by trial courts is to delete inapplicable
portions of the instruction. In rejecting prior challenges to CALJIC No. 8.85,
however, the state court has held that it is not necessary to edit the instruction or
delete factors that are inapplicable to the case involved. Unlike other instructions
that must be modified or edited to delete potentially misleading or confusing
language (People v. Jennings, 53 Cal. 3d 334, 807 P.2d 1009, 279 Cal. Rptr.
(1991) (penalty phase jury instruction should have been tailored)), CALJIC No.
8.85 alone is treated differently. In a situation where the law requires heightened,
not lessened scrutiny, the state court incongruously sanctioned irrelevant or
inapposite instructional language.
1841. CALJIC No. 8.85 apprises jurors of factors irrelevant to the case.
Prosecutors, as here, commonly engage in the pernicious tactic of reviewing the
entire list of statutory factors, both applicable and not applicable, to highlight the
lack of mitigation evidence. The prosecutor did so in his closing argument when
he urged the jury to find there was no mitigation under factors (d), (e), (f), (g),
(h), (i), (j), and (k). He argued the absence of those factors did not warrant a
sentence less than death. Some factors mentioned by the prosecutor and used in
support of his argument for the death penalty were not germane to this case.
Other factors were rare and are hardly ever present. Nevertheless, by
highlighting the absence of exceptional factors, the prosecutor created an
666Page 691 Page ID #:
inaccurate impression of the weighing criteria used by the jury to determine
penalty that improperly and unfairly tipped the scales toward death.
1842. It is unrealistic to believe that the jurors in this case avoided
considering the entire list of factors or failed to conclude that were those factors
present, Petitioner would be more worthy of receiving a sentence less than death.
The failure to delete irrelevant factors placed undue emphasis on the
consideration of absent factors and effectively characterized Petitioner as
unworthy to live by their very absence.
1843. There are almost always more inapplicable mitigating factors under
factors (d) through (j) than aggravating ones under factors (a) through (c). The
instruction as given inevitably created the improper illusion that a case for
mitigation was far less substantial than a case in aggravation.
1844. The wording of the instruction in regard to factors (d), (e), (f), (g),
(h), (i), and (j) instructed the jury to consider “whether or not” each applied to the
case at hand. This wording created the inescapable inference that the factors
could either be mitigating (if they applied) or aggravating. This interpretation
was virtually inevitable because similar alternative wording was used in factors
(b) and (c), which were indeed “bivalent” factors: aggravating if present,
mitigating if absent. The language of the instruction thus greatly increased the
likelihood that the jurors would mistakenly think that mitigating factors could be
used as factors in aggravation. Such use by the jury violated federal decisional
law on capital sentencing requirements. Mills v. Maryland, 486 U.S. at 367,
S. Ct. 1860, 100 L. Ed. 2d 384 (1988).
667Page 692 Page ID #:
1845. The misleading language of the instruction was compounded by the
fact that factors (d) through (h) and (j) which could only be mitigating in effect
were not so identified in the instruction.
1846. The deliberate withholding of legally correct information relevant to
the jury’s proper duties was illogical and invited improper application of the
instruction by individual jurors, particularly considering the absence of mitigating
evidence under Penal Code § 190.3.
1847. Empirical research shows how juries understand these factors as
aggravating. A 1994 study of impaneled jurors on California capital trials found
that they had actually believed, despite ostensible instruction to the contrary, that
the absence of mitigation evidence supported a sentence of death. See Haney,
Sontag, and Costanzo, Deciding to Take a Life: Capital Juries, Sentencing
Instructions, and the Jurisprudence of Death, 50 J. Soc. Issues, 149, 169 (1994).
In the face of such empirical evidence, it is apparent that jurors in fact understand
what is commonly – but erroneously – considered to be the “plain meaning” of
the instruction’s language.
1848. Counsel presented no mitigation evidence at the penalty trial.
Nevertheless, the jury deliberated over a four-day period. (XXX CT 8901, 8903-
05.) It is both reasonably possible and reasonably likely that the jury
misunderstood and misapplied the sentencing factors. The prosecutor urged the
jury to return a death verdict not only because of the nature of the offenses, but
because of the lack of mitigation under factors (d) through (k). The prosecutor
encouraged the jury to misapply the sentencing factors. It is likely that the jury
Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d (1983) (some matters can only be mitigating); see also People v. Davenport, Cal. 3d at 288; People v. Hamilton, 48 Cal. 3d 1142, 1184, 774 P.2d 730, Cal. Rptr. 701 (1989); People v. Whitt, 51 Cal. 3d 620, 654, 798 P.2d 849, Cal. Rptr. 252 (1990).
668Page 693 Page ID #:
both considered the prosecutor’s argument as to the lack of mitigating factors and
weighed their absence adversely to Petitioner.
1849. Under the circumstances of this case, therefore, it cannot be said that
the inherently confusing wording regarding factors to be considered, the failure to
excise inapplicable factors, and lack of guidance provided by the trial court had
“no effect” on the verdict. See Caldwell v. Mississippi, 472 U.S. at 341. To the
contrary, given the close attention paid to the evidence by the jury, it is likely that
in the absence of error a more favorable result would have occurred.
1850. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 37:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY REGARDING SUFFICIENCY OF MITIGATING
EVIDENCE
669Page 694 Page ID #:
1851. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXIV
of the Opening Brief.
1852. AEDPA: The California Supreme Court denied this claim. People
v. Ramirez, 39 Cal. 4th at 469-73. Because the state court’s adjudication of this
claim was dependent on an antecedent unreasonable application of federal law,
this Court “must then resolve the claim without the deference that AEDPA
otherwise requires.” Panetti, 127 S. Ct. at 2858.
1853. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1854. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1855. Trial counsel requested that the court instruct the jury regarding
sympathy, sufficiency of one mitigating factor, and that the list of aggravating
factors is exclusive. The court refused to so instruct the jury, indicating the
instruction was argumentative. (See 217 RT 24788; XXX CT 8889-92.) The
defense closing argument focused on sympathy for Petitioner, mercy, and
forgiveness. (See Id. at 24835, 24839-41, 24843, 24846-47, 24849-50, 24852-53,
24857-60 (closing argument).) The jury was not specifically instructed as to the
application of sympathy or mercy. (See Id. at 24869-76 (jury instructions).
1856. The trial court’s failure to instruct the jury on sympathy and its
refusal to specify the exclusivity of aggravation evidence invited
misunderstanding by jurors. This was the heart of Petitioner’s case. The trial
court did not explain to the jury the role of sympathy or the weight to be assigned
to sympathy in determining penalty. Thus, without guidance from the court, the
670Page 695 Page ID #:
jury was unfairly persuaded by the prosecutor’s argument and weighed
aggravating evidence against Petitioner. See Mills v. Maryland, 486 U.S. 367,
108 S. Ct. 1860 100 L. Ed. 2d 384 (1988); People v. Davenport, 11 Cal. 4th
1171, 906 P.2d 1068, 47 Cal. Rptr. 2d 800 (1995).
1857. As discussed in Claim 28, supra, Petitioner presented no mitigation
evidence at the penalty trial. Petitioner’s hopes for a sentence less than death
hinged on sympathy – practically the only factor that could be construed in
Petitioner’s favor. Under the circumstances of this case, it is both reasonably
possible and probable that the jury misapplied the sentencing factors. Given the
fact that the jury deliberated at length in a conscientious manner, it is likely that
in the absence of the error a more favorable result would have occurred. At least
one juror would have been inclined to vote for life imprisonment without the
possibility of parole if the jury had been properly instructed that sympathy was a
sufficient basis for imposing a punishment less than death.
1858. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
671Page 696 Page ID #:
CLAIM 38:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY ON THE MEANING OF LIFE WITHOUT THE
POSSIBILITY OF PAROLE
1859. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXV
of the opening appeal brief.
1860. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1861. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1862. Trial counsel requested that the court instruct the jury as follows:
Statements by some jurors during jury selection
showed an awareness of news reports concerning other
cases where sentences of death were not carried out for
legal reasons or where person sentenced to life
imprisonment have been considered for parole.
Under the 1978 death penalty law, which governs
this case, the only possible penalties are death or life
imprisonment without the possibility of parole.
In the past, other cases were decided under other
laws which are no longer in effect.
You must not consider other cases or news
reports, or speculate about actions by other authorities
672Page 697 Page ID #:
in arriving at a penalty verdict in this case. Those are
matters that must not affect your verdict.
(XXX CT 8895.)
1863. The trial court indicated that it would clarify the meaning of life
imprisonment without the possibility of parole only if requested to do so by the
jury. The court ruled that it was not necessary to raise the question and was
“bound not to bring forth [the issue] unless the jury itself raises the question
during their deliberations.” (217 RT 24790.) The court further ruled it would be
error to so instruct the jury on the meaning of life imprisonment without the
possibility of parole and requested defense counsel to withdraw his proffered
instruction. (Id.) As a direct result of the court’s request, and only in response to
the court’s request asking counsel to withdraw the instruction, trial counsel
obeyed the court and withdrew the instruction. (Id.) The trial court did not
instruct the jury on the meaning of life imprisonment without the possibility of
parole. The court only instructed the jury in the language of CALJIC No. 8.
(1989 Revision) which stated in relevant part:
It is now your duty to determine which of the two
penalties, death or confinement in the state prison for
life without the possibility of parole shall be imposed
on the defendant.
(Id. at 24874.)
1864. Petitioner’s proffered special instruction was appropriate under the
circumstances of this case. In the face of vehement and repeated insistence by the
prosecutor that Petitioner deserved to die; that he was evil; and that he posed a
danger to society (217 RT 24802, 24805, 24819-21, 24832-33), the trial court
should have, consonant with due process principles, instructed the jury as
Petitioner requested that life imprisonment without parole meant exactly that.
673Page 698 Page ID #:
1865. Under the Fifth, Sixth, Eighth, and Fourteenth Amendments,
Petitioner was entitled to the proffered instruction. At the time of Petitioner’s
trial, decisional law provided that Petitioner was entitled at the very least to
explain parole ineligibility. Barclay v. Florida, 463 U.S. 939, 950, 103 S. Ct.
3418, 77 L. Ed. 2d 1134 (1983); Gardner v. Florida, 430 U.S. at 362, 97 S. Ct.
1197, 51 L. Ed. 2d 393 (1977).
1866. The California Supreme Court’s prior rulings that a further
instruction on the meaning of life imprisonment without the possibility of parole
is not required were predicated on a footnote in the plurality opinion in Simmons
v. South Carolina, 512 U.S. 154, 167 n.7, 114 S. Ct. 2187, 129 L. Ed. 2d
(1994). Footnote 7 lists California as one of seventeen states in which the capital
sentencing jury is expressly told about a defendant’s ineligibility of parole.
Relying on that footnote, the state court repeatedly has turned aside challenges to
CALJIC No. 8.88. However, the Simmons Court based its decision on two
foundations. First, the Court concluded that the defendant was denied due
process by being precluded from responding to the prosecution’s claims of future
dangerousness by informing the jury that he was in actuality ineligible for parole.
Second, and most importantly, the plurality in Simmons held that instructions
which simply inform a capital jury of the sentencing options in literal terms but
without explanation are constitutionally inadequate under the Eighth and
Fourteenth Amendments.
1867. In Simmons, South Carolina argued the instruction given informed
the jury that “life imprisonment was to be understood in its ‘plain and ordinary
meaning.’” Simmons v. South Carolina, 512 U.S. at 169. The Court nevertheless
found the instruction insufficient under the Fifth and Fourteenth Amendments:
An instruction directing juries that life imprisonment
should be understood in its ‘plain and ordinary’
meaning does nothing to dispel the misunderstanding
674Page 699 Page ID #:
reasonable jurors may have about the way in which the
particular State defines ‘life imprisonment.’ See Boyde
v. California, 494 U.S. 370, 380, 110 S. Ct. 1190,
L.Ed.2d 316 (1990) (where there is a ‘reasonable
likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence,’ the defendant is
denied due process).
Simmons v. South Carolina, 512 U.S. at 170 (footnote omitted).
1868. Justice Blackmun, writing in Simmons for three concurring justices,
stated: “It can hardly be questioned that most juries lack accurate information
about the precise meaning of ‘life imprisonment’ as defined by the States.” Id.,
512 U.S. at 169. Jurors and the general public alike regularly misunderstand that
defendants sentenced to life imprisonment without the possibility of parole may
be and are later released from prison. Id. at 169-70 n.9.
1869. The Court in Simmons also cited Barclay v. Florida, 463 U.S. at
950, which held: “Any sentencing decision calls for the exercise of judgment. It
is neither possible nor desirable for a person to whom the State entrusts an
important judgment to decide in a vacuum, as if he had no experiences.”
Simmons v. South Carolina, 512 U.S. at 171. Justice Blackmun, in his concurring
opinion, further noted that an instruction that simply tells the jury not to consider
parole possibilities is not the same as informing it positively what the sentences
they impose mean in actuality. Id.
1870. Justice Souter’s concurring opinion (joined by Justice Stevens) went
further in stressing that in addition to the Fifth Amendment, the Eighth
Amendment also demands the jury be fully informed of the meaning of the
sentencing options they must mete out. Id. at 172-74. Noting that the Eighth
Amendment “requires provision of ‘accurate sentencing information [as] an
675Page 700 Page ID #:
indispensable prerequisite to a reasoned determination of whether a defendant
should live or die,”’ Justice Souter indicated that this necessitates instructions on
the meaning of legal terms, so that “whenever there is a reasonable likelihood that
a juror will misunderstand a sentencing term, a defendant may demand
instruction on its meaning, and a death sentence following the refusal of such a
request should be vacated as having been ‘arbitrarily or discriminatorily’ and
‘wantonly and . . . freakishly imposed.’” Id. And in fact, Simmons made a
substantive showing of juror confusion in the trial court through a survey that
showed over 90% of jury-eligible adults did not believe that a life sentence meant
the prisoner would actually stay in prison the rest of his life. Id. at 159.
1871. There was reasonable likelihood of a similar misunderstanding of
the nature of life imprisonment without the possibility of parole among jury-
eligible California adults generally and at the time of Petitioner’s trial. See Craig
Haney and Mona Lynch, “Clarifying Life and Death Matters: An Analysis of
Instructional Comprehension and Penalty Phase Closing Argument,” 21 Law &
Hum. Behav. 575 (1997). Accordingly, by virtue of the Court plurality opinions
in Simmons, Petitioner was entitled to an instruction such as that which he
requested clarifying the meaning of a life sentence without the possibility of
parole.
1872. The state court has approved instructions telling the jury to assume
that the sentence imposed will not be overturned and that the penalty chosen will
indeed be imposed. See, e.g., People v. Smithey, 20 Cal. 4th 936, 1007-08,
P.2d 1171, 86 Cal. Rptr. 2d 243 (1999).129 To instruct a jury to assume that its
Of an instruction that “you should vote on the assumption that your
decision will not be overturned” and that the jury should choose the penalty on
the basis that its decision will stand, the Smithey court remarked, “We conclude
that the court’s instructions regarding the jury’s sentencing alternatives were
sufficient and correct . . . .” People v. Smithey, at 1009-10.
676Page 701 Page ID #:
decision on penalty will be carried out is virtually identical to an instruction that
the jury must assume for sentencing purposes that the defendant will either be
executed or remain in prison the rest of his life with no chance of parole. It is
logically impossible for the Smithey formulation to be correct and the one offered
by Petitioner to be incorrect.
1873. Also, Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L.
Ed. 2d 178 (2001), makes clear that:
It is only when the jury endeavors the moral judgment
whether to impose the death penalty that parole
eligibility may become critical. Correspondingly, it is
only at that stage that Simmons comes into play . . . .
[W]henever future dangerousness is at issue in a capital
sentencing proceeding under South Carolina’s new
scheme, due process requires that the jury be informed
that a life sentence carries no possibility of parole.
Id., 532 U.S. at 37-38 (citation omitted).
1874. The Court in Shafer reaffirmed the need of a Simmons instruction.
The Court rejected suggestions that the trial court’s instructions or defense
counsel’s argument made up for the lack of a Simmons instruction. In particular,
the Court found inadequate the instruction that “life imprisonment means until
the death of the offender. Parole eligibility is not for your consideration.” Id. at
45. That instruction, concluded the Court, failed to inform the jury of the true
nature of the sentences it might impose. “That instruction did nothing to ensure
the jury was not misled and may well have been taken to mean ‘that parole was
available but that the jury, for some unstated reason, should be blind to this
fact.”’ Id. at 53 (quoting Simmons v. South Carolina, 512 U.S. at 170.) The
Shafer Court also quoted with approval the dissenting opinion in State v. Kelly,
343 S.C. 350, 375, 540 S.E.2d 851 (2001): “Without the knowledge that, if
677Page 702 Page ID #:
aggravators are found, a life sentence is not subject to being reduced by parole, or
any other method of early release, the jury is likely to speculate unnecessarily on
the possibility of early release, and impose a sentence of death based upon ‘fear
rather than reason.’” Shafer v. South Carolina, 532 U.S. at 53-54.
1875. In Petitioner’s case, his proffered special instruction informed the
jury that he would remain in prison for the rest of his life and never be paroled.
The instruction further obligated the jury to ignore other cases in the past under
other laws in which the death penalty, particularly in other notorious cases, was
not carried out. Petitioner’s instruction fell squarely within the reasoning of
Simmons and now Shafer. Petitioner’s jury was not informed of the true nature of
its sentencing options.
1876. Simmons and Shafer are applicable to the California capital
sentencing scheme. Together, these cases hold that whenever a statutory capital
sentencing scheme presents the sentencer with a choice, but fails to provide
adequate information on the nature of those choices, due process has been
violated. This is particularly so where the prosecution, as here, relies on
continuing dangerousness and the sentencer is ignorant as to the meaning of an
alternate sentence of life without the possibility of parole. In such cases, the
sentencer is susceptible to inflicting death out of misplaced fear the defendant
may be released from prison on parole or by another method of early release.
The jury here should have been advised that Petitioner’s sentence would never be
reduced by parole or other method of early release or that a sentence of life
without possibility of parole meant that Petitioner would remain in prison for the
rest of his life.
1877. As in Simmons, there is empirical evidence that California jurors
fundamentally misunderstand even the most basic concepts of the capital
sentencing process. See Haney & Lynch, “Clarifying Life and Death Matters:
An Analysis of Instructional Comprehension and Penalty Phase Closing
678Page 703 Page ID #:
Argument,” 21 Law & Hum. Behav. 575; see also Simmons v. South Carolina,
512 U.S. at 170 n.9 (studies on misconstruing the meaning of life without the
possibility of parole). The language of the instructions condemned in Simmons
and Shafer and those given by the trial court in this case without Petitioner’s
proffered instruction differ but superficially.130 The danger that the jury would
misunderstand the operation of the capital sentencing process lurked beneath the
trial court’s instructions just as in Simmons and Shafer. The Simmons-Shafer
rationale thus applies, for to “simply identify the jury’s sentencing alternatives”
(Simmons v. South Carolina, at 167 n.7) as was also done here, failed to address
the likelihood of substantive confusion among jurors that underpinned the
identical process violation in Simmons.
1878. The objectionable instructions are equally susceptible to a Simmons-
Shafer analysis. Absent Petitioner’s proffered instruction, those given by the
court presented the sentencing jury with the same two-way decision. Petitioner’s
proffered instruction was a bare minimum explication needed under both
Simmons and Shafer to dispel any possibility of jury misunderstanding about the
meaning of life without the possibility of parole.
1879. Moreover, KelIy v. South Carolina, 534 U.S. 246, 122 S. Ct. 726,
151 L. Ed. 2d 670 (2002), confirms Petitioner’s right to an appropriate instruction
with respect to parole ineligibility, especially where there was evidence that
The California Supreme Court’s statement that life without the
possibility of parole is to be understood “in the common and nontechnical sense
that the plain meaning of its words conveys” (People v. Bonin, 46 Cal. 3d 659,
698, 758 P.2d 1217, 250 Cal. Rptr. 687 (1988) precisely echoes the South
Carolina argument that the words “life imprisonment” were to be understood in
their “plain and ordinary meaning” that the United States Supreme Court rejected
in Simmons v. South Carolina, at 169-70. Both states adopted the same
unconstitutionally sanguine but erroneous attitude toward jurors’ abilities to
divine the actual meaning of sentencing options from unclear or vague
instructions.
679Page 704 Page ID #:
supported an inference of future dangerousness. Thus, the Eighth Amendment
requirement of penalty reliability was not met. Woodson v. North Carolina,
U.S. 280, 196 S. Ct. 2978, 49 L. Ed. 2944 (1976).
1880. The trial court’s failure properly to instruct the jury on the meaning
of life without the possibility of parole and its rejection of Petitioner’s
explanatory instruction were highly prejudicial. Moreover, in view of the
particular facts of this case, the issue of future dangerousness was of greater
concern to the jury than in other cases. The prosecutor vigorously argued in
closing argument that Petitioner should be sentenced to death. The defense, on
the other hand, struggled to convince the jury that Petitioner should be spared
because of mercy and sympathy. (See 217 RT 24839.) The defense emphasized
that life imprisonment without the possibility of parole constituted harsh
punishment. (See 217 RT 24836-37.) The actual meaning of the punishment was
a cornerstone of the defense case. Even without mitigation evidence, the jury
conscientiously considered the issue of punishment during four days of
deliberations. Given the length of deliberations, a proper instruction defining life
imprisonment without the possibility of parole could well have affected the
penalty decision rendered.
1881. Petitioner was unfairly denied a clear instruction that informed the
jury adequately and fully of the precise and accurate meaning of life without the
possibility of parole. The lack of clarifying instruction, as proposed by
Petitioner, made it reasonably possible and reasonably likely that at least one
juror misunderstood the actual consequences of the potential punishments set
forth in CALJIC No. 8.88 (1989 Revision), and voted accordingly. People v.
Brown, 46 Cal. 3d 432, 471, 757 P.2d 1135, 250 Cal. Rptr. 604; Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In light of the
length of the jury’s penalty deliberations, it cannot be said that the lack of
clarification on the meaning of life imprisonment without the possibility of parole
680Page 705 Page ID #:
had “no effect” on this jury’s penalty verdict. Caldwell v. Mississippi, 472 U.S.
at 341.
1882. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 39:
PETITIONER’S CONSTITUTIONAL RIGHT TO LIMIT THE
AGGRAVATING CIRCUMSTANCES TO SPECIFIC
LEGISLATIVELY-DEFINED FACTORS WAS VIOLATED
BY CALJIC NO. 8.84.
1883. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXVI
of the opening appeal brief.
1884. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1885. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
681Page 706 Page ID #:
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1886. The trial court instructed the jury in the language of CALJIC No.
8.84.1 that “you must determine what the facts are from the evidence received
during the entire trial unless you are instructed otherwise.” (217 RT 24869.)
1887. The court refused the defense instruction informing the jury not to
consider any other facts except the list of aggravating circumstances. (
RT 24789; XXX CT 8892.)
1888. There is no statutory basis for the mandate given the jury to
determine the facts under CALJIC No. 8.84.1. What the jury may consider at the
penalty phase is dictated by Penal Code § 190.3, as construed to meet
constitutional requirements. Section 190.3 sets forth specific aggravating and
mitigating factors which must be considered by the jury. CALJIC No. 8.84.
contravenes the requirements of § 190.3.
1889. People v. Boyd, 38 Cal. 3d 762, 700 P.2d 782, 215 Cal. Rptr.
(1985), held that, pursuant to Penal Code § 190.3. the “prosecution’s case for
aggravation is limited to evidence relevant to the listed factors exclusive of factor
(k).” People v. Boyd, 38 Cal. 3d at 775. The directive to the jury in CALJIC No.
8.84.1 violated § 190.3 by permitting the jury to interpret a new guilt phase
evidence as factors in aggravation although the evidence failed to fit into any of
the specific statutory factors. For instance, under the sweeping mandate of
CALJIC No. 8.84.1 that the jury “must determine what the facts are from the
evidence received during the entire trial unless you are instructed otherwise,” the
jury was required to consider evidence that:
•
Petitioner was Hispanic, a transient, and the subject of a
massive manhunt, and that his prosecution attracted extensive
media coverage;
682Page 707 Page ID #:
•
Petitioner associated with drug users and other known
criminals;
•
Petitioner may have used illicit drugs;
•
Petitioner may have bought or sold stolen property;
•
Petitioner was in chains throughout trial and refused to
remove his sunglasses at trial; and,
•
Petitioner harbored Satanist beliefs, made pentagram
drawings, and engaged in other unusual cult-like behavior at
crime scenes, in jail, and in the courtroom
– all of which was constitutionally impermissible (Zant v. Stephens, 462 U.S.
862); unconstitutionally vague (People v. Sanders, 51 Cal. 3d 471, 797 P.2d 561,
273 Cal. Rptr. 537 (1990)); and, irrelevant with respect to the jury’s
determination of penalty.
1890. People v. Boyd, 38 Cal. 3d 762, held that nonstatutory factors in
aggravation cannot be considered by the jury. Boyd necessarily implies that the
wholesale incorporation of the guilt phase evidence into the record for the jury’s
consideration at the penalty phase is improper. Even without Boyd, however,
constitutional safeguards would preclude consideration of such evidence.
1891. Zant v. Stephens, 462 U.S. at 873-80, upheld Georgia penalty phase
jury instructions which allow the jury to consider nonstatutory aggravating
circumstances provided at least one statutory aggravating circumstance is found
to be true. In so ruling, however, the Court specifically held that a
“constitutionally necessary function” of statutory aggravating circumstances is to
“circumscribe the class of persons eligible for the death penalty.” Id. at 878.
Under Zant, a statute which fails “to create any ‘inherent restraint on the arbitrary
and capricious infliction of the death sentence,’” remains unconstitutional. Id.
Such a defect exists in CALJIC No. 8.84.1 by allowing the jury to consider, as in
this case, nonstatutory aggravating factors and to consider in its total discretion,
683Page 708 Page ID #:
as conferred by CALJIC No. 8.84.1 any or all guilt phase evidence as
circumstances warranting the death penalty.
1892. At the very least, the trial court was obligated to reassess the balance
of prejudice and probative value of evidence adduced at the guilt phase before
placing it wholesale before the jury for its mandatory consideration at the penalty
phase by virtue of CALJIC No. 8.84.1. The California instruction was erroneous
precisely because it permitted the jury to sentence Petitioner to death even if it
considered the statutory aggravating circumstances to be of minimal or no
significance, based on other nonstatutory circumstances or evidence introduced
during the guilt trial. See Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct.
2187, 129 L. Ed. 2d 133 (1994); Stringer v. Black, 503 U.S. 222, 113 S. Ct. 2078,
124 L. Ed. 2d 182 (1993).
1893. For these reasons, instruction of the jury in the vague, unmodified
language of CALJIC No. 8.84.1 in this case was erroneous as a matter of
statutory construction and as a matter of federal constitutional law. Petitioner
was denied his right to due process under the Fourteenth Amendment and his
right to a reliable determination of penalty under the Eighth Amendment.
Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d
(1976).
1894. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
A similar conclusion was drawn by the Supreme Court of Washington
in People v. Bartholomew, 101 Wash. 2d 631, 683 P.2d 1079 (1984), which held,
as a matter of both state and federal constitutional law, that nonstatutory
aggravating circumstances cannot be given the same weight as specifically listed
statutory factors. Id. at 1089.
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jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 40:
THE DEATH SENTENCE IS DISPROPORTIONATE AND IS
CRUEL AND UNUSUAL PUNISHMENT BECAUSE OF
PETITIONER’S SERIOUS PSYCHIATRIC,
PSYCHOLOGICAL, NEUROCOGNITIVE,
NEUROLOGICAL, AND OTHER IMPAIRMENTS
1895. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XIX of the June 2004 petition for writ of
habeas corpus.
1896. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
1897. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1898. Petitioner is mentally incompetent, and was at the time of his arrest
and throughout his trial proceedings. His execution would therefore be in
contravention of rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
685Page 710 Page ID #:
Amendments guaranteeing fair trial, rights to present a defense, to counsel, to due
process, to a reliable determination of sentence, and to prohibiting cruel and
unusual punishment. Sections 3701 to 3704 also prohibit the execution of the
insane.
1899. Petitioner challenges his sentence on the grounds that the death
penalty is inappropriate for an individual of his mental capabilities, who suffers
from severe psychiatric impairments, including psychosis, disorganized thought
and behavior, and impaired reality testing; and, other severe psychological,
neurological, and cognitive deficits.
1900. Petitioner’s multiple impairments and incompetency render a death
sentence disproportionate and in violation of his constitutional rights.
1901. Severe mental illness, rendering an individual insane, bars execution
under §§ 3701 through 3704. Thus, independent state grounds prohibit a
disproportionate sentence.
1902. Petitioner’s impairments manifested when he was a young child. In
1970, at the age of 10, he suffered serious neurological problems, was
hospitalized, and found to have neurological deficits and a seizure disorder. (Ex.
57, Hotel Dieu Medical Records.) His functioning was and is impaired; he is
mentally ill, suffers a thought disorder of psychotic proportion, a severe mood
disorder, is cognitively impaired, and incompetent – all of which contribute to his
severe mental impairments and limited functioning. The psychiatric impairments
likely manifested by age 12.
1903. Atkins v. Virginia, bars execution of the mentally retarded.
Petitioner has asserted that his condition is long-standing, profoundly affects his
functioning and, therefore, is akin to an Atkins claim. The reasoning in Atkins to
exempt the mentally retarded from execution is based on the permanent and
debilitating effect of mental impairments.
686Page 711 Page ID #:
Cognitive and behavioral impairments . . . diminished ability to
understand and process information, to learn from experience, to
engage in logical reasoning, or to control impulses – all of which is
applicable to a seriously mentally ill defendant.
Atkins v. Virginia, 536 U.S. at 320. Moreover, the Supreme Court acknowledged
the deterrence effect of capital punishment is predicated on deliberate and
premeditated murders. Id. at 319 (quoting Enmund v. Florida, 458 U.S. 782,
S. Ct. 3368, 73 L. Ed.2d 1140 (1982)).
1904. The American Psychiatric Association’s position statement on
diminished responsibility in capital sentencing holds:
Defendants shall not be sentenced to death or executed if, at the time
of the offense, they had a severe mental disorder or disability that
significantly impaired their capacity (a) to appreciate the nature,
consequences or wrongfulness of their conduct, (b) to exercise
rational judgment in relation to their conduct, or (c) to conform their
conduct to the requirements of the law.
American Psychiatric Association, Diminished Responsibility in Capital
Sentencing (Position Statement 2004). Moreover, mental illness and retardation
are similar in many respects. Mentally ill individuals may have permanent
impairments which interfere with the normal range of functioning. They are
similarly situated as mentally retarded persons with respect to limited
functioning. Mental illness equates to mental retardation in reduced functioning
and lack of normalcy, unlike the situation of juvenile and adult offenders, which
are separate groups lacking common ground.
1905. Dr. Blumer has stated that Petitioner’s multiple impairments require
“proper care and treatment for serious, lifelong neuropsychiatric deficits because
[of] … debilitating effects of organic brain dysfunction.” (Ex. 31, D. Blumer,
M.D., dec., ¶ 15.) Dr. Blumer’s findings establish that Petitioner is permanently
687Page 712 Page ID #:
afflicted; he will not recover or regain normal functioning. Treatable in this
instance certainly does not mean curable. Petitioner has been ill for at least
thirty-five years, and probably all of his life. Dr. Watson conservatively
estimated that Petitioner suffers from “temporal lobe disorder and frontal lobe
dysfunction” and, “[he has] neurocognitive deficits related to a psychotic and/or
schizophrenic spectrum disorder. His functioning is impaired. He suffers …
from mood disorders. These conditions combine to render Petitioner severely
1906. Petitioner was seriously impaired and insane or had reduced mental
state at the time of the offenses, and he was incompetent throughout the trial
proceedings. Given the nature of Petitioner’s debilitating and long-standing
mental illness, the death sentence violates his fundamental rights under the
Constitution. Petitioner is entitled to a hearing in which he will demonstrate the
nature and extent of his psychiatric and psychological, neurological, and
cognitive deficits, their profound effects upon his ability to function as a child
and adult; that the impairments are of long duration and negatively impact his
behavior, and that there is presently a national and regional consensus against the
execution of the mentally retarded. See Atkins v. Virginia, 536 U.S. 304. Persons
exhibiting the same kinds of cognitive impairments and disabilities as described
by the High Court in Atkins should, as a matter of equal protection, fall within the
ambit of this ruling. Petitioner exhibits symptoms and impairments similar or
identical to those described in Atkins and under equal protection principles; his
execution is also prohibited under the Eighth and Fourteenth Amendments.
Reversal of his death sentence is required.
1907. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
688Page 713 Page ID #:
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
CLAIM 41:
CALIFORNIA’S DEATH PENALTY STATUTE, AS
INTERPRETED BY THE CALIFORNIA SUPREME COURT AND
APPLIED TO PETITIONER, IS CONSTITUTIONALLY
DEFECTIVE
1908. Exhaustion of the claim: Petitioner presented subsections of this
claim to the California Supreme Court.
1909. Many features of California’s capital sentencing scheme violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. The California Supreme Court has rejected challenges to many of
these features, but the challenges retain their federal constitutional validity since
they have not been rejected by the United States Supreme Court. Petitioner
presents these arguments in an abbreviated fashion sufficient to alert the Court to
the nature of each claim and its federal constitutional basis. Individually and
collectively, these various constitutional defects require that Petitioner’s sentence
of death be set aside.
1910. In support of these subclaims, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
689Page 714 Page ID #:
1911. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
incorporated by reference as if fully set forth herein to avoid unnecessary
duplication of relevant facts.
1912. The following violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
A.
The California Death Penalty Statute Fails to Narrow the Class of
Murders Eligible for the Death Penalty.
1913. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented as Claim XXXIII
of the Opening Brief. It was also fairly presented to the California Supreme
Court as Claim XX in the June 2004 petition for a writ of habeas corpus.
1914. Petitioner’s convictions and sentence are unconstitutional because
the California death penalty scheme does not sufficiently narrow the class of
persons eligible for the death penalty. The California capital statutory scheme is
overly broad and inclusive because it contains so many special circumstances that
it fails to perform the constitutionally required narrowing function. The statutory
690Page 715 Page ID #:
scheme, therefore, violates the Eighth Amendment prohibition against cruel and
unusual punishments and the Fifth and Fourteenth Amendment requirement of
due process of law.
1915. Under the United States Supreme Court decisions, inter alia, in
effect at the time of Petitioner’s trial, a state statutory scheme must provide
rational, meaningful and objective criteria for narrowing the class of person’s
eligible for the death penalty from the larger group of murder defendants who are
not. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d
(1983) (“To pass constitutional muster, a capital sentencing scheme must
‘genuinely narrow the class of persons eligible for the death penalty’”); Furman
v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (a death
penalty law violates the Eighth Amendment unless it provides a meaningful basis
for distinguishing the few cases where the death penalty is imposed from the
many in which it is not); California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446,
L. Ed. 2d 1171 (1983) (a capital murder statute must take into account the
concepts that death is different be in accord with Eighth Amendment).
1916. The narrowing must occur at the definitional stage and is required to
ensure that those chosen for the death penalty will be among the worst offenders,
those whose murders are “particularly serious or for which the death penalty is
peculiarly appropriate . . . .” Gregg v. Georgia, 428 U.S. 153, 222, 96 S. Ct.
2909, 49 L. Ed. 2d 859 (1976) (White, J., conc. op.); Zant v. Stephens, 462 U.S.
at 878; Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d
255 (1990); Lowenfeld v. Phelps, 484 U.S. 231, 244-45, 108 S. Ct. 546, 98 L. Ed.
2d 568 (1988); see also Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988)
(blanket eligibility for death sentence may violate the Fifth and Fourteenth
Amendment due process guarantees as well as the Eighth Amendment).
1917. The Furman principle has resulted in a statutory narrowing
requirement with two components: (1) the death-eligible class of convicted
691Page 716 Page ID #:
murderers must be small enough that a substantial percentage are in fact
sentenced to death; and (2) the states, through their legislatures, must decide the
composition of the death-eligible class. (Ex. 39, Steven Shatz dec., ¶ 5.). In
other words, Furman is satisfied if, and only if, the legislature, by defining
categories of murderers eligible for the most severe penalty, genuinely narrows
the death-eligible class. (Id.)
1918. California’s death penalty statute, however, enacted by initiative, has
ignored the Eighth Amendment by multiplying the “few” into the many. Because
of the breadth of California’s definition of first-degree murder, nearly all murders
committed in California can be capitally charged. At the time of the homicide in
Petitioner’s case, there were 26 “special” circumstances in existence under
California Penal Code § 190.2, effectively embracing every likely type of murder.
There were only eight fact situations possible where a defendant could have been
guilty of first degree murder and actually not be death-eligible. (Ex. 39, Steven
Shatz dec., ¶ 5.)
1919. It appears the proponents of Proposition 7, the initiative enacted into
law as § 190.2, contemplated an unconstitutionally over-broad purpose in
drafting and advocating such expansive special circumstances. In their
“Argument in Favor of Proposition 7” in the 1978 Voter’s Pamphlet, they
described certain murders not covered by the then-existing death penalty statute,
and then stated:
And, if you were to be killed on your way home tonight simply
because the murderer was high on dope and wanted the thrill, the
criminal would not receive the death penalty. Why, Because the
Legislature’s weak death penalty law does not apply to every
murderer. Proposition 7 would.
(1978 Voter’s Pamphlet, p. 34 (emphasis added).)
692Page 717 Page ID #:
1920. In California, death eligibility is the rule, not the exception.
Professor Steven Shatz determined that from 1988-1992, a four-year period
encompassing this case, at least 84 percent of first-degree murderers convicted in
California were death-eligible. (Ex. 39, Steven Shatz dec., ¶¶ 17 & 28.) Through
his careful statistical studies, Shatz has concluded that California’s statutorily
defined death-eligible class is so large, and the imposition of the death penalty on
members of the class so infrequent, that the statute performs no narrowing of the
death-eligible class as mandated by Furman. In fact, it creates a greater risk of
arbitrary death sentences than the pre-Furman death penalty schemes. (Id., ¶ 33.)
1921. With the exception of the “heinous, atrocious or cruel” special
circumstance already held unconstitutional, People v. Superior Court (Engert),
Cal. 3d 797, 800-02, 647 P.2d 76, 183 Cal. Rptr. 800 (1982), any of the
individual special circumstances, when viewed in isolation, may have been
sufficiently objective and narrow to satisfy Furman. However, given the number
and breadth of the special circumstances, the scheme as a whole does not
genuinely narrow the death-eligible class.
B.
The California Death Penalty Scheme Gives Prosecutors Unfettered
Discretion
1922. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented as Claim XXXII
of the Opening Brief.
1923. Under Furman, sentencing procedures may not create a substantial
risk that the death penalty will be inflicted in an arbitrary or capricious manner.
Furman does not require that all sentencing discretion be eliminated, only that it
be directed and limited so that the death penalty will be imposed in a more
consistent and rational manner, and so that there will a meaningful basis for
distinguishing the cases in which it is imposed from those in which it is not. See
Lockett v. Ohio, 438 U.S. 576, 600-01, 98 S. Ct. 2957, 57 L. Ed. 2d 973 (1978).
693Page 718 Page ID #:
1924. In California, however, each individual prosecutor has sole authority
and complete discretion to determine whether a penalty hearing will be held to
determine if the death penalty will be imposed. No sentencing hearing is required
after conviction for murder with special circumstances, nor is the prosecutor
directed as to when he may seek the death penalty. People v. Williams, 30 Cal.
3d 470, 477, 637 P.2d 1029, 179 Cal. Rptr. 443 (1981); Ramos v. Superior Court,
32 Cal. 3d 26, 29, 648 P.2d 589, 184 Cal. Rptr. 622 (1982). Under California’s
scheme, it is the prosecutor who narrows the class of similarly charged
defendants through his decision to waive death or to demand a sentencing hearing
following conviction. The prosecutor has unlimited discretion, unaided by
legislatively created directives, in the performance of this indispensable part of
the sentencing function.
1925. Just like the “arbitrary and wanton” jury discretion condemned in
Woodson, 428 U.S. at 303, such unprincipled, broad discretion is contrary to the
principled decision-making mandated by Furman, 408 U.S. at 239-40. Under
these principles, the complete discretion given to the prosecutor by California’s
death penalty statute to seek, or not to seek, a sentence of death violates the
Eighth Amendment’s ban against cruel and unusual punishment.
Petitioner acknowledges that in Gregg v. Georgia, the opinions joined
in by Justices Stewart, Powell, Stevens, White, Rehnquist, and Chief Justice
Burger, suggested that the requirements imposed upon a sentencing body are not
applicable to decisions by prosecutors. Gregg v. Georgia, 428 U.S. at 199,
224-26;
However, any such expression in Gregg does not apply to the California
death penalty law because the statutes in Georgia, Florida and Texas, approved
by the Supreme Court in Gregg and its companion cases, properly serve the
function of narrowing the class of death-eligible defendants. The California
statutory scheme fails in that essential function, leaving the task of narrowing to
prosecutorial discretion.
694Page 719 Page ID #:
C.
County-by-County Variation in the Application of the Death Penalty
Violates Petitioner’s Right to Equal Protection
1926. The California Attorney General is the chief law officer of the state,
with supervisory power over every District Attorney. Cal. Const. art. V, § 13;
Cal. Govt. Code § 12550. The California Attorney General has the power, as
well as the duty, to assure uniformity in implementing a fundamental right (the
fundamental right to life, as well as the rights to due process and freedom from
cruel and unusual punishment). However, the Attorney General has instead
allowed charging decisions to be made in a standardless and inconsistent fashion
from county to county, without any assurance that the rudimentary requirements
of equal treatment and fundamental fairness are satisfied.
1927. Implementation of the death penalty in California violates the Equal
Protection Clause because the decision whether to seek the death penalty against
a potentially death eligible defendant (i.e. one where special circumstances have
been charged) is left solely to the discretion of the prosecutor in the county where
the crime was committed. In California, the fifty-eight counties, through the
respective prosecutors’s offices, make their own rules, within the broad
parameters of §§ 190.2 and 190.25, as to who is charged with capital murder and
who is not. There are no effective restraints or controls on prosecutorial
discretion in California. Each county may and does impose its own standards (or
none at all), for deciding who will face death.
1928. Of the California counties that have five or more death verdicts in a
twenty-year period, the rate of death verdicts has ranged from sixty-two death
verdicts per thousand homicides down to only four. The lack of general
consistency constitutes a violation of equal protection of the laws and deprives
Petitioner of his legitimate expectation that he will be deprived of his life or
liberty only to the extent and in the manner provided for by law. See Bush v.
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Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000); Hicks v. Oklahoma,
447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980).
D.
California Fails to Provide Inter-Case Proportionality Review
1929. California’s death penalty scheme does not require a trial or
appellate court to undertake a comparison between Petitioner’s case and other
similar cases regarding the relative proportionality of the death sentence imposed.
See People v. Fierro, 1 Cal. 4th 173, 253, 821 P.2d 1302, 3 Cal. Rptr. 2d
(1991). This omission violates the Eighth Amendment’s requirement that the
death penalty not be imposed arbitrarily or capriciously. Gregg v. Georgia,
U.S. at 189.
1930. The Supreme Court has recognized that such a provision “guards
against a situation comparable to that present in Furman [v. Georgia, 408 U.S.
238]” in which Georgia’s capital scheme was struck down because it gave juries
unfettered discretion to impose the death penalty without proportionality review.
Gregg v. Georgia, 428 U.S. at 198. As a result, states such as Georgia and
Florida have adopted procedures to allow for intercase proportionality review.
See e.g. Ga. Stat. Ann., § 27-2537(c); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct.
2960, 49 L. Ed. 2d 913 (1976). California’s lack of such a review mechanism
violates his rights under the Eighth and Fourteenth Amendments of the
Constitution.
E.
California’s Scheme Violates Due Process By Allowing the Jury to
Repeatedly Consider the Same Evidence in Aggravation
1931. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXIX
of the Opening Brief.
1932. The California death penalty scheme improperly allows the jury to
repeatedly consider the same facts throughout the guilt and penalty phases.
696Page 721 Page ID #:
1933. First, the scheme allows for the “triple use” of the same facts
underlying the felony conduct; (1) to support the conviction of first degree
murder on a felony murder theory, (2) to support the finding of the felony as a
special circumstance and (3) the use of the felony as an aggravating factor which
warrants the imposition of the death penalty. See People v. Marshall, 50 Cal. 3d
907, 790 P.2d 676, 269 Cal. Rptr. 269 (1990). The Supreme Court in Lowenfield
v. Phelps, 484 U.S. 231, 246 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), rejected a
similar challenged to Louisiana’s death penalty scheme, reasoning that the
“legislature may more broadly define capital offenses and provide for narrowing
by jury findings of aggravating circumstances at the penalty phase.” Id. at 246.
However, California’s scheme has a far greater number of felonies that make a
defendant both eligible for first degree murder and death eligible than did
Louisiana. As such, the scheme under which Petitioner was convicted does not
provide for the narrowing of death-eligible murders by the jury that the Court
found in Lowenfield and, thus, violates Petitioner’s rights under the Eighth and
Fourteenth Amendments.
1934. Second, under § 190.3(a), the jury may consider “the circumstances
of the crime of which the defendant was convicted in the present proceedings and
the existence of any special circumstances found to be true.” No limitations are
placed on the jury’s use of these “circumstances.” The California Supreme Court
has acknowledged the potential for double-counting the same felony conduct as
both a special circumstance and an aggravating factor under § 190.3(a). People v.
Melton, 44 Cal. 3d at 768-69. The use of felony-based special circumstances as
independent factors for imposing a death sentence violated Petitioner’s right to a
reliable determination of penalty in violation of the Eighth and Fourteenth
Amendments. Caldwell v. Mississippi, 472 U.S. at 341.
1935. Third, § 190.3(b) (presence of any criminal activity involving
attempted use of force or violence) and § 190.3(c) (presence of any prior felony
697Page 722 Page ID #:
conviction) allow the jury to double count the same violent conduct as separate
aggravating factors. Thus, double-counting the aggravating circumstances
prevented the jury from a fair and proper consideration of the evidence and a
reliable determination of penalty. Caldwell v. Mississippi, 472 U.S. at 341.
F.
The Penalty Phase Instructions Deprived Petitioner of His
Constitutional Right to an Individualized and Reliable Sentencing
Decision Because They Failed to Designate Factors as “Aggravating”
or “Mitigating”
1936. CALJIC 8.85, which was given to Petitioner’s jury, presents a list of
factors to be considered in the penalty phase determination, but it does not
indicate which factors are aggravating and which are mitigating. Under
California law, certain factors133 may be given only mitigating weight and may
not be used in aggravation. People v. Hardy, 2 Cal. 4th 86, 207, 825 P.2d 781,
Cal. Rptr. 2d 796 (1992); People v. Hamilton, 48 Cal. 3d 1142, 1184, 7744 P.2d
730, 259 Cal. Rptr. 701 (1989); People v. Davenport, 41 Cal. 3d 247, 288-90,
710 P.2d 861, 221 Cal. Rptr. 794 (1985).
1937. The failure of the trial court to define these terms permitted the
prosecutor to improperly convert mitigating evidence into aggravating evidence.
Here, the prosecutor argued that because there were people Petitioner could have
(d) (whether offense was committed under influence of extreme mental
or emotional disturbance), (e) (whether victim participated in or consented to the
defendant’s homicidal conduct), (f) (whether offense was committed under
circumstances which the defendant reasonably believed to be a moral justification
or extenuation for his conduct), (g) (whether the defendant acted under extreme
duress or under the substantial domination of another person), (h) (whether the
defendant lacked the capacity to appreciate the criminality of his conduct or
conform his conduct to the requirements of law was impaired as a result of a
mental disease or defect or the effects of intoxication) and (k) (any other
circumstance which extenuates the gravity of the crime...or any other aspect of
the defendant’s character or record) .
698Page 723 Page ID #:
killed but did not was not mitigating, it was aggravating. The prosecutor argued
that,
The defendant might say, well, that was mitigation in that he spared
their life, but I submit to you that perhaps – perhaps not; perhaps he
enjoyed more doing what he did and not killing them at that
particular time. ¶ Perhaps that was more than gratifying in some of
those cases.
(217 RT 24820.) Turning Petitioner’s factor (k) mitigating evidence into a
non-statutory dangerousness factor violated Petitioner’s Eighth and Fourteenth
Amendment rights to a reliable and individualized sentencing decision. Zant v.
Stephens, 462 U.S. at 878-79 n.17; People v. Boyd, 38 Cal. 3d 762, 772-76,
P.2d 782, 215 Cal. Rptr. 1 (1985).
G.
The Jury Instructions Failed to Require a Reasonable Doubt
Determination of Aggravating Factors
1938. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXVIII of the Opening Brief.
1939. Although § 190.3 requires the trier of fact in a capital case to find
that at least one aggravating factor exists and that such aggravating factor (or
factors) outweigh any and all mitigating factors, as a prerequisite to the
imposition of the death penalty, California does not require that a reasonable
doubt standard be used during any part of the penalty phase of a defendant’s trial
except as to proof of prior criminality relied upon as an aggravating circumstance
– and even in that context, the required finding need not be unanimous. The
jurors in Petitioner’s case were not instructed that there was any burden of proof
at the penalty phase with respect to the aggravating factors or the penalty
determination itself.
699Page 724 Page ID #:
1940. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
L. Ed. 2d 435 (2000), the United States Supreme Court held that a state may not
impose a sentence greater than that authorized by the jury’s simple verdict of
guilt unless the facts supporting an increased sentence (other than a prior
conviction) were also submitted to the jury and proved beyond a reasonable
doubt. Id. at 478. In Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002), the Supreme Court held that Arizona’s death penalty scheme,
under which a judge sitting without a jury makes factual findings necessary to
impose the death penalty, violated the defendant’s constitutional right to have the
jury determine, unanimously and beyond a reasonable doubt, any fact that might
increase the maximum punishment. While the primary problem presented by
Arizona’s capital sentencing scheme was that a judge, sitting without a jury,
made the critical findings, the court reiterated its holding in Apprendi, that when
the state bases an increased statutory punishment upon additional findings, such
findings must be made by a unanimous jury beyond a reasonable doubt.
1941. The death penalty scheme under which Petitioner was sentenced
violates the federal constitution because Petitioner’s jury was not asked to
determine, unanimously and beyond a reasonable doubt, the existence of at least
one aggravating factor, and whether the aggravating factors outweighed the
mitigating factors. These two sets of determinations are critical and a death
sentence is not authorized by California law without them, despite the fact that a
jury has previously determined a special circumstance to be true.
1942. In addition, Ring dictates habeas relief with respect to Petitioner’s
death sentence because his jury was not asked to determine, unanimously and
beyond a reasonable doubt, whether each of the unadjudicated acts introduced in
aggravation was proven. In light of the crucial importance of such findings, the
trial court erred in failing to instruct the jury regarding the elements of the alleged
other criminal acts. Absent such instructions, the jury could not be expected to
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decide, unanimously and beyond a reasonable doubt, whether the elements of the
alleged other crimes were proven.
1943. Besides the Fifth and Sixth Amendment violations under Apprendi
and Ring, the lack of a reasonable doubt standard at penalty also deprived
Petitioner of his Eighth Amendment right to a reliable penalty determination.
Woodson v. North Carolina, 428 U.S. at 305; see also California v. Ramos,
U.S. at 998-99; Caldwell v. Mississippi, 472 U.S. at 341. There can be no
explanation why the most important and sensitive fact-finding process in all of
the law – a penalty phase jury’s choice between life and death – could or should
be the only fact-finding process in all of the law completely exempted from a
burden of proof.
1944. The absence of the appropriate burden of proof prevented the jury
from rendering a reliable determination of penalty. The error was structural and
interfered with the jury’s function, thus “affecting the framework within which
the trial proceeds” and rendered the trial fundamentally unfair. Arizona v.
Fulminante, 499 U.S. at 310.
H.
The Jury Instructions Failed to Require Unanimity on Aggravating
Factors
1945. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXX
of the Opening Brief.
1946. As a prerequisite to the imposition of the death penalty in California,
§ 190.3 requires the trier of fact to find that at least one aggravating factor exists
and that such aggravating factor (or factors) outweigh any and all mitigating
factors. According to California’s former principal sentencing instruction, “an
aggravating factor is any fact, condition or event attending the commission of a
crime which increases its guilt or enormity, or adds to its injurious consequences
701Page 726 Page ID #:
which is above and beyond the elements of the crime itself.” CALJIC No. 8.
(emphasis added); see CALCRIM 763.
1947. Thus, before the process of weighing aggravating factors against
mitigating factors can begin, the presence of one or more aggravating factors
must be found by the jury. And before the decision whether or not to impose
death can be made, the jury must find that aggravating factors outweigh
mitigating factors. These factual determinations are essential prerequisites to
death-eligibility, but do not mean that death is the inevitable verdict; the jury can
still reject death as the appropriate punishment notwithstanding these factual
findings.
1948. As previously stated, the Supreme Court made clear in Ring that the
mere availability of either life or death as sentencing options does not relieve
states of the responsibility for ensuring that jurors unanimously find, beyond a
reasonable doubt, any facts increasing the authorized punishment. “If a State
makes an increase in a defendant’s authorized punishment contingent on the
finding of a fact, that fact – no matter how the State labels it – must be found by a
jury beyond a reasonable doubt.” Ring, 536 U.S. at 600-01. The issue of Ring’s
applicability hinges on whether, as a practical matter, the sentencer must make
additional fact-findings during the penalty phase before determining whether or
not the death penalty can be imposed.
1949. A California jury must first decide whether any aggravating
circumstances, as defined by § 190.3 and the standard penalty phase instructions,
exist in the case before it. Only after this initial factual determination has been
made can the jury move on to weigh those factors against the proffered
mitigation. The presence of at least one aggravating factor is the functional
equivalent of an element of capital murder in California and requires the same
Sixth Amendment protection. See Ring, 536 U.S. at 600-01.
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1950. Thus, in summary, two critical sets of factual determinations must be
made by California jurors before a death sentence may be imposed: the existence
of at least one factor in aggravation, and whether the aggravation outweighs the
mitigation. The earlier determination of the existence of a special circumstance
merely permits the penalty phase to occur and does not dispense with these
additional, crucial determinations that capital jurors are required to make.
Because no death sentence is permitted under California law without these two
critical determinations, Ring makes clear that the jury must make its findings
unanimously and beyond a reasonable doubt.
1951. No greater interest is ever at stake than in the penalty phase of a
capital case. Monge v. California, 524 U.S. 721, 732, 118 S. Ct. 2246, 141 L. Ed.
2d 615 (1998) (“the death penalty is unique in its severity and its finality”). As
the Supreme Court stated in Ring,:
Capital defendants, no less than non-capital defendants, we
conclude, are entitled to a jury determination of any fact on which
the legislature conditions an increase in their maximum punishment .
. . . The right to trial by jury guaranteed by the Sixth Amendment
would be senselessly diminished if it encompassed the fact-finding
necessary to increase a defendant’s sentence by two years, but not
the fact-finding necessary to put him to death.
536 U.S. at 588, 606.
1952. Petitioner was deprived of his rights to due process and trial by jury
because of the constitutionally inadequate sentencing procedure employed at his
trial.
I.
The Trial Court Failed to Instruct on the Presumption of a Life
Sentence
1953. In non-capital cases, the presumption of innocence acts as a core
constitutional and adjudicative value to protect the accused, and is a basic
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component of a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691,
48 L. Ed. 2d 126 (1976). Paradoxically, at the penalty phase of a capital trial,
where the stakes are life or death, the jury is not instructed as to the presumption
of life, the penalty phase correlates of the presumption of innocence. Note, The
Presumption of Life: A Starting Point For A Due Process Analysis Of Capital
Sentencing, 94 Yale L.J. 351 (1984); cf. Delo v. Lashley, 507 U.S. 272, 113 S. Ct.
1222, 122 L. Ed. 2d 620 (1993).
1954. Here, the failure to instruct the jury that the law establishes a
presumption of life, correlative to the presumption of innocence at the guilt
phase, violated Petitioner’s federal constitutional rights.
J.
The Jury Instructions Failed to Require Written Findings of
Aggravating Factors
1955. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented as Claim XXX in
the Opening Brief.
1956. The California capital sentencing scheme under which Petitioner
was tried was constitutionally flawed by failing to require explicit findings by the
jury on which aggravating factors it relied in reaching its death verdict. Each
juror could have relied on one of many factors in the twelve capital murders
which potentially constituted proper aggravation yet still have differed on the
factors on which other jurors may have relied. As a result, there was no actual
agreement by the jury why Petitioner should be condemned to death. The jury
should have been required to state the findings on which it relied in its sentencing
determination. See Hamelin v. Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680,
115 L. Ed. 2d 836 (1991).
704Page 729 Page ID #:
1957. The failure to require written or other specific findings by the jury
on the aggravating factors selected by it deprived Petitioner of his federal due
process and Eighth Amendment rights to meaningful appellate review.
California v. Brown, 479 U.S. 538, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987);
Gregg, 428 U.S. at 195. In Mills v. Maryland , 486 U.S. 367, 108 S. Ct. 1860,
100 L. Ed. 2d 384 (1988), for example, the written-finding requirement in
Maryland death cases enabled the Supreme Court not only to identify the error
that had been committed under the prior state procedure, but to gauge the
beneficial effect of the newly implemented state procedure. Id. at 383 n.15.
Further, most state statutory schemes, moreover, require such findings.
1958. The failure to require explicit findings here precludes meaningful
appellate review and violates the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
K.
The Trial Court Failed to Delete Inapplicable Mitigating Factors from
the Language of CALJIC 8.
1959. The jury was instructed in the standard language of CALJIC 8.
which lists the entire list of statutory aggravating and mitigating factors.
(XXX CT 8881-83.) However, several of the mitigating factors were not
See, e.g., Ala. Code, §13A-5-47(d); Ariz. Rev. Stat., § 13-703(D)
(1995); Conn. Gen. Stat., § 53a-46a(e); 11 Del. Code, § 4209(d)(3); Fla. Stat.,
§ 921.141(3); Idaho Code, § 19-2515(e); Ind. Code Ann., § 35-38-1-3(3); Md.
Code Ann., Art. 27, §§ 413(i), (j); Miss. Code Ann., § 99-19-101(3); Rev. Stat.
Mo., § 565.030(4); Mont. Code Ann., § 46-18-306; Neb. Rev. Stat., § 29-2522;
N.J. Stat., § 2C:11-3(c)(3); N.C. Gen. Stat., § 15A-2000(c); 21 Okla. Stat., §
701.11; 42 Pa. Stat., § 9711(F)(1); Tenn. Code Ann., § 39-13- 204(g)(2)(A)(1);
Wyo. Stat., § 6-2-102(d)(ii); see also 21 U.S.C., § 848(k).
705Page 730 Page ID #:
applicable to Petitioner’s case.135 The mitigating factors not present in
Petitioner’s case were not deleted from the instruction.
1960. The trial court’s failure to delete inapplicable mitigating factors
rendered this instruction constitutionally deficient. The presence of irrelevant
mitigating factors suggested that their absence could be considered aggravation.
The wording of the instruction furthers this misperception because factors (e), (f),
(g), and (j) are prefaced with the term “whether or not.” This wording created the
inescapable inference that the factors could either be mitigating (if they applied)
or aggravating. This interpretation was virtually inevitable because similar
alternative wording was used in factors (b) and (c), which were indeed “bivalent”
factors: aggravating if present, mitigating if absent. The language of the
instruction thus greatly increased the likelihood that the jurors would mistakenly
think that mitigating factors could be used as factors in aggravation. Such use by
the jury violated federal decisional law on capital sentencing requirements. Mills
v. Maryland, 486 U.S. at 373-75.
1961. The presence of irrelevant mitigating factors in the jury instructions
also diminished the weight of Petitioner’s mitigating evidence by inviting the
jurors to compare it to the entire realm of possible mitigating factors, even though
some factors are rarely ever present (e.g. victim participation in the homicidal
act) and virtually no case will have every factor. Thus it likely that the jurors
sentenced Petitioner to death because there was “only” two or three mitigating
factors present, rather than weighing the factors that were present against the
aggravating factors as the law requires. The standard language of CALJIC 8.
therefore deprived Petitioner of his right to an individualized and non-arbitrary
Factors (e) (victim participation or consent offense); (f) (moral
justification); (g) (defendant’s extreme duress or substantial domination of
another person); and, (j) (defendant was an accomplice and participation was
relatively minor), did not specifically apply to Petitioner’s case.
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sentencing determination. See Proffitt v. Florida, 428 U.S. 242, 260, 96 S. Ct.
2960, 49 L. Ed. 2d 913 (1976); Woodson v. North Carolina, 428 U.S. at 304.
L.
CALJIC’S Requirement that Mitigating Evidence Be “Extreme”
Unconstitutionally Limited the Jury’s Consideration of Petitioner’s
Mitigating Evidence
1962. CALJIC 8.85(d) states that the jury may consider “whether or not
the offense was committed while the defendant was under the influence of
extreme mental or emotional disturbance.” The requirement that the mitigating
evidence as “not relevant” if it fell below a certain weight or degree of severity.
1963. The “extreme” qualifier included in the instructions deprived
Petitioner of his right to have the capital sentencing jury consider and give effect
to all relevant mitigating evidence. Boyde, 494 U.S. at 377-78; Penry, 492 U.S.
at 328 (“full consideration of evidence that mitigates against the death penalty is
essential” [emphasis in original]). By providing that the jurors could consider
only whether the homicide occurred under the influence of mental or emotional
disturbance only if the disturbance was “extreme,” the jurors were implicitly
instructed that they were required to disregard a mental or emotional disturbance
of a lesser severity.
1964. Where instructed that they could consider a mental or emotional
disturbance only if it was “extreme,” after finding the mental or emotional
disturbance not to be “extreme,” reasonable jurors would understand the
invitation to consider “any other circumstance” in mitigation as constituting
factors other than mental or emotional disturbance that had already been deemed
insufficient under law as given by the court. Smith v. McCormick, 914 F.2d
1153, 1165-66 (9th Cir. 1990) (Montana scheme unconstitutional because it
permitted sentencer “to refuse to consider . . . mitigating evidence simply because
it fell below a certain weight.”); Kenley v. Armontrout, 937 F.2d 1298, 1309 (8th
707Page 732 Page ID #:
Cir. 1991) (defendant need not be insane for mental problems to “be . . .
considered mitigating evidence”).
M.
The Language of CALJIC No. 8.88 Prevents Proper Weighing of
Aggravating and Mitigating Evidence
1965. Petitioner’s jury was instructed in the 1989 revised language of
CALJIC No. 8.88 which, in pertinent part, allows the jury to impose a death if
each person is “persuaded that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of
life without parole.” (See XXX CT 8885.)
1966. The language of this instruction was constitutionally defective
because it failed to accurately describe the proper process for weighing
aggravating and mitigating circumstances. It contradicted the language of 190.
by indicating that a death judgment could be returned if the aggravating
circumstances were merely “substantial” in comparison to mitigating
circumstances, thus permitting the jury to impose death even if the mitigating
circumstances ultimately outweighed the “substantial” aggravating
circumstances. It also failed to inform the jury that a single mitigating
circumstance, by itself, could be sufficient to outweigh any aggravating
circumstances. These defects deprived Petitioner of the individualized sentencing
decision to which he was entitled under the Eighth and Fourteenth Amendments.
N.
The Penalty Phase Instructions Were Unconstitutionally Vague and
Incapable of Being Understood by Jurors
1967. Prior to penalty phase deliberations in this case, the trial court issued
pattern instructions to the jury that tracked the language of § 190.3, factors (a)
through (k), concerning the factors that the jury was to take into consideration in
determining Petitioner’s sentence. Taken as a whole, these instructions were not
readily understandable to the lay jurors and failed to adequately guide the jury in
rendering a reliable, individualized and non-arbitrary penalty determination.
708Page 733 Page ID #:
1968. California capital sentencing jurors, virtually without exception, fail
to understand many of the concepts at the core of the Eighth Amendment
restrictions on the death penalty and, as a result, skew the process in favor of a
death verdict.
1969. The jury instructions based on § 190.3 (a) were particularly
confusing. Factor (a), which directs the jury to consider the “circumstances of
the crime,” is unconstitutionally vague, not in an abstract sense (see Tuilaepa v.
California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994)), but
because it fails to identify any circumstances or types of circumstances that the
jury may consider in order to distinguish the offense from other offenses not
subject to the death penalty or to make clear that there may be mitigating aspects
to the circumstances of the crime. Furthermore, factor (a) allows the sentencer to
consider the presence of any special circumstance findings. The sentencer’s
discretion is therefore not properly channeled because all capital cases have at
least one special circumstance and a jury cannot know how to distinguish a death-
worthy case from one that is not death-worthy. For these reasons, the broad
expanse of factor (a) did not constitutionally guide Petitioner’s jury in
determining whether death was the appropriate punishment.
1970. Further, the instructions given to Petitioner’s jury did not properly
explain that they could take their emotions, including pity and sympathy, into
account when considering Petitioner’s mitigating evidence, as was his right under
section190.3(k). As a result, the jury did not give full consideration to the
mitigation. The common mistake of interpreting factor (k) as a non-statutory
dangerousness factor violated Petitioner’s federal constitutional rights.
1971. To the extent that any of the errors alleged in the present claim
deprived Petitioner of the benefits of state law in which he had a liberty interest,
he was deprived of equal protection and due process of law under the federal
Constitutions. Hicks v. Oklahoma, 447 U.S. at 346.
709Page 734 Page ID #:
O.
The California Sentencing Scheme Violates Equal Protection Because
by Denying Procedural Safeguards to Capital Defendants That Are
Afforded to Non-capital Defendants
1972. The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution guarantees all persons that they will not be denied
their fundamental rights and bans arbitrary and disparate treatment of citizens
when fundamental interests are at stake. Bush v. Gore, 531 U.S. 98, 104-
(2000)). In addition to protecting the exercise of federal constitutional rights, the
Equal Protection Clause also prevents violations of rights guaranteed to the
people by state governments. Charfauros v. Board of Elections, 249 F.3d 941,
951 (9th Cir. 2001).
1973. The United States Supreme Court has repeatedly said that a greater
degree of reliability is required when death is to be imposed and that courts must
be vigilant to ensure procedural fairness and accuracy in fact-finding. See, e.g.,
Monge v. California, 524 U.S. 728, 731-732 (1998). Despite this directive,
California’s death penalty scheme provides significantly fewer procedural
protections for persons facing a death sentence than are afforded persons charged
with non-capital crimes. This differential treatment violates the constitutional
guarantee of equal protection of the laws.
1974. Under the Equal Protection Clause, a state may not create a
classification scheme which affects a fundamental interest without showing that it
has a compelling interest which justifies the classification and that the
distinctions drawn are necessary to further that purpose Skinner v. Oklahoma,
316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); People v. Olivas
Cal. 3d 236, 251 (1976).
1975. The interest at stake is Ramirez’s right to life. The “right to life” is
not merely a fundamental right. It occupies the most “prominent place in the due
process clause . . . . [T]he right to life is the basis of all other rights . . . . It
710Page 735 Page ID #:
encompasses, in a sense, ‘the right to have rights,’ Trop v. Dulles, 356 U.S. 86,
102 (1958).” Given the paramount nature of the interest at stake here, the
scrutiny of the disparities under challenge must be as strict as possible, and any
purported justification by the state for the differential treatment must be
extraordinarily compelling.
1976. In Ring v. Arizona, 536 U.S. at 589, the Supreme Court stated that
“capital defendants, no less than non-capital defendants, … are entitled to” the
procedural protections necessary to assure the reliability of and accurate
fact-finding in sentencing proceedings. “The right[s] … guaranteed by the
[Fifth,] Sixth[, and Eighth] Amendment[s]” – as well as the “right to life” –
“would be senselessly diminished if [they] encompassed the factfinding
necessary to increase a defendant’s sentence by two years, but not the factfinding
necessary to put him to death.”
1977. Yet that is not the case. An enhancing allegation in a California
non-capital case is a finding that must, by law, be unanimous. (See, e.g., §§
1158, 1158a.) No such unanimity is required before a juror can find that a
particular fact is aggravating and militates in favor of death. See, e.g., People v.
Prieto, 30 Cal. 4th 226, 265 (2003).
1978. When a California judge in a non-capital case is considering which
sentence is appropriate: “The reasons for selecting the upper or lower term shall
be stated orally on the record, and shall include a concise statement of the
ultimate facts which the court deemed to constitute circumstances in aggravation
or mitigation justifying the term selected.” California Rules of Court, Rule
4.42(e). No such requirement exists in a capital case. See, e.g., People v. Fauber,
1979. In a non-capital case, furthermore: “Circumstances in aggravation
and mitigation shall be established by a preponderance of the evidence.” Rule
4.42(b). There is no standard of proof in the penalty phase of a capital case. See,
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e.g., People v. Hawthorne, 4 Cal. 4th 43, 79, 841 P.2d 118, 14 Cal. Rptr. 2d
(1992)
1980. In non-capital cases, defendants are entitled to disparate-sentence
review. Cal. Pen. Code § 1170(d). Those sentenced to death are not. See, e.g.,
People v. Crittenden, 9 Cal. 4th 83, 157, 885 P.2d 887, 36 Cal. Rptr. 2d
(1994).
1981. The disparity in treatment described above violates the Equal
Protection Clauses of the Fifth and Fourteenth Amendments. The foregoing
violations of Petitioner’s constitutional rights, taken singly or in combination
with the other errors alleged in the Petition, constitute structural error and warrant
the granting of this Petition without any determination of whether the violations
substantially affected or influenced the jury’s verdict. See Brecht v. Abrahamson,
507 U.S. 619, 637-38 & n.9, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
1982. However, even assuming the harmless error doctrine applies to this
claim, the foregoing constitutional violations, singly and in combination with the
other errors alleged in this Petition, so infected the integrity of the proceedings
that the error cannot be deemed harmless. The foregoing violations of Petitioner’s
rights had a substantial and injurious effect or influence on Petitioner’s
convictions and sentences, rendering them fundamentally unfair and resulting in a
miscarriage of justice. See id. at 622, 637-38.
P.
Carrying out Petitioner’s Death Sentence after Excessive Pre-
execution Delay Would Be Cruel and Unusual Punishment
1983. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XXII of the June 2004 petition for writ of
habeas corpus.
1984. Petitioner’s death sentence, confinement on death row, and any
eventual carrying out of the death sentence violates the Fifth, Sixth, Eighth, and
Fourteenth Amendments in that Petitioner was sentenced to death over fourteen
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years ago, and is waiting for resolution of his appellate process due to
circumstances substantially beyond his control.
1985. International standards have established that subjecting a person to
the agony and degradation of extended years on death row is inhumane. Pratt
and Morgan v. Attorney General of Jamaica, 3 SLR 995, 2AC 1, 4 All ER.
(1993) (en banc); Catholic Comm’n for Justice and Peace in Zimbabwe v.
Attorney General, No. S.C. 73 (Zimb. 1993) (Supreme Court of Zimbabwe
commuted the death sentences of four men due to the prolonged delay in
conjunction with the harsh and degrading conditions under which the prisoners
were confined); and see Soering v. United Kingdom, 11 Eur. Hum. Rgts. Rep.
439 (1989) (European Court of Human Rights refused to extradite a man detained
in England and wanted in Virginia on capital murder charges, partly because of
the extremely long duration of stay on death row, coupled with severe conditions
and “mounting anguish”).
1986. In Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed .2d
304 (1995) the defendant argued that his seventeen years on death row violated
the Eighth Amendment. Although the Supreme Court denied certiorari, Justice
Stevens wrote a memorandum to stress the importance of the claim due to the far-
reaching consequences. Justice Stevens noted that under Gregg v. Georgia, the
death penalty was upheld against Eighth Amendment attacks because it “might
serve ‘two principal social purposes: retribution and deterrence.’” However,
Justice Stevens pointed out that those goals are not served when prisoners have
spent many years on death row. Lackey v. Texas, 514 U.S. 1045; see also In re
Medley, 134 U.S. 160, 172, 10 S. Ct. 384, 33 L. Ed. 835 (1890); Ceja v. Stewart,
1987. Some reviewing courts which have considered the issue of excessive
confinement on death row have rejected the claim because the delays were caused
by the condemned inmate’s pursuit of collateral avenues of relief. See, e.g.,
713Page 738 Page ID #:
McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995), aff’d en banc, McKenzie v. Day,
57 F.3d 1493. In Petitioner’s case, however, the excessive confinement on death
row has been through no fault of his own. In fact, the loss of and failure to
prepare critical court records resulted in numerous delays in record correction.
Full and fair review of the trial court proceedings necessitates a complete record
(Chessman v. Teets, 354 U.S. 156, 77 S. Ct. 1127, 1 L. Ed. 2d 1253 (1957); Cal.
Pen. Code § 190.7; see Cal. R. Ct., Rule 39.5) and effective appellate
representation. People v. Barton, 21 Cal. 3d 513, 518, 579 P.2d 1043, 146 Cal.
Rptr. 727 (1978); People v. Gaston, 20 Cal. 3d 476, 573 P.2d 423, 143 Cal. Rptr.
205 (1978); People v. Silva, 20 Cal. 3d 489, 573 P.2d 430, 143 Cal. Rptr.
(1978); In re Smith, 3 Cal. 3d 192, 474 P.2d 969, 90 Cal. Rptr. 1 (1970).
California’s procedure for review of death judgments does not permit a
condemned person to choose whether he or she wishes to appeal his or her
sentence in the first place, as the appeal is automatic. Cal. Pen. Code § 1239(b);
People v. Sheldon, 7 Cal. 4th 1136, 1139, 875 P.2d 83, 31 Cal. Rptr. 368 (1994)
(“no authority to allow [the] defendant to waive the [automatic] appeal”); People
1988. The delays in Petitioner’s automatic appeal are attributable to the
State and the criminal justice system that failed in its obligation to preserve and
prepare the records of trial proceedings in Petitioner’s case. The delays have
nothing to do with the exercise of any discretion on Petitioner’s part. The delays
have been caused by the negligence and action by the State. Lackey v. Texas,
U.S. 1045.
1989. Many long years of life on death row must be considered with
respect to an Eighth Amendment analysis. See People v. Anderson, 6 Cal. 3d
628, 649, 493 P.2d 880, 100 Cal. Rptr. 152 (1972) (“The cruelty of capital
punishment lies not only in the execution itself and the pain incident thereto, but
also in the dehumanizing effects of the lengthy imprisonment prior to execution
714Page 739 Page ID #:
during which the judicial and administrative procedures essential to due process
of law are carried out. Penologists and medical experts agree that the process of
carrying out a verdict of death is often so degrading and brutalizing to the human
spirit as to constitute psychological torture.”); see also Furman v. Georgia,
U.S. at 288-89 (“Mental pain is an inseparable part of our practice of punishing
criminals by death, for the prospect of pending execution exacts a frightful toll
during the inevitable long wait between the imposition of sentence and the actual
infliction of death”); Suffolk County District Attorney v. Watson, 411 N.E.2d
question, a horror.”).
1990. A death sentence “must serve some legitimate penological end that
could not be otherwise accomplished.” Ceja v. Stewart, 134 F.3d 1368, 1373. In
the absence of such a legitimate end, death violates the Eighth and Fourteenth
Amendments.
1991. The delay caused by the appellate process itself is also beyond
Petitioner’s control. California’s procedure for review of death judgments does
not permit a condemned person to choose whether he or she wishes to appeal his
or her sentence in the first place, as the appeal is automatic. Cal. Pen. Code §
1239(b); People v. Sheldon, 7 Cal. 4th 1136, 1139, 875 P.2d 83, 31 Cal. Rptr.
(1994) (“no authority to allow [the] defendant to waive the [automatic] appeal”);
People v. Stanworth, 71 Cal. 2d 820, 833-34, 457 P.2d 889, 80 Cal. Rptr.
(1969).
1992. Confinement under a sentence of death subjects a condemned inmate
to extraordinary psychological duress, as well as the extreme physical and social
restrictions that inhere in life on death row. In People v. Anderson, the California
Supreme Court recognized as much:
The cruelty of capital punishment lies not only in the execution itself
and the pain incident thereto, but also in the dehumanizing effects of
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the lengthy imprisonment prior to execution during which the
judicial and administrative procedures essential to due process of
law are carried out. Penologists and medical experts agree that the
process of carrying out a verdict of death is often so degrading and
brutalizing to the human spirit as to constitute psychological torture.
6 Cal. 3d 628, 649 (1972)
1993. The penological justification for carrying out an execution
disappears when an extraordinary period of time has elapsed between the
conviction and the proposed execution date. When the death penalty “ceases
realistically to further [legitimate penological] purposes, . . . its imposition would
then be the pointless and needless extinction of life with only marginal
contributions to any discernable social or public purposes. A penalty with such
negligible returns to the State would be patently excessive and cruel and unusual
punishment violative of the Eighth Amendment.” Furman v. Georgia, 408 U.S. at
312 (White, J., concurring).); see also Gregg v. Georgia, 428 U.S. at 183 (“The
sanction imposed cannot be so totally without penological justification that it
results in the gratuitous infliction of suffering.”).
Q.
Imposition of the Death Penalty Violates Petitioner’s Rights under the
Eighth Amendment and International Law
1994. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXXVII of the Opening Brief.
1995. In support of these subclaims, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
Those facts and allegations set forth in the petition, declarations, claims of
constitutional violations, and the accompanying exhibits are incorporated by
716Page 741 Page ID #:
reference as if fully set forth herein to avoid unnecessary duplication of relevant
facts.
1996. The following violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
1997. The United States’s use of the death penalty violates widely-
accepted international norms of humanity and decency. The United States stands
as one of a small number of nations that regularly uses the death penalty as a
form of punishment. . . . The United States stands with China, Iran, Nigeria,
Saudi Arabia, and South Africa as one of the few nations which has executed a
large number of persons. . . . Of 180 nations, only ten, including the United
States, account for an overwhelming percentage of state ordered executions.
Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in
the United States Contradicts International Thinking, 16 Crim. and Civ.
Confinement 339, 366 (1990). According to Amnesty International,
countries are either abolitionist by law or in practice, i.e. they have not executed
anyone in 10 years and are believed to have policies o an established practice of
not carrying out death sentences. “The Death Penalty: List of Abolitionist and
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Retentionist Countries” (July 21, 2008), on Amnesty International website
www.amnesty.org.
1998. Due process is not a static concept, and neither is the Eighth
Amendment. Roper v. Simmons, 543 U.S. 551, 560-61, 125 S. Ct. 1183, 161 L.
Ed. 2d 1 (2005); Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L.
Ed. 2d 335 (2002). The Eighth Amendment in particular draws its meaning from
the evolving standards of decency that mark the progress of a maturing society.
Id. Further, inasmuch as the law of nations now recognizes the impropriety of
capital punishment as regular punishment, it is unconstitutional in this country
inasmuch as international law is a part of our law. Roper, 543 U.S. at
(Supreme Court historically “has referred to the laws of other countries and to
international authorities as instructive for its interpretation of the Eighth
Amendment’s prohibition of ‘cruel and unusual punishments’”).
1999. International law has clearly established a norm against the infliction
of the death penalty as a regular form of punishment. This norm is codified in
such international agreements as the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights (ICCPR), Article 14, and the
American Declaration of the Rights and Duties of Man (American Declaration),
Article 26. Infliction of the death penalty on Petitioner in light of the errors
identified in this Petition would constitute arbitrary deprivation of life in
violation of customary international law and Article 6, § 1, of the ICCPR, and
Article 1 of the American Declaration.
2000. In addition, Petitioner’s status as a mentally disordered individual
provides a separate basis for the prohibition of the death penalty under
international law. See The Question of the Death Penalty, Hum. Rts. Comm.,
Sess., Resolution 2002/104 (2002) E/CN.4/2002/L.104; United Nations,
Extrajudicial, Summary or Arbitrary Executions: Report by the Special
Rapporteur, E/CN.4/2000/3, Para. 97, Jan. 25, 2000.)
718Page 743 Page ID #:
2001. The United States is bound by customary international law, as
informed by such instruments as the ICCPR and the American Declaration. The
purpose of these treaties is to bind nations to an international commitment to
further protections of human rights. The United States must honor its role in the
international community by recognizing the human rights standards in our own
country to which we hold other countries accountable.
2002. Should all appeals within the United States justice system fail,
Petitioner intends to bring his claim to the Inter-American Commission on the
basis that the violations appellant has suffered are violations of the American
Declaration of the Rights and Duties of Man.
R.
Execution by Lethal Injection Is Cruel and Unusual Punishment
2003. Exhaustion of the Claim: this Claim Was Fairly Presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXXVI of the Opening Brief, and in Sections XXIII and XXIV of the June
petition for writ of habeas corpus.
1.
Execution by Lethal Injection is Unconstitutional
2004. An execution procedure that involves “the unnecessary and wanton
infliction of pain . . . ,” violates the Eighth Amendment. Gregg, 428 U.S. at 173.
The Eighth Amendment’s prohibition is not static, but is responsive to “evolving
standards of decency,” and “contemporary values concerning the infliction of a
challenged sanction.” Id. Furthermore, the Fourteenth Amendment guarantees
that no person may be deprived of life, liberty, or property without due process of
law. A violation of procedural due process requires a showing of (1) a
constitutionally protected interest in life, liberty, or property; (2) governmental
deprivation of that right; and (3) constitutional inadequacy of tChalleghe
procedures effecting the deprivation. Bank of Jackson County v. Cherry, 980 F.2d
1362, 1366 (11th Cir. 1993). A prisoner sentenced to death has a constitutionally
protected interest in life not extinguished by the conviction and death sentence.
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Ohio Adult Parole Authority v. Woodward, 523 U.S. 272, 281, 118 S. Ct. 1244,
140 L. Ed. 2d 387 (1998).
2005. In Morales v. Tilton, the Honorable Jeremy Fogel, District Judge of
the Northern District of California held that California’s current protocol raised
substantial questions as to whether Petitioner will suffer excessive pain when he
is executed. Morales v. Tilton, Nos. C 06 219 JF RS & C 06 926 JF RS, 415 F.
Supp. 2d 1037 (N.D. Cal. 2007); see Taylor v. Crawford, 457 F.3d 902 (8th Cir.
2006) (remanding cruel and unusual lethal injection claim, brought pursuant to §
1983, to the district court with regard to newly revised protocol); Anderson v.
and holding that death row inmate properly stated claim that lethal injection
procedure, nearly identical to California’s, violated the Eighth Amendment); see
also Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006)
(discussing the viability of lethal injection claims).
2006. In addition, a state court judge has found that the California
Department of Corrections and Rehabilitations (“CDCR”) violated the
Administration Procedures Act when it adopted the lethal injection protocol,
officially known as San Quentin Operational Procedure No. 0-770 (“OP 0-770).
Morales v.CDCR, CV061436, Marin County Superior Court, Order After
Hearing (October 31, 2007). Thus, California is currently enjoined from carrying
out any execution by lethal injection according to 0-770. Id. As a result of the
Morales litigation in state and federal court, California does not currently have in
place a lethal injection procedure.
2007. If and when California enacts a revised protocol for the
administration of lethal injection, the method must adhere to “standards
established under the direction of the Department of Corrections.” Cal. Gov’t
Code § 3604(a). Unless and until such standards have been properly formulated
and implemented, imposition of the lethal injection method would deprive
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appellant of his right to due process of law, threaten him with the infliction of
cruel and unusual punishment, and cannot be imposed as in violation of explicit
state law and the Eighth and Fourteenth Amendment.
2008. Because California has not yet enacted a protocol for executing the
condemned,136 this claim is not ripe. Petitioner raises it to preserve his rights to
federal habeas review.
2.
2009. Petitioner’s rights under the First, Fourth, Fifth, Sixth, Eighth, and
Execution by Lethal Gas Is Unconstitutional
Fourteenth Amendments will be violated because punishment of death may be
inflicted by administering a lethal gas in violation of Petitioner’s constitutional
rights as guaranteed by the Eighth and Fourteenth Amendments.
2010. Justice Stevens, in a dissent joined by Justice Blackmun, “concludes
that execution by cyanide gas is both cruel and unusual, and that it violates
contemporary standards of human decency.” Gomez v. U.S. District Court,
U.S. 653, 658, 112 S. Ct. 1652, 118 L. Ed. 2d 293 (1992).
2011. The Supreme Court has condemned as violative of the Eighth
Amendment all punishment that inflicts torture or a lingering death (In re
Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890)) and
punishment that involve the unnecessary and wanton infliction of pain. Hudson
v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).
2012. The Supreme Court has not confined the prohibition embodied in the
Eighth Amendment to “barbarous” methods that were generally outlawed in the
18th century, but instead has interpreted the Amendment in a flexible and
Because there is no protocol in place, the Supreme Court’s decision in
Baze v. Rees, 128 S. Ct. 1520, 1531 170 L. Ed. 2d 420 (2008) which held that
Kentucky’s particular lethal injection protocol did not pose a “substantial risk of
serious harm,” does not foreclose this claim.
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dynamic manner. Stanford v. Kentucky, 492 U.S. 361, 371, 73 S. Ct. 1077, 97 L.
Ed. 1522 (1953).
2013. Use of lethal gas constitutes a barbaric means of execution that
inflicts unnecessarily cruel and wanton pain and suffering on those subjected to
it. Petitioner’s execution by lethal gas pursuant to his death sentence under the
laws of the State of California would constitute cruel and unusual punishment in
violation of Petitioner’s Eighth Amendment rights.
2014. Administration of a lethal gas was adopted as a means of execution
in California in 1937, replacing death by hanging. The lethal gas used is
hydrogen cyanide.
2015. As administered in the State of California, execution by lethal gas
constitutes torture. Death occurs as a result of asphyxiation. A person subjected
to the administration of hydrogen cyanide gas desperately gasps for air and
chokes as the gas is inhaled. A person forced to breathe hydrogen cyanide gas
does not immediately lose consciousness or die, but suffers a lingering, torturous
death.
2016. Witness accounts of lethal gas executions proves that this barbaric
method of execution inflicts unnecessary and extreme pain.
2017. Death by lethal gas is brutal, agonizing and cruel. It is also unusual
given the infrequency of its use and the virtual unanimous abandonment of it as a
method of execution. Thompson v. Oklahoma, 487 U.S. 815, 822, 108 S. Ct.
2687, 101 L. Ed. 2d 702 (1988).
2018. The overwhelming majority of states with death penalty statutes
have abandoned or rejected the use of lethal gas as a method of execution.
2019. In fact, use of the gas chamber is so aberrational that it must be
considered incompatible with the evolving standards of decency that mark the
progress of a maturing society.
722Page 747 Page ID #:
2020. Petitioner’s execution by lethal gas pursuant to his sentence of death
would constitute cruel and unusual punishment in violation of Petitioner’s Eighth
Amendment rights.
S.
California’s System of Unified Appellate and Postconviction Review is
Unconstitutional
2021. Petitioner has a statutory duty and a constitutional right to appeal his
convictions and death sentence. People v. Sheldon, 7 Cal. 4th at 1139. In a
criminal case, the defendant’s right to assistance of counsel derives from the
Sixth and Fourteenth Amendments to the Constitution of the United States.
Where an indigent defendant has a statutory right to appeal, he or she has a
constitutional right, under the due process and equal protection of the law
provisions of the Fourteenth Amendment, to court-appointed counsel. In re
Smith, 3 Cal. 3d 192, 474 P.2d 969, 90 Cal. Rptr. 1 (1970); Evitts v. Lucey,
U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985), Smith v. Robbins, 528 U.S.
259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
2022. The California Supreme Court requires that ineffective assistance of
counsel claims – including claims of ineffective assistance on appeal – be filed in
a habeas petition. People v. Tello, 15 Cal. 4th 264, 266-67, 933 P.2d 1134,
Cal. Rptr. 2d 437 (1997). Generally, in a capital case the habeas petition must be
filed simultaneously with the appeal to be presumptively timely. The habeas
petition is presumptively timely if filed within 180 days of the due date of the
reply brief. The Court appears to maintain that there is no actual due date for the
filing of a habeas petition. Yet, at least in practice, the petition is “due” within
180 days of the reply because a timeliness default may apply if the petition is
filed after the 180 days. A petitioner who files an untimely petition risks losing
his claims to relief, and, to put it starkly, his life.
2023. Ineffective assistance of appellate counsel claims, however, do not
arise and are not discoverable until after the Court has decided the appeal. Thus,
723Page 748 Page ID #:
there is no appropriate time under the California scheme of capital case review to
raise claims of ineffective assistance of appellate counsel. As a result, the
California scheme of capital case review violates the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments (due process and the equal protection clauses) of the
federal Constitution.
T.
The Trial Court Violated Petitioner’s Constitutional Rights When it
Failed to Instruct the Jury on the Meaning of Life Without Parole
2024. The trial court instructed the jury, in part, that,
It is the law of this state that the penalty for a defendant found
guilty of murder of the first degree shall be death or confinement in
the state prison for life without possibility of parole in any case in
which the special circumstance[s] alleged in this case [have] been
specially found to be true.
(XXX CT 8879 (CALJIC 89.84.) However, it failed to explain significant
language in that instruction: the meaning of “life without the possibility of
parole.” The court should have instructed the jury that Petitioner will remain in
prison for the rest of his life and will not be paroled at any time.
2025. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed.
2d 178 (2001), holds that, where future dangerousness is at issue in a capital
sentencing, due process requires that the jury be informed that a life sentence
carries no possibility of parole. Id. at 51.
2026. The jury in Shafer was told by defense counsel in closing argument
that if they elected to impose a life sentence, Shafer would “die in prison” after
“spending his natural life there.” Shafer, 532 U.S. at 52. Furthermore, the Shafer
jury was instructed that “life imprisonment means until the death of the
defendant.” Id. Nevertheless, the Supreme Court held that neither of these was a
Counsel’s failure to request this instruction was ineffective assistance.
724Page 749 Page ID #:
substitute for an instruction that informed the jury a defendant sentenced to life
imprisonment would not be eligible for any type of parole or early release
program. Id. at 53. Petitioner’s jury was never informed about this fact.
2027. The rationale behind Shafer is that, without such an instruction, the
“jury is likely to speculate unnecessarily on the possibility of early release, and
impose a sentence of death based upon fear rather than reason.” Id. at 53-
(internal quotations omitted). This rationale is based on the fact that
displacement of ‘the longstanding practice of parole availability’
remains a relatively recent development, and ‘common sense tells us
that many jurors might not know whether a life sentence carries with
it the possibility of parole.’
Shafer, 532 U.S. at 52 (citing Simmons v. South Carolina, 512 U.S. 154, 177-78,
114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) (O’Connor, J.)).
2028. A substantial number of death qualified jurors (almost 25%)
erroneously believe that life without parole will allow the parole or judicial
system to release the defendant in less than ten years due to overcrowding and
over 75% believe the literal language of life without parole. See CACJ Forum
Vol. 21, No. 2, pp. 42-45 (1994); see also Haney, Sontag and Costanzo, Deciding
to Take a Life: Capital Juries Sentencting Instructions, and the Jurisprudence of
Death, 50 Journal of Social Sciences, No. 2 (Summer 1994).
2029. The trial court’s failure to inform the jury of all the relevant
information deprived Petitioner of his constitutional rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution.
U.
The Capital Sentencing Scheme Violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments by Permitting Multiple Use of a Single
Felony as the Basis for a First Degree Murder Finding, as a Capital-
Eligibility Factor, and as a Narrowing Factor in Sentencing
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2030. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section XXXI
of the Opening Brief.
2031. The California death penalty statute in effect at the time of
Petitioner’s trial was unconstitutional by allowing the jury to make multiple use
of a single underlying felony. Death-selection was virtually automatic and
mandatory as well as unfair by permitting a capricious infliction of punishment
under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Proffitt v. Florida,
428 U.S. 242; Eddings v. Oklahoma, 455 U.S. at 112.
2032. The state court has rejected these claims previously. In People v.
held that the statute properly narrows the class of death-eligible murders.
However, Sanchez’s reliance on Tuilaepa v. California was misplaced, thus
rendering its opinion unsound and in need of reexamination, because Tuilaepa
did not rule on the question of the constitutionality of the narrowing factors. See
People v. Adcox, 47 Cal. 3d 207, 272, 763 P.2d 906, 253 Cal. Rptr. 55 (1988).
Moreover, in Adcox, the court relied on Lowenfeld v. Phelps, without
appropriately considering that the California capital sentencing scheme differs
significantly from the Louisiana scheme approved in Lowenfeld.
2033. Unlike the procedure approved by the Supreme Court in Lowenfeld,
in California, a single felony, such as burglary charged in Petitioner’s case, was
utilized three times by the jury. Having determined initially the facts underlying
In Louisiana, the legislature has determined by statute which
defendants are death-eligible, and the capital jury applies the narrowing factors to
determine appropriateness of the death penalty. Lowenfeld v. Phelps, 484 U.S. at
246. In California, in contrast, the same jury in this case (1) determined guilt, (2)
determined the existence of death eligibility factors (special circumstances) and
(3) applied the narrowing factors in the penalty trial.
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a felony at guilt trial, the jury was then mandated to make a finding as to the
alleged special circumstance involving the same felony and then, on finding the
truth of the special circumstance, weigh the predicate felony as evidence in
aggravation. Based on the prosecution’s closing argument and the lack of any
clarifying jury instructions, multiple use of a single felony inevitably made death
eligibility and narrowing virtually automatic. See Claim 37, subpart C, supra.
The use of this process in Petitioner’s case precluded a fair and reliable
determination of appropriate punishment in violation of his Fifth, Sixth, Eighth,
and Fourteenth Amendment rights. Caldwell v. Mississippi, 472 U.S. at 341;
Mills v. Maryland, 486 U.S. at 376-77; Johnson v. Mississippi, 486 U.S. at 584-
85.
V.
The Trial Court Erred by Ordering Determinate Sentences to Be
Served Subsequent to Imposition of Death in Violation of Petitioner’s
Rights under the Eighth and Fourteenth Amendments
2034. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXXV of the Opening Brief.
2035. On November 7, 1989, Petitioner was sentenced to a total
determinate term of fifty-nine years and four months on counts 4, 14, 15, 16, 17,
18, 21, 22, 25, 26, 27, 36, and 37. He was sentenced to death on counts 2, 5, 8, 9,
11, 13, 20, 24, 29, 30, 32, and 40. (XXXI CT 9076-78.) The trial court explicitly
ordered the determinate sentence of fifty-nine years and four months to be served
after imposition of the death judgment.
As soon as all appeals have become final, the court orders the
warden and the Department of Corrections not to permit the
defendant to complete the determinate sentence part of this sentence
prior to imposing the death penalty in this case. ¶ I don’t believe
that order is necessary. I think the Department of Corrections and
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the Warden of the State of California State Prisons know what their
duties are, but if there is any doubt in your mind, I hope that takes
care of it.
(219 RT 24951-52.)
2036. The prosecution indicated that the determinate sentence should be
stayed pending imposition of the death sentence. (219 RT 24952.) The court
rejected the prosecution’s request. (Id. at 24953.)
2037. The trial court modified the sentence nunc pro tunc on November
15, 1989, and ordered as follows: “The sentences on the noncapital counts are
ordered to be consecutive to, and to be served subsequent to, and only upon
completion of, the death sentences enumerated above : . . .” (XXXI CT 9074.)
2038. The trial court erred in ordering the determinate sentence to be
served subsequent to the death sentence. The trial court imposed a death sentence
and ordered that the determinate sentence be served subsequent to the death
sentence. The trial court thus violated the principles under Penal Code §
prohibiting multiple punishment.
2039. When a greater sentence is imposed upon a defendant, the lesser
sentence must be stayed pursuant to the bar against multiple punishment under
§ 654. In People v. Price, 1 Cal. 4th 324, 821 P.2d 610, 3 Cal. Rptr. 2d
(1991), the court held that the defendant was required to serve the sentence
imposed in a separate, noncapital murder only in the event his death sentence was
set aside. Id. at 492. In People v. Thompson, 7 Cal. App. 4th 1966, 10 Cal. Rptr.
2d 15 (1992), the court held that, where the trial court had the discretion to
impose the greater punishment of life imprisonment without the possibility of
parole or 25-years-to-life, the trial court was required to impose only one
punishment and stay the other punishment under§ 654.
2040. Under Penal Code § 669, Petitioner was entitled to be sentenced to
serve the determinate sentence first. Section 669 states, in part, that “[w]henever
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a person committed to prison on a life sentence which is ordered to run
consecutive to any determinate term of imprisonment . . . the determinate term of
imprisonment shall be served first . . . .” In People v. Grimble, 116 Cal. App. 3d
678, 172 Cal. Rptr. 362 (1981), the court held that the determinate term must be
served prior to the life term:
We construe Penal Code § 669 to mean that whenever a person is
sentenced to prison on a life sentence and any other term of
imprisonment for a felony conviction, and the sentences are to run
consecutively, the sentence must provide that the determinate term
of imprisonment shall be served first and the life sentence shall be
consecutive to the determinate term, and not vice versa.
Id. at 684-85.
2041. Although the death sentence imposed here was not a life term in the
ordinary sense, it was analogous to an indeterminate sentence under Penal Code
§ 1168. See, e.g., People v. Hardy, 73 Cal. App. 4th 1429, 1433-34, 87 Cal. Rptr.
2d 279 (1999) (a doubled sentence of life imprisonment without the possibility of
parole is consistent with § 669).) The sentence thus was the functional equivalent
of a life sentence in that Petitioner was sentenced to spend the rest of his life in
prison. The trial court thus erred in ruling that the death sentence must be carried
out before the determinate sentence of 59 years and 4 months could be served.
Both the intent and reasoning of § 669 preclude such a sentence. People v.
Grimble, 116 Cal. App. 3d at 684-85.
2042. The trial court was required to sentence Petitioner in accordance
with the constitutional protections afforded him under the Eighth and Fourteenth
Amendments. The trial court’s error in ordering the determinate term to be
served subsequent to the death sentence violated Petitioner’s rights under the
Eighth and Fourteenth Amendments. See Fetterly v. Paskett, 997 F.2d 1295 (9th
Cir. 1993) (misapplication of sentencing statute in imposition of death sentence
729Page 754 Page ID #:
implicates Eighth and Fourteenth Amendments). Thus, the trial court’s order in
this case should be modified accordingly.
W.
Ineffective Assistance of Counsel on Appeal and in Postconviction
Proceedings
2043. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in Section XXV of the June 2004 Petition for Writ of
Habeas Corpus.
2044. Petitioner has been denied effective assistance of counsel on appeal
and in state post-conviction proceedings in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments. Petitioner has also been denied his rights to
competent representation on appeal and in post-conviction proceedings.
2045. The performance of appellate counsel was below reasonable
standards of representation. To the extent counsel’s performance in appellate and
postconviction proceedings in any way limits the consideration of the claims in
this petition, Petitioner has been substantially prejudiced.
X.
The Impact of the Constitutional Violations Regarding the Penalty
Phase Rendered the Sentencing Determination Constitutionally
Unreliable
2046. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXVII of the Opening Brief.
2047. The court instructed the jury according to the standard language in
CALJIC No. 8.85 to “consider all of the evidence which has been received during
any part of the trial of this case, except as you may be hereafter instructed.” (
RT 24870; XXX CT 8881.) By this instruction, the jury was required to take into
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consideration all of the evidence admitted in the guilt trial. It is presumed that the
jury followed the court’s instructions. People v. Bonin, 46 Cal. 3d at 699; People
v. Mickey, 54 Cal. 3d 612, 689 n.17, 818 P.2d 84, 286 Cal. Rptr. 801 (1991).
2048. Among the evidence considered by the jury in the penalty trial and
previously admitted during the guilt trial, was inflammatory evidence in the joint
trial of fifteen unrelated incidents. See Claim 10, supra. There was a prejudicial
spillover effect of this evidence that carried over to the penalty trial. See Claim
30, supra. The jury was also permitted to consider Petitioner’s shackling and his
refusal to remove his sunglasses at trial. See Claims 17 and 19, supra.
2049. In addition, other errors committed at the guilt trial, even if harmless
as to the determination of guilt, were considered by the jury in its penalty
determination.
2050. The California Supreme Court has expressly recognized that
evidence which may otherwise not affect the guilt determination can have a
prejudicial impact during penalty trial. As noted by the court:
Conceivably, an error that we would hold nonprejudicial on the guilt
trial, if a similar error were committed on the penalty trial, could be
prejudicial. Where, as here, the evidence of guilt is overwhelming,
even serious error cannot be said to be such as would, in reasonable
probability, have altered the balance between conviction and
acquittal. But in determining the issue of penalty, the jury, in
deciding between life imprisonment and death, may be swayed one
way or another by any piece of evidence. If any substantial piece or
part of that evidence was inadmissible, or if any misconduct or other
error occurred, particularly where, as here, the inadmissible
evidence, the misconduct and other errors directly related to the
character of appellant, the appellate court by no reasoning process
731Page 756 Page ID #:
can ascertain whether there is a “reasonable probability” that a
different result would have been reached in the absence of error.
People v. Hamilton, 60 Cal. 2d 105, 136-37, 383 P.2d 412, 32 Cal. Rptr.
(1963); see also People v. Brown, 46 Cal. 3d at 466.
2051. Guilt trial errors affected the jury’s determination of penalty and
detracted from its consideration of any lingering doubt in determining the proper
punishment. By definition, guilt phase errors deemed harmless beyond a
reasonable doubt do not erode confidence in the verdict’s factual foundation.
Lingering doubt based on any residual disbelief concerning evidence of
Petitioner’s involvement which remained after the reasonable doubt standard had
been satisfied, however, had continued vitality during the penalty trial
particularly as Petitioner presented no mitigation evidence. Therefore, even
harmless guilt phase errors may undermine or taint constitutionally-rooted
penalty determinations. The previously enumerated guilt phase errors in this case
had a significant impact on the jury’s penalty determination.
2052. The jury was likely swayed by the prejudicial spillover effect of
inflammatory evidence erroneously admitted in the joint trial, Petitioner’s
shackling at trial, and instructional errors. Given the substantial nature of the trial
court errors in the guilt trial, coupled with Petitioner’s waiver of mitigation
evidence in the penalty trial, there is a “reasonable probability” that a different
result would have occurred in the absence of the errors. Hamilton, 60 Cal. 2d at
137.
2053. Improper consideration by the jury of guilt phase errors during the
penalty trial violated Petitioner’s right to due process of law and a fair trial under
the Fifth and Sixth Amendments. Washington v. Texas. Improper consideration
of prejudicial evidence also violated Petitioner’s rights to a reliable determination
of sentence under the Eighth and Fourteenth Amendments. Caldwell v.
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Mississippi. In light of the serious nature of the guilt phase errors, it cannot be
said that the evidence had no effect on the penalty determination by the jury. Id.
CLAIM 42:
PETITIONER’S CONVICTIONS AND SENTENCES MUST
BE REVERSED BECAUSE OF THE CUMULATIVE EFFECT
OF ALL THE ERRORS AND CONSTITUTIONAL
VIOLATIONS ALLEGED IN THIS PETITION; THE
CUMULATIVE EFFECT OF GUILT PHASE AND PENALTY
PHASE ERRORS WAS PREJUDICIAL
2054. Exhaustion of the claim: This claim was fairly presented to the
California Supreme Court in the direct appeal. It was presented in Section
XXXIV of the opening appeal brief, and in Section XXI of the June 2004 petition
for writ of habeas corpus.
2055. In support of this claim, Petitioner alleges the following facts,
among others to be presented after full discovery, investigation, adequate
funding, access to this Court’s subpoena power, and an evidentiary hearing.
2056. Petitioner’s confinement is illegal and unconstitutional under the
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because the errors
complained of in this petition compound one another, resulting in a trial that was
fundamentally unfair and in imposition of cruel and unusual punishment.
2057. All other allegations and supporting exhibits are incorporated into
this claim by specific reference.
2058. Each of the specific allegations of constitutional error in each claim
and sub-claim of this petition requires the issuance of a writ of habeas corpus.
Assuming arguendo that the Court finds that the individual allegations are, in and
of themselves, insufficient to justify relief, the cumulative effect of the errors
demonstrated by this petition and the briefing submitted in Petitioner’s Automatic
Appeal (No. S012944) compels reversal of the judgment and issuance of the writ.
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When all of the errors and constitutional violations are considered together, it is
clear that Petitioner has been convicted and sentenced to death in violation of his
basic human and constitutional right to a fundamentally fair and accurate trial,
and his right to an accurate and reliable penalty determination, in violation of the
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
2059. Petitioner hereby incorporates by specific reference the record on
appeal, and each of the claims and arguments raised in his Opening Brief and
Reply Brief in his related automatic appeal (No. S012944) and any appendices
and exhibits referred to therein as if fully set forth in this paragraph.
Alternatively, Petitioner requests that the Court take judicial notice of the same.
2060. Petitioner’s convictions, sentences, and confinement were obtained
as the result of serious errors constituting multiple violations of his fundamental
constitutional rights at every phase of his trial, from the unfair and discriminatory
decision to charge and prosecute him, prosecutorial misconduct, the presentation
of inaccurate, incomplete and unreliable evidence in the guilt phase, and
culminating in a sentencing phase, in which no evidence of his character,
background, and mental illness was presented, and was fatally flawed by gross
prosecutorial misconduct. Through it all, Petitioner’s trial counsel were so
ineffective and incompetent that they consistently provided grossly ineffective
representation and failed to protect his fundamental rights.
2061. Each of the specific allegations of error and constitutional violation
presented in the instant petition, whether or not it justifies reversal or issuance of
the writ standing alone, must be considered in the context of all the other such
allegations set forth in the petition. As the Ninth Circuit stated recently,
[T]rial errors are more likely to be prejudicial to a defendant – i.e.,
not harmless – when the government’s case on a critical element is
weak. [citation] Accordingly, in determining whether the combined
effect of multiple errors rendered a criminal defense ‘far less
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persuasive’ and had a ‘substantial and injurious effect or influence’
on the jury’s verdict, the overall strength of the prosecution’s case
must be considered because ‘a verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.’
Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (quoting Strickland v.
Washington, 466 U.S. at 696). As explained throughout this Petition, the
prosecution’s case against Petitioner, largely unchallenged by ineffective counsel,
was insufficient and circumstantial.
2062. The prejudicial impact of each of the specific allegations of
constitutional error presented in this petition and in the direct appeal must be
analyzed within the overall context of the evidence introduced against Petitioner
at trial. No single allegation of constitutional error is severable from any other
allegation set forth in this petition and/or in Petitioner’s automatic appeal. “In
other words, a column of errors may sometimes have a logarithmic effect,
producing a total impact greater than the arithmetic sum of its constituent parts.”
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993). Where, as here,
“the combined effect of multiple trial errors” give rise to a due process violation,
even though “each error considered individually would not require reversal.”
Parle v. Runnels, 505 F.3d at 928 (citing Donnelly, 416 U.S. at 643; Chambers,
410 U.S. at 290 n.3, 298, 302-03); United States v. Frederick, 78 F.3d 1370,
(9th Cir. 1996) (“Where, as here, there are a number of errors at trial, ‘a
balkanized, issue-by-issue harmless error review’ is far less effective than
analyzing the overall effect of all the errors in the context of the evidence
introduced at trial against the defendant.”); Taylor v. Kentucky, 436 U.S. 478,
487-88, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).
2063. Justice demands that Petitioner’s convictions and sentences, and
especially his convictions for capital murder and his sentence of death, must be
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reversed because the cumulative effect of all the errors and violations alleged in
the present petition “was so prejudicial as to strike at the fundamental fairness of
the trial.” United States v. Parker, 997 F.2d 219, 222 (6th Cir. 1993) (citation
omitted); see also Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (inflammatory
statements during argument, taken together, denied defendant a fair trial); United
States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (cumulative effect of errors
deprived defendant of fair trial).
2064. This is also true of state law violations which may not independently
rise to the level of a federal constitutional violation. See, e.g., Barclay v. Florida,
463 U.S. 936, 951, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983). The cumulative
effect of state law errors in this case resulted in the denial of fundamental fairness
and violate due process and equal protection guarantees under the Fourteenth
Amendment. See Hicks v. Oklahoma, 447 U.S. at 346; Walker v. Engle, 703 F.2d
959, 962 (6th. Cir. 1983).
2065. The cumulative weight of the guilt phase errors and penalty trial
errors was prejudicial to Petitioner. As demonstrated elsewhere in this Petition
and in the opening brief with respect to various guilt phase errors, Petitioner’s
rights were violated under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
See Hicks v. Oklahoma, 447 U.S. at 346. In the penalty trial, Petitioner was
deprived of a fair and reliable determination of penalty under the Fifth, Sixth,
Eighth, and Fourteenth Amendments. Eddings v. Oklahoma, 455 U.S. at 112;
Johnson v. Mississippi, 486 U.S. at 584. Together, the cumulative effect of the
errors was prejudicial.
2066. It is both reasonably probable and likely that the jury’s penalty
determination was adversely affected by the cumulative errors. In the absence of
the errors, the outcome could have been more favorable to Petitioner. It certainly
cannot be said that the errors had “no effect” on this jury’s penalty verdict.
Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 263, 86 L. Ed. 231 (1985). In
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light of the cumulative effect of all the errors and constitutional violations that
occurred over the course of the proceedings in Petitioner’s case, the writ should
issue to prevent a fundamental miscarriage of justice.
2067. The foregoing violations of Petitioner’s constitutional rights, taken
singly or in combination with the other errors alleged in the Petition, constitute
structural error and warrant the granting of this Petition without any
determination of whether the violations substantially affected or influenced the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
doctrine applies to this claim, the foregoing constitutional violations, singly and
in combination with the other errors alleged in this Petition, so infected the
integrity of the proceedings that the error cannot be deemed harmless. The
foregoing violations of Petitioner’s rights had a substantial and injurious effect
or influence on Petitioner’s convictions and sentences, rendering them
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
637-38.
X.
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays that this Court:
2068. Permit Petitioner, who is indigent, to proceed without prepayment of
costs or fees;
2069. Grant Petitioner the authority to obtain subpoenas in forma pauperis
for witnesses and documents necessary to prove the facts alleged in this Petition;
2070. Grant Petitioner and his counsel the right to conduct discovery,
including the right to take depositions, request admissions, and propound
interrogatories, as well as the means to preserve the testimony of witnesses;
2071. Require Respondent to bring forth the entire state court records in
the following cases so that this Court can review those parts of the record that are
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relevant to the issues and defenses raised in this proceeding: People v. Richard
Munoz Ramirez, Case No. S012944, and In Re Ramirez, Case No. S125755.
2072. Order respondent to show cause why Petitioner is not entitled to the
relief sought;
2073. Permit Petitioner to amend this Petition to allege any other basis for
his unconstitutional confinement as it is discovered or becomes ripe for federal
habeas review;
2074. Conduct an evidentiary hearing at which proof may be offered
concerning all of the allegations in this Petition;
2075. Issue a writ of habeas corpus to have Petitioner brought before this
Court to the end that he might be discharged from his unconstitutional
confinement and restraint and/or relieved of his unconstitutional sentences,
including the sentence of death, imposed in Los Angeles County Superior Court
Case No. A771272; and,
2076. Grant such other relief as this Court may deem appropriate.
Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender
DATED: December 17,
By /s/ Sean J. Bolser
SEAN J. BOLSER
DAISY BYGRAVE
CALLIE GLANTON STEELE
Deputy Federal Public Defenders
Counsel for Petitioner
Richard Munoz Ramirez
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XI.
VERIFICATION
I, Sean J. Bolser, declare as follows:
1.
I am a Deputy Federal Public Defender in the Central District of
California. I represent Richard M. Ramirez in his federal habeas corpus
proceeding, Richard Munoz Ramirez v. Ayers, et al., CV 07-8310-JVS (C.D.
Cal.).
2.
Petitioner is confined and restrained of his liberty at San Quentin
State Prison, San Quentin, California. I make this verification on Petitioner’s
behalf because these matters are more within my knowledge than his, and
because he is incarcerated in a county different from my office. I have read this
Petition and know the contents of the Petition to be true.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 17th day of December 2008, at Los Angeles, California.
/s/ Sean J. Bolser
Sean J. Bolser
Deputy Federal Public Defender
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PROOF OF SERVICE
I, the undersigned, declare that I am a resident or employed in Los Angeles
County, California; that my business address is the Office of the Federal Public
Defender, 321 East 2nd Street, Los Angeles, California 90012-4202; that I am
over the age of eighteen years; that I am not a party to the above-entitled action;
that I am employed by the Federal Public Defender for the Central District of
California, who is a member of the Bar of the United States District Court for the
Central District of California, and at whose direction I served the Petition for
Writ of Habeas Corpus and Exhibits in Support of Petition for Writ of
Habeas Corpus (Exhibits 56, 60, 71-129), by hand-delivery addressed as
follows:
Death Penalty Law Clerk
U. S. Courthouse, Room 312 N. Spring Street
Los Angeles, CA This proof of service is executed at Los Angeles, California, on December
17, 2008.
I declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge.
/s/ Dolores Coultas
DOLORES COULTAS
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SEAN K. KENNEDY (145632)
(E-mail: Sean_Kennedy@fd.org)
Federal Public Defender
SEAN J. BOLSER (No. 250241)
(E-Mail: Sean_Bolser@fd.org)
DAISY BYGRAVE (No. 256487)
(E-mail: Daisy_Bygrave@fd.org)
CALLIE GLANTON STEELE (No. 155442)
(E-Mail: Callie_Steele@fd.org)
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California 90012-4202
Telephone (213) 894-2854
Facsimile (213) 894-0081
Attorneys for Petitioner
RICHARD RAMIREZ
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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RICHARD RAMIREZ,
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Petitioner,
v.
Case No. CV 07-8310-JVS
DEATH PENALTY CASE
Petition for Writ of Habeas Corpus
ROBERT L. AYERS, JR., Warden of (Exhibits filed concurrently)
California State Prison at San Quentin,
et al.,
Respondents.
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The Prosecution’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
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2.
Defense Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461
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3.
The Defense Failed to Competently Challenge the
Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461
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Q.
Trial Counsel Failed to Investigate, Litigate, Object to, Crossexamine or Otherwise Adequately Challenge the Prosecution’s
Evidence in the Uncharged Incident (Burglary) . . . . . . . . . . . . . 463
R.
Failure to Competently Present an Opening Statement . . . . . . . 464
S.
Further Evidence of Failure to Defend Against the Charges . . . 468
T.
Failure to Challenge the Prosecution’s Evidence . . . . . . . . . . . . 469
U.
Failure to Object to the Prosecutor’s Closing Argument . . . . . . 470
V.
Other Guilt Phase Errors Rendered the Guilt Trial
Verdict Unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
CLAIM 18:
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE GUILT
AND PENALTY PHASES: SOCIAL HISTORY AND MENTAL
HEALTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
18
Trial Counsel Failed to Adequately and Competently Investigate,
Develop, and Present Petitioner’s Life History and Evidence of
Petitioner’s Significant Cognitive, Neurological, Psychological,
and Psychiatric Impairments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
19
1.
Family Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
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2.
Experience with Injury, Trauma, and Violence . . . . . . . . 485
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3.
Exposure to Neurotoxins and Other Environmental
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
4.
Petitioner’s Long-Standing History of Neurological,
Cognitive, Psychological, and Psychiatric Impairments . 491
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5.
History of Significant Drug Use from an Early Age . . . . 493
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Petitioner’s Mental State at the Time of the Offenses
and His Arrest and Throughout the Trial Proceedings . . . 494
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A.
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B.
Petitioner Was Prejudiced at Both Phases of His Capital Trial by
Trial Counsel’s Failure to Conduct an Adequate Social History
Investigation, to Present that Information to Appropriate Mental
Health Experts, and to Present to the Jury on Petitioner’s Behalf
All the Evidence that Bore on Petitioner’s Competence to
Stand Trial and to Waive Rights and on Guilt and Penalty . . . . 501
C.
Additional Constitutional Violations
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CLAIM 19:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS WITH RESPECT TO
PETITIONER’S MENTAL COMPETENCY TO WAIVE
PRESENTATION OF MITIGATION EVIDENCE . . . . . . . . . . . . . . . 512
CLAIM 20:
THE TRIAL COURT’S DENIAL OF PETITIONER’S
MOTION TO SEVER UNRELATED INCIDENTS
VIOLATED HIS CONSTITUTIONAL RIGHTS AT
BOTH PHASES OF THE TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
A.
Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
B.
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
CLAIM 21: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION
TO HAVE A JURY DRAWN FROM A REPRESENTATIVE
CROSS-SECTION OF THE COMMUNITY . . . . . . . . . . . . . . . . . . . . 539
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The Los Angeles County Jury Selection Procedures
Violated the “Fair Cross Section” Requirements of the
Sixth Amendment and the Equal Protection Clause of
the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555
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Duren prong one . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
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2.
Duren prong two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
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3.
Duren prong three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560
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A.
B.
The Constitutional Violations Were Prejudicial Per Se . . . . . . . 563
CLAIM 22: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
THE TRIAL COURT UNCONSTITUTIONALLY SHACKLED
PETITIONER THROUGHOUT THE CAPITAL TRIAL . . . . . . . . . . 564
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CLAIM 23: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY ADMITTING
INFLAMMATORY PHOTOGRAPHS . . . . . . . . . . . . . . . . . . . . . . . . 575
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CLAIM 24: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE
JURY THAT PETITIONER’S REFUSAL TO REMOVE HIS
SUNGLASSES WAS EVIDENCE OF CONSCIOUSNESS OF
GUILT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582
CLAIM 25:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REMOVING JUROR ROBERT
LEE DURING DELIBERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586
CLAIM 26:
THE TRIAL COURT’S REFUSAL TO VOIR DIRE THE JURY
AND GRANT MR. RAMIREZ’S MOTION FOR A MISTRIAL
AFTER A JUROR WAS MURDERED DURING TRIAL, AND
TRIAL COUNSEL’S FAILURE TO COMPETENTLY PRESENT
MR. RAMIREZ’S MOTIONS VIOLATED MR. RAMIREZ’S
CONSTITUTIONAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
A.
The Trial Court Violated Petitioner’s Constitutional Rights
by Failing to Grant Counsel’s Motion for a Mistrial and
Immediately Voir Dire the Jury . . . . . . . . . . . . . . . . . . . . . . . . . 598
CLAIM 27:
COUNTS 3 AND 5 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT PETITIONER’S CONVICTIONS OF BURGLARY
AND FIRST-DEGREE FELONY-MURDER . . . . . . . . . . . . . . . . . . . 606
CLAIM 28:
COUNT 5 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE SPECIAL CIRCUMSTANCE FINDING OF
BURGLARY/MURDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610
CLAIM 29: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612
COUNT 6 – THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT PETITIONER’S CONVICTION OF
SECOND-DEGREE MURDER IN THE YU INCIDENT . . . . . . . . . . 612
CLAIM 30: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618
THE PROSECUTION KNOWINGLY AND IN BAD
FAITH PRESENTED UNRELIABLE AND FALSE EVIDENCE . . . 618
CLAIM 31: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624
THE PROSECUTION MISLED THE JURY ABOUT
PETITIONER’S INVOLVEMENT IN THE OFFENSES . . . . . . . . . . 624
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CLAIM 32:
PETITIONER’S CONSTITUTIONAL RIGHTS WERE
VIOLATED BY THE PROSECUTOR’S PREJUDICIAL
MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
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CLAIM 33: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 633
THE GUILT PHASE CUMULATIVE ERRORS
VIOLATED PETITIONER’S RIGHTS UNDER
THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 633
CLAIM 34: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637
THE ABSENCE OF ANY MITIGATING EVIDENCE
RENDERED THE CAPITAL SENTENCING PROCESS
CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF
THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS . . . . 637
CLAIM 35:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO
INSTRUCT THE JURY THAT PETITIONER’S AGE IS
A MITIGATING FACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644
CLAIM 36:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY IN
THE LANGUAGE OF CALJIC NO. 8.85, THUS UNDERMINING
HIS RIGHTS TO A RELIABLE PENALTY DETERMINATION . . . 649
CLAIM 37:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY REGARDING SUFFICIENCY OF MITIGATING
EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654
CLAIM 38:
THE TRIAL COURT VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
THE JURY ON THE MEANING OF LIFE WITHOUT THE
POSSIBILITY OF PAROLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
CLAIM 39:
PETITIONER’S CONSTITUTIONAL RIGHT TO LIMIT THE
AGGRAVATING CIRCUMSTANCES TO SPECIFIC
LEGISLATIVELY-DEFINED FACTORS WAS VIOLATED
BY CALJIC NO. 8.84.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666
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CLAIM 40:
THE DEATH SENTENCE IS DISPROPORTIONATE AND IS
CRUEL AND UNUSUAL PUNISHMENT BECAUSE OF
PETITIONER’S SERIOUS PSYCHIATRIC, PSYCHOLOGICAL,
NEUROCOGNITIVE, NEUROLOGICAL, AND OTHER
IMPAIRMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670
CLAIM 41:
CALIFORNIA’S DEATH PENALTY STATUTE, AS
INTERPRETED BY THE CALIFORNIA SUPREME COURT
AND APPLIED TO PETITIONER, IS CONSTITUTIONALLY
DEFECTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674
A.
The California Death Penalty Statute Fails to Narrow the
Class of Murders Eligible for the Death Penalty. . . . . . . . . . . . . 675
B.
The California Death Penalty Scheme Gives Prosecutors
Unfettered Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678
C.
County-by-County Variation in the Application of the
Death Penalty Violates Petitioner’s Right to Equal Protection . 679
D.
California Fails to Provide Inter-Case Proportionality Review . 680
E.
California’s Scheme Violates Due Process By Allowing the
Jury to Repeatedly Consider the Same Evidence in Aggravation 681
F.
The Penalty Phase Instructions Deprived Petitioner of His
Constitutional Right to an Individualized and Reliable
Sentencing Decision Because They Failed to Designate
Factors as “Aggravating” or “Mitigating” . . . . . . . . . . . . . . . . . 682
G.
The Jury Instructions Failed to Require a Reasonable Doubt
Determination of Aggravating Factors . . . . . . . . . . . . . . . . . . . . 684
H.
The Jury Instructions Failed to Require Unanimity on
Aggravating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686
I.
The Trial Court Failed to Instruct on the Presumption of a
Life Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687
J.
The Jury Instructions Failed to Require Written Findings of
Aggravating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689
K.
The Trial Court Failed to Delete Inapplicable Mitigating
Factors from the Language of CALJIC 8.85 . . . . . . . . . . . . . . . 690
L.
CALJIC’S Requirement that Mitigating Evidence Be
“Extreme” Unconstitutionally Limited the Jury’s
Consideration of Petitioner’s Mitigating Evidence . . . . . . . . . . 690
18
19
20
21
22
23
24
25
26
27
28
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1
TABLE OF CONTENTS
2
3
4
5
6
7
PAGE(S)
M.
The Language of CALJIC No. 8.88 Prevents Proper
Weighing of Aggravating and Mitigating Evidence . . . . . . . . . . 692
N.
The Penalty Phase Instructions Were Unconstitutionally
Vague and Incapable of Being Understood by Jurors . . . . . . . . 693
O.
The California Sentencing Scheme Violates Equal
Protection Because by Denying Procedural Safeguards
to Capital Defendants That Are Afforded to
Non-capital Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694
P.
Carrying out Petitioner’s Death Sentence after Excessive
Pre-execution Delay Would Be Cruel and Unusual
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697
Q.
Imposition of the Death Penalty Violates Petitioner’s Rights
under the Eighth Amendment and International Law . . . . . . . . . 701
R.
Execution by Lethal Injection Is Cruel and Unusual
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
8
9
10
11
12
13
14
1.
Execution by Lethal Injection is Unconstitutional . . . . . . 703
15
2.
Execution by Lethal Gas Is Unconstitutional . . . . . . . . . . 705
16
17
18
19
20
S.
California’s System of Unified Appellate and
Postconviction Review is Unconstitutional . . . . . . . . . . . . . . . . 707
T.
The Trial Court Violated Petitioner’s Constitutional Rights
When it Failed to Instruct the Jury on the Meaning of
Life Without Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708
U.
The Capital Sentencing Scheme Violated the Fifth, Sixth,
Eighth, and Fourteenth Amendments by Permitting Multiple
Use of a Single Felony as the Basis for a First Degree
Murder Finding, as a Capital-Eligibility Factor, and as a
Narrowing Factor in Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . 710
V.
The Trial Court Erred by Ordering Determinate Sentences to
Be Served Subsequent to Imposition of Death in Violation
of Petitioner’s Rights under the Eighth and Fourteenth
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711
W.
Ineffective Assistance of Counsel on Appeal and in
Postconviction Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714
X.
The Impact of the Constitutional Violations Regarding the
Penalty Phase Rendered the Sentencing Determination
Constitutionally Unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715
21
22
23
24
25
26
27
28
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1
2
PAGE(S)
3
6
CLAIM 42:
PETITIONER’S CONVICTIONS AND SENTENCES MUST BE
REVERSED BECAUSE OF THE CUMULATIVE EFFECT OF
ALL THE ERRORS AND CONSTITUTIONAL VIOLATIONS
ALLEGED IN THIS PETITION; THE CUMULATIVE EFFECT
OF GUILT PHASE AND PENALTY PHASE ERRORS WAS
PREJUDICIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
7
X.
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722
8
XI.
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724
4
5
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
I.
2
INTRODUCTION
3
1.
Petitioner Richard Ramirez (“Petitioner”), by and through his
4
counsel, submits this Petition for Writ of Habeas Corpus (the “Petition”) pursuant
5
to 28 U.S.C. § 2241 et seq., and the Local Rules for the United States District
6
Court for the Central District of California. The State of California convicted and
7
sentenced Petitioner to death. Petitioner’s conviction and death sentence must be
8
set aside because they are the result of numerous violations of his constitutional
9
rights. This petition contains both exhausted and unexhausted claims for relief
10
11
and factual allegations in support of those claims.
2.
Petitioner intends to seek a stay of the federal action, pursuant to
12
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), so
13
that he may file and litigate an exhaustion petition with the California Supreme
14
Court, in which he will raise the unexhausted claims for relief and present the
15
new factual allegations in support of claims previously presented to that court.
16
3.
In addition, Petitioner intends to seek a stay of the federal action,
17
pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003),
18
because Petitioner is not presently competent to assist federal habeas counsel. He
19
will further seek equitable tolling with respect to any new claims that he is
20
presently unable to assert as a result of Petitioner’s incompetence.
21
II.
22
VENUE AND INTRADISTRICT ASSIGNMENT
23
4.
Petitioner has properly filed the Petition in this District and Division
24
because Petitioner challenges the lawfulness of a conviction and death sentence
25
imposed in Los Angeles County, California. L.R. 83-17.3(a), 83-17.5(a).
26
27
28
1
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1
III.
2
JURISDICTIONAL ALLEGATIONS
3
5.
Petitioner is a prisoner of the State of California. He is illegally and
4
unconstitutionally confined and restrained of his liberty at the California State
5
Prison at San Quentin, California, by Warden Robert Ayers, Jr., and Matthew
6
Cate, Secretary of the California Department of Corrections and Rehabilitation,
7
pursuant to convictions and death sentences imposed upon him by the Los
8
Angeles County Superior Court.
9
6.
This Court has jurisdiction over this matter pursuant to 28 U.S.C.
10
§ 2241 et seq. Petitioner is in state custody in violation of the Constitution, laws
11
or treaties of the United States, pursuant to a judgment of the State of California.
12
Petitioner makes the following additional jurisdictional allegations:
13
14
15
16
7.
Place of detention: California State Prison at San Quentin, San
Quentin, California.
8.
Name and location of court which entered the judgment of
conviction under attack: Superior Court of Los Angeles County, California.
17
9.
Case number: No. A771272.
18
10.
Length of sentence: Death.
19
11.
Convictions: 12 counts of first degree murder (Penal Code
20
§ 187(a)), one count of second degree murder (§ 187 (a)), five counts of
21
attempted murder (§§ 187, 664), four counts of rape (§ 261, former subd. (2)),
22
three counts of forcible oral copulation (§ 288a, former subd. (c)), four counts of
23
forcible sodomy (§ 286, former subd. (c), and 14 counts of first degree burglary
24
(§ 459). The jury found true allegations of multiple-murder, burglary, rape,
25
forcible sodomy, and, forcible-oral-copulation special circumstances (§ 190.2).
26
12.
Date of conviction: Read and entered on September 20, 1989.
27
13.
Date of sentence: November 7, 1989.
28
14.
Kind of trial: Jury.
2
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1
15.
Did Petitioner testify at trial?: No.
2
12.
Petitioner was represented by counsel at trial.
3
16.
Automatic appeal:
4
a.
Name of Court: Supreme Court of the State of California.
5
b.
Result: Affirmed.
6
c.
Date of result: affirmed on August 7, 2006; rehearing denied
7
8
9
10
11
on September 27, 2006.
d.
Citation or number of opinion: Case No. S012944; 39 Cal.4th
398, 139 P.3d 64, 46 Cal.Rptr.3d 677 (2006).
e.
In summary, the grounds raised in Petitioner’s mandatory
automatic appeal included, but were not limited to:
(1)
12
By permitting two unqualified counsel to represent
13
Petitioner whose appointment would likely result in significant prejudice to him,
14
the trial court denied Petitioner his right to assistance of counsel guaranteed by
15
the Sixth Amendment to the United States Constitution and Article I, § 15 of the
16
California Constitution;
(2)
17
Petitioner was denied the right to conflict-free
18
representation in violation of the Fifth, Sixth, Eighth, and Fourteenth
19
Amendments to the United States Constitution and Article I, § 15 of the
20
California Constitution;
(3)
21
The trial court erred in failing to initiate competency
22
proceedings pursuant to Penal Code §§ 1368(a) and (b); the court’s error also
23
violated Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth
24
Amendments to the United States Constitution;
(4)
25
The trial court erred in denying Petitioner’s motion for
26
change of venue in violation of California Constitution, Article I, § 15, and the
27
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
28
Constitution;
3
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1
(5)
The trial, court erred and abused its discretion in
2
denying Petitioner’s motion to sever unrelated incidents; the error also violated
3
Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
4
the United States Constitution;
5
(6)
The trial court erred in denying Petitioner’s motion for
6
a jury drawn from a representative cross-section of the community in violation of
7
Code of Civil Procedure §§ 197 and 203, California Constitution, Article I, § 16,
8
and the Sixth and Fourteenth Amendments to the United States Constitution;
9
(7)
The trial court erred in denying Petitioner’s motion for
10
sequestered voir dire based on prejudicial pretrial publicity; the trial court’s
11
failure to shield potential jurors or instruct sua sponte regarding pretrial publicity
12
during voir dire violated Petitioner’s rights under the Sixth, Eighth, and
13
Fourteenth Amendment to the United States Constitution;
14
(8)
The trial court erred in violation of the Sixth and
15
Fourteenth Amendments to the United States Constitution in denying Petitioner’s
16
challenge of Robert Domney for cause in Hovey voir dire;
17
(9)
The trial court erred in ordering Petitioner restrained in
18
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
19
States Constitution;
20
21
22
(10) The trial court erred and abused its discretion in
admitting inflammatory photographs of the victims and crime scenes;
(11) The trial court erred in instructing the jury that
23
Petitioner’s refusal to remove his sunglasses was evidence of consciousness of
24
guilt; the error also violated Petitioner’s rights under the Fifth, Sixth, Eighth, and
25
Fourteenth Amendments to the United States Constitution;
26
(12) The trial court erred in removing juror Robert Lee
27
during deliberations in violation of Petitioner’s rights under the Fifth, Sixth,
28
4
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1
Eighth, and Fourteenth Amendments to the United States Constitution; the error
2
was prejudicial per se;
(13) The trial court erred in violation of Petitioner’s rights
3
4
under the Sixth and Fourteenth Amendments to the United States Constitution in
5
denying his request for further inquiry of the jury and his motion for mistrial after
6
a juror was murdered during deliberations;
7
(14) The evidence was insufficient under the Due Process
8
Clause of the Fourteenth Amendment to the United States Constitution and the
9
Due Process Clause of Article I, § 15 of the California Constitution to support
10
Petitioner’s convictions of burglary and first degree felony murder in counts 3
11
and 5;
12
(15) The evidence was insufficient under the Due Process
13
clause of the Fourteenth Amendment to the United States Constitution and the
14
Due Process Clause of Article I, § 15 of the California Constitution to support the
15
special circumstance finding in count 5 of burglary murder pursuant to Penal
16
Code § 190.2(a)(17)(vii);
17
(16) The evidence was insufficient under the Due Process
18
Clause of the Fourteenth Amendment to the United States Constitution and the
19
Due Process Clause of Article I, § 15 of the California Constitution to support
20
Petitioner’s count 6 conviction of second-degree murder in the Yu incident;
21
(17) The guilt phase cumulative errors violated Petitioner’s
22
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
23
States Constitution;
24
(18) Petitioner was deprived of the right to conflict-free
25
representation at the penalty trial in violation of the Sixth and Fourteenth
26
Amendments to the United States Constitution and Article I, § 15 of the
27
California Constitution;
28
5
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(19) The trial court erred in failing to follow procedures
1
2
pursuant to Penal Code § 1368(a) with respect to Petitioner’s mental competency
3
to waive presentation of any mitigation evidence during penalty phase; the
4
court’s error violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth
5
Amendments to the United State Constitution;
(20) The absence of any mitigating evidence rendered the
6
7
capital sentencing process constitutionally unreliable in violation of the Fifth,
8
Eighth, and Fourteenth Amendments to the United States Constitution;
(21) The trial court’s denial of Petitioner’ts severance
9
10
motion created a prejudicial spillover effect during the penalty trial in violation of
11
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
12
Constitution;
13
(22) The trial court’s refusal to instruct the jury as to
14
Petitioner’s age as a mitigating factor pursuant to Penal Code § 190.3(i) violated
15
Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the
16
United States Constitution;
17
(23) By instructing the jury in the language of CALJIC No.
18
8.85, the trial court erroneously undermined Petitioner’s constitutional rights to a
19
reliable penalty determination in violation of the Fifth, Sixth, Eighth, and
20
Fourteenth Amendments to the United States Constitution;
21
(24) The trial court’s refusal to instruct the jury regarding
22
sufficiency of mitigating evidence violated the Fifth, Sixth, Eighth, and
23
Fourteenth Amendments to the United States Constitution;
24
(25) By refusing to instruct the jury on the meaning of life
25
without the possibility of parole, the trial court erred in violation of the Fifth,
26
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;
27
28
(26) The directive of CALJIC No. 8.84.1 to the jury to
determine the facts from the evidence received during the entire trial violated
6
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1
Petitioner’s statutory and constitutional rights to limit the aggravating
2
circumstances to specific legislatively-defined factors;
(27) The impact of guilt trial errors on the penalty trial
3
4
rendered the sentencing determination unreliable in violation of the Fifth, Sixth,
5
Eighth, and Fourteenth Amendments to the United States Constitution;
(28) The trial court erred in failing to instruct the jury that a
6
7
verdict of death was the appropriate penalty beyond a reasonable doubt and the
8
absence of a burden of proof at the penalty trial rendered the penalty
9
determination arbitrary and unreliable;
(29) The trial court erred in failing to instruct the jury not to
10
11
double count the special circumstances as separate components of factor (a) of
12
§ 190.3;
(30) The lack of explicit written jury findings on aggravating
13
14
factors deprived Petitioner of a reliable determination of penalty and the right to
15
appellate review in violation of the Fifth, Sixth, Eighth, and Fourteenth
16
Amendments to the United States Constitution;
(31) The California capital sentencing scheme in effect at the
17
18
time of Petitioner’s trial violated the Fifth, Sixth, Eighth, and Fourteenth
19
Amendments to the United States Constitution by permitting multiple use of a
20
single felony as the basis for a first degree murder finding as a capital-eligibility
21
factor and as a narrowing factor in sentencing;
(32) The California capital sentencing procedure in effect at
22
23
the time of Petitioner’s trial violated the Fifth, Eighth, and Fourteenth
24
Amendments to the United States Constitution because of the virtually unfettered
25
discretion granted to the prosecutor to decide whether Petitioner would be subject
26
to its provisions;
27
28
(33) By failing to narrow the class of death-eligible murders,
the 1978 death penalty statute under which Petitioner was sentenced violates the
7
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1
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
2
Constitution;
(34) The cumulative effect of guilt phase and penalty phase
3
4
errors was prejudicial;
5
(35) The trial court erred in violation of Petitioner’s rights
6
under the Eighth and Fourteenth Amendments to the United States Constitution
7
in ordering determinate sentences to be served subsequent to imposition of death;
8
(36) Methods of execution employed in California violate
9
the Eighth and Fourteenth Amendments to the United States Constitution; and,
(37) Violations of Petitioner’s state and federal
10
11
12
constitutional rights likewise constitute violations of international law.
17.
Petition for Writ of Certiorari (following affirmance):
13
a.
Name of Court: United States Supreme Court.
14
b.
Result: Denied.
15
c.
Date of denial: May 29, 2007.
16
d.
Citation of opinion: No. 06-9529.
17
e.
The questions presented were:
(1)
18
After the United States Supreme Court’s decision in
19
United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409
20
(2006), is a criminal defendant’s Sixth Amendment right to counsel violated by
21
retained counsel’s unqualified representation in a capital case?
(2)
22
Whether California’s death penalty law violates the
23
Fifth, Sixth, and Fourteenth Amendments by permitting the trier of fact to impose
24
a sentence of death without finding the existence of aggravating factors beyond a
25
reasonable doubt?
26
18.
Petition for Writ of Habeas Corpus (following affirmance):
27
a.
Name of Court: Supreme Court for the State of California.
28
b.
Result: Denied.
8
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1
c.
Date of result: December 19, 2007.
2
d.
Citation or number of opinion: In re Ramirez, No. S125755.
3
e.
In summary, the grounds raised in Petitioner’s petition for
4
5
writ of habeas corpus included, but were not limited to:
(1)
Petitioner’s conviction and sentence are
6
unconstitutional because Petitioner was mentally incompetent throughout the
7
legal proceedings below and is currently mentally incompetent;
8
9
10
11
12
(2)
Petitioner’s constitutional rights were violated because
of counsel’s conflicts of interest;
(3)
Petitioner was denied effective assistance of counsel on
the motion for change of venue in violation of his state and federal rights;
(4)
Counsel’s ineffectiveness in failing to properly
13
challenge pretrial and trial identification procedures denied Petitioner a
14
fundamentally fair and reliable trial;
15
(5)
16
involuntarily obtained;
17
(6)
Petitioner’s statements were unreliable and
Petitioner was denied his fundamental right to
18
assistance of counsel due to counsel’s failure to properly challenge the legality of
19
the seizure of evidence;
20
21
22
23
24
(7)
The State knowingly and in bad faith presented
unreliable and false evidence linking Petitioner to the capital crimes;
(8)
The prosecution misled the jury about Petitioner’s
involvement in the offenses;
(9)
Petitioner was deprived of his right to effective
25
assistance of counsel and to a fair and reliable determination of guilt and penalty
26
by trial counsel’s prejudicially deficient performance;
27
28
(10) The State violated Petitioner’s rights by engaging in
prejudicial misconduct at the guilt and penalty trials;
9
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(11) The trial court unconstitutionally and prejudicially
1
2
ordered Petitioner to be shackled throughout the trial;
3
(12) Petitioner received ineffective assistance of counsel at
4
the guilt and penalty trials of his capital trial due to counsel’s failure to conduct
5
an adequate investigation into Petitioner’s social history, background, and
6
evidence of his long-standing mental and organic impairments; to consult and
7
prepare appropriate lay and expert witnesses; and to present this evidence in
8
defense of the guilt charges and in mitigation of penalty;
9
(13) The death sentence is disproportionate and is cruel and
10
unusual punishment because of Petitioner’s serious neurocognitive, neurological,
11
and other impairments;
(14) The California death eligibility process used in this case
12
13
violates the state and federal constitutions;
(15) Petitioner’s convictions and sentences must be reversed
14
15
because of the cumulative effect of all the errors and constitutional violations
16
alleged in this petition;
(16) Carrying out of the death sentence in this case would
17
18
violate the state and federal constitutions;
(17) Petitioner cannot be lawfully executed because the
19
20
method of execution in California is forbidden by state, federal, and international
21
law;
(18) Petitioner’s execution by lethal gas would constitute
22
23
cruel and unusual punishment in violation of Petitioner’s federal and state
24
constitutional rights; and,
(19) Ineffective assistance of counsel on appeal and in post-
25
26
conviction proceedings.
27
19.
Other state proceedings: None.
28
20.
Other federal proceedings: None.
10
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1
IV.
2
SUMMARY OF THE CASE
3
4
A.
Overview
21.
Richard Ramirez (hereafter Petitioner) was born on February 28,
5
1960, in El Paso, Texas, where his parents raised him in a close-knit, bilingual
6
family. In 1984, at the time of the first charged murder, Petitioner was twenty-
7
four years old. Before 1984, his criminal history was a minor misdemeanor
8
record.
9
22.
From the very beginning of trial court proceedings, Petitioner, the
10
so- called “Night Stalker,” repeatedly engaged in bizarre behavior in his jail cell
11
and in the courtroom, for instance, drawing a pentagram on the palm of his hand
12
in blood, and repeatedly shouting “Hail Satan” in public. As set forth infra,
13
despite substantial evidence of Petitioner’s mental problems, the trial court failed
14
to initiate mental competency proceedings pursuant to Penal Code § 1368.1
15
23.
Despite Petitioner’s manifest mental problems and likely mental
16
impairment, the trial court permitted him to retain grossly unqualified counsel
17
and waive significant conflicts of interest. During trial, for example, the court
18
accepted inadequate waivers from Petitioner as to his constitutional right to
19
present a defense to the forty-three-count amended information and to present
20
any mitigating evidence for him at penalty trial.
21
24.
On November 7, 1989, following guilt and penalty jury trials, the
22
Superior Court of Los Angeles County imposed a judgment of death upon
23
Petitioner. A jury convicted petitioner of forty-three counts, including twelve
24
counts of first degree murder (§ 187(a)); one count of second degree murder
25
(§ 187(a)); fourteen counts of first degree burglary (§ 459); five counts of
26
27
1
28
All further statutory references are to the Penal Code, unless otherwise
indicated.
11
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1
attempted murder (§§ 664/187); four counts of forcible rape (§ 261(2)); three
2
counts of forcible oral copulation (§ 288(a)); and four counts of forcible sodomy
3
(§ 286(c). Special circumstances were found true pursuant to § 190.2(a)(17)(vii)
4
(twelve counts of burglary); § 190.2(a)(17)(iii) (two counts of rape);
5
§ 190.2(a)(17)(iv) (two counts of sodomy); § 190.2(a)(17)(vi) (two counts of oral
6
copulation); and, § 190.2(a)(3) (one count of multiple murder). (XXXI CT 9073-
7
75.)2
8
9
10
25.
arose out of fifteen separate incidents that occurred in Los Angeles County as
shown in Table 1.
11
12
13
The murders and related charges of which Petitioner was convicted
Table 1. Counts of Conviction by Date and Victim
Date
June 27-28, 1984
14
15
March 17, 1985
16
17
18
March 17, 1985
March 28, 1985
19
20
21
May 14, 1985
22
23
May 29 - June 1,
24
1985
Count
1
2
3
4
5
6
7
8
9
10
11
12
Charge
§ 459
§ 187(a)
§ 459
§ 664/187
§ 187(a)
§ 187(a)3
§ 459
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 459
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William & Lillie Doi
William Doi
Mabel Bell & Florence Lang
25
26
27
28
2
There are thirty-five volumes in the Clerk’s Transcript, designated I
through XXXV, hereafter referred to as I CT through XXXV CT.
3
Petitioner was convicted of second degree murder in count 6.
12
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1
Date
2
3
4
May 30, 1985
5
6
7
July 2, 1985
8
9
July 5, 1985
10
11
July 7, 1985
12
13
July 7, 1985
14
15
July 20, 1985
16
17
18
July 20, 1985
Count
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Charge
§ 187(a)
§ 664/187
§ 459
§ 261(2)
§ 288(a)(c)
§ 286(c)
§ 459
§ 187(a)
§ 459
§ 664/187
§ 459
§ 187(a)
§ 459
§ 261(2)
§ 286(c)
§ 459
§ 187(a)
§ 187(a)
§ 459
21
22
23
August 6, 1985
32
33
34
35
36
26
27
28
August 8, 1985
37
38
39
40
Whitney & Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 487(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ 459
§ 664/187
§ 664/187
§ 459
§ 187(a)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
24
25
Mary Louise Cannon
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
19
20
Victim
Mabel Bell
Florence Lang
Carol Kyle
13
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1
Date
Count
41
42
43
2
3
4
5
B.
Charge
§ 261(2)
§ 288a(c)
§ 286(c)
Victim
Sakina Abowath
Sakina Abowath
Sakina Abowath
Procedural Background
6
1.
Municipal Court
7
26.
By felony complaint filed September 3, 1985, in the Municipal
8
Court, Los Angeles Judicial District, Los Angeles County, the State charged
9
Petitioner as set forth in Table 2.
10
11
12
Table 2. Charges and Counts of the Felony Complaint
Date
May 9, 1985
13
14
May 14, 1985
15
16
17
18
Count
1
2
3
4
5
6
7
8
Charge
§ 459
§ 211
§ 459
§ 211
§ 261(2)
§ 286(c)
§ 288a(c)
§ 187(a)
Victim
Clara Hadsall
William and Lillie Doi
Lillie Doi
William Doi
19
20
According to a Municipal Court docket entry, the court appointed the Los
21
Angeles County Public Defender to represent Petitioner.4 (XIX CT 5465.)
22
23
24
25
26
27
28
4
The felony complaint filed September 3, 1985, was not part of the
original record on appeal. Subsequent to record certification, Petitioner moved
under Cal. Rule of Court, Rule 12, to augment the record to include the original
felony complaint. On February 13, 2002, the court so ordered. There is no
reporter’s transcript for the hearing held on September 3, 1985. (See affidavit of
court reporter Dan Leddy regarding destruction of his notes, Reporter’s
Transcript (hereafter “RT”) of a February 7, 1986 hearing, following p. 7; see
also VII Supp. CT 166-67 (Order to Prepare Settled Statement); VIII Supp. CT 7
(Objections to Record on Appeal); VIII Supp. CT 15-16 (Declaration of Counsel
14
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1
27.
On filing of the felony complaint, the court continued Petitioner’s
2
arraignment to September 9, 1985. At the hearing on that date, the court again
3
continued the arraignment, to September 27, 1985. (See XVII CT 4967-69; see
4
also XIX CT 5465.)
5
6
28.
On September 17, 1985, the trial court held a hearing with respect to
pretrial publicity. The court ordered the parties and all witnesses not to make or
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Re: Settled Statement).)
The record on appeal was provided to appellate counsel on December 2,
1992. The initial motion to correct the record was filed September 3, 1994.
Petitioner filed a revised request for correction of the record on appeal on April
26, 1996. Both motions were omitted from the augmented record on appeal. On
May 8, 1998, the trial court ordered the record on appeal augmented to include
proceedings not contained in the original record. (RT 3 (May 8, 1998 hearing).)
Thereafter, on March 12, 1999, the trial court ordered correction of the record on
appeal. On June 21, 1999, the court ordered settled statements to be prepared.
(See VII Supp. CT 166-69.) Petitioner filed objections to the record on appeal on
August 19, 1999. Despite an incomplete record, the trial court certified the
record on appeal on August 19, 1999. (See VIII Supp. CT 4-9, 30.)
There are eight Supplemental Clerk’s Transcripts, designated I through
VIII, hereafter referred to as I Supp. CT through VIII Supp. CT.
•
I Supp. CT consists of one volume of additional superior court
records (pages 1 through 104).
•
I Supp. CT consists of eight volumes of sealed records (pages 1
through 2445).
•
II Supp. CT consists of three volumes of discovery filed in the court
by the prosecution (pages 1 through 660).
•
I Supp. CT consists of a master index and fifteen volumes of
confidential § 987.9 (pages 1 through 4223).
•
VI Supp. CT is a one-page volume (page 4919).
•
VI Supp. CT consists of seventeen volumes of juror questionnaires
(pages 1 through 4918).
•
VII Supp. CT is one volume of corrections to the record on appeal
and settled statements of trial counsel (pages 1 through 248).
•
VIII Supp. CT consists of one volume, including settled statements
of trial counsel (pages 1 through 30).
15
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1
authorize public statements concerning evidence in the case. (See XVII
2
CT 4971-78; see also XIX CT 5466-67.)
3
4
29.
The state filed an amended felony complaint on September 26, 1985.
The charges and counts of the amended complaint are set forth in Table 3.
5
Table 3.
6
Date
June 27-28, 1984
7
Counts and Charges of the Amended Complaint Date
8
9
March 17, 1985
10
11
12
13
14
15
16
17
March 28, 1985
18
19
May 9, 1985
20
21
May 14, 1985
22
23
24
25
26
27
May 29 - June 1,
Count
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Charge
§ 459
§ 187(a)
§ 459
§ 664/187
§ 187(a)
§ 187(a)
§ 459
§ 459
§ 207(a)
§ 261(2)
§ 288(b)
§ 459
§ 187(a)
§ 187(a)
§ 459
§ 211
§ 459
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ 211
§ 459
1985
28
16
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Thomas Sandoval
Thomas Sandoval
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
Clara Hadsall
William & Lillie Doi
William Doi
Lillie Doi
Lillie Doi
Lillie Doi
William & Lillie Doi
Mabel Bell & Florence Lang
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1
Date
2
3
4
May 30, 1985
5
6
7
8
June 27, 1985
9
10
11
12
13
14
15
June 28, 1985
July 2, 1985
16
17
July 5, 1985
18
19
July 7, 1985
20
21
July 7, 1985
22
23
24
July 20, 1985
25
26
27
July 20, 1985
Count
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Charge
§ 187 (a)
§ 664/187
§ 459
§ 261(2)
§ 288a(c)
§ 286(c)
§ 211
§ 459
§ 207(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ 211
§ 459
§ 187(a)
§ 459
§ 187(a)
§ 459
§ 664/187
§ 459
§ 187(a)
§ 459
§ 261(2)
§ 286(c)
§ 211
§ 459
§ 187(a)
§ 187(a)
§ 459
Victim
Mabel Bell
Florence Lang
Carol Kyle
[Victim not alleged]
Patti Higgins
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
Khovananth
28
17
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1
Date
2
3
4
5
6
7
8
9
August 6, 1985
Count
53
54
55
56
57
58
59
60
Charge
§ 187(a)
§ 281(2)
§ 286(c)
§ 286(c)
§ 211
Victim
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Chainarong and Somking
§ 286(c)
§ 288(b)
§ 459
Khovananth
[victim not alleged]
[victim not alleged]
Christopher and Virginia
§ 664/187
§ 664/187
§ 459
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
10
11
12
13
14
15
16
August 8, 1985
61
62
63
64
65
66
67
17
18
In the amended felony complaint, the State alleged burglary-murder special
19
circumstances, pursuant to § 190.2(a)(17), in counts 2, 5, 13, 14, 18, 24, 38, 40,
20
44, 50, 51, 53, 64. Multiple-murder special circumstances pursuant to
21
§ 190.2(a)(3) were alleged in counts 2, 5, 6, 13, 14, 18, 24, 38, 40, 44, 50, 51, 53,
22
64. Count 18 also alleged felony-murder special circumstances pursuant to
23
§ 190.2(a)(17) in the commission of robbery, rape, sodomy, and oral copulation.
24
Count 53 alleged additional felony-murder special circumstances, pursuant to
25
§ 190.2(a)(17), in the commission of robbery, rape, sodomy, lewd and lascivious
26
act upon a child under the age of fourteen, and oral copulation. Count 64 alleged
27
additional felony-murder special circumstances, pursuant to § 190.2(a)(17), in the
28
18
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1
commission of robbery, rape, sodomy, and oral copulation. (XVIII CT 5190-273;
2
XIX CT 5468.)5
3
30.
On September 27, 1985, the trial court continued Petitioner’s
4
arraignment on the amended felony complaint to October 9, 1985, and then to
5
October 24, 1985. (XIX CT 5468-69.) On October 24, 1985, the court arraigned
6
Petitioner on the amended complaint. He entered pleas of not guilty to all counts,
7
and he denied all other allegations. He also waived the time for the preliminary
8
hearing. (XVII CT 5017-18.)
9
31.
The court commenced the preliminary hearing on March 3, 1986.
10
(XIX CT 5477.) After twenty-nine days of hearing, the prosecution rested its
11
case on May 6, 1986. Petitioner presented no affirmative evidence. (XIX
12
CT 5527.) The court held Petitioner to answer on fifty of the charges in the
13
amended felony complaint as shown in Table 4.
14
Table 4.
15
16
17
Counts and Charges on Which Petitioner Was Held to
Answer After Preliminary Hearing
Date
June 27-28, 1984
18
19
March 17, 1985
20
21
22
March 28, 1985
23
24
25
May 14, 1985
Count
1
2
3
4
5
6
12
13
14
17
Charge
§ 459
§ 187(a)
§ 459
§ 664/187
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 187(a)
§ 459
Victim
Jennie Vincow
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent & Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William and Lillie Doi
26
27
5
28
Count 68, as set forth in a docket entry of May 6, 1986, inexplicably was
omitted from the amended complaint. (See XVIII CT 5273-74.)
19
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Date
2
3
4
May 29 - June 1,
5
1985
6
7
8
May 30, 1985
9
10
11
12
June 28, 1985
13
14
15
July 2, 1985
July 5, 1985
16
17
July 7, 1985
18
19
July 7, 1985
20
21
22
July 20, 1985
23
24
25
July 20, 1985
Count
18
22
23
24
25
26
27
28
29
30
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Charge
§ 187(a)
§ 211
§ 459
§ 187 (a)
§ 664/187
§ 459
§ 261(2)
§ 288a(c)
§ 286(c)
§ 211
§ 459
§ 187(a)
§ 459
§ 187(a)
§ 459
§ 664/187
§ 459
§ 187(a)
§ 459
§ 261(2)
§ 286(c)
§ 211
§ 459
§ 187(a)
§ 187(a)
§ 459
26
27
28
53
54
§ 187(a)
§ 281(2)
20
Victim
William Doi
William and Lillie Doi
Mabel Bell and Florence
Lang
Mabel Bell
Florence Lang
Carol Kyle
Patti Higgins
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
Khovananth
Chainarong Khovananth
Somkid Khovananth
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1
Date
Count
55
56
57
2
3
4
Charge
§ 286(c)
§ 286(c)
§ 211
Victim
Somkid Khovananth
Somkid Khovananth
Chainarong and Somking
§ 286(c)
§ 288(b)
§ 459
Khovananth
[victim not alleged]
[victim not alleged]
Christopher and Virginia
§ 664/187
§ 664/187
§ 459
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
5
6
7
8
August 6, 1985
9
10
11
August 8, 1985
12
13
14
15
58
59
60
61
62
63
64
65
66
67
16
The court also found sufficient evidence to hold Petitioner to answer on special
17
circumstances alleged pursuant to §§ 190.2(a)(3) (multiple murder), 190.2(a)(14)6
18
(murder especially heinous, atrocious, or cruel), and 190.2(a)(17) (burglary
19
murder) in counts 2, 13, 14, 18, 24, 38, 40, 44, 50, 51, 53, 56. The court found
20
the evidence sufficient to hold Petitioner to answer on special circumstances,
21
alleged pursuant to § 190.2(a)(3), in counts 5 and 6. (XVII CT 4963-65; XVIII
22
CT 5190-276.)
23
32.
The court dismissed counts 7 through 11, 15, 16, 19, 20, 21, 31
24
through 36, 58, and 59 on the Prosecution’s motion. The court dismissed felony-
25
murder special-circumstance allegations in count 18, pursuant to § 190.2(a)(17),
26
27
28
6
According to the September 26, 1985 amended complaint, the State did
not allege special circumstances pursuant to § 190.2(a)(14). The allegations are
not set forth in the information or amended information. See infra.
21
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1
in the commission of rape, sodomy, and oral copulation. (XVII CT 4962-63;
2
XVIII CT 5274.)
3
2.
Superior Court
4
33.
On May 21, 1986, the State filed an information in the Superior
5
Court of Los Angeles County charging Petitioner with forty-five counts of
6
murder and other crimes as shown in Table 5.
7
8
9
Table 5. Counts and Charges of the Information
Date
June 27-28, 1984
10
11
March 17, 1985
12
13
14
March 28, 1985
15
16
17
May 14, 1985
18
19
May 29 - June 1,
20
1985
21
22
May 30, 1985
23
24
25
26
June 28, 1985
27
28
July 2, 1985
Count
1
2
3
4
5
6
7
8
9
10
11
12
Charge
§ 459
§ 187(a)
§ 459
§ 664/187
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 459
Victim
Jennie Vincow
13
14
15
16
17
18
19
20
21
§ 187 (a)
§ 664/187
§ 459
§ 261(2)
§ 288a(c)
§ 286(c)
§ 459
§ 187(a)
§ 459
Mabel Bell
Florence Lang
Carol Kyle
22
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William and Lillie Doi
William Doi
Mabel Bell & Florence Lang
Patti Higgins
Mary Louise Cannon
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1
Date
2
3
July 5, 1985
4
5
6
7
July 7, 1985
July 7, 1985
8
9
July 20, 1985
10
11
12
July 20, 1985
Count
22
23
24
25
26
27
28
29
30
31
32
33
Charge
§ 187(a)
§ 459
§ 664/187
§ 459
§ 187(a)
§ 459
§ 261(2)
§ 286(c)
§ 459
§ 187(a)
§ 187(a)
§ 459
15
16
17
August 6, 1985
34
35
36
37
38
20
21
22
23
24
August 8, 1985
39
40
41
42
43
44
45
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ 459
§ 664/187
§ 664/187
§ 459
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
Sakina Abowath
18
19
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
13
14
Victim
25
26
The State alleged burglary-murder special circumstances, pursuant to
27
§ 190.2(a)(17), in counts 2, 5, 8, 9, 11, 13, 20, 22, 26, 31, 32, 34, and 42.
28
Multiple-murder special circumstances, pursuant to § 190.2(a)(3), were alleged in
23
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1
counts 2, 5, 6, 8, 9, 11, 13, 20, 22, 26, 31, 32, 34, and 42. Counts 34 and 42 also
2
alleged felony-murder special circumstances, pursuant to § 190.2(a)(17), in the
3
commission of rape, sodomy, and oral copulation. (XVIII CT 5277-324.) On
4
May 21, 1985, Petitioner entered pleas of not guilty to all charges, and he denied
5
all other allegations. (XI CT 6235; A-1 RT–A-3 RT.)7
6
34.
At the next hearing, held on June 17, 1986, the court set a trial date
7
for September 2, 1986. Petitioner waived time to that date. (1 RT 17-19.) The
8
court ordered pretrial motions to be heard on August 1, 1986. (Id. at 21-22.)
9
35.
The court conducted hearings with respect to pretrial motions for
10
change of venue,8 suppression of identification evidence,9 suppression of
11
evidence pursuant to § 1538.5,10 exclusion of Petitioner’s statements,11 and
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
The Reporter’s Transcripts are hereafter designated A-1 RT through 219
RT. As a result of record correction proceedings, there are unmarked transcripts
for trial court hearings held on October 22, 1985 (pages 1 through 64), and
February 7, 1986 (pages 1 through 7).
8
See XXII CT 6439, 6485, 6486, 6491, 6494, 6530, 6538, 6547, 6578,
6580; XXIII CT 6581-609. The court denied the motion on January 9, 1987. (Id.
at 6610.)
9
See XXIII CT 6625-52, 6656-67, 6694, 6696. The court denied the
motion on April 7, 1987. (Id. at 6724.)
10
See XXIII CT 6694, 6699, 6703-10, 6712. The court denied the motion
on March 24, 1987. (Id. at 6722.)
11
See XXIII CT 6713-18. The court granted the motion in part on April 7,
1987, and denied it in part on October 21, 1987. (See 29 RT 2063-65; XXIV
CT 7104.)
24
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1
challenge to the jury composition.12 Petitioner also moved to set aside the
2
information,13 and to sever counts.14
3
36.
On December 9, 1987, the State filed an amended information
4
charging Petitioner with forty-three counts of murder and other crimes as shown
5
in Table 6:
6
7
8
Table 6. Counts and Charge of the Amended Information
Date
June 27-28, 1984
9
10
March 17, 1985
11
12
13
March 17, 1985
March 28, 1985
14
15
16
May 14, 1985
17
18
May 29 - June 1,
19
1985
20
21
Count
1
2
3
4
5
6
7
8
9
10
11
12
Charge
§ 459
§ 187(a)
§ 459
§ 664/187
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 187(a)
§ 459
§ 187(a)
§ 459
Victim
Jennie Vincow
13
14
§ 187 (a)
§ 664/187
Mabel Bell
Florence Lang
Okazaki/Hernandez
Maria Hernandez
Dale Okazaki
Tsai-Lian Yu
Vincent and Maxine Zazzara
Vincent Zazzara
Maxine Zazzara
William & Lillie Doi
William Doi
Mabel Bell & Florence Lang
22
23
24
25
26
27
12
See XXIV CT 7018-23, 7078; XXV CT 7193, 7459; XXVI CT 7650-53,
7659, 7661-62, 7680-82, 7684. The court denied the motion on May 31, 1988.
(XXVI CT 7685.)
13
See XXI CT 6249-62; XXII CT 6319-24; XXIII CT 6614-20. The court
denied the motion on January 21, 1987. (XXIII CT 6621.)
14
28
See XXIV CT 7003-17, 7079-98. The court denied the motion on
November 23, 1987. (XXV CT 7217.)
25
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1
2
Date
May 30, 1985
3
4
5
6
7
July 2, 1985
July 5, 1985
8
9
July 7, 1985
10
11
July 7, 1985
12
13
14
July 20, 1985
15
16
July 20, 1985
Count
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Charge
§ 459
§ 261(2)
§ 288a(c)
§ 286(c)
§ 459
§ 187(a)
§ 459
§ 664/187
§ 459
§ 187(a)
§ 459
§ 261(2)
§ 286(c)
§ 459
§ 187(a)
§ 187(a)
§ 459
17
18
19
20
21
22
August 6, 1985
23
24
25
26
27
28
August 8, 1985
32
33
34
35
36
37
38
39
40
41
42
Victim
Carol Kyle
Mary Louise Cannon
Whitney and Steve Bennett
Whitney Bennett
Joyce Nelson
Sophie Dickman
Maxon and Lela Kneiding
Maxon Kneiding
Lela Kneiding
Chainarong and Somkid
§ 187(a)
§ 261(2)
§ 288a(c)
§ 286(c)
§ 459
Khovananth
Chainarong Khovananth
Somkid Khovananth
Somkid Khovananth
Somkid Khovananth
Christopher and Virginia
§ 664/187
§ 664/187
§ 459
§ 187(a)
§ 261(2)
§ 288a(c)
Petersen
Virginia Petersen
Christopher Petersen
Elyas and Sakina Abowath
Elyas Abowath
Sakina Abowath
Sakina Abowath
26
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1
Date
2
Count
43
Charge
§ 286(c)
Victim
Sakina Abowath
3
The State alleged burglary-murder special circumstances, pursuant to
4
§ 190.2(a)(17), in counts 2, 5, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40. The state
5
alleged additional felony-murder special circumstances, pursuant to
6
§ 190.2(a)(17), in the commission of rape, sodomy, and oral copulation in counts
7
32 and 40. It alleged multiple-murder special circumstances, pursuant to
8
§ 190.2(a)(3), in counts 2, 5, 6, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40. (XIX
9
CT 5372-17.) On December 9, 1987, the court arraigned Petitioner, who pled not
10
11
guilty and denied all allegations. (XXV CT 7222.)
37.
On July 21, 1988, Petitioner filed a motion to close the voir dire
12
proceedings to the press and public. (XXVII CT 7880-95.) On the same date,
13
counsel for The Los Angeles Times filed an opposition to the motion for
14
sequestered voir dire. (Id. at 7833-79.) Thereafter, the trial court heard and
15
denied Petitioner’s motion. The court swore an initial group of prospective
16
jurors, and voir dire commenced. (Id. at 7900.) On July 25, 1988, the court ruled
17
that questionnaires were to be given to all prospective jurors who were ordered to
18
return for Hovey voir dire.15 (Id. at 7907.) Preliminary juror screening continued
19
from July 26 through November 30, 1988. (See Id. at 7908-10, 7912-15, 7919,
20
7921-23, 8058-62, 8065-69; XXVIII CT 8083, 8087-88, 8094, 8098, 8101-02,
21
8106-19, 8121, 8123-26, 8181-87.)
22
38.
On August 17, 1988, Petitioner filed points and authorities in
23
support of an objection to the time limit imposed by the court for trial counsel’s
24
questioning of prospective jurors. (XXVII CT 7924-8052.) On August 18, 1988,
25
the trial court overruled Petitioner’s objection. (See 81 RT 7731.) On September
26
28, 1988, Petitioner filed points and authorities in respect to the admonishment of
27
28
15
Hovey v. Superior Court, 28 Cal.3d 1, 80, 168 Cal.Rptr. 128 (1980).
27
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1
prospective jurors regarding trial counsel’s duty to present mitigating evidence.
2
(XXVIII CT 8089-93.) On the same date, the court modified the statement to
3
inform prospective jurors that the parties would have the opportunity to present
4
evidence at the penalty trial. (94 RT 9821.) On September 28, 1988, Petitioner
5
moved for a mistrial as a result of inconsistent jury instructions read to the
6
various panels of prospective jurors. On the same date, the trial court denied the
7
motion. (XXVIII CT 8094.)
8
39.
On December 12, 1988, Petitioner filed points and authorities in
9
support of his request to voir dire prospective jurors regarding racial bias.
10
(XXVIII CT 8196-97.) On the same date, the court allowed questioning of
11
prospective jurors regarding racial bias. (126 RT 13881-85.) On December 20,
12
1988, the court denied a request to transfer the case to another courtroom with
13
better facilities and for mistrial based on the crowded condition of the courtroom.
14
(XXVIII CT 8204; 128 RT 14154-59.)
15
40.
General voir dire of prospective jurors was conducted on December
16
12, 19 through 22, 1988, and January 4, 1989. (XXVIII CT 8198, 8203-04,
17
8206-08.) On January 9, 1989 the court impaneled the jury. (Id. at 8259.) On
18
January 10, 1989, the court excused two jurors and permitted further voir dire
19
before impaneling the jury again. The court denied Petitioner’s request for
20
additional peremptory challenges. (Id. at 8260.)
21
41.
On January 11, 12, and 19, 1989, the court conducted selection of
22
alternate jurors. (XXVIII CT 8261-62, 8286.) On January 23, 1989, the court
23
seated thirteen alternate jurors. (Id. at 8295.)
24
42.
On January 12, 13, 17, 18, and 19, 1989, the court questioned jurors
25
individually concerning their ability to remain impartial following allegations of
26
juror misconduct. (XXVIII CT 8262, 8263, 8273, 8284, 8286.) The court
27
excused one juror and a prospective juror. (Id. at 8273, 8284.) On January 17,
28
1989, Petitioner filed motions for sequestered hearing and for mistrial. (Id. at
28
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1
8267-72.) On January 18, 1989, Petitioner filed a request to examine jurors
2
regarding racial bias. (Id. at 8276-79.) The court denied the motions and request
3
on January 18, 1989. (Id. at 8284; 138 RT 15590-96.)
4
43.
On January 20, 1989, the prosecution filed motions to dismiss jurors
5
based on defense exclusion of Caucasian and Asian jurors. (XXVIII CT 8287-
6
93.) On the same date, the court denied the motions. (Id. at 8294.)
7
44.
On January 30, 1989, the prosecution made an opening statement.
8
The defense reserved the right to make an opening statement. (XXVIII
9
CT 8299.)
10
45.
After thirty-eight days of trial, the prosecution rested on May 8,
11
1989. (See XXVIII CT 8299, 8315, 8321, 8324, 8327-28, 8331-33, 8336-39,
12
8351, 8353-54, 8360, 8369-71, 8373, 8379-81, 8383; XXIX CT 8384-85, 8390-
13
91, 8393-99, 8412, 8419.) The court twice granted the prosecution permission to
14
reopen its case on May 2, and May 8, 1989. (Id. at 8412, 8419.) The State then
15
rested. On May 8, 1989, Petitioner moved for acquittal on counts 26 and 27
16
pursuant to § 1118.1 (XXVIII CT 8280-82.) The trial court denied Petitioner’s
17
motion as to both counts. (XXIX CT 8419; 178 RT 20785.)
18
46.
On May 9, 1989, the defense made an opening statement. (XXIX
19
CT 8423.) The defense presented its case on May 10, 1989, and rested on June
20
19, 1989. (Id. at 8426, 8429-30, 8433-39, 8442-47.)
21
47.
The prosecution called fourteen witnesses in rebuttal on June 20, 21,
22
22, and 26, 1989. (XXIX CT 8449-51, 8462.) On July 10, 1989, the defense
23
called two witnesses in surrebuttal and rested. (Id. at 8478.)
24
48.
The prosecution commenced closing argument on July 12, 1989, and
25
argued the case on July 13, 17 through 20, 1989. (XXIX CT 8479, 8484, 8490,
26
8492, 8493.) The defense argued the case on July 24 and 25, 1989. On July 25,
27
1989, the prosecution presented final argument. (Id. at 8494, 8497.)
28
29
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49.
1
On July 26, 1989, the court instructed the jury. (XXIX CT 8499-
2
500; 212 RT 24409-79.) The jury commenced deliberations on July 26, 1989,
3
and deliberated thirty-five days. (Id. at 8499, 8610-16, 8618-21, 8632, 8636,
4
8638, 8656, 8660, 8679, 8685; XXX CT 8686-87, 8690-91, 8696, 8703, 8706-12,
5
8714, 8721-22, 8789.) On August 7, 1989, the jury requested read-back of
6
testimony. (XXIX CT 8617.) On August 8, 1989, testimony was read back. (Id.
7
at 8619.) On August 11, 1989, the jury foreman reported that a juror had fallen
8
asleep. The juror was excused and an alternate juror was seated. (See Id. at
9
8622-23, 8625.)
10
50.
On September 20, 1989, the jury returned verdicts, finding Petitioner
11
guilty on all counts, including twelve counts of first degree murder and one count
12
second degree murder as shown in Table 1, supra. (XXX CT 8789.) The jury
13
found true special circumstances, pursuant to § 190.2(a)(17)(vii) (burglary), on
14
counts 2, 5, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40; true pursuant to
15
§ 190.2(a)(17)(iii) (rape) on counts 32 and 40; true pursuant to § 190.2(a)(17)(iv)
16
(sodomy) on counts 32 and 40; true pursuant to § 190.2(a)(17)(vi) (oral
17
copulation) on counts 32 and 40; and, true pursuant to § 190.2(a)(3) (multiple
18
murder). (Id. at 8727-88.)
51.
19
On September 21, 1989, the prosecution filed a second amended
20
information alleging that, with respect to the multiple-murder special
21
circumstance under § 190.2(a)(3), Petitioner had been convicted of twelve counts
22
of first degree murder and one count of second degree murder. (XIX CT 5419-
23
64.)
24
52.
At penalty trial, the prosecution and defense presented no evidence.
25
Both sides argued the case on September 27, 1989. The court instructed the jury.
26
(XXX CT 8878-87, 8898.) The jury deliberated four days. (Id. at 8901, 8903-
27
05.) On October 4, 1989, the jury returned death verdicts with respect to felony-
28
murder special-circumstance findings, pursuant to § 190.2(a)(17)(iii), (iv), (vi),
30
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and (vii), in counts 2, 5, 8, 9, 11, 13, 20, 24, 29, 30, 32, and 40, and multiple-
2
murder special-circumstance findings pursuant to § 190.2(a)(3). (Id. at 8944-54.)
3
53.
On October 31, 1989, the prosecution filed a sentencing
4
memorandum. (XXX CT 8960-74.) The prosecution filed proposed corrections
5
and deletions to the probation report on November 1, 1989. (Id. at 8979-83.) On
6
November 3, 1989, the State filed an application for modification of death
7
verdicts under § 190.4. (XXXI CT 8988-08.) On November 3, 1989, Petitioner
8
moved for continuance of the sentencing hearing, then withdrew the request. (Id.
9
at 8985-87, 9010; 219 RT 24911.)
10
54.
At the hearing on November 7, 1989, the trial court deemed that
11
Petitioner moved for modification of the verdicts.16 (219 RT 24917.) The trial
12
court made specific findings and denied the motion. (XXXI CT 9073; 219
13
RT 24917-926.) The trial court imposed a judgment of death on counts 2, 5, 8,9,
14
11, 13, 20, 24, 29, 30, 32, and 40. (XXXI CT 9073, 9093-101.)
15
55.
Petitioner was sentenced on count 4 (§§ 664/187) to an aggravated
16
term of nine years. A sentence of two years and four months each (or one-third
17
of the middle term of seven years) was imposed on counts 14, 22, 37, and 38.
18
The sentences imposed on counts 14, 15, 16, 17, 18, 21, 22, 25, 26, 27, 36, and
19
37 were ordered served consecutively to the sentence imposed on count 4.17
20
(XXXI CT 9074.) Petitioner was sentenced to one year and four months each (or
21
one-third of the middle term of four years) on counts 15, 21, 25, and 26.
22
Petitioner was sentenced to aggravated terms of eight years each on counts 16,
23
17, 18, 26, 27, 33, 34, 35, 41, 42, and 43. Petitioner was further sentenced to
24
25
26
27
28
16
There is no indication in the appellate record that Petitioner filed a
motion for new trial or motion for modification of the death verdicts.
17
The trial court ordered the sentence of two years and four months
imposed in count 37 stayed, except for four months, pursuant to § 1170.1(a).
(XXXI CT 9074.)
31
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aggravated terms of six years each on counts 1, 3, 7, 10, 12, 19, 23, 28, 31, and
2
39. Petitioner was sentenced to fifteen-years-to-life imprisonment on count 6.
3
The sentences imposed on counts 1, 3, 6, 7, 10, 12, 19, 23, 28, 31, 33, 34, 35, 38,
4
39, 41, 42, and 43 were ordered permanently stayed. All sentences were ordered
5
to be served subsequent to and on completion of the death sentence. (Id. at 9074-
6
75.) On January 2, 1990, Petitioner filed a notice of appeal. (I Supp. CT 102.)
7
An appeal from a judgment of death following a trial by jury is automatic.
8
§§ 1237 and 1239(a).
9
C.
10
Retention of Unqualified Counsel and Conflicts of Interest
56.
On October 9, 1985, the trial court relieved the Public Defender of
11
Los Angeles County and Joseph Gallegos, retained counsel, appeared on
12
Petitioner’s behalf.18 (XIX CT 5469.) Petitioner then sought to substitute
13
retained counsel in place of Gallegos. On October 22, 1985, the trial court
14
conducted a hearing regarding substitution of newly retained counsel, Daniel
15
Hernandez and Arturo Hernandez. The trial court specifically found that neither
16
Daniel Hernandez nor Arturo Hernandez had the necessary required legal
17
experience to be appointed as counsel for Petitioner. It found that they did not
18
19
20
21
22
23
24
25
26
27
28
18
There is no reporter’s transcript for the hearing held on October 9, 1985.
Despite repeated efforts to obtain a complete reporter’s transcript on appeal, the
record is incomplete. (See affidavit of court reporter Elaine Flack dated
September 25, 1996; see also objections to the record on appeal filed by
Petitioner in the trial court on August 19, 1999, VIII Supp. CT 4-9, 13-14.) On
June 21, 1999, the trial court ordered a settled statement to be prepared with
respect to hearings in which the reporter’s transcript had not been prepared or
where the court reporter stated that the notes had been destroyed. (VII Supp.
CT 166-69.) The trial court denied Petitioner’s request for trial judges to prepare
a settled statement. (See Id. at 2; RT 1 (August 6, 1999 hearing).) Trial counsel
prepared a settled statement, and indicated that, on October 9, 1985, the
arraignment was postponed to October 22, 1985. (See declarations of Deputy
District Attorney Philip Halpin and Deputy Public Defender Alan Adashek, VIII
Supp. CT 15-16, 19-21.)
32
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1
meet the necessary qualifications set forth by the Los Angeles County Bar for the
2
indigent criminal defense appointment panel in serious felony cases. (XVII
3
CT 4980-85.)
4
57.
Moreover, the court was aware that both Daniel Hernandez and
5
Arturo Hernandez had been held in contempt of court in Santa Clara County, and
6
a contempt matter involving Daniel Hernandez was currently pending in Santa
7
Clara County. (XVII CT 4986.) The trial court ordered Daniel Hernandez and
8
Arturo Hernandez to disclose to Petitioner all instances of complaints by former
9
clients, any State Bar investigation, citations for contempt of court, and prior
10
allegations of ineffective representation.19 The court took the matter of
11
substitution of retained counsel under submission. (Id. at 4988-89.) The court
12
continued Petitioner’s arraignment to October 24, 1985. (Id. at 4980-90; XIX
13
CT 5469.) The court appointed independent counsel, Victor Chavez, to provide
14
legal advice to Petitioner related to retention of new counsel, but Petitioner
15
refused to meet that attorney. (XVII CT 4988.)
16
58.
On October 24, 1985, Daniel Hernandez and Arturo Hernandez
17
represented to the court that they had two retainer agreements: one with
18
Petitioner’s family, and another with Petitioner. Counsel further indicated that
19
“other parties that have retained us, his family, who are also liable, have acquired
20
some financial responsibility to us due to that contract.” (XVII CT 5004-05.)
21
The court conducted a limited inquiry of Petitioner as to whether he read the
22
contract and understood the terms of the contract. The court informed Petitioner
23
24
25
26
27
28
19
Daniel Hernandez disclosed to the court that he was counsel of record in
the trial court in People v. Ortiz. In People v. Ortiz, 51 Cal.3d 975, 800 P.2d 547,
275 Cal.Rptr. 191 (1990), which involved the same attorneys, the California
Supreme Court held that the trial court should have discharged Daniel Hernandez
and Arturo Hernandez on the defendant’s motion based on their incompetence in
that pending murder case. Their acts of ineffectiveness in Ortiz occurred at the
same time they represented Petitioner. Id., 51 Cal.3d at 980.
33
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1
that there were possible conflicts of interest. The court, however, did not explain
2
to Petitioner the nature or implications of the conflicts. Petitioner indicated that
3
there would not be a conflict. (Id. at 5005-07.)
59.
4
The court addressed Daniel Hernandez and Arturo Hernandez with
5
respect to conflicts of interest, and specifically noted that trial counsel referred to
6
Petitioner’s family as the “client.” The court informed counsel to report to the
7
court “any time there is the slightest possibility that a potential conflict might
8
exist . . . .” (XVII CT 5007.) Counsel indicated that there was no conflict, and
9
they had no knowledge of any potential conflicts. (Id. at 5008.) The trial court
10
permitted Daniel Hernandez and Arturo Hernandez to substitute for Joseph
11
Gallegos and represent Petitioner in all trial proceedings. (Id. at 5004-10, 5014-
12
15.)
13
60.
On December 9, 1987, and July 18, 1988, the prosecutor urged the
14
court to conduct an in camera hearing regarding Petitioner’s relationship with
15
counsel, his right to enter additional pleas, and the “literary rights” retainer
16
agreement. (See 41 RT 2934-35; 64 RT 4764-65.) On each occasion, the court
17
took no further action.
18
61.
Daniel Hernandez and Arturo Hernandez had numerous difficulties
19
with respect to their representation of Petitioner at trial. Arturo Hernandez failed
20
to appear in court at various times during the proceedings. On October 3, 1988,
21
the trial court sent a letter to Arturo Hernandez regarding his absence from trial.
22
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
23
Arturo Hernandez, and ordered it held to October 24, 1988. (Id. at 8111.) On
24
October 25, 1988, Arturo Hernandez appeared in court to explain his absence
25
from trial. Arturo Hernandez moved to be relieved as Petitioner’s counsel due to
26
communication problems with Petitioner. The trial court did not relieve Arturo
27
Hernandez, instead the court did not require Arturo Hernandez to be present at all
28
trial proceedings. (Id. at 8114; see sealed hearing, II Supp. CT VIII 2133-40,
34
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2149-50.) The trial court accepted a waiver from Petitioner with respect to the
2
presence of two attorneys at trial. (Id. at 2154-56, 2159.) Thereafter, Arturo
3
Hernandez did not attend trial proceedings, including voir dire and jury
4
instruction conference.20
5
62.
Having no prior capital trial experience, from September 26, 1988
6
through January 23, 1989, Daniel Hernandez conducted Hovey voir dire without
7
the assistance of co-counsel Arturo Hernandez. (See generally XXVIII CT 8087-
8
95.)
9
63.
Daniel Hernandez did not appear at trial, due to illness, during the
10
prosecution’s case-in-chief, on February 21, 1989. The trial court ordered Daniel
11
Hernandez to inform the court of his medical condition on February 24, 1989.
12
On February 24, 1989, Daniel Hernandez failed to notify the court of his medical
13
condition. On February 21 and February 27, 1989, neither counsel appeared in
14
court; instead, law student Richard Salinas appeared on Petitioner’s behalf. On
15
February 27, 1989, the court continued trial to March 6, 1989. (XXVIII
16
CT 8338-39, 8341.) On March 1, 1989, a hearing was held concerning trial
17
counsel Daniel Hernandez’s health. The court determined that there was no legal
18
cause to delay the trial. (Id. at 8345.) On March 6, 1989, the court appointed
19
attorney Ray Clark pursuant to § 987.2 as co-counsel for Petitioner. (See Id. at
20
8351.)
21
64.
During the prosecutor’s closing argument at the guilt phase, on July
22
13, 1989, both Daniel Hernandez and Arturo Hernandez were absent. The trial
23
court issued a body attachment for Daniel Hernandez and ordered it held to July
24
25
26
27
28
20
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-19, 8121-26,
8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95, 8299,
8315, 8321, 8324, 8327-28, 8331-33, 8336-38, 8345, 8353, 8360, 8369-70, 837981, 8383; XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412, 8419, 8426,
8429, 8434-39, 8442-47, 8449-51, 8476-79.
35
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1
14, 1989. (XXIX CT 8484.) On July 14, 1989, the court quashed the attachment,
2
and ordered Daniel Hernandez to be present at all hearings. On that same date,
3
the court ordered Arturo Hernandez to be present in court on July 17, 1989. (Id.
4
at 8487.) On July 17, 1989, Arturo Hernandez was not present in court. The
5
court issued a body attachment, and held it to August 18, 1989. (Id. at 8490,
6
8628, 8629, 8632.) On August 18, 1989, the court found Arturo Hernandez in
7
contempt for not calling the court on a daily basis, imposed a fine of $100.00, and
8
ordered him to call the court on a daily basis. (Id. at 8638.)
65.
9
On September 14, 1989, the trial court again held Arturo Hernandez
10
in contempt for his failure to contact the court and to pay a fine. The court issued
11
a body attachment, and set bail at $5,000.00. (XXX CT 8712, 8715-17.) On
12
September 15, 1989, Arturo Hernandez contacted the court. (Id. at 8714.)
13
Thereafter, on September 18, 1989, Arturo Hernandez submitted a check for
14
$100.00 to the court and filed a declaration of a legal assistant. (Id. at 8719-20.)
15
That same date, the court recalled the body attachment and sentenced Arturo
16
Hernandez to 24 days in jail or a fine of $2,400.00. Arturo Hernandez was
17
remanded to custody to serve one day in jail for not timely paying a contempt
18
fine of $100.00. (Id. at 8721.) On September 29, 1989, Arturo Hernandez paid a
19
fine for contempt of court in the amount of $2,400.00. (Id. at 8903.)
20
D.
21
Absence of Mental Competency Proceedings
66.
At various stages of the proceedings, the court and counsel raised
22
questions concerning Petitioner’s mental competency to stand trial. On October
23
24, 1985, counsel Joseph Gallegos moved for a psychiatric evaluation of
24
Petitioner to determine his present mental state and his ability to choose his own
25
counsel. Gallegos informed the court that he was gravely concerned about
26
Petitioner’s mental condition and his ability to retain new counsel. (XVII
27
CT 4995.)
28
36
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67.
Although the Public Defender was not then representing Petitioner,
2
the trial court asked the deputy public defender who had represented Petitioner
3
before the substitution of Gallegos about a confidential psychiatric examination
4
of Petitioner which had been approved by the court. Former counsel disclosed to
5
the court that a psychiatrist had recently seen Petitioner for ten to fifteen minutes,
6
but Petitioner refused to talk further with him. Former counsel told the court that
7
the psychiatrist was unable to determine whether Petitioner was mentally
8
competent to assist in his own defense; however, based on his brief meeting with
9
Petitioner, the psychiatrist was of the opinion that Petitioner at most was
10
11
“borderline” competent. (XVII CT 4996-97.)
68.
Attorney Gallegos renewed his request to suspend criminal
12
proceedings pursuant to § 1368 to determine Petitioner’s “ability to make
13
intelligent decisions.” (XVII CT 5002-03.)
14
69.
Instead of addressing the trial court’s concern about their
15
qualifications and the issue of Petitioner’s mental competence, counsel Arturo
16
Hernandez moved to disqualify the court pursuant to Code of Civil Procedure
17
§ 170.6. The court denied the motion as untimely. (XVII CT 4999-01.)
18
70.
Attorney Gallegos renewed his request to suspend criminal
19
proceedings pursuant to § 1368. (XVII CT 5002-03.) The court inquired briefly
20
of Petitioner regarding his education and potential conflicts of interest with
21
respect to the retainer agreements with Daniel Hernandez and Arturo Hernandez.
22
(Id. at 5005-09.) The court denied attorney Gallegos’s request to suspend
23
criminal proceedings under § 1368. (Id. at 5003.) The court then permitted
24
substitution of trial counsel Daniel Hernandez and Arturo Hernandez. (Id. at
25
5009-10, 5014-15.)
26
71.
At the preliminary hearing on April 14, 1986, trial counsel requested
27
an in camera hearing to address Petitioner’s mental status and his continued
28
presence at the preliminary hearing. Without conducting an in camera hearing,
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the trial court simply indicated there was no evidence to conclude Petitioner was
2
unable to understand and participate in the proceedings. (XI CT 3463-65.)21
3
72.
On February 26, 1987, the trial court expressed concern about
4
Petitioner’s mental competency and inquired of trial counsel whether they
5
intended to file a motion pursuant to § 1368. Daniel Hernandez replied:
6
We’ve been considering that from the beginning of course
7
and we haven’t made a decision on that and we are very
8
aware and concerned about that.
9
10
(22 RT 1333-34.)
73.
On March 24, 1987, the trial court again raised the issue of
11
Petitioner’s mental competency and his ability to proceed to trial.
12
The 1368 and related issues I would also like you to
13
consider. I realize that is going to be a very difficult
14
one for you, but I would like you to get working on that
15
as well.
16
17
18
19
(28 RT 2001.)
74.
Trial counsel indicated to the court that they were working on those
issues. (28 RT 2001.)
75.
On April 7, 1987, the court and parties discussed in chambers – in
20
Petitioner’s absence – trial counsel’s concern that “there was some problems with
21
our client.” (See sealed transcript II Supp. CT 16.) Counsel requested to address
22
the court in camera regarding Petitioner’s mental status pursuant to §§ 1368,
23
1017, and 1026. However, the court did not conduct the requested hearing. (Id.
24
at 16-17.)
25
26
27
28
21
Subsequently, the court held an in camera hearing on April 14, 1986.
However, the April 14, 1986 sealed reporter’s transcript is not part of the record
on appeal. (See order to prepare settled statement and declarations of Daniel
Hernandez and Arturo Hernandez, VII Supp. CT 166-69; VIII Supp. CT 22-23.)
38
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76.
1
On July 14, 1988, the court held a hearing regarding Petitioner’s
2
waiver of a plea of not guilty by reason of insanity. The court agreed to hold an
3
in camera hearing on July 18, 1988, to consider the propriety of Petitioner
4
entering a plea of not guilty by reason of insanity. Following the July 18, 1988
5
closed hearing, Petitioner did not enter an additional plea. (See XXVII
6
CT 7830,7832; 63 RT 4723-32.)
77.
7
On numerous occasions during the proceedings, Petitioner’s actions
8
and behavior were extremely bizarre, both in the courtroom and in his jail cell.
9
On one occasion, Petitioner was observed by a jail deputy in his cell sitting on the
10
toilet with blood on his hands drawing a pentagram on the floor. (176 RT 20599-
11
600.) On numerous occasions in the courtroom, Petitioner invoked the words
12
“Hail, Satan,” and displayed a pentagram on the palm of his hand in the
13
courtroom. (See Id. at 20603-04, 20607.) On January 30, 1989, Petitioner
14
appeared at trial in leg shackles. The court accepted a waiver from Petitioner to
15
wear shackles instead of a less obtrusive leg brace. (See II Supp. CT VIII 2282-
16
86.)
17
78.
On May 8, 1989, trial counsel was not prepared to present its case
18
because Petitioner indicated that he did not want any defense. (178 RT 20756-
19
58, 20774.) Later that day, trial counsel Clark indicated that Petitioner “flip-
20
flopped,” and he wanted a limited defense. However, Daniel Hernandez stated
21
that he did not intend to present a complete defense because without Petitioner’s
22
cooperation, it would not be in the client’s best interests. (Id. at 20789-95.)
23
79.
At the conclusion of the May 8, 1989 hearing concerning
24
Petitioner’s waiver of defense at guilt trial, Petitioner had an outburst in the
25
courtroom. He stated, “Media, sensation-seeking parasites.” (See 178
26
RT 20787.) On August 23, 1989, the court informed counsel that Petitioner
27
allegedly made a death threat against the trial court. Petitioner also allegedly
28
stated he would physically resist being brought into the courtroom on August 31,
39
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1989.22 (See II Supp. CT VIII 2433-34.) Petitioner was absent from the
2
courtroom for the guilt verdicts on September 20, 1989. He was housed in a
3
holding cell near the courtroom. (See 216 RT 24711-12.)
4
80.
On November 7, 1989 prior to being sentenced, Petitioner made a
5
bizarre and incoherent statement to the court. (219 RT 24929.)
6
E.
7
The Murder of Juror Singletary
81.
On August 14, 1989, after the jury had commenced deliberations, the
8
court recessed because one of the jurors failed to appear. (XXIX CT 8628.) On
9
August 15, 1989, the court informed the jury of the death of Juror Singletary. An
10
alternate juror was seated; the case was again recessed. (Id. at 8629.) On August
11
16, 1989, Petitioner requested a recess in the deliberations; the court denied the
12
request. The court admonished the jury pursuant to CALJIC 17.51 (substitution
13
of juror after deliberations begun) and deliberations resumed. (Id. at 8624, 8632.)
14
82.
On August 21, 1989, Petitioner filed a request to voir dire jurors
15
regarding their impartiality in view of the murder of Juror Singletary. (XXIX
16
CT 8639-44, 8647-55.) On August 22, 1989, the State moved to deny the
17
motion. (Id. at 8657-59.) Petitioner filed supplemental points and authorities in
18
support of motion on August 23, 1989. (Id. at 8661-64.) That same date,
19
Petitioner also filed moved to disqualify jurors. (Id. at 8667-77.) On August 23,
20
1989, the court continued hearing on the motion to disqualify jurors to August
21
31, 1989. (Id. at 8679.) The prosecution filed its oppositions to the motion for
22
further voir dire on August 24, 1989, and to disqualify jurors and for mistrial on
23
August 31, 1989. (Id. at 8681-83; XXX CT 8692-94.) On August 31, 1989, the
24
court heard argument of counsel and denied Petitioner’s motion to voir dire the
25
jurors. (Id. at 8696.) On September 5, 1989, the trial court denied Petitioner’s
26
motions to disqualify jurors and for mistrial. (Id. at 8703.)
27
28
22
August 31, 1989, was the anniversary of Petitioner’s arrest.
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F.
Waiver of Defense at Penalty Trial
83.
2
On September 27, 1989, the date set for penalty trial, the prosecution
3
rested without presenting any evidence. (XXX CT 8898.) On that same date, the
4
trial court accepted a waiver from Petitioner with respect to presentation of
5
defense evidence in mitigation. (217 RT 24774-76.) Thereafter, the defense
6
rested without presenting any evidence on Petitioner’s behalf. (XXX CT 8898.)
7
The court informed the jury that both sides rested without presenting evidence.
8
(217 RT 24780-81.) No evidence was thus presented on Petitioner’s behalf
9
during penalty trial. There was no evidence about Petitioner’s mental health,
10
mental competency, background, childhood and formative years, physical and
11
mental condition at the time of the crimes charged in this case, or any information
12
or evidence in mitigation to permit the jury to consider a punishment other than
13
death.
14
V.
15
STATEMENT OF FACTS
16
17
A.
Introduction
84.
At the guilt trial, the prosecution’s theory of the case was that
18
Petitioner was the perpetrator in fifteen charged incidents and one uncharged
19
incident. Physical evidence, specifically fingerprint, shoe print, and ballistics,
20
placed Petitioner at many of the crime scenes. In some of the incidents,
21
eyewitness identification and property belonging to the victims that was later
22
recovered from a “fence” linked Petitioner to the crimes.
23
85.
During the prosecution’s case-in-chief, in an effort to abate ongoing
24
conflicts between retained counsel and Petitioner, the court appointed a lawyer
25
wholly unfamiliar with Petitioner’s case to assist the defense. Thereafter,
26
Petitioner presented a limited defense. The defense theory of the case was that
27
physical evidence at the crime scenes tended to exclude Petitioner and that
28
testimony regarding eyewitness identification and recovered property was not
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credible. In two of the incidents, the defense asserted that Petitioner was not the
2
perpetrator and presented an alibi defense.
86.
3
In rebuttal, the prosecution refuted defense expert testimony
4
regarding physical evidence and eyewitness identification. The prosecution also
5
introduced impeachment evidence with respect to a police informer and
6
Petitioner’s alibi witnesses.
7
87.
In surrebuttal, Petitioner introduced further evidence of alibi.
8
88.
At the penalty trial, neither side presented any evidence. In closing
9
argument, the prosecution urged a death verdict because of the brutal nature of
10
the murders. The defense argued that mercy, kindness, and sympathy warranted
11
sparing Petitioner’s life.
12
B.
Guilt Phase
13
1.
Prosecution case
14
89.
The prosecution’s theory was that between June 27, 1984, and
15
August 8, 1985, Petitioner committed numerous felonies and murders in Los
16
Angeles County. In fourteen of the incidents, Petitioner forcibly entered victims’
17
homes and committed crimes. In one incident, a victim was confronted and shot
18
to death while seated in a parked car. In eleven incidents, victims were killed; in
19
four incidents, victims were attacked but not killed.
a.
20
Vincow Incident (June 27 to 28, 1984)
21
Counts 1 and 2 (§ 459, 187(a))
22
i)
23
90.
The death of Jennie Vincow
Jack Vincow lived at 3300 Chapman Street in Los Angeles in the
24
same apartment building as his mother, Jennie Vincow. Her apartment was
25
downstairs; his apartment was upstairs. (142 RT 16198-99.) Jack Vincow
26
ordinarily visited his mother on a daily basis; he also brought her groceries. (Id.
27
at 16217, 16245.) Jack Vincow had last visited his mother for one hour between
28
1:00 and 2:00 p.m. on June 27, 1984. She was alive when he left her apartment.
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(Id. at 16198-99.) Between 1:00 and 2:00 p.m. on June 28, Jack Vincow went to
2
visit his mother. (Id. at 16200.) He found the door to her apartment unlocked.
3
The window screen next to the front door was missing, and the window was
4
open. Inside his mother’s apartment, Jack Vincow found the window screen on
5
the floor. Things were tossed around in the living room. (Id. at 16200-02.) His
6
mother was lying on her bed. When Jack Vincow lifted a blanket to check on
7
her, he saw a gash on her neck; she was dead. Jack Vincow did not notice
8
anything missing. He stayed in the apartment approximately five minutes before
9
calling the police. (Id. at 16204-08, 16227.)
10
91.
During the brief period of time he was in the apartment, Jack
11
Vincow opened the curtains in the living room and kitchen. He did not wash his
12
hands in the bathroom. (142 RT 16228, 16230.) When he left the apartment, he
13
was in a state of shock. He did not see anyone near the apartment. He did not
14
notice the bedroom window. (Id. at 16231.) The previous night, he had been at
15
home, in his own apartment, but did not hear anything. (143 RT 16269.)
16
92.
At approximately 1:40 p.m. on June 28, 1984, Los Angeles Police
17
Lieutenant Buster Altizer was dispatched to Jennie Vincow’s apartment. He
18
arrived shortly before 2:00 p.m. Lieutenant Altizer met Jack Vincow at the
19
scene. Jack reported that he had found his mother dead inside her apartment.
20
(143 RT 16293-96.) Lieutenant Altizer saw a window screen next to the door.
21
He observed blood and water in the bathroom sink. The victim’s body was
22
partially covered by blankets. Jennie Vincow had many stab wounds to the upper
23
chest and neck. Officer Wynn and Detective Castillo arrived shortly thereafter;
24
the scene was cordoned off. (Id. at 16297-300,16306-07, 16320.)
25
93.
Following police investigation at the scene, on several occasions,
26
officers contacted Jack Vincow, but he was difficult to interview. On July 16,
27
1984, Jack Vincow terminated a police interview. Afterward, Detective Castillo
28
followed Jack Vincow to the bank and to his apartment. (143 RT 16337-38.)
43
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94.
Jennie Vincow’s other son, Manny Vincow, was verbally abusive to
2
her. It was rumored that Manny beat his mother when she lived in New York.
3
(142 RT 16211-12.) From 1981 to 1985, Jack did not have any personal contact
4
with Manny. (Id. at 16244.)
ii)
5
6
95.
Fingerprint and other physical evidence at the scene
Detective Castillo noticed that the window screen by the front door
7
had been removed and was on the floor. Lights were on in Jennie Vincow’s
8
apartment and the curtains open. (143 RT 16314-15, 16325.) There were blood
9
spots in the living room, bath and bedroom, in the hallway near the bedroom
10
door, and on a portable car top in the bedroom closet. (Id. at 16325-28.) Samples
11
were taken from different rooms, including the bathroom sink. There were blood
12
smudges in the bathroom sink and on a lamp table. The apartment had been
13
ransacked. Drawers were left open; things were thrown on the floor. There was
14
food rotting in the refrigerator. No weapon was found at the scene. (Id. at
15
16327-30, 16333-37.)
16
96.
Los Angeles Police latent print technician Reynaldo Clara arrived at
17
the scene at approximately 5:00 p.m. on June 28, 1984. Clara lifted five latent
18
fingerprints; four from the aluminum frame of the living room window screen
19
and one from the interior of the living room window. (143 RT 16354-55, 16357-
20
61.) Two of the lifts taken from the screen had identifiable prints. The lifts were
21
taken from different edges but from the same side of the screen. (Id. at 16361-65,
22
16375-76.) Because the screen was found on the floor, Clara could not determine
23
which side of the screen was the exterior side. (Id. at 16375.) The age of the
24
prints on the window frame could not be determined. (Id. at 16392.)
iii)
25
26
97.
Time of death
Los Angeles County Coroner investigator Vide1 Herrera arrived at
27
Jennie Vincow’s apartment at approximately 4:30 p.m. on June 28, 1984. (143
28
RT 16402-04.) Air temperature in the apartment at 4:47 p.m. was 81°F. The
44
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victim’s liver temperature at 4:52 p.m. was 94°F. (Id. at 16406-07.) Rigor was
2
present in the elbows and wrist but not the jaw. Lividity in the back, arms, and
3
neck was consistent with the position of the body. Herrera indicated in his report
4
that Jennie Vincow’s body was warm to the touch. (Id. at 16407-09, 16413-17.)
5
At trial, he was of the opinion that Jennie Vincow may have been sexually
6
assaulted. (Id. at 16405.)
7
98.
Los Angeles County Coroner deputy medical examiner Dr. Joseph
8
Cogan performed an autopsy on Jennie Vincow on June 30, 1984. (144
9
RT 16577-80.) Dr. Cogan found six to seven stab wounds, four of which
10
individually he considered lethal. The jugular vein was severed, the victim had
11
aspirated blood. (Id. at 16581-84.) In Dr. Cogan’s opinion, the assailant faced
12
the victim, and the wounds could have been inflicted while she was on the bed.
13
There were “hilt” marks or contusions on her body from the knife handle as a
14
result of the thrust of the blade. (Id. at 16585-86.)
15
99.
Dr. Cogan estimated the time of death as within two to three hours
16
of 2:00 p.m. on June 28, 1984. (144 RT 16588.) Body temperature alone was
17
not a reliable indicator of the time of Jennie Vincow’s death because other factors
18
had to be taken into account, such as air temperature, covering on the body, and
19
body fat. Dr. Cogan’s original estimated time of death of 2:00 p.m. did not
20
consider Vincow’s weight and the blanket covering her body. (145 RT 16673-
21
76, 16693-99.) In Dr. Cogan’s opinion, body temperature would be useful within
22
the first 24 hours after death before a body cools down. Jennie Vincow’s
23
recorded liver temperature suggested that she was dead only a few hours before
24
her body was found. However, rigor in the body indicated she may have been
25
dead anywhere from six to eight hours up to 72 hours. (144 RT 16587-92; 145
26
RT 16602-03.) Rigor is less reliable than body temperature and occurs more
27
quickly in warm conditions. Lividity becomes fixed within a few hours after
28
death, and blanching occurs only for a few hours after death. (145 RT at 1660245
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04, 16640-44, 16680-83.) Vincow’s body blanched easily, but this condition
2
provided only a rough estimate of the time of her death. (Id. at 16683-84.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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b.
Hernandez and Okazaki Incident (March 17, 1985) Counts
2
3 through 5 (§§ 459, 664/187, 187(a))
3
i)
The shooting of Maria Hernandez
4
100. Maria Hernandez lived in a condominium on Village Lane in
5
Rosemead, Los Angeles County, with her roommate, Dale Okazaki. On March
6
17, 1985, Hernandez came home at about 11:30 p.m. (144 RT 16436-37.) She
7
entered the garage from an alley. An automatic light went on as the garage door
8
opened. Once inside the garage, Hernandez pushed a button to close the garage
9
door, then unlocked a door leading to her residence. She heard a noise and saw a
10
man about twenty-feet away, in the garage. He pointed a gun at her face and
11
approached. Hernandez focused on the gun. She raised her hand as a shield; the
12
garage light went out. She felt a shot to her right hand and fell to the ground.
13
(Id. at 16446-49, 16503.) The gunman opened the door to her residence, pushing
14
her body aside with the door. (Id. at 16449-50.)
15
101. Hernandez got up, ran out of the garage to the alley, then around the
16
complex into the street. She saw the gunman who had shot her leave her home
17
by the front door. (144 RT 16451-55.) The gunman walked toward Hernandez;
18
he raised a gun and pointed it at her. She ran to a car and hid. The gunman
19
pointed the gun at her. Hernandez asked him not to shoot her again. The man
20
lowered the gun and then ran off. (Id. at 16456-57.)
21
ii)
The death of Dale Okazaki
22
102. Maria Hernandez entered her residence and found Dale Okazaki
23
lying face down. She called 911 and stayed on the phone until a Los Angeles
24
County Deputy Sheriff arrived. (144 RT 16458-61.)
25
103. Deputy Sheriff John Powell arrived at approximately 10:54 p.m. He
26
met Hernandez and checked Okazaki for vital signs. (144 RT 16570-72.) He
27
cordoned off the scene and took witness statements. An unidentified person told
28
him that the suspect was a white male. (Id. at 16573-76.)
47
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104. At 12:20 a.m. on March 18, 1985, Detective Gilbert Carrillo
2
responded to the scene. (145 RT 16710-712.) He observed a blue baseball cap
3
with the letters AC/DC on the floor of the garage. (Id. at 16716-17.) He tested
4
the garage door opener at the condominium; eight seconds elapsed from the time
5
the door closed until the light went out. A second garage light above the
6
appliances was not on while he was present. (Id. at 16741-44.)
7
105. Coroner investigator Walter Rainey arrived at the scene early on
8
March 18, 1985. Before Rainey removed the body, he examined Okazaki and
9
observed a bullet wound to the head. The air temperature at 2:10 a.m. was 62°F;
10
11
Okazaki’s liver temperature at 2:20 a.m. was 91°F. (144 RT 16563-68.)
106. Joseph Cogan, M.D., testified about the autopsy performed on Dale
12
Okazaki by James Wegner, M.D., on March 19, 1985. According to Dr.
13
Wegner’s report, the cause of death was a gunshot wound to the head. (145
14
RT 16606-07, 16613-19, 16624.) A small caliber projectile was recovered during
15
autopsy. (Id. at 16630-35.) The report noted stippling to the skin as a result of a
16
close-range shot less than eighteen inches from the barrel of a firearm to the skin.
17
There also was a separate, blunt-force injury to the back of Okazaki’s head. (Id.
18
at 16626-29.)
19
20
iii)
Eyewitness identification
107. Detective Carrillo knew Hernandez’s mother and was a family
21
friend. He first saw Maria Hernandez at the hospital on March 18, 1985. (145
22
RT 16722-23.) Hernandez described the suspect as a light-skinned Caucasian or
23
Mexican male, 5’9” to 6’1” tall, nineteen to twenty-five years old, thin build,
24
wearing a black jacket. She could not recall whether the suspect wore a hat; if he
25
wore a hat it was dark in color. (146 RT 16748-49.)
26
108. Hernandez attended two live line-ups prior to Petitioner’s arrest; one
27
was held in April 1985, and another in July 1985. Hernandez did not identify
28
anyone at either line-up. (145 RT 16736-37.)
48
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109. Carillo showed Hernandez two photo spreads consisting of six
2
photos before a third live line-up on September 5, 1985, in which Petitioner
3
participated. The spreads did not include Petitioner’s photo. (145 RT 16735-36.)
4
Hernandez did not positively identify anyone. In each spread, Hernandez focused
5
on a person who most resembled the suspect. Photographs of the individuals
6
whom Hernandez viewed more closely were not released to the media. (146
7
RT 16783-84, 16786, 16789.)
8
110. Initially, Maria Hernandez saw Petitioner’s picture on television and
9
discussed the case with family and friends. (144 RT 16516-18.) Her mother told
10
her immediately after the shooting that she knew Detective Carillo. (Id. at
11
16542.) At trial, Maria Hernandez did not recall stating at the preliminary
12
examination that Petitioner did not look like the composite drawing she helped to
13
prepare. (Id. at 16543.) The picture of Petitioner that she first saw on television
14
did not look familiar. (Id. at 16545; 146 RT 16761.)
111. Detective Carrillo did not brief Maria Hernandez before Petitioner’s
15
16
September 5, 1985 line-up. He did not tell her that Petitioner would be in the
17
line-up; he already knew she had seen Petitioner on television. (146 RT 16764-
18
67.)
19
112. At trial, Maria Hernandez identified Petitioner as the perpetrator and
20
relied on the fact that he was present in court; however, she could not identify
21
him as the suspect from memory. (144 RT 16520-24, 16526-27, 16546.)
22
Previously, Hernandez had identified Petitioner at the preliminary hearing and at
23
a pretrial hearing on April 7, 1987. (Id. at 16505-10, 16514-15.)
24
25
26
27
28
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c.
1
Yu Incident (March 17, 1985)
2
Count 6 (§ 187(a))
3
i)
4
The struggle between Yu and the suspect
113. On March 17, 1985, Jean Wang spent the entire day with Tsai-Lian
5
Yu. Yu came to Wang’s house in Monterey Park, Los Angeles County, in the
6
morning. She left Wang’s house about 11:00 p.m. (146 RT 16822-25.)
7
114. At approximately 11:00 p.m., Jorge Gallegos was sitting in his truck
8
with his girlfriend on North Alhambra Avenue in Monterey Park. He heard two
9
cars brake twenty-feet behind his truck. He saw both cars in his side and interior
10
mirrors. (146 RT 16840-42.) Gallegos saw a lone female in a yellow car and a
11
man in a blue car. (Id. at 16842-43, 16845, 16884.)
12
115. Gallegos saw the man from the blue car lean into the window of the
13
yellow car and try to pull the woman from her car. Gallegos thought they were
14
having a lovers’ quarrel. He heard someone ask for help. He did not hear any
15
shots. Gallegos noted the license plate number of the blue car as it drove away.
16
Gallegos then saw an Asian female crawling on the ground. Gallegos went to her
17
aid. He remained with the woman until police arrived. (146 RT 16846-48,
18
16867.)
19
116. Joseph Duenas, a cousin of Gallegos’s girlfriend, lived at 524 North
20
Alhambra Avenue. Around 11:15 to 11:30 p.m. on March 17, 1985, he heard a
21
woman scream for help. Duenas went to the balcony. He saw a man and a
22
woman on the curb across the street. (147 RT 16981-84.)
23
117. A yellow car was parked on the street. A dark blue or black Escort-
24
type car was also parked in the middle of the street in front of the yellow car.
25
The woman screamed for help five to seven times and held on to the man’s arm
26
or jacket. The man got into the blue car and left. (147 RT 16984-88.) The
27
woman crawled toward Duenas. He did not hear any gunshots. He brought the
28
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phone to the balcony and called the police. He then went outside and saw the
2
victim lying motionless, face down. (Id. at 16989-92.)
ii)
3
The death of Tsai-Lian Yu
4
118. Monterey Park Police Officer Ron Endo was called to the scene on
5
March 17, 1985, at about 11:45 p.m. He saw Tsai-Lian Yu lying unconscious in
6
the street five to ten feet from a yellow Chevrolet. He attempted to resuscitate
7
her. Yu had an injury to her left shin where her stocking was torn. A torn 20
8
dollar bill and a silver medallion were next to her body. (147 RT 17017-19,
9
17024.)
10
119. Officer Endo observed that the car hood of the yellow car was hot.
11
The headlights and radio were on; the car was in reverse. Its engine was running,
12
and the brake was off. The driver’s door was open. A woman’s shoe was found
13
inside the car; a second shoe was in the street. (147 RT 17021-24, 17027.) He
14
looked for a driver’s license inside a purse in the car. Officer Endo sealed off the
15
area. Emergency personnel removed Yu’s body from the scene at about 12:05
16
a.m. (Id. at 17026, 17029, 17037-38.)
17
120. On March 18, 1985, Garfield Hospital emergency room physician
18
Richard Tenn pronounced Tsai-Lian Yu dead from two gunshot wounds to her
19
chest. (148 RT 17061-62.)
20
121. On March 19, 1985, Susan Selser, M.D., from the coroner’s office,
21
performed an autopsy on the body of Tsai-Lian Yu. (148 RT 17070.) Detective
22
Romero was present during the autopsy. The cause of death was two gunshot
23
wounds. There was evidence of stippling and soot around one of the wounds.
24
The first wound was inflicted by a gunshot fired at close range, perhaps as close
25
as one inch. A projectile was recovered from the first wound. (Id. at 17070-74.)
26
A second gunshot wound to the back was not fired at close range. A projectile
27
was recovered from the second wound. (Id. at 17075-76.) In Dr. Selser’s
28
opinion, the first wound was fatal; the second less so. There were also bruises on
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Yu’s right thigh, left shin, and left heel. Dr. Selser observed evidence of previous
2
wounds to the lower limbs that showed signs of healing as well as recent
3
contusions. (Id. at 17076-78.)
4
5
iii)
Eyewitness identification
122. Gallegos testified with the assistance of a Spanish translator. During
6
his testimony, there was some confusion regarding translation of Gallegos’s
7
testimony with respect to the struggle, identification of the suspect, and position
8
of the two cars. (See 146 RT 16838; 147 RT 16897-905.)
9
123. At trial, Gallegos identified Petitioner as the man he saw at the
10
scene. Petitioner looked different than he appeared at the preliminary hearing;
11
his hair was longer, and he wore dark glasses. (146 RT 16848; 147 RT 16937.)
12
On the night of the incident, Gallegos described the suspect as a 5’6” to 5’8”
13
male and as “Oriental” with wavy hair. (146 RT 16848, 16853-54, 16859-62.)
14
He only saw the man’s profile and back of his head. The man was wearing light
15
blue pants and and a light blue shirt. Gallegos saw a composite drawing and
16
pictures of Petitioner in the newspaper, but he did not attend a line-up. He also
17
identified a police photograph of the suspect’s automobile. (Id. at 16850, 16873-
18
75, 16877, 16879-80, 16886; 147 RT 16936.)
19
124. Joseph Duenas testified that he was unable positively to identify the
20
suspect. He recalled that the male suspect wore jeans, a T-shirt, and jacket. He
21
described the suspect as “Oriental” or Mexican, 5’7” to 5’8” tall, 145 pounds,
22
with light, shaggy long hair. He thought possibly the suspect’s eyes were slanted.
23
(147 RT 16994-95.)
24
25
26
27
28
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d.
1
Zazzara Incident (March 28, 1985)
2
Counts 7 through 9 (§§ 459, 187(a))
3
i)
The deaths of Vincent and Maxine Zazzara
125. Bruno Polo worked for Vincent Zazzara as manager of his pizza
4
5
restaurant in Whittier. He last saw Zazzara on March 27, 1985, at approximately
6
10:00 p.m. (148 RT 17134-35, 17137-17138.) At approximately 8:30 p.m. on
7
March 28, 1985, Polo went to Zazzara’s house to drop off the day’s receipts from
8
the restaurant. He saw the Zazzaras’ two cars at the house. (Id. at 17139-41.)
9
Polo rang the bell; the door was open and the lights were on, but he did not enter.
10
(Id. at 17143-45.) Polo dropped the receipts through the mail slot at the front
11
door. He was at the Zazzara home for about three to four minutes. (Id. at 17145-
12
47.)
13
126. The next morning, Polo returned to the Zazzara home around 10:00
14
a.m. A fellow employee, Al Persisco, followed him to the house. (148
15
RT 17148-49, 17152.) Polo entered the house and saw Zazzara in the television
16
room. Calling out to Zazzara, Polo saw blood on Zazzara. Polo was scared and
17
quickly left the house. (Id. at 17153-55.) Persisco also entered the house but
18
quickly left as well. Polo went across the street to call Zazzara’s son. The police
19
soon arrived. (Id. at 17156-59.)
20
127. Los Angeles Fire Captain Carl Allen and his crew arrived at the
21
Zazzara residence on Strong Avenue in Whittier, Los Angeles County, on March
22
29, 1985. Seeing a man lying on a couch, Allen and his crew left and called the
23
sheriff. (149 RT 17208-11, 17240.) When sheriff’s deputies arrived, the fire
24
crew re-entered the house. They found Maxine Zazzara’s body in the bedroom.
25
Both Maxine and Vincent Zazzara were dead. (Id. at 17212.)
26
128. Deputy Sheriff Paul Archambault arrived at the scene at
27
approximately 10:35 a.m. He entered the house with Captain Allen. Mr. Zazzara
28
had a head wound; Ms. Zazzara had been badly cut. (149 RT 17219-22.)
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Archambault interviewed the victims’ son and neighbors. The house was sealed
2
off. Sheriff Detective Russell Uloth arrived and took charge of the investigation.
3
(Id. at 17222-24.) Deputy Archambault found a pool of blood on the porch of a
4
house across the street. No other blood was found outside the Zazzaras’ home.
5
(Id. at 17226-28.)
6
129. Vincent Zazzara had been shot in the head by a small caliber gun.
7
Maxine Zazzara had a gunshot wound to the neck and chest. Her eyes had been
8
gouged out. (149 RT 17249-52, 17316.) A clasp from a watch or a bracelet was
9
on the floor near her body. There were bruises to her left wrist that might have
10
been from a ligature. Detective Uloth admitted that bruises could have occurred
11
on removal of a watch or bracelet. A bullet fragment was found on the floor of
12
the bedroom. (Id. at 17259-61.)
13
130. Drawers were opened in the bedroom; personal items were strewn
14
about the bathroom. In another bedroom, file drawers were pulled out. (149
15
RT 17256, 17275-77.) A coin collection was intact, and bags of money left by
16
Polo on March 28 were still present. (Id. at 17257, 17284.) Jewelry was found in
17
a bedroom drawer. Uloth prepared a list of possible items taken from the
18
residence, but it was uncertain what was taken. (Id. at 17298, 17312-14.) A
19
burglary had occurred at the Zazzara residence six weeks before. According to
20
the crime report prepared at that time, entry was gained by prying open the front
21
window. (Id. at 17282-83.)
22
23
ii)
Shoe print and fingerprint evidence
131. Detective Uloth noted that a window at the rear of the house had
24
been pried open and a screen removed. A latent print was lifted from the screen.
25
No instrument matching pry marks on the screen or window was found at the
26
residence. A shoe print was found on a bucket under the rear window of the
27
point of entry. (149 RT 17243-47, 17280-81.)
28
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132. Other shoe prints found outside the house near the bedroom window
2
were similar to the shoe print on the bucket. (149 RT 17245-46.) Two different
3
shoe print patterns were found in the same vicinity at the scene. The shoe print
4
pattern found on the bucket, the stairs, and dirt area of the garden matched a pair
5
of Vans shoes recovered from the kitchen. (Id. at 17247-48, 17287-90.) Uloth
6
checked with civilians and firemen who were at the scene and determined that
7
their shoes did not match either of the shoe prints found at the scene. (Id. at
8
17306-07.)
9
133. Sheriff’s evidence technician Steve Renteria took photographs and
10
made casts of the shoe prints of each pattern at the southeast corner of the house.
11
(149 RT 17320-25, 17331-32.)
12
13
14
iii)
The causes of death
134. Coroner Joseph Cogan, M.D., testified about the autopsies
15
performed on the bodies of Vincent and Maxine Zazzara on March 30, 1985, by
16
Terence Allen, M.D. Vincent Zazzara died from a gunshot wound to the left side
17
of his head. (154 RT 17642-44.) Stippling around the wound indicated that a
18
firearm was fired at close range. Blood stains found on the couch showed
19
Zazzara did not sit upright after being shot; he was shot in the position depicted
20
in the photographs admitted into evidence (Prosecution’s Trial Exs. 8 and 8-A).
21
The position of Zazzara’s body was consistent with him having been asleep on
22
the couch when shot. (154 RT 17645-49.) A bullet fragment was removed from
23
Vincent Zazzara’s head. (149 RT 17263.)
24
135. Maxine Zazzara died from multiple gunshot wounds to the head and
25
neck. (154 RT 17651.) Stippling occurred as a result of a close-range gunshot
26
wound to the head. (Id. at 17654.) Two bullet fragments were removed from
27
Maxine Zazzara’s head and neck. (149 RT 17263-65.) She also had been
28
stabbed. There was a ligature contusion on her left wrist. Maxine’s eyes had
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1
been removed; the eyes were not recovered. (154 RT 17652-54.) Stab wounds to
2
the abdomen and eyes appeared to be post-mortem injuries. (Id. At 17660-62.)
e.
3
Doi Incident (May 14, 1985)
4
Counts 10 and 11 (§§ 459/187(a))
5
i)
The attack on William and Lillie Doi
6
136. Monterey Park police dispatcher Darlene Boese received a 911 call
7
at approximately 5:00 a.m. on May 14, 1985. The enhanced 911 system showed
8
a reporting address of 1586 Trumbower Street. A male voice repeatedly said,
9
“Help me.” An ambulance was sent, and the call was terminated. (150
10
RT 17410-12.) A second 911 call from the same address was made a few
11
minutes later. A male voice again asked for help. By that time, a fire company
12
arrived on the scene. (Id. at 17413-15.)
13
137. Monterey Park firefighter Norman Case arrived at the Doi residence
14
at 5:04 a.m. The front door was open, and house lights were on. An elderly
15
female dressed in a nightgown was standing near the hallway. She was
16
incoherent. There was blood on her left thumb. (150 RT 17418-22.) An
17
unconscious male was sitting in a chair in the den. Mr. Doi – the unconscious
18
male – was taken by ambulance to Garfield Hospital. (Id. at 17422-24, 17427.)
19
Monterey Park Police Officer Michael Gorajewski was the first police officer to
20
arrive. He observed that rooms in the house were ransacked, drawers open, and
21
clothes thrown about. Ms. Doi – the elderly female – appeared to be in shock.
22
(151 RT 17476-81.) Officer William Reynolds arrived shortly after 5:00 a.m. He
23
spoke to Ms. Doi who answered slowly. Her face was swollen and a thumb cuff
24
dangled from her left thumb. She was taken to Monterey Park Hospital. (Id. at
25
17495-97.)
26
138. Linda Doi-Fick, the victims’ daughter, last visited her parents on
27
May 13, 1985. They appeared well, and the house was in order. Her mother
28
suffered a stroke in 1982 and had impaired speech patterns. On May 14, 1985,
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Doi-Fick received a call from police at 5:00 a.m. (154 RT 17698-701.) Later,
2
she met with police officers and tried to communicate with her mother. With her
3
assistance, officers were able to prepare a composite drawing of a suspect. (Id. at
4
17720-22.)
ii)
5
6
Shoe print and physical evidence at the scene
139. Monterey Park Police Sergeant Paul Torres arrived at the Doi home
7
about 6:30 a.m. He observed shoe prints in the dirt underneath the front bedroom
8
window. One print appeared to be from a tennis or jogging shoe; the other was
9
from a heavy combat boot with cleats. (151 RT 17515, 17517-19.) Officer
10
Anthony Jiron, who was in charge of security outside the residence, wore boots.
11
(Id. at 17519-20.)
12
140. Sergeant Torres noted that a screen had been removed from a
13
bathroom window. The window was completely open and the bathroom
14
undisturbed. The master bathroom, located between the victims’ two bedrooms,
15
was ransacked. Blood had been smeared on the tub and walls. A blood-stained
16
pillowcase was in the bathtub. (151 RT 17522-24.) Mr. Doi’s bedroom was
17
ransacked. Boxes were found on the floor. There was a blood-stained pillow at
18
the head of the bed. Bloodstains were found in the hallway. (Id. at 17524-26.) A
19
small caliber cartridge casing was found on the hallway carpet. (Id. at 17528.)
20
141. Forensic serologist Joseph Snyder collected evidence and drew a
21
sketch of the scene. (151 RT 17440-41.) He found a shell casing on the carpeted
22
floor near the hall door. He made casts of two shoe prints by the front bedroom
23
and bathroom. (Id. at 17441-43, 17446-47.) He did not make casts of the muddy
24
shoe impressions observed in front of the house. (Id. at 17451-52, 17456.) On
25
speaking with officers at the scene, Snyder determined that an investigating
26
officer – probably Officer Jiron – had made the muddy impressions with his
27
boots. Snyder did not check other shoes worn by the various personnel at the
28
scene. (Id. at 17458-59, 17461-63.)
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iii)
1
Cause of death
2
142. Garfield Medical Center emergency room physician Anthony Reid
3
testified that Mr. Doi arrived by an ambulance early in the morning on May 14,
4
1985. Efforts to revive him were unsuccessful. Mr. Doi had abrasions to his face
5
and a gunshot wound to his head. (151 RT 17490-92.)
143. Coroner Dr. Cogan testified about the findings of George Bolduc,
6
7
M.D., who performed an autopsy on Mr. Doi on May 15, 1985. The cause of
8
Doi’s death was a gunshot wound to the head. The entrance wound at the chin
9
had stippling, which indicated that the gunshot had been fired at close range.
10
(154 RT 17678-80.) A bullet was recovered during autopsy. (151 RT 17530-33.)
iv)
11
Identification of recovered property
12
144. Linda Doi-Fick made a list of missing items from her parents’ home.
13
She attended a police property line-up on September 5, 1985, and identified items
14
belonging to her parents, including a watch that her father never removed. Other
15
items taken from the Doi residence were never recovered. (154 RT 17709-14.)
v)
16
Eyewitness identification
145. At trial, Launie Dempster identified Petitioner as the man she saw on
17
18
three occasions in the Monterey Park area in 1985. (162 RT 18775-77.) From
19
August 1984 until November 1985, Dempster had a newspaper route in Monterey
20
Park. During that time, she also worked as a security guard. (Id. at 18754-56.)
21
She drove her daily newspaper route from 2:00 a.m. to 5:00 a.m. (Id. at 18756-
22
59.)
23
146. At approximately 3:30 a.m., while on her route in early May 1985,
24
Dempster saw a man sitting in a car on Trumbower Street, opposite the house at
25
1594 Trumbower Street. On returning an hour later, Dempster saw an ambulance
26
in the driveway at 1586 Trumbower Street. (162 RT 18759-63.) The car that she
27
had seen was gone. Dempster later learned that the residence had been broken
28
into and that someone had died. (Id. at 18764-65.)
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147. Two weeks later, at about 3:15 a.m., Dempster saw the same man in
2
the neighborhood in the same car. She described the car as a brownish-green,
3
older American model, like a Chevrolet, with black hubcaps and dark interior.
4
(162 RT 18765-68.)
5
148. When the Night Stalker police task force first contacted Dempster,
6
she explained that she had seen a young Mexican male in a car around the
7
neighborhood. (162 RT 18768-69.) Between the second and third sightings,
8
Dempster was stopped while on her route by the task force; she explained that she
9
was delivering newspapers. However, Dempster did not mention that twice she
10
11
had seen the same man in the neighborhood. (Id. at 18773.)
149. On one occasion while on duty as a security guard, Dempster saw a
12
composite drawing of a suspect. He did not resemble the man she had seen in
13
Monterey Park. She explained to a deputy sheriff that the composite was
14
inaccurate, but he told her that she was mistaken because witnesses had described
15
the man as he appeared in the drawing. (162 RT 18774-75.)
16
150. Dempster saw Petitioner’s face on television after his arrest. She
17
told her boss that the man on television was the same person she had seen on her
18
route. (162 RT 18777-78.) She recalled that the man was 6’ to 6’1” tall, thin,
19
and lanky. (Id. at 18787.) In 1986, she had further contact with a police officer
20
and told him about her observations. At this police officer’s insistence, Dempster
21
contacted Sheriff Detective John Yarbrough. Dempster gave Yarbrough a route
22
list that was current for April 1986. The route had changed only slightly from
23
Dempster’s route in 1985. (Id. at 18779-81.)
24
151. At the preliminary hearing, Dempster identified photographs of a car
25
that looked like the suspect’s car (Prosecution’s Trial Exs. 48 and 48-A); the
26
hubcaps were black. (162 RT 18782-84.) The car depicted in the photographs
27
appeared to be black, not brownish-green as she indicated previously. Dempster
28
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1
did not know whether the car depicted in the photographs was the same car she
2
had seen on her route. (Id. at 18794-95.)
3
152. On cross-examination, Dempster stated that when she first saw the
4
man seated in the parked car in Monterey Park, he had dark hair, dark skin, and
5
appeared to be Mexican. The man she had seen did not resemble the composite
6
drawing; his face was different, his hair was dark, longer, and not as curly. (162
7
RT 18802-03.) The second time she saw the man, he was seated in a parked car
8
and shouted a few words at her. (Id. at 18815-21.) The third time, he was
9
outside the car, and she recognized him from prior occasions. Dempster did not
10
notice anything about him except that he wore a short-sleeve dark shirt. (Id. at
11
18825-28, 18832.) His car had black tires, but she did not notice if it had
12
hubcaps. (Id. at 18838.) She described the man as Mexican or Mexican-
13
American solely based on his facial features. (Id. at 18839.)
14
153. Linda Prewitt, a branch sales manager for the Los Angeles Herald
15
Examiner, worked with Launie Dempster. (163 RT 18853-54.) In 1985,
16
Dempster told Prewitt that she had seen a man in a parked car on her route.
17
Dempster indicated that she knew that a murder had occurred on the route,
18
specifically on Trumbower Street. (Id. at 18856, 18858.) Dempster told Prewitt
19
that the man she had seen on television and in the newspaper looked like the
20
person she had seen on her route. (Id. at 18860, 18865-69, 18885.)
21
154. Monterey Park Police Officer William Reynolds met Launie
22
Dempster on Olive Street following a traffic stop in May 1985, between 4:30 a.m.
23
and 5:00 a.m. He was assigned to the Night Stalker task force and drove an
24
unmarked car. (163 RT 18914-16.) Dempster indicated to Officer Reynolds that
25
she thought she had seen the Night Stalker while delivering newspapers on her
26
route. Officer Reynolds did not recall that Dempster provided a physical
27
description of the suspect; he made no notes of the conversation with Dempster.
28
(Id. at 18917-18.)
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155. Deputy Sheriff Paul Archambault spoke with Launie Dempster in
1
2
early August 1985 about a composite drawing. She told him that she had seen a
3
person whom she described as a male Mexican, but who did not resemble the
4
composite. (163 RT 18954-55, 18958.) Archambault advised Dempster to
5
contact the Monterey Park police. (Id. at 18965-66.)
f.
6
Bell and Lang Incident (May 29 to June 1, 1985)
7
Counts 12 through 14 (§§ 459, 187(a), 664/187)
8
i)
The discovery of Mabel Bell and Florence Lang
156. Charles Valenzuela worked sixteen years for two elderly women,
9
10
Mabel Bell and Florence Lang, who lived in a house on Alta Vista Street in
11
Monrovia. Sometime in 1985, Valenzuela went to their house and saw two
12
newspapers in the driveway. He knocked on the door, but there was no answer.
13
(155 RT 17752-53.) Valenzuela returned the next day, opened the door, and saw
14
a can on the kitchen table. He found Lang on a bed in a bedroom and found Bell
15
on the floor in another bedroom. A table was on top of Bell’s chest. Valenzuela
16
removed the table and then contacted neighbors to call the police. (Id. at 17753-
17
59.)
18
157. Monrovia firefighter Kenneth Struckus responded to the scene at
19
11:40 a.m. on June 1, 1985. He found Bell on the floor in a bedroom. She was
20
not breathing very well. Struckus turned Bell on her side and removed her
21
clothing to check for injuries. (155 RT 17765-71.) He observed blood all over
22
her head, and contusions to her ribs, four to five inches long on each side. A
23
reddish star-circle mark had been drawn on her body. Both Bell and Lang were
24
taken to a hospital. (Id. at 17772.)
25
158. Firefighter Steve Ford found Lang on a bed in the bedroom. Ford
26
observed a pentagram on the bedroom wall. Lang’s hands had been tied behind
27
her back with an electrical cord; her ankles had been taped. Ford cut the
28
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electrical cord and performed emergency treatment. He attempted to
2
communicate with Lang, but she was unresponsive. (158 RT 18139-44.)
3
159. Monrovia Police Officer James Olds arrived at the scene at about
4
11:30 a.m. He took a series of photographs of the scene and victims both in their
5
home and at the hospital. (155 RT 17785-86.) Bell had a star-circle on her left
6
thigh. Officer Olds photographed Lang’s injuries as well as the cord and
7
electrician’s tape on her arms and legs. Olds instructed others at the house not to
8
touch a hammer found on a table. He collected evidence and sexual assault kits
9
from hospital staff. (Id. at 17787-92, 17795, 17802.) He observed a star-circle
10
on the wall above a bed in a bedroom. (Id. at 17793.)
11
160. Sheriff homicide investigator Michael Bumcrot arrived at the scene
12
at 3:15 p.m. on June 1, 1985. He observed that the kitchen door had two locks; a
13
deadbolt lock was in place. (155 RT 17830-32, 17837.) On the dining room
14
table, there was a partially-eaten banana. Bumcrot observed a TV Guide on a
15
tray in the living room; it was turned to the schedule from 10:00 p.m. on May 29,
16
1985, to noon on May 30, 1985. (Id. at 17833.) Bathroom cabinet drawers were
17
open. Two electric clocks were unplugged; another clock was plugged in and
18
still running. (Id. at 17834-36.)
19
161. A table was lying on the bed in Bell’s bedroom. The room had been
20
ransacked. (155 RT 17838.) There was a hammer on top of a dresser in Lang’s
21
bedroom that appeared to have blood and hair on it. Strips of tape were on the
22
bedstead. A star-circle had been drawn on the wall over Lang’s bed. On the
23
south wall, other red marks had been made with lipstick. (Id. at 17838-42.)
24
25
ii)
Physical evidence at the scene
162. Criminalist Michelle LePisto was in charge of the scene. Some of
26
the items collected at the scene included part of the bedroom wall with stains,
27
pieces of electrical tape and cord, a portion of wall with a star-circle, sheets,
28
clothing, fibers, and carpet samples. A key was found at the foot of one of the
62
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beds. (156 RT 17896, 17903-04, 17907, 17910-11, 17913.) LePisto collected a
2
hammer with blood stains. No other tools were found at the scene. (Id. at 17909,
3
17924-25.)
4
163. Deputy Sheriff Charles VanderWende attempted to lift fingerprints
5
in the house but was unsuccessful. Deputy Sheriff Robert Meinke lifted a print
6
from a soda can found on the kitchen table. (155 RT 17857.) A telephone and
7
electric clock had fabric marks, indicating that they were handled by someone
8
holding a cloth or wearing gloves. (Id. at 17858, 17870.) A shoe print found on
9
one of the clocks looked like the ball of a shoe. It was similar in design to shoe
10
prints found at other crime scenes in this case. (Id. at 17859-60, 17866, 17873.)
iii)
11
12
Cause of Bell’s death
164. Bell and Lang were transported to Arcadia Methodist Hospital. (155
13
RT 17773-74.) Michael Agron, M.D., was on duty in the emergency room when
14
Bell and Lang arrived. Bell had severe head injuries with brain tissue protruding
15
from a skull fracture. She was comatose and subsequently died. There was a
16
burn mark below her right breast; the skin was blistered. There were burn-like
17
marks on her back. (Id. at 17816-19.) A red star-circle drawn in lipstick was
18
observed on her left leg. Bell’s wounds were approximately two days old. (Id. at
19
17821-23.)
20
165. Coroner Sara Reddy, M.D., performed an autopsy on Mabel Bell’s
21
body on July 17, 1985. The cause of death was head trauma. At the time of the
22
autopsy, her wounds were more than two weeks old. Dr. Reddy had seen similar
23
round-shaped wounds in the past and was on the opinion that they were caused
24
by a hammer. (156 RT 17886-93.)
25
26
iv)
Injuries to Lang
166. Dr. Agron also examined Lang at Arcadia Methodist Hospital when
27
she and Bell arrived. Lang, who was comatose, had suffered head injuries, two
28
black eyes, a cut over the left eyebrow, ligature marks on both wrists, swollen
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hands, and bruising on the face. There were scrapes around the vaginal area. In
2
Dr. Agron’s opinion, Lang’s head wounds had been caused by force from a hard
3
object. (155 RT 17823-27.)
4
167. Claire Neiby, another emergency room physician on duty with Dr.
5
Agron, also examined Lang after her arrival. Dr. Neiby observed that Lang had
6
suffered tissue injury near the vagina, likely caused by sudden, forced stretching.
7
Smears were taken during the course of Dr. Neiby’s examination. (155
8
RT 17807-11.) Although Lang subsequently regained consciousness, she could
9
not be interviewed because she was unable to communicate. (Id. at 17846-47,
10
11
12
17851.)
v)
Identification of recovered property
168. David Nipp, grandson of Bell and great-nephew of Lang, identified a
13
photograph of a cassette tape player as the one he had given Bell in April 1985.
14
(158 RT 18112-13.) He also identified a photograph of the instruction booklet
15
that accompanied the tape player. (Id. at 18116.)
16
169. He recalled reviewing the booklet and the serial numbers of the
17
cassette player with Bell. (158 RT 18114.) The last time Nipp visited Bell in
18
April 1985, the tape player was at her house. (Id. at 18115, 18124.) He usually
19
talked to Bell every one to two weeks and knew that she enjoyed the tape player.
20
Nipp also identified the cassette player in an evidence room at the sheriff’s
21
department. (Id. at 18116, 18125-26.)
22
170. Mark Krainbrink, who was David Nipp’s brother, last saw Bell and
23
Lang two months before the incident. He went to the hospital on June 1, 1985.
24
At the time of his visit, both Lang and Bell were comatose. (158 RT 18130-33.)
25
On June 3, 1985, Krainbrink found the instruction booklet for the cassette player
26
in Bell’s home and gave it to the Monrovia Police Department. He identified the
27
last entry in Bell’s diary, dated May 29, 1985, although he had not previously
28
seen the diary. (Id. at 18132-34.) Krainbrink last saw Lang the day before he
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testified at trial. She was then unable to speak and was being fed through a tube.
2
Before the incident, Lang was in good health. (Id. at 18131.)
3
g.
Kyle Incident (May 30, 1985)
4
Counts 15 through 18 (§§ 459, 261(2), 288a(c), 286(c))
5
i)
6
The attack on Kyle
171. On May 29, 1985, Carol Kyle lived with her seventeen-year-old
7
daughter and twelve-year-old son on North Avon Street in Burbank. Only she
8
and her son were home on the night of May 29, 1985. Kyle went to bed at about
9
1:00 a.m. The house was locked, but the back door had a small dog door that was
10
not secured. (156 RT 17936-37.) Kyle awakened at 4:00 a.m. to look at the
11
clock. The lights were off. A man flashed a light in her eyes and said, “Get up
12
and don’t make any noise.” He was holding a small dark handgun. (Id. at 17938-
13
40, 17942.) The man told Kyle to move to the living room. She indicated that
14
her son was in the house. They went to her son’s bedroom; the man turned on the
15
light, jumped on her son, and handcuffed him. He told both of them not to look
16
at him. (Id. at 17941-43.)
17
172. Kyle was then handcuffed with her son and shoved into a hall closet.
18
The man demanded money, jewelry, and a VCR. When he appeared again, he
19
was holding a different gun that was shiny. The man found Kyle’s wallet which
20
contained 30 dollars. (156 RT 17944-47, 17949.) Kyle and her son were
21
escorted to her son’s room and told to lie on the floor. They were covered with a
22
sheet. The man removed the handcuffs from Kyle and put her son into the closet.
23
The man took Kyle to her bedroom and demanded jewelry. She gave him a
24
diamond and gold chain. When he asked for more jewelry, Kyle showed him a
25
jewelry box. (Id. at 17949-53.) The man tied Kyle’s hands behind her back with
26
pantyhose. He pushed her onto the bed, covered her head with a pillow, and
27
screamed at her. He pounded on her back with his fist. Twice, he left the room
28
and came back. (Id. at 17953-55.)
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173. When the man returned for the second time, he removed the pillow
2
and told Kyle to lie down on her back on the bed. Her hands were still tied
3
behind her back. The man ripped open the front of Kyle’s nightgown and
4
removed her underpants. Kyle told the man she was having her period and had
5
an infection. The man threatened to kill her. He took off his jacket, unzipped his
6
pants, and started kissing her. (156 RT 17955-56.) The man got on top of her.
7
He put his penis in her vagina. After a few minutes, he turned her over and put
8
his penis in her anus; he ejaculated in her anus. (Id. at 17957-58.)
9
174. Kyle then spoke with the man for fifteen to twenty minutes as he
10
ransacked her closet. The man brought Kyle a robe because she was cold. (156
11
RT 17959-60.) He untied the pantyhose on her left wrist and later removed it
12
altogether. He tried to tie her ankles with a telephone cord. The man said to her,
13
“I don’t know why I’m letting you live. I’ve killed people before.” He told Kyle
14
to tell police he wore a mask. (Id. at 17961-63.) He then brought Kyle’s son to
15
her bedroom and handcuffed them to the bed. The man left handcuff keys on the
16
mantle and told Kyle to make sure her daughter found them. In Kyle’s opinion,
17
the man seemed confused, asking the name of the town and directions to the
18
freeway. When the man left, Kyle thought his car sounded like a big, older car.
19
Kyle’s son called 911; the police arrived within a few minutes after the call. (Id.
20
at 17964-65.)
21
22
ii)
Physical evidence at the scene
175. Burbank Police Officer Ronald Cervenka was called to Kyle’s home
23
about 6:25 a.m. on May 30, 1985. He found the front door locked, but the back
24
door by the kitchen was ajar. There was no sign of forced entry. It appeared that
25
entry was gained through the kitchen door. (156 RT 18014-15 .) The house was
26
ransacked. Kyle and her son were still handcuffed. Officer Cervenka removed
27
the cuffs with the key on the mantle. The handcuffs were larger than those used
28
by police. He later took Kyle to St. Joseph Medical Center. (Id. at 18008-14.)
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176. Evidence technician Robert Cestaro collected handcuffs, keys, and
2
women’s clothing from the bedroom in Kyle’s home. Cestaro also dusted for
3
latent fingerprints. (156 RT 18019-21.)
iii)
4
Eyewitness identification
5
177. Kyle identified Petitioner at trial as her assailant on May 30, 1985.
6
His dress and hair were different than on May 30, 1985. (156 RT 17967.) Kyle
7
initially described the assailant as approximately 6’ tall, wearing a black leather
8
jacket, black slacks, and black gloves. (Id. at 17948, 17957.) She told police that
9
the assailant wore bangs, but had no facial hair. She said his hair was parted on
10
the left across his face and appeared to be shiny and wavy. She said at first she
11
did not see the man’s face except from the side. Later in her bedroom, she
12
noticed his teeth were straight and white. He was very thin with prominent
13
cheekbones. Kyle noticed his smile because he laughed several times when he
14
spoke to her. (Id. at 17982-84, 18003-04.)
15
178. Kyle assisted in the preparation of two composite drawings. (156
16
RT 17999-01.) She saw a photo spread of possible suspects in July 1985 but did
17
not identify anyone. (Id. at 17987.) On September 5, 1985, Kyle attended a live
18
line-up. Petitioner was in the line-up and Kyle recognized the inflection of his
19
voice. (Id. at 17971-74.) She identified Petitioner at the preliminary hearing.
20
(Id. at 17979.)
21
179. Deputy Sheriff Mahlon Coleman met with Carol Kyle on August 30,
22
1985, at her residence. Based on her descriptions, he made sketches of jewelry
23
stolen from her residence and of the suspect. He turned over his sketch of the
24
suspect to Sergeant Frank Salerno (Prosecution’s Trial Ex. 16-B). When he made
25
the sketch, Coleman had not seen a photograph of Petitioner. (176 RT 20582-
26
85.) Kyle described the suspect to Coleman as wearing a black jacket with a stain
27
on the left shoulder, brown and black checked shirt, dark pants, and black belt
28
with silver holes. She described the suspect as a Latin male, twenty years old, six
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feet tall, and very thin. She described him as having a tan complexion, brown
2
eyes, black hair that was dry ,but shiny, and parted on the left side and curly on
3
the ends, but long in the back. She described him as having no facial hair and a
4
clean face, she said that he spoke with good diction, and that he had straight teeth
5
and excessive gums. (Id. at 20587-88.) The suspect’s skin color according to
6
Kyle was close to the color of a pencil used to prepare the sketch. (Id. at 20589-
7
91.)
8
9
iv)
Identification of recovered property
180. Kyle identified jewelry taken from her home at the police property
10
line-up on September 5, 1985. She identified a bracelet, silver chain, earrings,
11
necklaces, and a ring. (156 RT 17974-78.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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h.
1
Cannon Incident (July 2, 1985)
2
Counts 19 and 20 (§§ 459, 187(a))
3
i)
4
The discovery of Mary Louise Cannon
181. Frank Starich lived next door to Mary Louise Cannon on East Haven
5
Avenue, Arcadia, Los Angeles County. Cannon was in her eighties and lived
6
alone. Starich was home on July 2, 1985. About 8:30 a.m., he noticed the screen
7
from Cannon’s window lying on her porch. (157 RT 18030-32.) He picked up
8
the screen; about a half-hour later he put the screen back on the open window.
9
Starich retrieved Cannon’s newspaper which was wet from automatic lawn
10
sprinklers. (Id. at 18032-34.) Starich became concerned about Cannon. He and
11
his wife used a key to enter Cannon’s house. Things were thrown around in the
12
hallway. A light was on in the hall. They left and called the police. (Id. at
13
18034-36, 18052.)
14
182. Starich stayed up until 11:00 p.m. the night before but did not hear
15
anything unusual. He watched television in a room thirty to thirty-five feet away
16
from Cannon’s house. His bedroom was on the opposite side of Cannon’s house.
17
(157 RT 18042-43.)
18
183. Tina Starich knew Cannon well. Cannon had visited the Stariches’
19
house on July 1, 1985, at about 6:00 p.m. Cannon had not been feeling well for a
20
long time. The day before, she had been in a traffic accident but was uninjured.
21
(157 RT 18046, 18049.) There were two locks on her front door, but Cannon did
22
not use the dead bolt. Ordinarily, she kept the screen door locked. Tina Starich
23
telephoned Cannon on July 2, 1985, but Cannon did not answer. Cannon’s
24
screen door was unlocked, but the front door was locked. Tina Starich re-entered
25
Cannon’s house with Officer Winter and found Cannon lying on her bed. (Id. at
26
18047-54.)
27
ii)
Physical evidence at the scene
28
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184. Arcadia Police Officer Edward Winter responded to the scene at
2
about 9:26 a.m. on July 2, 1985. He met Tina Starich and went with her into
3
Cannon’s house. In the living room, he noticed a drawer pulled out of the coffee
4
table; other items were on the hallway floor. Mary Cannon’s body was lying face
5
down on the bed in the bedroom. (157 RT 18059-61.) There was a lot of blood
6
on the bed. The room was ransacked. A paper tissue on the floor had a waffle
7
shoe print pattern. Glass from a broken lamp was found near the victim’s
8
shoulder. A walking cane and knife were on the bed. A file cabinet had been
9
ransacked; a jewelry box was on the floor. (Id. at 18067-68, 18074-76, 18078.)
10
185. Coroner criminalist Lloyd Mahanay collected two sets of shoe
11
prints, a heel print, glass shards, and a sexual assault kit from Cannon’s body.
12
(158 RT 18150-51.)
13
186. Sergeant Salerno observed a window screen missing from the
14
victim’s bedroom window. (160 RT 18431-32.) One of the window panes had
15
been broken. Shoe impressions on the carpet and a bloody shoe print on a piece
16
of tissue were collected as evidence. (Id. at 18433-35, 18437.) Pieces of a
17
broken lamp were found in Cannon’s hair. A bloody, 10” knife was found on the
18
bed. A knife sharpener matching the knife was found in the kitchen. (Id. at
19
18439-41.)
20
iii)
Shoe print evidence
21
187. Waffle-soled shoe prints were found in several rooms of Cannon’s
22
house. The shoe prints did not match the shoes worn by any of the officers who
23
participated in the investigation or the Stariches. (157 RT 18065.) Three pieces
24
of carpet containing shoe prints were preserved as evidence. At trial, shoe print
25
impressions on the carpet pieces were no longer visible. (158 RT 18151-55.)
26
iv)
Cause of death
27
188. Coroner Joan Shipley, M.D., performed an autopsy on the body of
28
Mary Cannon on July 3, 1985. In Dr. Shipley’s opinion, the cause of death was
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multiple neck wounds and strangulation. Dr. Shipley also found blunt trauma
2
wounds to the face and head, a broken nose, black eyes, and puncture wounds to
3
the mouth area. In Dr. Shipley’s opinion, the injuries to the head could have been
4
inflicted by use of hands. (157 RT 18084-87, 18089.) Dr. Shipley observed four
5
stab wounds; one cut the carotid artery. Smaller stab wounds were observed on
6
the back of the neck. (Id. at 18089-95.)
7
189. Cannon’s body showed trauma to the neck caused by strangulation
8
but without finger imprints on the skin, indicating the use of a soft, wide ligature
9
such as hands, or pressure from an elbow joint as the means of strangulation.
10
Petechial hemorrhages of the eyes were caused by loss of oxygen. In Dr.
11
Shipley’s opinion, Cannon died within a few minutes after infliction of the
12
wounds or strangulation. (157 RT 18095-98.)
v)
13
14
Identification of recovered property
190. Lynda Klempel last saw Mary Cannon on June 14, 1985, in Paso
15
Robles. At trial and at the September 5, 1985 property line-up, Klempel
16
identified a necklace (Prosecution’s Trial Ex. 19-F) and a locket (Prosecution’s
17
Trial Ex. 19-G) belonging to Cannon. The exotic, handmade necklace contained
18
beads and brass trim, it cost 15 dollars. (162 RT 18731-35, 18743.)
19
i.
Bennett Incident (July 5, 1985)
20
Counts 21 and 22 (§§ 459, 664/187)
21
i)
The attack on Whitney Bennett
22
191. Sixteen-year-old Whitney Bennett lived with her parents on Arno
23
Drive, Sierra Madre, Los Angeles County. Around 5:00 p.m. on July 4, 1985,
24
Bennett went to a friend’s house and returned home at 12:45 a.m. (159
25
RT 18223-25.) She parked her car in the back of her house and entered by the
26
back door. Bennett locked the back door and left a note for her father on his
27
closed bedroom door. No one was awake when she returned home. The hall and
28
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outside lights were on. She turned on the light in her bedroom. Her bedroom
2
curtains were open. (Id. at 18226-29.)
3
192. Bennett changed her clothes, removed her jewelry, which she placed
4
in a jewelry box on the dresser, and went to sleep. She awakened between 2:45
5
a.m. and 3:45 a.m. (159 RT 18230-32.) She was lying, face down, on the bed.
6
Blood was all over her sheets; her head and hands hurt. The lights were not on in
7
the room. The curtains were closed. Bennett ran screaming to the hallway where
8
she was found by her father. After the paramedics transported her to the hospital,
9
she was hospitalized for eight days. She has had surgery on her hand, head, and
10
11
face. (Id. at 18233-36.)
193. Bennett testified that blood stains found in her bedroom were new;
12
they were not there when she went to bed. When Bennett awakened, her
13
telephone was on the window sill and her jewelry box had been moved. Her
14
underpants had been removed. Two gold rings were missing and never
15
recovered. A tire iron, found in her bedroom, was unknown to her. (159
16
RT 18239-45.)
17
194. Steve Bennett testified that his daughter left their home on the
18
afternoon on July 4, 1985. He had guests for dinner who left about 11:00 p.m.
19
through the back door; he did not recall if the front door was locked. Mr. Bennett
20
stayed up until midnight to watch fireworks. (159 RT 18266-69.) Mr. Bennett
21
did not hear his daughter return home. Mr. Bennett was awakened early in the
22
morning by a moaning sound; he found his daughter at her bedroom door. She
23
was bloody and complained about her head. Her bedroom was in disarray.
24
Blood was everywhere, and a tire iron was on the floor. (Id. at 18270-75.)
25
195. Robert Costarella, M.D., a plastic surgeon, was on duty at Arcadia
26
Methodist Hospital on July 5, 1985. He treated Whitney Bennett for massive
27
head lacerations, skull fractures, fracture of the eye socket, and fracture to a
28
finger on her left hand. (161 RT 18665-73.) He operated on her several times to
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remove scars. Bennett suffered eye damage and partial retinal detachment. (Id.
2
at 18673-75.) Marks that he observed around her neck were likely caused by a
3
rope or cord. In Dr. Costarella’s opinion, Bennett’s head injuries were consistent
4
with blunt force trauma caused by a tire iron. (Id. at 18677-78.)
196. On July 5, 1985, Sergeant Salerno interviewed Whitney Bennett at
5
6
Arcadia Methodist Hospital. He observed cuts to her cheekbone and ligature
7
marks on the right side of her neck. Bennett’s eyes and hands were swollen.
8
(159 RT 18313.)
ii)
9
The crime scene
197. Sierra Madre Police Sergeant Gerald Skinner arrived at the Bennett
10
11
home at 5:10 a.m. on July 5, 1985. (158 RT 18171.) He spoke with Mr. Bennett
12
and checked the house for suspects. He found a window screen outside, leaning
13
against the front of the house. (Id. at 18172-74.)
14
198. Whitney Bennett was on the hallway floor. Her head was bleeding
15
and wrapped in towels. Blood stains were observed on the bedroom carpet and
16
walls. The curtain in her bedroom was slightly open. (158 RT 18175-76.) A tire
17
iron was lying on the carpet in a pool of blood. Skinner observed a hand print on
18
the window sill in Bennett’s bedroom, which appeared to have been made by
19
some sort of fabric or a gloved hand. After an emergency rescue unit arrived,
20
Whitney Bennett was transported to the hospital. (Id. at 18178-79, 18181,
21
18186.)
iii)
22
Physical evidence at the scene
23
199. Criminalist Giselle LaVigne collected evidence from Bennett’s
24
bedroom on July 5, 1985, including a tire iron, curtain sash, bed comforter which
25
appeared to have a shoe print, and blood stains on the carpet. (158 RT 18191-
26
98.)
27
28
200. Deputy sheriff Ronald George participated in the investigation at the
Bennett home on July 5, 1985. He photographed the house and processed
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fingerprints on the bedroom window sill. There was a fabric mark and blood on
2
the window sill. Deputy George was unable to obtain any fingerprint lifts. He
3
also photographed a shoe transfer on a comforter found in the bedroom. (159
4
RT 18278-81.)
5
201. Sergeant Frank Salerno arrived at the Bennett home about 7:05 a.m.
6
on July 5, 1985. He observed blood and a print mark on the bedroom window
7
sill. The window screen had been removed from the bedroom window. A
8
telephone cord in Whitney Bennett’s bedroom had been cut with a sharp
9
instrument. (159 RT 18307-08, 18315, 18319.) A pair of underpants and a sash
10
were found near the window. A bed comforter was partially stained with blood.
11
In Salerno’s opinion, the shoe impression on the comforter in Whitney Bennett’s
12
bedroom appeared similar to shoe prints found at the Cannon and Zazzara crime
13
scenes. (Id. at 18310-12, 18315-16.)
14
j.
Nelson Incident (July 7, 1985)
15
Counts 23 and 24 (§§ 459, 187(a))
16
i)
17
The discovery of Joyce Nelson
202. At about 6:00 a.m. on July 7, 1985, Robert Blanco, a neighbor of
18
Joyce Nelson on East Arlight Street in Monterey Park, Los Angeles County,
19
noticed that Nelson’s back gate was open. (159 RT 18329-30.) Blanco went into
20
her yard and heard the sound of Nelson’s television set. Blanco called to Nelson,
21
but there was no response. Nor was there any response when Blanco checked on
22
Nelson again at 9:00 a.m. (Id. at 18331-32.) At that time, Blanco noticed a
23
window screen from the front window lying in the flowerbed. Blanco did not
24
step in the flowerbed or touch the windowsill when he called out to Nelson.
25
Nelson’s front window was open. (Id. at 18334-36, 18344.)
26
27
203. Blanco went to Nelson’s porch; the front door was open. Pushing
open the front door, Blanco saw open drawers, and the television was on. He
28
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called out, but there was no response. Blanco told another neighbor what he had
2
seen and the neighbor’s wife called the police. (159 RT 18336-39.)
3
204. Monterey Park Police Officer Robert Daltorio was called to Nelson’s
4
home shortly after 9:00 a.m. on July 7, 1985. Officer Daltorio observed a
5
window without a screen; he found the screen leaning against the house. (159
6
RT 18357-58.) The front window was open and the shade pulled down. He
7
observed shoe prints in the dirt under the window. The back door had a small,
8
freshly-made cut in the screen. He observed shoe prints on the porch. (Id. at
9
18359-61, 18367-69.)
10
205. Dead bolts had not been set either on the front or back doors. The
11
key to the front door was in the lock on the inside. The bathroom and a bedroom
12
had been ransacked. (159 RT 18362.) Officer Daltorio observed items on the
13
bed and a pillow without a case. Officer Daltorio tried to open the second
14
bedroom, but the door was blocked. He pushed his way inside and found Joyce
15
Nelson’s body on the bed, face down, with her hands locked behind her back.
16
(Id. at 18363-66.)
17
18
ii)
Fingerprint and shoe print evidence
206. Deputy Sheriff Vander Wende photographed shoe impressions in the
19
planter under the window in front of Nelson’s house and four similar imprints on
20
a concrete porch. He obtained tape lifts of shoe prints. (159 RT 18381-82,
21
18384-86.) He observed a shoe print on the left side of Nelson’s face and her
22
robe. In Deputy Vander Wende’s opinion, shoe prints found on the porch of
23
Nelson’s home were similar to the sole pattern of a shoe print found at the scene
24
of the Bell and Lang incident. (Id. at 18387-88.) Deputy Vander Wende lifted
25
palm prints from the front bedroom door and from the bedroom windowsill above
26
the planter. Glove marks on a file box in another bedroom were similar to marks
27
on the night stand in Nelson’s bedroom. (Id. at 18388-90.)
28
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207. Sergeant Salerno also participated in the investigation at Nelson’s
2
home. In his opinion, shoe prints found outside the Nelson residence were
3
similar in appearance to shoe prints found at the scenes of the Zazzara, Cannon,
4
and Bennett incidents. (160 RT 18443-44, 18465-66.) Criminalist Gerald Burke
5
analyzed the shoe prints found at the Nelson home. Burke determined that the
6
sole pattern of the shoe prints was identical to the sole pattern of a shoe made by
7
the Avia Company. (Id. at 18466-70.) A pair of Avia high-top basketball shoes
8
brought to the Nelson residence was found to have a sole pattern similar to the
9
shoe prints found in and around the Nelson home. (Id. at 18472-73.)
10
11
iii)
Cause of death
208. Coroner investigator David Campbell participated in the
12
investigation of Nelson’s death. When Campbell entered Nelson’s home at 2:35
13
p.m. on July 7, 1985, he observed Nelson’s body on the floor; she had multiple
14
cuts to her face. The air temperature at 5:00 p.m. was 84EF; the liver temperature
15
of Nelson’s body at 9:08 p.m. was 87EF. Rigor mortis and lividity were present
16
in the body. There were no other signs of trauma or ligature marks on the body.
17
(160 RT 18487-92.)
18
209. Coroner Irwin Golden, M.D., performed an autopsy on Nelson’s
19
body on July 8, 1985. In Dr. Golden’s opinion, death resulted from head injury
20
and manual strangulation. Nelson sustained a hinge-type skull fracture prior to
21
death through the use of severe force. (160 RT 18494-500, 18502.) She
22
sustained injuries to her eyes, a scratch from a blunt instrument to the jaw, and
23
bruises on her knuckles, fingers, foot, and ankle. Dr. Golden observed deep
24
tissue abrasions to the larynx and evidence of manual strangulation. (Id. at
25
18501-03, 18505-09.)
26
iv)
27
28
Eyewitness identification
210. Launie Dempster placed Petitioner in the neighborhood around the
time of Nelson’s murder. At the beginning of July, she saw the same man she
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recognized from two previous occasions in a parked car on Arlight Street
2
between 3:00 a.m. and 4:30 a.m. At the end of her route, Dempster saw the man
3
walk from the back of his car to the driver’s side. He was wearing a black, short
4
sleeve T-shirt, a dark jacket, and dark pants. (162 RT 18769-72.)
5
k.
Dickman Incident (July 7, 1985)
6
Counts 25 through 27 (§§ 459, 261(2), 286(c))
7
i)
8
The attack on Sophie Dickman
211. At 3:30 a.m. on July 7, 1985, Sophie Dickman, a retired nurse who
9
lived alone on Hollyoak Drive in Monterey Park, Los Angeles County, was
10
awakened by a light in her bedroom. A man was standing in her bedroom
11
doorway. (160 RT 18520-21.) The man was holding a gun in his hand; he
12
ordered Dickman to be quiet and threatened to kill her. The gun appeared to be
13
metallic silver with a three-inch barrel. (Id. at 18522.)
14
212. Dickman was unclothed except for her underpants. The man closed
15
the shutters in the bedroom and then handcuffed Dickman’s hands behind her
16
back. The man pulled her into an adjacent dressing room. Dickman had
17
difficulty walking because of a recent foot injury. (160 RT 18526-28.) She tried
18
to remove and hide surreptitiously a sapphire and diamond ring but the man
19
retrieved the ring. (Id. at 18526-28.) Dickman was then taken to the bathroom
20
where the man covered her head with a towel. (Id. at 18530-34.) He found
21
several rings, including a gold wedding ring, gold engagement ring, and two
22
diamond rings. Dickman told the man that she had money in two purses. When
23
the man left her alone in the bathroom, the towel slipped off her head. The man
24
returned and demanded more money. Dickman estimated that 150 to 160 dollars
25
in cash was kept in her purses. She found 78 dollars the next day in a zippered
26
compartment of one of her purses that had not been opened. (Id. at 18536-37.)
27
213. The man returned Dickman to her bedroom and put her, still
28
handcuffed, on the bed. The man took off Dickman’s underpants and ordered her
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to spread her legs. The man removed one of his gloves, put it in her mouth, and
2
told her to bite down on it. Dickman testified that the glove was leather with a
3
ridge pattern. (160 RT 18538-40.) The man put a pillow over Dickman’s head,
4
got on top of her, first attempted vaginal intercourse, and then tried to penetrate
5
her rectum. A few minutes later, he resumed his attempt at intercourse but did
6
not penetrate her vagina. (Id. at 18541-43.) Shortly afterward, the man stood up
7
and began taking the telephone out of the wall. Dickman later found the
8
telephone in the hall closet; another telephone had been removed from the
9
kitchen. (Id. at 18544-46.)
10
214. After handcuffing Dickman to the bed, the man left. Dickman heard
11
a car engine start up near her bedroom window. She stood up, put on a robe,
12
dragged the bed to her window, and called for help. Dickman’s neighbor, a
13
deputy sheriff, came to her window and told her not to touch anything. Soon, the
14
police arrived. (160 RT 18547-51.)
15
215. Dickman was taken to Monterey Park Hospital. She was examined
16
by Gerald Bross, M.D. (160 RT 18512.) Dr. Bross observed no evidence of
17
trauma outside the pelvic region. He found dried blood on Dickman’s inner
18
thigh, small tears to the vaginal lining, and fresh bleeding inside the vagina. In
19
Dr. Bross’s opinion, the tears and bleeding were likely caused by blunt force or a
20
sharp object. (Id. at 18513-14.)
21
22
ii)
Physical evidence at the scene
216. Monterey Park Police Officer William Costleigh responded to
23
Dickman’s house at 3:45 a.m. on July 7, 1985. He found Dickman standing at
24
her bedroom window handcuffed to the bedpost. Officer Costleigh tried to
25
remove the handcuffs from Dickman. (161 RT 18691-94.) The handcuffs were
26
unique; he had never seen a similar pair of handcuffs.
27
28
217. Another officer removed the handcuffs. Walking through
Dickman’s house, Officer Costleigh saw that the sliding glass door was open but
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locked by something on the track of the sliding door. (161 RT 18695-99.) A cat
2
door appeared to be bent. The panel to the cat door was missing. Dickman later
3
noticed the panel had been moved. (Id. at 18566-68.) Outside, the screen on the
4
backdoor was torn. (Id. at 18701.) A plastic pail normally kept near the garbage
5
cans had been used to prop open the screen to the service porch door. (Id. at
6
18571-74.)
7
218. Monterey Park Police Officer David Corrigan arrived at Dickman’s
8
house at about 4:30 a.m. He photographed the house, the torn screen, telephone
9
cords, and handcuffs. (161 RT 18711-14.) The handcuffs removed from
10
Dickman appeared to be an inexpensive novelty item; they were not used by law
11
enforcement. (Id. at 18716.)
12
219. Dickman later found items on her dining room floor, including a
13
purse and telephone cord. Other items were out of place and on the floor in the
14
guest bathroom, den, and bedrooms. (161 RT 18571-75.) Dickman identified a
15
pistol (Prosecution’s Trial Ex. 46) as similar to the weapon used by the intruder
16
during the incident. (Id. at 18588-89.) She also found unopened soda cans on the
17
floor of the service porch. (Id. at 18623-24.)
18
19
iii)
Eyewitness identification
220. According to Officer Costleigh, Dickman initially described her
20
assailant as possibly white, about twenty-seven years old, 5’8” to 5’9”, thin, with
21
dark brown curly hair. (161 RT 18702-03.) He indicated in his report that the
22
suspect was described as wearing cloth mesh, black gloves and black high-top
23
sneakers. (Id. at 18707-08.)
24
221. Dickman testified that she described the suspect as 6’ to 6’1”. (161
25
RT 18627-28.) The man was dressed in black clothing, wore black gloves, and
26
black high-top tennis shoes with a white line around the sole. (160 RT 18522;
27
161 RT 18607-12.) On several occasions when shown groups of photographs,
28
Dickman was unable to identify anyone. (160 RT 18555-58.)
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222. Officer Conigan worked with Dickman to prepare a composite
2
drawing of the suspect. She provided the same general physical description of
3
the suspect as previously given to Officer Costleigh. Officer Conigan prepared a
4
bulletin which listed the suspect’s physical description as: 5’7” to 5’8”, thin
5
build, twenty-seven years old, dark brown hair. (161 RT 18718-19, 18724.)
6
223. Prior to the September 5, 1985 line-up, Dickman attended a live line-
7
up conducted by Monterey Park Police Department. She did not identify anyone
8
in that first line-up. On September 5, 1985, Dickman attended a live line-up and
9
identified Petitioner. (160 RT 18555-58.)
10
224. At trial, Dickman identified Petitioner as her assailant. (160
11
RT 18532-33.) He appeared different in court; his bangs were separated, and his
12
hair was longer. (161 RT 18582.) She first saw Petitioner’s picture on August
13
30, 1985, on television and was aware that Petitioner had been arrested. She
14
regularly watched television and read the newspapers. She saw Petitioner’s face
15
on television on every broadcast, five times a day. (Id. at 18630-31, 18651.)
16
Dickman testified that in identifying Petitioner, she was not influenced by his
17
appearances on television. (Id. at 18641-42.)
iv)
18
Identification of recovered property
19
225. A pillowcase from Dickman’s bed and items of jewelry were taken
20
from her home. Dickman attended a property line-up on September 5, 1985; at
21
the lineup, she identified jewelry that belonged to her, including earrings, two
22
pins, and rings. (160 RT 18548, 18554-55; 161 RT 18583-86.)
23
l.
Kneiding Incident (July 20, 1985)
24
Counts 28 through 30 (§§ 459, 187(a))
25
i)
Discovery of Maxon and Lela Kneiding
26
226. Maxon and Lela Kneiding lived on Stanley Avenue in Glendale, Los
27
Angeles County. Roy Murley last saw Maxon Kneiding at church on Friday, July
28
19, 1985. (163 RT 18971-72.) The Kneidings’ daughter, Judith Arnold, saw her
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parents on the morning of July 19, 1985. At that time, they made plans to meet
2
the next morning for breakfast at a restaurant in Glendale. On July 20, 1985,
3
after her parents did not show up at the restaurant, Judith drove to church and
4
then to her parents’ home. (Id. at 18974-76.) She arrived at 8:15 a.m., entered
5
through the back door and found them lying in bed. Judith’s husband called the
6
police. (Id. at 18976-77.)
227. Glendale Police Officer Tom Kuh arrived at the Kneiding residence
7
8
at approximately 9:25 a.m. He met Judith Arnold at the house; they found
9
Maxon and Lela Kneiding dead in the bedroom. (164 RT 19000-01.)
228. A screen on the rear door had been cut and stretched near the door
10
11
knob. (164 RT 19006, 19042-44.) Open dresser drawers, clothing, a brown
12
wallet, and a purse were on the floor of the bedroom. The bedroom window was
13
slightly open. (Id. at 19019-21.)
229. Maxon Kneiding was found on his right side, face down across the
14
15
bed against his wife, who was on her right side, face down with her legs over the
16
edge of the bed. Both were dressed in night clothes. (164 RT 19022.) Lela
17
Kneiding was not wearing any jewelry, but there was a white band of skin on her
18
left ring finger. (Id. at 19030-31.)
230. Coroner’s investigator Frederick Corral examined the bodies of
19
20
Maxon and Lela Kneiding on July 20, 1985. At 8:00 p.m., the air temperature
21
was 76EF; the liver temperature of the victims’ bodies was 85EF. Both bodies
22
were in full rigor. (164 RT 19060-62.)
ii)
23
Physical evidence at the scene
231. The Kneidings lived in a neighborhood with many trees and bushes.
24
25
Across the street from their home was a supermarket; nearby, there was a large
26
construction site. An elevated freeway ran behind the house. (164 RT 19023-
27
24.)
28
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232. Two bullet fragments were found in the carpeting in the bedroom;
2
one near Lela Kneiding’s body and one on the floor by a sewing cabinet. (164
3
RT 19032-33, 19051-54.) Blood stains and spatter were observed at the head of
4
the bed, on the window curtains, and on the overhead light. The spatter trail had
5
multi-directional patterns and ran upward, slightly to the right. Stains on the wall
6
above the bed appeared to run upward at a forty-five-degree angle. A large
7
clump of hair with blood that appeared to be from Lela Kneiding was found on
8
the curtain. A clump of bloody hair was found in Lela Kneiding’s clenched right
9
hand. Hair also was found on the curtains, approximately seven feet above the
10
floor. The bedroom was the only room that had been ransacked. (Id. at 19036-
11
41, 19045-47.)
iii)
12
13
Causes of death
233. Coroner Irwin Golden, M.D., performed autopsies on the bodies of
14
Maxon and Lela Kneiding on July 22, 1985. Lela Kneiding’s death resulted from
15
two gunshot wounds to the head – one in the cheek area and another to the back
16
of the head. The wound to the cheek area was caused by a weapon fired at close
17
range. The shot to the back of the head was a contact-type wound, indicating that
18
the gun barrel was close to the head when the weapon was fired. (169 RT 19630-
19
34.) A small-caliber bullet was recovered from the wound to the back of the
20
head. Dr. Golden observed trauma to Lela Kneiding’s neck caused by a cut
21
behind the right ear. There were cuts on her right hand and arm and bruises on
22
her right shoulder and upper arm that appeared to be defensive wounds. In Dr.
23
Golden’s opinion, the incised wounds occurred before death. (Id. at 19634-38,
24
19643.)
25
234. Maxon Kneiding’s death resulted from a gunshot wound to the neck.
26
No bullet was recovered. Dr. Golden was unable to estimate the distance from
27
which the weapon was fired. (169 RT 19639-40.) Four incised wounds to the
28
neck did not sever major blood vessels but would have been fatal if not treated
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due to lack of blood. The wounds varied in size and depth, from three-quarters of
2
an inch to three inches deep, and in Dr. Golden’s opinion, they were inflicted
3
before the gunshot wound to the neck. (Id. at 19641-43.)
4
5
iv)
Identification of recovered property
235. On September 5, 1985, Judith Arnold and her sister, Ellen Francis,
6
attended a property line-up. Judith Arnold identified personal property belonging
7
to her parents, including her mother’s wedding rings, a ring box, and a watch.
8
(163 RT 18980-82.) Ellen Francis identified a belt, rings, a necklace, combs, and
9
a pin as belonging to her mother. (Id. at 18985-88.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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m.
Khovananth Incident (July 20, 1985)
2
Counts 31 through 35 (§§ 459, 187(a), 261(2), 288a(c),
3
286(c))
4
i)
5
The attack on Somkid Khovananth
236. Somkid Khovananth and her husband Chainarong Khovananth lived
6
on Schoenborn Street in Sun Valley, Los Angeles County, with their two
7
children. (164 RT 19070-71.) In the early morning of July 20, 1985, Ms.
8
Khovananth was asleep on the living room couch; she got up at 12:30 a.m. to
9
open the door for her husband who was returning from work. Ms. Khovananth
10
locked the front door. Mr. Khovnanth went to the bedroom; Ms. Khovananth
11
stayed in the living room. A sliding glass door from the living room to the
12
backyard was kept open. The screen was shut, as were the curtains on the sliding
13
door. (Id. at 19072-74.)
14
237. Ms. Khovananth was awakened by the sound of the sliding glass
15
door. She looked up and saw a tall, skinny man walk in the living room holding a
16
gun. He told her to be quiet and threatened to kill her. The gunman walked to
17
the hallway leading to the bedroom. (164 RT 19075.) Ms. Khovananth heard a
18
gunshot. The gunman came back to the living room and said that he killed her
19
husband. The gunman told Ms. Khovananth to do what he told her and
20
threatened to kill her children. Every time the man spoke, he called her “bitch.”
21
(Id. at 19076.)
22
238. The gunman pointed the gun at Ms. Khovananth’s head. She told
23
the man that she would give him everything and asked him not to hurt the
24
children. The gunman ripped off her nightgown, led her into the bedroom, and
25
pushed her on the floor. Mr. Khovananth was on the bed, covered with bedding.
26
(164 RT 19077-78.) The gunman forced Ms. Khovananth to have sexual
27
intercourse. Afterward, she was taken into a bathroom where the gunman tied
28
her hands with the cord from a portable hair dryer. (Id. at 19078-81.) The
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gunman beat and slapped Ms. Khovananth, took her to the bedroom again and
2
forced her to perform oral copulation. He forced Ms. Khovananth to have anal
3
intercourse. (Id. at 19081-83.)
4
239. An alarm in the son’s bedroom sounded at 6:00 a.m. By that time, it
5
was daylight. The gunman left Ms. Khovananth with her legs tied and went into
6
the son’s room. Ms. Khovananth heard her son crying. About fifteen minutes
7
later, the gunman came out of the bedroom and went to the kitchen. (164
8
RT 19083-85.) He went back to her son’s room carrying fruit juice. Soon, the
9
gunman returned to Ms. Khovananth’s bedroom; he asked for her jewelry. Ms.
10
Khovananth told him that jewelry was hidden under a kitchen drawer. (Id. at
11
19086-87.) He demanded money; Ms. Khovananth gave him 80 dollars from her
12
purse. She also gave him jewelry and a silver coin collection kept in her son’s
13
room. (Id. at 19087-90.)
14
240. While in her son’s room, Ms. Khovananth saw her son lying on the
15
floor. He was tied up. His pajama pants were torn off and a sock was in his
16
mouth. The gunman beat Ms. Khovananth’s son in her presence. (164
17
RT 19090-92.) The gunman escorted Ms. Khovananth to the daughter’s room.
18
Ms. Khovananth told the gunman not to wake her daughter because she would
19
cry. Ms. Khovananth told the gunman there was more jewelry outside in her
20
husband’s car. (Id. at 19092-93.) The gunman put a coat over Ms. Khovananth’s
21
head, and they went to the garage. Mr. Khovananth’s wallet containing 15
22
dollars was under the front seat of his car. They went back into the house; the
23
gunman pulled out the telephone near the kitchen. (Id. at 19094-96.)
24
241. The gunman asked Ms. Khovananth for a suitcase and put her VCR
25
inside the suitcase. He placed jewelry in a pillowcase and put the pillowcase into
26
the suitcase. The gunman again bound Ms. Khovananth on the bedroom floor.
27
He slapped her before leaving the house. (164 RT 19096-98.)
28
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242. Ms. Khovananth untied her legs with a knife, pulled one hand loose,
2
and ran to her son’s room. She untied her son, got her daughter, and called a
3
neighbor for help. The neighbor took her children while she returned home. She
4
found her husband dead on the bed in their bedroom. (164 RT 19099-100.)
5
6
ii)
The death of Chainarong Khovananth
243. Los Angeles Police Officer Diane Fichtner arrived at the scene at
7
7:00 a.m. on July 20,1985. She found the body of Mr. Khovananth on the bed in
8
the master bedroom with a pool of blood around his head. (164 RT 19140.)
9
244. Coroner Dr. Joseph Cogan performed an autopsy on the body of
10
Chainarong Khovananth on July 21, 1985. Death was caused by a gunshot
11
wound to the head. (167 RT 19406-07.) The entrance wound was near the left
12
ear. In Dr. Cogan’s opinion, the weapon was fired at very close range. A small
13
caliber bullet was recovered from the right side of Mr. Khovananth’s scalp during
14
the autopsy. (Id. at 19407-10.)
15
16
iii)
Physical evidence and shoe print evidence
245. Los Angeles Police Detective Carlos Brizzolara arrived at the scene
17
at 9:30 a.m. He observed a telephone cord in the living room that had been
18
pulled from the wall. Mr. Khovananth’s body had been left on the bed in the
19
master bedroom; the bedroom had been ransacked. (165 RT 19149-54.) The
20
kitchen had also been ransacked; cabinet drawers were pulled out and food items
21
had been spilled on the floor. In the son’s bedroom, items were on the bed and
22
floor. A butcher knife and a jar of apple juice were on the dresser. (Id. at 19156-
23
58.) A partially open suitcase with items inside was on the floor of the son’s
24
bedroom. (Id. at 19158.) Detective Brizzolara observed shoe prints on the front
25
and side porches and on the hallway floor. (Id. at 19158-59.)
26
246. Deputy Vander Wende and criminalist Burke examined shoe prints
27
on the front porch of the Khovananth home on July 21, 1985. (167 RT 19391-
28
92.) Deputy Vander Wende previously observed similar shoe prints at the home
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of Joyce Nelson on Arlight Street in Monterey Park and the Bell and Lang
2
residence in Monrovia. (Id. at 19393-94.) Deputy Vander Wende observed shoe
3
prints outside the sliding glass door at the rear of the living room and a partial
4
shoe print at the back porch. (Id. at 19394-95.) Three lifts were made of the shoe
5
print on the front porch. (Id. at 19397-98.) Deputy VanderWende was
6
unsuccessful in obtaining clear lifts from the hallway and back step. (Id. at
7
19398-99.) Shoe print lifts were also taken from the hall next to the master
8
bedroom door and from the front and back porches. (171 RT 19960-62.)
9
iv)
Eyewitness identification
10
247. Somkid Khovananth initially described the gunman as a male
11
Hispanic, 6’ tall, thin build, thirty to thirty-five years old, wavy brown hair with
12
soft curls, wearing brown pants and a multi-colored shirt. (164 RT 19141.) Ms.
13
Khovananth first identified Petitioner at a live line-up on September 5, 1985. At
14
trial, she again identified Petitioner as the gunman who entered her home on July
15
20, 1985, attacked her, and shot her husband. (Id. at 19108, 19110, 19116.)
16
248. On cross-examination, Ms. Khovananth acknowledged that she had
17
previously described her assailant as having a brown face, like a Mexican, and
18
loose, curly hair. (164 RT 19118-20.) At trial, Petitioner’s hair appeared to be
19
longer than in 1985. Ms. Khovananth had seen Petitioner’s face on television and
20
in the newspaper a few weeks after the incident. She assisted in preparing a
21
composite drawing and remembered that her attacker’s teeth were bad. (Id. at
22
19120-26.) He spoke with an accent, but Ms. Khovananth could not identify his
23
country of origin. He spoke as though he was uneducated. After the incident and
24
before the live line-up, Ms. Khovananth met with police three to four times. She
25
gave a description of the man to police and tried to provide all the details, but she
26
was upset. (Id. at 19128-29.) She recalled that the man wore gloves, taking them
27
off only when he hit her. The gloves were not leather; they were gray or light
28
brown cloth. (Id. at 19130-31.)
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v)
1
Identification of recovered property
2
249. On September 5, 1985, Ms. Khovananth attended a property line-up.
3
She recognized a jade pendant, a chain, a suitcase, a ruby pendant, a jewelry bag,
4
a tie pin, a diamond pendant and chain, a ring, loose diamonds, a watch, and a
5
necklace. All of the items had been taken from her house by the gunman on July
6
20, 1985. Ms. Khovananth identified a photograph of a suitcase that she and her
7
husband owned. One suitcase of the set had been taken from her home. (164
8
RT 19107, 19110-14.)
9
n.
Petersen Incident (August 6, 1985)
10
Counts 36 through 38 (§§ 459, 664/187)
11
i)
12
The attack on Virginia and Christopher Petersen
250. At about 9:00 p.m. on August 5, 1985, Virginia Petersen went to bed
13
in her home at 18241 Acre Street in Northridge, Los Angeles County, while her
14
husband, Christopher Petersen, watched television in the living room. Their four-
15
year old daughter was asleep in her bedroom. (165 RT 19177-78.) When Ms.
16
Petersen retired for the night, the sliding glass door and screen in the den were
17
closed but not locked. (Id. at 19194.) Early in the morning, Ms. Petersen heard
18
footsteps in the living room and from her bed saw a man in the hallway. He was
19
over six feet tall, had a muscular build, wore dark clothing, and had shaggy hair.
20
The man stood at the bedroom doorway holding a silver object in his hands. (Id.
21
at 19178-80.)
22
251. Ms. Petersen asked the man who he was and told him to get out. He
23
lowered the object, then shot her. Ms. Petersen’s face went numb and she fell
24
back, but she did not feel any pain. (165 RT 19181-83.) Mr. Petersen sat up in
25
bed as a second shot was fired; wounded, he fell back in bed. The man stood at
26
the foot of the bed laughing. Mr. Petersen jumped out of bed and gave chase.
27
Ms. Petersen heard two more gunshots. Mr. Petersen fell to the floor. (Id. at
28
19183-85.) The gunman left the house by the sliding glass door. (Id. at 1919789
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19198.) Their daughter started to scream. Ms. Petersen got out of bed, grabbed
2
her daughter, and ran next door. (Id. at 19186.) Finding no one home, Ms.
3
Petersen went back home and dialed 911. She grabbed a towel and wrapped it
4
around her face to stop the bleeding. She ran outside as her husband and
5
daughter were getting into their truck. They drove to Northridge Hospital. (Id. at
6
19186-88.)
7
252. Ms. Petersen had been shot on the left side of her nose; the bullet
8
exited the back of her neck. Mr. Petersen had been shot on the right side of the
9
head; the bullet was still lodged in his neck. (165 RT 19188-89.)
ii)
10
scene
11
12
Fingerprint evidence and physical evidence at the
253. Los Angeles Police Department forensic print examiner Charles
13
Caudell was dispatched to the Petersen home at 1:35 p.m. on August 6, 1985. He
14
took fingerprint lifts from the sliding glass door and screen door. The lifts
15
appeared to be fabric impressions from gardening gloves. (168 RT 19554-56,
16
19559-60.)
17
254. Los Angeles Police Detective Lewis Bobbitt arrived at the Petersen
18
home at 4:00 a.m. on August 6, 1985. He recovered items at the scene, including
19
spent cartridges found in the bedroom. (165 RT 19227-34.) Detective Bobbitt
20
examined a window screen that appeared to have a bullet hole. (Id. at 19235.)
21
255. Mr. Petersen later found a hole in the bedroom wall below the
22
windowsill and above the ordinary position of his wife’s head while in bed. (165
23
RT 19205.) On August 29, 1985, Los Angeles Police Detective David Weller
24
recovered a projectile from the hole in the bedroom wall observed by Mr.
25
Petersen. (Id. at 19245-147.)
26
27
28
iii)
Eyewitness identification
256. In a statement to police, Ms. Petersen said that the gunman had wellmanicured hands. They were cleaner and lighter than the rest of his appearance.
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In Ms. Petersen’s opinion, the gunman’s hands seemed more like those of an
2
artist than a construction worker. (165 RT 19213-15, 19221.) She initially
3
described the suspect as six feet tall, possibly taller, wearing dark tennis shoes,
4
new Levi’s or dark pants, a close-fitting T-shirt or turtleneck sweater. She said
5
he had a very lean face, hollow cheekbones, wild hair, and a diabolical grin. (Id.
6
at 19218-19.)
7
257. At trial, Virginia Petersen identified Petitioner as the intruder on
8
August 6, 1985. Previously, she had identified Petitioner at a live line-up held on
9
September 5, 1985. (165 RT 19189-91, 19201.) She also previously identified
10
Petitioner at the preliminary hearing. Ms. Petersen clearly saw Petitioner’s face
11
during the incident and recalled that his hands were very long and light-colored;
12
he could have been wearing gloves during the incident. (Id. at 19207, 19213.)
13
258. On cross-examination, Ms. Petersen said that she saw photographs
14
of Petitioner on television and in the newspaper. She first saw his photograph on
15
television on the night before his arrest. (165 RT 19215-16, 19221-22.)
16
o.
Abowath Incident (August 8, 1985)
17
Counts 39 through 43 (§§ 459, 187(a), 261(2), 288a(c),
18
286(c))
19
i)
20
The attack on Sakina Abowath
259. Sakina Abowath and Elyas Abowath lived with their two children, a
21
three-year old boy and a 10-week old boy at 21309 Pinehill Lane in Diamond
22
Bar, Los Angeles County. (168 RT 19424-26.)
23
260. At 2:20 a.m. on August 8, 1985, Ms. Abowath awakened and went
24
to feed her baby in another bedroom. She left a light on in the living room and a
25
night light in the bedroom. (168 RT 19425-27, 19436.) After feeding her baby,
26
Ms. Abowath went back to sleep in the master bedroom with her husband.
27
Shortly, she was awakened by a noise that sounded like a “pop.” Suddenly, she
28
was hit very hard on the head and forcibly turned over on her stomach. She was
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handcuffed and hit on the ears, and her hair was pulled. An intruder stood on the
2
bed; he kicked Ms. Abowath in the head very hard with his shoes. (Id. at 19429-
3
30.) He tied her feet with a piece of clothing and stuffed her mouth with clothing.
4
The man slapped her, threatened to kill her children, and ordered her to “swear
5
upon Satan” that she would not scream. (Id. at 19431-32.) The man put a
6
blindfold over her eyes while she was on the floor. Later, the man untied the
7
blindfold, took the gag out of her mouth, and demanded money and jewelry. Ms.
8
Abowath pointed to the closet where several briefcases were kept. (Id. at 19433-
9
37.)
10
261. Ms. Abowath indicated that there was jewelry in a briefcase. The
11
intruder opened the pocket of the briefcase and took out a bag of gold jewelry.
12
(168 RT 19438-39.) He hit Ms. Abowath again, telling her not to look at him.
13
After looking at jewelry in the bathroom under the light, the man came back to
14
her bedroom and demanded money. He retrieved Ms. Abowath’s purse and took
15
her money; he looked for her husband’s wallet in the kitchen. (Id. at 19442-43.)
16
Returning again to the bedroom, the intruder took a ring off her finger and a
17
small chain from her neck. He hit her when she stated that she did not have a
18
diamond wedding ring. He told her to “swear upon Satan” that she did not have a
19
wedding ring. (Id. at 19444-45.)
20
262. The intruder left the room but soon returned and tore off Ms.
21
Abowath’s pajamas. He dragged Ms. Abowath by her hair to the guest bedroom.
22
He pushed her on the bed, beat her again, and told her not to scream. Ms.
23
Abowath sat on the bed as the intruder pulled her mouth to his penis and forced
24
her to perform oral copulation. (168 RT 19445-48.) He forced her to engage in
25
sexual intercourse. Afterwards, he put a bedspread over her face. When Ms.
26
Abowath’s son began crying, the intruder took Ms. Abowath into her son’s room
27
where she laid down with her son who went back to sleep. (Id. at 19448-49.)
28
She was then taken into the guest bedroom, pushed down on the bed, and forced
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to have sexual intercourse again after the man tried unsuccessfully to put his
2
penis in her rectum. (Id. at 19450, 19452-54.) He left the room but returned
3
when her son started screaming. Ms. Abowath told her son to get into bed with
4
her. (Id. at 19451.)
5
263. The intruder tied her three-year old son by his hands and feet,
6
pushed him on her bed, and placed pillows on top of him. The boy complained
7
that he could not breathe. (168 RT 19452.) The man left the room but returned
8
saying that he had hit Ms. Abowath’s husband on the head. He was laughing.
9
(Id. at 19455.) He asked for scotch tape to put over Ms. Abowath’s son’s mouth.
10
Ms. Abowath told him she did not have any tape. He handcuffed her to the
11
doorknob and moved the bed and pillows from the living room against the door.
12
He threatened to return and kill her and the children if she called the police or
13
went outside. She heard a car drive off. (Id. at 19455-59.)
14
264. Ms. Abowath untied her son’s hands and feet and tried to open the
15
door. She saw melon seeds on the hallway floor and panicked because she
16
thought the melon was used to gag her husband. She told her son to go take out
17
whatever was in his father’s mouth, but he returned, saying he had found nothing
18
in his father’s mouth. His father did not wake up. (168 RT 19459-61.) Ms.
19
Abwoath started screaming and told her son to go to the neighbor for help. He
20
left the house and returned with a neighbor who quickly left. Another neighbor,
21
Charles (Bob) Wilson, came in and checked on Mr. Abowath, who did not
22
respond. (Id. at 19462-64.) A police officer arrived and freed Ms. Abowath from
23
the door by kicking off the doorknob. Eventually, the handcuff was cut off with
24
scissors. (Id. at 19465.)
25
265. Pomona Valley Hospital physician Kenneth Moore, M.D., treated
26
Sakina Abowath on August 8, 1985. He noted abrasive injuries to her wrist
27
consistent with being handcuffed, tender areas near her nose, and a small cut to
28
her upper lip. Ms. Abowath suffered bruising and swelling to the vagina and a
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small cut outside the vagina consistent, in Dr. Moore’s opinion, with sexual
2
assault. There was a superficial tear around Ms. Abowath’s anus consistent with
3
forced insertion of a penis into the rectum. (174 RT 20328-31.)
ii)
4
5
The death of Elyas Abowath
266. At 3:43 a.m. on August 8, 1985, the Abowaths’ neighbor Charles
6
(Bob) Wilson, was awakened by the ringing of his front doorbell. The neighbors’
7
son was at the door dressed in pajamas. He appeared frightened and asked
8
Wilson for ice cream. The son had a belt tightly wrapped around his arm. (168
9
RT 19496-98.) Wilson and his wife went next door and found Sakina Abowath
10
handcuffed to a doorway, screaming. She asked for a robe. Wilson’s wife
11
returned home and called police. (Id. at 19498-502.) Charles Wilson checked on
12
Elyas Abowath. He tried to resuscitate Mr. Abowath but concluded that he was
13
dead. (Id. at 19503-04.)
14
267. Deputy Sheriff John Knight responded to the scene at 4:08 a.m. and
15
entered the residence with his partner, Deputy Kirk Smith. He found Ms.
16
Abowath handcuffed to a bedroom door. She was hysterical and asked him to
17
help her husband. Mr. Abowath appeared to be dead; he was not breathing and
18
had no pulse. There was a small amount of blood on the left side of his head.
19
(168 RT 19510-12.)
iii)
20
21
Cause of death
268. Dr. Joseph Cogan performed an autopsy on the body of Elyas
22
Abowath on August 9, 1985. In Dr. Cogan’s opinion, the cause of death was a
23
gunshot wound to the head. There was stippling around the entrance wound
24
above the left ear indicating that the weapon was fired at close range,
25
approximately one inch from Mr. Abowath’s head. (167 RT 19411-12.) A
26
copper-jacketed, small-caliber bullet was recovered during the autopsy. (Id. at
27
19413-14.)
28
iv)
Shoe print evidence and other physical evidence
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269. Sergeant Sheriff Patrick Robinson arrived at the Abowath home at
2
5:40 a.m. He observed that the bottom portion of a window screen next to the
3
sliding glass door had been bent and pulled away from the frame. The window
4
and the sliding door were open. The lock on the slider had pry marks and the
5
screen also was bent. (168 RT 19527-29.) There were shoe prints on the
6
linoleum floor in the kitchen. There was a melon on the kitchen counter; seeds
7
from the melon were scattered on the hallway carpet. Telephone wires in the
8
master bedroom had been cut. (Id. at 19529-32.) Elyas Abowath’s body was
9
found on the bed. Two briefcases and other boxes were on the floor of the master
10
bedroom; the room had been ransacked. A small-caliber expended bullet shell
11
was found on the right side of the mattress. (Id. at 19532-34.)
12
270. Deputy Sheriff Ralph Salazar photographed the Abowath residence
13
and collected evidence. He examined a shoe print on the linoleum floor and took
14
two lifts of the print. (168 RT 19538-42.)
15
v)
16
Eyewitness identification
271. Sakina Abowath attended a live line-up on September 5, 1985, at
17
which she identified Petitioner. At the preliminary hearing, she identified
18
Petitioner as the intruder and assailant. (168 RT 19465-68.) At trial, she
19
identified Petitioner as her assailant. (Id. at 19439.)
20
272. Ms. Abowath initially described her assailant as a light-skinned
21
Caucasian, 6’2” to 6’4”, with light to medium brown hair. (168 RT 19512-14.)
22
She reported that his teeth were stained and crooked. (Id. at 19518.) She recalled
23
that the intruder wore gloves while inside her house. (Id. at 19478.) She assisted
24
in preparing a composite drawing and told the police artist that, based on lighting
25
in her bathroom, she thought that the man’s hair was light brown. (Id. at 19481-
26
83.) She reported that the intruder wore jeans and hard shoes, not tennis shoes.
27
(Id. at 19487, 19490.)
28
vi)
Identification of recovered property
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273. On September 5, 1985, Sakina Abowath attended a property line-up.
2
She identified jewelry, including two gold chains, earrings, an engagement ring, a
3
necklace pendant, a television, and a VCR as property taken from her home by
4
the intruder on August 8, 1985. (168 RT 19468-70.)
5
6
p.
The Uncharged Incident
274. On May 9, 1985, Monrovia Police Officer Thomas Wright
7
responded to a call at 424 West Olive Street in Monrovia, Los Angeles County.
8
Officer Wright found that louvers were removed from the kitchen window; a
9
patio chair pushed against the wall. Officer Wright dusted for fingerprints and
10
lifted several prints and a shoe print from the kitchen sink and a fingerprint from
11
the kitchen awning. A shoe print on the patio that could not be lifted matched the
12
tread pattern of the shoe print found on the sink. (150 RT 17396-403.)
13
14
q.
The Live Line-up
275. A live line-up was conducted and videotaped at the Los Angeles
15
County Jail on September 5, 1985. Petitioner stood in position number two. He
16
was identified by Maria Hernandez, Carol Kyle, Sophie Dickman, Virginia
17
Petersen, Somkid Khovananth, and Sakina Abowath.
18
19
20
21
276. The videotape was admitted into evidence at trial and viewed by the
jury. (169 RT 19571-73, 19575-76.)
r.
Physical Evidence Linking Petitioner to the Crimes
277. Prosecution experts who testified at trial linked Petitioner to many of
22
the alleged crimes. Fingerprints found at the Vincow scene and at the uncharged
23
scene were identified as Petitioner’s fingerprints. Shoe prints found at eight
24
scenes were made by Avia shoes; in seven of those incidents, the shoe was
25
determined to be an Avia aerobics model, size 11 to 12. Petitioner was positively
26
identified by a victim in one of the incidents in which Avia shoe prints were
27
found. In one incident, shoe impressions found at the scene matched Stadia
28
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shoes, size 12, worn by Petitioner at the time of his arrest. Ballistics analysis
2
confirmed that many of the incidents were linked by use of a common weapon.
3
278. The following chart briefly summarizes the physical evidence the
4
prosecution introduced in an attempt to link Petitioner to the charged and
5
uncharged crimes.
6
7
8
Incident
1. Vincow
Evidence
Findings
Fingerprint
Matched Petitioner’s rolled
prints
9
10
2. Hernandez/Okazaki
.22-caliber revolver
11
Bullet fired from same
weapon in Yu and Kneiding
12
13
3. Yu
.22-caliber revolver
weapon in Okazaki and
14
Kneiding
15
16
Bullet fired from same
4. Zazzara
17
Shoe print
Avia, size 11-½ to 12
.22-caliber revolver
Bullet fired from same
18
weapon in Khovananth
19
Shoe print
Avia, size 11 to 12
21
.22-caliber semi-
Jennings .22-caliber semi-
22
automatic
automatic pistol23
Shoe print
Avia
20
23
5. Doi
6. Bell/Lang
24
Gloves
25
26
27
23
28
Jennings Firearms were manufactured in Nevada and Southern
California.
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1
2
Incident
Evidence
Findings
3
7. Kyle
Gloves
4
8. Cannon
Shoe print
Avia, size 11 to 11-½
9. Bennett
Shoe print
Avia, size 11 to 12
5
6
7
8
Gloves
10. Nelson
Shoe print
Avia, size 11-½ to 12
9
Gloves
10
11
12
11. Dickman
Gloves
12. Kneiding
.22-caliber revolver
13
Bullet fired from same
weapon in Okazaki and Yu
14
15
13. Khovananth
16
Shoe print
Avia, size 11-½ to 12
Gloves
17
.22-caliber revolver
18
weapon in Zazzara
19
20
14. Petersen
.25-caliber automatic
Bullet fired from same
weapon in Abowath
21
22
Bullet fired from same
15. Abowath
Shoe print
Stadia, size 12
.25-caliber automatic
Bullet fired from same
23
24
weapon in Petersen
25
26
16. Uncharged
Fingerprint
Matched Petitioner’s rolled
prints
27
28
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1
2
Incident
Evidence
Shoe print
3
Findings
Avia
4
5
6
i.
Fingerprint evidence
279. the prosecution asserted that Petitioner’s rolled fingerprints matched
7
lifts taken from the Vincow home and in the uncharged case. The prosecution
8
also asserted that Petitioner’s fingerprints also matched fingerprints found inside
9
a 1976 Pontiac Grand Prix automobile, on the contents of a bag seized from the
10
Greyhound bus station, and on items found inside a backpack belonging to
11
Petitioner seized at the time of his arrest.
12
280. Deputy Sheriff Hannah Woods, an expert in fingerprint
13
identification, compared Petitioner’s rolled fingerprints with latent prints found
14
on the window screen at the Vincow residence. In Woods’s opinion, the latent
15
prints lifted at the Vincow residence matched Petitioner’s rolled fingerprints.
16
(175 RT 20489-90, 20493-97.) Woods also positively identified Petitioner’s
17
fingerprints on lifts from the scene of the uncharged case at 424 West Olive
18
Street, Monrovia. (Id. at 20499-501.) Woods further identified Petitioner’s
19
fingerprints on lifts taken from a coffee cup retrieved from the Pontiac Grand
20
Prix and from the vehicle’s rearview mirror. (Id. at 20502-03.) Woods identified
21
Petitioner’s fingerprints on items found inside the Greyhound bag and backpack.
22
(Id. at 20504-06.)
23
24
ii.
Shoe print evidence
281. Criminalist Gerald Burke examined the shoe print evidence from
25
eight crime scenes: Zazzara, Doi, Bell and Lang, Cannon, Bennett, Nelson,
26
Khovananth, and the uncharged incident. Burke concluded that some of the
27
impressions found at the scenes were made by Avia’s aerobic or basketball shoes,
28
ranging in sizes 11 to 12. In Burke’s opinion, a size 12 Stadia shoe seized from
99
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Petitioner following his arrest matched a shoe print pattern found at the Abowath
2
scene. (See infra.)
3
282. Avia Footwear data processing manager Jeff Brewer testified about
4
sales of the Avia Model 445B. The men’s Avia aerobics model 445B was no
5
longer being produced. The average life of a particular shoe model was typically
6
eighteen months. Of the total production run of Model 445B, 5.1% were made in
7
size 11-½. (174 RT 20279-80.) In Southern California, from January through
8
July 1985, twenty-four pairs of Avia model 445B, black in color, were sold.
9
Only one pair of size 11-½ was sold. (Id. at 20280-81.) In the San Francisco Bay
10
Area, forty-one pairs of model 445B shoes were sold from January through July
11
1985. Only two of the pairs sold were size 11-½. (Id. at 20281-82.) In all, three
12
pairs of size 11-½ men’s model 445B were sold in the San Francisco Bay Area
13
and Southern California. (Id. at 20283.) In Northern California and Nevada, a
14
total of ninety-four pairs of size 11-½ shoes were sold. Nationally, there were
15
1,225 pairs of model 445B, size 11-½ shoes sold during that period of time. All
16
the shoes had the same width. (Id. at 20283-85.)
17
283. The total number of Avia aerobics shoes sold from January through
18
the end of July 1985 was 33,447. A large percentage, 72.7%, went to
19
undesignated areas of the country. The sizes that were shipped in the largest
20
volume were sizes 9-½ and 10. No records were kept on shoes that could be
21
“pirated.” Avia did not sell new soles for its own shoes. (174 RT 20286-89.)
22
Avia shoes were manufactured overseas. Avia did not license the sole pattern to
23
other companies. Sales records were adjusted for returns; the men’s model 455B
24
was adjusted for returns. (Id. at 20289-95.)
25
284. The total number of men’s white aerobics shoes, model 445 sold
26
from January through July 1985 was 31,110; 580 pairs were sold in Southern
27
California, 38 pairs in the Bay Area, 6,192 pairs in Northern California and
28
Nevada. There were approximately 24,300 pairs sold to national distributors.
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The shoe, in both black and white, first came on the market in mid-February
2
1985. (174 RT 20296-99.)
3
285. Jerry Stubblefield, formerly vice president of research and
4
development for Avia Footwear, testified that he designed the Avia sole which
5
had two patented features: a cantilever outsole based on a concave shape, to
6
deflect and absorb shock, and pivotal flex joints to allow the foot to bend and
7
pivot at the same time. (174 RT 20301-03.) The coach and basketball models in
8
both white and black used the same sole. The coach model came in black; the
9
basketball model in white. Avia did not make black basketball shoes or high-top
10
shoes. In 1985, Avia made a white high-top basketball model. (Id. at 20303-04.)
11
The white aerobics shoe, model 445 came on the market in November 1984.
12
There was no structural difference between the sole of the white and black
13
models. There were twenty-four molds manufactured in Taiwan for the run; only
14
one mold was used for size 11-½. (Id. at 20308-09.)
15
286. Although the same patents applied to the aerobics and coach models
16
shoes, there were a few differences between them. The pattern in the heel of the
17
coach model did not go to the back of the heel, and the length of the groove also
18
was wider down the center of the sole. There was a slight difference between the
19
pivotal flex joints, and the chevrons did not meet the flex joint. (174 RT 20304-
20
05, 20319.) Avia won a patent infringement lawsuit against LA Gear sometime
21
after mid-1985. The infringement was based on the back part of the Avia shoe
22
sole combined with another company’s sole and a different tread pattern. There
23
was no infringement on the pivotal portion of the sole. (Id. at 20306-07.)
24
287. The Stadia shoes were manufactured by Kinney Corporation. Many
25
shoe companies skipped half-sizes above size 11 because there was little
26
difference, only about one-sixth of an inch in the actual length, and one-twelfth of
27
an inch in width. Stadia shoes did not come in size 11-½. (174 RT 20310-13.)
28
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The Stadia shoes were less expensive than the Avia aerobics shoe, which cost
2
about 45 dollars. (Id. at 20322.)
3
288. Stubblefield testified that, of the shoe prints provided by the Sheriff
4
Department that he examined, at least one or two prints were made by the Avia
5
aerobics shoe, based on the distinctive heel pattern. He further testified that all of
6
the partial shoe prints that he examined were made by Avia Shoes, either the
7
aerobics or basketball model. (174 RT 20317-18.) Avia provided outsole
8
replacement jogging shoes. (Id. at 20316.) Avia manufactured sole replacements
9
for jogging shoes that were different from the aerobics shoe. Stubblefield was
10
uncertain whether Avia also produced outsoles for the aerobics model. (Id. at
11
20321, 20324.)
12
289. Criminalist Burke had no previous experience in the comparison of
13
shoe print evidence. In June 1985, Burke identified an Avia shoe sole after
14
examining ninety-seven different brands of shoes. (174 RT 20373-76.) Around
15
July 1, 1985, Sergeant Salerno brought a pair of Avia shoes to Burke’s lab.
16
Shortly thereafter, Burke went to Avia Footwear in Oregon where he met with
17
Stubblefield to compare the Avia aerobics model shoe to basketball and coach
18
models. (Id. at 20377-79.) He observed noticeable differences between the
19
structure of the two types of soles; the aerobics outsole was different than the
20
Avia basketball or coach model. Burke made inked impressions of the outsoles
21
and prepared overlays to compare shoe print patterns found at various scenes.
22
(Id. at 20382-84.) He spent two and one-half months evaluating the shoe print
23
evidence in this case. (175 RT 20430.)
24
25
a)
Zazzara Incident
290. Burke examined plaster casts from shoe print impressions found in
26
the flowerbed and on a bucket lid at the Zazzara home. He compared the sole
27
patterns of the impressions to the Avia aerobics shoe using overlays. The pattern
28
of the casts fit the Avia aerobics model, size 11-½ to 12. A partial pattern of one
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of the impressions was consistent with the Avia chevron pattern. (174 RT 20386-
2
89.) The size 11-½ aerobics model had a unique sole pattern of ten chevrons and
3
a narrow ridge in the heel. The line around the chevrons had a more gentle slope
4
than other Avia models. The ridge pattern on the coach or basketball model
5
which had the same sole and only nine chevrons was wider than the aerobics
6
model. (Id. at 20392-95.)
7
8
9
b)
Doi Incident
291. Burke compared plaster casts from shoe prints at the Doi scene with
Avia overlays and found the impressions were made by an Avia aerobics or
10
basketball shoe, size 11 to 12. He was unable to determine the exact model. (174
11
RT 20389-91.) A right shoe print found outside the bathroom window was an
12
Avia shoe. Based on Burke’s research, in his opinion no other model or brand of
13
shoe had the same sole pattern as the Avia shoe. (Id. at 20396, 20398-99.)
14
15
c)
Bell and Lang Incident
292. The concentric circle pattern on an electric clock was consistent with
16
the unique circle pattern found on the sole of an Avia shoe. Burke was unable to
17
determine the model or size. (174 RT 20400-01.) In his early analysis, Burke
18
found dissimilarities in the sole patterns of shoe impressions found at the Zazzara
19
and Bell and Lang scenes but later changed his mind after obtaining flat outsoles
20
from Avia. (175 RT 20467-71, 20476-79.)
21
d)
Cannon Incident
22
293. Burke examined a partial shoe print found on a piece of tissue paper
23
found in the northeast bedroom and an outline of a shoe print found on carpeting
24
in the southeast bedroom. The partial print on the tissue was consistent with an
25
Avia aerobics left shoe; but the size could not be determined. The shoe print on
26
the carpet was similar to an Avia aerobics shoe, size 11 or 11-½. Both prints
27
shared similar characteristics, including the chevron pattern. (175 RT 20405-09.)
28
e)
Bennett Incident
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294. Burke examined a pink comforter and photographs of two partial
2
shoe prints on the comforter. In Burke’s opinion, the more complete shoe print
3
was an Avia aerobics shoe, size 11 to 12. (175 RT 20410-12, 20448.)
f)
4
Nelson Incident
5
295. Burke examined lifts of shoe prints from the back porch and
6
compared them to the Avia overlays. In Burke’s opinion, one of the shoe prints
7
was made by an Avia aerobics shoe size 11-½ to 12. The remaining shoe print
8
lifts did not show enough detail to determine the shoe’s model, but, in Burke’s
9
opinion, they were made by an Avia shoe. (175 RT 20412-14.)
g)
10
11
Khovananth Incident
296. Burke examined shoe print lifts from the front porch, back step near
12
the sliding glass door, and hallway. In his opinion, the impression found on the
13
front porch was made by an Avia aerobics shoe, size 11-½ to 12. The back step
14
and hallway patterns were consistent with an Avia shoe. (175 RT 20415-20.)
h)
15
16
Uncharged Incident
297. Burke examined a shoe print lift that appeared to have been made by
17
an Avia shoe. He was unable to determine the model or size. (174 RT 20397-
18
98.) Burke testified that in measuring shoe print impressions, slippage of the foot
19
and the type of surface must be considered. As a result of these variables, it was
20
not possible to make precise measurements of all prints. (175 RT 20421-23,
21
20435.)
i)
22
23
Abowath Incident
298. In Burke’s opinion, a shoe print lifted from the dining room floor
24
was made by a Stadia shoe, but Burke could not determine whether it was made
25
by a left or right shoe. Burke examined Petitioner’s Stadia shoes, size 12, and
26
found they matched the dot matrix pattern of the lifted impression. (175
27
RT 20423-27.)
28
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299. On cross-examination, Burke conceded that the size of shoe prints
2
involved ranged from size 11 to 12. (175 RT 20435-36.) Burke’s measurements
3
of a shoe outsole were made by placing the sole against a wall and estimating the
4
distance from one end to the other. (Id. at 20438-42, 20450-53.) In some
5
instances, his measurements were affected by the nature of the surface on which
6
the measurement was made, for example, plaster casts in the Zazzara and Doi
7
incidents. (Id. at 20454-60.) In the Bell and Lang and Cannon incidents, there
8
were insufficient impressions to obtain accurate measurements. (Id. at 20460-
9
61.) In the Bennett incident, the shoe size was estimated by counting the number
10
of chevrons in the sole pattern. (Id. at 20462-63.) In the Nelson and Khovananth
11
incidents, Burke made measurements of lifts taken from the scenes, then
12
compared the sole patterns of the lifts to overlays. (Id. at 20464-65.) The
13
concentric sole pattern was not found on any other shoes that he examined. (Id.
14
at 20436-37.)
15
16
iii.
Ballistics and firearms evidence
300. In the eight incidents in which a firearm was used, four different
17
firearms were identified: (1) one .22-caliber firearm fired all the bullets
18
recovered in the Okazaki, Yu, and Kneiding incidents; (2) another .22-caliber
19
firearm fired bullets recovered in both the Zazzara and Khovananth incidents; (3)
20
a Jennings .22-caliber, long-rifle, semi-automatic pistol was used in the Doi
21
incident; and (4) a single .25-caliber firearm fired bullets in both the Abowath
22
and Petersen incidents.
23
301. Deputy Sheriff Edward Robinson worked in the firearm
24
identification section; he first became involved in the case in April 1986. (172
25
RT 20008-12.) Deputy Robinson testified that firearm identification required the
26
use of a comparison microscope to manipulate bullets from different angles. All
27
of the bullets and bullet fragments in this case were photographed through the
28
comparison microscope by a camera attached above the eyepiece in order to
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demonstrate identifiable marks. Each photograph was numbered; notes were
2
made of the findings. (Id. at 20016-18.) In Robinson’s opinion, a positive
3
identification meant that a bullet was fired from a firearm “to the exclusion of all
4
other firearms.” Microscopes in his laboratory were calibrated twice yearly. (Id.
5
at 20082, 20085.)
a)
6
Okazaki, Yu, and Kneiding Incidents
7
302. Based on his examination of projectiles recovered at the three
8
scenes, in Robinson’s opinion the bullets were all fired from the same .22-caliber
9
firearm. Projectiles in the Okazaki incident (Prosecution’s Trial Ex. 5-A), the
10
Kneiding incident (Prosecution’s Trial Ex. 30-E), and the Yu incident
11
(Prosecution’s Trial Ex. 6-1) had identical characteristics: six lands and grooves
12
with a right-hand twist, the most common characteristics of .22-caliber firearms.
13
Robinson was unable to determine the manufacturer and exact type of firearm
14
that fired the recovered bullets. (172 RT 20034-46.)
15
b)
Zazzara and Khovananth Incidents
303. In Robinson’s opinion, projectiles fired in both incidents
16
17
(Prosecution’s Trial Exs. 9-G and 32-F, respectively) were fired from the same
18
.22-caliber firearm. (172 RT 20047-49.) The firearm was different from the .22-
19
caliber firearm used in the Okazaki, Yu and Kneiding incidents. (Id. at 20051-
20
52.)
21
22
c)
Doi Incident
304. A Jennings semi-automatic pistol (Prosecution’s Trial Ex. 46) fires
23
.22-caliber, long-rifle ammunition. Long-rifle ammunition refers to the size of
24
projectile and can be fired from a handgun. (172 RT 20057-58.) Robinson
25
compared test fires from the Jennings pistol (Prosecution’s Trial Ex. 46) to a
26
bullet fragment recovered from William Doi (Prosecution’s Trial Ex. 11-B).
27
Robinson concluded that the bullet was fired from the Jennings pistol. In
28
Robinson’s opinion, a cartridge casing found on the hallway floor of the Doi
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residence (Prosecution’s Trial Ex. 11-B) was fired from the same pistol as well.
2
(Id. at 20060-65.)
3
305. Robinson determined that the Jennings firearm used in the Doi
4
incident was not used in either the Okazaki, Yu and Kneiding incidents or in the
5
Zazzara and Khovananth incidents. (172 RT 20065-66, 20078.)
d)
6
Petersen and Abowath Incidents
7
306. Robinson compared the bullet recovered from Elyas Abowath and a
8
cartridge casing found at the scene (Prosecution’s Trial Ex. 40-G) with expended
9
.25-caliber cartridge casings and a slug or deformed bullet in the Petersen
10
incident (Prosecution’s Trial Exs. 38-B and 38-C). In Robinson’s opinion, the
11
cartridge casings and bullets in both cases were fired from the same .25-caliber
12
firearm. A .25-caliber weapon was not recovered. (172 RT 20066-70.)
13
307. Robinson compared .25-caliber ammunition recovered from the
14
Greyhound bag (Prosecution’s Trial Ex. 52-L) with .25-caliber long-rifle
15
cartridge casings in the Abowath and Petersen incidents. In his opinion, the tool
16
marks on the expended .25-caliber cartridge casings in those incidents were the
17
same as the tool marks on the .25-caliber live ammunition from the Greyhound
18
bag. (172 RT 20071-76.)
19
20
iv.
Recovery of .22-caliber Jennings pistol
308. Jesse Perez testified that he met Petitioner through Petitioner’s
21
brother, Julio Ramirez, who lived near Florence Avenue and Central Avenue in
22
Los Angeles. (170 RT 19653-54.) Perez often saw Petitioner at the Greyhound
23
bus station in downtown Los Angeles where Perez frequently worked as an
24
unlicensed taxi driver. He once drove Petitioner to Tijuana. (Id. at 19654-55.)
25
He also drove Petitioner around Los Angeles. On one occasion, Perez drove
26
Petitioner to a barbershop at Alvarado and Third Streets where Perez saw Felipe
27
Solano. (Id. at 19655-56; see infra.) At times, Petitioner called himself Richard
28
Moreno. He also had a nickname “Greñas” which referred to his long, uncombed
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hair. (Id. at 19711-12.) Petitioner told Perez that he liked to go to yellow houses
2
because “orientals live in yellow houses,” and that he liked to burglarize their
3
houses for jewelry since the victims would not retaliate. (Id. at 19712-14.)
4
309. Perez denied that he had committed any crimes with Petitioner. He
5
testified that his daughter was a Deputy Marshal. (170 RT 19657.) In August
6
1985, he met with Los Angeles sheriff deputies at his daughter’s insistence. The
7
meeting occurred after Perez saw a description of the Night Stalker in the
8
newspaper; he told his daughter that Petitioner fit the description of the suspect.
9
(Id. at 19657-61.)
10
310. Perez testified that he obtained the .22-caliber, long-rifle semi-
11
automatic pistol and ammunition clip (Prosecution’s Trial Ex. 46) from
12
Petitioner. He gave the weapon to his girlfriend, Esperanza Contreras, in Tijuana.
13
(170 RT 19661-63.) Perez was granted immunity from prosecution for being an
14
ex-felon in possession of a firearm. He was sixty-five years old and had lived in
15
Los Angeles since 1969. (Id. at 19651, 19670-71, 19709.) He previously had
16
been convicted of manslaughter following a barroom fight and had served a
17
prison sentence. Forty years earlier he had been sentenced to prison on a
18
burglary conviction. (Id. at 19652, 19709.)
19
311. Perez accompanied Sheriff Detective Aguilar to Tijuana to retrieve
20
the Jennings pistol from Contreras on August 31, 1985, the day Petitioner was
21
arrested. Contreras turned the weapon over to Detective Aguilar. (170
22
RT 19666-69, 19676.)
23
312. On cross-examination, Perez did not recall that he had previously
24
testified at the preliminary hearing about asking Petitioner to sell him a handgun
25
six to nine months before Petitioner’s arrest. (170 RT 19679-81.) Perez once
26
saw a black .25- or .32-caliber automatic firearm in a car that Petitioner drove.
27
(Id. at 19664-65.) Perez worked odd jobs, doing residential construction work
28
for individuals in west Los Angeles. He never discussed with Petitioner the
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locations of his jobs or what was inside the homes where he worked. He also
2
drove people to Tijuana off and on during 1985 in several cars, including a white
3
Dodge station wagon. (Id. at 19685-92.) Petitioner bought Perez lunch in
4
exchange for driving him a few times, once to a pool hall to get money and, on
5
another occasion, to Felipe Solano’s home. (Id. at 19698-700.) Perez denied that
6
he ever drove Felipe Solano to Tijuana. (Id. at 19693.)
7
313. Esperanza Contreras testified that she had been living in Tijuana,
8
Mexico for fifteen years and that she knew Jesse Perez. She first saw the
9
handgun (Prosecution’s Trial Ex. 46) three years prior to trial. Perez brought it to
10
her because she needed a gun for protection. (170 RT 19723-24.) She kept it in a
11
cabinet; it did not have any bullets. She had the gun for about a month and then
12
gave it to a police officer. She was granted immunity from prosecution at the
13
preliminary hearing. (Id. at 19725-26.) She did not know Petitioner. (Id. at
14
19727.)
15
314. Sheriff investigator Wayne Griggs met Jesse Perez on August 30,
16
1985 at the sheriff homicide bureau in downtown Los Angeles. He made
17
arrangements to accompany Perez and Sergeant Aguilar by helicopter to San
18
Diego the next morning. They then traveled to Tijuana. Perez left Griggs and
19
Aguilar at a restaurant. He returned an hour later with Esperanza Contreras who
20
surrendered a .22-caliber Jennings semi-automatic pistol. At the Customs office
21
at the border, Griggs found that the weapon was loaded with a clip containing
22
five .22-caliber rounds. (170 RT 19666-69, 176 RT 20576-79.)
23
v.
Recovery of stolen property
24
315. After Petitioner’s arrest, property was recovered that had been taken
25
from the following victims: Doi, Bell, Lang, Kyle, Cannon, Diclanan, Kneiding,
26
Khovananth, and Abowath. Donna Myers, who lived in the San Francisco Bay
27
area and was acquainted with Petitioner, testified that Petitioner gave her some
28
jewelry in 1985. Felipe Solano, a known Los Angeles “fence,” also testified that
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he bought many items from Petitioner, including jewelry. Property belonging to
2
the victims was also recovered from Petitioner’s family in El Paso.
a)
3
Donna Myers
4
316. Donna Myers lived in San Pablo in the East Bay area. In 1979, she
5
met Armando Rodriguez. (169 RT 19579-80.) That same year, she went to visit
6
Rodriguez’s relatives in El Paso, Texas; there she met Petitioner. Between 1979
7
and 1981, Petitioner stayed a few times at her home in Richmond, California,
8
which she shared with Rodriguez. Later, after she had moved to live alone in San
9
Pablo, Petitioner and Rodriguez frequently came to visit her. (Id. at 19581-82.)
10
317. On August 16, 1985, Petitioner came alone to her house. He
11
brought a jewelry box containing jewelry and asked Myers to hold it for him. A
12
few days later, Petitioner returned to Myers’s home to pick up his things.
13
Petitioner gave her the jewelry box, a bracelet, and three rings. She described the
14
box as glass, 6- 8” wide, with a lid. Petitioner took the rest of the jewelry with
15
him when he left. Myers described the jewelry as “14 carat gold, good jewelry.”
16
(169 RT 19583-86.) Myers kept the jewelry box and gave the bracelet to her
17
daughter, Deleen Gregg, and a ring to her granddaughter. She gave a man’s ring
18
to her son, Floyd Joseph Dvorak, Jr., and kept one ring for herself. (Id. at 19586-
19
88.)
20
318. On August 30, 1985, Myers was contacted by San Francisco Police
21
Officers Frank Falzon and Carl Klotz. They asked her about the bracelet that she
22
had given to her daughter. She explained how she got the jewelry and turned
23
over the jewelry box and ring to police. Myers indicated that she knew Petitioner
24
as “Rick.” In an effort to obtain his last name, she gave police a telephone
25
number for Armando Rodriguez. (169 RT 19589-91.)
26
319. In 1985, Myers saw Petitioner dressed in dark pants, shirt, and
27
shoes. Petitioner told her he wore dark clothing so that he would not be seen at
28
night. He also told her that he was “ripping people off.” She saw Petitioner
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wearing brown cloth garden gloves on several occasions. (169 RT 19592-93.)
2
Several times, Petitioner brought costume jewelry to her home. Myers watched
3
Petitioner box up jewelry; he told her he was going to send it to his sister, Rosie.
4
In mid-1985, Petitioner gave her 500 dollars to hold for him. He told her that if
5
anything happened to him, she should mail the money to Rosie. He wrote her
6
telephone number on an envelope. Shortly thereafter, Petitioner picked up the
7
money. Myers gave the envelope to police on August 30, 1985. (Id. at 19593-
8
95.) On one occasion, Petitioner gave Myers 75 dollars, and he later told her to
9
wire the money to Los Angeles in the name of Rick Mena. (Id. at 19599-600.)
10
Myers testified that Petitioner had an ink drawing of a pentagram on his left arm,
11
but it was not a tattoo. Petitioner told Myers that Satan was his “supreme being.”
12
(Id. at 19596.) Once, she saw Petitioner examine a large police revolver that he
13
was going to buy from Rodriguez, but eventually he did not buy the gun. She
14
never saw Petitioner carry a gun. Petitioner told her he was fencing jewelry in
15
Los Angeles. In 1985, Petitioner claimed to have a master key for Datsun and
16
Toyota vehicles. (Id. at 19596-98.)
17
320. In 1985, Myers also saw Petitioner in possession of foreign coins
18
and coin purses. (169 RT 19601.) On one occasion, Petitioner asked if she was
19
afraid of him; he told Myers he could kill her and that no one would know. In
20
late August 1985, they watched television and saw a composite drawing of “the
21
Night Stalker.” Myers told Petitioner that he fit the description, but “he didn’t
22
have enough guts to kill anybody.” (Id. at 19602.) She testified that Petitioner’s
23
teeth were discolored, chipped, and decayed. (Id. at 19598.) Petitioner used a
24
weight gain supplement to put on weight. In August 1985, Petitioner told Myers
25
that he left Los Angeles to get away for a while. (Id. at 19603.) Petitioner was
26
peaceful around Myers and her family. (Id. at 19605-07.)
27
28
321. Earl Gregg, Myers’s son-in-law, also lived in San Pablo. He
testified that he had known Petitioner for ten years; he met him through Armando
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Rodriguez. (169 RT 19618-20.) Around Easter 1985, Gregg saw Petitioner at
2
Myers’s house. Petitioner asked Gregg if he wanted to buy a gun. Petitioner
3
showed him two guns: a .25-caliber automatic and a small-caliber, black revolver
4
that resembled the Jennings handgun (Prosecution’s Trial Ex. 46). Petitioner said
5
he had some rifles, but Gregg never saw them. (160 RT 19620-23.) Petitioner
6
pulled the handguns out of a brown, zippered gym bag. (Id. at 19623, 19625-26.)
7
Gregg never saw Petitioner with a backpack. (Id. at 19628.)
8
9
b)
Felipe Solano
322. Felipe Solano first testified at the preliminary hearing and, at trial,
10
was granted immunity from prosecution for receiving stolen property. (172
11
RT 20112-14.) In 1984 and 1985, Solano lived at 842 Laveta Terrace, Echo Park
12
in Los Angeles County. (Id. at 20115.) He first met Petitioner in late November
13
or early December 1984 at the Greyhound bus station on Sixth Street in Los
14
Angeles. After meeting Solano, Petitioner offered to sell Solano a small car.
15
About five days later, Petitioner called about the car and then drove to Solano’s
16
house in a maroon or dark brown Toyota station wagon. Petitioner offered to sell
17
the vehicle to Solano but did not have the pink slip. (Id. at 20116-19.)
18
323. A week later, Petitioner returned to Solano’s home with a television
19
that he sold to Solano for approximately 200 dollars. Petitioner told Solano that
20
his name was Ricardo Moreno; he also told Solano that his name was David.
21
(172 RT 20119-20.) Several weeks later, Petitioner brought Solano some
22
jewelry, including three rings. Solano did not buy anything. Petitioner gave him
23
some colored chains and bracelets and indicated they were costume jewelry. (Id.
24
at 20120-22.) Petitioner again offered to sell jewelry to Solano in 1985. Solano
25
bought a piece of gold jewelry, marked “14 K” or “18 K.” Altogether, Solano
26
bought jewelry from Petitioner eight to ten times; he also bought a television,
27
VCR, and radio. (Id. at 20123-25.) Petitioner gave Solano some pieces of
28
costume jewelry that Solano gave to his wife; he saved the gold jewelry. Solano
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denied that he sold any of the jewelry obtained from Petitioner to others. He did
2
sell the television and radio to Jorge Castro who lived in a hotel near Alvarado
3
Street between Fifth and Sixth Streets. (Id. at 20126-27.) After police contacted
4
him, Solano reclaimed the television and radio from Castro and gave Castro back
5
his money. (Id. at 20127-28.)
6
324. Solano knew about the price of gold jewelry by window shopping at
7
jewelry stores. The prices he paid to Petitioner for jewelry were “ridiculous” and
8
“cheap.” (172 RT 20128-29.) Solano also bought clothes from four to five
9
people who hung around a pool hall on Alvarado Street. He believed the clothing
10
and jewelry were stolen because of the inexpensive prices that he paid for them.
11
(Id. at 20130-31.) Solano last bought jewelry from Petitioner in August 1985.
12
On occasion, Solano gave Petitioner money even though he did not buy anything
13
from him. Twice, he wired money to Petitioner in San Francisco in the name of
14
Ricardo Moreno. (Id. at 20132-33.)
15
325. Solano testified that Petitioner usually wore dark clothes. Many
16
times, Petitioner wore a baseball cap with lettering similar to the cap with AC/DC
17
written on it. (Prosecution’s Trial Ex. 3-E.) Solano saw a star and circle drawing
18
on Petitioner’s left forearm and his palm. (172 RT 20133-35.)
19
326. Solano first saw Petitioner’s photograph on television on August 30,
20
1985, the night before his arrest. Solano had last seen Petitioner two days earlier
21
when Petitioner asked him for money. Petitioner was wearing a light, short-
22
sleeved shirt and was driving a motorcycle. Petitioner had an object shaped like a
23
gun tucked under his shirt. Petitioner indicated he needed money “because he
24
was very hot and he had to leave the city.” (172 RT 20135-36; 173 RT 20236.)
25
Afterward, Solano moved his wife and children out of their house. He was afraid
26
because he had seen a picture on television of a station wagon similar to the one
27
driven by Petitioner. He gave some of the jewelry obtained from Petitioner to his
28
son; he took other pieces to a factory where he worked. (172 RT 20137-39.) The
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night before Petitioner was arrested, he called Solano at approximately 11:00
2
p.m. and asked him for 1,000 dollars. Solano told Petitioner he did not have any
3
money. Petitioner said to him, “In the morning I’m going for it.” (Id. at 20136-
4
37.)
5
327. Police came to Solano’s home on the day after Petitioner’s arrest and
6
asked him if he knew Petitioner. He admitted that he did. Solano’s house was
7
searched by police and property was impounded. (172 RT 20140-41.)
8
328. Solano identified photographs of a Pontiac Grand Prix as a vehicle
9
that Petitioner drove on two to three occasions. (Prosecution’s Trial Exs. 48 and
10
48-A; 172 RT 20145-46.) Solano once saw a woman in the car with Petitioner,
11
but he did not see her face. On some occasions, Petitioner arrived at Solano’s
12
house on foot. (173 RT 20196-97.)
13
329. On cross-examination, Solano admitted that in his first police
14
interview he did not tell officers about property that he had moved from his house
15
to other locations. (173 RT 20152.) He also did not disclose to police that he
16
kept jewelry in his van. After a police search of his van failed to yield any
17
jewelry, Solano turned over more jewelry to police, including a wedding ring set.
18
(Id. at 20205-07.) The day after Petitioner’s arrest, Solano spoke to a woman at a
19
pool hall about buying gold and silver chains. (Id. at 20188-91.) He saw the
20
woman again the next night at his home. He was angry that the woman came to
21
his home; he did not buy anything from her. (Id. at 20191-93.)
22
330. Solano admitted that Eva Castillo24 worked at his home before he
23
met Petitioner. On at least one occasion, Solano saw Castillo with Petitioner at
24
the House of Billiards on Alvarado Street. Solano denied that Castillo ever sold
25
him jewelry. (173 RT 20200-05.)
26
27
28
24
Eva Castillo is an alias for Rosa Solis. See infra.
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331. Solano also testified that during a police interview he said he
2
received a revolver from Petitioner, but he did not know the caliber. Solano kept
3
the gun in his car for safety reasons. He did not remember whether or not the gun
4
had ammunition. (173 RT 20213-15.) On one occasion, Solano saw Petitioner
5
clean his hands with a red-stained pillowcase. (Id. at 20231.)
6
332. Petitioner frequently asked Solano for money, usually 15 to 20
7
dollars. When Solano loaned him money, Petitioner did not pay him back. In
8
total, Solano paid Petitioner approximately 2,000 to 2,500 dollars for the property
9
he bought. (173 RT 20215-17.) After Petitioner’s arrest, Solano gave him some
10
money in jail. (Id. at 20220-21.)
11
333. On August 30 and 31, 1985, Sheriff Detective Frank Durazo
12
attempted to develop probable cause to search Solano’s home after learning that
13
Solano had bought stolen property from Petitioner. Sandra Hotchkiss, a police
14
informer and drug user, participated in the scheme. She was unsuccessful in
15
selling property to Solano, both at the pool hall on Alvarado Street and at
16
Solano’s home. (173 RT 20238-46.)
17
334. On the night of August 31, 1985, after Hotchkiss’s failed efforts to
18
sell jewelry to Solano, Detective Durazo and Deputy Layton went to Solano’s
19
house and spoke with him about Petitioner. Solano said that he had bought
20
property from “Richard.” Solano mentioned having seen a composite drawing on
21
television. On September 1, 1985, Solano consented to a search of his residence.
22
(173 RT 20246-47.) Sergeant John Yarbrough acted as custodian for property
23
recovered from the house and identified by Solano as having been sold to him by
24
Petitioner. (Id. at 20249-51.) Yarbrough observed a .38-caliber blue steel
25
revolver inside a Chevrolet parked in the driveway of the house. (176 RT 20557-
26
58.) Solano told police the weapon belonged to Petitioner. (Id. at 20531-32.)
27
28
335. On September 1, 1985, the day of the search, Sergeant Carlos Avila
also interviewed Solano in Spanish at the homicide bureau. The conversation
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was tape-recorded. (176 RT 20523-24.) Solano admitted buying property from
2
Petitioner. On September 2, 1985, Sergeant Avila and Detective Durazo met
3
Solano to recover more property. Solano’s nephew, Alejandro Solano, took them
4
to a table factory on East 23rd Street in Los Angeles where he retrieved numerous
5
items. (Id. at 20524-26.) Later that day, Felipe Solano took the officers to his
6
son’s home at 3000 Greenleaf Avenue in West Covina. There, Felipe Solano, Jr.,
7
turned over three cloth rolls containing jewelry. (Id. at 20526-27.)
8
9
336. On September 3, 1985, Sergeant Avila received a call from Solano
about still more property at another table factory. Solano turned over two
10
cameras, a ring set, and some other items; he explained that he had forgotten
11
about this additional property. (176 RT 20527-28.) Later in September 1985,
12
Solano turned over a television set, radio, and six to seven empty jewelry boxes.
13
(Id. at 20529-30.) Solano told police that all the property that he had turned over
14
to the police originally came from Petitioner. (Id. at 20534.)
15
16
c)
Petitioner’s family in Texas
337. On August 30, 1985, Sheriff Sergeant Robert Perry made
17
arrangements to travel to El Paso, Texas, to investigate Petitioner’s background
18
and to retrieve stolen property from his family. (176 RT 20537-38.) On that
19
same date, Sergeant Yarbrough interviewed Donna Myers from whom he
20
obtained a telephone number in Texas for Petitioner’s sister, Rosa Ramirez.
21
Sergeant Yarbrough gave the number to Sergeant Perry. (Id. at 20561.) Shortly
22
before Perry left for El Paso, Petitioner was arrested. On September 2, 1985,
23
Perry contacted the El Paso Police from whom he obtained a street address for
24
Rosa Ramirez. (Id. at 20540-41.)
25
338. Sergeant Perry testified that, on September 3, 1985, he obtained two
26
warrants through the El Paso courts to search the houses of Petitioner’s sister and
27
parents. Before the warrants were executed, Petitioner’s parents, his sister Rosa,
28
and brother Julian, Jr., voluntarily met with Sergeant Perry at El Paso Police
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Department. They consented to having their homes searched. (176 RT 20547-
2
49.) While at the police station, Rosa turned over earrings and a bracelet. During
3
a search of her home, she turned over a wooden box containing costume jewelry
4
that had been given to her by Petitioner. The parents’ home was not searched.
5
(Id. at 20549-51, 20554.)
d)
6
Property line-up
339. A property line-up was held at the Los Angeles County Jail on
7
8
September 5, 1985. (176 RT 20601-02.) Property seized and obtained from
9
Solano and from Petitioner’s relatives was viewed by witnesses, relatives, and
10
victims. Identified property was photographed. A chart listing the identified
11
property was admitted into evidence at trial (Prosecution’s Trial Ex. 56). (176
12
RT 20565-67.) Fewer than one-quarter of the approximately 1,500 items
13
displayed at the line-up were identified by witnesses and victims. (Id. at 20570-
14
71.)
s.
15
16
Petitioner’s Arrest
340. Between 8:00 a.m. and 9:00 a.m. on August 31, 1985, Manuela
17
Villanueva and Carmelo Robles drove to a store on South Indiana Street in Los
18
Angeles. While Robles got out to buy food, Villanueva sat in the car. A man ran
19
up to her car and asked for the car key. (170 RT 19746-50.) He tried to open the
20
car door. At trial, Villanueva identified Petitioner as the man who approached
21
her car. (Id. at 19748-49.) When she first saw Petitioner, he took sunglasses out
22
of his pocket and then put them back. Villanueva thought he had a gun. (Id. at
23
19756.) Petitioner spoke to her in Spanish. He said he wanted her car because
24
his mother had died. (Id. at 19759-60.) Villaneuva was scared and wanted to get
25
out of the car. She began to scream for help in Spanish. (Id. at 19749-51.)
26
Several men came out of a nearby barbershop, including Frank Moreno. Robles
27
came out of the store. He and Moreno chased the man into an alley. (Id. at
28
19752-54.)
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341. Frank Moreno was in a barbershop at South Indiana and Whittier
2
Streets when he heard a woman scream for help in Spanish. He went outside and
3
tried to move a man away from her. (170 RT 19762-64.) At trial, Moreno
4
identified Petitioner as the man whom he saw near Villaneuva on August 31,
5
1985. (Id. at 19765.) When Moreno approached, Petitioner ran away. Moreno
6
and Robles chased Petitioner into the alley on Alma Street. Petitioner jumped
7
over a fence and went through a yard. Moreno ran a few blocks to East Hubbard
8
Street where he found Petitioner on the ground in a daze, bleeding from the back
9
of his head. Shortly thereafter, the police arrived and arrested Petitioner. (Id. at
10
11
19765-67, 19771.)
342. Between 7:00 a.m. and 8:00 a.m. on August 31, 1985, Fastino Pinon
12
was at home on East Hubbard Street. He was warming up a car in his backyard
13
when a man jumped over the fence and got into the car. Pinon told the man to get
14
out. The car moved back five feet and hit a chimney. (170 RT 19775-77.) The
15
man spoke in Spanish and told Pinon that he had a gun. The car went forward
16
and stopped; then the car door flew open. ( Id. at 19778-79.)
17
343. Pinon grabbed the car keys. The man jumped a gate and went into
18
the street toward another car parked across the street from Pinon’s house. Pinon
19
saw his neighbor hold the man; someone else hit the man over the head with a
20
steel bar. (170 RT 19778-80, 19789.) At trial, Pinon identified Petitioner as the
21
man whom he saw in his yard on August 31, 1985. (Id. at 19776-77.)
22
344. Between 7:00 a.m. and 8:00 a.m. on August 31, 1985, Angelina
23
Delatorre was seated in her car at 3754 East Hubbard Street. A man ran up and
24
told her in Spanish to give him the car keys. She held onto the steering wheel as
25
he pulled her and tried to get the keys. The man pulled Delatorre out of the car;
26
she threw him the keys. She screamed and a neighbor, Jose Burjoin, told the man
27
to leave her alone. Delatorre’s husband came over, hit the man with a steel bar,
28
and then chased him. Delatorre’s sister called police. (170 RT 19793-98.) At
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trial, Delatorre identified Petitioner as the man who tried to take her car on
2
August 31, 1985. (Id. at 19794.)
3
345. Manuel Delatorre was in his backyard at 3754 East Hubbard Street
4
when he was informed that someone was hitting his wife. He went to the front of
5
his house and saw a man trying to start their car. His wife was upset. Another
6
man, whom Delatorre did not know, attempted to get the man out of the car. (170
7
RT 19801-02.) Delatorre got a 3’ metal bar, and hit the man on the head. The
8
man then ran toward Indiana Street. Delatorre gave chase. When the man fell
9
down, Delatorre told him not to move. A crowd of twenty to thirty people began
10
to gather. The man, who had suffered a head wound on being hit by Delatorre,
11
was taken away by police. (Id. at 19803-06; 19816-17.) At trial, Delatorre
12
identified Petitioner as the man whom he hit on August 31, 1985. (Id. at 19802.)
13
346. Deputy Sheriff Andres Ramirez received a call at 9:00 a.m. on
14
August 31, 1985, to respond to an incident on East Hubbard Street. When he
15
arrived, Deputy Ramirez saw a group of seven to eight men on the street
16
surrounding a man, later identified as Petitioner, sitting on the ground with a
17
bloody head. Manuel Delatorre told Deputy Ramirez that Petitioner had
18
attempted to take his wife’s car and had assaulted his wife. (170 RT 19811-14.)
19
Deputy Ramirez placed Petitioner under arrest for attempted grand theft and
20
assault. Petitioner said his name was Ricardo Ramirez. He was not armed;
21
neither contraband nor a weapon was found. He was cooperative. (Id. at 19819-
22
21.) Petitioner was handcuffed and treated by paramedics. Petitioner was turned
23
over to Los Angeles Police Officers Strandgren and Vidal who arrived shortly
24
thereafter. (Id. at 19814-16, 19819-21.)
25
347. Officer Strandgren took Petitioner into custody. He recognized
26
Petitioner as the same person who had been pictured in a mugshot handed out at
27
roll call earlier that morning. Officer Vidal searched Petitioner for weapons. He
28
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removed a wallet from Petitioner’s rear pocket. After inspecting the wallet,
2
Officer Vidal put it back into Petitioner’s pocket. (171 RT 19858-61, 19865-66.)
a)
3
4
Discovery of the backpack
348. Los Angeles Police Officer Robert Rysdon received a radio call on
5
August 31, 1985, about 8:30 a.m. concerning a possible homicide suspect who
6
was described as a Hispanic male, six feet tall, dark curly hair, stained teeth,
7
wearing a black backpack. (171 RT 19840-41.) He drove to Eighth Street with
8
his partner, Officer Young. When they arrived, two men gestured to the officers
9
to follow them. The officers followed the men to a backyard at 3455 Bestwick
10
11
Street. There, Officer Rysdon retrieved a black backpack. (Id. at 19841-44.)
349. Officer Rysdon unzipped the backpack to look for dangerous
12
objects. He observed a black leather jacket. Officer Rysdon then secured the
13
pack by locking it in the trunk of his police car. Officer Rysdon was later
14
informed that Petitioner had been arrested. On his return to the Hollenbeck
15
police station, Officer Rysdon and Deputy Woods went through the pack. (171
16
RT 19844-46.) Inside the pack the officers found binoculars, a small flashlight, a
17
nylon gym bag, a black leather jacket, and a pair of brown fabric garden gloves.
18
(Id. at 19847-49, 19990.) There were no weapons or ammunition inside the pack.
19
(Id. at 19852.) The backpack and contents were taken to the sheriff’s crime lab.
20
(Id. at 19992.)
21
22
b)
Petitioner’s statements to police
350. After his arrest on Hubbard Street, Petitioner was driven to
23
Hollenbeck police station by Los Angeles Police Officers James Kaiser and
24
Danny Rodriguez. (171 RT 19879-81.) During the ten minute drive to the
25
station, Petitioner made several statements to Officers Kaiser and Rodriguez
26
about being chased from Olympic Boulevard. He said he would be blamed for all
27
the killings, that he would be sent to the electric chair, and that he wanted to die.
28
Petitioner also stated that the mugshot on the visor of the police car was a picture
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of him. (Id. at 19882-83, 19885-86.) Petitioner indicated that he was afraid of
2
being attacked. The officers assured him that they would protect him. (Id. at
3
19892-93.)
351. Officer Kaiser testified that he spent one-half of an hour alone with
4
5
Petitioner at the police station. He testified that he did not question Petitioner,
6
and he did not advise him of his constitutional rights. Petitioner was handcuffed
7
at the time. (171 RT 19886-87.) Officer Kaiser testified that Petitioner told him
8
that there was a .32-caliber automatic gun in a Greyhound bus locker; he said the
9
ticket to the locker was in his wallet. Officer Rodriguez retrieved the claim ticket
10
from Petitioner’s wallet, then returned the ticket to the wallet until a detective
11
took over. (Id. at 19887-89.)
12
c)
13
Seizure of Petitioner’s Stadia shoes
352. At the time of his arrest, Petitioner was wearing a black T-shirt, dark
14
15
pants, and black, low-top Stadia aerobics shoes. (171 RT 19908-09.) Petitioner
16
was held in an interview room. Los Angeles Police Sergeant George Thomas
17
removed Petitioner’s shoes to look at the pattern of the soles. He then placed the
18
shoes in a corner of the interview room in which Petitioner was being held.
19
Petitioner was not advised of his constitutional rights. (Id. at 19906-07, 19909-
20
10.)
21
353. Petitioner asked Sergeant Thomas the day of the week, made a
22
statement about wanting to die, then began to laugh. Petitioner hummed a song
23
by a rock group, AC/DC. He said he was “a killer” and deserved to die. He
24
spoke of Satan several times and laughed. (171 RT 19916-19, 19944.) Petitioner
25
stopped talking when he realized Sergeant Thomas was taking notes. Sergeant
26
Thomas was not prepared to interview Petitioner; he only had a piece of paper
27
and pen, but he started writing as soon as Petitioner began to talk. He had no idea
28
if there was a tape recorder in the interview room. (Id. at 19919, 19933-34.)
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Sergeant Thomas observed an inverted star in a circle on Petitioner’s left
2
shoulder. While in the interview room, Petitioner banged his head on the table
3
ten times. (Id. at 19919-21.)
4
5
d)
Recovery of the bag
354. At 7:00 a.m. on August 31, 1985, Los Angeles Police Officer Dennis
6
Lee was instructed to go to the Greyhound bus station to watch for a possible
7
suspect. He received a photograph of the suspect and was told that his name was
8
Richard Ramirez. (171 RT 19948-50.) Several hours later, he was told to look
9
for luggage at the bus station; he was given a baggage claim number. Officer Lee
10
11
found a leather-like zippered travel bag. (Id. at 19950-54.)
355. The travel bag (Prosecution’s Trial Ex. 52-A) was searched pursuant
12
to a warrant. The name of Greg Rodriguez, 1242 Brannick Street, Los Angeles,
13
was written on a tag attached to the bag. Petitioner’s brother, Julio Ramirez,
14
lived at 1259 South Brannick Street, Los Angeles. (171 RT 19981-85.) The bag
15
yielded a can of weight gain supplement, AC adapter and batteries, sunglasses,
16
channel lock pliers, nail clipper, black vinyl jacket, two sets of keys, and a
17
handcuff key. One set of keys fit the door and trunk of a Pontiac recovered by
18
police on September 1, 1985. (Id. at 19986-88, 19990; see infra.) A small, blue
19
bag was found inside the Greyhound bag. It contained a jar of Vaseline, a .32-20
20
caliber revolver, vitamin supplements, a box of Remington .32-20 caliber
21
cartridges, four .25-caliber semi-automatic pistol cartridges, and five .22-caliber
22
cartridges. (Id. at 19987-88.) Three of the four .25-caliber cartridges contained a
23
red-colored surface surrounding the primer. The .22-caliber cartridges did not
24
have primer. (Id. at 19989-90.)
25
356. On September 5, 1985, fingerprints were lifted from a can of weight
26
powder, a Sanyo battery, and knife portion of nail clippers contained in the bag.
27
A latent fingerprint was later lifted from the flashlight found in the backpack.
28
(171 RT 19995-96, 19999-20000.)
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e)
1
2
Recovery and search of the green Pontiac
357. On September 1, 1985, Sheriff homicide investigators Russell Uloth
3
and Jerald Olsen went to Julian Ramirez’s residence at 1259 South Brannick
4
Street. Ramirez led officers to a green, two-door Pontiac parked across the street
5
from 126 Avenue 23. (171 RT 19962-64.) The vehicle was photographed and
6
then towed to East Los Angeles sheriff station. (172 RT 20003-05.) There the
7
car was searched and dusted for fingerprints. (171 RT 19964-65.) Latent
8
fingerprints were lifted from a white cup in the glove compartment and from the
9
rearview mirror. Partial lifts were obtained from handcuffs found underneath the
10
carpet and a seatbelt fastener on the front seat. A pentagram drawn in pencil was
11
observed on the vinyl dashboard. (Id. at 19966-69.)
12
13
t.
Petitioner’s Postarrest Behavior
14
358. Deputy sheriff Gerald Newbold was assigned to a suicide watch for
15
Petitioner at Los Angeles County Jail on September 2, 1985. Petitioner was then
16
being housed on the hospital side of the jail and watched twenty-four hours a day.
17
(176 RT 20597-98.) During a security check, Deputy Newbold saw Petitioner
18
write on the cell floor with blood from his right palm the number “666” and draw
19
a star in a circle. The drawings were photographed. (Id. at 20599-600.)
20
359. On October 24, 1985, Sergeant Salemo was present in Los Angeles
21
Municipal Court as Petitioner raised his hands and said aloud “Hail Satan.”
22
Salemo saw an inverted star with a circle around it and “666” written on the palm
23
of Petitioner’s hand. (176 RT 20603-04, 20607.)
24
360. On October 30, 1986, Deputy sheriff David Laws was summoned by
25
Petitioner to his cell. Petitioner showed him two photographs of a deceased
26
person. One photograph showed a female naked from the waist down; the other
27
showed the same woman lying on a bed with her head turned away from the
28
camera. (176 RT 20612-13.) Petitioner told Deputy Laws: “People come up
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1
here and call me a punk and I show them the photographs and tell them there is
2
blood behind the Night Stalker and then they go away all pale.” At the time,
3
Laws did not report Petitioner’s behavior or statement to his supervisor. (Id. at
4
20614.)
u.
5
Treatment
6
7
Examination of Petitioner’s Teeth and Subsequent Dental
361. On September 3, 1985, a dentist with the Sheriff Department, Alfred
8
Otero, D.D.S., examined Petitioner’s teeth. He described Petitioner’s front teeth
9
as stained, with nine decayed teeth. Petitioner indicated that he had no
10
complaints. (174 RT 20352-53.) In January 1986, Dr. Otero treated Petitioner
11
for tooth decay, performed a root canal, and restored Petitioner’s teeth with
12
fillings. (Id. at 20354-58.)
13
362. On September 13, 1985, Gerald Vale, a forensic dentist, also
14
examined Petitioner at the Los Angeles County Jail. He found Petitioner’s teeth
15
in very poor condition with advanced decay. A jagged gap was observed
16
between Petitioner’s two front teeth, other teeth were missing. (174 RT 20335-
17
37.) Photographs were taken of Petitioner’s teeth, showing stains and missing
18
teeth. Dr. Vale also made casts of Petitioner’s teeth. (Id. at 20338-41.)
19
363. In Dr. Vale’s opinion, Petitioner may have had recent dental work,
20
including the replacement of a crown. The missing teeth may have been removed
21
by a dentist. Petitioner’s gums had healed from the extractions. (174 RT 20346.)
22
2.
Prosecution Case Reopened
23
364. The prosecution rested its case-in-chief on April 13, 1989. On May
24
1, 1989, the date set for the defense case to commence, the prosecution moved to
25
reopen its case. The case was put over to May 2, 1989. (176 RT 20632; 177
26
RT 20637-40.) On May 2, 1989, Petitioner objected to Felipe Solano’s further
27
testimony. (Id. at 20656-64.)
28
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365. The prosecution contended that trial counsel Daniel Hernandez was
2
incompetent because he failed to properly review prosecution discovery and
3
conduct defense investigation. The trial court overruled Petitioner’s objections
4
and request for a hearing pursuant to Evidence Code § 402 and granted the
5
prosecution’s motion to reopen its case. (177 RT 20665-66, 20670-76.)
6
366. Felipe Solano testified that he first met Petitioner toward the end of
7
August 1984 at the Greyhound bus station. He admitted that he first met Eva
8
Castillo, whom he knew as Rosa Solis, in Tijuana in August or September 1984.
9
Solano admitted receiving stolen property from Solis on three occasions. (177
10
RT 20683-85.) The week before his first appearance at trial, Solano identified
11
property he received from Solis. He previously had denied receiving property
12
from her because he wanted to protect her. Solano last saw Solis at his home in
13
September 1985 when she stayed overnight. (Id. at 20686-89.)
14
367. Solano also received stolen property twice from a man whom he
15
knew as “Monje.” Monje was 29 to 30 years old, small, with a thin build.
16
Solano first met Monje in April 1984. Solano also bought a television and mirror
17
from a man named “Cuba,” who was heavy-set, had a Cuban accent, and was
18
about twenty-three years old. Solano met Cuba through Solis or Petitioner.
19
Solano did not believe the property he bought from Cuba had been stolen. (177
20
RT 20687-90, 20695.)
21
368. Solano identified photographs of a comb, purse, and microwave that
22
he received as gifts from Solis (Prosecution’s Trial Exs. 59, 59-A, and 59-B). He
23
bought a ring for 50 dollars from Solis to give to his wife. He bought necklaces
24
for 100 dollars from Monje. He also bought earrings and a chain with a pendant
25
from Monje but could not recall the price. (177 RT 20691-94.) Solano recalled
26
receiving earrings and a black necklace that looked like dark pearls from Solis,
27
but he did not see them in the photographs shown to him at the Sheriff
28
Department’s homicide bureau. (Id. at 20697.)
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369. On one occasion, Cuba came to Solano’s house accompanied by
2
Petitioner. They attempted to sell Solano some typewriters that Solano thought
3
were stolen. On another occasion, Petitioner came to Solano’s house with Solis.
4
Petitioner stayed in the car while Solis spoke with Solano. Solis borrowed 20
5
dollars from him. (177 RT 20695-97.)
6
370. Solano admitted on cross-examination that he had committed perjury
7
by denying he bought stolen property from Solis. He admitted that he lied to the
8
defense about Solis and to the police about when he first met Petitioner. (177
9
RT 20741-45.) Solano admitted that he lied about when he saw Solis and
10
Petitioner together. (Id. at 20702-04.) Solano previously denied buying property
11
from Monje and Cuba because he thought they were friends. (Id. at 20717-18.)
12
Solano kept property he purchased from Petitioner in a closet, dresser, and other
13
places in his home. Property that Solano bought from Solis was mixed in with
14
property from Petitioner. Property that Solano bought from Monje was kept
15
separately in a closet. (177 RT 20733-35.)
16
371. After Solano testified on May 2, 1989, the prosecution rested. (177
17
RT 20747.) The court permitted the prosecution to again reopen its case with
18
respect to the introduction of certified documents, including arrest, probation, and
19
parole records pertaining to Rosa Solis. (178 RT 20798-804; 179 RT 20814-15.)
20
3.
Defense Case
21
372. Petitioner’s defense was limited, in part because he was unable to
22
rationally communicate with counsel, to participate in his case or defend against
23
the charges. Petitioner’s defense was also limited because of his trial counsel’s
24
incompetence. During trial, trial counsel Ray Clark represented to the court that
25
Petitioner sought to waive his right to present any defense during the guilt trial.
26
(178 RT 20789-91.) The court held that counsel could override his client’s
27
decision to waive a defense. (Id. at 20793-94.) Trial counsel Daniel Hernandez
28
thereafter indicated there would only be a limited defense because “I don’t feel
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1
that putting on a defense without his cooperation is going to make my defense
2
very viable.” (Id. at 20794.)
3
373. On May 9, 1989, the defense gave an opening statement. (179
4
RT 20819-45, 20848, 20852-53, 20858-80, 20890-911.) The defense that was
5
offered sought to raise a reasonable doubt of Petitioner’s guilt as to all the
6
charged crimes through lack of physical evidence, including hair and serological
7
evidence and an alibi defense in two of the incidents. In their attempt to create a
8
reasonable doubt in the jurors’ minds as to Petitioner’s guilt, Petitioner’s trial
9
counsel rendered ineffective assistance of counsel. They incompetently executed
10
the “limited” defense they had elected to put on; importantly, they also failed to
11
investigate and present evidence that was critical to Petitioner’s defense.
12
13
a.
Vincow Incident
374. Wanda Doss, the property manager of Vincow’s apartment building,
14
inspected Vincow’s apartment after her death. No repairs had been requested or
15
made to Vincow’s apartment in June and July 1984. The slider windows in her
16
apartment were in working order. No repairs were made to the windows after
17
Vincow’s death. (184 RT 21651-54.)
18
375. Werner Spitz, M.D., a forensic pathologist, was of the opinion,
19
based on body and room temperature and covering on the victim, that Vincow
20
had been dead for four to five hours by the time the coroner’s investigator
21
examined her body at the scene on June 28, 1985 at 4:47 p.m. (191 RT 22463-
22
65, 22515-24.) On cross-examination, Dr. Spitz indicated that there was
23
blanching to Vincow’s body which normally would occur up to seven or eight
24
hours after death. (Id. at 22529-31.) In Dr. Spitz’s opinion, Vincow’s body was
25
in the early stages of rigidity when she was discovered, and the coroner’s
26
investigator’s findings with respect to the time of death were inaccurate. (Id. at
27
22533-35, 22537-38.)
28
b.
Hernandez and Okazaki Incident
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376. Detective Carrillo investigated the crime scene and observed a
2
baseball cap in the garage. The cap was just inside the threshold of the garage.
3
(181 RT 21013, 21019-21.)
4
377. Maria Hernandez viewed two photographic line-ups. (181
5
RT 21155, 21157.) Petitioner’s photograph was not included in the photographic
6
line-ups. (Id. at 21055.) Hernandez later attended a live line-up prior to the line-
7
up in which Petitioner stood, but she did not identify anyone. (Id. at 21157-58.)
8
9
10
378. Hernandez told Carrillo after the September 5, 1985 live line-up that
when she first saw Petitioner on the news he did not look like the suspect. (181
RT 21164.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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c.
1
Yu Incident
2
379. According to a supplemental report prepared by Monterey Park
3
Police Officer Dan Romero, Jorge Gallegos denied hearing or seeing a fight
4
involving Yu. He denied that he heard shots. He also stated he would be unable
5
to identify the suspect. (180 RT 20975-76.) Gallegos gave the police a license
6
plate number of the suspect’s vehicle – 521 NCD.25 (Id. at 20979-80.)
7
380. On March 17, 1985, Monterey Park Police Officer David Corrigan
8
interviewed Jorge Gallegos in Spanish. (184 RT 21536-38.) Gallegos provided a
9
vague description of the suspect as male Latino or Oriental with dark hair. (Id. at
10
21539-40.) Gallegos indicated he only glanced at the suspect who drove without
11
headlights by his parked truck. Gallegos indicated that he heard a child cry or
12
scream when he was seated in his parked car. A few seconds later, he heard the
13
same sound from behind his truck. At that point, a car drove by without its
14
headlights on. Gallegos obtained the vehicle’s license number. (Id. at 21540-
15
41.)
16
381. During the interview, Gallegos did not appear confused. (184
17
RT 21542.) Gallegos had difficulty speaking English and appeared to be a recent
18
immigrant. (Id. at 21543-44.) At the time of the interview, Officer Corrigan
19
made handwritten notes that were later typed into the report. (Id. at 21546.)
20
Officer Corrigan mistakenly wrote “suspect” in his typed report instead of
21
“witness,” and then crossed out the word. (Id. at 21547.) Gallegos told Corrigan
22
that he initially thought that a child was being abducted. (Id. at 21548.) At the
23
time, Gallegos’s girlfriend was also in the truck. (Id. at 21551-52.)
24
25
382. Dennis Lew, a photographer and film editor, photographed North
Alhambra Avenue in daylight and at night. He also photographed himself at
26
27
25
28
The vehicle’s owner, Teresa Cerna, testified in rebuttal that her Toyota
license number was 521 MNI. (See infra.)
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night on the street. Because of poor lighting on the street, it was difficult to
2
discern his features in the photograph. Lew also simulated a car driving by a
3
parked car. Because of lighting and the effect of lights on car mirrors at night,
4
any view of a passing car at night from inside a parked car would be confusing to
5
the observer. (184 RT 21565-68.)
383. Coroner Susan Selser, M.D., testified that Yu suffered two gunshot
6
7
wounds. The trajectory of the first bullet was along the right side of her chest
8
through the skin, causing a fracture to the sixth rib, then through the right lung,
9
grazing the heart before resting near the left side of the chest. (189 RT 22238-
10
39.) The bullet traveled 10 to 20 degrees downward from back to front. The
11
angle appeared to be 30 to 45 degrees, probably closer to 30 degrees from the
12
midline toward the front. It was a slightly downward, short path. (Id. at 22239-
13
41, 22251-53.)
384. The second bullet traveled left to right, slightly upward through the
14
15
spinal cord. The path of the bullet was short and low on the back. The bullet was
16
recovered from the vertebrae, near the entrance wound. (189 RT 22256-57.)
17
Neither of the two projectiles exited the body. (Id. at 22241.) Trajectory was
18
estimated by a visual examination of the wounds. Dr. Selser was unable to
19
determine whether Yu was sitting or standing when she was shot. (Id. at 22242,
20
22245, 22254-56.) The wounds were nine inches apart. (Id. at 22261, 22264-
21
65.)
22
385. Werner Spitz, M.D., the forensic pathologist, reviewed a number of
23
autopsy photographs and reports. (191 RT 22450-53.) The wound to the right
24
side of Yu’s chest close to the armpit was inflicted at close range and probably
25
was a contact wound. The path of the bullet was horizontal. The wound was not
26
immediately incapacitating; the victim would have been able to talk, scream, even
27
run. (Id. at 22453-55.) The wound, however, was fatal unless quickly treated.
28
(Id. at 22462.)
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386. The second wound to Yu’s lower back may have caused paralysis to
2
the legs. It was not inflicted at close range. (191 RT 22455-58.) There also was
3
bruising to the shins and right thigh. Injury to the thigh was consistent with the
4
victim hitting the steering wheel. There was no physical evidence that the victim
5
crawled or was pulled by her hands. (Id. at 22459-62.) Both injuries were
6
consistent with the victim being shot inside the vehicle. (Id. at 22463.)
387. On cross-examination, Dr. Spitz explained that his opinion as to the
7
8
victim’s location at the time the wounds were inflicted was based on the close-
9
range nature of the wounds and near horizontal trajectory of the bullets. (191
10
RT 22466, 22472.) In a photograph of the first wound where a bullet was
11
recovered, based on the presence of specks of gunpowder, Dr. Spitz was of the
12
opinion that the muzzle of the gun was held in a forward direction. (Id. at 22471-
13
75.)
14
388. The shape of the bruise to Yu’s right thigh was consistent with
15
having been dragged across the steering wheel; there was no abrasion, and the
16
bruise was sizeable. (191 RT 22484-87.) Dr. Spitz agreed it was possible that
17
Yu had been pulled from the car, although her clothing was not torn. Abrasions
18
to her lower legs were consistent with striking objects while quickly exiting the
19
car. (Id. at 22488-91.)
20
389. There was no physical evidence of a shooting, such as powder
21
residue or blood in Yu’s car. (191 RT 22494.) Yu could have been dragged or
22
carried. (Id. at 22497-98.) Dr. Spitz was of the opinion that Yu’s chest wound
23
had been inflicted first, consistent with her sitting or leaning over. (Id. at 22499.)
24
Hypothetically, the path of a bullet would be significantly more downward if a
25
5’3” tall victim were shot by a person who was 6’1”. (Id. at 22500-01.)
26
390. A demonstration was conducted with the prosecutor assuming a
27
driver’s position and Dr. Spitz as the passenger. The demonstration showed that
28
the first wound could not have been inflicted if Yu had been sitting straight and
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forward in the driver’s seat. (191 RT 22501-04.) The second wound could have
2
occurred as the victim turned away, hit the steering wheel, and tried to open the
3
door. (Id. at 22504-05.)
4
391. The prosecutor also demonstrated the suspect’s position outside the
5
driver’s door with Dr. Spitz sitting in the driver’s seat. An assailant could have
6
reached inside, grabbed the victim, and shot her as she pulled away. In Dr.
7
Spitz’s opinion, a significant amount of force would be required to pull a person
8
from a vehicle. There was no evidence of force, such as torn clothing. Based on
9
all known factors, Dr. Spitz was of the opinion that Yu was shot inside the car.
10
11
12
(191 RT 22506-07.)
d.
Doi Incident
392. Dennis Lew photographed the location where Launie Dempster had
13
seen a possible suspect. He photographed the street and a parked car. He also
14
photographed a simulated drive-by. At night, lighting and shadows made it
15
difficult to see the features of a person sitting in a car. (184 RT 21570-74.) Lew
16
printed his photographs and made single exposures using normal photographic
17
techniques. (Id. at 21579.)
18
e.
19
20
Bell and Lang Incident
i.
Petitioner’s Alibi
393. Petitioner’s father, Julian Ramirez, testified that Petitioner visited El
21
Paso, Texas beginning about May 23, 1985, and stayed with his family for ten
22
days. Ramirez’s granddaughter received her First Communion on Saturday, May
23
25, 1985, an event that Petitioner did not attend. Ramirez saw Petitioner every
24
day that week after work. Petitioner left El Paso by bus on the following Friday
25
evening. (181 RT 21122-25.)
26
394. After Ramirez testified, the court ordered a continuance of trial to
27
permit the prosecution to investigate his testimony. (181 RT 21127-36.) When
28
Ramirez resumed his testimony, he testified that his granddaughter’s communion
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1
was held Saturday, May 24, 1985. Petitioner did not attend the communion
2
service at church; he only attended the party. (182 RT 21180-83.) Petitioner
3
arrived on May 22 or 23, 1985, and left on Friday, May 31, 1985. (Id. at 21187.)
4
Petitioner first stayed in a motel, then with his parents. Ramirez did not meet
5
Petitioner at the bus station when he arrived, nor did he drop Petitioner off at the
6
bus station when he left El Paso. Ramirez could not recall how many times
7
Petitioner may have visited El Paso in 1985. (Id. at 21188-90.) He did not
8
remember speaking with Sergeant Perry about Petitioner’s whereabouts when
9
Perry came to El Paso and searched his daughter’s residence. He did not recall
10
when Sergeant Perry was in El Paso. (Id. at 21191-93.)
ii.
11
12
Physical Evidence at the Scene
395. Criminalist Michelle LePisto collected a red-stained pillow, sheets, a
13
cord with hairs, and stockings from the northeast bedroom of the residence. She
14
also collected red-stained sheets, clothing, and tape from the northwest bedroom.
15
Hospital personnel removed tape from one of the victim’s ankles. (189
16
RT 22289-91.)
17
396. Monrovia Police Detective Steven Cordell was dispatched to the
18
Bell and Lang home on June 1, 1985. He found two newspapers from May 29
19
and 30, 1985, in front of the residence. The papers were collected and placed in
20
evidence at the police department. (189 RT 22299-300.) He also observed a TV
21
Guide in the living room that was open to May 30 and May 31, 1985. He later
22
saw a diary in the home with entries up to and including May 29, 1985. (Id. at
23
22306-13.) Monrovia Fire Inspector Steven Mikity handled brush clearance in
24
1985. On the morning of May 29, 1985, he went to the victims’ residence to
25
notify them to clear brush from their property; no one was home. The garage and
26
kitchen doors were closed at that time. (195 RT 22869-70, 22890-92.) Mikity
27
returned to the home later in the day at about 5:00 p.m. and noticed that the
28
garage and kitchen doors were open. He saw a large object in the trunk of a car
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inside the garage. The car was an older model with faded paint. The object in the
2
trunk appeared to be a television set. (Id. at 22871-73.) Mikity did not stop or
3
attempt to contact the residents. (Id. at 22875.) Mikity drove by the same house
4
every day; it was unusual to see the garage door open. (Id. at 22890.)
5
397. Two days later, Mikity returned to the Bell and Lang residence.
6
Paramedics had just arrived. (195 RT 22875-77.) He did not recall whether on
7
that day the garage door was still open. (Id. at 22882-87.) He returned the
8
following day with police officers who showed him a car in the garage that
9
appeared to be identical to the one he previously saw. This time, the trunk was
10
11
12
closed. (Id. at 22873-74, 22888-89.)
f.
Kyle Incident
398. Petitioner’s alibi, presented through his father’s testimony, also
13
related to the crimes charged in the Kyle incident, which occurred early on the
14
morning of May 30, 1985. (See Kyle Incident, supra.)
15
g.
Cannon Incident
16
399. Criminalist Giselle LaVigne collected evidence at the scene,
17
including a knife and other items from the bedroom and kitchen counter. (185
18
RT 21662-67.) Physical evidence collected by LaVigne had been released to the
19
defense but not returned to the crime lab. (Id. at 21669-70.)
20
400. In LaVigne’s opinion, there appeared to be blood on broken glass
21
found near the victim’s head. The blood had not solidified. On the day of
22
LaVigne’s investigation at the scene it was very hot; the temperature was in the
23
nineties. (185 RT 21669.)
24
h.
25
Nelson Incident
401. As in the Doi incident, Dennis Lew photographed the scene. His
26
photographs taken under different lighting conditions – showing the streetlights,
27
the victim’s residence, and a night view of the scene – were admitted into
28
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1
evidence. (184 RT 21580-84.) Lew took black and white photographs because
2
they more accurately reflected actual conditions. (Id. at 21586-87.)
i.
3
4
Dickman Incident
402. Detective Carrillo testified that Dickman viewed a photographic
5
line-up that did not include Petitioner’s photograph and identified a person. (181
6
RT 21045, 21054.) The person later was arrested for murder and submitted to
7
homicide processing for blood, saliva, and hair samples. (Id. at 21045-46.) Hair
8
samples were submitted to the lab. (Id. at 21052.)
j.
9
10
Kneiding Incident
403. Glendale Police evidence technician Marvin Marshall recovered a
11
shirt from a storage bin at a construction site east of the Kneiding residence. The
12
shirt appeared to have been dropped or thrown. (188 RT 22199-202.)
13
404. Evidence technician Sally Jiminez-Herring collected hair samples
14
from the carpet of the southeast bedroom. (188 RT 22214, 22218.) She also
15
unsuccessfully examined the scene for fingerprints. She collected a pillowcase
16
and mattress containing red stains, as well as several bullet fragments. (Id. at
17
22217-21.)
k.
18
19
Khovananth Incident
405. Chainarong Khovananth’s sister, Debbie Piyaratanaphipat, spoke
20
with Somkid Khovananth on the day after her brother’s death. Somkid then
21
described the suspect as a man with curly hair and dark skin. (186 RT 21904-07.)
l.
22
Petersen Incident
23
406. Private investigator David Frank visited the Petersen residence on
24
April 17, 1989. He photographed the home, specifically the back bedroom and
25
the view from the bedroom toward the living room. (180 RT 20915-21, 20944.)
26
He also photographed the living room toward the back bedroom. (Id. at 20935.)
27
Only a narrow area of the living room was visible from the back bedroom. (Id. at
28
20938.)
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407. Frank positioned himself at the approximate location in the room
1
2
where a person would sit up in bed if the bed was situated under the window. As
3
he moved to the right, the view into the living room diminished. (180 RT 20957-
4
58.)
5
6
m.
Abowath Incident
408. Sheriff’s Department criminalist Burke collected 35 items from the
7
residence. He later analyzed a tape lift from the dining room floor. (185
8
RT 21673-79.)
9
409. Detective Carrillo was not the investigating officer in the Abowath
10
incident and was not aware whether Sakina Abowath indicated she did not wish
11
to attend the line-up for religious reasons. Abowath was requested to attend the
12
live line-up. (181 RT 21059.)
13
410. Sergeant Yarbrough interviewed Sakina Abowath at the hospital on
14
August 8, 1985, and the next day at a friend’s home. Sakina described the
15
suspect as a light-complexioned male, approximately 25 to 30 years old, with
16
yellowish skin. She described the suspect as possibly Caucasian with Latin
17
features, tall, thin, with a recessed chest and light brown or medium blond hair
18
with curls. The suspect did not speak with an accent. He had wide front teeth,
19
although Sakina did not recall gaps in his teeth. The suspect had an odor of stale
20
sweat. He wore a long-sleeved shirt, pants similar to dark Levi’s, and possibly
21
boots. (189 RT 22293-95.)
22
n.
23
Hair and Serological Evidence
411. The defense presented expert testimony regarding hair and
24
serological evidence found at the scene of six incidents, which tended to exclude
25
Petitioner as the perpetrator of the crimes in those incidents. The following table
26
summarizes the evidence and test results:
27
28
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1
2
Analyses of Certain Hair and Serological Evidence
Incident
Evidence
Findings as to Petitioner
Hair
Hair
Blood stains
Hair
Hair
Blood stains
Hair
Hair
Vaginal swab, semen
Negative
Negative
Inconclusive
Negative
Inconclusive
Negative
Negative
Negative
Consistent with blood type
3
4
5
6
7
Bell and Lang
Cannon
Nelson
Bennett
8
9
10
Kneiding
Abowath
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i.
Hair Evidence
412. Former Sheriff Department criminalist Melvin Kong compared hairs
recovered from numerous crime scenes with Petitioner’s medium brown hair.
(186 RT 21909-14.)
a)
Bell and Lang Incident
413. Some of the hair samples collected from the bedroom were buckled
or pubic hairs. Kong concluded they were dissimilar to Petitioner’s hair based on
microscopic characteristics. (193 RT 22605-07.) Kong noted that it was not
possible to determine a person’s age based on hair analysis. (Id. at 22607-08.)
Comparison of head hair found on a stocking, sheets and mattress pad, and on
electrician’s tape proved to be dissimilar to Petitioner’s hair. (Id. at 22609-10.)
b)
Cannon Incident
414. Animal and human hairs were found at the scene. Recovered light
brown hair was compared to Petitioner’s known hair. The recovered hair was not
similar to Petitioner’s hair, owing to differences in length, color, and curl. (186
RT 21918-22.)
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c)
1
2
Bennett Incident
415. Head hairs found in the victim’s left hand were determined to be
3
consistent with the victim’s hair. A “buckled” hair found on the carpet was
4
similar to Petitioner’s pubic hair and dissimilar to the victim’s; however, it was a
5
commonly found hair without any unique characteristics. (193 RT 22611-15,
6
22621-22.)
d)
7
8
9
Nelson Incident
416. Medium brown head hairs recovered from the scene were dissimilar
to Petitioner’s hair. (186 RT 21937-39, 21943-45.)
e)
10
Kneiding Incident
11
417. Hair found in Lela Kneiding’s hand was similar to her own hair and
12
dissimilar to Petitioner’s hair. (193 RT 22615-21.) Pubic hairs collected from a
13
bedspread were found to be dissimilar to the victims and Petitioner. (Id. at
14
22627-29.) One hair found on a shirt was not similar to Petitioner’s hair. The
15
same shirt had dark brown stains, possibly blood. (193 RT 22626-27.)
f)
16
17
Abowath Incident
418. Two buckled hairs recovered from the scene appeared to be pubic
18
hair but could have been transitional hairs from the lower stomach. On
19
comparison with Petitioner’s hair, they were found to be dissimilar. (186
20
RT 21922-23, 21935-36.)
21
22
23
24
25
ii.
Serological Evidence
419. Sheriff criminalists Gisele LaVigne and Steve Renteria testified as to
their findings with respect to the Cannon, Bennett, and Abowath incidents.
a)
Cannon Incident 420. A blood sample from a
piece of broken glass was subjected to electrophoretic testing to determine PGM
26
27
28
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1
markers.26 (190 RT 22344-47.) The PGM subtype found on the glass was
2
different from the PGM markers of both the victim and Petitioner. (Id. at 22349-
3
50.) Criminalist LaVigne was of the opinion that her findings were not accurate
4
because the sample was degraded. In LaVigne’s opinion, neither the victim nor
5
Petitioner could be excluded as possible donors. (Id. at 22367-70, 22394.)
6
421. The PGM subtype found on a gray mitten recovered from the
7
bedroom was consistent with both the victim’s and Petitioner’s blood. (190
8
RT 22352, 22354-55.) However, additional electrophoretic testing conclusively
9
demonstrated that blood on the mitten did not originate from Petitioner. (Id. at
10
22383-84.)
11
b)
Bennett Incident
12
422. Criminalist LaVigne collected numerous items from the scene
13
including a pillowcase, comforter, clothing, blanket, sheets, carpet, tire iron, two
14
belts, one tie, sash, and curtains. (190 RT 22329-32.)
15
423. Serological testing conducted on the sash disclosed blood stains
16
consistent with Type ABO-Type A blood. The victim and Petitioner were both
17
Type O. (190 RT 22338-42.) Antigens found on the sash did not originate from
18
either the victim or Petitioner. (Id. at 22344.)
19
20
c)
Abowath Incident
424. Criminalist Renteria tested a vaginal swab obtained from Sakina
21
Abowath to determine PGM subtype. Elyas Abowath and Petitioner shared the
22
same PGM subtype. (190 RT 22396-98, 22422.) Semen and vaginal secretions
23
were present on the swab obtained from Sakina. (Id. at 22401.) Test results
24
indicated that the fluid on the swab could not have originated from either Elyas
25
Abowath or Petitioner. (Id. at 22412-18.) In Renteria’s opinion, however, testing
26
27
26
28
Similar to the ABO Type of identification, identifying PGM markers in
a blood sample is a method of identifying the source.
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1
techniques used for PGM subtypes were unreliable. (Id. at 22419-23, 22434-36.)
2
Some semen samples found on a bedspread were consistent with Petitioner’s
3
blood type. Other stains found on the bed sheets were consistent with Elyas
4
Abowath’s blood type and inconsistent with Petitioner’s. (Id. at 22424-25.)
5
6
iii.
The Live Line-Up
425. A line-up was held at the Los Angeles County Jail on September 5,
7
1985. Members of the defense team were present during the line-up. (182
8
RT 21199, 21201-02.) A preview of the line-up was initially held during which
9
the line-up participants appeared on stage and were given instructions. Following
10
the preview and because of the number of witnesses, the line-up was held in two
11
separate sessions. (Id. at 21206-07.) Line-up witnesses were seated in the
12
audience. During the first line-up, there were approximately forty witnesses
13
seated in six to seven front rows. (Id. at 21208-10.)
14
426. Petitioner participated in the line-up. He had an injury to the back of
15
his head. (182 RT 21212-13, 21220.) Petitioner was assigned the Number 2
16
position in both line-ups. (Id. at 21217-19; 183 RT 21449.)
17
427. Witnesses were instructed not to talk to each other about the line-up.
18
(182 RT 21248.) The prosecutor and an investigating officer sat near the
19
witnesses. (Id. at 21211-12.) During the first line-up, a police officer raised his
20
right hand and gestured with two fingers. The witnesses were able to see the
21
gesture. (183 RT 21431-33.) The officer made this gesture before the witnesses
22
were asked to fill out their line-up cards. (Id. at 21434.) After the second line-
23
up, another officer appeared in front of the stage and asked if any of the witnesses
24
had questions. (Id. at 21438-40.) He, too, gestured with two fingers, moving his
25
hand back and forth as he walked across the room a few feet in front of the
26
witnesses. (Id. at 21436-38, 21447-48.)
27
28
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1
2
iv.
Expert Testimony Regarding Eyewitness
Identification
3
428. Elizabeth Loftus, Ph.D., a psychologist, testified that memory of an
4
event is based on acquisition of information, its retention and retrieval or recall.
5
(194 RT 22700-06.) Stress and fright adversely affect memory. Weapon focus
6
may occur when a witness’s attention is captured by a weapon, adversely
7
affecting the ability to remember other details. The period of time in which an
8
event occurs may also affect memory. Individuals often overestimate the
9
duration of an event that occurs under stressful conditions. Memory fades over
10
time. (Id. at 22707-12.) Post-event information may contaminate or alter
11
memory. (Id. at 22712, 22718-19.) Witnesses who are exposed to media
12
coverage or asked leading questions during interviews may have distorted
13
memory. Retrieval of memory occurs when a witness answers questions or
14
makes an identification. (Id. at 22712-15.)
15
429. Mistakes frequently occur in the eyewitness identification of
16
strangers if the witness and stranger are of different races. In Dr. Loftus’s
17
opinion, cross-racial identification is difficult for reasons that researchers do not
18
fully understand. (194 RT 22715-16.) On cross-examination, Loftus admitted
19
that she did not interview eyewitnesses in this case with respect to reliability of
20
cross-racial identification. (Id. at 22727-29.)
21
430. Loftus also testified that stress and the amount of time a witness
22
views an event affect the reliability of identification. (194 RT 22811-12, 22820.)
23
According to Loftus’s research, it is hard for a witness to retain an accurate
24
memory of an event. (Id. at 22826-27.) Subjects frequently recall post-event
25
information instead of the memory of the actual event itself. Subjects often give
26
inaccurate accounts based on other information received, such as media coverage.
27
(Id. at 22828-34, 22837.) Eye contact between a witness and a suspect increases
28
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1
the witness’s ability to remember the suspect’s appearance. (195 RT 22849-50,
2
22853-54.)
431. Dr. Loftus also studied the reaction of victims to traumatic events.
3
4
Retrograde amnesia frequently occurs as a result of mental or physical shock,
5
thereby reducing the victim’s ability to remember events. Dr. Loftus’s research
6
showed that victims who suffered mental trauma experienced difficulty in
7
remembering events. (194 RT 22771-74.)
o.
8
Testimony of Sandra Hotchkiss
432. Sandra Hotchkiss, a convicted felon and police informer in state
9
10
prison at the time of trial, testified that Felipe Solano was involved in numerous
11
stolen property transactions in addition to his dealings with Petitioner. (185
12
RT 21689-91.) Sandra Hotchkiss had been enlisted, unsuccessfully, by law
13
enforcement officers to sell stolen property to Solano both at a pool hall on Sixth
14
and Alvarado Streets, and at his home just prior to Petitioner’s arrest. (Id. at
15
21714-15, 21718-26, 21730-31.) Hotchkiss was unaware that her work with law
16
enforcement officers to sell jewelry to Solano in August and September 1985 was
17
actually related to a homicide investigation. She believed Solano had been
18
arrested and that she would be called as a witness in his case. (187 RT 21968-
19
69.)
20
433. Hotchkiss first met Petitioner in early 1985 at Brunswick Billiards
21
on Third and Main Streets in Los Angeles. Solano and Petitioner were both in
22
the pool hall at the time, talking with a group of people. Hotchkiss saw Petitioner
23
sell Solano jewelry on two occasions in March 1985. (186 RT 21869-71, 21874.)
24
On the first occasion, Hotchkiss bought several rings and chains from Petitioner.
25
(Id. at 21874-79.) Hotchkiss later bought jewelry from Petitioner at good prices
26
because he was unaware of the weight of the gold or the value of stones. (185
27
RT 21707-08.)
28
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1
434. Two to three weeks after their first meeting in March 1985,
2
Hotchkiss and Petitioner started committing residential burglaries together,
3
during the day and early evening. They used a car Hotchkiss had borrowed. (185
4
RT 21708-09.) Hotchkiss never saw Petitioner with a gun. (Id. at 21713-14.) He
5
did not act violently or aggressively in her presence. She considered Petitioner to
6
be an amateur burglar. (Id. at 21695-96, 21698, 21701.) Petitioner usually
7
waited in the car and acted as the driver, while Hotchkiss committed the
8
burglaries. She picked the homes to be burglarized. According to Hotchkiss,
9
Petitioner did not know how to identify valuable jewelry. (Id. at 21702-04.) She
10
last saw Petitioner in July 1985 in the downtown area near Third and Broadway
11
Streets. (Id. at 21709-10.)
12
435. At trial, Hotchkiss refused to answer specific questions about
13
burglaries that she had committed with Petitioner. (186 RT 21888, 21892.)
14
Hotchkiss agreed to testify only about crimes as to which the statute of
15
limitations had expired. The prosecutor told the court that there was no evidence
16
that Hotchkiss had been involved in any of the murder cases. (Id. at 21929-32.)
17
436. Hotchkiss admitted committing 20 to 25 burglaries with Petitioner
18
between January and July 1985 in west Los Angeles, Glendale, Atwater, Silver
19
Lake, Santa Monica, and Montrose. (187 RT 21996-22000.) She stopped
20
working with Petitioner because their burglaries did not go smoothly.
21
Sometimes, Petitioner became scared and abandoned her at the scene. (Id. at
22
22009.) They had disagreements about where to park their car and what to take.
23
She denied that Petitioner ever wrote on mirrors with lipstick during their
24
burglaries. (Id. at 22018-21.)
25
437. Hotchkiss and Petitioner used various cars to commit burglaries.
26
Petitioner frequently changed cars, driving at times a two-door maroon Chevrolet,
27
a four-door white Dodge, and a small station wagon. (187 RT 22029-30.) On
28
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1
occasion, they used her Dodge Colt. (Id. at 22104.) Hotchkiss saw Petitioner
2
with a screwdriver and pocketknife, but never with a gun. (Id. at 22032-33.)
438. Neither Hotchkiss nor Petitioner wore gloves during burglaries they
3
4
committed together. She believed that gloves hindered her actions during a
5
burglary. Occasionally, she used clear nail polish on her fingertips to avoid
6
leaving fingerprints. Petitioner used clear polish on his fingertips almost every
7
time they worked together. (188 RT 22142, 22184-86.)
439. In exchange for her work with police as an informant and her efforts
8
9
with police to buy and sell stolen property from and to Felipe Solano, Hotchkiss
10
received respectively six-year and eight-year suspended prison terms and grants
11
of probation in two separate cases. In August 1986, Hotchkiss was arrested,
12
charged with being under the influence, and released from custody. (185
13
RT 21748, 21754.) On October 26, 1986, she was arrested and charged with
14
burglary. As a result of that arrest, her probation was violated, and she was
15
sentenced to prison for fourteen years. (Id. at 21753-54.)
440. Since 1960, Hotchkiss had regularly used cocaine, heroin, and
16
17
methadone. She also was suffering from an epilepsy disorder; she was required
18
to take medication for seizures. Hotchkiss testified that her memory was not
19
affected by her medication. Following her arrest on October 26, 1986, Hotchkiss
20
became comatose as a result of a drug overdose. (185 RT 21748; 188 RT 22190-
21
92.)
22
441. At the time of trial, Hotchkiss was in protective custody in state
23
prison, owing to her involvement as a witness in a Long Beach homicide case.
24
While in Los Angeles County Jail, she was housed in protective custody. (188
25
RT 22157-59.)
26
27
28
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p.
1
Impeachment of Felipe Solano
2
442. In 1985, Ruben Cardenas lived near Felipe Solano at 846 Laveta
3
Terrace in Los Angeles. He was related to Solano through marriage. Shortly
4
before Petitioner’s arrest, Solano asked Cardenas to hide a box for him. Cardenas
5
refused. (191 RT 22443-44.) Two years after Petitioner’s arrest, Cardenas told a
6
defense investigator that in 1985 he had seen Solano and his wife sort jewelry on
7
the kitchen table of their residence. (192 RT 22590.)
8
9
443. Felipe Solano, Jr., testified that he worked at the same factory as his
father in August and September 1985. In August 1985, his father brought a
10
handkerchief containing jewelry to his home and told him to keep the jewelry for
11
him. Solano, Jr. did not know the property had been stolen. (184 RT 21525-27,
12
21533.) A few days later, his father retrieved the jewelry in the company of
13
police officers. (Id. at 21528.)
14
444. Felipe Solano’s friend, Rosa Solis, was in custody during the time
15
Solano was involved with Petitioner. On October 6, 1985, Solis was paroled to
16
the Solano residence at 842 Laveta Terrace, but she later absconded. (181
17
RT 21079-80.) A warrant was issued for her arrest on December 3, 1985. As of
18
October 7, 1985, she was a parolee-at-large. (Id. at 21094-95.)
19
445. According to Los Angeles County Probation Department documents,
20
Rosa Solis’s true name was Eva Castillo. (181 RT 21097.) She was sentenced to
21
prison on November 14, 1984 for a crime committed on July 12, 1984, and
22
paroled on October 6, 1985. (Id. at 21100, 21107.)
23
4.
Rebuttal Evidence
24
446. Evidence was introduced to impeach Sandra Hotchkiss and to refute
25
defense evidence as to the Yu and Kneiding incidents. Testimony of a news
26
reporter who interviewed Petitioner’s father and evidence of dental records were
27
offered to undermine Petitioner’s alibi. The prosecution also presented evidence
28
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1
to explain hand gestures made by a law enforcement officer during Petitioner’s
2
line-up.
3
4
a.
Impeachment of Sandra Hotchkiss
447. Burbank Police Sergeant Kight testified that he first met Sandra
5
Hotchkiss in 1976 or 1977, following her arrest for burglary. He knew she was a
6
burglar, a fence, and a prostitute. Over a ten-year period, Hotchkiss stayed in
7
touch with Kight. He last saw her in jail in 1986. (196 RT 22904-05, 22920.)
8
9
448. In August 1985, Kight was asked to provide an informant who knew
downtown Los Angeles to assist in a Sheriff Department investigation. He
10
introduced Hotchkiss to Detective Ghan and Sergeant Yarbrough. (196
11
RT 22905-07.) Hotchkiss was in contact with Ghan and Yarbrough at least ten
12
days prior to Petitioner’s arrest. (Id. at 22910-11.)
13
449. Shortly after Petitioner’s arrest, in early September, Hotchkiss called
14
Kight and indicated she had completed her work for the sheriff’s department.
15
450. Kight may have told Hotchkiss that the investigation concerned
16
Petitioner’s case. (196 RT 22914-15.) However, Kight was unaware that
17
Hotchkiss knew Petitioner or Felipe Solano. (Id. at 22915-16.)
18
451. In August 1985, Kight knew that Hotchkiss was charged with two
19
burglaries and was out of custody on bail. He agreed to provide a letter on her
20
behalf for a pending criminal prosecution. The chief of police signed a letter that
21
Kight prepared. As a result, Hotchkiss was granted probation. Following her
22
subsequent arrest for violation of probation, Hotchkiss contacted Kight for
23
assistance, but Kight did not assist her. Hotchkiss was later returned to state
24
prison. (196 RT 22917-20.)
25
452. Former Sheriff’s Detective Robert Ghan met Hotchkiss on August
26
29, 1985. Ghan interviewed Hotchkiss; she provided names and places of
27
activity related to stolen property. Hotchkiss did not provide either Felipe
28
Solano’s or Petitioner’s name. At that time, Ghan was unaware of both Solano
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1
and Petitioner. (196 RT 22934-36.) Ghan put Hotchkiss in touch with Sergeant
2
Laurie. Ghan had no further contact with Hotchkiss and was unaware that she
3
was being prosecuted for burglary. He was unaware that his name had been
4
mentioned in a letter on her behalf that explicitly referred to the Night Stalker
5
Task Force. (Id. at 22937-39.)
6
453. Los Angeles Police Detective Felix Estrada testified that he first met
7
Hotchkiss in late 1984. She acted as an informant in some of his cases by buying
8
stolen property. A letter was prepared on her behalf by Los Angeles Police
9
Department. (196 RT 22954-55.)
10
454. Shortly after Petitioner’s arrest, Estrada spoke with Hotchkiss who
11
offered to sell stolen property to the owner of a pool hall on Alvarado Street near
12
6th Street. Hotchkiss stated that she did not know Petitioner but she had learned
13
he sold stolen property at a pool hall. (196 RT 22956-59, 22961.) Estrada was
14
not on the Night Stalker Task Force and did not bring up Petitioner’s name in his
15
conversations with Hotchkiss. She did not at that time disclose to Estrada that
16
she knew Felipe Solano. (Id. at 22967-69.)
17
455. Estrada did not enlist Hotchkiss to sell stolen property at a pool hall.
18
Hotchkiss frequently called Estrada; on one occasion, she asked him for money.
19
Estrada refused. (196 RT 22960-62.) Hotchkiss indicated to Estrada that since
20
neither he nor the prosecution would help her, she would contact the defense to
21
“see if they would pay her for information.” (Id. at 22962.) Estrada considered
22
Hotchkiss generally a reliable informer but not always truthful. (Id. at 22963-64.)
23
456. Sergeant Yarbrough first met Hotchkiss on August 29, 1985, at the
24
sheriff station. He had no further contact with her until October 31, 1986 when
25
he spoke with her at the Sybil Brand Institute for Women. Hotchkiss told him
26
that she first met Petitioner on 6th Street in Los Angeles while he was buying
27
drugs. Petitioner’s nickname was “Flaco,” which meant “skinny” in Spanish.
28
(196 RT 22975-81.) Hotchkiss bought drugs for Petitioner at the Brunswick Pool
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1
Hall on Fourth and Main Streets. She also bought items from Petitioner,
2
including a camera and camera equipment, two gold necklaces with emeralds, a
3
choker, and a man’s yellow gold ring with a diamond. Based on her
4
conversations with Petitioner, Hotchkiss believed that he obtained property from
5
burglaries. (Id. at 22981-83.) She also claimed that Solano lied about meeting
6
Petitioner at the bus station. Solano did not pay Petitioner a fair price for the
7
property he had purchased from Petitioner. (Id. at 22984.)
8
457. On March 3, 1987, Yarbrough again met with Hotchkiss who was
9
still in custody. Hotchkiss related that she and Petitioner together committed four
10
or five burglaries in the Pasadena or Burbank area. She said she was present with
11
Petitioner in an orange Toyota station wagon when he was involved in a fatal hit
12
and run incident in 1985. Yarbrough later confirmed that an unsolved fatal hit
13
and run involved a white Buick. (196 RT 23004-05.)
14
458. In a later interview on March 26, 1987, Hotchkiss indicated that she
15
knew Petitioner but did not associate him with the Night Stalker. They used
16
cocaine together. (196 RT 23005, 23008.) She admitted observing Petitioner
17
place jewelry in a pay locker at the bus station and, on several occasions, saw him
18
remove jewelry from the locker. She believed that Petitioner burglarized a house
19
in her neighborhood between November 1984 and February 1985. (Id. at 23009-
20
11.) She did not like working with Petitioner because he was careless, stole
21
worthless property, and used amateur tools. On one occasion, while committing
22
a burglary with Hotchkiss, Petitioner wrote on a mirror with lipstick. (Id. at
23
23012.) Sergeant Yarbrough investigated information provided by Hotchkiss. In
24
Yarbrough’s opinion, Hotchkiss gave inconsistent, inaccurate information. (Id. at
25
23026.)
26
27
28
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b.
1
2
Yu Incident
459. Monterey Park Police Agent Ron Endo observed the victim’s right
3
shoe on the driver’s side floorboard. Her left shoe was found on the ground in
4
front of the car. (197 RT 23087-89.) The victim’s clothing was not disheveled.
5
(Id. at 23090-92.) When paramedics arrived, they cut away her clothing. (Id. at
6
23099-101.)
7
460. James Njavro, a coroner’s photographer, identified a photograph of
8
Yu’s clothed body taken before the autopsy. In the photograph, Yu’s clothing
9
appeared disheveled. (197 RT 23057-59, 23065-70.)
10
461. On March 17, 1985, Teresa De Jesus Cerna worked at 9th and Olive
11
Streets in downtown Los Angeles. When she left work, she found that her car, a
12
1974 Toyota Corolla station wagon, license number 521MNI, was missing. She
13
immediately reported that her car had been stolen. On March 20, 1985, she
14
obtained her car from the California Highway Patrol. (198 RT 23126-31.) Only
15
the ignition had been damaged; nothing was missing. The door lock was intact.
16
The car had been locked when she parked it on March 17. (Id. at 23133.)
17
462. Monterey Park Police Officer Kimberly Torres impounded a 1974
18
dark blue Toyota vehicle, license plate number 521MNI, on March 20, 1985.
19
The car had been parked at the emergency entrance to the Monterey Park
20
Hospital which was located four blocks from the Yu incident. The car had first
21
been cited on March 18, 1985. The vehicle had minor damage to the front end
22
and a paint scratch to the right side. (197 RT 23048-54.)
23
c.
Kneiding Incident
24
463. On June 3, 1988, criminalist Steve Renteria examined a T-shirt
25
found during the investigation of the crime scene. He tested reddish-brown stains
26
on the T-shirt and concluded that the stains were not blood. (197 RT 23105-07.)
27
28
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d.
1
2
Petitioner’s Dental Work and Alibi
464. Gerald Vale, D.D.S., compared Petitioner’s dental records and x-
3
rays taken after his arrest to the dental records of a patient named Richard Mena
4
who had been treated by Dr. Peter Leung. (198 RT 23139-41, 23145.) In Dr.
5
Vale’s opinion, all the records pertained to the same person. Both sets of records
6
showed twelve teeth missing and distinctive dental work. A molar with two
7
fillings appeared in each set of records. (Id. at 23151-54.) X-rays of the eyeteeth
8
lateral incisors, and central incisors depicted the same teeth. Both sets of records
9
demonstrated identical wearing of the teeth and that a root canal had been
10
performed on the same tooth. There were more than 73 matching points in the
11
two sets of dental records. (198 RT 23156-58, 23166.)
12
465. Dr. Leung practiced dentistry in Chinatown at 732 North Broadway,
13
Los Angeles. (198 RT 23172.) From March 5, 1985, through May 30, 1985, he
14
treated a patient named Richard Mena. His records disclosed that x-rays of
15
Mena’s teeth were first taken on March 5, 1985. On May 17, 1985, a root canal
16
was performed. On May 21, 1985, Mena had a tooth extracted. (Id. at 23174-79,
17
23182.)
18
466. On May 23, 1985, Mena underwent further dental work. On May
19
30, 1985, a crown was cemented in place. Mena paid for the dental work in cash.
20
(198 RT 23184-91.) At trial, Dr. Leung identified Petitioner as his patient
21
Richard Mena. (Id. at 23192.)
22
467. News reporter David Hancock worked for the El Paso Times on
23
August 31, 1985. He interviewed Petitioner’s father, Julian Ramirez, in Spanish
24
on that date at the father’s residence. Ramirez appeared shaken by news of
25
Petitioner’s arrest. (199 RT 23241-44.) They discussed when Petitioner’s father
26
last saw Petitioner. Ramirez indicated he had not seen Petitioner for two to three
27
years. (Id. at 23227-29.) The interview lasted ten minutes. (Id. at 23231.)
28
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e.
1
2
Live Line-Up
468. Deputy sheriff John Jones attended the live line-up on September 5,
3
1985. He met a witness, Minnie Kelsey, before the line-up. She was elderly,
4
confined to a wheelchair, and hard of hearing. (198 RT 23204-05.) Deputy
5
Jones wheeled Kelsey to the front of the line-up room. (Id. at 23206-09.) Jones
6
used his hands when talking to Kelsey, but he did not gesture to anyone. (Id. at
7
23210.)
8
5.
9
469. Raymundo Pantoya lived in El Paso and worked with Petitioner’s
Surrebuttal Evidence
10
father for the Santa Fe Railroad. He knew Petitioner. Pantoya last saw Petitioner
11
on a Saturday when Julian Ramirez’s granddaughter, Jennie, was to receive
12
communion. (202 RT 23405-07.) Jennie lived with Petitioner’s parents. (Id. at
13
23423-24.) Petitioner was at his father’s house when Pantoya came over to help
14
unclog a sink. He brought a tool with him and left it at the house. (Id. at 23409-
15
10, 23412-15.) Petitioner’s mother also was at home at that time. Pantoya did
16
not attend the communion service or stay for the party. (Id. at 23416-17.)
17
470. Maria Torres lived in El Paso. Her sister was married to Petitioner’s
18
brother, Ignacio. On May 25, 1985, she was at the Ramirez family home on
19
Corozal Street on the day Jennie received her First Communion. (202 RT 23441-
20
43.) Photographs were taken in the afternoon. Torres saw Petitioner, his father,
21
mother, and Jennie pose together for a photograph. She later saw the resulting
22
Polaroid photograph that was admitted into evidence at trial (Defense Trial
23
Ex. Az). (202 RT 23444-47, 23473.)
24
471. Torres saw Petitioner again the following Wednesday, May 29,
25
1985, at her sister’s house. (202 RT 23448-49.) Petitioner walked into the living
26
room and spoke with Torres for a few minutes. Petitioner went to his brother’s
27
bedroom and left the house a few minutes later. She remembered the date
28
because she had separated from her husband exactly one month earlier, on April
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1
29. (Id. at 23450-53, 23463-64.) When she last saw Petitioner, he was wearing a
2
dark T-shirt and jeans. (Id. at 23469.)
3
C.
4
5
Penalty Phase
472. At the penalty trial, neither the prosecution nor the defense presented
any evidence. (See 217 RT 24780-81.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
VI.
2
INCORPORATION OF EXHIBITS AND REQUEST
3
FOR JUDICIAL NOTICE
4
473. Petitioner incorporates the accompanying exhibits into this petition
5
by reference as if set forth in full herein. Petitioner’s claims are based on the
6
petition, the declarations and documents appended thereto, and all records,
7
documents and pleadings filed in the California Supreme Court in his direct
8
appeal and habeas actions. Los Angeles County Superior Court No. S012944;
9
California Supreme Court Case Nos. S125755. Petitioner hereby requests this
10
Court to take judicial notice of the entire record from his direct appeal, and his
11
related state habeas action.
12
474. Petitioner requests that the Court consider all the exhibits filed with
13
this petition. As to those exhibits that have not been authenticated, which contain
14
hearsay information or which might otherwise be inadmissible at an evidentiary
15
hearing on this petition, Petitioner presents them as an offer of proof about what
16
evidence Petitioner could introduce after full investigation, discovery and access
17
to this Court’s subpoena power. In citing in this petition to specific exhibits or to
18
specific pages or paragraphs thereof, Petitioner does not contend or concede that
19
these specific references are the only evidence which could be presented at an
20
evidentiary hearing in support of his claims.
21
475. All articles, records, photographs, and other documents submitted as
22
exhibits are what they purport to be. Petitioner originally copied or printed some
23
documents on paper larger and smaller than 8-½ x 11 inches; except where noted,
24
Petitioner has reduced or enlarged those copies in size for convenience in filing.
25
476. Original copies of Petitioner’s exhibits are available at the Office of
26
the Federal Public Defender, 321 East 2nd Street, Los Angeles, California,
27
90012, and will be furnished to the Court or shown to opposing counsel upon
28
request. Other original copies of exhibits are on file with the California Supreme
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1
Court, pursuant to the rules directing habeas petitioners to do so, or will be filed
2
with the California Supreme Court when an exhaustion petition is filed in March,
3
2009.
4
VII.
5
CONSIDERATION OF THE PETITION UNDER THE ANTITERRORISM
6
AND EFFECTIVE DEATH PENALTY ACT
7
477. Ramirez filed his initial federal habeas petition after the effective
8
date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and
9
therefore the AEDPA governs his petition. Woodford v. Garceau, 538 U.S. 202,
10
123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003).
11
Under AEDPA, a habeas petition challenging a state court judgment
12
shall not be granted with respect to any claim that was adjudicated
13
on the merits in State court proceedings unless the adjudication of
14
the claim – (1) resulted in a decision that was contrary to, or
15
involved an unreasonable application of clearly established Federal
16
law, as determined by the Supreme Court of the United States; or (2)
17
resulted in a decision that was based on an unreasonable
18
determination of the facts in light of the evidence presented in the
19
State court proceeding.
20
28 U.S.C. § 2254(d). 28 U.S.C. § 2254(e)(1) states that “a determination of a
21
factual issue made by a State court shall be presumed to be correct” and that the
22
habeas petitioner “shall have the burden of rebutting the presumption of
23
correctness by clear and convincing evidence.”
24
478. Ninth Circuit cases consistently hold that less deference to state
25
court decisions are warranted where, with regard to the majority of Petitioner’s
26
claims, the state court summarily denied the claim without an opinion or an
27
evidentiary hearing. First, because “there is no reasoned state court decision to
28
assess,” the federal court “must conduct an independent review of the record” to
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1
determine if the state court decision was objectively unreasonable. Reynoso v.
2
Giurbino, 462 F.3d 1099, 1119 (9th Cir. 2006); Brown v. Palmateer, 379 F.3d
3
1089, 1092 (9th Cir. 2004) (“Because the Oregon courts have provided no ratio
4
decidendi to review, or to which we can give deference, we employ the
5
‘objectively reasonable’ test. In this situation, federal habeas courts accord the
6
state court decisions less deference than in standard habeas cases”); Himes v.
7
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (similar). A leading treatise
8
describes this Ninth Circuit rule as “an intermediate approach” in which the court
9
“review[s] the record ‘independently’ in a manner that is somewhat more
10
deferential to the state courts than the pre-AEDPA standard of de novo review.”
11
Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
12
Procedure, Vol. 2 § 32.2 at 1576 & n.10 (5th ed. 2005).
13
479. Second, because the state courts made no findings of fact or held a
14
hearing on the claims, there are no factual determinations for this Court to defer
15
to, or for § 2254(e)(1)’s presumption of correctness to apply to. Taylor v.
16
Maddox, 366 F.3d 992, 1014 (9th Cir. 2004) (“It is well-established that when the
17
state courts do not make findings at all, no presumption of correctness attaches,
18
and we must make our own findings.”) (citing Wiggins v. Smith, 539 U.S. 510,
19
123 S. Ct. 2527, 2540, 156 L. Ed. 2d 471 (2003)); Nunes v. Mueller, 350 F.3d
20
1045, 1055 (9th Cir. 2003) (“with the state court having refused Nunes an
21
evidentiary hearing, we need not of course defer to the state court’s factual
22
findings – if that is indeed how those stated findings should be characterized –
23
when they were made without such a hearing”); Killian v. Poole, 282 F.3d 1204,
24
1208 (9th Cir. 2002) (similar).
25
480. Further, in Holland v. Jackson, 524 U.S. 649, 653, 124 S. Ct. 2736,
26
159 L. Ed. 2d 683 (2004) (per curiam), the Supreme Court recognized that
27
“[w]here new evidence is admitted [in the federal habeas court], some Courts of
28
Appeals have conducted de novo review [rather than apply the § 2254(d)(1) and
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1
(2) standards] on the theory that there is no relevant state-court determination to
2
which one could defer.” See, e.g., Monroe v. Angelone, 323 F.3d 286, 297-99 &
3
n.19 (4th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003); Williams
4
v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001); but see Matheny v. Anderson, 377
5
F.3d 740, 747 (7th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 946-47, 951-52
6
(5th Cir. 2001); see also LeCroy v. Secretary, Florida Dep’t of Corrections, 421
7
F.3d 1237, 1262-63 & n.30 (11th Cir. 2005) (collecting cases). This rule makes
8
sense: “the new, relevant evidence was never before the state court so it never
9
considered the impact of the evidence when denying relief, and there is arguably
10
nothing to defer to.” LeCroy, 421 F.3d at 1263 n.30.
11
481. Petitioner is unaware of published Ninth Circuit opinions discussing
12
this line of cases on the issue of de novo review, but in Killian v. Poole, 282 F.3d
13
at 1207, the court concluded that “[f]or claims for which no adjudication on the
14
merits in state court was possible . . . AEDPA’s standard of review does not
15
apply.” The court explained:
16
AEPDA deference does not apply to Killian’s perjury claim in this
17
case because the state courts could not have made a proper
18
determination on the merits. Evidence of the perjury, after all, was
19
adduced only at the hearing before the magistrate judge.
20
482. The terms “contrary to” and “unreasonable application” have
21
independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 152 L.
22
Ed. 2d 914 (2002); Sarausad v. Porter, 479 F.3d 671 (9th Cir. 2007). A state
23
court decision is “contrary to” clearly established federal law if it arrives at a
24
conclusion opposite to that of the Supreme Court on a question of law, or decides
25
the case differently than the Supreme Court on a set of materially
26
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495,
27
146 L. Ed. 2d 389 (2000); accord Carey v. Musladin, 549 U.S. 70, 127 S. Ct.
28
649, 653, 166 L. Ed. 2d 482 (2006). To be an “unreasonable application of”
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1
clearly established federal law, the state court decision must have identified the
2
correct legal rule but unreasonably applied it to the facts at hand. Id. at 406.
3
483. “Supreme Court holdings at the time of the state court’s last
4
reasoned decision are the source of clearly established Federal law for the
5
purposes of AEDPA,” citing Williams, 529 U.S. at 412; Abdul-Kabir v.
6
Quarterman, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007) (granting habeas relief
7
under AEDPA because state court decision ignored “fundamental principles
8
established by [the Supreme Court’s] most relevant precedents”); Barker v.
9
Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005); accord Clark v. Murphy, 331 F.3d
10
1062, 1069 (9th Cir. 2003). Ninth Circuit precedent remains persuasive authority
11
in determining what is clearly established federal law. See Duhaime v.
12
Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999); Arnold v. Runnels, 421 F.3d
13
859, 865 n.6 (9th Cir. 2005). As the Supreme Court has stated, “in the context of
14
federal habeas” “[d]eference does not imply abandonment or abdication of
15
judicial review.” Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 340, 123 S.
16
Ct. 1029, 154 L. Ed. 2d 931 (2003). To that end, while the standard as articulated
17
in section 2254 is demanding, it is “not insatiable; as we said the last time this
18
case was here, “‘[d]eference does not by definition preclude relief.’” Miller-El v.
19
Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Miller-El
20
II) (granting habeas relief under AEDPA), citing Miller-El I, 537 U.S. at 340; see
21
Panetti v. Quarterman, 127 S. Ct. 2842, 2858, 168 L. Ed. 2d 662 (2007)
22
(“AEDPA does not “‘require state and federal courts to wait for some nearly
23
identical factual pattern before a legal rule must be applied.’”), citing Carey, 127
24
S. Ct. at 656 (Kennedy, J., concurring in judgment).
25
484. When state courts fail to render a reasoned decision on the merits of
26
a claim, the AEDPA rules are fundamentally altered. Ninth Circuit cases
27
consistently hold that less deference to state court decisions is warranted when
28
the state court summarily denies a claim without an opinion or an evidentiary
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1
hearing. First, because “there is no reasoned state court decision to assess,” the
2
federal habeas court “must conduct an independent review of the record” to
3
determine if the state court decision was objectively unreasonable. Reynoso v.
4
Giurbino, 462 F.3d 1099, 1119 (9th Cir. 2006); Brown v. Palmateer, 379 F.3d
5
1089, 1092-93 (9th Cir. 2004) (“Because the Oregon courts have provided no
6
ratio decidendi to review, or to which we can give deference, we employ the
7
‘objectively reasonable’ test. In this situation, federal habeas courts accord the
8
state court decisions less deference than in standard habeas cases.”); Himes v.
9
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (similar). A leading treatise
10
describes this Ninth Circuit rule as “an intermediate approach” in which the court
11
“review[s] the record ‘independently’ in a manner that is somewhat more
12
deferential to the state courts than the pre-AEDPA standard of de novo review.”
13
Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
14
Procedure (5th ed. 2005), Vol. 2, § 32.2 at 1576 & n.10.
15
VIII.
16
ALLEGATIONS APPLICABLE TO EACH AND EVERY CLAIM
17
18
19
485. Petitioner makes the following allegations that apply to each and
every claim and allegation in this Petition.
486. The facts in support of each claim are based on the allegations in the
20
Petition, the declarations and other documents contained in the exhibits; the
21
entire record of all the proceedings involving petitioner in the trial courts of Los
22
Angeles County; the documents, exhibits, and pleadings in People v. Richard
23
Munoz Ramirez, Case No. S012944, In Re Ramirez, Case No. S125755, any
24
judicially noticed facts, and all other documents and facts that Petitioner may
25
develop.
26
487. Legal authorities in support of each claim are identified within that
27
claim. Each and every claim is based both on the state and the federal
28
constitutions.
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488. Petitioner does not waive any applicable rights or privileges by the
2
filing of this Petition and the exhibits, and in particular, does not waive either the
3
attorney-client privilege or the work-product privilege. See Bittaker v. Woodford,
4
331 F.3d 715 (9th Cir. 2003). Petitioner hereby requests that any waiver of a
5
privilege occur only after a hearing with sufficient notice and the right to be
6
heard on whether a waiver has occurred and the scope of any such waiver.
7
Petitioner also requests “use immunity” for each and every disclosure he has
8
made and may make in support of this Petition.
9
489. It should be noted that, despite counsel’s best efforts and exercise of
10
due diligence, the claims presented herein are unavoidably incomplete, for all the
11
reasons alleged herein, but also due to two external factors beyond Petitioner’s
12
and counsel’s control that inherently preclude the full investigation and
13
development of potentially meritorious habeas corpus claims that entitle
14
Petitioner to habeas corpus relief: 1) Petitioner’s serious mental illness and
15
inability to rationally understand and assist in these proceedings (viz., the
16
investigation and presentation of the petition for writ of habeas corpus); and 2)
17
the impossibility of being able to thoroughly investigate and develop the
18
underlying facts in support of potentially meritorious issues because Petitioner
19
was allowed to represent himself at trial, the crucial and constitutionally-relevant
20
facts underlying his claims are exclusively within his knowledge, and he is
21
currently too mentally ill to recall, relate, articulate, understand, assess, explain or
22
otherwise impart to counsel (or to the Court on his own behalf) the critical and
23
indispensable facts that lie at the heart of those claims.
24
490. Until Petitioner can be restored to competence, generally, and
25
specifically with respect to the events that led to the capital charges and the
26
subsequent legal proceedings that are the subject of this Petition for relief, these
27
proceedings should be suspended. Failing to do so would violate his state and
28
federal constitutional rights to pursue and prosecute his habeas corpus rights.
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491. Nevertheless, counsel for Petitioner presents the claims for relief to
2
the extent possible notwithstanding the limitations that inhere in the peculiar facts
3
of Petitioner’s case. There are undoubtedly additional relevant, highly probative
4
facts in support of each claim presented here, as well as other potentially
5
meritorious claims which are currently unknowable due to Petitioner’s mental
6
illness. Until Petitioner is restored to a level of competence where he can
7
rationally aid and assist in the investigation, development and presentation of the
8
claims presented here, and any other potentially meritorious claims which are
9
now indeterminable, this Court cannot justly or fairly deny or otherwise
10
adjudicate Petitioner’s claims without violating his federal constitutional rights.
11
IX.
12
CLAIMS FOR RELIEF
13
CLAIM 1:
14
PETITIONER WAS MENTALLY INCOMPETENT THROUGHOUT
15
THE LEGAL PROCEEDINGS IN STATE COURT AND IS
16
CURRENTLY MENTALLY INCOMPETENT
17
492. Exhaustion of the claim: This claim was fairly presented to the
18
California Supreme Court in the direct appeal and in Section VII of the June 2004
19
petition for writ of habeas corpus, although it includes additional factual
20
allegations. Petitioner will present the claim with the additional factual
21
allegations to the California Supreme Court in an exhaustion petition he will file
22
no later than March 17, 2009.
23
493. In support of this claim, Petitioner alleges the following facts,
24
among others to be presented after full discovery, investigation, adequate
25
funding, access to this Court’s subpoena power, and an evidentiary hearing.
26
27
494. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
28
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incorporated by reference as if fully set forth herein to avoid unnecessary
2
duplication of relevant facts.
3
495. Petitioner’s conviction and sentence are illegal, unconstitutional, and
4
void under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because
5
he was mentally incompetent to stand trial or to waive rights, to understand the
6
proceeding in state court or to aid and assist in his defense. He is currently
7
mentally incompetent to assist federal habeas counsel.
8
9
496. Petitioner’s conviction and sentence of death were rendered in
violation of his rights to due process and equal protection, a fair trial, present a
10
defense, compulsory process, confrontation, disclosure of all material,
11
exculpatory and/or impeaching evidence, a reliable, rational, and accurate
12
determination of guilt, death-eligibility and death-worthiness, free of any
13
unconstitutionally unacceptable risk that such determinations were the product of
14
bias, prejudice, arbitrariness or caprice; effective assistance of counsel and access
15
to competent mental health experts who are qualified to assist in the
16
investigation, preparation and presentation of evidence relevant to significant
17
mental state issues under the above-referenced provisions of the Constitution.
18
497. The violations of these rights, individually and cumulatively,
19
prejudicially affected and distorted the investigation, discovery, presentation, and
20
consideration of evidence as well as each and every factual and legal
21
determination made by trial counsel, the state courts and the jurors at all stages of
22
the proceedings from the time of Petitioner’s arrest through and including the
23
rendering of the judgment of death.
24
498. A person cannot be tried and sentenced to death while mentally
25
incompetent. Pate v. Robinson, 383 U.S. 375, 375 86 S. Ct. 836, 15 L. Ed. 2d
26
815 (1966). The test for incompetency to stand trial is whether as a result of
27
mental disorder or developmental disability, the defendant is unable to
28
understand the nature of the criminal proceedings or to assist counsel in the
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conduct of a defense in a rational manner. The defendant must have “sufficient
2
present ability to consult with is lawyer with a reasonable degree of
3
understanding” and must have a “rational as well as a factual understanding of
4
the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.
5
Ct. 788, 4 L. Ed. 2d 824 (1960); accord Drope v. Missouri, 420 U.S. 162, 95 S.
6
Ct. 896, 43 L. Ed. 2d 103 (1975) (“[A] person whose mental condition is such
7
that he lacks the capacity to understand the nature and object of the proceedings
8
against him to consult with counsel, and to assist in preparing his defense may
9
not be subjected to trial.”). The trial of an accused who is unable to assist counsel
10
rationally or understand the nature of the proceedings against him also violates
11
his substantive due process rights to be tried while physically and mentally
12
present. James v. Singletary, 957 F.2d 1562 (11th Cir. 1992).
13
499. There is a basic presumption against the waiver of constitutional
14
rights. Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966).
15
To properly waive a constitutional right a defendant must do so voluntarily,
16
knowingly and intelligently, with a sufficient understanding of the relevant
17
circumstances and the likely consequences. See Brady v. United States, 397 U.S.
18
742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970): Johnson v. Zerbst, 304 U.S. 458, 58
19
S. Ct. 1019, 82 L. Ed. 1461 (1938). To meet this standard when waiving the right
20
of presenting mitigating evidence to a penalty phase jury, an individual must
21
understand what constitutes mitigating evidence and whether any such evidence
22
exists in his case. Against this backdrop, Petitioner’s decision to waive
23
presentation of mitigating evidence at the penalty phase of his trial did not
24
constitute a valid waiver.
25
500. Counsel’s performance was constitutionally deficient. Trial counsel
26
failed to adequately and thoroughly investigate mitigating evidence. Evidence of
27
childhood abuse, neglect, injury and trauma, institutional failure, polysubstance
28
use, and long-standing mental illness and impairments was available to trial
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1
counsel. Counsel decided to go forward at trial without fully investigating and
2
understanding the impact of the mitigation evidence and Petitioner’s impaired
3
mental state, which was material and relevant at both phase of Petitioner’s trial.
4
Thus, almost the only evidence the jury heard was extremely violent and bizarre
5
criminal acts.
6
501. An effective investigation by trial counsel developing the evidence
7
even in their possession would have uncovered significant mitigating evidence
8
regarding childhood abuse, neglect, injury and trauma, institutional failure,
9
polysubstance use, multiple mental impairments, including organic brain damage
10
11
and psychosis.
502. Petitioner’s purported waiver of a penalty-phase defense was based
12
on a lack of competent, conflict-free advice from counsel, of rational
13
understanding of the proceedings and consequences, and of the ability to
14
communicate rationally with counsel and to assist in his own defense. Any
15
purported waiver was therefore not a knowing and intelligent waiver under Brady
16
and Zerbst. Petitioner cannot be held to have waived his fundamental right to
17
present penalty phase evidence as he was mentally incompetent.
18
503. For the same reasons, Petitioner was incompetent to waive any
19
defenses or any of his constitutional or statutory rights, including his right to
20
make knowing, intelligent, and voluntary waivers of constitutional rights; to a
21
speedy trial, conflict-free and legally competent counsel; his right not to
22
incriminate himself; his right to be free from unlawful searches and seizures; his
23
right to rationally assist counsel in the preparation of his defense; his right to be
24
present at trial proceedings; his right to cross-examine witnesses brought against
25
him; his right to present a defense at the guilt and penalty phases of his trial; his
26
right to compel witnesses to testify on his behalf; his right to effective assistance
27
of counsel; and his right to present mitigation evidence. No waiver of
28
constitutional or statutory rights that may appear on the record was in fact
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1
knowing, voluntary, or competent, and the trial court inadequately investigated
2
the existence of any alleged knowledge, voluntariness, or competence. Any one
3
or combination of these rights that he may have been deemed to have abandoned
4
prejudicially affected both the guilt and penalty determinations in this case,
5
including the investigation, discovery, presentation and consideration of evidence
6
as well as every factual and legal determination made by trial counsel, the
7
municipal and superior courts, and the jurors.
8
9
504. To the extent that the trial court was not aware that Petitioner was
incompetent to stand trial,27 trial counsel were constitutionally ineffective for
10
failing to fully and adequately investigate Petitioner’s social history and
11
background; failing to have Petitioner adequately evaluated by competent mental
12
health professionals; and failing to properly present the results of such
13
investigation and evaluation to the court in a timely manner in order to
14
demonstrate that he was incompetent throughout the proceedings below and was
15
incompetent to stand trial and to waive his rights.
16
505. Petitioner argues below, see Claim 2, post, that, given the
17
information available to it at the time, the trial court erred in failing to initiate
18
competency proceedings to determine Petioner’s competence to stand trial and to
19
waive rights. In the alternative, however, to the extent that the evidence before
20
the trial court was insufficient to raise a good faith doubt with respect to
21
Petitioner’s competency, Petitioner is still entitled to relief if he can now show he
22
was in fact incompetent. Steinsvik v. Vanzant, 640 F.2d 949, 954 (9th Cir. 1981).
23
24
506. Moreover, trial counsel’s conflicts of interest and constitutionally
deficient performance precluded a thorough and effective mental health
25
26
27
28
27
The trial court raised concerns about Petitioner’s mental competency.
(See 22 RT 1333, 1334; 28 RT 2001.) Petitioner asserts in this Petition that the
trial court erred in failing to suspend criminal proceedings and in failing to hold a
hearing to determine Petitioner’s competence to stand trial and to waive rights.
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evaluation of Petitioner, motions, and presentation of evidence on his behalf
2
regarding mental state evidence. See infra.
3
507. To the extent that the facts set forth below could not have been
4
uncovered by trial counsel, those facts constitute newly discovered evidence
5
establishing that Petitioner was incompetent at the time of the proceedings below,
6
and cast doubt on the reliability and non-arbitrariness of the proceedings,
7
judgment of conviction and sentence. As such, Petitioner’s rights to due process
8
and a fair trial have been violated and collateral relief is appropriate.
9
A.
Petitioner Was Mentally Incompetent Throughout the Trial
10
Proceedings
11
508. Petitioner was rendered incompetent by his long-term mental
12
impairments, including but not limited to history of temporal lobe epilepsy, a
13
organic thought disorder of psychotic proportion, a psychotic disorder, a severe
14
mood disorder, organic brain damage, severe cognitive and behavioral
15
impairments, a long history of deprivation, injury, abuse, and neglect,
16
posttraumatic stress disorder, neuro-, neurocognitive-, and neuropsychiatric-
17
dysfunction, long history of significant drug use and addiction, and learning and
18
developmental deficits. These multiple mental impairments, alone or in
19
combination, severely impaired Petitioner’s ability to, among other things,
20
reason, process and solve problems, accurately comprehend verbal and written
21
information, exercise rational judgment, consider and weigh consequences,
22
effectively communicate, work with new information or situations, and generate
23
possible solutions to problems. Petitioner’s mental functioning detrimentally
24
affected his ability to defend himself, rationally understand the proceedings
25
against him or rationally aid and assist counsel from the time of arrest through the
26
trial proceedings, in that they effectively rendered him incapable of: (a) making
27
knowing and intelligent waivers of his constitutional and statutory rights; (b)
28
understanding the true nature of the charges brought against him; (c) assisting
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counsel in the preparation of his defense; (d) understanding the nature and object
2
of the legal proceedings; (e) understanding the nature and impact of the testimony
3
and evidence brought against him; (f) exercising his constitutional and statutory
4
rights, including his right to effective and conflict-free assistance of counsel, his
5
right to cross-examine witnesses, and right to an affirmative defense and reliable
6
penalty determination; and (g) understanding his waiver of the right to a reliable
7
determination of penalty.
8
9
509. Petitioner exhibited symptoms consistent with multiple impairments,
including, but not limited to, cognitive, psychiatric, psychological, neurological,
10
neuropsychological, and neuropsychiatric deficits and impairments; posttraumatic
11
stress disorder, bipolar and/or other mood disorders, and polysubstance addiction.
12
510. Petitioner incorporates by reference as though fully set forth in
13
Exhibits 31, 32, 38, 41, 42, 43, 72, 100, 99, 98, 96 which are the Declarations of
14
Dietrich Blumer, M.D., dated 05/10/2004; Marilyn Cornell, dated 06/16/2004;
15
Robert Schneider, M.D., dated 02/23/2004; William Vicary, M.D., dated
16
03/15/2004; Dale Watson, Ph.D., dated 04/24/2004; Jane Wells, J.D., Ph.D.,
17
dated 05/19/2004; and Anne Evans, Ph.D., dated 04/18/1995, as well as the
18
reports of George W. Woods, M.D., dated 04/19/1995; Elise Taylor, M.F.C.C.,
19
dated 03/06/1995; Myla H. Young, Ph.D, dated 03/13/1995; and the letter from
20
Victor Henderson, M.D., to Daniel Hernandez, dated 05/29/1987.
21
511. Beginning at age ten, close in time after he sustained a concussion
22
playing football, Petitioner began to suffer epileptic seizures. He suffered at least
23
three convulsive epileptic seizures at school, which prompted school officials to
24
call an ambulance to have Petitioner taken to the hospital, and numerous other
25
epileptic seizures outside of school. Petitioner was twice hospitalized at Hospital
26
Hotel Dieu following seizures: once in 1970, at age 10, and once in 1972, at age
27
12. In 1972, doctors diagnosed him with epilepsy and prescribed Phenobarbital
28
to control the seizures. EEGs administered at the time revealed abnormal results,
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1
which confirmed a diagnosis of epilepsy or seizure disorder. Petitioner took the
2
medication, which can have significant adverse effects, for approximately a year
3
and a half. Petitioner suffered at least twelve serious convulsive epileptic
4
seizures and continued to experience such seizures until he was seventeen years
5
old, and, from the age of ten on, he experienced partial or absence epileptic
6
seizures – characterized by brief periods of staring into space, unaware of his
7
surroundings – multiple times per day. (Ex. 32, M. Cornell Dec., ¶ 51; Ex. 103,
8
M. Ramirez Dec., ¶ 19; Ex. 104, Robert Ramirez Dec., ¶ 10; Ex. 105, Rosario
9
Ramirez Dec., ¶ 10-11; Ex. 102, I. Ramirez Dec., ¶ 21; Ex. 125, E. Milam Dec.,
10
¶¶ 3-4, 9; Ex. 123, Declaration of Patricia Kassfy, dated 10/28/2008, ¶¶ 3-4;
11
Ex.121, Declaration of Elizabeth Duenas, dated 10/27/2008, ¶ 3; Ex. 50,
12
Schneider M.D.; Ex. 57, Hospital Hotel Dieu Records re Richard Ramirez;
13
Ex. 50, Articles on Epilepsy and Related Psychiatric Disorders; Ex. 31, D.
14
Blumer Dec., ¶ 8.)
15
512. An organic brain disorder such as Petitioner’s seizure disorder can
16
have, and in Petitioner’s case did have, profound neuropsychiatric effects. As a
17
result of the epilepsy/seizure disorder he experienced in adolescence, he
18
developed a severe thought disorder of psychotic proportions. (Ex. 31, D.
19
Blumer Dec., ¶¶ 9-10, 14-15.)
20
513. After the seizures, Petitioner’s behavior and personality changed
21
significantly. He became an insomniac and experienced anger. He became
22
socially withdrawn. He began leaving the house late at night, sometimes staying
23
out all night without telling anyone where he was or what he was doing. His
24
performance at school declined, and he became truant and eventually he dropped
25
out. He began drinking Coke and eating cookies and candy obsessively. He
26
suffered headaches and paranoid fears. He began to get in trouble with the law
27
and was known in the neighborhood for stealing. And he began to show
28
psychiatric and psychotic symptoms consistent with an organic brain disorder and
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temporal lobe epilepsy. (Ex. 31, D. Blumer Dec., ¶ 8; Ex. 32, M. Cornell Dec., ¶
2
51; Ex. 103, M. Ramirez Dec., ¶¶ 20, 25-26; Ex. 105, Rosario Ramirez Dec., ¶
3
12; Ex. 121, E. Duenas Dec., ¶ 4.)
4
514. Within a year, Petitioner discontinued his prescribed phenobarbital
5
and began using street drugs which further compromised his developing brain.
6
By age 16, Petitioner’s thinking was psychotic. He was unable to separate
7
fantasy from reality. (See Ex. 43, J. Wells, J.D., Ph.D., Dec., ¶ 31.)
8
9
515. At age 17, Petitioner was committed to the Texas Youth Council.
He was evaluated by a psychologist there, who concluded Petitioner was unable
10
to separate reality from fantasy, exhibited disorganized thinking, weakness in
11
ideation, depression, and withdrawal. Psychiatric treatment was recommended,
12
but Petitioner never received such treatment. (Ex. 32, M. Cornell Dec., ¶ 75-79;
13
Ex. 60, Texas Youth Counsel Records re: Richard Ramirez.)
14
516. Around the age of 19, Petitioner moved to California. After living
15
briefly with his brother, Julian Ramirez, Jr., Petitioner essentially became
16
homeless, living on the streets and failing to care for himself. His family became
17
worried, and his parents and his sister traveled to California to attempt to find
18
him and bring him home. On one such trip, his sister found him living on the
19
street, but his physical appearance had worsened so significantly that she failed to
20
recognize him initially. (Ex. 103, M. Ramirez Dec., ¶ 28; Ex. 105, Rosario
21
Ramirez Dec., ¶ 22; Ex. 102, I. Ramirez Dec., ¶¶ 34-35; Ex. 124, Declaration of
22
Cynthia Melendez, dated 11/24/2008, ¶ 9; Ex. 123, P. Kassfy Dec., ¶ 9.)
23
517. Also around the age of 19, Petitioner became obsessed with Satan
24
and Satanism. He had developed an interest in Satanism and the occult as early
25
as the ninth grade. But in late adolescence and in his early twenties, he
26
experienced severe delusions, hallucinations, paranoia and disorganized,
27
psychotic thoughts concerning Satan as an actual presence in his life, with whom
28
he believed he had a significant personal relationship. After he moved to
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California, he called his mother and told her that he had met people involved with
2
Satanism who frightened him and that he had seen some scary things – including
3
a lamp moving by itself. At first his experiences frightened him, but over time
4
his psychosis and thought disorder developed and deepened. (Ex. 125, E. Milam
5
Dec., ¶ 12; Ex. 103, M. Ramirez Dec., ¶ 29; Ex. 124, C. Melendez Dec., ¶ 7; Ex.
6
122, Declaration of Gilbert Flores, dated 11/24/2008, ¶¶ 4-5.)
7
518. Shortly after Petitioner’s arrest, in September 1985, William Vicary,
8
M.D., a psychiatrist, briefly examined Petitioner at the request of his counsel at
9
the time the Los Angeles Public Defender.28 Dr. Vicary found that
10
Petitioner was psychotic, i.e., he suffered mental impairment that
11
interfered with his ordinary functioning. He appeared to be
12
irrational and self-destructive. [He] met the criteria for mental
13
incompetence, . . . in that he did not have the ability to rationally
14
assist counsel in his defense.
15
16
(Ex. 41, W. Vicary, M.D., Dec., ¶ 5.)
519. Only a few months later, on January 19 and 20, 1986, Dietrich
17
Blumer, M.D., neuropsychiatrist, examined Petitioner at trial counsel’s request
18
and found he suffered from temporal lobe disorder. “[T]here is evidence of a
19
disorder of psychotic proportion . . . .” (Ex. 31, D. Blumer, M.D., Dec., ¶ 10.)
20
Dr. Blumer opined that Petitioner was mentally incompetent and could not assist
21
counsel in his own defense. (Id., ¶ 8.)
22
520. Petitioner’s psychosis prevented him from thinking logically or
23
behaving in a rational manner. His judgment was impaired; he could not function
24
rationally. As Dr. Blumer stated:
25
26
27
28
28
Trial counsel provided ineffective assistance of counsel for failing to
obtain, review, follow up on, and fairly present Dr. Vicary’s findings. See infra.
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Petitioner suffers from a persistent thought disorder of psychotic
2
degree. His chief delusion consists of the conviction of having an
3
intimate relationship with Satan.
4
....
5
The neurological and psychiatric symptoms of epilepsy are
6
complicated; they require careful treatment and periodic monitoring
7
over a long period of time. Even when the patient no longer
8
experiences complex partial seizures, there is concern that additional
9
symptoms may appear, especially where, as here, the patient has
10
used illicit drugs and no longer takes prescribed medication. It is not
11
uncommon to see patients with temporal lobe epilepsy develop
12
psychotic disorders. Treatment for interictal (the phase free of
13
seizures) psychosis requires effective use of drugs.
14
(Ex. 31, D. Blumer, M.D., Dec., ¶¶ 9, 14; see Blumer, et al., Treatment of
15
Interictal Psychoses, J. Clin. Psychiatry 61:2 (Feb. 2000), attached to Exhibit 31.)
16
521. In May 1987, at the request of trial counsel, victor Henderson, M.D.,
17
a neurologist examined Petitioner and concluded that he had suffered brain
18
damage. He informed Daniel Hernandez, Petitioner’s trial counsel, of his
19
findings. (Ex. 96, Henderson letter.)
20
21
22
522. The opinions of Drs. Vicary, Blumer, and Henderson were known to
trial counsel (the Hernandezes).
523. In addition, counsel were aware of the bizarre nature of the crimes
23
that Petitioner was accused of committing; his bizarre behavior both in the
24
courtroom and in his jail cell. On September 2, 1985, for example, a jail deputy
25
observed Petitioner in his cell writing the number “666” and drawing a star in a
26
circle on the cell floor with blood from his right palm. (176 RT 20599-600.)
27
28
524. On numerous occasions, Petitioner engaged in bizarre behavior in
court. For instance, Petitioner loudly invoked the words “Hail, Satan” in the
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courtroom and displayed a bizarre pentagram on the palm of his hand at the
2
October 24, 1985 hearing held with respect to retention of counsel. A sheriff’s
3
investigator testified at trial that, at that hearing, he observed Petitioner raise his
4
hands and say aloud “Hail Satan.” The investigator saw an inverted star with a
5
circle around it and “666” written on the palm of Petitioner’s hand. (176 RT
6
20603-04, 20607.)
7
525. Trial counsel were fully aware that Petitioner repeatedly refused to
8
cooperate with them in his defense and repeatedly behaved in a strange and
9
bizarre manner that, by any measure, further raised doubts about his mental
10
competence. Petitioner continued to behave irrationally during trial: on January
11
30, 1989, he allegedly waived his right to wear an unobtrusive leg brace and
12
agreed to wear shackles before the jury (see Claim 22, infra); on February 6,
13
1989, he refused to remove his sunglasses at the court’s direction (see Claim 24,
14
infra); on May 8, 1989, he was unwilling to cooperate with counsel in order to
15
present a proper defense at the guilt trial (178 RT 20794-75); on September 20,
16
1989, he waived his presence at the guilt verdicts (216 RT 24710-11); on
17
September 27, 1989, he waived his right to present any mitigation evidence at the
18
penalty trial (217 RT 24774-76); and on November 7, 1989, he made an irrational
19
statement at the sentencing hearing.
20
21
22
526. And counsel were aware that prior counsel Joseph Gallegos had
declared his doubt as to Petitioner’s competence.
527. All of this information put counsel on notice that Petitioner was not
23
competent to stand trial or to waive rights. They provided constitutionally
24
deficient performance in failing to present the opinions of those expert to the trial
25
court in support of a motion to determine Petitioner’s competence to stand trial
26
and to waive rights.
27
528. Trial counsel also provided constitutionally deficient performance in
28
failing to investigate, develop, and present evidence of Petitioner’s incompetence
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to stand trial and waive rights that was developed and presented by counsel
2
representing Petitioner in subsequent legal proceedings – criminal trial
3
proceedings in the San Francisco County Superior Court and post-conviction
4
proceedings arising from the Los Angeles case. Evidence such as that obtained
5
by lawyers representing Petitioner in those proceedings could and should have
6
been presented in Petitioner’s proceeding in the Los Angeles County Superior
7
Court.
529. After Petitioner was convicted and sentenced to death in Los
8
9
Angeles, he was transferred to San Francisco for trial on additional criminal
10
charges arising from an incident that occurred there. San Francisco County
11
Superior Court, Case No. 140188. He was represented by the Office of the
12
Public Defender for the City and County of San Francisco (“SFPD”). His
13
counsel in the San Francisco case conducted the social history and mental health
14
investigation that his counsel in the Los Angeles case failed to undertake. The
15
social history and mental health investigation confirmed and expanded on the
16
various opinions of Drs. Vicary, Blumer, and Henderson that Petitioner was
17
psychotic, suffered an organic-based thought disorder of psychotic proportion,
18
had suffered brain damage, and was not competent to stand trial or to waive his
19
rights:
20
530. Dr. George W. Woods, M.D., retained by the SFPD, evaluated
21
Petitioner. He diagnosed Petitioner with a severe mental disorder: a Psychotic
22
Disorder due to Temporal Lobe Syndrome, which includes delusions that are both
23
paranoid and erotomanic. Dr. Woods also found that Petitioner exhibited
24
significant compulsive and obsessive behavior. And Dr. Woods concluded that
25
Petitioner suffers significant cognitive deficits of a kind typically associated with
26
prefrontal, frontal, and temporal areas of the brain. (Ex. 100, Woods Report, at
27
1.) He identified a number of symptoms resulting from Petitioner’s disorder that
28
impaired his ability to rationally assist counsel in his defense, including paranoia,
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impaired concentration, poor attention span, delusional thinking, forced thinking,
2
severe mood swings, inability to analyze and process relevant data, altered
3
sexual interest, limited insight and judgment, and profound depression. As a
4
result of this constellation of impairments, Dr. Woods opined that Petitioner was
5
incompetent to stand trial and to waive rights and that Petitioner’s incompetence
6
dated back at least to the time of his first contact with the criminal justice system
7
in 1985. (Id. at 4, 8.)
8
9
531. Dr. Wood’s conclusions are supported by the report of Myla H.
Young, Ph.D., who was retained by the SFPD and who administered a series of
10
neuropsychological and personality tests to Petitioner. Her diagnostic
11
impressions included: Axis I: Personality Change Due to Epilepsy, Combined
12
Type (Disinhibited, Aggressive, Paranoid Features) and Mood Disorder Due to
13
Epilepsy, with Depressive Features; Axis III: Epilepsy, partial, with Impairment
14
of Consciousness (Temporal Lobe). (Ex. 98, M. Young Report, at 7.) The
15
neuropsychological testing that she administered revealed particular impairments
16
in tasks of memory and higher cognitive functioning – a pattern similar to that of
17
individuals who have a known history of cognitive impairment secondary to
18
seizure disorder. (Id. at 3-4.) Petitioner’s impairments in those areas suggest that
19
he experiences brain impairment that affects his abilities for judgment, planning
20
ahead, anticipating consequences of his behavior, and modulating his impulses.
21
The personality testing that she administered revealed that Petitioner suffers
22
severe, painful depression, pervasive anger, and unmodulated, impulsive
23
emotionality and indicated that he tends to become lost in an internal world that is
24
perceptually inaccurate; at times that is grossly distorted; and at times reaches
25
delusional proportions. (Id. at 7.) Dr. Woods, in his report, reviews in some
26
detail examples of how Petitioner’s impairments undermined his ability to
27
rationally understand the proceeding against him and to rationally assist counsel
28
in his defense. (Id. at pp. 4-7.)
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532. The SFPD also retained Anne Evans, Ph.D., who evaluated
2
Petitioner and administered neuropsychological and personality tests. Dr. Evans
3
concluded, consistent with the findings of Drs. Vicary, Blumer, Henderson,
4
Woods, and Young, that Petitioner suffers from a serious mental disorder of long
5
standing. (Ex.72, A. Evans Dec., at pp. 4-5.) She believed it likely that his
6
impairments related to his temporal lobe system, noting that the constellation of
7
symptoms and behaviors are consistent with an organically based syndrome such
8
as seizure disorder. (Id. at pp. 32-33.) Dr. Evans opined that he suffers paranoid
9
delusions, that his thinking is severely psychotic, disturbed, disorganized, and
10
fragmented; his perceptions are markedly inaccurate; he is seriously out of touch
11
with reality, distorting the meaning of what is going on around him; and he is
12
unable to modulate his behavior or control his responses (Id. at pp. 7, 10, 31.)
13
Dr. Evans further opined that Petitioner suffers intense mood swings and long-
14
standing depression. (Id. at pp. 8.) She concluded that he was not competent to
15
assist counsel in a rational manner and not competent to stand trial or waive
16
rights and that his incompetence dated back at least to his first contact with the
17
criminal justice system in 1985. (Id. at pp. 11, 12, 14, 31, 34.) Dr. Evans, in her
18
declaration, reviews in detail examples of how Petitioner’s impairments
19
undermined his ability to rationally understand the proceedings against him and
20
to rationally assist counsel in his defense. (Id. at pp. 11-18, 19-31.)
21
533. Because Petitioner was incompetent to stand trial, based upon this
22
social history and mental health evidence developed by lawyers at the SFPD, his
23
criminal trial proceedings in the San Francisco County Superior Court were
24
stayed indefinitely in 1995 and were never brought to trial. For the same reasons,
25
he was incompetent to stand trial and waive rights in the Los Angeles
26
proceedings.
27
28
534. State post-conviction counsel in the instant proceedings retained two
additional mental health experts who evaluated Petitioner and opine that he was
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not competent to stand trial or to waive rights in the Los Angeles trial
2
proceedings: Dale Watson, Ph.D., and Jane Wells, J.D., Ph.D. Their opinions,
3
again, are consistent with, and corroborate and expand upon, the previous
4
opinions of Drs. Vicary, Blumer, Henderson, Woods, Young, and Evans, and
5
provide additional support that Petitioner was incompetent to stand trial and
6
waive rights in the Los Angeles proceedings. In addition, Petitioner’s trial
7
counsel performed deficiently in failing to investigate, develop, and present this
8
mental health evidence to the trial court.
9
535. Dale Watson, Ph.D., is a neuropsychologist who examined Petitioner
10
and administered neuropsychological testing at the request of state post-
11
conviction counsel and determined that Petitioner is severely impaired. Dr.
12
Watson’s testing shows that Petitioner has impaired executive functions –
13
abilities associated with supervisory or control functions including the
14
monitoring, initiation, inhibition, and shifting of behaviors and cognitive sets;
15
memory impairment; and impairment in the auditory processing centers of the
16
brain. Such impairments are typically associated with impairment in frontal and
17
temporal lobes. As a result of these impairments, Petitioner is unable to shift his
18
thinking or behaviors to, solve new situation, or make decisions and exercise
19
judgment. Petitioner’s long-standing neurocognitive impairments adversely
20
affects his behavior, personality, and functioning. (Ex. 42, D. Watson, Ph.D.,
21
Dec., ¶¶ 11-21.) Dr. Watson concluded that Petitioner has temporal lobe disorder
22
that was likely etiologically related to the psychotic disorder that other mental
23
health experts had diagnosed. (Id., at ¶¶ 19-20.) According to Dr. Watson’s
24
findings, Petitioner suffers from a neurocognitive brain-related disorder and is
25
psychotic – the same findings made by Dr. Blumer twenty-two years ago.
26
Petitioner remains severely impaired. Dr. Watson also concluded that Petitioner
27
appears to suffer from frontal lobe dysfunction with neurocognitive deficits and
28
that he suffers from depression, a mood disorder, and memory impairment. (Id.
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at ¶ 21-22.) Dr. Watson opines that Petitioner was not competent to stand trial or
2
waive rights in his state-court proceedings. (Id. at 24, 26.)
3
536. Jane Wells, J.D., Ph.D., evaluated Petitioner at the request of state
4
post-conviction counsel. She concluded that he suffers a myriad of mental
5
problems, including a psychotic disorder somewhere on the schizophrenic or
6
psychotic end of the spectrum. (Ex. 43, J. Wells, Dec., ¶ 49.) She observed him
7
to be significant paranoid, delusional, and thought-disordered. (Id.) She also
8
opined that he suffers a mood disorder with transient manic and depressive states
9
as well as agitation and hypersexuality. (Id.) And she concluded that he suffered
10
organic brain damage. (Id., at ¶ 52.) Based on her findings, Dr. Wells concluded
11
that Petitioner was incompetent to stand trial and to waive rights in his state-court
12
proceedings. (Id. at ¶ 51.)
13
537. The expert opinions described above establish that Petitioner was
14
incompetent to stand trial and to waive rights throughout the proceedings in the
15
Los Angeles County Superior Court. In addition, attorneys Manuel J. Barraza,
16
who represented Petitioner briefly following his arrest, Michael N. Burt and
17
Dorothy Bischoff, who represented Petitioner in his criminal trial proceedings in
18
the San Francisco County Superior Court, Geraldine Russell, who represented
19
Petitioner in his state post-conviction proceedings, and Sean J. Bolser, one of the
20
attorneys assigned to represent Petitioner in the instant proceedings, have, during
21
the course of their various representations, come to believe that Petitioner is
22
mentally incompetent, that he lacks a rational understanding of the proceedings,
23
and that he lacks the ability to communicate rationally with counsel and assist in
24
his own defense. Petitioner’s trial counsel provided constitutionally deficient
25
performance in failing to develop and present such evidence to the trial court.
26
538. Petitioner was incapable of understanding what he was entitled to
27
before, during, and after his trial. Petitioner did not understand how the court
28
functioned or how his attorneys should be functioning. He could not understand
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that he had a right to a strong and vigorous defense in a trial where his life was at
2
stake. Petitioner’s counsel failed to protect his interests throughout their
3
representation of him, a four-year period. In so failing, counsel prejudiced
4
Petitioner’s rights, including his purported waivers of his right to wear an
5
unobtrusive leg brace; his refusal to remove his sunglasses at the court’s
6
direction; his inability to present a proper defense at trial; his waiver of his
7
presence at the guilt verdicts; and his purported waiver of his right to present any
8
mitigation evidence at the penalty trial. Petitioner lacked the mental competency
9
and knowledge to remedy the repeated and glaring abuses in his case.
10
539. Petitioner was also unable to aid and assist counsel and mental
11
health professionals in their evaluations of his own mental functioning, including
12
his mental functioning at the time of the charged offenses, because he had severe
13
behavioral and cognitive impairments and was not able to provide his complete
14
sociomedical history. Petitioner could not provide all pertinent data regarding his
15
family history; neurological and medical history; academic history; childhood
16
physical, psychological, emotional trauma and abuse; history of head injuries;
17
history of emotional and physical neglect; history of institutional failure, and
18
other information critical to a competent mental health assessment. The neglect
19
and abuse that surrounded Petitioner – in his home, neighborhoods, schools, and
20
juvenile custody – was so ingrained that he was unable to understand, assess or
21
report on its severity and impact on him. For all these reasons, Petitioner was
22
unable to discuss with counsel, or the mental health professionals retained by
23
counsel, these very important factors and events that shaped his life. Moreover,
24
he could not aid in the discovery of mitigation evidence as a result of his
25
incompetence.
26
540. Petitioner’s intellectual and mental deficits resulted in his being
27
unaware of any rights he might have otherwise been deemed to have abandoned.
28
He was, and is, incompetent to waive defenses or exercise and/or waive any
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1
constitutional or statutory rights, including his right to counsel, or not incriminate
2
himself, to be present at trial, to cross-examine and confront witnesses against
3
him, and to present a defense.
4
541. Petitioner was incompetent at the penalty phase of his trial. As such,
5
Petitioner did not have a rational understanding of the proceedings regarding
6
presentation of evidence on his behalf, and he was likewise incompetent to make
7
any waiver of defense or his constitutional rights regarding those proceedings.
8
See infra.
9
542. Furthermore, Petitioner’s family history of mental disorders,
10
substance abuse, depression, mood disorders and other mental illness should have
11
alerted the court and counsel to Petitioner’s incompetence to stand trial. Drope v.
12
Missouri, 420 U.S. at 171; Pate v. Robinson, 383 U.S. at 385. Petitioner’s
13
deficits rendered him unable to knowingly, intelligently, and voluntarily waive
14
any constitutional rights to which he was entitled, or to disclose accurately the
15
events surrounding the incidents for which he was charged with capital murders,
16
other counts and other special allegations.
17
543. Petitioner’s constitutional rights were violated because he was
18
incompetent throughout the legal proceedings below, and he was therefore
19
deprived of a trial that was fundamentally fair and that comported with due
20
process and a fair, reliable and non-arbitrary penalty determination. Accordingly,
21
his conviction and sentence must be set aside.
22
544. In addition, the denial of his right to effective assistance of counsel
23
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
24
unfair, eroded the reliability of the verdict and had a substantial and injurious
25
effect on the verdict. But for the denial of this right, it is reasonably probable that
26
a more favorable result would have been attained. Under these circumstances,
27
the adversarial system completely broke down, and Petitioner was left without
28
meaningful representation. Although many of trial counsel’s errors were, by
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1
themselves, so egregious as to require reversal, the extraordinary accumulation of
2
errors and omissions over the course of the trial created a total breakdown in the
3
adversarial process, so that prejudice is conclusively presumed. United States v.
4
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
5
(1984). Even assuming a showing of prejudice is required, Petitioner has made
6
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
7
L. Ed. 2d 674 (1984).
8
B.
9
10
Petitioner Is Presently Mentally Incompetent
545. Petitioner re-alleges the facts set out above.
546. Petitioner is presently incompetent to assist undersigned counsel in
11
litigating his federal habeas corpus challenges to his state convictions and
12
sentences.
13
547. A capital habeas corpus petitioner has a right to competence during
14
federal proceedings on his petition. Rohan ex rel. Gates v. Woodford, 334 F.3d
15
803, 817 (9th Cir. 2003) (“Gates”). The right derives from the statutory right to
16
counsel, which
17
contemplates effective communication between lawyer and client. A
18
putative habeas petitioner’s mental incompetency – a condition that
19
is, obviously, an extraordinary circumstance beyond the prisoner’s
20
control – renders the petitioner unable to assist his attorney in the
21
preparation of a habeas petition. Such a condition would eviscerate
22
the statutory right to counsel.
23
Id. at 814 (quoting Calderon v. United States District Court (Kelly), 163 F.3d 530
24
(9th Cir. 1998) (en banc), overruled in unrelated part, Woodford v. Garceau, 538
25
U.S. 202, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003)).
26
548. Although the Gates court expressly left open the precise showing
27
that a petitioner must make to require a competency hearing (id. at 819 n.11), the
28
Ninth Circuit, in an analogous context, has described the threshold showing as
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1
one leading the court to “reasonably question[]” petitioner’s competence. See
2
Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993), vacatur of stay aff’d, 1
3
F.3d 964 (9th Cir.) (en banc), en banc mandated recalled and case remanded to
4
panel, 5 F.3d 1226 (9th Cir. 1993); cf. 18 U.S.C. § 4241(a) (court shall order
5
competence hearing “if there is reasonable cause to believe that the defendant
6
may presently be suffering from a mental disease or defect rendering him
7
mentally incompetent to the extent that he is unable to understand the nature and
8
consequences of the proceedings against him or to assist properly in his defense”)
9
(emphasis added).
10
549. Whatever the precise standard required to obtain a hearing or relief
11
on his claim of incompetence to assist federal habeas counsel, Petitioner has more
12
than met it in this case. The facts and expert opinions alleged above establish that
13
Petitioner is presently mentally incompetent to assist habeas counsel in his own
14
defense in the instant proceedings. In addition, attorneys Manuel J. Barraza, who
15
represented Petitioner briefly following his arrest, Michael N. Burt and Dorothy
16
Bischoff, who represented Petitioner in his criminal trial proceedings in the San
17
Francisco County Superior Court, Geraldine Russell, who represented Petitioner
18
in his state post-conviction proceedings, and Sean J. Bolser, one of the attorneys
19
assigned to represent Petitioner in the instant proceedings, have, during the
20
course of their various representations, come to believe that Petitioner is mentally
21
incompetent, that he lacks a rational understanding of the proceedings, and that
22
he lacks the ability to communicate rationally with counsel and assist in his own
23
defense. Gates, 334 F.3d at 819; see also Dusky v. United States, 362 U.S. 402,
24
402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
25
550. Present counsel for Petitioner have identified and presented in this
26
petition a number of potentially meritorious claims for habeas corpus relief from
27
his convictions and death sentences. Although undersigned counsel were able to
28
identify many facts in support of these claims, Petitioner’s competent
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1
communication is necessary to the complete development and successful
2
presentation of most of these claims – including claims concerning constructive
3
deprivation of counsel; counsel’s conflicts and constitutionally deficient
4
performance; prosecutorial misconduct; and mental state issues from the trial.
5
And Petitioner’s present incompetence may well have prevented him from
6
assisting undersigned counsel in identifying and developing facts and evidence in
7
support of additional claims, presently unknown. See Gates, 334 F.3d at 817
8
(counsel cannot be required to identify with particularity what petitioner would
9
tell them were he competent).
10
11
12
551. Accordingly, the instant proceedings must be stayed, pending
Petitioner’s restoration to competency. Id. at 819.
552. In addition, Petitioner’s present mental illness and other mental
13
impairments preclude his execution. Executing Petitioner would be
14
unconstitutionally cruel and unusual because he is incompetent to be executed
15
under Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335
16
(1986), and Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842, 168 L. Ed. 2d
17
662 (2007). Although this claim is not yet ripe because no date has been set for
18
Petitioner’s execution, Petitioner raises it now in this Petition in order to preserve
19
his right to review. Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct.
20
1618, 140 L. Ed. 2d 8 (1998).
21
CLAIM 2:
22
THE TRIAL COURT ERRED IN FAILING TO INITIATE
23
COMPETENCY PROCEEDINGS THUS IT VIOLATED
24
PETITIONER’S CONSTITUTIONAL RIGHTS
25
553. Exhaustion of the claim: This claim was fairly presented to the
26
California Supreme Court in the direct appeal. It was presented in Section III of
27
the Opening Brief.
28
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554. In support of this claim, Petitioner alleges the following facts,
1
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
555. Those facts and allegations set forth in the petition, declarations,
4
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
556. Petitioner was charged with a series of bizarre and highly publicized
8
9
brutal murders and other crimes that raised serious questions about his mental
10
status. Abnormal acts accompanying the murders included the removal of the
11
eyes of murder victim Maxine Zazzara; mutilation-type wounds on victims
12
Vincow, Cannon, Maxon and Lela Kneiding; and a strange pentagram drawn on
13
the thigh of victim Bell. One victim also reported that the perpetrator laughed
14
diabolically during a sex crime; the suspect ordered another victim to swear upon
15
Satan.
16
557. The United States Supreme Court has “repeatedly and consistently
17
recognized that ‘the criminal trial of an incompetent defendant violates due
18
process.”’ Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d
19
498 (1996) (citing Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120
20
L. Ed. 2d 353 (1992)).
21
558. To be found competent for due process purposes, a defendant must
22
meet two criteria: (1) “sufficient present ability to consult with his lawyer with a
23
reasonable degree of rational understanding,” and (2) “a rational as well as
24
factual understanding of the proceedings against him.” Dusky v. United States,
25
295 F.2d 743, 746 (8th Cir. 1961). These criteria do not include a necessary
26
finding of “mental disease or defect” (specifically required under § 1367).
27
Moreover, in two of the seminal United States Supreme Court cases, failure to
28
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1
hold a hearing on competence was found reversible despite psychiatric reports
2
falling short of such findings.29
3
A.
Doubts Raised in Municipal Court as to Petitioner’s Mental
4
Competency
5
559. After his arrest, on many occasions, Petitioner behaved in a bizarre
6
manner both in the courtroom and in his jail cell. On September 2, 1985, for
7
example, a jail deputy observed Petitioner in his cell writing the number “666”
8
and drawing a star in a circle on the cell floor with blood from his right palm.
9
(176 RT 20599-600.)
10
560. On numerous occasions, Petitioner engaged in bizarre behavior in
11
court. For instance, Petitioner loudly invoked the words “Hail, Satan” in the
12
courtroom and displayed a bizarre pentagram on the palm of his hand at the
13
October 24, 1985 hearing held with respect to retention of counsel. A sheriff’s
14
investigator testified at trial that, at that hearing, he observed Petitioner raise his
15
hands and say aloud “Hail Satan.” The investigator saw an inverted star with a
16
17
29
18
19
20
21
22
23
24
25
26
27
28
Although the defendant had a difficult time “relating” and appeared
agitated in an examination, and the psychiatrist recommended additional
psychiatric treatment, nonetheless, “[t]here was no sign as to the presence of any
delusions, illusions, hallucinations, obsessions, ideas of reference, compulsions or
phobias at this time.” Drope v. Missouri, 420 U.S. 162, 164 n.1, 95 S. Ct. 896,
43 L. Ed. 2d 103 (1975). In discussing Pate v. Robinson, 383 U.S. 375, 86 S. Ct.
836, 15 L. Ed. 2d 815 (1966), the Court indicated:
. . . that a history of irrational behavior is a relevant factor which, on
the record before it, was sufficient to require further inquiry
notwithstanding Robinson’s demeanor at trial and the stipulated
opinion of a psychiatrist that Robinson knew the nature of the
charges against him and could cooperate with counsel when the
psychiatrist examined him two or three months before.
Drope, 420 U.S. at 172 n.9.
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1
circle around it and “666” written on the palm of Petitioner’s hand. (176
2
RT 20603-04, 20607.)
3
561. At the same hearing on October 24, 1985, then-counsel Joseph
4
Gallegos informed the court that he had grave concerns about Petitioner’s mental
5
condition and moved to suspend criminal proceedings pursuant to Penal Code
6
§ 1368 “as to [Petitioner’s] present mental state . . . .” (XVII CT 4995.)
7
562. Before ruling on counsel’s motion, the court asked Petitioner’s
8
former counsel, deputy public defender Henry Hall, regarding a confidential
9
psychiatric examination of Petitioner authorized several weeks before the
10
October 24, 1985 hearing and unrelated to a competency hearing pursuant to
11
Penal Code § 1368. Hall informed the court that a psychiatrist had spoken with
12
Petitioner for ten to fifteen minutes. Although Petitioner refused to talk very
13
long, the doctor concluded, based on his observations of Petitioner then, that
14
Petitioner appeared, at most, to be “borderline competent.” Hall also reported
15
that he had no knowledge about Petitioner’s mental condition at the time of the
16
October 24 hearing and the psychiatrist could not speculate about it. (XVII
17
CT 4996-98.)
18
563. Joseph Gallegos renewed his request that Petitioner undergo a
19
psychiatric examination pursuant to Penal Code § 1368. (Id. at 5002-03.) The
20
court, however, found that Petitioner was not mentally incompetent under § 1368
21
because he “remembered things” and, based on Petitioner’s answers to the court’s
22
question on prior occasions, “I don’t have any problem with that.” (Id. at 5003.)
23
The court made no inquiry about Petitioner’s mental health background, his
24
ability to communicate and cooperate with Joseph Gallegos, or his
25
comprehension of the charges, the nature of the proceedings against him, or the
26
possible punishments involved. Petitioner indicated that he was sane and did not
27
want to go to a hospital. (Id. at 5003, 5005.)
28
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1
564. Six months later, at the April 14, 1986 preliminary hearing, trial
2
counsel – now the Hernandezes – requested an in camera hearing to address
3
Petitioner’s mental status and Petitioner’s continued presence at the preliminary
4
hearing. Without conducting an in camera hearing, the trial court indicated there
5
was no evidence to conclude Petitioner was unable to understand and participate
6
in the proceedings. (XII CT 3463-65.30 There was no determination of
7
Petitioner’s mental competency in Municipal Court.
8
B.
9
10
Doubts Raised in Superior Court as to Petitioner’s Mental
Competency
565. On February 26, 1987, the trial court expressed concern about
11
Petitioner’s mental competency. The court asked trial counsel whether they
12
intended to file a motion pursuant to Penal Code § 1368. Daniel Hernandez
13
replied:
14
We’ve been considering that from the beginning of course and we
15
haven’t made a decision on that and we are very aware and
16
concerned about that.
17
18
19
(22 RT 1333-34.)
566. On March 24, 1987, the trial court again raised the issue of
Petitioner’s mental competency and his ability to proceed to trial:
20
The [section] 1368 and related issues I would also like you to
21
consider. I realize that that is going to be a very difficult one for you,
22
but I would like you to get working on that as well.
23
24
25
26
27
28
30
Subsequently, an in camera hearing was held on April 14, 1986.
However, despite repeated, diligent efforts of state appellate counsel to obtain a
complete record on appeal, the sealed reporter’s transcript of the hearing held that
date was not made part of the record on appeal and no settled-statement
summarizing that hearing could be obtained. (See VII Supp. CT 166-69; VIII
Supp. CT 22-23 (order to prepare settled statement and declarations of Daniel
Hernandez and Arturo Hernandez).)
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1
2
(28 RT 2001.)
567. On April 7, 1987, a discussion was held in chambers in the presence
3
of all parties except Petitioner regarding trial counsel’s concern “that there was
4
some problems with our client.” (4-7-1987 Sealed RT 6.) Counsel asked to
5
address the court in camera regarding Petitioner’s mental status pursuant to Penal
6
Code §§ 1368, 1017, and 1026. However, according to the record on appeal the
7
court did not later conduct the requested hearing. (4-7-1987 Sealed RT 6-7.)
8
9
568. The trial court was fully aware that Petitioner repeatedly refused to
cooperate with counsel in his defense and repeatedly behaved in a strange and
10
bizarre manner that, by any measure, further raised doubts about his mental
11
competence. Petitioner continued to behave irrationally during trial: on January
12
30, 1989, he allegedly waived his right to wear an unobtrusive leg brace and
13
agreed to wear shackles before the jury (see Claim 22, infra); on February 6,
14
1989, he refused to remove his sunglasses at the court’s direction (see Claim 24,
15
infra); on May 8, 1989, he was unwilling to cooperate with counsel in order to
16
present a proper defense at the guilt trial (178 RT 20794-75); on September 20,
17
1989, he waived his presence at the guilt verdicts (216 RT 24710-11); on
18
September 27, 1989, he waived his right to present any mitigation evidence at the
19
penalty trial (217 RT 24774-76); and on November 7, 1989, he made an irrational
20
statement at the sentencing hearing.31
21
22
23
24
25
31
Petitioner stated to the court:
It is nothing you would understand, but I do have something
to say. In fact, I have a lot to say, but now is not time or the place. I
don’t even know why I’m wasting my breath, but what the hell.
26
27
28
As for what is said of my life, there have been lies in the past
and there will be lies in the future. I don’t believe in the hypocritical
moralistic dogma of this so-called civilized society and need not
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1
C.
The Trial Court Violated Petitioner’s Constitutional Rights By Failing
2
to Initiate Proceedings Sua Sponte to Determine Petitioner’s
3
Competence
4
569. In Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815
5
(1966) the Supreme Court found that where sufficient evidence is presented that a
6
defendant may be mentally incompetent, due process requires that a hearing be
7
held on that issue. The defense in Pate presented testimony of four lay witnesses
8
who related defendant’s history of disturbed behavior and gave opinions of
9
present insanity, as well as evidence of a brief prior commitment. Pate v.
10
Robinson, 383 U.S. at 383-84. The Court found this showing sufficient to grant
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
look beyond this room to see all of the liars, the haters, the killers,
the crooks, the paranoid cowards, truly the trematodes of the earth,
each one in his own legal profession.
You maggots make me sick. Hypocrites one and all. We are
all expendable for a cause, and no one knows that better than those
who kill for policy, clandestinely or openly, as do the governments
of the world which kill in the name of God and country and for
whatever else they deem appropriate.
I don’t need to hear all of society’s rationalizations. I’ve
heard them all before and the fact remains that is what it is.
You don’t understand me. You are not expected to. You are
not capable of it. I am beyond your experience. I am beyond good
and evil.
Legions of the night, night breed, repeat not the errors of night
prowler and show no mercy. I will be avenged. Lucifer dwells
within us all.
(219 RT 24929.)
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1
habeas corpus relief due to failure to inquire as to the defendant’s competence to
2
stand trial. Id. at 385.
3
570. In Drope, the High Court reaffirmed Pate, holding that due process
4
requires that a hearing be held on the issue of a defendant’s mental competency
5
upon a proper showing. The Court considered, inter alia, evidence of
6
defendant’s absence from the courtroom resulting from injuries sustained in a
7
suicide attempt as supporting the need to inquire into the defendant’s
8
competence. First, the accused’s forced absence implied a demeanor making him
9
unable to cooperate with counsel in his defense; second, it deprived court and
10
counsel of a further opportunity to observe his capacity rationally to understand
11
the proceedings and contribute to his defense. 420 U.S. at 180-81. The Court
12
noted that “[e]ven when a defendant is competent at the commencement of his
13
trial, a trial court must always be alert to circumstances suggesting a change that
14
would render the accused unable to meet the standards of competence to stand
15
trial.” Id. at 181. The Court described the requirements of the inquiry:
16
The import of our decision in Pate v. Robinson, is that evidence of a
17
defendant’s irrational behavior, his demeanor at trial, and any prior
18
medical opinion on competence to stand trial are all relevant in
19
determining whether further inquiry is required, but that even one of
20
these factors standing alone may, in some circumstances, be
21
sufficient. There are, of course, no fixed or immutable signs which
22
invariably indicate the need for further inquiry to determine fitness
23
to proceed; the question is often a difficult one in which a wide
24
range of manifestations and subtle nuances are implicated. That they
25
are difficult to evaluate is suggested by the varying opinions trained
26
psychiatrists can entertain on the same facts.
27
28
Id. at 180.
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571. Here, trial counsel declared a doubt as to Petitioner’s competence.
1
2
In light of that declaration of doubt and on the other facts and information to the
3
trial court, the court’s failure to initiate competency proceedings violated
4
Petitioner’s federal due process rights.
5
D.
The Trial Court Violated Petitioner’s Constitutional Rights by
6
Granting the Motion for Substitution of Counsel Before Resolving the
7
Issue of Competency
8
572. For obvious reasons, once a reasonable doubt as to a defendant’s
9
competency has been raised, “the correct course [is] to suspend the trial until such
10
an evaluation [can] be made.” Drope, 420 U.S. at 181. Here, proceedings were
11
not suspended. The result was to permit an incompetent defendant to terminate
12
an attorney who wanted to raise competency and mental defenses, with counsel
13
who did not.
573. By effectively turning over the key strategic decision in the case to
14
15
the court and prospective counsel who had conflicts of interest, the court violated
16
Petitioner’s right to Fourteenth Amendment due process, and the Sixth
17
Amendment right to counsel. An incompetent defendant cannot assist counsel;
18
the Court should have deferred the motion for substitution of counsel until and
19
unless there was a proper determination of Petitioner’s mental competency to
20
proceed to trial.
21
E.
The Court’s Failure to Initiate Competency Proceedings Violated
22
Petitioner’s Constitutional Rights
23
574. On a proper showing, a trial court must inquire as to a defendant’s
24
mental competency as a matter of due process of law. Pate v. Robinson, 383 U.S.
25
375. A defendant who is incompetent may not be criminally prosecuted. Odle v.
26
Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001); see also Medina v. California,
27
505 U.S. 437, 449, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992).
28
189
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1
575. In Odle, the Ninth Circuit found that where a reasonable trial judge
2
would have a doubt as to the defendant’s competence, the defendant is entitled to
3
a competency hearing. The court also held that a defendant who may be
4
incompetent cannot knowingly and intelligently waive his right to a competency
5
hearing and cannot be presumed to be sufficiently intelligent to understand
6
evidence of his incompetence. Id. at 1089 n.5. “[A]n inquiry into whether [an
7
accused] possesses the mental acuity to participate in the proceedings is the
8
reasonable and appropriate course of action.” Id. at 1089. The trial court’s
9
failure to conduct a competency hearing in light of substantial evidence of mental
10
impairment, as in Odle, violates the defendant’s right to due process of law under
11
the Fourteenth Amendment, thus implicating Petitioner’s Fifth, Sixth, and Eighth
12
Amendment rights. Id. at 1087, 1089.
13
576. The Supreme Court has held that fundamental Fifth and Sixth
14
Amendment rights guaranteed at trial (e.g., effective assistance of counsel, the
15
right to confront witnesses, and the right to testify or remain silent) also depend
16
on an accused’s ability to function rationally and cooperate with counsel. Riggins
17
v. Nevada, 504 U.S. 127, 139-40, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992); see
18
also Pate v. Robinson, 383 U.S. 375.
19
577. The trial court erred in failing to hold a hearing on the issue of
20
Petitioner’s competence to stand trial and to waive rights and in failing to hold
21
the proceedings in abeyance unless and until Petitioner was restored to
22
competence. As the result of the trial court’s error, Petitioner was denied due
23
process of law by the acceptance of his purported waiver of a complete defense at
24
the guilt trial, of his waiver of the right not to wear visible restraints before the
25
jury, and of his waiver of the right to be present at the guilt verdicts. The trial
26
court’s failure to act in accordance with the mandatory provisions of Penal Code
27
§ 1368 violated Petitioner’s fundamental rights to due process of law and fair trial
28
guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Washington v.
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1
Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Further, as a result
2
of the trial court’s error, Petitioner’s waiver of mitigation evidence at the penalty
3
trial, were he incompetent, led to an unreliable determination of punishment in
4
violation of the Eighth and Fourteenth Amendments. Caldwell v. Mississippi,
5
472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); Johnson v. Mississippi,
6
486 U.S. 578 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988).
7
F.
8
9
Conclusion
578. On numerous occasions, both the court and counsel expressed
doubts about Petitioner’s mental competency. However, on each occasion, the
10
trial court failed in its duty to ensure that a proper inquiry was conducted and that
11
Petitioner was mentally competent to proceed.
12
579. The trial court failed properly to inquire about and conduct a full
13
hearing as to Petitioner’s mental competency to actively participate in the
14
proceedings. Petitioner was entitled to a full and fair determination of his mental
15
competency in this multiple murder capital case.
16
After all, competence to stand trial does not consist merely of
17
passively observing the proceedings. Rather, it requires the mental
18
acuity to see, hear and digest the evidence, and the ability to
19
communicate with counsel in helping prepare an effective defense.
20
Odle v. Woodford, at 1089; see Dusky v. United States. Petitioner’s rights to due
21
process and fair trial guarantees under the Sixth and Fourteenth Amendments
22
were violated. Moreover, as discussed in Claim 19, infra, the error also
23
implicated Petitioner’s Eighth Amendment right to a reliable determination of
24
penalty.
25
580. Prejudice inheres in the very fact that Petitioner was tried where the
26
evidence shows he was incompetent to understand and cooperate in his own
27
defense. A finding of incompetence automatically results in reversal of the
28
judgment – even absent a contemporaneous objection. Thus, prejudice is
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1
intrinsic. See Pate v. Robinson, 383 U.S. at 384 (failure to raise incompetence in
2
trial court does not waive issue on collateral review). This is because trial of an
3
incompetent defendant is a violation of due process under the Fourteenth
4
Amendment. Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125 L. Ed.
5
2d 321 (1993).
6
Competence to stand trial is rudimentary, for upon it depends the
7
main part of those rights deemed essential to a fair trial, including
8
the right to effective assistance of counsel, the rights to summon, to
9
confront, and to cross-examine witnesses, and the right to testify on
10
one’s own behalf or to remain silent without penalty for doing so.
11
Cooper v. Oklahoma, 517 U.S. at 354 (citing Drope v. Missouri, 420 U.S. at 171-
12
72, and Riggins v. Nevada, 504 U.S. at 139-140 (Kennedy, J., concurring)). The
13
loss of the ability to participate in all these fundamental trial protections is
14
particularly egregious in capital cases, for the defendant is precluded from
15
contributing to both the determination of guilt and the imposition of punishment
16
to an extent greater than non-capital prosecutions. Here, counsel’s failings
17
resulted in Petitioner being tried by a court lacking fundamental jurisdiction and
18
deprived him of due process and full participation in the trial process. The error
19
thus violated Petitioner’s most fundamental trial rights and was reversible per se.
20
Pate v. Robinson, 383 U.S. 374; Drope v. Missouri, 420 U.S. at 172.
21
581. The foregoing violations of Petitioner’s constitutional rights, taken
22
singly or in combination with the other errors alleged in the Petition, constitute
23
structural error and warrant the granting of this Petition without any
24
determination of whether the violations substantially affected or influenced the
25
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
26
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
27
doctrine applies to this claim, the foregoing constitutional violations, singly and
28
in combination with the other errors alleged in this Petition, so infected the
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1
integrity of the proceedings that the error cannot be deemed harmless. The
2
foregoing violations of Petitioner’s rights had a substantial and injurious effect
3
or influence on Petitioner’s convictions and sentences, rendering them
4
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
5
637-38.
6
582. In addition, the denial of his right to effective assistance of counsel
7
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
8
unfair, eroded the reliability of the verdict and had a substantial and injurious
9
effect on the verdict. But for the denial of this right, it is reasonably probable that
10
a more favorable result would have been attained. Under these circumstances,
11
the adversarial system completely broke down, and Petitioner was left without
12
meaningful representation. Although many of trial counsel’s errors were, by
13
themselves, so egregious as to require reversal, the extraordinary accumulation of
14
errors and omissions over the course of the trial created a total breakdown in the
15
adversarial process, so that prejudice is conclusively presumed. United States v.
16
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
17
(1984). Even assuming a showing of prejudice is required, Petitioner has made
18
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
19
L. Ed. 2d 674 (1984).
20
CLAIM 3:
21
TRIAL COUNSEL WAS SO INCOMPETENT THAT PETITIONER
22
WAS CONSTRUCTIVELY DENIED THE RIGHT TO COUNSEL
23
583. Exhaustion of the claim: A Portion of this claim was presented in the
24
2004 state habeas petition. It was presented in Claim XVIII of the petition.
25
Petitioner will present the claim with additional factual allegations to the
26
California Supreme Court in an exhaustion petition he will file no later than
27
March 17, 2009.
28
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584. In support of this claim, Petitioner alleges the following facts,
1
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
585. Those facts and allegations set forth in the petition, declarations,
4
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
A.
9
10
Petitioner Had The Right To Counsel Who Would Ensure that The
Trial Proceedings Were Fair
586. The assistance of counsel “is one of the safeguards of the Sixth
11
Amendment deemed necessary to insure fundamental human rights of life and
12
liberty.” Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 82 L. Ed 1461
13
(1938). That a person who happens to be a lawyer is present at trial alongside the
14
accused, however, is not enough to satisfy the constitutional command.
15
Strickland, 466 U.S. at 685. A criminal defendant is entitled to be assisted by an
16
attorney, whether retained or appointed, who plays the role necessary to ensure
17
that the trial is fair. Id.
18
587. In order to receive a fair trial, a defendant is entitled to “a reasonably
19
competent attorney,” McMann v. Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441,
20
1449, 25 L. Ed. 2d 763 (1970), whose advice is “within the range of competence
21
demanded of attorneys in criminal cases.” Id., at 771, 90 S. Ct., at 1449. See also
22
Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)
23
(stating that the Constitution guarantees “adequate legal assistance.”); Engle v.
24
Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (Sixth
25
Amendment right refers to “a fair trial and a competent attorney.”) Id.
26
588. Counsel’s incompetence can be so serious that it rises to the level of
27
a constructive denial of counsel that can constitute constitutional error without
28
any showing of prejudice. See Cronic, 466 U.S. at 659-660. Cronic applies when
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1
“counsel [is] either totally absent, or prevented from assisting the accused during
2
a critical stage of the proceeding” or when “counsel entirely fails to subject the
3
prosecution’s case to meaningful adversarial testing.” Id. A presumption of
4
prejudice is required where the circumstances of the case indicate that “although
5
counsel is available to assist the accused during trial, the likelihood that any
6
lawyer, even a competent one,” could not provide effective assistance. Id. at 660,
7
citing Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932)
8
(defendants were charged with an atrocious crime and counsel was appointed so
9
close to trial that the chances that counsel could be effective was remote.)
10
589. Alternatively, if the Cronic test does not apply to a defendant’s
11
ineffective assistance of counsel claim, relief may nevertheless be obtained under
12
the usual Strickland standard. Under Strickland, a defendant must prove that his
13
counsel’s performance was deficient and that he was prejudiced as a result.
14
Strickland v. Washington, 466 U.S. 668, 694.
15
B.
Petitioner Was Denied Counsel the Assistance of Qualified Counsel
16
Who Had the Time and Experience To Properly Prepare His Defense
17
1.
18
19
Arturo and Daniel Hernandez Were Incompetent to Defend a
Capital Case
590. On September 3, 1985, the Municipal Court appointed the Public
20
Defender of Los Angeles County to represent Petitioner. (XIX CT 5465.) After
21
that, the court relieved the public defender and privately retained counsel Joseph
22
Gallegos appeared on Petitioner’s behalf on October 9, 1985. (XIX CT 5469.)
23
591. On October 22, 1985, Petitioner sought to substitute newly retained
24
counsel Daniel Hernandez and Arturo Hernandez in place of Joseph Gallegos.
25
(XVII CT 4981.) The Municipal Court noted that Petitioner’s case was unusual
26
and that he faced numerous serious charges and special circumstances that could
27
lead to the “gravest of possible consequences.” (XVII CT 4983-84.)
28
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592. Prior to allowing the substitution, the court held an in camera
2
hearing to question the Hernandezes on their qualifications which, as the
3
colloquy revealed, were seriously deficient for a case of this magnitude.32 Daniel
4
Hernandez had been admitted to practice for only three years and had handled
5
approximately 15-17 jury trials, only four of which involved charges of murder.33
6
He had never handled a death penalty case. He admitted that he had been held in
7
contempt for not appearing on time and had, on one or two occasions, been fined
8
$100. He stated that “the most notorious time [he] had been held in contempt,”
9
he had been put in jail with his client in the middle of a murder trial for failing to
10
appear in another court in which his presence was required. (Sealed RT of
11
October 22, 1985, 3-14).
12
593. Arturo Hernandez was similarly lacking in experience. He had been
13
admitted to the bar only two years prior and had never tried a death penalty case.
14
He too admitted that he had been held in contempt twice and fined $100,
15
referring to his citations as a “ritual that we go through as young attorneys.”
16
(Sealed October 22, 1985 RT 15-17). The court then warned the Herndandezes
17
that if they did not have the financial resources to litigate the case, they would
18
have to proceed pro bono because they were not qualified to be appointed. (Id. at
19
32). Daniel Hernandez assured the court that the case was fully financed and that
20
21
22
23
24
25
26
27
28
32
Under Cronic, the character of a particular lawyer’s experience does not,
by itself, establish a presumption of prejudice but it does inform the evaluation of
his performance. 466 U.S. at 664. Here, Daniel and Arturo’s lack of experience
militates in favor of a finding that their failures and omissions were the result of
incompetence, not reasonably informed trial strategy.
33
One of the murder cases handled by Daniel Hernandez was People v.
Ortiz. (Sealed RT of October 22, 1985 hearing, 8.) In People v. Ortiz, 51 Cal. 3d
at 980, the state court held that both Daniel Hernandez and Arturo Hernandez
should properly have been discharged by the trial court as retained counsel on the
defendant’s motion based on their incompetence in a pending murder case.
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1
they would not seek appointment in the future, a promise he would not keep.
2
(Id.)
3
4
594. When the parties resumed in open court on October 22, 1985, the
court explicitly informed Petitioner that,
5
neither Daniel Hernandez nor Arturo Hernandez have the legal
6
experience which would qualify them to be appointed by this court
7
to represent him in this case, nor do either attorney meet the
8
qualifications set forth by the Los Angeles County Bar for the
9
indigent criminal defense appointment panel.
10
(XVII CT 4984-85.) The court specifically held that under the Bar plan, an
11
attorney must have practiced law for a minimum of ten years, have been counsel
12
of record in at least forty jury trials, thirty of which must have been felonies, and
13
have been counsel of record in at least three cases in which murder charges were
14
alleged and they must have tried at least one murder case to a jury. (XVII
15
CT 4985.) The court also referenced the past and pending contempt charges
16
against Daniel and Arturo Hernandez in Santa Clara county. (XVII CT 4986.)
17
595. The court ordered Daniel Hernandez and Arturo Hernandez to
18
disclose to Petitioner any complaints by clients, citations for contempt of court,
19
or allegations of ineffective assistance of counsel. Petitioner was offered the
20
assistance of independent counsel to help him review any information provided
21
by counsel. The matter was put over for two days. (XVII CT 4986-88.)
22
596. At the next hearing on October 24, 1985, before the court ruled on
23
the substitution motion, attorney Gallegos explicitly informed the court that he
24
was “gravely concerned” about Petitioner’s “present mental state, his ability to
25
choose his own attorney and other related matters concerning this trial,” and
26
moved for a psychiatric examination of Petitioner as to his mental state pursuant
27
to Penal Code § 1368. (XVII CT 4995.) After cursory colloquies with former
28
counsel Henry Hall, the Hernandezes and Petitioner, the court denied the motion
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1
for an examine Petitioner’s competency, including his ability to select counsel
2
and waive their apparent conflicts of interests.34 (XVII CT 4996-97.)
3
597. Despite having previously acknowledged that “it is the duty of the
4
trial court to protect the defendant’s right to a counsel who is effective” (XVII CT
5
4983, the court permitted substitution of unqualified trial counsel, Daniel
6
Hernandez and Arturo Hernandez.35 (XVII CT 5009-10, 5014-15.)
7
2.
8
9
Ray Clark’s Mid-Trial Appointment Did Not Provide Him With
Sufficient Time To Prepare an Effective Defense
598. A defendant is constructively denied the assistance of counsel when
10
“although counsel is available to assist the accused during trial, the likelihood
11
that any lawyer, even a fully competent one, could provide effective assistance is
12
so small that a presumption of prejudice is appropriate without inquiry into the
13
actual conduct of the trial.” Cronic, 466 U.S. at 659-660. Cronic cites Powell v.
14
Alabama as an example of these circumstances. Id. In Powell, the defendants
15
were being tried for a highly publicized capital case and counsel was appointed
16
on the first day of trial, with no time to prepare. Powell, 287 U.S. 45, 57-58, 53
17
S. Ct. 55, 77 L. Ed. 158 (1932). The Powell Court held that “such designation of
18
counsel as was attempted was either so indefinite or so close upon the trial as to
19
amount to a denial of effective and substantial aid in that regard.” Id. Ray
20
Clark’s appointment in the middle of trial constitutes constructive denial of
21
counsel within the meaning of Cronic and Powell.
22
23
599. In March 1989, the court appointed Ray Clark to assist Daniel
Hernandez because Hernandez felt he could not defend Petitioner alone, as he
24
25
26
27
28
34
A claim of trial court error for failing to hold a competency hearing is
separately alleged in Claim 2.
35
A claim of trial court error for allowing the substitution of unqualified
counsel is separately alleged in Claim 5.
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had been doing for months. (Ex. 16, R. Clark Dec., ¶ 5). Clark, however, was
2
not appointed until March 1989, when trial was underway, and he had “no time to
3
prepare for trial” or review discovery prior to his involvement in the case. (Id. at
4
¶¶ 1, 6.) Thus his role at the guilt phase was limited to cross examining
5
prosecution experts without advance preparation. (Id. at ¶ 6). His comments
6
during penalty phase closing reflect his total lack of knowledge of Petitioner’s
7
life history. See infra, Section (D)(3)(b). Under these circumstances, Petitioner
8
was constructively denied the assistance of counsel.
9
C.
Trial Counsel Was Absent During Critical Portions of Petitioner’s
10
Capital Trial
11
600. At various times, Arturo Hernandez abandoned Petitioner by failing
12
to appear in court for trial proceedings.36 For example, on October 3, 1988, the
13
trial court sent a letter to Arturo Hernandez regarding his absence from trial.
14
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
15
Arturo Hernandez. (XXVIII CT 8111.) However, after conducting a hearing on
16
October 25, 1988, the court decided not to require Arturo Hernandez to attend all
17
of the trial proceedings. (See I Supp. CT VIII 2133-2215; XXVIII CT 8114.)
18
Arturo Hernandez was absent from many trial proceedings critical to Petitioner’s
19
defense, including jury selection, the prosecution’s presentation of its entire case-
20
in-chief, and jury instruction conferences.37 The trial court subsequently ordered
21
Arturo Hernandez to maintain telephone contact with the court during trial. (See
22
23
24
25
26
27
28
36
In People v. Ortiz, 51 Cal. 3d at 981, the California Supreme Court
noted that both Daniel Hernandez and Arturo Hernandez failed to appear at trial.
37
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-19, 8121-26,
8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95, 8299,
8315, 8321, 8324, 8327-28, 8331-33, 8336-38, 8345, 8353, 8360, 8369-70, 837981, 8383; and XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412, 8419, 8426,
8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
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173 RT 20186.) Arturo Hernandez was absent for four months, September 26,
2
1988, through January 23, 1989, during voir dire, including Hovey38 examination.
3
(See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-12, 8115-19, 8121, 8123-
4
26, 8181-87, 8198, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95.)
5
601. On February 21, 1989, during the prosecution’s case in chief, Daniel
6
Hernandez informed the court by telephone that he was ill and would be absent
7
from trial for one week. Hernandez sent his law clerk, Richard Salinas, to appear
8
at trial on Petitioner’s behalf. Court had to recess until Hernandez could return.
9
(152 RT 17574.)
10
602. On March 1, 1989, the court held a hearing concerning trial counsel
11
Daniel Hernandez’s health. Daniel Hernandez submitted a letter from his
12
physician stating that he suffered from nervous exhaustion and would require an
13
absence from trial of four to six weeks to recuperate. (153 RT 17604-05.) Daniel
14
Hernandez explained that he was unable adequately to represent Petitioner – he
15
could not “carry the load” – and needed yet another counsel to assist “in this
16
enormous trial.” (153 RT 17610-11.) The court found no legal cause to delay the
17
trial. (153 RT 17606, 17614-16.)
18
603. On July 13, 1989, during the prosecutor’s guilt phase closing
19
argument Arturo Hernandez was absent and Daniel Hernandez failed to return
20
from the lunch break. (204 RT 23673.) The trial court issued a body attachment
21
for Daniel Hernandez and excused the jury, telling them “as you can see
22
Hernandez is not with us this afternoon. . . Frankly, we don’t know where he is.”
23
Id; (XXIX CT 8484.) On July 14, 1989, the court quashed the attachment and
24
ordered Daniel Hernandez to be present at all hearings. (Id. at 8487.)
25
26
604. Arturo Hernandez was again absent from closing argument in the
guilt trial on July 17, 1989. The court issued a body attachment for Arturo
27
28
38
Hovey v. Superior Court, 28 Cal. 3d at 80.
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Hernandez and ordered it held to August 18, 1989. (XXIX CT 8490, 8628-29,
2
8632.)
3
605. On August 18, 1989, the trial court conducted a contempt hearing
4
and found that Arturo Hernandez had failed to maintain telephonic contact with
5
the court as previously ordered. Arturo Hernandez admitted that he had traveled
6
to Europe on a honeymoon during trial after telling the court he was in Mexico
7
for his brother’s funeral. (214 RT 24609-11.) The court found Arturo Hernandez
8
in contempt and that he had abandoned Petitioner. (Id. at 24611-12.)
9
606. Arturo Hernandez offered a no contest plea and apologized to the
10
court. (214 RT 24613-14.) After considering Arturo Hernandez’s statement, the
11
trial court found Arturo Hernandez in contempt for failing “to notify the court by
12
phone each morning,” but withdrew its finding that counsel had abandoned
13
Petitioner.39 (Id. at 24614.)
14
607. On September 14, 1989, the trial court again found Arturo
15
Hernandez in contempt for failing to maintain contact with the court. (215
16
RT 24690-91.) The court sentenced Arturo Hernandez to serve twenty-four days
17
in jail or pay a $2,400 fine to be paid on or before September 29, 1989. The court
18
ordered Arturo Hernandez to serve one day in jail.40 (Id. at 24698-700.)
19
20
608. Counsel’s numerous absences from critical portions of Petitioner’s
trial constituted deprivation of counsel within the meaning of Cronic.
21
22
23
24
25
26
27
28
39
The court ordered Arturo Hernandez to pay a fine of $100. (214
RT 24615.)
40
Arturo Hernandez paid the fine of $2,400 on September 29, 1989.
(XXX CT 8903.)
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1
D.
Trial Counsel Failed To Submit the Prosecution’s Case To Meaningful
2
Adversarial Testing
3
609. The adversarial process protected by the Sixth Amendment requires
4
that the accused have “counsel acting in the role of an advocate.” Anders v.
5
California, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399, 18 L. Ed. 2d 493 (1967).
6
The right to the effective assistance of counsel is thus the right of the accused to
7
require the prosecution’s case to survive the crucible of meaningful adversarial
8
testing. Cronic, 466 U.S. at 656-57. When a true adversarial criminal trial has
9
been conducted, even if defense counsel may have made demonstrable errors, the
10
kind of testing envisioned by the Sixth Amendment has occurred. But if the
11
process loses its character as a confrontation between adversaries, the
12
constitutional guarantee is violated. Id. (footnotes omitted).
13
610. Because trial counsel failed to submit several portions of Petitioner’s
14
case to meaningful adversarial testing, the fundamental fairness of entire
15
proceeding was jeopardized and prejudice may be presumed. Id.
16
1.
Pre-Trial Proceedings
17
611. Prior to trial, counsel completely failed to perform several basic
18
functions necessary to ensure Petitioner’s rights. Counsel failed to seek hearing
19
on Petitioner’s competence, mishandled of the change of venue motion, and
20
engaged in various ethical violations that constructively deprived Petitioner of the
21
right to counsel.
22
23
a.
Failure to Challenge Petitioner’s Competence
612. First, counsel failed to raise a challenge to Petitioner’s competence
24
to stand trial, despite the fact that significant evidence suggested he suffered from
25
a major mental disorder. See XVII CT 5020 (Petitioner shouted “Hail, Satan!” in
26
court); (Ex. 18, H. Hall Dec., ¶ 4) (describing Petitioner as “irrational and
27
agitated”); Ex. 128, 1994 M. Barraza Dec., ¶ 7) (stating that Petitioner exhibited
28
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1
extreme mood swings; his dialogue was remarkable for it incoherence and
2
irrationality; Petitioner was unable to listen to counsel’s advice).
3
613. Evaluation by experts revealed Petitioner suffered disorder of
4
psychotic proportion. His psychotic disorder is the result of a temporal lobe
5
disorder that persisted after the remission of the seizures he suffered as an
6
adolescent. As a result of his disorder, Petitioner suffered impairments including,
7
disorganized and psychotic thinking, a frequent tendency to misperceive and
8
misinterpret reality and to become lost in a grossly distorted internal world with a
9
limited relationship to reality, obsessive behavior, and delusions, both paranoid
10
and erotomanic. His chief delusion consists of his conviction of having a
11
personal relationship with Satan, and he has experienced related hallucinations.
12
(Ex. 31, D. Blumer, M.D. Dec., ¶¶ 8-10; Ex. 41, W. Vicary, M.D. Dec., ¶¶ 5; Ex.
13
98, M. Young, Ph.D. Report, at 6, 7; Ex.72, A. Evans, Ph.D. Dec.; Ex.100, G.
14
Woods, M.D., Report at 2, 4; Ex. 42, D. Watson Dec., ¶¶ 19, 21, 24.)
15
614. Petitioner also suffered from a severe mood disorder, likely due to
16
his epilepsy, with depressive features. (Ex. 98, M. Young Report, at 7; Ex. 72, A.
17
Evans Dec., at 8; Ex. 42, D. Watson Dec., ¶ 19, 22.), and brain damage. (Ex. 96,
18
Letter from Victor Henderson, M.D., to Daniel Hernandez, dated 05/29/1987.)
19
615. Despite this information, counsel failed to challenge Petitioner’s
20
competence to stand trial, in violation of Mr. Ramirez’s Sixth Amendment right
21
to the effective assistance of counsel.
22
23
b.
Change of Venue Motion
616. Second, counsel failed to litigate the change of venue motion in a
24
competent manner. Counsel’s lack of familiarity with the rules of evidence
25
resulted in 28 exhibits not being admitted because counsel did not know how to
26
properly authenticate them. (See 16 RT 702-293).
27
28
617. On January 6, 1987, the court gave the following soliloquy in a
closed session:
203
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1
Now, I am calling this hearing, Mr. Ramirez, to tell you that I
2
reluctantly have to tell you that in my opinion your lawyers are
3
incompetent. Now, I have had this case for six months and I must
4
say that I am convinced that your lawyers are nice guys, good
5
company, maybe good fellows to spend an evening with. I am also
6
convinced that they are dedicated to your defense emotionally. But I
7
must tell you that in my opinion they are not competent to handle
8
your case. I don’t think that they have sufficient experience in the
9
law. I don’t think that they have the staffing, if you will, or
10
whatever, to do the job....
11
12
I am telling you now...I don’t think they know the law well enough, I don’t
13
think they know the rules of evidence well enough, they are not ready to
14
present the evidence and push it through....I am just telling you this
15
because I have no personal axe to grind at all, I simply want to see that
16
whatever happens in this case is done right and you get your rights
17
protected, that whatever conclusion is reached is right. And I am telling
18
you now that your rights are not being protected.
19
20
(Sealed RT of January 6, 1987, 16-A RT 733-737) (emphasis added.) The court’s
21
statements confirm that the change of venue motion was litigated so poorly that
22
Petitioner was effectively denied the assistance of counsel on that matter.
c.
23
24
Miscellaneous Conduct
618. At various times, counsel’s incompetence deprived Petitioner of the
25
benefits he would have ordinarily enjoyed in a relationship with his counsel,
26
including the right to confidentiality and the right to possess and review
27
discovery.
28
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1
619. Early in the case, counsel inexplicably violated the attorney-client
2
privilege by proving the press with an unflattering cartoon Petitioner had drawn
3
of the prosecutor. (Ex., 81, Paul Feldman, Ramirez Hearing: Daily Ritual of
4
Testimony and Stares, L.A. Times, April 14, 1986; Ex. 81, Bloody Testimony at
5
Stalker Suspects Hearing, April 2, 1986, L.A. Herald Examiner at A11.) The
6
cartoon was widely reproduced in the media, further contributing to the negative
7
publicity and contaminating the jury pool. Over two years later, at lest one juror
8
remembered the cartoon, said it made her angry at Ramirez, and rendered her
9
incapable of impartiality. (See 120 RT 13215 (excusing prospective juror Doris
10
11
Jaffe on November 21, 1988.)
On May 12, 1988, counsel gave Petitioner a tape of heavy metal music that
12
had been offered to him by a spectator in the audience. This was in direct
13
violation of the court’s previous orders that Petitioner was not allowed to possess
14
anything considered contraband. During an in camera session, the court told
15
counsel:
16
This is outrageous conduct for counsel, and you your stonewalling here in
17
court, in chambers, leaves me with no other choice, I think, but to order my
18
bailiff henceforth, before you go into the lockup area, that you be
19
submitted -- you will subjected to a patdown search for weapons or
20
contraband. There will be no briefcases permitted in the lockup area.
21
22
You have abused this court for the last time. You have, I guess desecrated
23
is as good a word as any, the honor of the legal profession in my opinion
24
and I think your conduct has been despicable.
25
26
(Sealed RT of May 12, 1988, Vol. 58-A, 4187) (emphasis added.) The court then
27
ordered the sheriff to confiscate the recording device and tapes that Petitioner was
28
allowed to retain as part of his legal materials. (Id.) Due to counsel’s unethical
205
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1
conduct, Petitioner was deprived of the opportunity to possess and review the
2
discovery in his case, a right that would have endured had his counsel been
3
competent.
4
2.
Trial
5
620. At trial, counsel completely failed to investigate and present a
6
mental health defense to the charges. Despite the existence of substantial
7
evidence that Petitioner suffered serious mental impairments, especially his
8
psychosis, severe mood disorder, neurological and cognitive deficits, PTSD,
9
counsel did not present a defense of not guilty by reason of insanity. The
10
multiple deficits and impairments described by Drs. Blumer, Vicary, Henderson,
11
Woods, Young, Evans, Wells, and Watson indicate that numerous mental state
12
and other defenses could have been presented at Petitioner’s guilt phase, but was
13
not due to counsel’s incompetence.
14
3.
Penalty
15
621. Trial counsel failed to submit the entire penalty phase of Petitioner’s
16
case to meaningful adversarial testing, rendering the entire proceeding
17
presumptively unreliable. See Cronic, 466 U.S. at 659. Not only did counsel
18
waive the presentation of mitigating evidence, he effectively conceded that no
19
mitigating circumstances were present in Petitioner’s case. Furthermore,
20
counsel’s repeated acknowledgments that Ramirez did not deserve the jury’s
21
kindness rendered his request for mercy ineffective. Compare United States v.
22
Swanson, 943 F.2d 1070 (9th Cir. 1991) (counsel’s concession of the only factual
23
issue in closing argument was ineffective under Cronic) with Bell v. Cone, 535
24
U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (counsel was not ineffective
25
under Cronic or Strickland for waiving evidence at penalty where he had
26
presented significant medical, psychological and social mitigation during the
27
guilt phase insanity defense; counsel referred to evidence already presented as a
28
basis for mercy in his penalty phase argument.)
206
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1
2
a.
Waiver of Mitigation Presentation
622. On September 27, 1989, Daniel Hernandez’s waived presentation of
3
a mitigation presentation, stating that “we have made a decision as a defense team
4
and decided [not to put on any evidence].” (217 RT 24775.) He did so despite
5
the fact that ample medical, psychological and social evidence could have been
6
presented in mitigation.
7
8
9
623. As described by Dr. Jane Wells, J.D., Ph.D., who evaluated
Petitioner at the request of state post-conviction counsel, Petitioner suffered from:
(1) a childhood characterized by extreme poverty, physical and
10
emotional neglect, physical and emotional abuse, and overall
11
deprivation; (2) a gross and persistent absence of parental attention,
12
guidance, affection, and protection due in part to his parents’ lack of
13
education and their impoverished lifestyle that resulted in a
14
pervasive pattern of neglect and left Petitioner on his own much of
15
the time; (3) a serious brain impairment of early origin known at the
16
time of trial; (4) a psychotic disorder that was evident and diagnosed
17
and/or diagnosable at the time of trial; (5) serious mood disorders
18
that often accompany psychosis with components of both mania and
19
depression that was treatable at an early age but that went untreated;
20
(6) early use with side effects of phenobarbital, exposure to illegal
21
depressants, stimulants and hallucinogens during Petitioner’s critical
22
formative years; (7) early childhood exposure to criminal activity by
23
Petitioner’s brothers and other adults; (8) childhood exposure to
24
violence and trauma, including extremely traumatic events outside
25
the range of normal human experience, including witnessing the
26
aftermath of the shooting death of his cousin’s wife; and finally (9)
27
commitment as a teenager to the Texas Youth Council and long-term
28
confinement while awaiting trial on capital charges in the Los
207
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Angeles County Jail, where the inadequate staffing, programming,
2
and other adverse conditions of confinement resulted in institutional
3
failure to address and provide appropriate intervention and
4
treatment.
5
6
(Ex. 43, Declaration of Dr. Jane Wells, J.D., Ph.D., dated 05/19/2004, ¶ 46.)
624. However, counsel presented none of this evidence in the penalty
7
phase. This omission constitutes a complete failure to submit the prosecution’s
8
penalty phase case to adversarial testing.
9
10
b.
Closing Argument
625. After the waiving introduction of aggravating evidence, the
11
prosecution gave closing argument in the penalty phase. Noting the number and
12
gravity of the crimes, and the lack of any mitigation evidence, the prosecution
13
concluded that Ramirez “the personification of evil and if anyone has ever
14
earned the death penalty, Richard Ramirez has.” (217 RT 24833). Instead of
15
presenting a strong counter-argument, Ray Clark opened his remarks by saying “I
16
think Mr. Halpin (the prosecutor) was right on most things.” (Id. at 24834). For
17
the remainder of his argument, he inexplicably told the jury that none of the
18
mitigating factors in Cal. Penal Code §190.3 applied Petitioner’s case.41
19
626. As to Ramirez’s mental state at the time of the crimes, counsel told
20
the jury “what possessed Mr. Ramirez to do this we will not know soon.
21
Psychiatry is in whatever state it is in. What possessed [Petitioner] to permit Ms.
22
23
24
25
26
27
28
41
When not discounting the existence of mitigating facts, counsel
confused the jury with tangential references to Patrick Henry, the conflict in
Northern Ireland, and slavery, as well as bizarre hypotheticals, such as whether it
would make sense to call 911 if Ramirez had a heart attack after being sentenced
to death. (See 217 RT 24837-24856.) At one point, he admitted, “I’m not doing
as well as I thought I would do. It would seems like there were so many things I
had to tell you or I had to discuss with you within the confines of what I wanted
to say.” (Id. at 24846.)
208
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Kyle to live, I will never know.” (217 RT at 24840). Later, counsel suggested
2
that even if there were such evidence, it would not impact the jury. He said “I
3
think it is inescapable that something was wrong [with Richard Ramirez] and that
4
we don’t know what it was. Even if we knew what it was, I’m not sure that that
5
(sic)would change your task any.” (Id. at 24853). Later he added “there is a lot
6
we do not know about [Ramirez], about his behavior, which we will not know
7
probably in our lifetimes, which man will never know about man.” (Id. at
8
24857).
9
627. When discussing the possibility of abuse in Petitioner’s upbringing,
10
counsel told the jury “there is inferential evidence here that that (sic) is not the
11
kind of home from which Mr. Ramirez came.” (Id. at 24841.) He even suggested
12
that there was no evidence of the reverse—of Petitioner’s redeeming qualities--
13
noting “there is not a lot to be said here as to—as to he was a good boy, he did
14
this, he went to this school or that school. Obviously don’t even consider that.
15
That wasn’t presented and I don’t know what school he went to.” (Id. t 24853).
16
628. Even when discussing the only factor that was apparent without the
17
presentation of evidence, Mr. Ramirez’s age, counsel said it did not apply: “he is
18
a young man. . . . but there is nothing, absolutely nothing, not even close to
19
anything that would justify in any fashion whatsoever a single one of these 43
20
counts.” Id. at 24854.
21
629. At one point, counsel told the jury that even he would have killed
22
Petitioner: “Now I recognize that if anyone in this courtroom had come upon Mr.
23
Ramirez during the commission of one of these crimes, and we had the ability to
24
kill him, he would be dead right now, and I think that includes everybody in this
25
courtroom other than him.” Id. at 24848.
26
630. Ultimately, counsel’s argued that the jury should exercise “mercy,”
27
which he defined as “forbearance and compassion shown by one person to
28
another who is in his power and has no claim to receive kindness.” 217 RT
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1
24839. He made it clear to the jury that “Richard Ramirez. . . .has no claim to
2
your kindness.” Id. Because counsel had effectively negated the existence of any
3
mitigating circumstance, he told the jury “mercy doesn’t have to be based on
4
anything quantitative.” Id. at 24840. In making such comments, counsel failed
5
to focus on the key elements of a death penalty determination: “the character and
6
record of the individualized offender and the circumstances of the particular
7
offense.” Penry, 492 U.S. at 316.
631. Counsel’s closing argument—a request for mercy not based on any
8
9
evidence—was so ineffective as to be a complete failure to act as Petitioner’s
10
advocate.
11
E.
Counsel’s Performance Was the Equivalent of Total Denial of Counsel
12
632. In such a unique situation as this case, the harm to Petitioner caused
13
by the court’s error was equivalent to the total denial of the constitutional right to
14
representation. United States v. Cronic, 466 U.S. at 658-59. Counsel’s complete
15
failures, at numerous points throughout the trial, undermined the entire
16
adversarial process and the reliability of the resulting verdict. See Gerlaugh v.
17
Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997) (reviewing courts must consider the
18
totality of counsel’s errors, not just parts of them in isolation.) Under Cronic,
19
Petitioner is entitled to a presumption of prejudice. Cronic, 466 U.S. at 659.
20
F.
In the Alternative, Counsel’s Performance Was Ineffective Under
21
Strickland
22
633. Counsel’s failures in the pre-trial, trial and penalty phases were
23
numerous, and any one of them could have changed the outcome of the
24
proceeding. During pre-trial proceedings, a proper hearing on Petitioner’s
25
competence could have resulted in a finding that he was unfit to stand trial; a
26
competent presentation of the change of venue motion could have resulted in Mr.
27
Ramirez being tried more neutral jurisdiction; an aggressive mental health
28
defense could have resulted in an acquittal on some or all of the charges.
210
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634. Had the jurors known of Petitioners severe and long-standing mental
2
illness and impairments, they would have given full consideration to all the
3
relevant evidence bearing on the question of guilt and sentence. Several of the
4
trial jurors indicate they would have considered all evidence bearing on
5
Petitioner’s guilt. The jurors report that had the defense presented more
6
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30,
7
115, 117.)
8
9
635. A truly adversarial penalty phase mitigation presentation and
argument could have resulted in a life sentence. Several of the jurors indicate
10
they expected to hear evidence presented by the defense to save their client’s life.
11
Mitigation evidence could have had a difference in the outcome. Evidence
12
presented on Petitioner’s behalf would have been carefully considered during
13
four days of deliberations, particularly evidence of Petitioner’s background and
14
mental condition. (Exs. 28-30, 115, 117.) Counsel’s failings made Petitioner
15
even less sympathetic in the eyes of the jury and inclined it toward death.
16
636. The foregoing violations of Petitioner’s constitutional rights, taken
17
singly or in combination with the other errors alleged in the Petition, constitute
18
structural error and warrant the granting of this Petition without any
19
determination of whether the violations substantially affected or influenced the
20
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
21
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
22
doctrine applies to this claim, the foregoing constitutional violations, singly and
23
in combination with the other errors alleged in this Petition, so infected the
24
integrity of the proceedings that the error cannot be deemed harmless. The
25
foregoing violations of Petitioner’s rights had a substantial and injurious effect
26
or influence on Petitioner’s convictions and sentences, rendering them
27
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
28
637-38.
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1
CLAIM 4:
2
TRIAL COUNSEL’S CONFLICTS OF INTEREST VIOLATED
3
PETITIONER’S CONSTITUTIONAL RIGHTS
4
637. Exhaustion of the claim: Portions of this claim was fairly presented
5
to the California Supreme Court in section VIII of the June 2004 petition for writ
6
of habeas corpus. Petitioner will present the claim with additional factual
7
allegations to the California Supreme Court in an exhaustion petition he will file
8
no later than March 17, 2009.
9
638. In support of this claim, Petitioner alleges the following facts,
10
among others to be presented after full discovery, investigation, adequate
11
funding, access to this Court’s subpoena power, and an evidentiary hearing.
12
639. Those facts and allegations set forth in the petition, declarations,
13
claims of constitutional violations, and the accompanying exhibits are
14
incorporated by reference as if fully set forth herein to avoid unnecessary
15
duplication of relevant facts.
16
640. Petitioner’s conviction and sentence are illegal, and unconstitutional
17
and void under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
18
Amendments because his trial counsel’s financial conflict of interests adversely
19
affected the representation he received.
20
641. The violations of these rights, individually and cumulatively,
21
prejudicially affected and distorted the investigation, discovery, presentation, and
22
consideration of evidence as well as each and every factual and legal
23
determination made by trial counsel, the state courts and the jurors at all stages of
24
the proceedings from the time of Petitioner’s arrest through and including the
25
rendering of the judgment of death.
26
642. In considering counsel’s deficient performance individually and
27
cumulatively in conjunction with other claims alleged herein, the verdicts in both
28
the guilt phase and penalty phases of Petitioner’s trial must be set aside.
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Petitioner adopts and incorporates by reference as though fully set forth all facts
2
and claims set forth elsewhere in this petition.
3
A.
Petitioner Had a Constitutional Right to Conflict-Free Representation
4
at the Guilt and Penalty Phases of His Trial
5
643. The Sixth Amendment of the Constitution, as applied to the states
6
through the Fourteenth Amendment, guarantees criminal defendants the right to
7
the assistance of counsel. U.S. Const. amend VI, XIV; Gideon v. Wainwright,
8
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The Supreme Court has
9
long recognized that the Constitution’s guarantee is the right to the effective
10
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct.
11
1441, 25 L. Ed. 2d. 763 (1970).
12
644. Where a defendant has a right to counsel, the Sixth Amendment also
13
provides a “correlative right to representation that is free from conflicts of
14
interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220
15
(1981). An attorney whose representation is adversely affected by a conflict of
16
interest is ineffective within the meaning of the Constitution. Cuyler v. Sullivan,
17
446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The Sixth
18
Amendment’s guarantee to effective assistance applies equally to attorneys who
19
are appointed and those who are retained by the defendant. Id.
20
645. In most circumstances, a defendant alleging an ineffective assistance
21
of counsel claim must demonstrate that counsel’s performance was deficient and
22
that he suffered prejudice: “a reasonable probability that, but for counsel’s
23
unprofessional errors, the result of the proceeding would have been different.”
24
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
25
(1984). However, the Supreme Court has held that there are certain
26
circumstances where the likelihood that the verdict is unreliable is so high that a
27
case-by-case inquiry is unnecessary. See United States v. Cronic, 466 U.S. 648,
28
658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Ineffective assistance resulting
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1
from counsel’s conflict of interest does not require a showing of prejudice. See
2
Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978);
3
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
4
646. Under Sullivan, to establish a Sixth Amendment violation based on a
5
conflict of interest, petitioner must show (1) that counsel actively represented
6
conflicting interests, and (2) that an actual conflict of interest adversely affected
7
his lawyer’s performance. Sullivan, 446 U.S. at 350-51. An “actual conflict of
8
interest” is a conflict that actually affects the representation, as opposed to a
9
“mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171,
10
11
122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
647. In Wood v. Georgia, 450 U.S. at 268-69, the Supreme Court
12
acknowledged that a conflict of interest can arise when a lawyer accepts payment
13
for a criminal defendant’s representation from a third-party. In Wood, the
14
defendants were low-level employees in an adult theater who were convicted,
15
sentenced to probation, and fined for distributing obscene material. Id. at 263.
16
After the defendants did not pay their fines, the county probation office moved to
17
revoke their probationary status and send them to jail. Id. The defendants
18
petitioned the Supreme Court, alleging that it was a violation of the Equal
19
Protection Clause to imprison a probationer simply because of his inability to
20
make payments on a fine. Id. at 264. When the case came before the Court,
21
however, it was revealed that all the defendants were represented by a single
22
lawyer who was paid by their employer. Id. at 267. The record suggested that
23
the lawyer did not seek leniency or a reduced fine for the defendants, but rather
24
allowed probation to be revoked in order to bring a “test case” on the
25
constitutional claim, an issue of interest to the employer. Id. at 268.
26
648. Declining to address the Equal Protection question, the Court instead
27
turned to the potential conflict, noting “courts and commentators have recognized
28
the inherent dangers that arise when a criminal defendant is represented by a
215
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1
lawyer hired and paid by a third party.” Wood, 450 U.S. 268-69. One risk is that
2
the lawyer will prevent the defendant from offering testimony that is unfavorable
3
to the party paying for the representation. Id. Another risk is that the lawyer will
4
defer to the third-party’s goals while sacrificing the defendant’s best interest. Id.
5
at 270, Given the “clear possibility of a conflict of interest,” the Court remanded
6
the case for hearing to determine whether an actual conflict existed within the
7
meaning of Sullivan.42 Id. at 267, 274.
8
649. Because trial counsel had a third-party fee agreement with Mr.
9
Ramirez’s family, they suffered from a conflict of interest that adversely affected
10
the representation Petitioner received at trial. Under Sullivan and Wood,
11
Petitioner is entitled to relief.43 Alternatively, he is entitled to relief under
12
Strickland because trial counsel’s conflict of interest caused their performance at
13
trial to be deficient, and Petitioner was prejudiced as a result.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42
Wood was technically decided under the due process clause rather than
the Sixth Amendment, as only the former provision sets constitutional bounds on
parole revocation hearings. The Court analogized defendants’ rights in Wood to
those in Sullivan because where a defendant has the right to counsel, “our Sixth
Amendment cases hold that there is a correlative right to representation that is
free from conflicts of interest.” Wood, 450 U.S. at 271.
43
Petitioner notes that the Supreme Court criticized the application of the
Sullivan standard to conflicts of interests not involving multiple concurrent
representation. Mickens, 535 U.S. at 174. Wood’s application of Sullivan to
third-party conflict claims is consistent with Mickens, however, because “some
third-party fee arrangements can develop into the functional equivalent of
multiple representation.” Beets v. Collins, 65 F.3d 1258, 1267 (5th Cir. 1995).
216
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1
2
B.
The Third Party Fee Agreement
1.
Counsel Obtained Separate Retainer Agreements from
3
Petitioner and His Family and Considered Both of Them
4
“Clients”
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
650. After Petitioner was arrested for murder in Los Angeles, police
searched the home of Petitioner’s older sister, Rosario, in El Paso, Texas. A
neighbor, Joe Mena, suggested to the Ramirez family that they talk to a local
lawyer Manual Barraza, a cousin of Mr. Mena’s wife. After meeting with the
family, Mr. Barraza traveled to California with the intention of defending
Petitioner. (Ex. 105, Rosario Ramirez Dec, ¶ 25.) Mr. Barraza’s representation
also included “protect[ing] the family’s interest related to Petitioner’s case.” (Ex.
13, M. Barraza Dec., ¶ 2 (June 7, 2004.))
651. On October 3, 1985, while still officially represented by the public
defenders Henry Hall and Alan Adashek, Petitioner executed a seven-page,
signed and notarized Assignment of Rights to his sister Rosario Ramirez. (Ex.
110, “Assignment of Rights”; see also Ex. 18, H. Hall Dec, ¶ 4 (noting that the
public defender’s office was not relieved as counsel until October 9, 1985.) The
document covered rights “in any and all present or future literary, publishing,
motion picture, television, interviews, serials, dramatizations, advertisements,
manuscripts, all whether written or unwritten, published or unpublished,
copyrighted or non-copyrighted, direct or subsidiary.” (Ex. 110, “Assignment of
Rights.”) In it, Petitioner “irrevocably consent[ed] to and forever authorize[d] the
use by the Assignee (Rosario) or anyone authorized by the Assignee, her legal
representatives, the absolute and unqualified right to use the Assignor’s life
material in any manner the Assignee may desire.” (Id.) The assignment also
27
28
217
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1
named Rosario Ramirez as Petitioner’s attorney-in-fact to execute any documents
2
necessary to secure copyrights to his life story.44 (Id.):
3
652. Mr. Barraza told Rosario that people immediately began calling his
4
office about book or movie deals. (Ex. 105, Rosario Ramirez Dec., ¶ 26.) Mr.
5
Barraza intended to assist the family in obtaining movie and/or book rights to
6
Petitioner’s case. (Ex. 13, M. Barraza Dec., ¶ 2.) In the event of a movie and/or
7
book deal, Mr. Barraza was to receive a percentage of the monies paid to the
8
family. (Id.) Rosario recalls signing documents for Barraza, including a
9
promissory note in excess of $100,000. (Ex. 105, Rosario Ramirez Dec., ¶ 26.)45
10
653. Ultimately, Mr. Barraza could not take the Petitioner’s criminal case
11
because he was not licensed in California. (Ex. 105, Rosario Ramirez Dec., ¶
12
25.) Mr. Barraza referred the family to Arturo Hernandez, the only lawyer he
13
knew who practiced in California. (Ex. 13, M. Barraza Dec., ¶ 4.) At the same
14
time, Petitioner was meeting with Joseph Gallegos, a private attorney, who was
15
introduced to Petitioner through public defender Alan Adashek. According to
16
news reports, the Petitioner and Mr. Gallegos reached an agreement on retention
17
18
19
20
21
22
23
24
25
26
27
28
44
Both Mr. Barraza and Mr. Hall admitted that Petitioner was acting
unusually at and around the time the assignment of rights was executed. Mr. Hall
admitted that Petitioner was “agitated and irrational” during his contacts with
him. (Ex. 18, H. Hall Dec., ¶ 4.) Mr. Barraza admitted that during the times he
met with Petitioner in September and October 1985, Petitioner “exhibited
extreme mood swings and his dialogue was remarkable for its incoherence and
irrationality.... He was unable to focus or listen to [Barraza’s] attempted
explanation about what appeared to be in his best interests.” (Ex. 128, M.
Barraza Dec., ¶ 7) (Dec. 21, 1994).
45
During a hearing much later in the case, Arturo Hernandez told the court
the agreement with the family required an immediate $50,000 payment for
preliminary hearing and an additional $150,000 for trial. (Sealed RT of
September 29, 1987, Vol. 33C, 2355). He also admitted that he had not even
seen the Criminal Complaint at the time the retainer agreement had been signed.
(See Id.)
218
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1
on Monday, October 7, 1985, but Mr. Gallegos declined to state how he would be
2
paid. (Ex. 82, Paul Feldman, Ramirez Allowed to Switch Lawyers, L.A. Times,
3
Oct. 10, 1985.)
4
654. On October 9, 1985, Petitioner informed the court in an in camera
5
hearing that he had retained private attorney Joseph Gallegos. The court relieved
6
the public defender’s office as counsel, subject to Mr. Gallegos providing the
7
court with a written retainer agreement. That agreement was never provided to
8
the court. (Ex. 18, H. Hall Dec., ¶ 4; see XVII CT 4981) (October 22, 1985
9
hearing referencing events that occurred on October 9, 1985.) According to news
10
reports, Mr. Barraza, Arturo and Daniel Hernandez, also attended court on
11
October 9, 1985. They attempted to address Judge Soper in open court but she
12
would not recognize them. (Ex. 82, Paul Feldman, Ramirez Allowed to Switch
13
Lawyers, L.A. Times, Oct. 10, 1985.)
14
655. Rosario met Daniel and Arturo Hernandez in court, on the day the
15
Hernandezes appeared to represent Petitioner. (Ex. 105, Rosario Ramirez Dec.,
16
¶ 27.) It was subsequently agreed that Daniel and Arturo Hernandez would
17
represent Petitioner in his capital murder case. They signed a retainer agreement
18
with Petitioner as well as a separate retainer agreement with Petitioner’s family.
19
20
21
2.
Counsel Lied To the Court Regarding Their Intention To
Obtain a Book or Movie Deal on Behalf of Petitioner’s Family
656. The family retainer agreement specified that the Hernandezes would
22
receive money from the family for their legal services when they received
23
payment for the book or movie rights to Petitioner’s story. They expected to be
24
paid early on in the case by the family’s attorney, Manuel Barraza, or by the
25
family. Petitioner’s agreement did not require him to pay any funds for his
26
defense. The client retainer agreement bound the attorneys to represent Petitioner
27
through trial court proceedings.
28
219
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1
657. On October 22, 1985, Petitioner appeared in a closed, in camera
2
hearing with Mr. Gallegos, and Daniel and Arturo Hernandez. Petitioner
3
indicated that he wished to substitute the Hernandezes as counsel. Daniel
4
Hernandez informed the court that he had been retained by Petitioner and his
5
family, and that an official contract had been prepared and signed by the parties.
6
When asked if he had been paid for the representation, Daniel Hernandez said he
7
was not comfortable discussing that information with the court. (Sealed RT of
8
October 22, 1985 hearing, 2-4.)
9
10
658. When the court asked trial counsel for assurances that they had the
financial resources to litigate the case, Arturo Hernandez stated
11
the financial...area in this case has no bearing on my duties and my
12
abilities to appear in this case. I think that once we undertake the
13
case, we have the ethical duty to the court and to our client primarily
14
to assist him and give him effective assistance of counsel, as is his
15
constitutional right. I feel awkward in being asked that type of
16
question. Of course I’m going to be available for this court.
17
(Sealed RT October 22, 1985 hearing, 20.) He further stated “we have made
18
arrangements for associate counsel. . . [for] people to assist and all the resources
19
are there. I don’t see any problems with that at all, no matter how long it takes, if
20
it takes, we are anticipating at least two years.” (Id.)
21
659. Once the prosecution was excused from the room, Daniel Hernandez
22
informed the court that they had agreements with both Mr. Ramirez and his
23
family and that the family was responsible for payment of Petitioner’s defense.
24
When asked what the family’s source was, Daniel Hernandez replied, “I really
25
can’t comment on that. I am really not necessarily aware of that, and I am not
26
necessarily anxious to discuss their finances at all.” (Sealed RT October 22, 1985
27
hearing, 30.) The court noted that Mr. Barraza has been on television soliciting
28
attorneys to take the case based upon fee arrangements from television, movie
220
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1
and books rights. The trial court stated, “if there is any thought of that being
2
involved, it is necessary for [the court] to know because there are potential
3
conflicts...which Mr. Ramirez can waive, but the court must be aware of them
4
and Mr. Ramirez must be aware of them.” (Id. at 31.) Daniel Hernandez replied,
5
It is not really our business to know anything of where the family
6
gets its money....We have no interest. We have no contracts that
7
include those type of arrangements. We have had no conversations
8
or discussions with anyone concerning those type of arrangements. .
9
. It would be our ethical responsibility in our perspective, in our
eyes, to inform the court of all the developments in those directions.
10
11
(Id.)
12
660. At a hearing later that day, the court stated that it was “concerned
13
about any agreement regarding any rights, book rights, life story rights. . .even
14
though that agreement may be between Mr. Ramirez’ family and Mr. Barazza.”
15
Arturo Hernandez clarified that he never said such a thing regarding Mr. Barraza,
16
repeating again that “we have no knowledge, whatsoever, of any [book or movie
17
deal] negotiations.” (Id. at 37).
18
661. After the court noted that television reports indicate that the family
19
has very limited financial resources available to them, the court asked counsel,
20
“knowing that you may not be receiving funds or insufficient funds (sic) to cover
21
this type of case in the future, are you still willing to undertake this case, knowing
22
that you will not be appointed by the court?” (Id. at 38). In a statement that
23
would follow him for the rest of the case, Arturo Hernandez replied
24
[W]e undertake this case knowingly and fully conscious of the
25
possibilities that this case might extend beyond the means of the
26
family at this point. However, we are willing to undertake the case
27
under those circumstances anyway, and we are fully aware of the
28
tremendous amount of work that we are undertaking, but we have no
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1
problems with that. . . . Although we are retained in this case, if that
2
case comes about, we are willing to do the rest of it pro bono
3
anyway.
4
5
(Id.)
662. He also added that, “[the Ramirez family’s] means are modest, they
6
have a substantial amount of family members contributing to the case”—a highly
7
misleading statement, given that the Ramirez family had not paid the
8
Hernandezes at all. (Id. at 39)
9
663. Upon further questioning, it was revealed that Petitioner had not
10
signed a retainer agreement with the Hernandezes; rather, he had signed
11
substitution of counsel forms and it was Petitioner’s family who had signed a
12
written agreement. (Sealed RT October 22, 1985 hearing, 40.) The court
13
ultimately ordered the Hernandezes to reduce Petitioner’s retainer agreement to
14
writing so that an independent attorney could review it. The motion to substitute
15
counsel was put over for two days. (XVII CT 4984-4988).
16
664. On October 24, 1985, after denying attorney Gallegos’s motion for a
17
psychiatric evaluation of Petitioner, the trial court advised Mr. Ramirez that
18
“your attorneys have a contract with you and with your family, those two
19
contracts may at some point be in conflict. . . Do you understand that possibility
20
does exists?” Petitioner replied “it does exist but I feel there will be no conflict.”
21
(XVII CT 5006.)
22
665. The court noted that the Hernandezes had previously called the
23
family their “client” and advised counsel that Petitioner was to have “prime
24
consideration.” Counsel were further instructed to inform the court “if at any time
25
there is the slightest possibility that a potential conflict might exist.” Arturo
26
Hernandez assured the court that he understood the court’s directive and asserted
27
that they did not anticipate a conflict of interest, noting that they used their
28
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standard retainer agreement which had been used in many cases. (XVII CT
2
5007-08).
3
666. Despite what Daniel Hernandez told the court, he encouraged
4
Rosario, from the first day they met, to persuade Petitioner to sign a contract46 for
5
a book or movie deal. Daniel was very persistent, talking to her six or seven
6
times throughout the investigation and trial. Daniel told Rosario that in order for
7
he and Arutro Hernandez to provide Petitioner with a strong defense at trial, it
8
was important for Petitioner to sign a book or movie contract. Daniel told her
9
that they needed money to help build a defense and that a book deal would help
10
accomplish this. (Ex. 105, Rosario Ramirez Dec., ¶ 27).
11
667. Daniel took Rosario to a meeting with a Hollywood producer
12
interested in Petitioner’s story. The deal fell through when Petitioner refused to
13
sign the contract. After that, Daniel told Rosario that he would continue to work
14
on obtaining a deal. (Id.)
15
C.
16
Trial Counsel’s Conflict of Interest Adversely Affected Representation
668. In order to obtain relief under Sullivan, a defendant must show that
17
his counsel’s performance was adversely affected by an actual conflict of interest.
18
Sullivan, 446 U.S. at 348. Actual conflict need not be a direct conflict, and it
19
need not be established separately from adverse effect. Hovey v. Ayers, 458 F.3d
20
892, 908 (9th Cir. 2006) (citing Mickens v. Taylor, 535 U.S. at 172 n. 5).
21
“Adverse affect” means that “that some plausible alternative defense strategy or
22
tactic might have been pursued but was not and that the alternative defense was
23
inherently in conflict with or not undertaken due to the attorney’s other loyalties
24
or interests.” Id.; see also United States v. Wells, 394 F.3d 725, 733 (9th Cir.
25
26
27
28
46
Even though Rosario was the legal holder of the rights to Petitioner’s
story, Mr. Ramirez’s cooperation was required to secure a media agreement
because he was presumably the only person who would know certain facts
pertaining to his alleged criminal activity.
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2005) (internal quotation marks omitted); see also United States v. Shwayder, 312
2
F.3d 1109, 1118 (9th Cir. 2002) (alternatively describing the standard as
3
requiring “that counsel was influenced in his basic strategic decisions” by the
4
conflict).
5
1.
Petitioner’s Interests and That of His Family Were In Conflict
6
669. Petitioner’s best interests before and during trial and that of his
7
family were divergent and irreconcilable. The fee agreement placed counsel in an
8
untenable position between client’s best legal strategy – which included the
9
adoption of a mental health defense at the guilt phase and/or and the presentation
10
of his impoverished and abusive upbringing at penalty – and the financial and
11
privacy interests of his family.
12
670. In this case, the prospect of a book or movie deal further divided
13
counsel’s loyalties. For example, more than once, Petitioner’s family voiced their
14
concerns about protecting their monetary interest in Petitioner’s case: the
15
Ramirezes expected to receive in excess of $300,000 for Petitioner’s story. (Ex.
16
18, H. Hall Dec., ¶ 3). Since trial counsel was dependent on the Ramirez family
17
for the entire balance of the retainer agreement, counsel could not offend or
18
embarrass them during the investigation or presentation of Petitioner’s case. The
19
fact that no book or movie deal developed during the case, only furthered the
20
Hernandezes’ indebtedness to the Ramirez family, and gave counsel an ongoing
21
incentive to defer to the interests of the family over Petitioner’s.
22
671. Counsel’s third-party fee arrangement was a violation of the
23
California State Bar rules in effect in 1985, which stated that counsel shall not
24
accept employment adverse to a client (Rule 4-101); knowingly acquire an
25
interest adverse to a client (Rule 5-101); or represent conflicting interest (Rule 5-
26
102). Under the 1989 State Bar rules, an attorney shall not accept compensation
27
from one other that the client unless “there is no interference with the member’s
28
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1
independence of professional judgment or the client-lawyer relationship.” (Rule
2
3-310(E)(1).)
3
2.
Counsel Failed to Pursue Mental Health Defenses Because Doing
4
So Would Have Diminished the Value of the Media Rights and
5
Brought Shame to the Ramirez Family
6
672. From the outset of Petitioner’s case, it was clear that a competency
7
hearing and/or a mental health defense should have been investigated and raised.
8
The bizarre nature of the crimes, Petitioner’s irrational outbursts in court, and his
9
unusual behavior in attorney-client meetings all indicated that he suffered from a
10
major mental disorder. (See XVII CT 5020 (Petitioner’s shouted “Hail, Satan!”
11
in court); Ex. 18, H. Hall Dec., ¶ 4 (describing Petitioner as “irrational and
12
agitated”); Ex. 128, M. Barraza Dec., ¶ 7 (stating that Petitioner exhibited
13
extreme mood swings; his dialogue was remarkable for it incoherence and
14
irrationality; Petitioner was unable to listen to counsel’s advice).)
15
673. However, when attorney Joseph Gallegos moved for a competency
16
evaluation just prior to the Hernandezes’ substitution, Arturo Hernandez
17
objected, stating that Petitioner had no trouble understanding the proceedings.
18
(XVII CT 5003.) The Hernandezes never again moved for a competency
19
evaluation, nor did they present any kind of mental health defense at trial. There
20
is no legitimate reason why competent counsel would have refrained from
21
pursuing a finding that Petitioner was incompetent or not guilty by reason of
22
insanity, given that it was true and it would have spared Petitioner the death
23
penalty.47
24
25
26
27
28
47
Daniel and Arturo Hernandez claimed they did not pursue a mental state
defense at trial because Petitioner did not want to be considered mentally ill.
However, Ray Clark admits there was very little discussion about Petitioner’s
mental condition or his background. He believes that Petitioner was “nuts” and
unable to assist counsel in a rational manner. (Ex. 16, R. Clark Dec., ¶¶ 7-8).
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674. However, a finding that Petitioner was not criminally liable due to
2
his mental state would have diminished the value of the media rights held by the
3
family. A competency hearing, including a thorough examination of Petitioner
4
by a psychiatrist, might have answered some of the lingering questions the public
5
andpress held about Petitioner’s mental health, given the bizarre behavior
6
involved in some of the crimes. If such information were to come out as a public
7
hearing, it would lose its appeal to a literary agent seeking exclusive material.
8
Furthermore, if Petitioner had been found legally incompetent, the veracity of any
9
subsequent interview he gave would have been seriously undermined. Keeping
10
this information secret benefitted the Ramirez family as the holder of the rights to
11
Petitioner’s life story.
12
675. With regard to an insanity defense at trial, a finding that Petitioner
13
was not guilty by reason of insanity (NGRI) would have brought shame to the
14
Ramirez family. Although Petitioner would not be considered legally responsible
15
for his conduct, an NGRI verdict would have nonetheless been an
16
acknowledgment that he did have a role in committing the crimes. Such a finding
17
could have also given credence to law enforcement accusations that the Ramirez
18
family knew about the murders, or played a role in hiding clear evidence of
19
homicide. (See e.g. Ex. 83, Stalker May Have Mailed Eyes to Kin, undated,
20
(referencing the search of Rosario’s house for the eyes of one of the victims.
21
Because of the intense media scrutiny they received, the Ramirezes had a strong
22
desire to clear the family name, a goal that would not be accomplished if
23
Petitioner were found incompetent or not guilty by reason of insanity. See also
24
infra subsection D(2); Claim 8.
25
26
27
28
Because counsel has an obligation to investigate and present mental health
defenses where doing so is in the client’s best interest, counsel’s deference to
Petitioner’s alleged wishes is not a valid strategic reason for their performance.
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676. Counsel had no strategic reason to forgo pursuing a finding of
2
incompetence or not guilty by reason of insanity, particularly because a finding of
3
either incompetence or NGRI would have spared Petitioner the death penalty.
4
But because counsel could not pursue either of those alternatives without
5
diminishing the value of the media rights, or shaming the Ramirez family,
6
counsel’s representation was adversely affected by the conflict of interest created
7
by the third-party fee arrangement.
8
9
10
11
3.
Counsel Refrained from Obtaining and Presenting Penalty
Phase Mitigation Information that was Unfavorable to
Petitioner’s Family
677. The family’s adverse interests also interfered with Petitioner’s
12
constitutional right to an adequate penalty phase investigation and mitigation
13
presentation. One of the defense paraprofessionals declares that counsel limited
14
her investigation of the case to brief interviews of family members. (Ex. 14, K.
15
Baur Dec., ¶ 3-4.). Thus, she could not develop medical, psychosocial,
16
institutional, familial, or other sources of mitigation, because counsel and the
17
family essentially erected a wall around any information regarding Petitioner,
18
preventing her from conducting the critical investigation. (Id., ¶ 4 (“It seemed
19
purposeless to limit our work . . . when we were aware of many areas of
20
investigation, including . . . psychiatric, . . . and family dynamics that would have
21
yielded significant mitigation evidence on Petitioner’s behalf.”)
22
678. Had counsel conducted a thorough mitigation investigation,
23
including effective interviews with family members, neighbors and others, it
24
would have revealed information that was valuable to Petitioner’s defense but
25
embarrassing to the Ramirez family. For example, Petitioner’s mother may have
26
contributed to his brain impairments through her employment at the Tony Lama
27
Boot factory, where she worked while pregnant with Petitioner. She was told the
28
fumes might harm her unborn child, but continued working there because she
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needed the money. (Ex. 32, M. Cornell Dec., ¶ 21; Ex. 103, M. Ramirez Dec., ¶¶
2
5-6.) Meanwhile, Petitioner’s father, Julian Ramirez, Sr., had a violent temper
3
and beat his sons (except for the disabled Ignacio); he hit them with a water hose,
4
electrical cords, and belts. He beat Petitioner many times, hard enough to leave
5
bruises on Petitioner’s legs. He once brandished a gun at his son Robert. (Ex.
6
32, M. Cornell Dec., ¶¶ 64, 69; Ex. 104, Robert Ramirez Dec., ¶¶ 2-4; Ex. 105,
7
Rosario Ramirez Dec., ¶ 13; Ex. 102, I. Ramirez Dec., ¶ 13.)
8
9
679. In addition to outright abuse, Petitioner suffered neglect because his
parents were focused on the numerous problems of his older brothers: Julian
10
Ramirez, Jr., was born with a birth defect, was mentally retarded, sexually abused
11
by a special education teacher and became a life-long heroin addict, who has been
12
in and out of jail, mostly on drug-related offenses. (Ex. 32, M. Cornell Dec., ¶¶
13
22-23; Ex. 67, J. Ramirez Dec., ¶¶ 4-6; Ex. 103, M. Ramirez Dec., ¶¶ 9-10; Ex.
14
105, Rosario Ramirez Dec., ¶ 3; Ex. 106, School Records of Julian Ramirez, Jr.).
15
680. Petitioner’s brother, Ignacio Ramirez, suffered painful bone
16
deformities in his legs and ankles that required frequent doctor visits and
17
numerous surgeries and was also mentally retarded. (Ex. 32, M. Cornell Dec.,
18
¶ 26; Ex. 103, M. Ramirez Dec., ¶ 12; Ex. 102, I. Ramirez Dec., ¶¶ 7-8, 15; Ex.
19
105, Rosario Ramirez Dec., ¶ 4; Ex. 109, School Records of Ignacio Ramirez.)
20
681. Petitioner’s brother, Robert Ramirez, had difficulty learning to speak
21
and was classified as the educable mentally retarded. Robert was sexually abused
22
by the same special education teacher who sexually abused his older brother
23
Julian, Jr. Robert began getting into trouble with the law when he was a teenager.
24
Robert dropped out of school in the tenth grade. He was convicted of theft and
25
other crimes, and. at the age of eighteen was incarcerated for approximately two
26
years. Thereafter, his life continued to be unstable. Robert has been diagnosed
27
with bipolar disorder and schizophrenia. (Ex. 32, M. Cornell Dec., ¶ 26; Ex. 103,
28
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M. Ramirez Dec., ¶ 13; Ex. 104, Robert Ramirez Dec., ¶¶ 15, 17; Ex. 105,
2
Rosario Ramirez Dec., ¶ 5; Ex. 107, School Records of Robert Ramirez.)
3
682. Petitioner was also exposed to extreme levels of violence through his
4
cousin Miguel Valle, a Viet Nam veteran. He showed, or described, to Petitioner
5
photographs that he claimed to have brought back from Viet Nam – photographs
6
that depicted Valles and others participating in rape, violence, torture, murder,
7
and other atrocities against Vietnamese prisoners. Valles sexualized the atrocities
8
he described to Petitioner. Petitioner was extremely upset after he spent time
9
with Valles, however, Valles remained a strong influence on Petitioner. When
10
Petitioner was thirteen years old, Valles shot and killed his wife – in front of
11
Petitioner. Valles was arrested and charged in the killing. Petitioner witnessed
12
the shooting, and, later, after Valles had been arrested, returned to and observed
13
the blood-soaked crime scene. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 69, M.
14
Ramirez Dec., ¶ 7; Ex. 103, M. Ramirez Dec., ¶ 22; Ex. 105, Rosario Ramirez
15
Dec., ¶ 17, 18; Ex. 102, I. Ramirez Dec., ¶ 26.)
16
683. All of the above information could have been presented as part of a
17
compelling penalty phase mitigation presentation. But because counsel was
18
dependent upon the Ramirez family to recover the enormous costs of Petitioner’s
19
defense, they were not in a position to confront the family about the role they
20
played in Petitioner’s abusive, neglectful and traumatic upbringing.
21
4.
The Fee Arrangement Caused Petitioner’s Defense to be
22
Underfunded, Resulting in Unwarranted Delay and Counsel’s
23
Absence from Critical Portions of the Trial
24
684. The third-party fee arrangement the Hernandezes secured with
25
Petitioner’s family severely affected their ability to litigate the case in a
26
competent and timely manner. When the Hernandezes initially requested to be
27
substituted as counsel, Arturo Hernandez assured the court that “all the resources
28
are there . . . no matter how long it takes” to fully defend Petitioner’s case (Sealed
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RT of October 22, 1985 hearing, 20). He did not inform the court that neither he
2
nor Daniel Hernandez had actually been paid by the family, or that they expected
3
to be paid early on in the case from the proceeds of a book or movie deal. When
4
a deal did not materialize, Arturo Hernandez was forced to take additional
5
retained work over the next four years, from 1985 through 1989.
6
685. Even before trial began, it became apparent that counsel’s lack of
7
funding was causing unwarranted delay. Early on, Arturo Hernandez explained
8
that one of the reasons he had not filed a suppression motion was because “Mr.
9
Ramirez is an indigent defendant. . . . he doesn’t have the means or the resources,
10
as the People do, to maintain a pace that is required by the People.” (19 RT 906-
11
07). Failure to file timely motions became routine, causing the court to chastize
12
trial counsel for their tardiness (see, e.g., 26 RT 1855) and for raising financial
13
matters as grounds for delaying the case. (See, e.g., 41 RT 2933-40; 43 RT 3006-
14
08.) The Hernandezes were informed that “financial concerns are not reason
15
really (sic) to continue this case. You owe [Mr. Ramirez] a duty of at least warm
16
zeal on this case, and of course, as officers of the court—this court, owe prompt
17
attention to this case.” (Id. at 3007.)
18
686. By May 1987, the Hernandezes had to close down their local offices,
19
telling the court “we’re broke. We had to move home [to San Jose].” (Sealed
20
May 4, 1987, 30A RT 2199.) Even the court’s appointment of another attorney,
21
Michael Carney, to assist in writing motions, did not improve the situation
22
because Daniel and Arturo Hernandez were always in San Jose working on other
23
cases and were unable to confer on Petitioner’s case. (Sealed September 23,
24
1987, 33A RT 2331-32).
25
687. During an unsuccessful attempt to get appointed by the court, Arturo
26
Hernandez explained the shortage of funding by saying that “the case originally
27
seemed something that was totally indefensible....[now] we find the case has
28
turned out to be very defensible. . . .the monies we’ve agreed to with the family
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are totally inadequate” to defend the case. (Sealed September 29, 1987, 33B RT
2
2346.) With trial just one month way, Arturo Hernandez claimed that the
3
Ramirez family’s inability to pay would cause them “to give less than adequate
4
representation and render ineffective assistance of counsel to our client, because
5
we have to work and try to survive and maintain some sort of practice.” (Sealed
6
September 29, 1987, 33C RT 2358).
7
688. After trial began, Arturo Hernandez simply stopped appearing in
8
court. During Arturo Hernandez’s four-month absence between September 26,
9
1988, through January 23, 1989, Daniel Hernandez, who had no previous capital
10
litigation experience, conducted voir dire, including Hovey48 examination. (See
11
XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-12, 8115-19, 8121, 8123-26,
12
8181-87, 8198, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95.) Arturo
13
Hernandez was also absent during other proceedings critical to Petitioner’s
14
defense, including the prosecution’s entire case-in-chief, and jury instruction
15
conferences.49
16
689. Eventually, Arturo was only maintaining contact with the court by
17
telephone, and even then, he often failed to do so. (173 RT 20186). At one
18
point, Daniel Hernandez could not locate Arturo through relatives, and did not
19
know whether he was even in the country. (Sealed October 3, 1988 96A RT
20
10144). “It is crippling to me to have someone on board as co-counsel who can’t
21
22
23
24
25
26
27
28
48
Hovey v. Superior Court, 28 Cal. 3d 80, 616 P.2d 1301, 168 Cal. Rptr.
128 (1980).
49
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-13, 8115-19,
8121-26, 8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286,
8294-95, 8299, 8315, 8321, 8324, 8327-28, 8331-33, 8336-39, 8341, 8353, 8360,
8369-70, 8379-81, 8383; XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412,
8419, 8426, 8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
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1
function. . . it is almost better not to have one,” Daniel Hernandez told the court
2
in his request to relieve Arturo from the case. (Id. at 10153.)
3
690. In January 1989, Daniel Hernandez attempted to force the court into
4
giving him county funding, claiming that his representation of Petitioner would
5
suffer without additional money for the defense. During an in camera hearing,
6
the court accused him of extortion:
7
Mr. Hernandez, when you tell the court that if you don’t get
8
appointed you are going to withdraw, or if you don’t get appointed
9
you are going to do less than diligent work on this case, as you
10
appear to state in these motions, that is frightening to me because
11
that is extortion. And I will be honest with you, this court is not
12
going to be extorted.
13
(Sealed January 20, 1989, 140A RT 16005.)
14
691. The court also correctly discerned that counsel had previously lied at
15
the time of their substitution, noting, “you said, in effect, that you misrepresented
16
to Judge Soper your [financial] position for matters of expediency.” (Id. at
17
16006.) The court denied Daniel Hernandez’s request for appointment and stated
18
“this kind of representation from a member of the bar is something I simply never
19
even contemplated.” (Id. at 16006-07.)
20
692. When that tactic did not work, Daniel Hernandez claimed that the
21
stress of defending the case alone caused his health to suffer such that he could
22
not attend trial. On February 21, 1989, Daniel Hernandez failed to appear. He
23
telephoned the court to report that he was ill and would be absent for one week.
24
In a letter to the court, his physician stated: “I do not feel he is presently capable
25
of functioning effectively as a trial attorney. My estimate of additional time
26
required to recuperate would be four to six weeks.” (Ex. 11, Letter from John
27
Pace, M.D., regarding patient Daniel Hernandez, Esq., dated 02/24/1989 (State
28
Habeas Exhibit 8A).) In a hearing on March 1, 1989, Daniel Hernandez
232
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1
explained that he was unable to adequately represent Petitioner – could not “carry
2
the load” – and needed yet another counsel to assist “in this enormous trial.”
3
(153 RT 17609-11.) The court found no legal cause to delay the trial. (Id. at
4
17606, 17614-16.)
5
693. The lack of funding also adversely affected counsel’s ability to
6
present defense witnesses. In June 1989, Daniel Hernandez claimed that he could
7
not comply with the court’s schedule regarding defense witnesses because he had
8
spent all of his money. Later, the court questioned how delaying the testimony
9
would change the situation, telling Daniel Herndandez “you are going to be in the
10
same boat, aren’t you? You are dead broke now. You are not eating.” (Sealed
11
June 26, 1989 hearing, 199A RT 23267). Hernandez replied “well I’m eating but
12
I’m not paying rent.” (Id.) When counsel could not get a continuance of the
13
testimony, Daniel Hernandez flatly told the court “I can’t do it.” (Id. at 23269.)
14
The then court accused Hernandez of attempting to create reversible error, to
15
which counsel replied, “I’ve been going without anything for myself for four
16
years and now I have to eat my pride again and say I’m broke, and even then you
17
stuff it down my throat.” (Id. at 23270.)
18
694. The lack of funding, a direct cause of counsel’s unethical third-party
19
fee arrangement, adversely affected Petitioner’s defense. Furthermore, counsel’s
20
repeated statements that they could not be effective under such circumstances
21
indicate that a presumption of prejudice is warranted.
22
5.
The Mid-Trial Appointment of Ray Clark Did Not Cure the
23
Adverse Affect Caused by the Hernandezes’ Third-Party Fee
24
Agreement
25
695. At various times, Daniel Hernandez sought appointment to
26
Petitioner’s case pursuant to § 987, citing his financial problems because the
27
family was unable to pay his fees. (XXVIII CT 8242-46.) The court refused to
28
appoint counsel under Penal Code § 987.2, which provides for appointment of
233
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1
counsel to represent an indigent defendant, because he was not qualified to be
2
appointed as counsel in a capital case. Eventually, the court appointed Ray Clark
3
to assist Daniel Hernandez because Hernandez felt he could not defend Petitioner
4
alone, as he had been doing for months. (Ex. 16, R. Clark Dec., ¶ 5). Clark,
5
however, was not appointed until March 1989, when trial was underway, and he
6
had no time to review discovery prior to his involvement in the case. (Id. at ¶¶ 2,
7
6.) Clark’s role was thus extremely limited, and he merely considered himself
8
Daniel Hernandez’s assistant. (See Id. at ¶ 6.)
696. This likely due to the fact that Ray Clark suffered from his own
9
10
third-party payment conflict of interest. Though he was appointed and paid by
11
the court, Clark had agreed to pay Daniel Hernandez 30% of all of his fees in
12
exchange for “referring” him the Ramirez case (Ex. 16, R. Clark Dec., ¶¶ 3),
13
which was not revealed to the court at the time of Clark’s appointment. (Sealed
14
March 7, 1989, 153A RT 17618-24.) Because Clark was dependent on Daniel
15
Hernandez’s continued consent to his appointment, Clark was in no position to
16
challenge Daniel’s strategy or judgment.
697. Clark’s presence did not cure the delays and errors that were made
17
18
prior to his appointment to the case. Furthermore, Clark did not exercise
19
sufficient authority over Daniel Hernandez to prevent the adverse affects that
20
occurred during the defective guilt and penalty phase presentation, due to the
21
Hernandezes’ third-party fee arrangement with Petitioner’s family.
22
D.
Alternatively, Counsel’s Conflict of Interest Rendered Them
23
Ineffective Within the Meaning of Strickland
24
698. If the Sullivan test does not apply to a defendant’s conflict of interest
25
claim, relief may nevertheless be obtained under the usual Strickland standard for
26
ineffective assistance of counsel. Under Strickland, a defendant must prove that
27
his counsel’s performance was deficient and that he was prejudiced as a result.
28
Strickland, 466 U.S. at 694.
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699. “Deficient performance” under Strickland is comparable to “adverse
2
affect” under Sullivan. See Mickens, 535 U.S. 174. Petitioner has demonstrated
3
that his counsel’s representation was adversely affected by the third-party fee
4
arrangement between the Hernandezes and the Ramirez family. Counsel’s
5
deference to the interests of the family caused Hernandezes to forgo a mental
6
health defense, a proper penalty phase investigation and presentation and
7
prevented Petitioner’s case from being litigated in a timely manner. There was
8
no valid strategical reason for any of these actions. As a result, counsel’s
9
performance was deficient.
10
700. Petitioner suffered prejudice from counsel’s failure to litigate his
11
competency, raise a mental health defense or present mitigation evidence at
12
penalty. Had the jurors known of Petitioner’s severe and long-standing mental
13
illness and impairments, they would have given full consideration to all the
14
relevant evidence bearing on the question of guilt and sentence. Several of the
15
trial jurors indicate they would have considered all evidence bearing on
16
Petitioner’s guilt. The jurors report, that had the defense presented more
17
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30.)
18
701. Several of the jurors indicate they expected to hear evidence
19
presented by the defense to save their client’s life. Mitigation evidence could
20
have had a difference in the outcome. Evidence presented on Petitioner’s behalf
21
would have been carefully considered during four days of deliberations,
22
particularly evidence of Petitioner’s background and mental condition. (Exs. 28-
23
30.) Counsel’s failings made Petitioner even less sympathetic in the eyes of the
24
jury and inclined it toward death.
25
702. Counsel’s conflicts of interest deprived Petitioner of any reasonable
26
opportunity of receiving a fair trial and fair and reliable determination of guilt
27
and penalty under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
28
Amendments.
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1
703. The foregoing violations of Petitioner’s constitutional rights, taken
2
singly or in combination with the other errors alleged in the Petition, constitute
3
structural error and warrant the granting of this Petition without any
4
determination of whether the violations substantially affected or influenced the
5
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
6
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
7
doctrine applies to this claim, the foregoing constitutional violations, singly and
8
in combination with the other errors alleged in this Petition, so infected the
9
integrity of the proceedings that the error cannot be deemed harmless. The
10
foregoing violations of Petitioner’s rights had a substantial and injurious effect
11
or influence on Petitioner’s convictions and sentences, rendering them
12
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
13
637-38.
14
CLAIM 5:
15
THE COURT DENIED PETITIONER HIS RIGHT TO EFFECTIVE
16
ASSISTANCE OF COUNSEL BY PERMITTING THE
17
SUBSTITUTION OF COUNSEL WHO WERE UNQUALIFIED AND
18
SUFFERED FROM A PROFOUND CONFLICT OF INTEREST
19
704. Exhaustion of the claim: Portions of this claim was fairly presented
20
to the California Supreme Court in the direct appeal. It was presented in Section
21
I of the Opening Brief. This claim will also be presented in the state exhaustion
22
petition Mr. Ramirez will file in March 17, 2009.
23
705. In support of this claim, Petitioner alleges the following facts,
24
among others to be presented after full discovery, investigation, adequate
25
funding, access to this Court’s subpoena power, and an evidentiary hearing.
26
27
706. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
28
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1
incorporated by reference as if fully set forth herein to avoid unnecessary
2
duplication of relevant facts.
3
A.
The Trial Court Violated Petitioner’s Constitutional Rights By
4
Allowing Him to be Represented By Unqualified Counsel
5
707. The trial court’s substitution of unqualified counsel who suffered
6
from an obvious conflict of interest violated Petitioner’s right to the effective
7
assistance of counsel. In denying this claim on direct appeal, the California
8
Supreme Court held that “the trial court correctly recognized that the defendant
9
has the right to counsel of his choice.” Ramirez, 39 Cal. 4th at 424. This holding
10
misapprehends Supreme Court jurisprudence on the qualified nature of the
11
defendant’s right to choose counsel as well as the court’s power to intervene
12
when the defendant’s choice would impair the fair and orderly administration of
13
justice.
14
15
16
1.
Trial Courts Have the Right to Refuse Counsel of Choice in
Order to Ensure the Fairness of the Proceedings
708. The Sixth Amendment’s guarantee to the right to the assistance of
17
counsel is accorded to “ensure that criminal defendants receive a fair trial.”
18
Strickland v. Washington, 466 U.S. at 689. Thus, while the right to select and be
19
represented by one’s preferred attorney is comprehended by the Sixth
20
Amendment, the essential aim of the Amendment is to ensure that each criminal
21
defendant receives an effective advocate who can ensure the fairness of the
22
adversarial process, rather than to ensure that a defendant will inexorably be
23
represented by the lawyer whom he prefers. Wheat v. United States, 486 U.S.
24
153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).
25
709. In most circumstances, a defendant has “the right to be represented
26
by an otherwise qualified attorney whom that defendant can afford to hire, or
27
who is willing to represent the defendant even though he is without funds.”
28
United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 165 L. Ed.
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1
2d 409 (2006). This right, however, is circumscribed in several important
2
respects. A defendant cannot insist on being represented by someone who is not
3
a member of the bar, or who suffers from a conflict of interest. Id. at 152; see
4
infra, Section (B)(1).
5
710. Likewise, the Supreme Court’s Sixth Amendment jurisprudence
6
“recognize[s] the authority of trial courts to establish criteria for admitting the
7
lawyers to argue before them.” Gonzalez-Lopez, 548 U.S. at 151. In exercising
8
this authority, courts have “wide latitude in balancing the right to counsel of
9
choice against the needs of fairness” and against the court’s schedule. Id.
10
711. Trial courts also have an “independent interest in ensuring that
11
criminal trials are conducted within the ethical standards of the profession and
12
that legal proceedings appear fair to all who observe them.” Id. at 152, (citing
13
Wheat, 486 U.S. at 160); see also United States v. Stiles, 56 F.3d 1020 (9th Cir.
14
1995) (court properly refused the substitution of retained counsel who had
15
committed unethical conduct earlier in the proceeding, even though attorney’s
16
actions did not rise to the level of contempt); United States v. Walters, 309 F.3d
17
589, 592 (9th Cir. 2002) (defendants choice of counsel does not have to be
18
respected if “would unreasonably delay proceedings or burden the court with
19
counsel who was incompetent or unwilling to abide by court rules and ethical
20
guidelines.”); United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir. 2007) (court
21
properly refused counsel of choice where counsel had past and pending ethical
22
violations, filed motions of dubious merit and would delay proceedings).
23
2.
Counsel’s Lack of Qualification and Experience Posed An
24
Obvious Threat To The Fairness of Proceeding At The Time of
25
Substitution
26
27
712. On September 3, 1985, the Municipal Court appointed the Public
Defender of Los Angeles County to represent Petitioner. (XIX CT 5465.) After
28
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1
that, the court relieved the public defender and privately retained counsel Joseph
2
Gallegos appeared on Petitioner’s behalf on October 9, 1985. (Id. at 5469.)
3
713. On October 22, 1985, Petitioner sought to substitute newly retained
4
counsel Daniel Hernandez and Arturo Hernandez in place of Joseph Gallegos.
5
(XVII CT 4981.) Prior to allowing the substitution, the court held an in camera
6
hearing to question the Hernandezes on their qualifications which, as the
7
colloquy revealed, were seriously deficient for a case of this magnitude. Daniel
8
Hernandez had only been admitted to practice for three years and reported he had
9
handled approximately 15-17 jury trials, only four of which involved charges of
10
murder. He had never handled a death penalty case. He admitted that he had
11
been held in contempt for not appearing on time and had, on one or two
12
occasions, been fined $100. He stated that “the most notorious time [he] had
13
been held in contempt,” he had been put in jail with his client in the middle of a
14
murder trial for failing to appear in another court in which his presence was
15
required. (Sealed October 22, 1985, RT 3-14).
16
714. Arturo Hernandez was similarly lacking in experience. He had only
17
been admitted to the Bar two years prior and had never tried a death penalty case.
18
He too admitted that he had been held in contempt twice and fined $100,
19
referring to his citations as a “ritual that we go through as young attorneys.”
20
(Sealed October 22, 1985, RT 15-17).
21
715. When open court resumed on October 22, 1985, the court noted that
22
Petitioner’s case was unusual and that he faced numerous serious charges and
23
special circumstances that could lead to the “gravest of possible consequences.”
24
(XVII CT 4983-84.) Significantly, the court explicitly informed Petitioner that,
25
neither Daniel Hernandez nor Arturo Hernandez have the legal
26
experience which would qualify them to be appointed by this court
27
to represent him in this case, nor do either attorney meet the
28
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1
qualifications set forth by the Los Angeles County Bar for the
2
indigent criminal defense appointment panel.
3
(XVII CT 4984-85.) The court specifically held that under the Bar plan, an
4
attorney must have practiced law for a minimum of ten years, have been counsel
5
of record in at least forty jury trials, thirty of which must have been felonies, and
6
have been counsel of record in at least three cases in which murder charges were
7
alleged and they must have tried at least one murder case to a jury. (Id. at 4985.)
8
716. The court further noted that both Daniel Hernandez and Arturo
9
Hernandez had been found in contempt of court on at least two occasions in Santa
10
Clara County where they ordinarily practiced and that contempt proceedings in
11
another case were pending against Daniel Hernandez.50 (Id. at 4986.) Due to the
12
fact that Petitioner had been in custody and unable to interview various attorneys,
13
the court ordered counsel Daniel Hernandez and Arturo Hernandez to disclose to
14
Petitioner any complaints by clients, citations for contempt of court, or
15
allegations of ineffective assistance of counsel. The court also offered the
16
assistance of independent counsel to help Petitioner review any information
17
provided by counsel. (Id. at 4986-88.) The court put the matter over for two
18
days. (Id. at 4989.)
19
717. At the next hearing on October 24, 1985, before the court ruled on
20
the substitution motion, attorney Gallegos explicitly informed the court that he
21
was “gravely concerned” about Petitioner’s “present mental state, his ability to
22
choose his own attorney and other related matters concerning this trial,” and
23
24
25
26
27
28
50
Counsel Daniel Hernandez informed the court that he was counsel of
record in the trial court in People v. Ortiz. (See Misc. Sealed (October 22, 1985
hearing) RT 8.) In People v. Ortiz, 51 Cal. 3d at 980, the state court held that
both Daniel Hernandez and Arturo Hernandez should properly have been
discharged by the trial court as retained counsel on the defendant’s motion based
on their incompetence in a pending murder case.
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1
moved for a psychiatric examination of Petitioner as to his mental state pursuant
2
to Penal Code § 1368. (XVII CT 4995). The court asked briefly of Petitioner
3
regarding his education and potential conflicts of interest with respect to the
4
retainer agreements with Daniel Hernandez and Arturo Hernandez. (XVII
5
CT 5005-09.) The court denied Mr. Gallegos’s request to suspend criminal
6
proceedings under Penal Code § 1368. (Id. at 5003.)51
7
718. Turning to the motion for substitution, the court inquired whether
8
counsel had disclosed “any facts, both positive and negative, which would
9
bear...on your ability to represent” Mr. Ramirez. (XVII CT 5009). Counsel
10
claimed this had been done. However, the court nothing to verify that either
11
Daniel Hernandez or Arturo Hernandez disclosed anything to Petitioner as the
12
court had previously ordered. (See Id.)
13
719. Despite having previously acknowledge that “it is the duty of the
14
trial court to protect the defendant’s right to a counsel who is effective” (XVII CT
15
4983), the court permitted substitution of unqualified Daniel Hernandez and
16
Arturo Hernandez. (XVII CT 5009-10, 5014-15.) This was a violation of the
17
court’s duty to ensure that the uninformed choice of a defendant’s counsel does
18
not endanger the fairness of the proceeding. Gonzalez-Lopez, 548 U.S. at 151.
19
3.
Counsel’s Incompetent And Unethical Conduct Throughout The
20
Trial Should Have Prompted Their Removal By The Trial Court
21
720. Later in the case, the judge hearing the motion for a change of venue
22
called a special in camera session to comment on the incompetence of
23
Petitioner’s attorneys:
24
Now, I am calling this hearing, Mr. Ramirez, to tell you that I
25
reluctantly have to tell you that in my opinion your lawyers are
26
27
28
51
See infra Section (B)(2) for a more detailed recitation of the facts
surrounding the court’s erroneous ruling on counsel’s conflict of interest.
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1
incompetent. Now, I have had this case for six months and I must
2
say that I am convinced that your lawyers are nice guys, good
3
company, maybe good fellows to spend an evening with. I am also
4
convinced that they are dedicated to your defense emotionally. But I
5
must tell you that in my opinion they are not competent to handle
6
your case. I don’t think that they have sufficient experience in the
7
law. I don’t think that they have the staffing, if you will, or
8
whatever, to do the job....
9
I am telling you now... I don’t think they know the law well enough, I
10
don’t think they know the rules of evidence well enough, they are not
11
ready to present the evidence and push it through.... I am just telling you
12
this because I have no personal axe to grind at all, I simply want to see that
13
whatever happens in this case is done right and you get your rights
14
protected, that whatever conclusion is reached is right. And I am telling
15
you now that your rights are not being protected.
16
17
(Sealed January 6, 1987, 16-A RT 733-37.) Despite the court’s clear
18
acknowledgment that Petitioner’s rights were not being protected, the court
19
declined to remove counsel from the case.
20
721. Once trial resumed, the court repeatedly failed to protect Petitioner’s
21
Sixth Amendment right to counsel despite being made aware of counsel’s lack of
22
qualifications, experience, knowledge, and professionalism with respect to
23
representation of Petitioner in a capital murder trial.
24
25
722. At various times, Arturo Hernandez abandoned Petitioner by failing
to appear in court for trial proceedings.52 For example, on October 3, 1988, the
26
27
28
52
In People v. Ortiz, 51 Cal. 3d at 981, the California Supreme Court
noted that both Daniel Hernandez and Arturo Hernandez failed to appear at Ortiz
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1
trial court sent a letter to Arturo Hernandez regarding his absence from trial.
2
(XXVIII CT 8100.) On October 18, 1988, the court issued a body attachment for
3
Arturo Hernandez. (Id. at 8111.) However, after conducting a hearing on
4
October 25, 1988, the court decided not to require Arturo Hernandez to attend all
5
of the trial proceedings. (See I Supp. CT VIII 2133-2215; XXVIII CT 8114.)
6
Arturo Hernandez was absent from many trial proceedings critical to Petitioner’s
7
defense, including jury selection, the prosecution’s presentation of its entire case-
8
in-chief, and jury instruction conferences.53 The trial court subsequently ordered
9
Arturo Hernandez to maintain telephone contact with the court during trial. (See
10
173 RT 20186.)
11
723. Owing to the four-month absence of Arturo Hernandez between
12
September 26, 1988, through January 23, 1989, the court permitted Daniel
13
Hernandez, who had no previous capital litigation experience, to conduct voir
14
dire, including Hovey54 examination. (See XXVIII CT 8087-88, 8094, 8098,
15
8101-02, 8106-12, 8115-19, 8121, 8123-26, 8181-87, 8198, 8203-04, 8206-08,
16
8259-63, 8273, 8284, 8286, 8294-95.)
17
724. Other instances of counsel’s ineffective assistance of counsel are
18
pervasive in the record. Daniel Hernandez and Arturo Hernandez failed on
19
numerous occasions to abide by court orders and failed to appear at trial. For
20
example, during the prosecutor’s guilt phase closing argument on July 13, 1989,
21
both Daniel Hernandez and Arturo Hernandez were absent from trial and the
22
23
24
25
26
27
28
trial.
53
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-19, 8121-26,
8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95, 8299,
8315, 8321, 8324, 8327-28, 8331-33, 8336-38, 8345, 8353, 8360, 8369-70, 837981, 8383; and XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412, 8419, 8426,
8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
54
Hovey v. Superior Court, 28 Cal. 3d at 80.
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1
court was forced to recess in their absence. The trial court issued a body
2
attachment for Daniel Hernandez. (XXIX CT 8484.) On July 14, 1989, the court
3
quashed the attachment and ordered Daniel Hernandez to be present at all
4
hearings. (Id. at 8487.)
5
725. Arturo Hernandez was again absent from closing argument in the
6
guilt trial on July 17, 1989. The court issued a body attachment for Arturo
7
Hernandez and ordered it held to August 18, 1989. (XXIX CT 8490, 8628-29,
8
8632.)
9
726. On August 18, 1989, the trial court conducted a contempt hearing on
10
Arturo Hernandez and specifically found that Arturo Hernandez had failed to
11
maintain telephonic contact with the court as previously ordered. Arturo
12
Hernandez admitted that he had traveled to Europe on a honeymoon during trial
13
after informing the court he was in Mexico for his brother’s funeral. (214
14
RT 24609-11.) The court explicitly found Arturo Hernandez’s conduct
15
contemptuous and that he had abandoned Petitioner. (Id. at 24611-12.)
16
727. Arturo Hernandez offered a no contest plea and apologized to the
17
court. (214 RT 24613-14.) After considering Arturo Hernandez’s statement, the
18
trial court found Arturo Hernandez in contempt for failing “to notify the court by
19
phone each morning,” but withdrew its finding that counsel had abandoned
20
Petitioner.55 (Id. at 24614.)
21
728. On September 14, 1989, the trial court again found Arturo
22
Hernandez in contempt for failing to maintain contact with the court. (215
23
RT 24690-91.) The court sentenced Arturo Hernandez to serve twenty-four days
24
25
26
27
28
55
The court ordered Arturo Hernandez to pay a fine of $100. (214
RT 24615.)
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1
in jail or pay a $2,400 fine to be paid on or before September 29, 1989. The court
2
ordered Arturo Hernandez to serve one day in jail.56 (Id. at 24698-700.)
3
729. On February 21, 1989, during the prosecution’s case in chief, Daniel
4
Hernandez informed the court by telephone that he was ill and would be absent
5
from trial for one week. Hernandez sent his law clerk, Richard Salinas, to appear
6
at trial on Petitioner’s behalf. (152 RT 17574.)
7
730. On March 1, 1989, the court held a hearing concerning Daniel
8
Hernandez’s health. Daniel Hernandez submitted a letter from his physician
9
stating that he suffered from nervous exhaustion and would require an absence
10
from trial of four to six weeks to recuperate. (153 RT 17604-05.) Daniel
11
Hernandez explained that he was unable adequately to represent Petitioner –
12
could not “carry the load” – and needed yet another counsel to assist “in this
13
enormous trial.” (153 RT 17610-11.) The court found no legal cause to delay the
14
trial. (Id. at RT 17606, 17614-16.)
15
731. On September 27, 1989, the trial court permitted Petitioner to waive
16
presentation of any mitigation evidence at the penalty trial based on Daniel
17
Hernandez’s representation that “we have made a decision as a defense team and
18
decided [not to put on any evidence].” (217 RT 24775.)
19
732. Counsel’s lack of qualifications, failures to appear, and
20
incompetence were obvious to the trial judge throughout the proceedings.
21
Furthermore, it is clear that counsel’s deficits endangered the fairness of the
22
proceedings, and diminished the integrity of the legal profession. The trial court
23
erred in allowing Petitioner to stand trial on capital charges with such ineffective
24
representation.
25
26
27
28
56
Arturo Hernandez paid the fine of $2,400 on September 29, 1989.
(XXX CT 8903.)
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B.
The Trial Court Erred in Allowing Petitioner to Be Represented By
2
Counsel Who Suffered an Obvious Conflict of Interest
3
1.
4
5
A Defendant Cannot Insist on Being Represented By An
Attorney Who Suffers from a Conflict of Interest
733. When counsel suffers from a conflict of interest, especially one
6
arising out of the joint representation, the fairness of the trial process is
7
undermined. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed.
8
2d 426 (1978). For that reason, trial courts “confronted with and altered to
9
possible conflicts of interest must take adequate steps to ascertain whether the
10
conflict warrants separate counsel.” Id. at 160. Where an actual conflict of
11
interest exists, “there can be no doubt that it may decline a proffer of a waiver”
12
and insist on separate representation.” Id. at 162. This wide latitude to insist on
13
conflict-free counsel is allowed “not only in those rare cases where an actual
14
conflict may be demonstrated before trial, but in the more common cases where a
15
potential for conflict exists which may or may not burgeon into an actual conflict
16
as the trial progresses.” Wheat, 486 U.S. at 163; see also United States v.
17
Gonzalez-Lopez, 548 U.S. at 152 (defendant has no right to be represented by an
18
attorney with a conflict of interest.)
19
734. Likewise, the Supreme Court has held “whatever the full extent of
20
the Sixth Amendment’s protection of one’s right to retain counsel of his
21
choosing, that protection does not go beyond the individual’s right to spend his
22
own money to obtain the advice and assistance of ... counsel.” Walters v.
23
National Assn. of Radiation Survivors, 473 U.S. 305, 370, 105 S. Ct. 3180, 3215,
24
87 L. Ed. 2d 220 (1985) (Stevens, J., dissenting). That is, “a defendant has no
25
Sixth Amendment right to spend another person’s money for services rendered by
26
an attorney, even if those funds are the only way that that defendant will be able
27
to retain the attorney of his choice.” Caplin & Drysdale, Charted v. United
28
States, 491 U.S. 617, 626, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989).
246
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735. The California Supreme Court’s holding that Petitioner had a right to
2
insist on lawyers who suffered from a conflict of interest, and who were not being
3
paid by him, is contrary to clearly established Supreme Court law.
4
2.
Substitution
5
6
Counsel’s Conflict of Interest Was Apparent At The Time of
736. On October 22, 1985, Petitioner appeared in a closed in camera
7
hearing with Mr. Gallegos, Daniel and Arturo Hernandez. Petitioner indicated
8
that he wished to substitute the Hernandezes as counsel. Daniel Hernandez
9
informed the court that he had been retained by Petitioner and his family, and that
10
an official contract had been prepared and signed by the parties. When asked if
11
he had been paid for the representation, Daniel Hernandez said he was not
12
comfortable discussing that information with the court. (Sealed October 22, 1985
13
RT 2.)
14
15
737. When the court asked trial counsel for assurances that they had the
financial resources to litigate the case, Arturo Hernandez stated
16
the financial... area in this case has no bearing on my duties and my
17
abilities to appear in this case. I think that once we undertake the
18
case, we have the ethical duty to the court and to our client primarily
19
to assist him and give him effective assistance of counsel, as is his
20
constitutional right. I feel awkward in being asked that type of
21
question. Of course I’m going to be available for this court.
22
(Sealed October 22, 1985 RT 20.) He further stated “we have made arrangements
23
for associate counsel... [for] people to assist and all the resources are there. I
24
don’t see any problems with that at all, no matter how long it takes, if it takes, we
25
are anticipating at least two years.” (Id.)
26
738. Once the prosecution was excused from the room, Daniel Hernandez
27
informed the court that they had agreements with both Mr. Ramirez and his
28
family and that the family was responsible for payment of Petitioner’s defense.
247
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When asked what the family’s source was, Daniel Hernandez replied “I really
2
can’t comment on that. I am really not necessarily aware of that and I am not
3
necessarily anxious to discuss their finances at all.” (Sealed October 22, 1985
4
hearing, RT 30.) The court noted that Barraza has been on television soliciting
5
attorneys to take the case based upon fee arrangements from television, movie
6
and books rights. The trial court stated “if there is any thought of that being
7
involved, it is necessary for [the court] to know because there are potential
8
conflicts... which Mr. Ramirez can waive, but the court must be aware of them
9
and Mr. Ramirez must be aware of them.” (Id. at 31.) Daniel Hernandez replied
10
It is not really any of our business to know anything of where the
11
family gets its money....We have no interest. We have no contracts
12
that include those type of arrangements, we have had no
13
conversations or discussions with anyone concerning those type of
14
arrangements... It would be our ethical responsibility in our
15
perspective, in our eyes, to inform the court of all the developments
16
in those directions.
17
18
(Id.)
739. At a hearing later that day, the court stated that it was “concerned
19
about any agreement regarding any rights, book rights, life story rights...even
20
though that agreement may be between Mr. Ramirez’ family and Barazza.”
21
Arturo Hernandez clarified that he never said such a thing regarding Barraza,
22
repeating again that “we have no knowledge, whatsoever, of any [book or movie
23
deal] negotiations.” (Id. at 37).
24
740. After the court noted that television reports indicate that the family
25
has very limited financial resources available to them, the court sought asked
26
counsel “knowing that you may not be receiving funds or insufficient funds (sic)
27
to voer this type of case in the future, are you still willing to undertake this case,
28
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1
knowing that you will not be appointed by the court?” (Id. at 38). In a statement
2
that would follow him for the rest of the case, Arturo Hernandez replied
3
[W]e undertake this case knowingly and fully conscious of the
4
possibility that this case might extend beyond the means of the
5
family at this point. However, we are willing to undertake the case
6
under those circumstances anyway, and we are fully aware of the
7
tremendous amount of work that we are undertaking, but we have no
8
problems with that.... Although we are retained in this case, if that
9
case comes about, we are willing to do the rest of it pro bono
anyway.
10
11
12
(Id.)
741. Upon further questioning, it was revealed that Petitioner had not
13
signed a retainer agreement with the Hernandezes; rather, he had signed
14
substitution of counsel forms and it was Petitioner’s family who had signed a
15
written agreement. (Sealed October 22, 1985 RT 40). The court ultimately
16
ordered the Hernandezes to reduce Petitioner’s retainer agreement to writing so
17
that an independent attorney could review it. The motion to substitute counsel
18
was put over for two days. (XVII CT 4984-88).
19
742. On October 24, 1985, after denying attorney Gallegos’s motion for a
20
psychiatric evaluation of Petitioner, the trial court advised Mr. Ramirez that
21
“your attorneys have a contract with you and with your family, those two
22
contracts may at some point be in conflict... Do you understand that possibility
23
does exists?” Petitioner replied “it does exist but I feel there will be no conflict.”
24
(XVII CT 5006).
25
743. The court noted that the Hernandezes had previously called the
26
family their “client” and advised counsel that Petitioner was to have “prime
27
consideration.” Counsel were further instructed to inform the court “if at any
28
time there is the slightest possibility that a potential conflict might exist.” Arturo
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1
Hernandez assured the court that he understood the court’s directive and asserted
2
that they did not anticipate a conflict of interest, noting that they used their
3
standard retainer agreement which had been used in many cases. (XVII CT
4
5007-5008).
5
744. Thus it was clear at the time of substitution that Mr. Ramirez had
6
“chosen” counsel to which he had no right, i.e. counsel he could not pay for
7
himself. Caplin & Drysdale, Charted v. United States, 491 U.S. at 626.
8
Furthermore, it was clear that Arturo and Daniel Hernandez had joint loyalty to
9
both of their clients: Petitioner and the Ramirez family. Because of this,
10
Petitioner had no right to insist on being represented by the Hernandezes. The
11
court could have, and should have, required that Petitioner and his family be
12
represented by separate counsel. Wheat, 486 U.S. at 162. The California
13
Supreme Court’s holding that the trial court was bound to honor Petitioner’s
14
counsel of choice is contrary to clearly established federal law.
15
16
17
3.
Counsel’s Repeated Claims of Financial Hardship Should Have
Prompted Removal By The Trial Court
745. Even if the trial court was not adequately put on notice of counsel’s
18
conflict of interest at the time of substitution, the adverse affect on Petitioner’s
19
representation became clear later in the proceeding. Counsel repeatedly claimed
20
that they could not litigate the case properly or in a timely manner because their
21
third-party fee arrangement had resulted in the case being underfunded. On
22
several occasions, the court itself noted counsel’s ineffectiveness.
23
746. Even before trial began, it became apparent that counsel’s lack of
24
funding was causing unwarranted delay. Early on, Arturo Hernandez explained
25
that one of the reasons he had not filed a §1538.5 motion (suppression) was
26
because “Mr. Ramirez is an indigent defendant.... he doesn’t have the means or
27
the resources, as the People do, to maintain a pace that is required by the People.”
28
(19 RT 907). Failure to file timely motions became routine, causing the court to
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1
chastize trial counsel for their tardiness, (See, e.g., 26 RT 1855) and for raising
2
financial matters as grounds for delaying the case. (See, e.g., 41 RT 2933-40; 43
3
RT 3006-08.) The Hernandezes were informed that “financial reasons are not
4
reason really (sic) to continue this case. You owe [Mr. Ramirez] a duty of at least
5
warm zeal on this case, and of course, as officers of the court—this court, owe
6
prompt attention to this case.” (Id. at 3007.)
7
747. By May 1987, the Hernandezes had to close down their local offices,
8
telling the court “we’re broke. We had to move home [to San Jose].” (Sealed RT
9
May 4, 1987, 30A RT 2199.) Even the court’s appointment of another attorney,
10
Michael Carney, to assist in writing motions, did not improve the situation
11
because Daniel and Arturo Hernandez were always in San Jose working on other
12
cases and were unable to confer on Petitioner’s case. (Sealed September 23,
13
1987, 33A RT 2331).
14
748. During an unsuccessful attempt to get appointed by the court, Arturo
15
Hernandez explained the shortage of funding by saying that “the case originally
16
seemed something that was totally indefensible.... [now] we find the case has
17
turned out to be very defensible..... the monies we’ve agreed to with the family
18
are totally inadequate” to defend the case. (Sealed September 29, 1987 33B RT
19
2346.) With trial just one month way, Arturo Hernandez claimed that the
20
Ramirez family’s inability to pay would cause them “to give less than adequate
21
representation and render ineffective assistance of counsel to our client, because
22
we have to work and try to survive and maintain some sort of practice.”
23
(Id. at 2358.)
24
749. After trial began, Arturo Hernandez simply stopped appearing in
25
court. During Arturo Hernandez’s four-month absence between September 26,
26
1988, through January 23, 1989, Daniel Hernandez, who had no previous capital
27
litigation experience, conducted voir dire, including Hovey examination. (See
28
XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-12, 8115-19, 8121, 8123-26,
251
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1
8181-87, 8198, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286, 8294-95.) Arturo
2
Hernandez was also absent during other proceedings critical to Petitioner’s
3
defense, including the prosecution’s entire case-in-chief, and jury instruction
4
conferences.57
5
750. Eventually, he was only maintaining contact with the court by
6
telephone, and even then, he often failed to do so. (See 173 RT 20186). At one
7
point, Daniel Hernandez could not locate Arturo through relatives, and did not
8
know whether he was even in the country. (Sealed October 3, 1988 Vol. 96A RT
9
10144). “It’s crippling to me to have someone on board as co-counsel who can’t
10
function . . . it is almost better not to have one,” Daniel Hernandez told the court
11
in his request to relieve Arturo from the case. (Id. at 10153.)
12
751. In January 1989, Daniel Hernandez attempted to force the court into
13
giving him county funding, claiming that his representation of Petitioner would
14
suffer without additional money for the defense. During an in camera hearing,
15
the court accused him of extortion:
16
Mr. Hernandez, when you tell the court that if you don’t get
17
appointed you are going to withdraw, or if you don’t get appointed
18
you are going to do less than diligent work on this case, as you
19
appear to state in these motions, that is frightening to me because
20
that is extortion. And I will be honest with you, this court is not
21
going to be extorted.
22
(Sealed January 20, 1989, 140A RT 16005.)
23
24
25
26
27
28
57
See XXVIII CT 8087-88, 8094, 8098, 8101-02, 8106-13, 8115-19,
8121-26, 8181-87, 8198-99, 8203-04, 8206-08, 8259-63, 8273, 8284, 8286,
8294-95, 8299, 8315, 8321, 8324, 8327-28, 8331-33, 8336-39, 8341, 8353, 8360,
8369-70, 8379-81, 8383; XXIX CT 8384-85, 8391, 8393-97, 8399, 8408, 8412,
8419, 8426, 8429, 8434-39, 8442-47, 8449-51, 8462, 8476-79.
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1
752. The court also correctly discerned that counsel had previously lied at
2
the time of their substitution, noting, “you said, in effect, that you misrepresented
3
to Judge Soper your [financial] position for matters of expediency.” (Id. at
4
16006.) The court denied Daniel Hernandez’s request for appointment and stated
5
“this kind of representation from a member of the bar is something I simply never
6
even contemplated.” (Id. at 16007.)
7
753. When that tactic did not work, Daniel Hernandez claimed that the
8
stress of defending the case alone caused his health to suffer such that he could
9
not attend trial. On February 21, 1989, Daniel Hernandez failed to appear. He
10
telephoned the court to report that he was ill and would be absent for one week.
11
In a letter to the court, his physician stated: “I do not feel he is presently capable
12
of functioning effectively as a trial attorney. My estimate of additional time
13
required to recuperate would be four to six weeks.” (Ex. 11, Letter from John
14
Pace, M.D., regarding patient Daniel Hernandez, Esq., In a hearing on March 1,
15
1989, Daniel Hernandez explained that he was unable adequately to represent
16
Petitioner – could not “carry the load” – and needed yet another counsel to assist
17
“in this enormous trial.” (153 RT 17610-11.) The court found no legal cause to
18
delay the trial. (Id. RT 17606, 17614-16.)
19
754. The lack of funding also adversely affected counsel’s ability to
20
present defense witnesses. In June 1989, Daniel Hernandez claimed that he could
21
not comply with the court’s schedule regarding defense witnesses because he had
22
spent all of his money. Later, the court questioned how delaying the testimony
23
would change the situation, telling Daniel Herndandez “you are going to be in the
24
same boat, aren’t you? You are dead broke now. You are not eating.” (Sealed
25
RT June 26, 1989 199A RT 23267). Hernandez replied, “well I’m eating but I’m
26
not paying rent.” (Id.) When counsel could not get a continuance of the
27
testimony, Daniel Hernandez flatly told the court “I can’t do it.” (Id. at 23269.)
28
The then court accused Hernandez of attempting to create reversible error, to
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1
which counsel replied “I’ve been going without anything for myself for four
2
years and now I have to eat my pride again and say I’m broke, and even then you
3
shove it down my throat.” (Id. at 23270.)
4
755. The trial court’s failure to remove counsel once the effect of their
5
conflict of interest became clear violated Petitioner’s constitutional rights, as well
6
as the obligation of judges to ensure the fairness of criminal proceedings. United
7
States Supreme Court law allows trial courts to address conflicts of interest
8
whenever they become apparent, even in the late stages of a case. See Wood v.
9
Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)
10
(remanding for a hearing on counsel’s conflict of interest, even after the case had
11
reached the Supreme Court on a constitutional issue.) The California Supreme
12
Court’s holding that the trial court was bound to honor Petitioner’s choice of
13
counsel throughout the proceeding was contrary to clearly established Supreme
14
Court law.
15
756. The foregoing violations of Petitioner’s constitutional rights, taken
16
singly or in combination with the other errors alleged in the Petition, constitute
17
structural error and warrant the granting of this Petition without any
18
determination of whether the violations substantially affected or influenced the
19
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
20
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
21
doctrine applies to this claim, the foregoing constitutional violations, singly and
22
in combination with the other errors alleged in this Petition, so infected the
23
integrity of the proceedings that the error cannot be deemed harmless. The
24
foregoing violations of Petitioner’s rights had a substantial and injurious effect
25
or influence on Petitioner’s convictions and sentences, rendering them
26
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
27
637-38.
28
CLAIM 6:
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1
THE TRIAL COURT’S REFUSAL TO GRANT RAMIREZ’S
2
MOTION FOR A CHANGE OF VENUE AND TRIAL
3
COUNSEL’S FAILURE TO PRESENT RAMIREZ’S MOTION
4
FOR A CHANGE OF VENUE COMPETENTLY VIOLATED
5
MR. RAMIREZ’S CONSTITUTIONAL RIGHTS
6
757. Exhaustion of the claim: This claim was fairly presented to the
7
California Supreme Court in Section IV of the Opening Brief and in Section IX
8
of the June 2004 petition for writ of habeas corpus, although it includes
9
additional factual allegations. Petitioner will present the claim with the additional
10
factual allegations to the California Supreme Court in an exhaustion petition he
11
will file no later than March 17, 2009.
12
758. In support of this claim, Petitioner alleges the following facts,
13
among others to be presented after full discovery, investigation, adequate
14
funding, access to this Court’s subpoena power, and an evidentiary hearing.
15
759. Those facts and allegations set forth in the petition, declarations,
16
claims of constitutional violations, and the accompanying exhibits are
17
incorporated by reference as if fully set forth herein to avoid unnecessary
18
duplication of relevant facts.
19
760. Petitioner’s alleged crimes, arrest, and trial constituted one of the
20
most notorious criminal cases in Los Angeles history. By the time Petitioner was
21
arrested as the alleged “Night Stalker,” the Los Angeles public was in a state of
22
hysteria. The mass-panic in Los Angeles, the official view of Petitioner as guilty
23
of the murders unless proven innocent, and the public sentiment declaring victory
24
over the Night Stalker, were reported in hundreds of articles and television
25
broadcasts throughout Petitioner’s pre-trial and trial proceedings. The
26
unprecedented publicity surrounding Petitioner and the Night Stalker
27
phenomenon served to heighten the existing anxiety, fear, and terror collectively
28
felt by Los Angeles County.
255
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761. Petitioner’s counsel filed a motion for change of venue on July 21,
1
2
1986. (XXI CT 6263-82.) On November 3, 1986, the court began the change of
3
venue hearing. The prosecution filed its opposition on July 24, 1986. (Id.,
4
6313-17.) The motion was heard on November 17 and 26, 1986, December 1, 2,
5
8, 9, 10, 12, and 16, 1986, and January 6 and 9, 1987. (See XXII CT 6439, 6463,
6
6485-6, 6490-91, 6494, 6530, 6538, 6547.) The trial court denied the motion on
7
January 9, 1987, adding, “If I err, I am sure somebody will tell me.” (17 RT
8
856.)
9
762. Counsel spent five days presenting testimony from various expert
10
and lay witnesses who would demonstrate personal knowledge of the panic
11
created in the Los Angeles community because of the “Night Stalker”
12
phenomenon. The presentation included the following witnesses:
13
a.
Defense expert Dr. Paul Strand, who testified on December 8
14
and 10, 1986. Dr. Strand testified regarding a telephone
15
survey he conducted of a random sample of the jury-eligible
16
population of Los Angeles County who resided within a
17
twenty-mile radius of the courthouse. (See 11 RT 317-23.)
18
Of those who responded, 94.3% had heard of Petitioner’s
19
case, and 52.7% had specific recollections. (13 RT 440-45.)
20
51.7% believed Petitioner was responsible for the Night
21
Stalker murders. (Id. at 455.) Of those surveyed, only one
22
said Petitioner was not responsible for the killings. Only
23
34.7% of the respondents said they would need more
24
information to know if Petitioner was responsible for the
25
murders. (Id.)
26
b.
Patrick Kelly testified that sales of handguns and ammunition
27
in the gun shop where he worked in Alhambra, Los Angeles
28
County tripled starting about August 15, 1985. (14 RT
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1
634-38.) Many of the customers coming into the store were
2
women and couples saying they were buying guns because of
3
fear of the Night Stalker. (Id. at 639-42.) Gun sales dropped
4
off immediately following Petitioner’s arrest. (Id. at 640.)
5
c.
Captain Joseph Santoro, of the Monterey Park Police
6
Department, testified about the fears of residents. (Id. at 622.)
7
During the summer of 1985, the volunteer Neighborhood
8
Watch program about doubled. (Id. at 613-14.) The police
9
department set up a night watch program involving “block
10
captains, and there was about a hundred and fifty-seven of
11
them” who set up all-night citizen vigils. (Id. at 623.) The
12
program included giving out free dead bolts, and there was
13
even “a training program on how to dial 911 in the dark, so
14
that they would not have to make their position known.” (Id.
15
at 619, 626.)
16
d.
Los Angeles Police Officer, George Willoth, testified that in
17
the San Fernando Valley, an area quite far from where the
18
Night Stalker crimes allegedly occured, calls on the night shift
19
during August 1985 went up from twenty to thirty per night,
20
“probably to 80 to a hundred calls a night, easy.” (15 RT 658,
21
661.) “Most citizens were concerned about their safety in
22
their residence and what their rights were and how to protect
23
themselves . . . . They were in fear.” (Id. at 665.)
24
e.
Defense expert psychiatrist Dr. Paul Blair testified regarding
25
the general sense of panic in the metropolitan Los Angeles
26
area. (14 RT 568, 574.) Although Dr. Blair’s direct
27
observations were in Orange County, he opined that fear and
28
tension would be greater geographically closer to the
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1
incidents, so would likely be greater in Los Angeles than in
2
Orange County. (Id. at 583.) In Dr. Blair’s opinion, “[P]eople
3
were very afraid . . . . [S]ome people were semi-panicky.
4
Other newspaper articles were reporting that people were
5
buying weapons in large numbers for the purpose of
6
self-protection.” (Id. at 574.)
7
f.
Dr. Blair testified about the special role that the randomness
8
of the murders and assaults play in increasing that fear: “The
9
concept of randomness does cause an increased amount of
10
fear . . . like a fear of the unknown, a fear of the dark[.] (Id.)
11
“The fact that someone was getting into these homes on a
12
regular basis without a whole lot of knowledge about who was
13
doing this or where this person was going to come to next, did
14
play a role [in the fear generated by the Night Stalker.]” (Id.
15
at 576.)
16
763. On November 26 and December 1, 1986, defense counsel played
17
five video-tapes: four from “Channel 11” local news and one from the “NBC”
18
local affiliate in open court. (9 RT 249-275.) Throughout the presentation of the
19
tapes, however, the court repeated its sentiment that it did not “feel that it would
20
be productive to sit through all of these tapes.” (Id. at 256.) After continuing to
21
admonish trial counsel to hurry through the showing of the video-tapes, the court
22
finally halted the video-tape viewing, citing “a responsibility to control the
23
amount of evidence to come in on any subject. This is cumulative.” (Id. at 270.)
24
Along with the Channel 11 video, trial counsel submitted scripts of the
25
introductory anchor-person’s comments during the broadcasts. Eventually, all of
26
the video-cassettes and Channel 11 scripts were admitted into evidence. (16 RT
27
767, 771, 778-80.)
28
258
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1
764. In addition to broadcast news-tapes, the Court admitted into
2
evidence various articles from the La Opinion, L.A. Times, Orange County
3
Register, Daily News, Pacific Citizen, and Dong-A; Dr. Strand’s survey; orders
4
issued by the Los Angeles Board of Supervisors concerning rewards offered in
5
the Night Stalker case; and a Los Angeles Herald Examiner circulation report.
6
(See Id. at 767, 770, 773, 776, 778-81, 784, 786-89.)
7
765. Petitioner’s Counsel was unsuccessful in admitting numerous
8
articles from the L.A. Times, San Gabriel Valley Tribune, Herald Examiner,
9
Press Telegram, Noticias Del Mundo, Daily Journal, Pomona Progress Bulletin,
10
Palisidian Post, the UPI News Wire, Pasadena Star News, Arcadia Tribune, Rafu
11
Shimpu, Torrance Daily Breeze, Monrovia news Post, Whittier Daily News,
12
Duartean Dispatch, Glendale News Press, and the Eagle Rock Sentinel. (See Id.
13
at 728, 744, 750, 754, 756-61, 764-65.)
14
a.
Because of counsel’s failure to authenticate or lay a
15
foundation for the articles, Petitioner requested that the trial
16
court take judicial notice of L.A. Times articles regarding “the
17
general feeling in the community of fear and of apprehension
18
of the so-called Night Stalker suspect.” (Id. at 710-11.)
19
Arguing that the defense was in effect asking the court to rely
20
upon hearsay under the guise of “judicial notice,” the
21
prosecutor objected on those grounds and the court sustained
22
the objection. (Id.) The court stated that “to the extent that
23
you have made a request that I infer from these articles and
24
news media things that the public agreed or responded to these
25
articles or items, that request is denied.” (Id. at 714.) The
26
court ruled that because Petitioner’s counsel failed to properly
27
lay foundation for, and authenticate the records, it excluded
28
the news reports. (See Id. at 742-54 (discussion and ruling.))
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1
b.
The trial court dismissed the remaining papers similarly for
2
lack of authentication and foundation. The court repeatedly
3
asserted, however, that it was aware of the evidence in the
4
articles and of their publication:
5
(1)
“I do notice . . . that I have seen some of these articles
6
in the Times . . . and I will conclude that they have
7
basically been published because I have seen some of
8
them and I have read most of them.” (Id. at 754.)
9
(2)
“Again, I have deny their admission. However, I am
10
aware of the fact there were numerous articles in the
11
Herald Examiner and that there was full coverage of
12
this case by that newspaper. I don’t read the Herald
13
with the regularity that I do the Times, but I do read it
14
on occasion, and so I am aware that it did give full
15
coverage as a newspaper in this community.” (Id. at
16
756.)
17
(3)
I am going to deny admission of [Noticia Del Mundo].
18
However, I will note that it does appear to be Spanish
19
language reporting of the case and there is an English
20
translation here.” (Id. at 758.)
21
(4)
“But again I note that there is evidence that [the
22
Pomona Progress Bulletin] have covered the incidents.”
23
(Id. at 759.)
24
(5)
coverage by the Palisidian Post.” (Id. at 760.)
25
26
It will be sustained, but the court will again note the
(6)
“But again, gentlemen, I do have knowledge and I will
27
accept the principle that all of the -- virtually all of the
28
local news media, including the small outlet media,
260
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1
local newspapers, ethnic-oriented publications, various
2
language publications, have covered this case, if that is
3
the point you are trying to make.” (Id. at 765.)
4
766. Following argument by counsel, the trial court denied the motion for
5
change of venue on January 9, 1987. The court was “not convinced by the survey
6
that the survey shows that the pretrial publicity in this case has created an
7
atmosphere where [Petitioner] cannot receive a fair trial.” (17 RT 853.) The
8
court found there was not a showing of a reasonable likelihood that Petitioner
9
could not have a fair trial in view of the size and diversity of the jury pool. (Id. at
10
11
854-55.)
767. The court conceded, however, that “I would characterize the news
12
coverage of this case as saturation, as much as they possibly can give. And I
13
would imagine that the reporters’ editors have told them ‘Go get everything you
14
can and cover the case every day.’” (Id. at 806.) The trial court stressed: “I
15
don’t think it is possible that much more publicity could have been given to this
16
case. I can’t imagine how.” (Id. at 846.)
17
768. In denying Petitioner’s motion for change of venue, the court relied
18
heavily on the size of potential jury pool in Los Angeles County: “You are
19
talking about what I think is the largest jury pool of any jurisdiction in the
20
country.” (Id. at 854.) “[T]his county is so large and the people here are so
21
sophisticated and so diverse that I just don’t think you can say that you can’t have
22
a fair trial in this county.” (Id. at 855.) “You could call in 2,000 jurors to talk to
23
them on voir dire in this case, and there is no place else that you can do that.’”
24
(Id. at 856.)
25
26
27
28
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A.
The Trial Court Erred in Failing to Grant a Change of Venue
2
769. The presumption of innocence and an impartial tribunal are essential
3
aspects of a fair trial. Irwin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed.
4
2d 751 (1961) (“In essence, the right to jury trial guarantees to the criminally
5
accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to
6
accord an accused a fair hearing violates even the minimal standards of due
7
process.”) (citing In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682
8
(1948)). Pretrial publicity poses a grave threat to a fair trial by flipping the
9
presumption of innocence and imbedding bias into the jury pool. A recent study
10
concluded that “subjects exposed to negative [pretrial publicity] were
11
significantly more likely to judge the defendant guilty compared to subjects
12
exposed to less or no [pretrial publicity].” (Ex. 75, E. Bronson Dec., at ¶ 20.)
13
Pretrial publicity is so dangerous because it creates a story or narrative that
14
becomes the prism through which all the facts, including evidence at trial, is
15
viewed. (Id., ¶¶ 21-23.) This is an even greater problem where, as in Petitioner’s
16
case, there is a significant delay until trial (in this case, a nearly three-year delay.)
17
With delay, peoples’ memories tend to become distorted, and they tend to be
18
unable to recall events or facts that are inconsistent with the storyline they have
19
been presented; molding facts they do have to be consistent with that storyline.
20
(Id., ¶¶ 24-25.) This is especially troubling where, as in Petitioner’s case, errors
21
during voir dire uncovering this hidden bias.
22
770. Federal law recognizes that a change of venue is required when the
23
defendant shows either “presumed prejudice” or “actual prejudice” resulting from
24
pretrial publicity. Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d
25
589 (1975). “Presumed prejudice” appears in rare cases where the community
26
was saturated with media publicity about the case. Ainsworth v. Calderon, 138
27
F.3d 787, 795 (9th Cir. 1998). A Petitioner has shown presumed prejudice where
28
(1) there is a “barrage of inflammatory publicity immediately prior to trial,
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1
amounting to a huge . . . wave of public passion;” (2) “news accounts were
2
primarily factual because such accounts tend to be less inflammatory than
3
editorials or cartoons;” and (3) “media accounts contained inflammatory or
4
prejudicial material not admissible at trial.” Daniels v. Woodford, 428 F.3d 1181,
5
1211 (9th Cir. 2005) (internal citations omitted).
6
771. “Actual prejudice” is established when the record of voir dire shows
7
the jurors exhibited actual partiality or hostility that could not be laid aside.
8
Ainsworth, 138 F.3d at 795. This type of prejudice may be shown by the seating
9
of a juror who had preconceived opinions about guilt that could not be set aside
10
(id. at 796), or by the fact that an inordinate number of panelists admitted to
11
disqualifying prejudicial opinions during voir dire. Id.
12
772. In California, a “denial of a motion for change of venue will be
13
upheld on appeal unless the record shows both that it was reasonably likely that a
14
fair trial could not be had at the time the motion was made” and that it was
15
“reasonably likely a fair trial was in fact had.” People v. Massie, 19 Cal. 4th 550,
16
578, 967 P.2d 29, 79 Cal. Rptr. 2d 816 (1998). The California Supreme Court
17
has not reversed a single appeal based on venue since 1989, a string of 53
18
consecutive cases. (Ex. 75, E. Bronson Dec., ¶ 28.) The factors California courts
19
use to assess the necessity of a change of venue are the (1) nature and extent of
20
the publicity, (2) nature and gravity of the crime, (3) status of the victim(s) in the
21
community, (4) status of the defendant in the community, and (5) the size and
22
nature of the community. See People v. Massie, 19 Cal. 4th at 578; Williams v.
23
Superior Court, 34 Cal. 3d 584, 588, 668 P.2d 799, 194 Cal. Rptr. 492 (1983).
24
773. California’s five-factor inquiry combined with prejudice requirement
25
places a higher burden on a petitioner to prove the necessity of a change of venue
26
than the federal constitutional standard. The five California requirements for a
27
necessary change of venue inform and subsume the three federal factors for
28
finding presumed prejudice in the federal standard. Petitioner is entitled to de
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1
novo review as the California Supreme Court and trial court unreasonably applied
2
clearly established federal law. Petitioner is also entitled to de novo review for
3
the ineffective assitance of counsel claims and to the extent the California
4
Supreme Court did not address the merits of Petitioner’s federal claim.
5
774. When assessing these factors, California courts rely on three types of
6
evidence: (1) “qualified public opinion surveys[,]” (2) “opinion testimony
7
offered by individuals,” or (3) the court’s “own evaluation of the nature,
8
frequency, and timing of the material involved [i.e. a content analysis of the
9
media].” Main v. Superior Court of Mendocino County, 68 Cal. 2d 375, 383, 438
10
P.2d 372, 66 Cal. Rptr. 724 (1968) (citing the American Bar Association Project
11
on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and
12
Free Press (1966)).
13
775. With all three types of evidence before it, Petitioner’s trial court
14
erred in violation of Petitioner’s Fifth, Sixth, Eighth, and Fourteenth Amendment
15
rights by denying a change of venue. As shown below, the trial court’s ruling ran
16
afoul of both the federal and state factors considered when requiring a change of
17
venue.
18
1.
Extent of Publicity
19
776. The extent of publicity is the first part of the “Nature and Extent”
20
category of California’s venue analysis. It is also relevant in considering the
21
federal standard to find a “barrage” of publicity “amounting . . . to a huge wave
22
of public passion.” Ainsworth, 138 F.3d at 795.
23
777. The extent of coverage in Petitioner’s case was extraordinary and
24
unprecedented. As the trial court conceded, media coverage reached “saturation”
25
levels. (17 RT 806.) The trial court repeatedly made a record that it was
26
considering the vast number of articles, despite the fact counsel failed to admit
27
the actual articles themselves. (See Infra at ¶ 6.b.)
28
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1
778. Indeed, Petitioner’s current counsel were able to collect 903 articles
2
written about the case from the beginning of the Night Stalker murders through
3
September 1, 1989. (Ex. 75, E. Bronson Dec., ¶ 38.) This included 211 articles
4
from the L.A. Times, 197 articles from the Los Angeles Herald Examiner, 120
5
articles from the Los Angeles Daily News, 113 articles from the La Opinion, 108
6
articles from the Los Angeles Daily Breeze, and 154 articles from other smaller
7
local newspapers. (Id.) This number does not include additional articles
8
submitted to the trial court from newspapers with less circulation. (See 16 RT
9
779.) Further, among just three major Los Angeles newspapers, 167 articles were
10
11
written about Petitioner during his trial. (Ex. 78, Articles during trial.)
779. The enormity of these numbers become clear when comparing it to
12
other cases. Dr. Edward Bronson, a social scientist and venue expert, has
13
testified in one-hundred twenty trial cases over the course of twenty-five years.
14
Additionally, he has recommended against a need for a change of venue in over
15
one hundred other cases. In the one-hundred and twenty cases Dr. Bronson has
16
testified in, the median number of articles was 91.5. (Ex. 75, E. Bronson Dec., ¶
17
40.) Among Dr. Bronson’s cases with fewer than ninety-two articles where the
18
court reached the venue issue (fifty-five cases), the court granted a change of
19
venue 49.1% of the time. (Id.)
20
780. Dr. Bronson has worked on such high-profile cases as the Oklahoma
21
City Bombing cases (both the separate federal and state proceedings), the Enron
22
case (defendants Skilling and Lay), and the cases against the Allstate Insurance
23
Company arising from Hurricane Katrina. Of all of the 120 cases Dr. Bronson
24
has been involved with, Petitioner’s case “is approximately 10 times as great as
25
the median number and one of the very highest I have ever dealt with.” (Id.)
26
781. Dr. Bronson noted that out of the ninety-two California venue cases,
27
forty-one mentioned the number of articles, with some including radio and/or
28
televison coverage as well. (Ex. 75, E. Bronson Dec., ¶ 41.) The extent of
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publicity in Petitioner’s case, based solely on quantifying newspaper articles,
2
substantially exceeds every one of those forty-one California cases. (Id.)
3
782. The extent of coverage in the L.A. Times alone58 weighed heavily in
4
favor of a change of venue:
5
a.
In the Times alone, there were 211 articles published on the
6
“Night Stalker” or Petitioner between August 13, 1985 and
7
August 11, 1988.
8
b.
Of the 211 articles in the Times, 97 were either on the front
9
page of the entire paper or on the front page of an interior
10
section -- increasing the likelihood the article would have
11
been read by prospective jurors. (Ex. 75, E. Bronson Dec., ¶
12
48.)
13
c.
There were 97 pictures accompanying the articles, both
14
increasing the article readership and in some instances the
15
level of potential prejudice. (Id., ¶ 49.)
16
783. Further evidencing the vast extent of the media saturation, the
17
circulation data for five of the largest Los Angeles County newspapers in 1985
18
show news-media reaching millions. 1985 audit reports from the Audit Bureau
19
of Circulations (“ABC”) showed copies of five Sunday newspapers having a
20
combined circulation of 1, 957,23659. (Ex. 77, ABC Circulation Reports.) These
21
22
23
24
25
26
27
28
58
The trial court stated it had seen “most” of the articles published in the
L.A. Times and would consider that in its venue determination. (See, e.g., 16 RT
754, 756.) Additionally, it was and is the newspaper with the widest circulation
in the Los Angeles area.
59
The Los Angeles Times had a circulation of 1,314,542; the Los Angeles
Herald Examiner had a circulation of 214, 705; the Los Angeles Daily News had
a circulation of 162,360; the Daily Breeze had a circulation of 124, 576; and the
Los Angeles Press-Telegram had a circulation of 141,053. (Ex. 77, ABC
Circulation Reports; Ex. 75, E. Bronson Dec., Table 3.)
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circulation numbers are more pronounced when considering there are an average
2
of 2.4 or more readers for each newspaper. (Ex. 75, E. Bronson Dec., ¶ 51.)
3
784. The trial court erred in dismissing the massive saturation of publicity
4
surrounding Petitioner’s case. To the extent the court was unaware of just how
5
immense the coverage was, Petitioner’s counsel was grossly and prejudicially
6
ineffective for failing to authenticate hundreds of articles that would have shed
7
light on the extent of publicity.
8
2.
Nature of Publicity
9
785. Examining the nature of the publicity is perhaps the trial court’s
10
most important duty in assessing the prejudice of pretrial publicity. It is during
11
this analysis that a trial court can assess to what degree the media was
12
inflammatory or whether there has been prejudicial material publicized in the
13
media that was not admissible at trial. See Daniels, 428 F.3d at 1211. (See also
14
Bronson Dec. ¶¶ 55-58 (discussing hierarchy of prejudice used in content-
15
analysis).)
16
786. The trial court had ample evidence of prejudicial publicity before it,
17
including copies of L.A. Times articles from August 9, 1985 through May 27,
18
1986 admitted as an exhibit during the venue motion, (See Def. Ex. FF in support
19
of motion for change of venue.), its own knowledge of “most” of the additional
20
L.A. Times articles not admitted, a sampling of other local newspapers, hours of
21
video footage of local broadcast footage, and anchor-scripts from a broadcast
22
channel.
23
787. The trial court failed to acknowledge the inflammatory and
24
prejudicial nature of the prejudicial publicity. The trial court admitted to reading
25
“most” of the L.A. Times articles and admitted multiple L.A. Times articles during
26
the motion. (Def. Ex. FF in support of motion for change of venue.) Therefore,
27
28
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Dr. Bronson conducted a content-analysis of only a statistical-sampling60 of the
2
L.A. Times newspapers published through August of 1988. (Ex. 75, E. Bronson
3
Dec., ¶ 59.) Even with the limited articles reviewed, Dr. Bronson’s analysis
4
shows the nature of the publicity weighed overwhelmingly in favor of granting a
5
change of venue. Further, his analysis, when combined with the extent of the
6
publicity, demonstrates a “barrage of inflammatory publicity” containing
7
prejudicial material, much of which was inadmissible at trial. See Daniels, 428
8
F.3d at 1211.
9
788. Inflammatory Material from the Times: A review of the L.A. Times
10
showed extremely prejudicial and inflammatory language used to describe and
11
characterize Petitioner and the “Night Stalker” crimes:
12
a.
“Night Stalker” or “Stalker” was referred to 158 times, 16
13
times in the headline. Additional monikers such as “Valley
14
Invader,” Valley Intruder,” “L.A. Intruder,” “Fearsome
15
Intruder,” and “Walk-in Killer” were used repeatedly. (Ex.
16
75, E. Bronson Dec., ¶ 65.)
17
b.
“Jack the Ripper” was mentioned as scrawled on a wall, (Ex.
18
76, L.A. Times Articles Reviewed by Dr. Bronson, A-12), and
19
“Jack the Knife” was mentioned as scrawled on lipstick. (Id.,
20
A-20; Ex. 75, E. Bronson Dec., ¶ 65.)
21
c.
Repeated and detailed allusions to Satan and Satan worship
22
were included in articles about Petitioner. Direct quotations in
23
the L.A. Times alone included but were not limited to the
24
following:
25
26
27
60
28
articles.
Every fourth article, or one-quarter of the actual amount of L.A. Times
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(1)
“Devil Worshiper” (Ex. 76, L.A. Times Articles
Reviewed by Dr. Bronson, A-20);
2
3
(2)
“Diabolical” (Id., A-4);
4
(3)
“Satan Worship” (Id., A-36);
5
(4)
“Satanic Cult” (Id., A-20);
6
(5)
“Satanism;” (Id., A-36);
7
(6)
“Satanic Overtones;” (Id., A-40)
8
(7)
“Satanic” (Id., A-184)
9
(8)
“Satanic rituals” (Id., A-40);
10
(9)
“Satanic activities” (Id., A-40)
11
(10) “Shouted ‘hail Satan!’ as he was being led from the
12
courtroom’ (Id., A-80)
13
(11) self-proclaimed devil-worshiper” (Id., A-168)
14
(12) “Ramirez flashed a pentagram inscribed on his palm to
15
16
17
the courtroom audience;” (Id., A-124)
(13) “pentagrams drawn on in Ramirez’s courtroom holding
cell” (Id., A-124)
18
(14) “pentagrams discovered” (Id., A-20, 36, 124)
19
(15) “stalker drew pentagrams on the walls” (Id., A-40)
20
(16) “spray-painted pentagrams on walls of victims’ homes”
21
(Id., A-20)
22
(17) “pentagrams drawn in lipstick” (Id., A-124)
23
(18) “He sent a postcard with a picture of a scorpion, a
24
drawing of a pentagram and a threatening poem” (Id.,
25
A-148)
26
(19) “At House hearing regarding alleged pornography in
27
rock music, panel was told by an expert about AC/DC,
28
‘one of their fans, I’m sure you know, is the accused
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Night Stalker,’ referring to serial murder suspect
2
Ricahrd Ramirez” (Id., A-56.)
(20) “The music has been called satanic that reportedly
3
4
obsessed Richard Ramirez, the man suspected of the
5
‘Night Stalker’ killings.” (Id., A-184; Ex. 75, E.
6
Bronson Dec., ¶ 66.)
7
d.
Petitioner was characterized as a “vicious serial killer,” (Ex.
8
76, L.A. Times Articles Reviewed by Dr. Bronson, A-12), a
9
“serial killer loose” (id., A-24, 40), and a feared serial killer.”
(Id., 148.)
10
11
e.
Even more inflammatory than language used when describing
12
Petitioner, was the inflammatory characterization of the
13
crimes:
14
(1)
“A trail of death and destruction” (Id., A-64);
15
(2)
“atrocities” (Id., A-20);
16
(3)
“terrible trauma” (Id., A-76);
17
(4)
“Spread terror,” “terrorized,” “terrified California
18
residents,” “night of terror,” “really terrible.” (Id., A-20,
19
28, 80, 96, 140);
20
(5)
“Bloody rampage” and “savage assault.” (Id.,. A-40);
21
(6)
“seven month crime spree. (Id., A-28, 196, 204);
22
(7)
“string of slayings, rapes and attacks” (Id., A-96);
23
(8)
“string of sadistic nighttime mudrers” (Id., A-208);
24
(9)
“More horrendous than (the Hillside Strangler)” (Id.,
25
A-4, 40);
26
(10) “gruesome” (Id., A-100, 124, 128);
27
(11) “grisly details,” “grisly attacks, “grisly series,” “grisly
28
series of attacks” (Id., A-128, 148, 180, 188);
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(12) “gory” (Id., A-128);
2
(13) “Heinous” (Id., A-20);
3
(14) “A trail of violence” (Id., A-40);
4
(15) “Brutal,” “brutalized,” “brutality” (Id., A-20, 40, 48,
5
6
124.)
789. Inflammatory Material in Television Broadcasts. In addition to the
7
Times articles reviewed by Dr. Bronson, the Channel 11 broadcast scripts
8
admitted during the venue motion show Petitioner’s jury pool was exposed to
9
even more inflammatory and prejudicial publicity through television. The
10
exposure of the public to television news was overwhelming. According to Dr.
11
Stand’s survey61, admitted during the venue motion, “33.3 percent said they
12
watch a local television news program from one to six times a week day,” and
13
“64 percent say they watch a local television news program every day. The mean
14
number of days that people watch a local television news program is 5.42.” (13
15
RT 460.) In other words, 97% watched televised news at least once per week,
16
and the average exposure was more than five days per week. Just a small
17
sampling of the inflammatory content in the Channel 11 scripts reveal shockingly
18
inflammatory statements about Petitioner and his alleged crimes:
19
a.
20
“since the Night Stalker has been on his rampage . . .” (Ex. 79,
Channel 11 scripts, p. 2340);
21
b.
22
“leading to the capture of the Night Stalker . . . the man who
has terrorized and brutalized residents . . .” (Id., p. 2345);
23
c.
24
“They call him the Night Stalker . . . and he’s hit again!” (Id.,
p. 2414);
25
26
61
27
28
The methodology Dr. Strand’s survey and Dr. Strand’s qualifications
are discussed in Dr. Bronson’s declaration. (Ex. 75, E. Bronson Dec., ¶¶ 138150.)
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d.
widespread fear and terror in the southland” (Id.);
2
3
e.
“Now people wait and wonder . . . where the Night Stalker
will hit next!” (Id., p. 2419);
4
5
“Not since the Hillside Strangler has a killer created such
f.
“either you close and lock your doors . . . or you leave
6
yourself vulnerable to the dreaded Night Stalker.” (Id., p.
7
2421);
8
g.
stalker [sic] . . .” (Id., p. 2499.)
9
10
“police say the trail of death left by the man call[ed] the nite
h.
These were only small portion of the countless examples of
11
inflammatory and emotionally-charged language read on the
12
air used to describe Petitioner and the Night Stalker crimes,
13
and were taken from only one of the many local television
14
stations. (See Id.)
15
790. Inadmissible Material in the Times: The Times articles randomly
16
sampled by Dr. Bronson also contain multiple reports of crimes for which
17
Petitioner ultimately was not charged during the Los Angeles trial. Media reports
18
of evidence or activities not admissible at trial are especially prejudicial to a
19
prospective jury. Not only will prospective jurors be told that certain acts or facts
20
are linked to a defendant, they will also be inclined to think the defendant is
21
deliberately hiding those facts when they never come out during the trial. A jury
22
may therefore weigh uncharged and even untrue crimes when assessing the guilt
23
or punishment for a defendant. For these reasons, the federal courts regard
24
publicity of inadmissible material as a factor weighing in favor of presuming
25
prejudice. See Daniels, 428 F.3d at 1211; Ainsworth, 138 F.3d at 795. The
26
publicity in Petitioner’s case contained multiple stories and accounts of facts that
27
Petitioner’s jury was never entitled to hear in the courtroom:
28
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1
a.
After a judge ruled an “8-year-old Eagle Rock rape victim
2
must testify in open court, the prosecutor . . . said the girl will
3
not take the witness stand and that no evidence on the incident
4
is likely to be presented.” (Ex. 76, L.A. Times Articles
5
Reviewed by Dr. Bronson, at p. A-120);
6
b.
“. . . the decision will not have a negative impact on the
7
overall case against Ramirez even if the charges concerning
8
the March, 1985, incident are dropped.” -- which they
9
eventually were. (Id., p. A-120.)
10
c.
Many other articles reported on Petitioner’s alleged
11
involvement in murders committed in San Francisco. At least
12
one article examined by Dr. Bronson quoted the Sheriff saying
13
the San Francisco murder is linked to the “Valley Intruder.”
14
(Id., p. A-8.) Still others referred to ballistic tests and
15
statements by officials, including the mayor of San Francisco,
16
tying the “Night Stalker” to the San Francisco crimes. (See
17
Id., pp. A-20, 80, 12.)
18
d.
One Times article reported Petitioner’s “many previous
19
arrests” with a “history” of drug offenses and driving stolen
20
vehicles, as well as having Petitioner having “several aliases.”
21
(Id., p. A-20.)
22
791. Inadmissible Material in Television Media: In addition to the
23
references of inadmissible material in the Times articles reviewed by Dr.
24
Bronson, the trial court was shown repeated television broadcasts that portrayed
25
Petitioner as a child molester and rapist. The scripts from the anchor-persons
26
narrating these broadcasts were admitted at trial and tell of officials implicating
27
Petitioner in multiple child-sex crimes using dramatic and inflammatory
28
language. As stated above, this television publicity posed an even greater danger
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1
to prejudicing Petitioner’s jury pool as the vast majority of prospective jurors
2
watched broadcast news. A small sampling of quotations of the Channel 11
3
script, admitted as evidence during the motion, include the following reports:
4
a.
“The tale of two cities continues . . . as an alleged sex offender
5
comes back to Santa Monica” (Ex. 79, Channel 11 scripts, at
6
p. 2313);
7
b.
“In addition to the string of Night Stalker attacks against
8
adults . . . it now appears this violent man may also be a child
9
molester.” (Id., p. 2436);
10
c.
“the investigating task force is now attempting to link recent
11
descriptions with that of a man suspected of four child
12
abductions earlier this year.” “In those cases, the children
13
were molested by the suspect, then released near freeways.
14
Asked if the description of the kidnap suspect matches that of
15
the serial killer, police say ‘close enough.’” (Id., pp. 2438-
16
39);
17
d.
“the so-called Night Stalker’s reign of terror might have
18
begun as early as last February. As they probe possible ties to
19
the February abduction of a Montebello schoolgirl, authorities
20
have issued a new composite drawing of the suspected killer.”
21
(Id., p. 2443);
22
e.
“More than a third of his murder victims have been Asian . . .
23
as well as at least one of the child molestation victims.” (Id.,
24
p. 2451);
25
f.
“the suspect . . .shown in a composite sketch drawn from
26
survivor’s descriptions . . . may be responsible for half a
27
dozen murders and dozens of rapes and assaults in the San
28
Gabriel and San Fernando valleys” (Id., p. 2324);
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1
g.
“The stalker task force is now exploring a possible link
2
between the latest adult attacks and a series of earlier child
3
molestations” (Id., p. 2444);
4
h.
the ‘Night Stalker’ may be growing.” (Id., p. 2612);
5
6
“The number of molestation and kidnaping cases attributed to
i.
“some of the charges against accused Night Stalker Richard
7
Ramirez will be dropped. Those charges deal with a case of
8
child molestation. And as Channel 11’s Tony Valdez Reports
9
. . . they depend on the testimony of one eight-year-old girl.”
10
11
(Id., p. 2724.)
792. The United States Supreme Court found presumed prejudice and
12
reversible error for failure to grant a venue change for publicity of inadmissible
13
material far less inflammatory than Petitioner’s case: “Much of the material
14
printed or broadcast during the trial was never heard from the witness stand such
15
as the charges that Sheppard had purposely impeded the murder investigation . . .
16
that he had sexual relations with numerous women” and many other character-
17
damning allegations. Sheppard v. Maxwell, 384 U.S. 333, 356-57, 86 S. Ct.
18
1507, 16 L. Ed.2d 600 (1966). The Eleventh Circuit found presumed prejudice
19
where just one article “noted the possibility that Coleman and his co-indictees
20
might have been responsible for the murder of a Pennsylvania youth . . . . The
21
article quoted . . . the director of the Georgia Department of Investigation, as
22
saying that the circumstantial evidence” was overpowering. Coleman v. Kemp,
23
778 F.2d 1487, 1491 (11th Cir. 1985). In Petitioner’s case, countless articles and
24
television broadcasts warned the Los Angeles Community that Petitioner was a
25
sexual predator, and child molester. Petitioner was never charged with child
26
molestation. Rather, the allegations resulted from overjealous police
27
investigation and journalism, not reliable facts. Nevertheless, the publicity led to
28
the pool of Petitioner’s prospective jurors getting a barrage of false and
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1
inadmissible information that imprinted a narrative of Petitioner as a threat not
2
just to adults but innocent children as well.
3
793. The publicity in Petitioner’s case went from inflammatory reports of
4
the fear, panic, and terror of the Los Angeles community to the collective sigh of
5
relief the Los Angeles community felt when Petitioner was taken into custody.
6
This led to local officials and the media covering the case presuming Petitioner’s
7
guilt at the outset. This presumption of guilt prejudiced Petitioner’s jury pool to
8
an extent that required a change of venue for a chance at a fair trial. In examining
9
only the L.A. Times, Dr. Bronson noted:
10
The entire tenor of the coverage reflects the view that Mr. Ramirez
11
was guilty and deserving of death, even if the stories often included
12
de regueur terms such as ‘alleged’ or ‘charged.’ One reading
13
through these articles is left with an abiding belief that the writers
14
are convinced of Ramirez’s guilt. This is not to say that the
15
reporters have written their stories unprofessionally -- it is to say that
16
their personal exposure to what happened and how so many people
17
over so long a period were so badly affected caused them to react as
18
most people would. And the way local jurors would if the trial is not
19
moved.
20
(Ex. 75, E. Bronson Dec., ¶ 74.) This presumption was exacerbated by media
21
accounts of Petitioner’s own statements, local officials giving statements
22
regarding Petitioner’s capture, and other statements and evidence against
23
Petitioner inferring his guilt:
24
a.
Dr. Bronson found multiple instances in his analysis of the
25
L.A. Times where articles quote Petitioner’s statements. The
26
Times reported that Petitioner boasted that he was a “super-
27
criminal” (Ex. 76, L.A. Times Articles Reviewed by Dr.
28
Bronson, A-20) who killed people because he enjoyed
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1
watching them die (Id., p. A-2.) Petitioner was quoted as
2
saying he “enjoyed killing people” and “I love to kill people.
3
I love watching people die. I would shoot them in the head
4
and then they would wiggle and squirm all over the place, and
5
then just stop or cut them with a knife and watch the face turn
6
real white . . . I love all that blood.” (Id., p. A-148.)
7
b.
Dr. Bronson also noted numerous statements implying
8
Petitioner’s guilty by expressing relief at his capture. Some of
9
the statements were made by local officials. Statements by
10
officials are especially prejudicial as they are assigned societal
11
roles of heightened responsibility and power in the
12
community. The media accounts of Petitioner’s capture
13
identified by Dr. Bronson in the Times included:
14
(1)
The mayor of Los Angeles stating that “California can
15
breathe a sigh of relief tonight” after Petitioner was
16
arrested. (Id., p. A-20);
17
(2)
A sheriff stating “we have now definitely tied 14
18
murders (including one in San Francisco) to this
19
individual and possibly as many as 33 cases.” (Id., p.
20
A-12.)
21
(3)
Local authorities publicly identifying Petitioner as the
Stalker. (Id., p. A-20);
22
23
(4)
“Thank god the caught him.” (Id., p. A-44);
24
(5)
An article describing how residents of Los Angeles felt
relief upon Petitioner’s arrest;
25
26
(6)
In one opinion piece in the Times, the author notes that
27
“California breathed a sigh of relief and celebrated their
28
release from fear.” (Id., p. A-64);
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c.
Publicity regarding specific evidence pointing to Petitioner
2
was also widely reported in the Times articles reviewed by Dr.
3
Bronson. Articles were written about the exhaustive
4
fingerprint identification of Petitioner, the State’s effective
5
fingerprinting system that “zeroed” in on Petitioner as the
6
Night Stalker suspect, and even quoted the San Francisco
7
mayor discussing how ballistics tests ties Petitioner to San
8
Francisco crimes. (Id., pp. A-12, 20, 24 32, 40, 68, 172); (Ex.
9
75, E. Bronson Dec., ¶ 77.)
10
794. The Times articles affecting Petitioner’s presumption of guilt
11
reviewed by Dr. Bronson led him to conclude that the media was “extremely
12
prejudicial.” (Id., ¶ 74.) This conclusion is supported by the Channel 11
13
television scripts considered by the trial court:
14
a.
“The Mayor was calling for early action on the offered reward
15
without waiting for a conviction.” (Ex. 79, Channel 11
16
Scripts, at p. 230);
17
b.
“Mayor Bradley says he would like to see the people of
18
Hubbard Street get the reward for catching the suspected
19
Night Stalker as soon as possible . . . even if Richard Ramirez
20
is not convicted.” (Id., p. 2557);
21
c.
world” (Id., p. 2497);
22
23
“Ramirez took what might be his last steps in the outside
d.
“Six people have been honored by the Los Angeles County
24
board of supervisors . . . one man was so happy that he cried .
25
. . it was a proud moment for the people of an East Los
26
Angeles neighborhood . . .” (Id., p. 2515);
27
28
e.
“a sheriff’s deputy received plaques of heroism from the L.A.
county board of supervisors” (Id., p. 2524);
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f.
1
“They are being called ‘the heroes of Hubbard Street’ . . . the
2
citizens credited with the capture of suspected Night Stalker
3
Richard Ramirez.” (Id., p. 2538);
g.
4
“The youngest of the heroes [who helped capture Petitioner]
was receiving an early reward.” (Id., p. 2576.)
5
6
3.
Gravity and Nature of Offense
7
795. Another factor relevant in determining whether a change venue is
8
required is the nature and gravity of the offense. The trial court found that “this
9
is as grave and serious a case as has been filed in this or any other state.” It
10
therefore admitted that “the gravity and nature of the crime would indicate that
11
venue ought to be changed.” (17 RT 846.) The trial court erred, however, in
12
limiting its analysis to simply the seriousness of Petitioner’s crimes.
13
796. The fact that Petitioner was charged with capital crimes carrying a
14
penalty of death requires an even greater assurance that a jury pool is not tainted
15
by prejudicial publicity. By virtue of having a possible penalty phase of trial,
16
jurors in a capital case are required to perform tasks that are unique and that make
17
having an impartial jury even more important. The California Supreme Court
18
described a capital jury as being “charged with a responsibility different in kind
19
from . . . guilt phase decisions: it’s role is not merely to find facts, but also -- and
20
most important -- to render an individualized, normative determination about the
21
penalty appropriate for a particular defendant -- i.e., whether he should live or
22
die.” People v. Brown, 46 Cal. 3d 432, 448, 758 P.2d 1135, 250 Cal. Rptr. 604
23
(1988); see also People v. Williams, 48 Cal. 3d at 1131 (“where the jury in its
24
discretion is responsible for determining whether a defendant lives or dies, the
25
need for juror impartiality is obviously most acute.”) (emphasis in original.)
26
797. Pretrial publicity combined with the expanded role of a capital juror
27
increases the danger that factors such as fear and anger will, in practice, be “part
28
of the calculus of penalty phase decision-making[.]” (Ex. 75, E. Bronson Dec., ¶
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83.) Extensive media exposure increases the risk a jury will rely on factors not
2
included in aggravation. “It can change the prism through which those unfairly
3
exposed to the media assess the aggravating and mitigating evidence presented by
4
the parties.” (Id., at ¶ 84.) In the penalty phase, where the defense wishes to
5
humanize a defendant and the prosecutor is seeking to do the opposite while
6
emphasizing the victim’s perspective, the media can interfere and prevent a fair
7
trial. In Petitioner’s case, the media did just that: performing the prosecutor’s
8
role with respect to both the defendant and the victims. (Id., at ¶ 85.)
9
a.
Dr. Bronson’s analysis of L.A. Times articles revealed
10
prejudicial publicity focusing on the fear generated among
11
individuals and in the broader Los Angeles community. One
12
article, an opinion piece, said Petitioner’s alleged crimes were
13
“even more horrendous because of the fact that this person
14
goes into people’s homes. He’s going into your sanctuary,
15
your private place.” (Ex. 76, L.A. Times Articles Reviewed by
16
Dr. Bronson, at p. A-4.) Multiple articles discussed the
17
paralyzing fear citizens across Los Angeles felt because of the
18
“Night Stalker” phenomenon -- causing them to lock their
19
doors and windows at night, be afraid to walk alone even to a
20
car, buy extra guns, barricade doors, and even move to
21
upstairs apartments. (See, e.g., id., p. A-4.) One article
22
describes a “climate of near hysteria.” (Id., p. A-124.) The
23
Times reported an increase in calls to police, (id., pp. A-4, 24),
24
homeowners organizing neighborhood patrolling, (id., pp. A-
25
40, 72), and fear hanging over the city “like a smog,” (id., p.
26
A-48).
27
28
b.
A jury pool drawn from an angry community, similar to a
fearful community, is far less likely to give Petitioner a fair
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1
trial and more interested in retribution. (Ex. 75, E. Bronson
2
Dec., ¶ 90.) The publicity in Petitioner’s case not only
3
reported on, but exacerbated the sense of anger at Petitioner in
4
the community. Articles described the community as “livid”
5
about the Night Stalker. (Ex. 76, L.A. Times Articles
6
Reviewed by Dr. Bronson, at p. A-4.) “I hope they give him
7
the electric chair, that’s what vicious killers deserve.” (Id.,. p.
8
A-20) Still another article described his capture: he was
9
beaten with a steel rod by angry citizens. (Id.) “Police arrest
10
Ramirez, taking him into custody after he is captured and
11
beaten by angry citizens who grab him on an East Los
12
Angeles street[.]” (Id., p. A-24.) These captors were hailed as
13
“heroes” by the City Council, the County Board of
14
Supervisors, and even the state legislature. (Id., p. A-48.)
15
c.
Further stoking the anger of a Los Angeles jury pool were the
16
L.A. Times descriptions of the crimes. They quoted victims as
17
saying Petitioner “pointed the gun on my head, said, ‘Bitch,
18
shut up’.” (Id., p. A-136.) A desperate call for police
19
sounded as if a victim was “choking or gurgling and gasping.”
20
(Id., p. A-116.) Dr. Bronson details Times various description
21
of Petitioner’s charges as including murder, burglarly,
22
robbery, rape, sodomy and forced oral copulation, twelve
23
murder counts, 61 new felony charges, at least 18 separate
24
incidents, attacking 28 people and murdering 15, and 54
25
related crimes. (See id., pp. A-52, 60, 76, 96, 100; ex. 75, E.
26
Bronson Dec., ¶ 91.)
27
28
d.
The randomness of the Night Stalker attacks created the
potential for even greater fear to be generated in the
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1
community. (Id., ¶ 93.) Hence, the coverage emphasizing the
2
randomness of the attacks poses a threat of prejudicing the
3
jury pool. As shown in the Times articles reviewed by Dr.
4
Bronson, this coverage was immense:
5
(1)
He was not killing “them” in a faraway, dingy place,
6
but people like “us” in comfortable, ordinary homes.
7
(Ex 76, L.A. Times Articles Reviewed by Dr. Bronson,
8
at p. A-48);
(2)
9
The serial killer is more fearsome because he attacks in
10
the home and without a discernable pattern. (Id., p. A-
11
4);
12
(3)
The attacks are random. (Id., pp. A-4, 180);
13
(4)
Murders include businessman, retired couples, students,
14
parking lot attendants and grandmothers. (Id., p. A-
15
124);
(5)
16
it makes you stop and think about it.” (Id., p. A-4.)
17
18
The police state “when it starts happening in your town
798. While the trial court did briefly mention that the nature and gravity
19
of the offense weigh in favor of a change of venue, it failed to account for the
20
increased prejudice of publicity on a possible penalty-phase juror. To the extent
21
trial counsel failed to clarify the impact of this category for the court, it was
22
prejudicially ineffective.
23
4.
Prominence of the Victims and Status of the Defendant
24
799. The trial court agreed with Petitioner’s counsel that the victim’s
25
“prominence” or status were such “that one would tend to identify with [them],
26
especially the type of people who tend to sit on juries.” (17 RT 849.) The trial
27
court erred, however, by failing to realize the full import of the victims’
28
blamelessness and randomness, and how publicity can exacerbate a prospective
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1
juror’s feelings of empathy for a victim that conflicted with Petitioner’s fair trial
2
rights.
3
800. By virtue of their number, the nature of the harm that befell them,
4
and their “ordinariness and random qualities,” the victims “acquired the special
5
kind of sympathy and empathy that likely generated the bias against the
6
defendant with which this factor is concerned.” (Ex. 75, E. Bronson Dec., ¶ 99.)
7
This empathy is pronounced because the victims “were entirely blameless.” (Id.,
8
¶ 100.) Therefore, unlike victims who make bad or unwise choices, the victims
9
in Petitioner’s case made it easy for a prospective juror to feel empathy.
10
801. The publicity in this case only exacerbated this effect. While some
11
stories did focus specifically on the group of victims, Dr. Bronson’s content-
12
analysis of the L.A. Times showed that the media focused on the entire
13
community as victims “during a reign of terror perpetrated by the Night Stalker.”
14
(Id., ¶ 103.) This sense of collective victimization by citizens living in the jury-
15
pool community, when combined with the documentation of fear, anger, and
16
inflammatory accounts of the crime, provided strong evidence of the need for a
17
change of venue. (Id.)
18
802. The trial court also did not properly assess the impact Petitioner’s
19
status in the community had on the need for a change of venue. The court
20
seemingly dismissed this factor because “Mr. Ramirez is a totally anonymous
21
individual . . . this is not a situation in which a person who already had an image
22
was involved in a case.” (17 RT 850.) It is precisely Petitioner’s status as an
23
“outsider” and “drifter,” however, that prejudiced Petitioner and weighed in favor
24
of the need for a change of venue. (Ex. 75, E. Bronson Dec., ¶ 104) In just the
25
sampling of L.A. Times articles reviewed by Dr. Bronson, Petitioner was
26
repeatedly referred to as a “drifter” and “native of El Paso.” (Ex. 76, L.A. Times
27
Articles Reviewed by Dr. Bronson, at pp. A-20, 40, 52, 60, 80, 96, 100, 116, 124,
28
136, 144, 168, 188.)
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803. Petitioner was portrayed by the media coverage “as a one-
2
dimensional, comic book-type of an archetypal evil figure: who was “repeatedly
3
linked to various forms and symbols of Satanism, pentagrams, and the like.” (Ex.
4
75, E. Bronson Dec., ¶ 106.) Petitioner was shown winking and grinning during
5
court and looking “cunning” and “dangerous.” (Ex. 76, L.A. Times Articles
6
Reviewed by Dr. Bronson, at pp. A-80, 148.) Readers of the Times were even
7
warned that “most serial murder[ers] don’t stop. They might relocate. They will
8
kill again.” (Id., p. A-8.)
9
804. Publicity of Petitioner was entirely devoid of sympathetic or
10
humanizing accounts of Petitioner’s life. Dr. Bronson does “not recall ever
11
encountering such an absence in the over 200 potential change-of-venue cases I
12
have previously dealt with.” (Ex. 75, E. Bronson Dec., ¶ 108.) Yet, the trial
13
court failed to acknowledge any of this evidence, or lack thereof, when ruling the
14
publicity in Petitioner’s case did not warrant a change of venue.
15
5.
Size and Nature of the Community
16
805. The California Supreme Court approved of the trial court’s reliance
17
on the size of Los Angeles county as the main factor weighing in favor of a
18
change of venue: “You are talking about what I think is the largest jury pool of
19
any jurisdiction in the country.” (17 RT 854.) “[T]his county is so large and the
20
people here are so sophisticated and so diverse that I just don’t think you can say
21
that you can’t have a fair trial in this county.” (Id., 855.) “You could call in
22
2,000 jurors to talk to them on voir dire in this case, and there is no place else that
23
you can do that.’” (Id., 856.) The trial court erred in relying so heavily on the
24
sheer size of Los Angeles County while failing to account for the nature of the
25
community as it responds to Petitioner’s case. Had it correctly addressed this
26
crucial factor, the court would have found a change of venue appropriate. To the
27
extent trial counsel failed to alert the court to its error, counsel was prejudicially
28
ineffective.
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806. At the time of trial, Los Angeles County had the highest population
2
of any county in California, at over eight million. While the courthouse where
3
Petitioner was tried only selected juries within a 20-mile radius, and not county-
4
wide, the jury-pool for Petitioner’s trial was still in the millions. Focusing on the
5
number of jurors without taking into account the specifics of Petitioner’s case,
6
however, does not accurately reflect the likelihood that Petitioner could have
7
received a fair trial. A large jury pool reduces the need for a change of venue
8
because of: (a) the greater numbers make it easier to pick a jury, (b) the
9
community communications network is less of a problem, (c) the attention on and
10
memory of the case may be less, and (d) the number of those with a case
11
connection will be a smaller percentage of the population. (Ex. 75, E. Bronson
12
Dec., ¶ 112.) Looking at these factors in the context of the coverage and
13
circumstances of Petitioner’s trial reveals the size of the community is not
14
availing.
15
a.
Theoretically it is easier to obtain a venire that is untainted by
16
pretrial publicity or other prejudice with a larger jury pool.
17
This fails to consider, however, the fact that resolution of a
18
venue motion requires examining the prejudice of prospective
19
jurors who may be qualified to be on the trial panel but still
20
express prejudice from pretrial publicity necessitating a
21
change of venue. (Ex. 75, E. Bronson Dec., ¶ 114.) With a
22
case as widely recognized as Petitioner’s, even if a particular
23
juror could state their lack of bias, the nature of the media
24
coverage demonstrated above can create pressure on local
25
jurors that would inhibit their impartiality. (Id., ¶ 115.)
26
b.
A second reason for the theory that a large jury pool weighs
27
against a venue change is the notion that as a venue gets
28
larger, the jury pool becomes less homogeneous. There is less
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1
informal gossip, rumors, and “coffee shop” interchanges. (Id.,
2
¶ 118.) Smaller communities tend to have a higher degree of
3
“cultural integration and shared values”that can make it more
4
difficult to find a fair jury. (Id., ¶ 119.) As shown by the
5
testimony of Patrick Kelly, Joseph Santoro, George Willoth,
6
and others during the venue motion, as well as media
7
coverage considered by the court, however, the Night Stalker
8
phenomenon essentially brought Los Angeles County together
9
as a small group. Neighborhood watch groups formed, and
10
neighborhoods united around a common fear of the Night
11
Stalker. Hence, any benefit to a large jury pool was lost when
12
all of Los Angeles experienced “such widespread fear and
13
terror[.]” (Ex. 79, Channel 11 Scripts, at p. 2414.)
14
c.
Related to the supposed heterogeneous effects of a larger jury
15
pool, the percentage of the total population that has a
16
connection with the case is thought to be smaller in larger
17
venues. Therefore, the risk of a prejudiced jury pool is less.
18
Yet, Petitioner’s case is an exception. Despite the large
19
population, most residents were directly affected by the Night
20
Stalker phenomenon: whether they lived in fear, participated
21
in block patrols, added locks to their doors and windows, or
22
bought guns, they were personally effected. Therefore the
23
percentages of those involved in Petitioner’s case would be
24
comparable to what is found in smaller communities. (Ex. 75,
25
E. Bronson Dec., ¶ 126.)
26
d.
Similarly unavailing is the reasoning that the attention and
27
collective memory of a particular case is less with a larger
28
venue. While in most cases that is true, Petitioner’s case “is
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1
now part of the collective memory of the community, and still
2
is imbedded there.” (Id., ¶ 120.) Indeed, coverage of
3
Petitioner’s case faced little competition and dominated the
4
news cycle up through Petitioner’s trial.
5
e.
The size of Los Angeles County is offset by what Dr. Bronson
6
describes as “salience.” This is when a case is especially
7
relevant to one’s own life, or as Dr. Bronson describes it,
8
“Salience may arise because of propinquity -- it could happen
9
to me, it happened near me or in a palace I know or have been,
10
it affects me, people like me are involved, and other similar
11
factors.” (Id., ¶ 121.) For example, Dr. Bronson
12
recommended a change of venue for the Oklahoma City
13
bombing case because it had salience with the people in
14
Oklahoma. Yet, he recommended against a change of venue
15
in the Unabomber case because there was no special salience
16
in Sacramento as compared to other areas. (Id.)
17
f.
In this case, Dr. Bronson found an extremely high rate of local
18
salience. While those in other parts of the state may have
19
known of the Night Stalker, those in Los Angeles county had
20
a unique fear of Petitioner and relationship with his alleged
21
criminal activity. (Id., ¶ 122.) Some examples of this salience
22
in the Times articles reviewed by Dr. Bronson include:
23
(1)
An article discussing the case as more fearsome because
24
he attacks the home and without a pattern (Ex. 76, L.A.
25
Times Articles Reviewed by Dr. Bronson, at p. A-4);
26
(2)
What made the crimes especially fearsome was that
27
they occurred in quiet suburbs, not “Skid Row” (Id., p.
28
A-48);
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(3)
1
“Seems even more horrendous because this person goes
2
into people’s homes, he’s going into your sanctuary,
3
your private place. That’s very frightening to me, and
4
he’s doing it in such a diabolical way.” (Id., p. A-4);
(4)
5
“you’re not even safe in your own home. It seems like
6
a violation of privacy even though you haven’t been
7
accosted.” (Id., p. A-4.)
8
g.
The trial court acted unreasonably by failing to take into
account the salience of Petitioner’s case, or any of the other
9
10
mitigating factors offsetting the benefit of Los Angels
11
county’s high population on obtaining a fair trial.
12
807. The witness testimony during the venue motion helped illustrate the
13
unique unrest, concern, collective action, and fear the Night Stalker phenomenon
14
generated in Los Angeles county. From the testimony, the trial court recognized
15
that law enforcement “certainly did solicit an enhanced level of community based
16
awareness activity and support, and got it.” (17 RT 849.) It also acknowledged
17
that “there was a feeling of fear across at least part of the community” but found
18
“it was not necessarily [a] county-wide feeling.” (Id.) The court’s glib
19
characterization of the evidence, however, failed to grasp the extent to which the
20
publicity of Petitioner’s case had already made a fair trial highly unlikely.
21
a.
Members of the “Guardian Angels,” an organization that
22
sends members to people’s homes for protection and a sense
23
of security, testified that the organization was involved in
24
setting traps for the Night Stalker. (12 RT 418-428.)
25
b.
Dr. Paul Blair, a psychiatrist who had dealt with hostage
26
negotiations, testified regarding the public’s fear of the Night
27
Stalker. Dr. Blair discussed the role random murders and
28
assaults play in increasing the fear of a community. “The
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1
concept of randomness does cause an increased amount of
2
fear . . . like a fear of the unknown, a fear of the dark.” (14
3
RT 574.) He then discussed how the media in the Night
4
Stalker case only helped to increase the public’s fear: “The
5
more information that comes out in the press . . . the more
6
people will read it, the more people talk about it . . . . Things
7
begin to get distorted and the tension level goes up
8
dramatically.” (Id., 578.) Dr. Blair’s testimony also informed
9
the trial court about the issue of salience that increases the
10
likelihood of a prejudiced jury pool. (See Ex. 75, E. Bronson
11
Dec., ¶¶ 179-185 (discussing Dr. Blair’s testimony).)
12
c.
Witnesses Patrick Bates and Joseph Santoro testified that Los
13
Angeles had essentially joined together out of fear; taking
14
drastic steps to secure their safety. Santoro testified that 20%
15
of Monterrey Park had joined neighborhood watch groups to
16
protect themselves from the Night Stalker. The police
17
department had set up programs for elderly people to receive
18
free dead bolt locks, and calls to the police doubled or even
19
tripled. (14 RT 606-33.) Mr. Bates testified that gun sales at
20
his gun store had doubled, and even tripled among women,
21
but then returned to normal once Petitioner was arrested. (Id.,
22
634-652.)
23
d.
The testimony presented during the venue motion
24
demonstrated that the likelihood for obtaining a fair trial in
25
Los Angeles county was small. The Night Stalker crimes
26
affected so many personally and so dramatically, it would be
27
especially difficult for jurors to set aside their prejudice and
28
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1
for Petitioner to obtain a fair trial. (Ex. 75, E. Bronson Dec., ¶
2
189.)
3
808. The testimony at the venue motion was corroborated by the
4
sensational and inflammatory reports about how the Night Stalker thrust Los
5
Angeles into a state panic. As shown by just a small sampling of the Channel 11
6
scripts admitted in the venue motion, the panic was intense:
7
a.
“Authorities throughout the southland are urging everyone to
8
lock all doors and windows tonight . . . as the search goes on”
9
for the Night Stalker (Ex 77, Channel 11 Scripts, at p. 2315);
10
b.
“There is a degree of alarm among those who live in the
11
outlying valleys . . . people are fearful of where this random
12
killer will strike next.” (Id., p. 2329);
13
c.
“Residents are locking their doors and windows . . . and
14
arming themselves tonight . . . as neighbors are braced to
15
protect themselves . . . police are converging a special task
16
force” (Id., p. 2332);
17
d.
“many women . . . especially those who live alone . . . are
18
taking measures they never even considered before” (Id., p.
19
2368);
20
e.
take matters into their own hands” (Id., p. 2385);
21
22
“vicious series of Night Stalker attacks is making some people
f.
“Many Southern Californians are resorting to drastic measures
23
to protect themselves . . . as a result of the Night-Stalker series
24
of killings” (Id., p. 2446);
25
g.
“As each day goes by without the Night Stalker being brought
26
into custody . . .the anxiety of local residents continue to rise”
27
(Id., p. 2460.)
28
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809. While the trial court admitted personal knowledge of the contents
2
and extent of the L.A. Times coverage, the trial court’s ruling denying articles
3
submitted by trial counsel violated Petitioner’s federal due process rights because
4
of its flagrant violation of established state law relating to change of venue
5
motions under California Penal Code section 1033. Section 1033 provides that
6
the court shall order a change of venue when it appears that there is a reasonable
7
likelihood that a fair and impartial trial cannot be had. In support of change of
8
venue, a defendant is required to establish that pretrial publicity is prejudicial and
9
that there is a reasonable likelihood that a fair trial cannot be had. Smith v.
10
11
Superior Court, 276 Cal. App. 2d 145, 80 Cal. Rptr. 693 (1969).
810. In Powell v. Superior Court, 232 Cal. App. 3d 785, 283 Cal. Rptr.
12
777 (1991), the Court of Appeal held that change of venue was compelled for Los
13
Angeles police officers charged in the Rodney King incident. The reviewing
14
court considered pretrial publicity and other factors in support of change of
15
venue. Powell further observed that judicial notice of news media coverage not
16
presented in the trial court was appropriate on de novo review. Id. at 790 n.2.
17
The court ruled that “Los Angeles County is so saturated with knowledge of the
18
incident, . . . and so permeated with preconceived opinions that potential jurors
19
cannot try the case solely upon the evidence presented in the courtroom.” Id. at
20
802. Thus, in Petitioner’s case, the court was required to consider all relevant
21
matters related to change of venue. The court, likewise, was entitled to take
22
judicial notice of the vast array of prejudicial media coverage of this case.
23
811. Originally, a motion for change of venue was based principally on
24
the parties’ affidavits. See Maine v. Superior Court, 68 Cal. 2d at 378; People v.
25
Carter, 56 Cal. 2d 549, 364 P.2d 477, 15 Cal. Rptr. 645 (1961); People v.
26
McCracken, 39 Cal. 2d 336, 246 P.2d 913 (1952); People v. McKay, 37 Cal. 2d
27
792 236 P.2d 145 (1951). People v. Yeager, 194 Cal. 452, 229 P. 40 (1924), was
28
one of the first reported cases where newspaper clippings were appended as
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1
exhibits to the affidavit supporting the motion for change of venue. Since then,
2
parties have appended more extensive supporting exhibits so that, as a practical
3
matter, the exhibits overshadow the affidavits. This change in practice occurred
4
without explicit requirements by the courts or legislature. It follows that where
5
an affidavit alone is legally sufficient to support a motion for change of venue,
6
the court cannot deny the motion on the mere formality that exhibits were not
7
authenticated. Exhibits are not legally required for a sufficient motion for change
8
of venue, therefore, the failure to provide authentication of exhibits cannot be a
9
legitimate reason for denial of the motion. The trial court was required to rule on
10
the sufficiency of the assertions of the affidavits, for which the exhibits and
11
testimony merely demonstrated a reasonable likelihood of prejudice.
12
812. To prevail on a motion for change of venue, the moving party must
13
show a “reasonable likelihood” of prejudicial effect, a standard of proof less than
14
preponderance of the evidence. People v. Jenkins, 22 Cal. 4th 900, 943, 997 P.2d
15
1044, 95 Cal. Rptr. 2d 377 (2000). The “reasonable likelihood” standard fits the
16
original use of affidavits as the principal mode of proof. The trial court must
17
decide if the assertions of prejudice, as documented by credible supporting
18
exhibits, show a reasonable likelihood of prejudice. Requiring authentication of
19
hundreds of individual media reports is inconsistent with this standard. Trial
20
counsel provided reasonable authentication that the news reports in the exhibits
21
pertained to Petitioner’s case and were from the media sources. Hence, the trial
22
court erred in refusing to take judicial notice of the defense- proffered exhibits
23
that demonstrated the prejudicial nature of the media coverage in Petitioner’s
24
case. Powell v. Superior Court, 232 Cal. App. 3d at 790 n.2.
25
813. The trial court also erred by ruling the community survey was
26
unpersuasive to the venue question. Properly, the court was “convinced” that the
27
methodology was “scientifically based and properly done.” (17 RT 853-54; see
28
also Ex. 75, E. Bronson Dec., ¶¶ 139-150.) It dismissed the survey, however,
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solely because it asked respondents whether they felt Petitioner was
2
“responsible,” and not whether they would base their decision on media instead
3
of evidence in the courtroom. (17 RT 852-53.) Just as it did with the publicity
4
analysis and opinion testimony, the court again failed to recognize the staggering
5
degree of prejudice that the community survey demonstrated existed in the Los
6
Angeles jury pool.
7
a.
The question in the survey the court took issue with focused
8
on prejudgment. Respondents were asked whether they felt
9
Petitioner was responsible from the Night Stalker murders
10
based on what they had seen or heard. (Def. Ex. R in support
11
of motion for change of venue.) Only respondents who had
12
previously stated that they recognized the case were asked this
13
question. Yet, of all 300 respondents, 51.7% said they felt
14
Petitioner was responsible. While not shocking on its face,
15
this rate ranked third highest among California Supreme Court
16
cases that discussed a survey asking this question. (Ex. 75, E.
17
Bronson Dec., ¶ 158.) The prejudgment rate was also the
18
highest Dr. Strand had personally ever seen. (12 RT 463-64.)
19
Even so, the actual prejudgment in Petitioner’s case was
20
likely higher than the 51.7% rate indicated by the survey for
21
three reasons:
22
(1)
First, Dr. Strand only gave the prejudgment percentage
23
rate among the entire group of respondents (300.) The
24
entire group was not asked the question, however. The
25
percentage of those who found Petitioner responsible
26
increases to 55.4% when including only those who were
27
actually asked the question. (Ex. 75, E. Bronson Dec.,
28
¶¶ 160-62.)
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(2)
Another problem with the prejudgment percentage
2
reported by Dr. Strand is that the question gave
3
respondents an opt-out answer that was more socially
4
desirable than admitting they had prejudged Petitioner.
5
When asked if they felt Petitioner was responsible, they
6
were given the choices “yes,” “no,” and “or do you
7
need more information to make up your mind?” (Def.
8
Ex. R in support of motion for change of venue.)62
9
Even where respondents were certain of Petitioner’s
10
guilt, this option allowed respondents to act on their
11
desire to appear open-minded and give a more
12
acceptable response. (Id., ¶¶ 164-69.)
13
(3)
Finally, the prejudgment question asked by Dr. Strand
14
did not scale the responses. In other words, it did not
15
give respondents the options of saying Petitioner is
16
“definitely responsible” or “probably” responsible.”
17
Giving respondents an all-or-nothing choice likely
18
diminished the number of those indicating they felt
19
Petitioner was responsible. (Id., ¶ 168.)
20
b.
21
The survey’s first question was designed to measure case
recognition, and asked respondents whether they had read or
22
23
24
25
26
27
28
62
While not in place at the time Dr. Strand conducted his survey, The
national standard for surveys promulgated by the American Society of Trial
Consultants (“ASTC”) now states “efforts should be made to avoid context,
wording or other influences that raise the likelihood of responses due to social
desirability or other response bias.” See ASTC (American Society of Trial
Consultants) website: ASTC Professional Code, Practice Area A. Venue Surveys,
Professional Standards, II. Basic Questionnaire Design (last visited Dec. 10,
2008) .
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heard anything about the Night Stalker case. A staggering
2
94.3% recognized the case, with only 17 respondents saying
3
they did not. (Def. Ex. R in support of motion to change of
4
venue.) Dr. Bronson, an expert of statistical surveys and one
5
of the authors of the guidelines for venue surveys adopted and
6
published by the ASTC, found this to be one of the highest
7
recognition rate of any case he has seen. Only eleven of the
8
121 cases Dr. Bronson has worked on had a higher
9
recognition rate, including the Oklahoma bombing and dog
10
mauling case in San Francisco. (Ex. 75, E. Bronson Dec., ¶
11
155.) Further, only three of the forty-two venue cases in the
12
California Supreme Court discussing a community survey had
13
a higher recognition rate -- one being the Rodney King case
14
where venue was transferred from Los Angeles County. (Id.,
15
¶ 154); see also Daniels, 428 F.3d at 1211 (venue denial
16
reversed where community survey showing that “eighty-seven
17
percent of the jury pool recognized the case” helped show
18
media saturation.) Such a high rate of recognition illustrates
19
the degree to which a respondent is exposed to the types of
20
prejudicial coverage discussed above.
21
c.
Additionally, the trial court failed to account for the extremely
22
high rate of prejudgment of penalty among the respondents
23
who were asked. While Dr. Strand testified that only 43.3%
24
of the 300 respondents indicated Petitioner should receive the
25
death penalty, only 155 people were asked the question.
26
When looking at the more meaningful percentage of those that
27
chose death who were actually asked about penalty, the
28
percentage jumps to 83.8% (or 130 of the 155people asked.).
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(Def. Ex. R in support of motion to change of venue.) In the
2
thirty-two cases in which Dr. Bronson has asked a death
3
penalty question in a survey, Petitioner’s case had the highest
4
level of support for the death penalty by almost ten percentage
5
points. (Ex. 75, E. Bronson Dec., ¶ 173.) Therefore, while
6
the possibility of receiving a fair trial with a prejudiced Los
7
Angeles jury pool was suspect, the “chances of a fair trial at a
8
penalty phase were de minimus.” (Id.)
9
d.
Had the trial court grasped the true import of the community
10
survey and accurately assessed Dr. Strand’s reports, it would
11
have been forced to acknowledge the prejudice infecting Los
12
Angeles County. The data provided to the court indicated
13
there was a high awareness of Petitioner’s case, a large
14
percentage of the jury pool that had prejudged Petitioner’s
15
guilt, and an even larger percentage that prejudged his
16
penalty. All of this data was supported by the nature and
17
extent of publicity and the opinion testimony presented by
18
Petitioner’s counsel. (Id., ¶¶ 139-90.)
19
814. The inflammatory nature and broad extent of publicity, the nature
20
and gravity of the Petitioner’s alleged offenses, and the community status of
21
Petitioner and the victim all weighed heavily in favor of a change of venue. The
22
size of Los Angeles County, while in most cases allowing for a high likelihood of
23
an impartial jury, was insufficient to protect Petitioner’s fair trial rights with such
24
extensive prejudicial publicity and wide-spread panic and fear throughout the
25
Southland. Yet, the trial court failed to grasp the obstacles Petitioner faced in
26
getting a fair trial. Further, despite the California Supreme Court’s duty to
27
“independently examine the record and determine de novo whether a fair trial is
28
or was obtainable” and its “de novo standard of review” of “our consideration of
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1
the five relevant factors,” Williams v. Superior Court, 39 Cal. 4th at 434, the
2
California Supreme Court only spent three paragraphs on all five factors. See
3
People v. Ramirez, 39 Cal. 4th 398, 433-37, 139 P.3d 64, 46 Cal. Rptr. 3d 677
4
(2006). It unreasonably found that “the defendant did not show that the media
5
coverage was unfair or slanted or revealed incriminating facts that were not
6
introduced at trial” despite the fact the trial court admitted knowledge of “most”
7
of the L.A. Times articles reviewed by Dr. Bronson and had before it television
8
footage of local broadcasts and Channel 11 scripts. Even a sampling of these
9
materials demonstrated the prejudicial nature of the publicity.
10
815. Moreover, the California Supreme Court and the trial court acted
11
unreasonably in light of the clearly established federal standard repeated by the
12
Ninth Circuit in Daniels and Ainsworth. Under this standard, the prejudice of the
13
jury pool, irrespective of what the actual voir dire indicates, is presumed where
14
there was a
15
barrage of inflammatory publicity immediately prior to trial,
16
amounting to a huge . . . wave of public passion; (2) whether the
17
news accounts were primarily factual because such accounts tend to
18
be less inflammatory than editorials or cartoons; and (3) whether the
19
media accounts contained inflammatory or prejudicial material not
20
admissible at trial.
21
Daniels, 428 F.3d at 1211 (citations omitted). With well over 903 articles
22
published up to the time of the first admonishment of the jury to avoid media in
23
September of 1989, 167 articles published throughout the trial, and even more
24
television and broadcast media present throughout the pre-trial and trial
25
proceedings, describing the media coverage as a “barrage” is more than accurate.
26
(Ex. 78, Articles published during trial.) As shown by both Dr. Bronson’s
27
analysis of a sampling of the L.A. Times articles, and the scripts of Channel 11
28
news, the media publicity was extremely prejudicial and inflammatory. (Ex. 75,
297
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E. Bronson Dec., ¶ ¶ 44-104.) While the articles were mostly factual, those facts
2
were inflammatory described with inflated emotional language. (Id., ¶ 136.)
3
Lastly, the media accounts of Petitioner and the Night Stalker phenomenon
4
contained numerous instances of inadmissible and highly inflammatory material -
5
- including references to Petitioner as a child molester, and sexual predator.
6
816. While the federal standard does take into account how close the
7
publicity occurred to trial, in Petitioner’s case, where the Night Stalker
8
phenomenon was etched into the collective memory of Los Angeles County, such
9
an inquiry is not dispositive. This is evidenced by the fact that prospective jurors
10
recognized the Night Stalker case at a higher rate (94.7%) in 1988 than
11
respondents did in Dr. Strand’s community survey in 1986 (94.3%.) (Id., ¶ 204.)
12
817. Even so, the publicity surrounding Petitioner’s case did not abate
13
during his trial. Among just three major newspapers63, counsel has identified 167
14
articles related to Petitioner that were published during Petitioner’s trial, (Ex. 78,
15
Articles published during trial), including inflammatory reports of a juror that
16
was murdered during deliberations. (See Claim IX; ex. 80.)
17
818. Therefore, prejudice in Petitioner’s case should be presumed under
18
the federal standard , and hence an examination of the voir dire is unnecessary.
19
See Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d
20
1250 (1959) (finding a change of venue necessary despite jurors at voir dire
21
stating they could be impartial); Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6
22
L. Ed. 2d 751 (1961) (same); ABA Criminal Justice Standard 3.2(c) (explicitly
23
not requiring a showing of actual prejudice at trial for a venue motion.)
24
819. Even considering voir dire, both the trial court’s unreasonable and
25
improper restrictions on the publicity voir dire, and trial counsel’s ineffective and
26
prejudicial performance rendered the voir dire in Petitioner’s case inadequate to
27
28
63
The L.A. Times, Outlook, and The Daily Breeze.
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1
uncover bias and protect Petitioner’s fair trial rights. Voir dire was divided into
2
four distinct phases: (1) hardship questioning, (2) publicity questioning, (3)
3
questioning on attitudes regarding the death penalty, and (4) general voir dire.
4
After prospective jurors expressing hardships were dismissed, individual jurors
5
were sequestered and questioned individually about publicity. Those who
6
“passed” this stage were then given questionnaires. (See VI Supp. CT, Vols. 1-
7
17.) Finally, jurors were questioned generally and about their attitudes on the
8
death penalty.
9
820. While the trial court took precautionary steps during the publicity
10
questioning by sequestering the jury and allowing counsel to directly ask
11
questions, its errors during this phase of questioning prevented voir dire
12
discovering the extent to which the jury pool was prejudiced by publicity; thereby
13
failing to protect Petitioner’s fair trial rights.
14
821. Publicity voir dire began on July 21, 1988 and ended on September
15
1, 1988. (See 65 RT 4856 - 89 RT 9483.) On August 1, 1988, the trial court
16
decided “to limit counsel on both sides to ten minutes per prospective juror with
17
regards to this so-called publicity aspect of the case.” Counsel objected, and even
18
filed a memorandum of points and authorities, but the court kept the limitation in
19
place throughout the publicity voir dire. (See 81 RT 7727-28.)
20
a.
The trial court’s arbitrary time limit stifled counsel’s ability to
21
fully question jurors regarding their attitudes based on the
22
massive publicity surrounding the Night Stalker phenomenon.
23
The trial court’s apparent irritation with trial counsel that led
24
to the enactment of the time limit created a chilling effect on
25
counsel’s questioning of prospective jurors.
26
27
28
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b.
Dr. Bronson, who reviewed a reasonably representative
2
sampling64 of the publicity voir dire, found that of the near
3
sixty panelists he reviewed, the trial court warned trial counsel
4
five times that he was approaching the ten-minute mark. He
5
never once asked the court for additional time with a
6
prospective juror, “even when he seemed to be on to a
7
potential problem.” (Ex. 75, E. Bronson Dec., ¶ 236.) To the
8
extent counsel’s failure to follow up on crucial issues and
9
continuously object to the time limitation counsel’s error, trial
10
counsel was acting deficiently and prejudicially.
11
822. The trial court further stripped the publicity voir dire of its
12
effectiveness by giving repeated instructions to the panelists about their duty to
13
remain impartial and unbiased. This left panelists with a clear impression as to
14
what the appropriate answer should be. The panelists knew exactly what the trial
15
court wanted to hear and they were under a certain amount of pressure to deliver.
16
a.
Examples of the trial court’s admonishments to panelists
17
included the following:
18
(1)
“Because of the publicity surrounding this case, the
19
jurors must be examined to see if they have formed any
20
firm opinions about the guilt or innocence of Mr.
21
Ramirez and whether or not those opinions can be set
22
aside.” (65 RT 4830-31); and
23
24
25
26
27
28
64
Dr. Bronson reviewed the first ten panel members on three dates: the
first day of publicity voir dire, the last day of publicity voir dire, and the date
falling in the middle of the process. He also examined each of the seated and
alternate jurors’ publicity voir dire. (Ex. 75, E. Bronson Dec., ¶¶ 191, 193.)
300
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(2)
1
“It is important that jurors be unbiased and free from
2
any preconceived notions about whether this defendant
3
in a criminal case is guilty or innocent.” (65 RT 4856.)
4
b.
The trial court repeatedly reminded individual panelists of its
5
admonishments during the questioning. For example, the
6
court asked, “Do you remember my -- the last thing I gave to
7
the jury this morning about presuming the defendant
8
innocent?” (77 RT 7078.) “Could you follow the court’s
9
instruction that you heard this morning with regard to the
presumption of innocence?” (89 RT 9380.)
10
11
823. While a trial court certainly has an obligation to admonish a jury
12
regarding their requirements necessary for a fair trial, doing so before they have
13
been questioned by counsel or have even filled out questionnaires obstructs
14
counsel’s ability to accurately assess potential bias. (Ex. 75], E. Bronson Dec., ¶¶
15
197-99.) The prospective jurors quickly realized from the trial court’s
16
instructions that they should say they can be fair and impartial. An example of
17
this dynamic between a court and prospective juror can be seen in the following
18
interplay during publicity voir dire:
19
The Court: That’s right. The idea is whether or not he did them.
That is what this trial is all about.
20
21
Panelist:
Yeah, Yeah.
22
The Court: Whatever opinion you have for him, Ma’am, do you
23
believe you could set that opinion aside and be a neutral
24
and objective juror in this case?
25
Panelist:
Yes, considering what you said this morning.
26
The Court: Okay.
27
Panelist:
I think he’s entitled to a fair trial.
28
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The Court: Okay. Could you then follow the court’s instruction
about the presumption of innocence?
2
3
4
Panelist:
Yes.
(77 RT 7095.)
5
824. Instead of the trial court’s ill-timed admonishment to prospective
6
jurors about the need for a presumption of innocence and an unbiased jury, the
7
court should have given, as many courts do, an instruction tailored specifically to
8
voir dire. This admonishment would have instructed jurors to be honest and
9
forthright, that there are no right or wrong answers, and that their only obligation
10
is to answer truthfully. (Ex. 75, E. Bronson Dec., ¶ 201.) Instead, the trial
11
court’s implicitly suggestive instructions to the prospective jurors prevented the
12
voir dire process from performing its required function, and is another reason
13
why prejudice should be presumed when assessing the necessity of a change of
14
venue in Petitioner’s case.
15
825. Compounding the trial court’s errors, trial counsel’s performance
16
during the voir dire of prospective jurors amounted to incompetence and rendered
17
the voir dire inadequate to identify the extent of prejudicial publicity. Trial
18
counsel unconstitutionally deficient performance during its questioning of
19
prospective jurors, and by its failure to renew its motion for change of venue
20
following the publicity voir dire. But for the trial counsel’s deficient
21
performance, the voir dire would have revealed overwhelming prejudice due the
22
venire due to pretrial publicity and a change of venue would have been granted.
23
(See Id., ¶¶ 225-39.)
24
826. Trial counsel was prejudicially deficient in preparing and presenting
25
the questionnaire given to prospective jurors. Curiously, trial counsel allowed the
26
questionnaire, which contained five questions regarding publicity, to be given to
27
prospective jurors after they had already passed the publicity voir dire.
28
Therefore, counsel did not have the benefit of the written responses when
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1
questioning the jurors. When voir dire was already limited to just ten-minutes,
2
failure to have questionnaires given to the panelists before publicity questioning
3
wasted unnecessary and valuable time to get at juror bias. Competent counsel
4
would have strenuously objected to the trial court’s desire to give the
5
questionnaires in this order. (See 140 RT 15967.) There was no reasonable
6
strategic decision that could justify such a strategy, especially where the
7
questionnaire contained largely unhelpful and vague inquiries. (Ex. 75, E.
8
Bronson Dec., ¶ 227.) Indeed, in Dr. Bronson’s extensive career, he has never
9
once encountered such a procedure. (Id., ¶ 226.)
10
827. During the publicity voir dire, trial counsel prejudicially failed to
11
sufficiently question prospective jurors about their potential biases. In the fifty-
12
seven juror voir dires examined by Dr. Bronson, trial counsel never once
13
exceeded the ten minute time limit improperly imposed by the court, and only
14
came close to approaching the ten minute mark five times. (Id., ¶ 236.)
15
a.
In some instances, trial counsel failed to question prospective
16
jurors at all. There could be no reasonable strategic decision
17
not to do so. For example, two consecutive jurors were asked
18
no questions by counsel even though one admitted to reading
19
newspaper articles and another admitted watching television
20
and reading newspapers. (See 65 RT 4885-88.) As counsel
21
varied the degree and nature of his inquiry from panelist to
22
panelist randomly, identifying prejudice essentially depended
23
on the luck of the draw. (Ex. 75, E. Bronson Dec., ¶ 233.)
24
b.
One prospective juror remembered hearing about the crimes
25
when they occurred and that there were signs of devil worship
26
and pentagrams in the victims’ residences. This panelist knew
27
“certain barbaric activity” occurred during the crimes and that
28
there was no doubt Petitioner was the Night Stalker since the
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1
police did their homework. Yet, superficially saying she
2
could put all that aside, trial counsel passed on challenging her
3
for cause. (66 RT 5063-76.)
4
c.
Yet another prospective juror admitted to feeling relief when
5
Petitioner was arrested and to thinking Petitioner was guilty.
6
Trial counsel again passed on challenging for cause. (68 RT
7
5386-5407.)
8
d.
A prospective juror doubted that he could completely forget
about the crime. When the trial court gets him to say he
9
10
thinks it will not influence him, however, the defense passes
11
for cause. (87 RT 8827-38.)
12
e.
Still another prospective juror admitted to thinking the
13
authorities arrested the right suspect, Petitioner, and that he is
14
aware Petitioner is the only suspect apprehended. When, in
15
response to the trial court’s questioning, he says he can form
16
an opinion based on what he heard in court, trial counsel
17
passed for cause. (87 RT 8892-9004.)
18
f.
In another example, one panelist admitted she knew Petitioner
19
as the “Night Stalker,” remembered his picture, said that he
20
committed murder of families, was familiar with the case
21
before he was arrested, expected Petitioner to show evidence
22
that he was not guilty and disprove what was heard in the
23
media, admitted it would be difficult to forget things she heard
24
in the media, and heard he was a devil worshiper. (75 RT
25
6729-39.) Yet trial counsel acted as an essential prosecutor,
26
asking the juror rehabilitating questions such as “Can you tell
27
me what you’ve heard -- specifics that you’ve heard that --
28
well, what you’ve heard about the case that would tend to tell
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1
you that he’s guilty.” (Id. at 6735.) Ultimately, evidencing
2
the prejudice from counsel’s deficient performance, trial
3
counsel passed on a challenge for cause. (Id. at 6739.) This
4
juror was eventually seated and served as juror #12.
5
g.
Still again, a prospective juror admitted to remembering
6
seeing Petitioner on television “holding up his hand with a
7
pentagra[m] on it, and Petitioner saying the words ‘hail
8
satan.’” (65 RT 4867.) Nevertheless, trial counsel
9
inexplicably passed on a challenge for cause.
10
h.
Each of these examples demonstrate counsel’s deficient
11
performance in identifying and challenging potential jurors
12
who indicated prejudice due to pretrial publicity. Had counsel
13
effectively questioned the jurors, more evidence of actual
14
prejudice necessitating a change of venue would have become
15
apparent.
16
828. Even with the trial court’s improper handling of voir dire and trial
17
counsel’s deficient performance, a review of the publicity voir dire demonstrates
18
sufficient prejudice to warrant a change of venue. There was a 100% recognition
19
rate of Petitioner’s case among the thirty panel members not seated on
20
Petitioner’s jury and reviewed by Dr. Bronson. Fourteen of those thirty, or
21
46.7%, said that they thought Petitioner was guilty even after the trial court’s
22
attempts to rehabilitate them. Eleven of the thirty were excused for cause. (Ex.
23
75, E. Bronson Dec., ¶ 206.) Among the seated and alternate jurors, twenty-six
24
of twenty-seven jurors recognized Petitioner’s case prior to voir dire. (Id., ¶¶
25
209, 223.) The lone juror who did not recognize the case stated that he never
26
read the newspaper. (89 RT 9401-11.)
27
28
829. These numbers are buttressed by the fact that the questionnaires
filled out by jurors who passed publicity voir dire indicated a 94.7% recognition
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rate -- higher than the 94.3% rate obtained in Dr. Strand’s community survey
2
conducted in 1986. (Ex. 75, E. Bronson Dec., ¶ 204.) This becomes significant
3
when recognizing the length of time between the commencement of news
4
coverage (May of 1985) and the voir dire questioning (1988.) While traditional
5
logic indicates case-recognition lessens over time, Petitioner’s case was
6
essentially burned into the collective memory of the county, as the recognition
7
rate actually went up with the passage of time. This caused Los Angeles to
8
become the functional equivalent of a much smaller community in which
9
Petitioner faced a higher likelihood that he could not receive a fair trial. (Id.)
10
830. The raw numbers do not fully portray the extent of prejudice shown
11
by the voir dire. Rather, the publicity voir dire had many problems that
12
understated the true extent of prejudice due to pretrial publicity.
13
831. A phenomenon known as “response bias” causes prospective jurors
14
(as well as respondents interviewed in surveys) to pick up on even subtle clues as
15
to what the interviewer, or trial court, wants to hear. (Id., ¶¶ 213-14.) A
16
prospective juror’s preconceived notions of due process along with a trial court’s
17
admonishments give him/her a clear message that a “good” juror is not supposed
18
to have prejudicial biases against a defendant, and if he/she does, he needs to be
19
able to set them aside. Prospective jurors may therefore give the impression of
20
being a “good juror” even if they harbor such biases. (Id.) This is not an
21
intentional act of deceit by prospective jurors, but rather a masking of certain
22
information due to hidden response bias. (Id.)
23
832. The publicity voir dire in Petitioner’s case was ripe with examples of
24
response bias, where the prospective jurors were essentially taught to give
25
acceptable answers. For example, the trial court asked one panelist if she had an
26
opinion on guilt. She responded, “I have heard what you said this morning about
27
being innocent until you are proven guilty. I would go by that.” (77 RT 7094.)
28
Her assertion that she could follow the proper guilt presumption was bellied by
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1
her other statements that “I can’t understand how anybody could do such things
2
and be innocent,” (Id. at 7094), and “[Petitioner] claimed to have done it, you
3
know.” (Id. at 7097.) Her mere recitation of the court’s admonishment thus
4
appeared “to be more a product of training rather than her true feelings[.]” (Ex.
5
75, E. Bronson Dec., ¶ 207.)
6
833. In yet another example of the difficulty of ascertaining jurors’
7
prejudice because of their desire to give acceptable responses, one prospective
8
juror initially admitted that he had believed Petitioner was guilty. (89 RT 9389.)
9
The trial court then rehabilitated the panelist, asking him “do you feel that
10
[Petitioner is guilty] very strongly?” to which the juror replied “Well, I can’t say
11
strongly, but from the media attention and what they said and stuff, that’s what I
12
think inside my head.” (Id. at 9389-90.) It then asked the panelist if it would be
13
difficult to set aside his opinion and “be a neutral and objective juror” to which
14
the panelist said, “no.” (Id. at 9390.) When counsel began to question the juror,
15
however, it came out that he remembered everybody he knew was afraid or
16
worried about their safety and was relieved when Petitioner was arrested. The
17
panelist even conceded that once he saw that after Petitioner’s arrest no one was
18
“crawling through people’s windows and stuff” he knew thought Petitioner was
19
guilty. (Id. at 9393.) Illustrating response bias, the panelist said that he knew
20
“they say that you are not supposed to [prejudge a defendant].” (Id.) Only when
21
the panelist admitted, in contradiction to his initial statement to the court, that it
22
would be difficult for him to be impartial did the trial court excuse him. This,
23
however, was a rare occurrence of extensive questioning by counsel. Assuredly
24
much more information and prejudice went undiscovered through the court’s
25
approach at preinstructing the jury pool.
26
834. Where publicity voir dire did expose prejudice among prospective
27
jurors, often times the trial court would improperly ignore it, and “pass” the
28
prospective juror regardless of his/her indication of prejudice. Despite the trial
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court’s error, these panelists’ voir dire provides powerful evidence that pretrial
2
publicity raised a reasonable likelihood Petitioner could not have received a fair
3
trial in Los Angeles County:
4
a.
For example, one panelist said “he [Petitioner] is the Night
5
Stalker.” (77 RT 7046.) She added that her friends gave her
6
opinions about the case based upon their following of the
7
news stories. Trial counsel would get her to say, “Everyone
8
assumed right away he was guilty, why do they want to have a
9
trial,” (Id. at 7050), that “I have a couple girlfriends that
10
were afraid to see his face on T.V. They say he was evil, ‘Oh,
11
he looks evil.’” (Id. at 7053.) She talked about her friends
12
who “were sleeping with their guns under the bed,” one of
13
whom “couldn’t sleep at all until he was captured.” (Id.)
14
Despite trial counsel’s initial challenge for cause, the trial
15
court ended up passing this panelist.
16
b.
Another panelist noted the killings stopped after Petitioner
17
was arrested and that the media seems to think he is guilty.
18
The panelist even admitted to thinking Petitioner is guilty
19
based on what she has read, but understands the need to be
20
proven guilty in court. Curiously, she admits she does not
21
believe he is innocent but at the same time claims she could be
22
objective. The trial court denied trial counsel’s challenge for
23
cause. (67 RT 5255-5274.)
24
c.
In another example, a prospective juror talked extensively
25
about the fear everyone felt around the Night Stalker,
26
including the precautions she took and her relief when he was
27
arrested. The trial court denied trial counsel’s challenge for
28
cause. (69 RT 5554-80.)
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d.
1
A prospective juror admitted to thinking Petitioner was
2
probably guilty, that it was the publicity that made her feel
3
this way, and that she would have trouble setting that aside.
4
The trial court improperly rehabilitated the juror and denied
5
trial counsel’s challenge for cause. (79 RT 7357-73.)
e.
6
These examples, along with those instances where trial
7
counsel simply failed to challenge a juror for cause,
8
demonstrate the extent of prejudice the pretrial publicity in
9
Petitioner’s case had on the jury pool.
835. A weak voir dire process, brought about by deficient counsel and
10
11
trial court error, made it difficult to identify the scope of prejudice affecting
12
Petitioner’s jury pool. Even so, with such a high rate of recognition and
13
prejudgment, and an “unusual” number of panelists who admitted bias, the voir
14
dire revealed the need for a venue change. (Ex. 75, E. Bronson Dec., ¶ 224.)
15
Because of the trial court’s improper handling of the voir dire, trial counsel’s
16
deficient performance, and instances of response bias, the voir dire examination
17
prospective jurors provides little confidence that Petitioner could receive a fair
18
trial in a community so saturated with prejudicial and inflammatory media
19
publicity. (Id.) Therefore, if the Court decides not to presume prejudice based on
20
the pre-trial publicity in Petitioner’s case, the constitutional error by the trial
21
court in failing to grant a change of venue, and the unreasonable affirmation by
22
the California Supreme Court are demonstrated by the actual voir dire of
23
prospective jurors.
24
B.
To the Extent the Trial Court Did Not Commit Error by Denying
25
Petitioner’s Venue Motion, the Denial was the Result of Counsel’s
26
Ineffective and Deficient Performance
27
836. While Petitioner maintains the trial court violated his constitutional
28
rights by failing to grant a change of venue, to the extent the Court finds the trial
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court’s or the California Supreme Court’s determination was reasonable, trial
2
counsel was ineffective in presenting evidence that would have conclusively
3
shown a change of venue was required. Trial counsel’s failure to competently
4
voir dire prospective jurors, renew the venue motion after voir dire, or even file a
5
writ of mandamus from the trial court’s denial of the venue motion constituted
6
prejudicially deficient performance. Hence, trial counsel’s representation fell
7
below an objective standard of reasonableness under prevailing professional
8
norms. See Strickland, 466 U.S. 668.
9
837. As a result of trial counsel’s incompetence, there was a complete
10
breakdown in the adversarial process. Counsel’s performance impaired the
11
proper functioning of the criminal justice system such that the proceedings cannot
12
be relied on as having produced a just result. Id. at 686. There is a reasonable
13
probability that but for counsel’s failings, the result of the venue motion would
14
have been more favorable. Id. at 687-96. Moreover, the failure to obtain a
15
change of venue prejudiced Petitioner at the guilt phase and particularly at the
16
penalty phase.
17
838. Trial counsel’s incompetence was most apparent in their attempts to
18
admit evidence of the extent and nature of prejudicial publicity in Petitioner’s
19
case. Trial counsel lacked basic knowledge of the law, including the most
20
fundamental rules governing authentication of documents under the evidence
21
code. Further, trial counsel’s haphazard and sloppy attempts at introducing
22
evidence, riddled by mistakes and clerical errors, only exacerbated the prejudicial
23
effects of its ignorance of the law.
24
25
839. Trial counsel offered into evidence hundreds of newspaper articles
and computerized printouts of local television stories65. This included the
26
27
28
65
Trial counsel admitted it did not attempt to retrieve all articles from
various sources because it did not have time and because it felt the court would
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1
following exhibits presented during the defense trial motion for a change of
2
venue, which can be found in Exhibit 9 to Petitioner’s State Petition for Writ of
3
Habeas Corpus:
4
a.
5
6
from the Los Angeles Daily News.
b.
7
8
Exhibit B -- computerized printouts of at least 225 television
stories from Channel 7 News.
c.
9
10
Exhibit A -- computerized printouts of sixty-seven articles
Exhibit C -- fifty articles from the San Gabriel Valley
Tribune.
d.
11
Exhibit D -- thirty-three newspaper articles from the Los
Angeles Times.
12
e.
Exhibit F -- eighteen articles from the Los Angeles Herald.
13
f.
Exhibit F -- two articles from the Press Telegram.
14
g.
Exhibit G -- five articles from the Pomona Press Bulletin.
15
h.
Exhibit H -- one article.
16
i.
Exhibit I -- three articles from the Pasadena Star News.
17
j.
Exhibit J -- four articles from the Arcadia Tribune.
18
k.
Exhibit K -- three articles from Rafu Shimpu.
19
l.
Exhibit L -- four articles from the Torrence Daily Breeze.
20
m.
Exhibit M -- two articles from the Monrovia News.
21
n.
Exhibit N -- three articles from La Opinion (in Spanish
22
language.)
23
o.
Exhibit O -- one article from the Whittier Daily News.
24
p.
Exhibit P -- three articles from the Glendale News Press.
25
26
27
28
find multiple articles repetitive. (16 RT 757-58.) This proffered reason fails to
recognize the importance of showing the “extent” of media coverage as required
by the five California venue factors.
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q.
Exhibit Q -- one article from the Eagle Rock Sentinel.
2
r.
Exhibit R -- set of television ratings. No documentary
3
evidence was offered with respect to the significance of the
4
ratings. The court indicated that many cases held an expert
5
should be called to interpret ratings, but counsel did not
6
present an expert. (16 RT 769-70.)
7
s.
Exhibit S -- computerized printouts of 265 wire service
stories.
8
9
t.
Exhibit U -- letter from KABC forwarding printouts.
10
u.
Exhibit V -- letters from San Gabriel Tribune.
11
v.
Exhibit W -- declaration of editor of La Opinion.
12
w.
Exhibit X -- six videotapes from Channel 4.
13
x.
Exhibit Y -- videotape from Channel 52.
14
840. Within these documents were hundreds of media accounts that
15
recounted the gruesome details of the crimes, the pervasive sense of terror that
16
had gripped Los Angeles County, and inflammatory and prejudicial accounts of
17
the “Night Stalker” and Petitioner. Yet trial counsel failed to have these materials
18
admitted because of its failure to lay a foundation or authenticate the articles: a
19
basic requirement and rule of evidence.
20
a.
For example, the trial court rejected Defense Exhibit A
21
because counsel failed to introduce any evidence that the
22
documents were actually published. (16 RT 722-26.) To
23
compound matters, trial counsel had mistakenly labeled the
24
articles as being from television broadcast channels when they
25
were actually printouts of articles from the Los Angeles Daily
26
News. (Id. at 718-721.)
27
28
b.
Another example of trial counsel’s almost brazen
incompetence occurs when, responding to an objection that
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1
the defense failed to authenticate the articles by showing they
2
were actually published, trial counsel attempts to prove
3
authentication by pointing to a letter sent to counsel from the
4
news company attesting that the articles were published. The
5
problem: trial counsel did not introduce that letter into
6
evidence so the court did not have it to consider. (Id. at 726.)
c.
7
To authenticate articles from the San Gabriel Valley Tribune,
8
counsel offered a declaration from a librarian dated July 31st.
9
The articles included stories up through September 3rd,
10
however. Therefore, the court dismissed the declaration as
11
unreliable and misleading, as it did not, as proffered by trial
12
counsel, account for the authenticity of over a month’s worth
13
of articles. (Id. at 747-750.)
14
841. Trial counsel’s argument for having the articles admitted had no
15
support in the law. For example, in a December 23, 1986 motion, trial counsel
16
requested that the court “should take judicial notice” of certain articles from the
17
Los Angeles Times, San Gabriel Valley Tribune and United Press International.
18
(XXII CT 6548.) Counsel also requested that the trial court “should acknowledge
19
that the comments reported in the following articles correctly reflect the opinions
20
and concerns of the officials being quoted” and the “type of community
21
awareness and preoccupation with the ‘NIGHT STALKER’ crimes.” (Id. at
22
6548.) Counsel repeated this argument during the argument as well. (See 16 RT
23
717, 741.)
24
a.
Trial counsel’s attempt to introduce records by judicial notice
25
was fatally flawed. Judicial notice was legally unavailable for
26
admission of documentation for the purpose of proving
27
community attitudes. Under the clear wording of California
28
Evidence Code § 451 (matters which must be judicially
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1
noticed) and § 452 (matters which may be judicially noticed.),
2
the law does not contemplate its use to prove community
3
attitudes in a change of venue hearing. (Id. at 712-13.) On
4
more than one occasion, counsel insisted that authentication
5
was not necessary. (Id. at 704, 717.) The trial court refused
6
to admit the material. (Id. at 705-17; see Evidence Code §
7
1400; People v. Mayfield, 14 Cal. 4th 668, 928 P.2d 485, 60
8
Cal. Rptr. 2d 1 (1997).
9
b.
More importantly, trial counsel’s argument focused solely on
10
the subject of the articles, e.g. the community feelings
11
regarding the Night Stalker, rather than the fact that the
12
articles were published. This misplaced focus improperly
13
ignored the relevance of the nature and extent of publicity,
14
and the effect of publicity on a jury pool. The fact that an
15
article was published, and repeated inflammatory or
16
prejudicial statements, is just as important as whether the
17
article was accurate or truthful in its account of the
18
community’s feeling. In fact, an article misrepresenting facts
19
may be even more powerful evidence supporting a change of
20
venue than articles that were purely factual. Counsel’s failure
21
to grasp this point was unreasonable.
22
842. Perhaps realizing its deficient performance, counsel admitted, “I am
23
under some medication, I am not making a lot of sense sometimes and I advise
24
the court I have been under medication for the last two weeks. Let the record be
25
clear that if you are having some problems, it is perhaps because of my
26
medication.” (16 RT 741.) A reasonable justification for abridging Petitioner’s
27
right to counsel does not include being medicated.
28
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843. Trial counsel’s confusing, mistake-riddled, and legally baseless
2
attempts to introduce evidence at the venue hearing led the trial court to the
3
extraordinary step of finding trial counsel incompetent on the record. On January
4
6, 1987, in the presence of only Petitioner and his counsel, the trial court
5
personally addressed Petitioner:
6
[In] my opinion your lawyers are incompetent. Now I
7
have had this case for six months . . . in my opinion
8
they are not competent to handle your case. I don’t
9
think that they have sufficient experience in the law. . .
10
. I don’t think they know the law well enough, I don’t
11
think they know the rules of evidence well enough, they
12
are not ready to present the evidence. . . . And I am
13
telling you now that your rights are not being protected.
14
(16-A RT 733-734 (sealed).) While the trial court erred in not protecting
15
Petitioner’s rights once it realized they were being infringed by trial counsel, this
16
was powerful evidence of deficient performance.
17
844. Trial counsel’s deficient performance was not limited to its attempts
18
to introduce evidence, but permeated the entire venue motion, including the
19
presentation of television media and witness testimony. For example, trial
20
counsel insisted the court view video-cassettes consisting of television broadcasts
21
related to the Night Stalker crimes and Petitioner’s arrest. (9 RT 248-67.) Yet
22
counsel appeared to have no idea what information the tapes contained; merely
23
pressing the “play” button on the VCR and encumbering the trial court with hours
24
of unfocused television viewing. Despite the apparent annoyance by the trial
25
court at viewing endless video without any explanation as to its relevance, trial
26
counsel presented no explanation or analysis of what was being viewed or why it
27
was prejudicial or inflammatory.
28
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845. Trial counsel’s incompetent presentation of the video-tape evidence
2
allowed the trial court to commit error by finding the only relevance from the
3
tapes were their demonstration of the “frequency and saturation” of coverage.
4
(Id. at 268-70.) Perhaps even more important than showing extent of coverage,
5
the video tapes should have been considered for the “nature” of the coverage
6
about Petitioner -- including inflammatory, inaccurate, and inadmissible materials
7
being broadcasts throughout Los Angeles County. (See e.g. Ex. 79, Channel 11
8
Scripts.) Trial counsel failed to explain to the court how the content, and even
9
the repetitiveness, of the broadcasts provided evidence of the prejudicial
10
11
publicity inundating Los Angeles County’s jury pool.
846. In examining witnesses during the venue hearing, counsel at times
12
seemed unable to frame questions to witnesses. For example, when questioning
13
defense expert Dr. Paul Blair, trial counsel could not pose a basic hypothetical,
14
even with clear direction from the court. (14 RT 595-97.) Finally, the court had
15
to take over questioning and ask the hypothetical itself. In another example, trial
16
counsel could not perform the basic task of laying the foundation for a question
17
about a witness’s ability to perceive, forcing the court to ask the proper question
18
instead. (15 RT 669-70.)
19
847. At the conclusion of voir dire, trial counsel unreasonably and
20
prejudicially failed to renew the change of venue motion or file a writ of
21
mandamus to the appellate court challenging the trial court’s adverse ruling. This
22
procedure was standard practice after the 1968 California Supreme Court
23
decision of Maine v. Superior Court, 68 Cal. 2d at 381 (discussing procedures to
24
file a writ of mandamus challenging the denial of a change of venue and for
25
renewing a motion.) Trial counsel’s failure to renew the motion following voir
26
dire unreasonably suggested counsel was satisfied with the jury. More
27
importantly, counsel’s failure to file a writ of mandamus prejudiced Petitioner
28
because the “reasonable likelihood” standard does not include an actual prejudice
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assessment during a writ, and because courts are more willing to grant a change
2
of venue on appeal before the trial takes place. See id. (“it is proper, and often
3
preferable, to determine the place of trial prior to the actual trial of the case rather
4
than afterwards.”)
5
848. Had counsel operated at even a minimal standard of competency, the
6
trial court would have accorded appropriate weight to the evidence of pretrial
7
publicity and granted Petitioner’s motion for a venue change. While the court did
8
consider and acknowledge news articles not formally accepted into evidence,
9
competent counsel could have ensured the court appropriately considered the
10
evidence before it.
11
849. Trial counsel did not offer a content-analysis similar to what Dr.
12
Bronson performed. Left with unfiltered and unexplained video of television
13
broadcasts, a sampling of various newspaper articles, and its own knowledge of
14
the L.A. Times and other media publicity, the trial court failed to notice or
15
consider the nature of the publicity that saturated Los Angeles county. Instead,
16
the trial court unduly focused on the “extent” of coverage when it assessed the
17
publicity. (See, e.g., 9 RT 269-70; 16 RT 712-15, 764-65.)
18
850. Further evidence of the prejudice resulting from trial counsel’s
19
deficient performance can be seen in the California Supreme Court’s discussion
20
of the venue motion. When discussing the “nature” of the publicity, the
21
California Supreme Court noted the “defendant did not show that the media
22
coverage was unfair or slanted against him or revealed incriminating facts that
23
were not introduced at trial.” Ramirez, 39 Cal. 4th at 433. While this finding by
24
the California Supreme Court is an unreasonable determination of the facts based
25
on what was actually presented and considered during the motion, (see e.g. ex.
26
79, Channel 11 Scripts), it does indicate that had counsel been more explicit in
27
explaining the nature of the publicity, the venue motion would have been granted.
28
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851. The foregoing violations of Petitioner’s constitutional rights, taken
2
singly or in combination with the other errors alleged in the Petition, constitute
3
structural error and warrant the granting of this Petition without any
4
determination of whether the violations substantially affected or influenced the
5
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
6
1710, 123 L. Ed. 2d 353 (1993) Even assuming, however, the harmless error
7
doctrine applies to this claim, the foregoing constitutional violations, singly and
8
in combination with the other errors alleged in this Petition, so infected the
9
integrity of the proceedings that the error cannot be deemed harmless. The
10
foregoing violations of Petitioner’s rights had a substantial and injurious effect
11
or influence on Petitioner’s convictions and sentences, rendering them
12
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
13
637-38.
14
852. In addition, the denial of his right to effective assistance of counsel
15
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
16
unfair, eroded the reliability of the verdict and had a substantial and injurious
17
effect on the verdict. But for the denial of this right, it is reasonably probable that
18
a more favorable result would have been attained. Under these circumstances,
19
the adversarial system completely broke down, and Petitioner was left without
20
meaningful representation. Although many of trial counsel’s errors were, by
21
themselves, so egregious as to require reversal, the extraordinary accumulation of
22
errors and omissions over the course of the trial created a total breakdown in the
23
adversarial process, so that prejudice is conclusively presumed. United States v.
24
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
25
(1984). Even assuming a showing of prejudice is required, Petitioner has made
26
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
27
L. Ed. 2d 674 (1984).
28
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CLAIM 7:
2
THE TRIAL COURT VIOLATED PETITIONER’S
3
CONSTITUTIONAL RIGHTS BY REJECTING
4
PETITIONER’S FOR-CAUSE CHALLENGES OF JURORS
5
WHO WERE NOT LIFE-QUALIFIED
6
853. Exhaustion of the claim: The portion of this claim regarding Robert
7
Domney was fairly presented to the California Supreme Court in the direct
8
appeal in Section VIII of the Opening Brief. The remaining portion will be
9
presented to the California Supreme Court in an exhaustion petition that
10
11
Petitioner will file no later than March 17, 2009.
854. Ramirez’s convictions, sentences, and death judgment violate the
12
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
13
Constitution because the trial court erroneously denied his for-cause challenges
14
against jurors who were not life-qualified, forcing him to use peremptory
15
challenges, which he exhausted. Morgan v. Illinois, 504 U.S. 719, 728, 112 S.
16
Ct. 2222, 119 L. Ed. 2d 492 (1992).
17
18
855. In support of this claim, Petitioner alleges the following facts,
among
19
others to be presented after full discovery, investigation, adequate funding, access
20
to this Court’s subpoena power, and an evidentiary hearing.
21
856. Those facts and allegations set forth in the petition, declarations,
22
claims of constitutional violations, and the accompanying exhibits are
23
incorporated by reference as if fully set forth herein to avoid unnecessary
24
duplication of relevant facts.
25
857. Robert Domney: On his questionnaire, prospective juror Robert
26
Domney stated that he believed the State should impose the death penalty upon
27
everyone who for any reason intentionally kills another human being, during the
28
course of a robbery or otherwise. (IV Supp. CT 9, at 2715.) During Hovey voir
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dire, Domney stated that he considered himself a strong supporter of the death
2
penalty in California; that on a scale of one to ten, he would call himself an eight;
3
and that he considered the death penalty a just punishment for some crimes,
4
including murder, unless it was in self-defense. (See 120 RT 13261-76.)
5
Domney indicated that he would automatically vote for the death penalty if no
6
mitigation evidence were presented at a penalty trial. However, on examination
7
by the prosecutor, Domney said that he would not vote for the death penalty
8
automatically in a case of first degree murder, and that he could consider all of
9
the facts and consider life imprisonment without the possibility of parole equally
10
11
along with the death penalty. (120 RT 13261-76.)
858. Based on Domney’s responses, Petitioner challenged him for cause.
12
The prosecutor asserted that Domney should not be disqualified on the ground
13
that he would “automatically” vote for the death penalty. The trial court, in
14
substance, agreed with the prosecutor, saying that the juror was “about 80 percent
15
in favor of the death penalty,” which was not sufficient for disqualification.
16
Petitioner’s challenge for cause of Robert Domney was denied. (120 RT 13276;
17
XXVIII
18
CT 8182.)
19
859. Petitioner subsequently exercised a peremptory challenge to remove
20
Domney from the jury. (141 RT 16054.) Petitioner exercised all twenty
21
peremptory challenges and moved to increase the number of peremptory
22
challenges. On January 10, 1989, the trial court denied this request. (See 133
23
RT 14937; XXVIII CT 8260.)
24
860. The California Supreme Court has repeatedly held that “neither the
25
prosecution nor the defense has the burden of proof” during the penalty phase.
26
People v. Daniels, 52 Cal. 3d 815, 890, 802 P.2d 906, 277 Cal. Rptr. 122 (1991).
27
Robert Domney made it clear that he favored the death penalty as the appropriate
28
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punishment and would place a burden on a defendant to prove that death was not
2
the appropriate punishment.
3
4
861. In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d
841
5
(1985), the Supreme Cou held that the proper standard for a determination of
6
when a court may excuse a prospective juror for cause because of his views on
7
the death penalty is whether the juror’s views would “prevent or substantially
8
impair the performance of his duties as a juror in accordance with his instructions
9
and his oath.” Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct.
10
2521, 65 L. Ed. 2d 581 (1980)) (emphasis added).
11
862. Domney clearly stated his views: he was a strong supporter of the
12
death penalty and favored the death penalty in nearly all situations – unless the
13
defendant proved self-defense or demonstrated at a penalty trial why his life
14
should be spared. There was no doubt in his mind that the defense had a burden
15
of persuasion with respect to the death penalty. Even though the juror stated that
16
he would consider the evidence, he could not “faithfully and impartially apply the
17
law.” Witt, 469 U.S. at 426.
18
863. The record here shows that Domney held views that would
19
substantially impair his ability, conscientiously and impartially, to perform his
20
duty to judge the evidence and determine the penalty. The record reflects that
21
there was nothing equivocal or conflicting in his answers. People v. Breaux, 1
22
Cal. 4th 281, 309-10 821 P.2d 585, 3 Cal. Rptr. 2d 81 (1991); see also People v.
23
Mattson, 50 Cal. 3d 826, 844, 789 P.2d 983, 268 Cal. Rptr. 802 (1990); People v.
24
Wash, 6 Cal. 4th 215, 254-55, 861 P.2d 1107, 24 Cal. Rptr. 2d 421 (1993). Thus,
25
the trial court erred in denying the challenge for cause as to Domney.
26
864. In Morgan v. Illinois, 504 U.S. 719, 728, 112 S. Ct. 2222, 119 L. Ed.
27
2d 492 (1992), the Supreme Court held that a defendant is entitled to challenge
28
for cause any prospective juror who has already formed an opinion on the merits
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and would automatically vote for death. Such a juror who would act otherwise
2
would not give the defendant an impartial trial as required by the Sixth
3
Amendment or a reliable penalty determination under the Eighth Amendment as
4
required by Woodson v. North Carolina; Lockett v. Ohio, 438 U.S. 586, 98 S. Ct.
5
2954, 57 L. Ed. 2d 973 (1978); and Caldwell v. Mississippi, 472 U.S. 320, 105 S.
6
Ct. 2633, 86 L. Ed. 2d 231 (1985). To ensure his right to jury impartiality under
7
the Sixth and Fourteenth Amendments, Petitioner was entitled to have
8
prospective juror Domney removed for cause.
9
865. Because of the court’s erroneous ruling, Petitioner exercised a
10
peremptory challenge to excuse Domney. Petitioner ultimately exercised all his
11
peremptory challenges. (See 133 RT 14873, 14923-26, 14937, 14939, 14952,
12
14970.) The court denied Petitioner’s request for additional peremptory
13
challenges. (See id. at 14887; XXIV CT 6976-86; XXVIII CT 8260.) The trial
14
court’s denial of the challenge for cause thus prejudiced Petitioner.
15
866. The trial court’s error in denying Petitioner’s challenge of Domney
16
for cause, combined with the limited number of peremptory challenges, interfered
17
with Petitioner’s constitutional rights to an impartial jury, due process, and to
18
equal protection of the laws.
19
867. Johnnie Sansberry: At Hovey voir dire, prospective juror Johnnie
20
Sansberry stated that he “strongly” supported the death penalty in a case of
21
multiple murders. (105 RT 11520.) “[I]f it is premeditated murder, it would be
22
the death penalty,” Sansberry testified, although he later stated that “normally I
23
probably would” vote for the death penalty in such a case. (Id. at 11521.)
24
Sansberry testified that he would not vote for the death penalty if a killing were
25
accidental, but that he would always vote for the death penalty if the defendant
26
had committed an intentional murder during a burglary. (Id. at 11522-24.)
27
868. The defense challenged Sansberry for cause, but the challenge was
28
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denied. (Id. at 11528.) The court held that it would grant defense challenges of
2
prospective jurors who had given disqualifying answers only if defense counsel
3
had asked whether the jurors would automatically vote for death even after
4
considering mitigation evidence. (Id. at 11528-29.)
5
869. The trial court erred in denying the motion for cause. Sansberry was
6
not qualified to sit as a penalty phase juror in a case involving multiple murders
7
or murder in the course of a burglary. His views on the death penalty in such
8
cases “substantially impaired” his ability to serve impartially. As with Robert
9
Domney, Petitioner was forced to use a peremptory strike to remove Sansberry
10
from the jury. (129 RT 14494.) Furthermore, the trial court erred in placing
11
upon Petitioner the responsibility to “rehabilitate” jurors by asking them about
12
mitigation evidence.
13
870. Josie Carter: Josie Carter wrote on her juror questionnaire that,
14
“[r]egarding the death penalty, any person involved or has been proved guilty of
15
committing a series of murders and proven guilty beyond a reasonable doubt
16
should serve the death penalty.” (108 RT 11855.) She affirmed this
17
questionnaire response at Hovey voir dire. (Id. at 11856-59.) Carter also said the
18
death penalty was used too seldom in California, and that she would always vote
19
for the death penalty in a case of intentional murder during the course of a
20
burglary. (Id. at 11863-65; VI Supp. CT 8, at 2363.) Although she said that she
21
wanted to hear “everything” before voting on a penalty (108 RT 11868.), when
22
her voir dire testimony is read as a whole, it becomes clear that by “everything,”
23
Carter meant all evidence regarding the defendant’s guilt. (See id. at 11871.)
24
871. The trial court denied defense counsel’s motion for cause (id. at
25
11874.), and defense counsel later used a peremptory challenge to remove Carter
26
(130 RT 14527.). The trial court’s decision was error. The court noted that
27
Carter’s answers favoring imposition of the death penalty were not phrased in
28
absolute terms (108 RT 11873.), but the relevant question is whether Carter’s
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views “substantially impaired” her ability to serve impartially. Clearly Carter
2
was substantially impaired in a case involving multiple murders or murder during
3
the course of burglary. Because Petitioner’s case involved both circumstances,
4
Carter was not qualified to serve in his case.
5
872. William Christopher Conklin: Prospective juror Conklin believed
6
that
7
the death penalty was given too seldom. (IV Supp. CT 9, at 2522.) On his
8
questionnaire, he stated that he believed that the state should impose the death
9
penalty upon everyone who for any reason intentionally kills another, and anyone
10
who intentionally kills another during the course of a burglary. (Id.) At Hovey
11
voir dire, Conklin testified that there were some cases in which he would vote for
12
the death penalty regardless of any information about the defendant or his
13
background. (108 RT 11935.) A case involving multiple brutal murders would
14
be one such case. (Id. at 11937.) Conklin even went so far as to say that, based
15
on what he knew of Petitioner’s case at the time, he would automatically vote for
16
the death penalty in Petitioner’s case. (Id. at 11939.)
17
873. At this point, the court stepped in and “rehabilitated” Conklin by
18
leading him to state that he would consider mitigation evidence before voting on
19
the appropriate penalty. (Id. at 11939-40.) Defense counsel objected to the
20
court’s suggestive “rehabilitation,” but the court denied defense counsel’s
21
challenge nonetheless. (Id. at 11943.) The trial court’s decision was
22
constitutional error, as Conklin was “substantially impaired” in his abilities to
23
serve on a capital jury in a case, like Petitioner’s, involving multiple brutal
24
murders.
25
874. The trial court’s decision to retain the aforementioned jurors because
26
they stated that they could “consider” mitigation evidence was particularly
27
unreasonable in light of the introduction the court gave to each group of new
28
prospective jurors. In this introduction, the court instructed the jurors that they
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1
were required to consider such mitigating evidence. It stated that even after
2
convicting a defendant of first degree murder and finding the special
3
circumstances to be true, the jury “must listen to, consider and weigh all of the
4
[mitigation] evidence before they come back with a verdict.” (See, e.g., 119 RT
5
13086.) In other words, the trial court informed the prospective jurors of the
6
answer that was acceptable to the question they were about to be asked. Only a
7
blatantly rebellious juror would, after this introduction from the court, state that
8
he would not consider mitigation evidence.
9
875. The jurors’ assurances that they would do so cannot negate the other
10
responses establishing that their views on the death penalty “substantially
11
impaired” their ability to serve. If a juror expresses a disqualifying dogmatic
12
preference in favor of imposing the death penalty, a concomitant pledge to
13
“follow the law” will not save him. “It may be that a juror could, in good
14
conscience, swear to uphold the law and yet be unaware that maintaining such
15
dogmatic beliefs about the death penalty would prevent him or her from doing
16
so.” See Morgan, 504 U.S. at 735.
17
876. The foregoing violations of Petitioner’s constitutional rights, taken
18
singly or in combination with the other errors alleged in the Petition, constitute
19
structural error and warrant the granting of this Petition without any
20
determination of whether the violations substantially affected or influenced the
21
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
22
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
23
doctrine applies to this claim, the foregoing constitutional violations, singly and
24
in combination with the other errors alleged in this Petition, so infected the
25
integrity of the proceedings that the error cannot be deemed harmless. The
26
foregoing violations of Petitioner’s rights had a substantial and injurious effect
27
or influence on Petitioner’s convictions and sentences, rendering them
28
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fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
2
637-38.
3
877. To the extent that this Court finds that this claim should have been
4
presented earlier, all prior counsel who failed to present the claim after the facts
5
on which it is based became known or should have been known rendered
6
ineffective assistance in not asserting it sooner, and the Court should consider the
7
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
8
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
9
Ct. 2052, 80 L. Ed. 2d 674 (1984).
10
CLAIM 8:
11
THE TRIAL COURT DEPRIVED PETITIONER OF HIS RIGHT TO
12
AN IMPARTIAL JURY BY ERRONEOUSLY EXCLUDING
13
POTENTIAL JURORS WHOSE CONCERNS ABOUT THE DEATH
14
PENALTY WOULD NOT HAVE SUBSTANTIALLY IMPAIRED
15
THE PERFORMANCE OF THEIR DUTIES
16
878. Exhaustion of Claim: Ramirez will present this claim to the
17
California Supreme Court in an exhaustion petition that he will file no later than
18
March 17, 2009.
19
879. Ramirez’s convictions, sentences, and death judgment violate the
20
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
21
Constitution because the trial court erroneously excluded for cause two
22
prospective jurors who were actually qualified to serve, thus depriving Ramirez
23
of his right to an impartial jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct.
24
1770, 20 L. Ed. 2d 776 (1968); see Gray v. Mississippi, 481 U.S. 648, 668, 107 S.
25
Ct. 2045, 95 L. Ed. 2d 622 (1987).
26
880. The exhibits filed with this Petition and the allegations set forth
27
elsewhere in this Petition are hereby incorporated by reference into this claim as
28
though set forth in full.
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881. The facts in support of this claim, among others to be presented after
2
full investigation, discovery, access to this Court’s subpoena power, and an
3
evidentiary hearing, include the following:
4
882. The trial court committed prejudicial error by granting the
5
prosecution’s motions to exclude prospective jurors Ross Arakaki and Jose
6
Garrido for cause. Neither of these jurors expressed views regarding the death
7
penalty that justified their exclusion under Witherspoon, 391 U.S. 510, or
8
Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).
9
883. In Witherspoon, the Supreme Court held that the prosecution in a
10
capital case may challenge a juror for cause, on the basis of opposition to the
11
death penalty, only when the juror makes it unmistakably clear that he “would
12
automatically vote against the imposition of capital punishment without regard to
13
any evidence that might be developed at the trial of the case before [him].” 391
14
U.S. at 523 n.21. The Court explained that “a sentence of death cannot be carried
15
out if the jury that imposed or recommended it was chosen by excluding
16
veniremen for cause simply because they voiced general objections to the death
17
penalty or expressed conscientious or religious scruples against its infliction.” Id.
18
at 522.
19
884. The Court has never retreated from the central constitutional point it
20
made in Witherspoon, that “[a] man who opposes the death penalty, no less than
21
one who favors it, can make the discretionary judgment entrusted to him by the
22
State and can thus obey the oath he takes as a juror.” 391 U.S. at 519. Indeed,
23
“those who firmly believe that the death penalty is unjust may nevertheless serve
24
as jurors in capital cases so long as they state clearly that they are willing to
25
temporarily set aside their own beliefs in deference to the rule of law.” Lockhart
26
v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). A
27
challenge for cause is warranted only when a juror’s views on capital punishment
28
would “prevent or substantially impair the performance of his duties as a juror in
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1
accordance with his instructions and his oath.” Witt, 469 U.S. at 424 (quoting
2
Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980))
3
(internal quotation marks omitted).
4
885. Accordingly, prospective jurors are not excludable under
5
Witherspoon and Witt merely because they (1) “voice[] general objections to the
6
death penalty or express[] conscientious or religious scruples against its
7
infliction,” Witherspoon, 391 U.S. at 522; (2) express nervousness or emotion
8
stemming from the “potentially lethal consequences of their decision,” Adams,
9
448 U.S. at 49-50; or (3) are otherwise “hesitant in their ability to sentence a
10
defendant to death,” see Morgan v. Illinois, 504 U.S. 719, 732, 112 S. Ct. 2222,
11
119 L. Ed. 2d 492 (1992). This is because “[i]t is entirely possible, of course,
12
that even a juror who believes that capital punishment should never be inflicted
13
and who is irrevocably committed to its abolition could nonetheless subordinate
14
his personal views to what he perceived to be his duty to abide by his oath as a
15
juror and to obey the law of the State.” Witherspoon, 391 U.S. at 515 n.7.
16
886. “[I]t is the adversary seeking exclusion who must demonstrate,
17
through questioning, that the potential juror lacks impartiality.” Witt, 469 U.S. at
18
423. The Supreme Court has recognized that prospective jurors who express
19
concerns about the death penalty may “clarif[y] their positions upon further
20
questioning and reveal[] that their concerns about the death penalty [are] weaker
21
than they originally stated.” Gray, 481 U.S. at 662-63. Improper exclusion of
22
jurors in violation of Witt is harmful per se and no prejudice need be shown. Id.
23
at 659-60.
24
887. Ross Arakaki: On his juror questionnaire, Arakaki wrote that he was
25
“undecided” about the death penalty. (VI Supp. CT 7, at 1796.) In response to
26
the court’s questioning at Hovey voir dire, Arakaki stated that he believed he
27
could vote for the death penalty knowing that it would confirm a man to death.
28
(101 RT 10903.) He said that he would consider the degree of premeditation,
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violence, and remorse in determining whether the death penalty were appropriate.
2
(Id. at 10906.) Arakaki told the prosecutor that he had some “repugnance” for the
3
death penalty, but that he was still “undecided” about its propriety in specific
4
cases. (Id. at 10910-11.) He said that he’d prefer not to have to confront the
5
issue, but if he were required to do so, he would “have to weigh all the evidence
6
and weigh my conscience at the same time.” (Id. at 10911.)
7
888. At this point, the court, apparently believing that Arakaki was
8
“backing off” from his earlier affirmation that he could vote for the death penalty,
9
began to question him again. The court asked whether, “if you thought it were
10
appropriate that the death penalty should be imposed, do you think that you could
11
impose that penalty, you personally say to defendant ‘X,’ ‘You are going to die.
12
I’m going to tell you you’re going to die’? Could you do that?” (Id. at 10914-
13
15.)
14
889. The court and Arakaki then had the following exchange:
15
[Arakaki]: Perhaps. I don’t know.
16
The Court: Perhaps not. So right now you don’t know if you could
17
do it?
18
[Arakaki]: I guess the bottom line, yes, I don’t know.
19
The Court: So your answer before that, yes, you could do it, wasn’t
20
really an accurate reflection of how you feel about that?
21
[Arakaki]: That’s correct.
22
The Court: Is it more likely that you would not be able to vote for
23
the death penalty because of some conscientious objections that you
24
have?
25
[Arakaki]: I really don’t have a decision of swaying either way at
26
this time.
27
(Id. at 10915.)
28
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890. The prosecutor challenged Arakaki for cause because he was,
2
allegedly, “obviously unable to make a decision with respect to the issue of death
3
penalty.” (Id. at 10916.) The court stated that “we’re in that very, very gray
4
area.” (Id.) Defense counsel argued that Arakaki was simply being
5
conscientious, and pointed out that he had testified that he could in fact vote for
6
the death penalty. (Id. at 10917.) The court called the challenge a “very, very
7
close case.” (Id.) It said that “[f]ive years ago . . ., this would not disqualify.”
8
(Id. at 10918.) The prosecutor argued that the law had changed “immensely” in
9
five years, and assured the court that “I certainly don’t think that we should even
10
concern ourselves with Witherspoon at this juncture.” (Id. at 10918-19.) The
11
trial court granted the challenge, finding that Arakaki “does not at this point have
12
the capacity to -- to really make a decision on life or death for a defendant in a
13
capital case,” and thus, that his views would “substantially impair” the
14
performance of his duties. (Id. at 10919.)
15
891. The trial court gravely erred in its questioning and dismissal of
16
Arakaki. It was entirely improper for the court to ask Arakaki whether he could
17
“personally say to defendant ‘X,’ ‘You are going to die. I’m going to tell you
18
you’re going to die’?” Of course, no juror would ever be required to do this, and
19
Arakaki’s responses to the court’s misleading and inflammatory question cannot
20
possibly be used to disqualify him.
21
892. The decision between life and death should be a difficult one. The
22
Constitution does not tolerate exclusion of prospective jurors who state that “the
23
potentially lethal consequences of their decision would invest their deliberations
24
with greater seriousness and gravity or would involve them emotionally.”
25
Adams, 448 U.S. at 49. Nor does “repugnance” toward the death penalty in
26
general disqualify a juror from serving.
27
28
893. Similarly, the trial court’s reliance on Arakaki’s indecision is
misplaced, as equivocation or uncertainty often reflects the “seriousness” that
330
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Adams condones. See Gray, 481 U.S. at 653, 659 (holding that the exclusion of a
2
juror whose testimony was “somewhat confused,” but who “ultimately stated that
3
she could consider the death penalty in an appropriate case,” violated the
4
Constitution); see also Gall v. Wilson, 231 F.3d 265, 331-32 (6th Cir. 2000)
5
(holding that trial court committed reversible error by excusing prospective juror
6
who was “undecided” on capital punishment and who stated that “it is just one of
7
those things you would have to cross when you got to it”), superseded by statute
8
on other grounds, Bowling v. Wilson, 344 F.3d 487 (6th Cir. 2003).
9
894. “As Witt makes clear, . . . our inquiry does not end with a
10
mechanical recitation of a single question and answer.” Darden v. Wainwright,
11
477 U.S. 168, 176, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). It is necessary to
12
“examine the context surrounding [the juror’s] exclusion.” Id. Although Arakaki
13
described himself as “undecided,” his testimony overall makes clear that he
14
believed himself able to make the decision if necessary.
15
895. “[I]f prospective jurors are barred from jury service because of their
16
views about capital punishment on ‘any broader basis’ than inability to follow the
17
law or abide by their oaths, the death sentence cannot be carried out.” Adams,
18
448 U.S. at 47-48 (quoting Witherspoon, 391 U.S. at 522 n.21). Taking into
19
account the entire context of Arakaki’s exclusion, it is clear that his exclusion
20
was improper.
21
896. Jose Garrido: Prospective juror Jose Garrido was a Catholic who had
22
religious scruples against the death penalty. While at first Garrido indicated that
23
he would always vote against the death penalty, he also made clear that he was
24
confused about the hypothetical nature of the questions at Hovey voir dire. (115
25
RT 12501-02.) Garrido said that he was reluctant to make a decision about the
26
death penalty, but that his view might change after hearing the case. In
27
particular, it would depend on “weighing the case, . . . how serious the
28
defendant.” (Id. at 12508.) Garrido understood that he would have certain duties
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1
as a juror, and said that he might vote for the death penalty if he became a seated
2
juror. (Id. at 12512.)
3
897. The prosecutor asked Garrido whether he understood that if he were
4
seated on the jury, “it is possible that you will be asked to take that man’s life.”
5
(Id. at 12515.) “[A]re you willing to put aside your religion and take a man’s life
6
for the State of California?” (Id. at 12516.) Garrido responded that “I might put
7
away my religious belief and apply the state belief, you know, however you want
8
to call it.” (Id.) The prosecutor then had Garrido concede that if he voted for the
9
death penalty, he would be committing “a mortal sin.” (Id. at 12517.) The
10
prosecutor asked: “Are you saying that you are willing to commit a mortal sin, to
11
condemn yourself to everlasting hell in voting for the death penalty for an
12
individual?” (Id.) The court sustained defense counsel’s objection, but the
13
prosecutor followed by asking, “Are you saying that you are willing to commit a
14
mortal sin and condemn someone to death?” Garrido replied that he was not.
15
(Id.) The court granted the prosecutor’s challenge for cause. (Id. at 12521.)
16
898. Garrido’s statements on his questionnaire amounted to an expression
17
of opposition to capital punishment based on “religious scruples.” It is absolutely
18
clear under Supreme Court precedent that such a position is not sufficient to
19
render a prospective juror excludable. Garrido was clear that he understood the
20
obligations of a juror and that he was open to applying the “state’s belief” instead
21
of his “religious belief.” This is precisely what the Witherspoon inquiry
22
endeavors to determine: whether a juror, though opposed to capital punishment,
23
is able and willing to “temporarily set aside [her] own beliefs in deference to the
24
rule of law.” McCree, 476 U.S. at 176; see also Witherspoon, 391 U.S. at 515 n.7
25
(“It is entirely possible, of course, that even a juror who believes that capital
26
punishment should never be inflicted and who is irrevocably committed to its
27
abolition could nonetheless subordinate his personal views to what he perceived
28
to be his duty to abide by his oath as a juror and to obey the law of the State.”).
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1
899. Moreover, the prosecution’s questions about whether Garrido was
2
willing to “take a man’s life for the State of California” and “condemn [himself]
3
to everlasting hell” were improper and misleading. No juror would be asked to
4
“take” a man’s life in any active sense of the word. These inflammatory
5
questions served only to back Garrido into a position in which he would
6
disqualify himself. Garrido’s exclusion violated the Constitution.
7
900. The foregoing violations of Petitioner’s constitutional rights, taken
8
singly or in combination with the other errors alleged in the Petition, constitute
9
structural error and warrant the granting of this Petition without any
10
determination of whether the violations substantially affected or influenced the
11
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
12
Ct. 1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
13
doctrine applies to this claim, the foregoing constitutional violations, singly and
14
in combination with the other errors alleged in this Petition, so infected the
15
integrity of the proceedings that the error cannot be deemed harmless. The
16
foregoing violations of Petitioner’s rights had a substantial and injurious effect
17
or influence on Petitioner’s convictions and sentences, rendering them
18
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
19
637-38.
20
901. To the extent that this Court finds that this claim should have been
21
presented earlier, all prior counsel who failed to present the claim after the facts
22
on which it is based became known or should have been known rendered
23
ineffective assistance in not asserting it sooner, and the Court should consider the
24
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
25
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
26
Ct. 2052, 80 L. Ed. 2d 674 (1984).
27
CLAIM 9:
28
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1
VOIR DIRE AT PETITIONER’S TRIAL WAS INADEQUATE TO
2
SECURE HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL
3
AND LIFE-QUALIFIED JURY
4
902. Exhaustion of Claim: This claim will be presented to the California
5
Supreme Court in an exhaustion petition that he will file no later than March 17,
6
2009.
7
903. Ramirez’s convictions, sentences, and death judgment violate the
8
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
9
Constitution because the voir dire proceeding conducted at his trial was
10
inadequate to secure his right to an impartial and life-qualified jury. Morgan v.
11
Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992).
12
904. The exhibits filed with this Petition and the allegations set forth
13
elsewhere in this Petition are hereby incorporated by reference into this claim as
14
though set forth in full.
15
905. The facts in support of this claim, among others to be presented after
16
full investigation, discovery, access to this Court’s subpoena power, and an
17
evidentiary hearing, include the following:
18
906. The voir dire proceeding conducted at Ramirez’s trial was
19
constitutionally inadequate to secure his right to an impartial, life-qualified jury.
20
Three major factors contributed to the infirmity of the proceeding: (1) the trial
21
court’s conduct at hardship and publicity voir dire taught the jurors that they were
22
to follow the court’s lead in answering voir dire questions; (2) at Hovey voir dire,
23
the court instructed the jurors that they would be required to consider mitigation
24
evidence before asking them whether they would do so; and (3) defense counsel
25
was forbidden from asking prospective jurors questions specific enough to
26
determine whether they could fairly and impartially serve, not on an abstract
27
capital case, but on Ramirez’s case in particular. As a result, Ramirez was unable
28
to probe prospective jurors in a meaningful fashion to determine whether they
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1
could be impartial. Ramirez was similarly prevented from exercising his
2
peremptory strikes in an informed and intelligent fashion.
3
907. The Sixth Amendment guarantees criminal defendants trial by an
4
impartial jury. A juror who is not “life-qualified” -- that is, one who would
5
automatically vote for the death penalty after conviction in every capital case -- is
6
not considered impartial. Morgan, 504 U.S. at 729. “[P]art of the guarantee of a
7
defendant’s right to an impartial jury is an adequate voir dire to identify
8
unqualified jurors.” Id. “Voir dire plays a critical function in assuring the
9
criminal defendant that his [constitutional] right to an impartial jury will be
10
honored. Without an adequate voir dire the trial judge’s responsibility to remove
11
prospective jurors who will not be able impartially to follow the court’s
12
instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v.
13
United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981)
14
(plurality opinion).
15
908. “Were voir dire not available to lay bare the foundation of
16
petitioner’s challenge for cause against those prospective jurors who would
17
always impose death following conviction, his right not to be tried by such jurors
18
would be rendered as nugatory and meaningless as the State’s right, in the
19
absence of questioning, to strike those who would never do so.” Morgan, 504
20
U.S. at 733-34. “Inadequacy of voir dire” itself -- completely apart from whether
21
any of the seated jurors was actually biased -- requires the reversal of a death
22
sentence. Indeed, this was the result in Morgan itself. Id. at 739.
23
909. As for the substance of voir dire, general questions about
24
prospective jurors’ fairness and impartiality are not sufficient to satisfy the
25
Constitution. Morgan, 504 U.S. at 735. The defendant must be permitted to
26
inquire about the jurors’ ability to discharge their sentencing obligations in the
27
case at hand. Uttecht v. Brown, 127 S. Ct. 2218, 2226, 167 L. Ed. 1014 (2007)
28
(upholding a trial court finding that a prospective juror was disqualified under
335
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1
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968),
2
because his voir dire questioning revealed that “he had both serious
3
misunderstandings about his responsibility as a juror and an attitude toward
4
capital punishment that could have prevented him from returning a death
5
sentence under the facts of this case” (emphasis added)).
6
910. It is both permissible and necessary to explore juror bias with
7
respect to particular aggravating and mitigating factors likely to be presented to
8
the jurors in the case before them. See generally United States v. Johnson, 366 F.
9
Supp. 2d 822 (N.D. Iowa 2005). For example, a prospective juror who states, in
10
response to abstract questions, that he could vote for life without parole, while in
11
actuality, he could never so vote in a case of murder-for-hire, would not be
12
qualified to serve in a murder-for-hire case. Such a juror would certainly vote for
13
death following conviction in that case, rendering the penalty phase a
14
meaningless exercise. If the defendant were forbidden from inquiring about the
15
prospective juror’s views on the death penalty in cases of murder for hire, the
16
juror’s bias could never be uncovered. See State v. Williams, 550 A.2d 1172,
17
1184, 113 N.J. 393 (1988) (reversing conviction and death sentence largely
18
because defendant was prevented from inquiring about prospective jurors’ ability
19
to vote for life in the case at hand, which involved murder and rape); see also
20
State v. Maxie, 653 So. 2d 526, 538, 93-2158 (La. 4/10/95) (“A potential juror
21
who indicates that she will not consider a life sentence and will automatically
22
vote for the death penalty under the factual circumstances of the case before her
23
is subject to a challenge for cause.”); People v. Kirkpatrick, 7 Cal. 4th 988, 1005,
24
30 Cal. Rptr. 2d 818 (1994) (as modified) (“A prospective juror who would
25
invariably vote . . . for . . . the death penalty because of one or more
26
circumstances likely to be present in the case being tried, without regard to the
27
strength of aggravating or mitigating circumstances, is therefore subject to
28
challenge for cause . . . .”).
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1
911. The same principle applies to types of mitigating evidence. A juror
2
who would never consider evidence of an abusive childhood to be mitigating, for
3
example, is not qualified to sit on a case in which the defendant relies wholly or
4
primarily on such evidence, even if the juror could, in theory, find some other
5
type of evidence to have a mitigating effect. Such a juror could not, in the case at
6
hand, follow the constitutional imperative to “consider[] any constitutionally
7
relevant mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.
8
Ct. 757, 139 L. Ed. 2d 702 (1998); Eddings v. Oklahoma, 455 U.S. 104, 114-15,
9
102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (“Just as the State may not by statute
10
preclude the sentencer from considering any mitigating factor, neither may the
11
sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.
12
. . . [Sentencers] determine the weight to be given relevant mitigating evidence.
13
But they may not give it no weight by excluding such evidence from their
14
consideration.”).
15
912. Petitioner’s voir dire did not live up to the demands of the
16
Constitution -- it was not a serious, meaningful inquiry into the qualifications and
17
biases of the prospective jurors. The judge’s offhanded comments taught the
18
jurors to regard voir dire as a boring necessity to be endured. “I know it is
19
boring,” the judge remarked at one point, “but try doing it for a living sometimes,
20
it is tough.” (66 RT 4970.)
21
913. Voir dire was treated as a rote and vacuous exercise. At one point
22
during publicity voir dire, after defense counsel questioned a prospective juror
23
about the conversations she had had with her coworker about Ramirez and the
24
Night Stalker killings, the trial judge referred to defense counsel’s questioning as
25
a “waste [of] time.” (70 RT 5846.) Defense counsel rightly responded, “Your
26
honor, this is voir dire. I expect the court not to constantly refer to it as a waste
27
of time.” (Id.)
28
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1
914. Even more important, the trial court’s conduct at hardship and
2
publicity voir dire taught the jurors that they were to follow the court’s lead in
3
answering voir dire questions. Countless times, the court, in front of large panels
4
of prospective jurors, led or attempted to lead panelists to give answers that
5
qualified them for hardship dismissal. The court emphasized that there were
6
certain “lines” that could get a prospective juror dismissed. (See, e.g., 68 RT
7
5358 (“That is known as a leading and suggestive question, sir. If you don’t pick
8
up on the first one, I’m not going to do it again.”); id. at 5368 (after prospective
9
juror answered “yes,” court instructed, “[w]ell, now wait a minute. Just give me
10
a no . . . .”); 70 RT 5772 (“That is the line I’m waiting for. Give me that one.”);
11
id. at 5773 (“Will you do me a favor, Mr. Nemecek, and have your boss tell you
12
that you won’t be paid . . . .”); 72 RT 6188 (Court: “Just tell me you think you got
13
a health hardship and I will let you go.” Juror: “I think I have a hardship, health
14
hardship.”); 74 RT 6499 (“I give you these lines, Mr. Dill, and you don’t pick
15
them up.”); 76 RT 6851 (“I can only feed you straight lines for so long.”).)
16
915. Just as there were “lines” that could get a prospective juror
17
dismissed, there were lines that could insulate a juror from dismissal, as the court
18
made fairly clear. Defense counsel objected at length to the court’s pattern:
19
I think this is educating the individuals on this panel that is left to at
20
least leaning them in the direction where they can know what they
21
have to say if they want to be on the jury, whatever the motive is for
22
wanting to be on the jury.
23
I think it is detrimental and I think on those grounds I want to
24
challenge the panel that is left because I feel th court has, in essence,
25
educated those who want to remain on this jury, just like sometimes
26
we give them leads as to how to get a hardship. The court gives
27
them leads as to how to get hardship.
28
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1
The court gave them the ultimate lead as to how to stay on this jury,
2
if they want to, by saying they haven’t formed an opinion. I don’t
3
think that that is up to the court to do that.
4
I think the court should just be very objective, very brief in letting
5
them know just the topic, the areas that we’re going into, and not
6
making any statements or conclusions or leading statements that will
7
open the door to the jury room or the key to the jury room door.
8
....
9
Basically what . . . I’m objecting to is basically that once the court
10
starts giving them concrete positions that they could take in order to
11
be on the jury or to get off the jury, either way, that it is no longer up
12
to the questioning or the inquiring by the attorneys.
13
(86 RT 8583-85.) Instead of admonishing prospective jurors about the gravity of
14
their oath, and the constitutional significance of the voir dire process, the trial
15
judge encouraged the jurors to choose the outcome they desired -- excusal or
16
retention -- and answer the questions accordingly. The trial court’s actions
17
devalued the jurors’ oath and rendered their responses untrustworthy.
18
916. The second major flaw in Ramirez’s voir dire intensified the harmful
19
effects of the first. In explaining the trial process, the trial court informed the
20
prospective jurors what answers were acceptable to the questions they were about
21
to be asked at Hovey voir dire. In particular, the court instructed the jurors that
22
they were required to consider and weigh mitigation evidence before voting on
23
the penalty. It stated that even after convicting a defendant of first degree murder
24
and finding the special circumstances to be true, the jury “must listen to, consider
25
and weigh all of the [mitigation] evidence before they come back with a verdict.”
26
(See, e.g., 119 RT 13086.) Only a blatantly rebellious juror would, after this
27
introduction from the court, state that he would not consider mitigation evidence.
28
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1
917. A number of times, however, jurors who appeared to be disqualified
2
because they would automatically vote for death after finding guilt and special
3
circumstances in a case such as Ramirez’s were saved by asserting that they
4
would “consider” mitigation. Chris Conklin, for example, testified that in a case
5
like the Charles Manson case, or Ramirez’s case as far as he knew, he would
6
automatically vote for the death penalty after finding guilt and special
7
circumstances. (108 RT 11938-39.) The court followed up: “Hang on a minute.
8
When you say automatically, Mr. Conklin, do you mean no matter what you
9
heard during the penalty phase, whether you heard any mitigation or not, you
10
would vote in the Manson case, let’s say, for death, without regard to what you
11
heard in mitigation during the penalty phase?” (Id. at 11939.) Conklin replied
12
that he would consider mitigation, the defense’s challenge for cause was denied.
13
(Id. at 11939-40, 11944-45.)
14
918. Petitioner’s life should not hang on the assurances of prospective
15
jurors regurgitating answers that were fed to them by the court. The jurors’
16
answers were meaningless because the judge had devalued their oath and fed
17
them the answers they had to give to obtain his approval and to appear to be fair.
18
919. The third major flaw in Ramirez’s voir dire was that defense counsel
19
was forbidden from asking prospective jurors questions specific enough to
20
determine whether they could fairly and impartially serve on Ramirez’s case. For
21
months, defense counsel asked prospective jurors at Hovey voir dire whether they
22
could consider imposing a life sentence for a murder committed during the course
23
of a burglary or residential robbery. One of the questions on the juror
24
questionnaire probed precisely this issue. One day, however, the court suddenly
25
decided to limit counsel’s questioning. “[I]f you will couch your questions in
26
terms of felony/murder perhaps and leave out burglary or residential robbery, I
27
guess that will be required of you,” the court ordered. (121 RT 13412-13; see
28
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1
also id. at 13414 (“Do not ask jurors if they would -- could give a life without
2
parole punishment on a residential burglary/murder, okay?”).)
3
920. The heightened restrictions made it impossible for defense counsel
4
to examine prospective jurors in a meaningful fashion. The fact of the matter is
5
that the offenses charged did involve murders during the course of residential
6
burglaries or robberies. Even a defendant charged with such crimes, however,
7
has a constitutional right to put on a guilt and penalty phase defense before jurors
8
who are not too biased to consider it impartially. Without such jurors, the penalty
9
phase is a useless exercise the outcome of which is already known. A juror who
10
would automatically vote for death after conviction on such charges was not
11
qualified under the Constitution to serve in this case. The trial court’s restriction
12
made it impossible for Ramirez to identify such jurors and, thus, deprived him of
13
his constitutional rights.
14
921. The foregoing violations of Petitioner’s constitutional rights, taken
15
singly or in combination with the other errors alleged in the Petition, constitute
16
structural error and warrant the granting of this Petition without any
17
determination of whether the violations substantially affected or influenced the
18
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
19
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
20
doctrine applies to this claim, the foregoing constitutional violations, singly and
21
in combination with the other errors alleged in this Petition, so infected the
22
integrity of the proceedings that the error cannot be deemed harmless. The
23
foregoing violations of Petitioner’s rights had a substantial and injurious effect
24
or influence on Petitioner’s convictions and sentences, rendering them
25
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
26
637-38.
27
28
922. To the extent that this Court finds that this claim should have been
presented earlier, all prior counsel rendered ineffective assistance in not asserting
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1
it sooner, and the Court should consider the claim on the merits. Coleman v.
2
Thompson, 501 U.S. 722, 753-54, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991);
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
4
(1984).
5
CLAIM 10:
6
INEFFECTIVE ASSISTANCE DURING JURY SELECTION
7
923. Exhaustion: This claim will be presented to the California Supreme
8
Court in an exhaustion petition that he will file no later than March 17, 2009.
9
924. Ramirez’s convictions, sentences, and death judgment violate the
10
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
11
Constitution because he was deprived of the effective assistance of counsel in
12
connection with the jury selection phase of his trial. See Strickland v.
13
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
14
925. In support of this claim, Petitioner alleges the following facts,
15
among others to be presented after full discovery, investigation, adequate
16
funding, access to this Court’s subpoena power, and an evidentiary hearing.
17
926. Those facts and allegations set forth in the petition, declarations,
18
claims of constitutional violations, and the accompanying exhibits are
19
incorporated by reference as if fully set forth herein to avoid unnecessary
20
duplication of relevant facts.
21
927. Defense counsel rendered ineffective assistance in the following
22
ways, considered both individually and cumulatively:
23
A.
Failing To Challenge or Adequately Question Jurors Whose
24
Convictions About the Death Penalty Substantially Impaired the
25
Performance of Their Duties
26
928. Defense counsel failed adequately to voir dire and challenge seated
27
juror Donald McGee, who expressed opinions in favor of the death penalty that
28
would “prevent or substantially impair the performance of [his] duties” as a juror
342
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1
with respect to the choice of penalty. Wainwright v. Witt, 469 U.S. 412, 424, 105
2
S. Ct. 844, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45,
3
100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)). Trial counsel rendered ineffective
4
assistance in failing to challenge McGee or question him carefully and reasonably
5
in order to expose or confirm views concerning capital punishment that would
6
have supported a challenge for cause or the intelligent exercise of a peremptory
7
strike. Trial counsel challenged seated juror Chakalit Harris for cause, but failed
8
to voir dire her adequately to establish a basis for her removal, and failed to
9
exercise a peremptory strike against her. This, too, constituted prejudicial
10
11
ineffective assistance of counsel.
929. A prospective juror who would automatically impose a sentence of
12
death upon conviction of a capital offense is disqualified from sitting on a capital
13
jury. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492
14
(1992). “[T]he belief that death should be imposed ipso facto upon conviction of
15
a capital offense reflects directly on that individual’s inability to follow the law. .
16
. . Any juror who would impose death regardless of the facts and circumstances
17
of conviction cannot follow the dictates of law.” 504 U.S. at 735. Such
18
individuals deem mitigating evidence to be irrelevant to the penalty
19
determination, despite the constitutional imperative that it be considered. See,
20
e.g., Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S. Ct. 869, 71 L. Ed. 2d 1
21
(1982).
22
930. A juror who would never consider evidence of an abusive childhood
23
to be mitigating, for example, is not qualified to sit on a case in which the
24
defendant relies wholly or primarily on such evidence, even if the juror could, in
25
theory, find some other type of evidence to have a mitigating effect. Such a juror
26
could not, in the case at hand, follow the constitutional imperative to “consider[]
27
any constitutionally relevant mitigating evidence.” Buchanan v. Angelone, 522
28
U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998); Eddings, 455 U.S. at
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114-15 (“Just as the State may not by statute preclude the sentencer from
2
considering any mitigating factor, neither may the sentencer refuse to consider, as
3
a matter of law, any relevant mitigating evidence. . . . [Sentencers] determine the
4
weight to be given relevant mitigating evidence. But they may not give it no
5
weight by excluding such evidence from their consideration.”).
931. If a juror expresses a disqualifying dogmatic preference in favor of
6
7
imposing the death penalty, a concomitant pledge to “follow the law” will not
8
save him. “It may be that a juror could, in good conscience, swear to uphold the
9
law and yet be unaware that maintaining such dogmatic beliefs about the death
10
penalty would prevent him or her from doing so.” See Morgan, 504 U.S. at 735.
11
932. Donald McGee: Seated juror Donald McGee stated on his juror
12
questionnaire that the death penalty should be imposed on everyone who for any
13
reason intentionally kills another, during the course of a burglary or otherwise.
14
(VI Supp. CT 15, at 4270.) He wrote that “[a]n accidental killing may not
15
warrant the death penalty. Premeditated murder may warrant death penalty.”
16
(Id.)
17
933. At Hovey voir dire, McGee rated himself a seven of ten in favor of
18
the death penalty. (97 RT 10303.) He explained that the propriety of the death
19
penalty depended, in his opinion, upon the nature of the crime: “I’m not a person
20
who says that whoever commits a crime must have the death penalty. . . . I don’t
21
think that everybody that is convicted of a crime . . . should be lumped into one
22
group of people . . . . Everybody who is convicted of a crime should -- maybe
23
they don’t deserve the death penalty, maybe their particular crime doesn’t warrant
24
the death penalty, and I think that is where my seven comes in.” (Id. at 10309.)
25
934. Crucially, defense counsel never asked McGee whether a case
26
involving multiple murders, brutal murders, or intentional murders during the
27
course of a residential burglary or rape would be the type of case in which the
28
death penalty was always appropriate. Counsel’s failure to do so is inexplicable
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1
in light of the fact that he asked other prospective jurors some of these questions.
2
3
935. In light of McGee’s statements -- in his questionnaire and at voir
4
dire -- that he believed that the death penalty should be imposed in any case of
5
intentional murder, and that the propriety of the death penalty depended upon the
6
nature of the crime, defense counsel should have either challenged McGee for
7
cause or voir dired him further to explore and confirm his predisposition for a
8
death verdict. If the trial court had denied a for-cause challenge, counsel should
9
have exercised a peremptory strike to remove McGee from the jury. Counsel
10
11
rendered ineffective assistance of counsel in permitting McGee to serve.
936. Chakalit Harris: Seated juror Chakalit Harris wrote on her
12
questionnaire that “[s]ome people need to be put to death; some don’t.” (105 RT
13
11485.) At Hovey voir dire, she clarified that “those that willfully did what they
14
were doing for their own purpose” deserve to be put to death. (Id. at 11486.)
15
“[I]f they’re willfully doing it because they’re getting a kick out of it or whatever
16
it is doing for them, they don’t need to be alive. If they’re getting off . . . killing
17
other people, then maybe they have ought to be dead, too.” (Id.)
18
937. In response to the court’s questioning, Harris said that she would be
19
“willing to listen to other circumstances in mitigation” in such a case, although
20
she had earlier said that she did not “know what any other circumstances could be
21
added to that to make it any different.” (Id. at 11487, 11489-90.) The court
22
denied the defense’s challenge for cause. (Id. at 11498.)
23
938. Despite Harris’s harsh answers, and despite the fact that the defense
24
bore the burden of proving that Harris was disqualified, defense counsel failed
25
entirely to question Harris about her ability to consider the types of mitigation
26
evidence that may have been at issue in Ramirez’s case. For example, defense
27
counsel never questioned Harris about whether, in a case involving multiple
28
intentional murders, she could meaningfully consider and give effect to evidence
345
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1
regarding addiction, seizure disorder, mental illness, child abuse, or any of a host
2
of other factors. Had Harris answered no to any of these questions, the defense’s
3
challenge for cause would have succeeded. Failing this, defense counsel should
4
have used a peremptory strike to remove Harris from the jury.66
5
B.
Failing To Adequately Question or Attempt To Rehabilitate
6
Prospective Jurors Who Initially Suggested That They Could Not Vote
7
for the Death Penalty
8
939. The 1989 American Bar Association Guidelines for the Appointment
9
and Performance of Counsel in Death Penalty Cases stated that “[c]ounsel should
10
be familiar with techniques for rehabilitating potential jurors whose initial
11
indications of opposition to the death penalty make them possibly excludable.”
12
Guideline 11.7.2.B.67 Yet Ramirez’s trial counsel failed entirely, or almost
13
entirely, to attempt to rehabilitate a substantial number of prospective jurors in
14
his case. Counsel either failed to test the prospective jurors’ stated opposition to
15
the death penalty -- for example, by asking whether they would fail to consider
16
the death penalty even for a defendant who committed multiple, brutal,
17
intentional murders during the course of residential burglaries or robberies -- or
18
failed to re-examine the jurors after the prosecutor had led them to give
19
disqualifying answers.
20
prospective jurors who express concerns about the death penalty may “clarif[y]
940. The Supreme Court has recognized that
21
22
66
23
24
25
26
27
28
The trial court’s erroneous denial of several of the defense’s for-cause
challenges, coupled with its refusal to expand the number of peremptory strikes
available, may have contributed to the defense’s failure to use a peremptory strike
against Harris. (See Claim 7.)
67
See Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d
471 (2003) (explaining that ABA Guidelines provide guidance in assessing
defense counsel’s performance under Strickland and citing other cases that
support the same principle).
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1
their positions upon further questioning and reveal[] that their concerns about the
2
death penalty [are] weaker than they originally stated.” Gray v. Mississippi, 481
3
U.S. 648, 662-63, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987).
941. Counsel’s failure to rehabilitate prospective jurors permeated the
4
5
entire Hovey voir dire and resulted in a record substantially different from the one
6
that would have been produced through competent questioning. It is impossible
7
to identify with confidence all of the stricken jurors who might have been
8
rehabilitated by competent counsel, potentially changing the makeup of
9
Petitioner’s jury. As an example, counsel did not meaningfully attempt to
10
rehabilitate the following prospective jurors “whose initial indications of
11
opposition to the death penalty ma[d]e them possibly excludable”: Weasner (92
12
RT 9653); Kirkpatrick (98 RT 10515); Martinez (107 RT 11728); Cortez (107
13
RT 11734); Jackson (108 RT 11907); Shuldiner (112 RT 12347); Takai (117 RT
14
12804); Beckstrom (119 RT 13146); and Foland (120 RT 13313).
942. There is a reasonable probability that competent counsel could have
15
16
rehabilitated at least one prospective juror and prevented his or her excusal. If
17
any juror were still excused after being rehabilitated on the record, the dismissal
18
would then have constituted reversible error under Gray v. Mississippi, 481 U.S.
19
648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987). Trial counsel’s failing constituted
20
ineffective assistance of counsel under Strickland and deprived Ramirez of his
21
right to “a jury empaneled in compliance with the Fourteenth Amendment.”
22
Morgan v. Illinois, 504 U.S. 719, 739, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992).
23
C.
“Rehabilitating” for the Prosecution’s Benefit, Instead of Striking,
24
Jurors Who Were Not Actually Life-Qualified
25
943. On many occasions throughout Hovey voir dire, defense counsel
26
failed to challenge for cause prospective jurors whose responses in favor of
27
imposing the death penalty rendered them excludable. These were jurors who
28
wrote or testified that they would always or automatically vote for the death
347
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1
penalty after finding guilt and special circumstances in a case involving
2
intentional murder, multiple murder, or some other circumstance present in
3
Petitioner’s case. Instead of challenging these jurors, defense counsel essentially
4
stepped into the prosecutor’s shoes and “rehabilitated” them by leading them to
5
affirm that they would “consider” mitigation testimony before choosing between
6
life and death.68 Defense counsel’s actions constituted ineffective assistance of
7
counsel that prejudiced Petitioner.
8
9
944. For example, defense counsel “rehabilitated” the following jurors
whom he should have moved to strike: Ortiz (97 RT 10269); Willis (97 RT
10
10346); Langford (102 RT 11057); Hernandez (104 RT 11293); Douglas (104 RT
11
11308); and Barr (116 RT 12655). Defense counsel later used peremptory
12
challenges to remove three of these jurors, highlighting the illogic of his
13
approach. (129 RT 14468 (Willis); 132 RT 14736 (Barr); 132 RT 14696
14
(Hernandez).)
15
D.
Failing To Examine Jurors Adequately About Aggravating and
16
Mitigating Factors Likely To Be Involved in the Case
17
945. The 1989 American Bar Association Guidelines for the Appointment
18
and Performance of Counsel in Death Penalty Cases stated that “[c]ounsel should
19
be familiar with the precedents relating to questioning and challenging potential
20
jurors, including the procedures surrounding ‘death qualification’ concerning any
21
potential juror’s beliefs about the death penalty.” Guideline 11.7.2.B. “Death
22
qualifying” a jury requires examining prospective jurors about both aggravating
23
24
25
26
27
28
68
Entirely apart from the fact that defense counsel should not have been
the one to “rehabilitate” these prospective jurors, the jurors’ assurances that they
would “consider” mitigation evidence cannot lend much comfort because the trial
judge had just instructed them that they were required to consider such evidence.
(See Claim 7.)
348
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1
and mitigating factors that are likely to be involved in the case. Trial counsel did
2
so only sporadically at best.
3
946. For jurors who appear to be opposed to imposing the death penalty,
4
trial counsel must question them about whether they would refuse to impose the
5
death penalty even in a case involving the aggravating factors present in the case
6
at hand. In this case, for example, trial counsel should have questioned such
7
jurors about whether they would refuse to impose the death penalty even in a case
8
involving multiple murders, murders in the course of rape, and murders in the
9
course of residential burglary or robbery. Many prospective jurors who were
10
inclined against the death penalty in the abstract may have considered it an option
11
in a case involving such aggravation. These jurors were fit to serve.
12
947. Similarly, for prospective jurors who appeared inclined to impose
13
the death penalty after convicting and finding special circumstances to be true,
14
trial counsel should have examined them about whether they could meaningfully
15
consider life without parole even in a case involving the aforementioned
16
aggravation.
17
948. Trial counsel must also examine prospective jurors about whether
18
they could meaningfully consider and give effect to various types of mitigating
19
evidence -- in this case, addiction, mental illness, seizure disorder, and child
20
abuse, among other factors. Jurors who could not give effect to such mitigation -
21
- in a case involving the aggravation at issue here -- would have been removable
22
for cause.
23
949. In general, counsel’s questioning at Hovey voir dire often seemed to
24
follow little pattern. He asked confusing questions that the jurors had trouble
25
understanding, as the court noted on the record. (104 RT 11325 (“If you could
26
ask a direct question . . . and stay to the point, you probably wouldn’t have this
27
problem. . . . I think if you clean up your questions and if you would stop
28
digressing in the middle and stop putting all the exceptions and -- because it is -349
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I know where you are going and it is very difficult for me to follow and I’m sure
2
it is almost impossible for these people to follow and they’re kind of flipping the
3
coin and saying yes or no and not knowing really what they come up with.”)).
4
And while he neglected to ask some of the jurors certain crucial questions, he
5
asked other questions repeatedly within the same examination. (109 RT 11989
6
(Judge: “You are not going to beat this dead horse again. You are reverting to
7
form . . . . [Y]ou were repetitive to a terrible degree.”)) In one instance, defense
8
counsel passed for cause on the last prospective juror of the day without asking a
9
single question. (105 RT 11535.)
10
950. Counsel’s failure to examine prospective jurors about aggravation
11
and mitigation permeated the entire Hovey voir dire and resulted in a record
12
substantially different from the one that would have been produced through
13
competent questioning. It is impossible to identify with confidence all of the
14
stricken jurors who might have been rehabilitated by competent counsel, or all of
15
the retained jurors who might have been stricken. The makeup of Petitioner’s
16
jury would have been substantially different, and more favorable to Petitioner,
17
had his counsel engaged in competent voir dire.
18
951. The foregoing violations of Petitioner’s constitutional rights, taken
19
singly or in combination with the other errors alleged in the Petition, constitute
20
structural error and warrant the granting of this Petition without any
21
determination of whether the violations substantially affected or influenced the
22
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
23
1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
24
doctrine applies to this claim, the foregoing constitutional violations, singly and
25
in combination with the other errors alleged in this Petition, so infected the
26
integrity of the proceedings that the error cannot be deemed harmless. The
27
foregoing violations of Petitioner’s rights had a substantial and injurious effect
28
or influence on Petitioner’s convictions and sentences, rendering them
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1
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
2
637-38.
3
952. In addition, the denial of his right to effective assistance of counsel
4
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
5
unfair, eroded the reliability of the verdict and had a substantial and injurious
6
effect on the verdict. But for the denial of this right, it is reasonably probable that
7
a more favorable result would have been attained. Under these circumstances,
8
the adversarial system completely broke down, and Petitioner was left without
9
meaningful representation. Although many of trial counsel’s errors were, by
10
themselves, so egregious as to require reversal, the extraordinary accumulation of
11
errors and omissions over the course of the trial created a total breakdown in the
12
adversarial process, so that prejudice is conclusively presumed. United States v.
13
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
14
(1984). Even assuming a showing of prejudice is required, Petitioner has made
15
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
16
L. Ed. 2d 674 (1984).
17
953. To the extent that this Court finds that this claim should have been
18
presented earlier, all prior counsel who failed to present the claim after the facts
19
on which it is based became known or should have been known rendered
20
ineffective assistance in not asserting it sooner, and the Court should consider the
21
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
22
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
23
Ct. 2052, 80 L. Ed. 2d 674 (1984).
24
CLAIM 11:
25
THE TRIAL COURT FAILED TO ENFORCE THE LEGAL
26
STANDARD FOR HARDSHIP DISMISSAL, RESULTING IN A
27
“JURY OF VOLUNTEERS”
28
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2
3
954. Exhaustion: This claim will be presented to the California Supreme
Court in an exhaustion petition that he will file no later than March 17, 2009.
955. Ramirez’s convictions, sentences, and death judgment violate the
4
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
5
Constitution because the trial court failed to enforce the legal standard for
6
hardship dismissal and, as a result, Ramirez was tried by a “jury of volunteers.”
7
956. In support of this claim, Petitioner alleges the following facts,
8
among others to be presented after full discovery, investigation, adequate
9
funding, access to this Court’s subpoena power, and an evidentiary hearing.
10
957. Those facts and allegations set forth in the petition, declarations,
11
claims of constitutional violations, and the accompanying exhibits are
12
incorporated by reference as if fully set forth herein to avoid unnecessary
13
duplication of relevant facts.
14
958. Throughout hardship and publicity voir dire, the trial judge made it
15
clear that he would excuse virtually anyone who asked to be excused. “I’m up
16
front with you,” the court explained at one point. “I’m going to be real liberal at
17
this point. You tell me you are sick or you got a sick kid, I’m going to believe
18
you. There is not going to be any cross-examination with you.” (80 RT 7432;
19
see also 79 RT 7338-39 (“Some of you may have some interesting ways to
20
excuse yourself. We had a lady yesterday who was fine in the morning . . . . So I
21
put her back in the jury room waiting to come out for the other part. And when
22
she came out, she . . . had picked up laryngitis in an hour or so from the air
23
conditioning. So I thought this was very interesting and nice and novel and, of
24
course, I honored that.”); 77 RT 7031 (“If you have a problem that -- let’s just
25
say it is a medical problem that you think is important enough to keep you off,
26
just say that. You don’t have to come here up [sic].”).)
27
28
959. The court’s conduct at this phase of voir dire taught the jurors that
they were to follow the court’s lead in answering the voir dire questions.
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1
Countless times, the court, in front of large panels of prospective jurors, led or
2
attempted to lead panelists to give answers that qualified them for hardship
3
dismissal. The court emphasized that there were certain “lines” that could get a
4
prospective juror dismissed. (See, e.g., 68 RT 5358 (“That is known as a leading
5
and suggestive question, sir. If you don’t pick up on the first one, I’m not going
6
to do it again.”); id. at 5368 (after prospective juror answered “yes,” court
7
instructed, “[w]ell, now wait a minute. Just give me a no . . . .”); 70 RT 5772
8
(“That is the line I’m waiting for. Give me that one.”); id. at 5773 (“Will you do
9
me a favor, Mr. Nemecek, and have your boss tell you that you won’t be paid . . .
10
.”); 72 RT 6188 (Court: “Just tell me you think you got a health hardship and I
11
will let you go.” Juror: “I think I have a hardship, health hardship.”); 74 RT 6499
12
(“I give you these lines, Mr. Dill, and you don’t pick them up.”); 76 RT 6851 (“I
13
can only feed you straight lines for so long.”); 77 RT 7147.) The court’s
14
behavior devalued the jurors’ oath and taught them to answer the questions
15
instrumentally rather than honestly.69
16
960. A sizable slew of jurors was dismissed for “health problems”
17
without any further explanation. (See, e.g., 80 RT 7442, 7446, 7451, 7454, 7455;
18
81 RT 7608; 82 RT 7766.) Other jurors were dismissed despite uncertainty about
19
their employers’ pay policies. (See, e.g., 68 RT 5409; 69 RT 5667; 71 RT 5948
20
(juror uncertain how long her Catholic school-employer will pay; judge dismisses
21
her, saying, “I don’t think they got money to throw around, . . . so I will excuse
22
you.”); 76 RT 6849.) Yet others were excused for reasons that never became
23
clear. (See, e.g., 66 RT 4975 (“too much . . . to deal with”); 79 RT 7345 (“I’m
24
past seventy years old and I don’t feel like I could put in two years of my life.”).)
25
26
69
27
28
The jurors, of course, carried this lesson with them into the life- and
death-qualification process at Hovey voir dire, drastically reducing the reliability
of that process. (See Claim 7.)
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1
Additionally, the court almost never asked whether jurors who would not be paid
2
by their employer had access to another source of financial support, and thus
3
never truly established that they would suffer an actual financial hardship worthy
4
of a hardship dismissal.
5
961. On several occasions, the trial judge became distracted and failed to
6
obtain even the bare minimum of information from the prospective jurors he then
7
dismissed (see, e.g., 71 RT 6945); this included a particularly inappropriate
8
interchange in which he joked about a juror’s name:
9
[Hou]: My name is Robert Hou. I’m employed --
10
[Prosecutor]: I didn’t get that.
11
The Court: Yes?
12
[Hou]: Robert Hou.
13
The Court: Who’s on first? I didn’t get the last name.
14
[Hou]: Hou, H-O-U.
15
The Court: Thank you, sir. I apologize, Mr. Hou. I don’t get a
16
chance like that very often. You are excused, sir.
17
18
(75 RT 6691-92.)
962. The result of all this is that Petitioner was tried by a jury culled from
19
a throng of “volunteers” -- persons who for whatever reason wanted to serve on
20
his jury. Particularly in a high-profile multiple-murder trial like Petitioner’s, this
21
group was highly unlikely to constitute an impartial tribunal consistent with the
22
guarantees of due process and the Sixth and Eighth Amendments. This is why
23
prospective jurors are supposed to be dismissed only for legitimate financial
24
hardship, and not based on a thinly veiled personal preference against serving:
25
Jury service is a duty as well as a privilege of citizenship; it is a duty
26
that cannot be shirked on a plea of inconvenience or decreased
27
earning power. Only when the financial embarrassment is such as to
28
impose a real burden and hardship does a valid excuse of this nature
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1
appear. . . . “The motives influencing such tendencies may be of the
2
best must not blind us to the dangers of allowing any encroachment
3
whatsoever on this essential right. Steps innocently taken may one
4
by one, lead to the irretrievable impairment of substantial liberties.”
5
Thiel v. S. Pacific Co., 328 U.S. 217, 224-25, 66 S. Ct. 984, 90 L. Ed. 1181
6
(1946) (quoting Glasser v. United States, 315 U.S. 60, 86, 62 S. Ct. 472, 86 L.
7
Ed. 680 (1942)).
8
963. The foregoing violations of Petitioner’s constitutional rights, taken
9
singly or in combination with the other errors alleged in the Petition, constitute
10
structural error and warrant the granting of this Petition without any
11
determination of whether the violations substantially affected or influenced the
12
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
13
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
14
doctrine applies to this claim, the foregoing constitutional violations, singly and
15
in combination with the other errors alleged in this Petition, so infected the
16
integrity of the proceedings that the error cannot be deemed harmless. The
17
foregoing violations of Petitioner’s rights had a substantial and injurious effect
18
or influence on Petitioner’s convictions and sentences, rendering them
19
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
20
637-38.
21
964. To the extent that this Court finds that this claim should have been
22
presented earlier, all prior counsel who failed to present the claim after the facts
23
on which it is based became known or should have been known rendered
24
ineffective assistance in not asserting it sooner, and the Court should consider the
25
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
26
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
27
Ct. 2052, 80 L. Ed. 2d 674 (1984).
28
CLAIM 12:
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THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
2
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
3
REMOVE FEMALE AFRICAN-AMERICAN JURORS BECAUSE
4
OF THEIR RACE
5
965. Exhaustion of Claim: Ramirez will present this claim to the
6
California Supreme Court in an exhaustion petition that he will file no later than
7
March 17, 2009.
8
9
966. Ramirez’s convictions, sentences, and death judgment violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
10
Constitution because the prosecution exercised peremptory challenges against
11
black female prospective jurors on the basis of race. Batson v. Kentucky, 476
12
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
13
967. The exhibits filed with this Petition and the allegations set forth
14
elsewhere in this Petition are hereby incorporated by reference into this claim as
15
though set forth in full.
16
968. The facts in support of this claim, among others to be presented after
17
full investigation, discovery, access to this Court’s subpoena power, and an
18
evidentiary hearing, include the following:
19
969. Petitioner is a Hispanic man who stood trial for multiple murders,
20
nearly all of which were interracial. The prosecution exercised peremptory
21
challenges to remove 14 of the 27 black women examined during general voir
22
dire. (139 RT 15926.) The prosecution dismissed nine black female prospective
23
jurors and five black female prospective alternate jurors. Defense counsel
24
objected to the prosecution’s challenge of the 14 black women, citing People v.
25
Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890 (1978), the California counterpart to
26
27
28
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Batson v. Kentucky, 476 U.S. 79.70 The trial court held a hearing to consider the
2
defense’s motion, finding that Ramirez had made out a prima facie case that the
3
black female jurors had been excluded because of their race. (140 RT 15950.)
4
The prosecution presented race-neutral justifications for exercising the
5
peremptory challenges against each of the 14 black women. (Id. at 15972-87.)
6
The court provided defense counsel an opportunity to present argument in
7
response to the prosecution’s justifications. (Id. at 15991). However, the defense
8
submitted without providing any response. (Id.) The trial court denied the
9
defense’s Wheeler motion, finding the prosecution’s justifications to be
10
satisfactory and rejecting any implication that the prosecuting attorneys were
11
bigoted. (Id. at 15994-95)
12
970. In addition to striking the 14 black female prospective jurors, the
13
prosecutor also used peremptory strikes to remove five of six Hispanic
14
prospective alternate jurors. See Claim 13.
15
971. The law in support of this claim includes:
16
972. The Equal Protection Clause forbids the prosecution from exercising
17
peremptory challenges on the basis of race. Batson, 476 U.S. at 89. When a
18
defendant claims that a prosecutor’s peremptory strikes were racially motivated,
19
the court must apply a three-step process for evaluating the challenge.
20
973. First, at step one, the defendant must make a prima facie showing
21
that race motivated the prosecutor’s strikes. Batson, 476 U.S. at 89. To meet this
22
burden, the defendant need only raise an “inference” of discrimination. Id. at 96.
23
“In making this showing, the defendant is entitled to rely on the fact that
24
peremptory challenges provide a useful vehicle for those intent on
25
discriminating.” United States v. Esparza-Gonzalez, 422 F.3d 897, 904 (9th Cir.
26
27
28
70
A Wheeler challenge is sufficient to preserve a Batson claim. Paulino v.
Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004).
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2005). When a proceeding is bound up with racial issues -- such as in a case of
2
interracial murder -- this, too, may be considered in evaluating the existence of a
3
prima facie case. Id. at 905-06.
4
974. The prima facie showing may, but need not, be satisfied based upon
5
statistical disparities alone. Paulino v. Castro, 371 F.3d 1083, 1091 (9th Cir.
6
2004). The prosecutor’s questions -- or lack thereof -- are relevant considerations
7
as well. Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 255-63, 125 S. Ct.
8
2317, 162 L. Ed. 2d 196 (2005); Batson, 476 U.S. at 97; see Fernandez v. Roe,
9
286 F.3d 1073, 1079 (9th Cir. 2002) (relying partly on the fact that the
10
“prosecutor failed to engage in meaningful questioning” of minority jurors in
11
finding a prima facie showing). The opponent of a strike need not demonstrate a
12
pattern of discriminatory strikes because “the Constitution forbids striking even a
13
single prospective juror for a discriminatory purpose.” United States v. Vasquez-
14
Lopez, 22 F.3d 900, 902 (9th Cir. 1994), quoted in Snyder v. Louisiana, 128 S.
15
Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008).
16
975. At Batson’s first step, courts “must consider ‘the totality of the
17
relevant facts’ and ‘all relevant circumstances’ surrounding the peremptory
18
strike.” Boyd v. Newland, 467 F.3d 1139, 1146 (9th Cir. 2006) (as amended)
19
(quoting Batson, 476 U.S. at 94, 96). A defendant can make out a prima facie
20
case “by offering a wide variety of evidence, so long as the sum of the proffered
21
facts gives ‘rise to an inference of discriminatory purpose.’” California v.
22
Johnson, 545 U.S. 162, 169, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (quoting
23
Batson, 476 U.S. at 94) (footnote omitted). “[T]he threshold for making a prima
24
facie Batson claim is quite low.” Boyd, 467 F.3d at 1145; see also id. at 1151
25
(“[T]he burden for making a prima facie case is not an onerous one.”).
26
976. If a prima facie case is established, the burden then shifts to the State
27
to articulate a race-neutral explanation for the challenge. Batson, 476 U.S. at 97.
28
The prosecutor “must give a ‘clear and reasonably specific’ explanation of his
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‘legitimate reasons’ for exercising the challenges.” Id. at 98 (quoting Tex. Dep’t
2
of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 67 L. Ed. 2d 207
3
(1981)). Vague assertions or even good faith denials of discriminatory intent do
4
not suffice. Batson, 476 U.S. at 98; Bui v. Haley, 321 F.3d 1304, 1316 (11th Cir.
5
2003) (“[V]ague explanations will be insufficient to refute a prima facie case of
6
racial discrimination.”). In addition, the purported justification must be “related
7
to the particular case to be tried.” Batson, 476 U.S. at 98 & n.20.
8
977. If the second step is satisfied, the court must then reach “the ultimate
9
question of intentional discrimination.” Hernandez v. New York, 500 U.S. 352,
10
359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality opinion). At this third
11
and final stage of the Batson analysis, the court must undertake “a sensitive
12
inquiry into such circumstantial and direct evidence of intent as may be
13
available.” Batson, 476 U.S. at 93 (quoting Village of Arlington Heights v.
14
Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450
15
(1977)) (internal quotation marks omitted); see also Snyder, 128 S. Ct. at 1208
16
(“In Miller-El v. Dretke, the Court made it clear that in considering a Batson
17
objection, or in reviewing a ruling claimed to be Batson error, all of the
18
circumstances that bear upon the issue of racial animosity must be consulted.”
19
(emphasis added)). Such evidence includes, at the least, all of the evidence
20
presented at step one. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 341, 123
21
S. Ct. 1029, 154 L. Ed. 2d 931 (2003). A reviewing court should engage in
22
comparative juror analysis, considering whether the prosecutor’s “proffered
23
reason for striking a black panelist applies just as well to an otherwise-similar
24
nonblack who is permitted to serve.” Miller-El II, 545 U.S. at 241. If so, “that is
25
evidence tending to prove purposeful discrimination.” Id. Similarly,
26
discrimination is more likely when the prosecutor’s justifications are unsupported
27
or directly refuted by the record. Lewis v. Lewis, 321 F.3d 824, 834 (9th Cir.
28
2003); Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993). A reviewing court
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should consider “how reasonable, or how improbable, the explanations are; and . .
2
. whether the proffered rationale has some basis in accepted trial strategy.”
3
Miller-El I, 537 U.S. at 339.
978. In some cases, the prosecutor may offer more than one reason for a
4
5
strike. “[I]f a review of the record undermines the prosecutor’s stated reasons, or
6
many of the proffered reasons, the reasons may be deemed a pretext for racial
7
discrimination.” Lewis, 321 F.3d at 830; United States v. Chinchilla, 874 F.2d
8
695, 699 (9th Cir. 1989) (explaining that the pretextual nature of two of the
9
prosecutor’s four proffered reasons militated against the sufficiency of the
10
remaining two facially acceptable reasons); see also Kesser v. Cambra, 465 F.3d
11
351, 369 (9th Cir. 2006) (en banc).
12
A.
13
Gwendolyn Thomas
979. Gwendolyn Thomas was a thirty-two-year-old black prospective
14
juror. (VI Supp. CT 4, at 934.) The prosecutor peremptorily challenged Thomas.
15
(128 RT 14392.) In her juror questionnaire, Thomas expressed that she did not
16
have a firm opinion about the death penalty and that her position would depend
17
on the crime. (VI Supp. CT 4, at 941.) She also opined in her questionnaire that
18
the State should impose the death penalty upon everyone who for any reason
19
intentionally kills another. (VI Supp. CT 4, at 941.) During Hovey voir dire,
20
Thomas told the prosecutor that she would vote to keep the death penalty if it
21
were up for reconsideration during a general election. (98 RT 10456.) She did
22
express some concern about implementing a death penalty sentence, stating that
23
such a decision should not be taken lightly. (Id. at 10446-49.) However, Thomas
24
also said that she could vote for the death penalty if the evidence showed that
25
such a sentence was warranted. (Id. at 10456-57.) During general voir dire,
26
Thomas revealed that she participated in a twelve-step program for compulsive
27
gamblers. (Id. at 14099.)
28
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980. The prosecutor offered three justifications for striking Thomas, all of
2
which are patently pretextual. In support of his challenge, the prosecutor pointed
3
to Thomas’s questionnaire answer reflecting that she did not have a strong
4
opinion about the death penalty, her Hovey statement that it would be a difficult
5
penalty to implement, and her admission about being part of a twelve-step
6
program. (140 RT 15972.) The prosecutor emphasized his last justification by
7
stating:
8
Bottom line is when she came in for general voir dire and finally
9
asked to approach the bench, it turns out she was a compulsive
10
gambler and belonged to an organization that is designed to help
11
people with those problems. . . I didn’t want to take a chance on
12
someone who could be overcome by such a compulsion.
13
(Id.)
14
981. The prosecutor’s justifications pertaining to Thomas’s written and
15
verbalized sentiments about the death penalty were taken out of context. While
16
she indicated that her stance on the death penalty would depend on a person’s
17
crime, her questionnaire also said that she would favor the death penalty for any
18
person who intentionally kills another. (VI Supp. CT 4, at 941.) Additionally,
19
while she expressed some reservations about having to give someone the death
20
penalty, she also said that she could do it. (98 RT 10456-57.) With respect to
21
Thomas’s questionnaire answer, the prosecutor’s justification is undermined by
22
the fact that many seated and alternate jurors also wrote that the implementation
23
of the death penalty should depend on the crime. (See the juror questionnaires of
24
Lilian Aragon (VI Supp. CT 6, at 1764); Chakalit Harris (VI Supp. CT 12, at
25
3470); Alfred Carrillo (VI Supp. CT 8, at 2331); Donald McGee (VI Supp. CT
26
15, at 4270); Verbe Sutton (VI Supp. CT 3, at 861); Arlena Wallace (VI Supp.
27
CT 5, at 1238); Martha Salcido (VI Supp. CT 1, at 162); Phyllis Singletary (VI
28
Supp. CT 2, at 587); Sandra Perkins (VI Supp. CT 17, at 4876); and Bonita Smith
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(VI Supp. CT 3, at 652).) Like Thomas, two alternate jurors, Janice McDowell
2
and Max DeRuiter, wrote on their questionnaires that they did not have firm
3
opinions about the death penalty. (McDowell (VI Supp. CT 15, at 4254);
4
DeRuiter (VI Supp. CT 10, at 2683).) Shirley Zelaya, a seated juror, did not
5
respond to the question at all. (VI Supp. CT 6, at 1573.)
982. Similarly, Thomas’s Hovey statement that implementing the death
6
7
penalty would be challenging not only reflected a realistic and thoughtful
8
consideration of capital jury service, but also echoed the ambivalence raised by
9
other seated and alternate jurors. Lilian Aragon, for example, stated during
10
Hovey voir dire that she did not consider herself a supporter of the death penalty
11
and that she did not have a well-defined opinion about the death penalty. (97 RT
12
10324.) Arthur Johnson likewise stated that he never had strong feelings for or
13
against the death penalty, and said that life in prison and a death sentence are
14
equally serious. (Id. at 10331-33.) “If a proffered reason for striking a black
15
panelist applies just as well to an otherwise-similar nonblack who is permitted to
16
serve, that is evidence tending to prove purposeful discrimination to be
17
considered at Batson’s third step.” Miller-El II, 545 U.S. at 241.
983. The prosecutor’s final justification for challenging Thomas, based
18
19
on her treated gambling problem and twelve-step-program membership, was
20
likewise undermined by his failure to challenge Donald McGee, a seated juror
21
who was a self-professed “recovering alcoholic” and who attended Alcoholics
22
Anonymous meetings every day. (VI Supp. CT 15, at 4278.)
23
B.
24
Katherine Sanford
984.
Katherine Sanford was a forty-four-year-old black female potential
25
juror. (VI Supp. CT 2, at 370.) The prosecutor peremptorily challenged Sanford.
26
(132 RT 14802.) She had worked for the city of Los Angeles for twenty-two
27
years. (VI Supp. CT 2, at 370.) During her twenty-two years of civil service for
28
the city, she rotated between the Los Angeles Police Department and the
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Department of Water and Power, and was employed two times by each agency.
2
(VI Supp. CT 2, at 370.) On her juror questionnaire, Sanford reflected, “I
3
personally would not want to sentence anyone to death but if it was a decision I
4
had to make I’d make it.” (VI Supp. CT 2, at 377.) She also stated that she was
5
in support of the death penalty, and would be inclined to sentence any person
6
who intentionally killed another while committing a burglary to death. (Id.)
7
During her Hovey voir dire, Sanford told the prosecutor that she could give the
8
death penalty to a defendant if it were the appropriate sentence. (93 RT 9746).
9
During general voir dire, Sanford provided details about her work as a secretary
10
for the Los Angeles Police Department’s Homicide Division. (132 RT 14793-
11
95.) She explained that “Whenever I see or hear about a victim I have sympathy
12
for the person or for anybody that has been wronged.” (Id. at 14796.). On her
13
juror questionnaire, Sanford used the explanation sheet to elaborate that while she
14
would find it personal difficult to implement the death penalty, she could do it.
15
(VI Supp. CT 2, at 385.) Sanford stated that she would follow the orders of the
16
court and would “abide by the judge, court or state whether I believe or agree
17
with it.” (Id.)
18
985. The prosecutor offered several justifications for striking Sanford.
19
He stated that he found her alternation between jobs signaled that either “people
20
are passing her around or she can’t find a place where she is happy, and I didn’t
21
expect her to be any happier on the jury.” (140 RT 15981.) The prosecutor also
22
said that he was troubled by her explanation sheet. He called it a “rambling
23
history really of her life and defeats that she had been dealt and her beliefs and
24
almost a purging of something within her.” (Id.) Finally, the prosecutor justified
25
his strike based on Sanford’s questionnaire statement that she would not like to
26
personally be the one to sentence someone to die. (Id. at 15982.) All of these
27
justifications are pretextual.
28
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986. The prosecutor’s justification regarding Sanford’s job changes was
2
undermined by the fact that several seated and alternate jurors had employment
3
records with numerous job changes. Alfred Carrillo, a seated juror, had six jobs
4
in ten years. (VI Supp. CT 8, at 2324-25.) His term of employment at each
5
position ranged from eight months to two years. (Id.) Cynthia Hayden, a seated
6
juror, had four job changes over the last ten years. (VI Supp. CT 12, at 3399-
7
3400.) Felipe Rodriguez, the jury foreperson, had four jobs over the last ten
8
years and stayed at each job for only two to four years. (VI Supp. CT 1, at 146-
9
47.) Bonita Smith, an alternate juror, had four jobs in the last ten years, ranging
10
from nine months to three years. (VI Supp. CT 3, at 644-45.) Neither attorney
11
specifically examined Sanford about why she had changed jobs between the
12
police and water departments, nor did they ask her if she was unhappy with her
13
current or past positions. At the very least, the prosecutor should have followed
14
up with Sanford “before getting to the point of exercising a strike.” Miller-El II,
15
545 U.S. at 244; id. at 250 n.8 (“[T]he failure to ask undermines the
16
persuasiveness of the claimed concern.”). Clearly, frequent job change did not
17
disqualify, in the prosecutor’s mind, the four seated and alternate jurors listed
18
above. Sanford’s occupational record was not a significant factor in her ability to
19
be a good juror, and the prosecutor’s reliance on this justification is pretextual.
20
987. The prosecutor’s justification relating to Sanford’s explanation sheet
21
inaccurately characterized what Sanford actually wrote. Sanford’s explanation
22
sheet did not include a rambling history of her life’s defeats or anything of the
23
sort. Instead, she elaborated on her personal thoughts about capital jury service.
24
(VI Supp. CT 2, at 385.) Her explanation reflected a thoughtful consideration of
25
the importance of jury service and her ability to follow the law. (Id.) By relying
26
on a contorted and inaccurate description what Sanford wrote, the prosecutor
27
revealed that his justification was pretextual.
28
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988. Finally, the prosecutor’s justification for striking Sanford based on
2
her questionnaire response that she would “personally would not want to sentence
3
anyone to death” is likewise incomplete. She also said, in the same sentence, that
4
she could in fact do so. (VI Supp. CT 2, at 377.) These sentiments were further
5
elaborated in the explanation sheet that the prosecutor derogated as “rambling.”
6
(VI Supp. CT 2, at 385.) Furthermore, she also expressed that she would be
7
inclined to give the death penalty in a case similar to Ramirez’s, where a person
8
was found guilty of intentionally killing another during a burglary. (Id.)
9
989. The prosecutor’s justification is also undermined by the fact that
10
other jurors also stated some ambivalence about implementing the death penalty.
11
Lilian Aragon, for example, stated during Hovey voir dire that she did not
12
consider herself a supporter of the death penalty and that she did not have a well-
13
defined opinion about the death penalty. (97 RT 10324.) Arthur Johnson
14
likewise stated that he never had strong feelings for or against the death penalty,
15
and said that life in prison and a death sentence are equally serious. (Id. at
16
10331-33.) Additionally, Sanford was likely more strongly inclined toward the
17
death penalty than some of the selected jurors were. Lilian Aragon and Cynthia
18
Hayden both stated that they could not think of a type of case that would always
19
require the death penalty. (Aragon, id. at 10323; Hayden, 93 RT 9775.) Max
20
DeRuiter, an alternate juror, stated in his questionnaire that it was “very hard to
21
explore [his] feelings regarding something like the death penalty.” (VI Supp. CT
22
10, at 2683.)
23
990. Totality of Sanford’s questionnaire and voir dire responses,
24
especially those reflecting her experience working and sympathizing with crime
25
victims as part of her police department duties, reveal that she would have likely
26
been a strong juror for the prosecution. For all of these reasons, the prosecutor’s
27
justifications for striking her were pretextual.
28
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2
C.
Johnnie Sue Lang
991. Johnnie Sue Lang was a forty-four-year-old black female
3
prospective juror. (VI Supp. CT 14, at 4008.) Lang was peremptorily challenged
4
by the prosecution. (130 RT 14545.) Lang had two relatives who worked in law
5
enforcement. Her husband was a peace officer for the California Youth
6
Authority, and her niece’s husband was an LA County Sheriff. (VI Supp. CT 14,
7
at 4009; RT 14515.) On her juror questionnaire, Lang opined that the death
8
penalty is pursued too seldom. (VI Supp. CT 14, at 4015.) Lang also stated that
9
she had not formed an opinion about the validity of psychiatric opinions and
10
understood that she was not bound to accept any psychiatrist or psychologist
11
opinions as conclusive. (VI Supp. CT 14, at 40017). Like many of the seated
12
and alternate jurors, Lang wrote on her questionnaire that the implementation of
13
the death penalty should depend on the crime. (VI Supp. CT 14, at 40015.) Lang
14
wrote that such a decision should also be based on the evidence, including any
15
psychiatric evaluation brought forth. (Id.) In response to defense counsel’s
16
questioning during Hovey voir dire, Lang reiterated that she would consider
17
psychological evidence when determining the appropriateness of the death
18
penalty. (94 RT 9890-91.). Also during Hovey voir dire, Lang told the
19
prosecutor that her two sons were currently incarcerated for drug-related charges
20
and had been prosecuted by the Los Angeles County District Attorney’s office.
21
(Id. at 9897-98.) When asked if her sons’ cases would bias her against the
22
prosecution or otherwise affect her ability to remain impartial, she responded,
23
“No it would not. They broke the law.” (Id. at 9899.).
24
992. The prosecution offered several justifications for striking Lang, all
25
of which were pretextual. The prosecutor stated that Lang was too “concerned
26
with the psychology of [the] case,” as indicated by her questionnaire and Hovey
27
answers and that she might be biased against the prosecution because of her sons’
28
criminal cases. The prosecutor also expressed his vague impression that Lang’s
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voir dire “demeanor indicated to me that shoe [sic] did not want to be here,” and
2
“that she was trying to get out of here.” The prosecutor elaborated on this notion,
3
explaining:
4
I just don’t want to have to deal with that issue after we’ve been in
5
trial for a number of months, somebody who didn’t want to be here
6
in the first place becomes belligerent, and for those reasons we
7
excused her.
8
9
(140 RT 15977.)
993. The prosecutor’s justifications clearly overstated Lang’s statements
10
regarding psychological evidence. Her questionnaire answers only indicated that
11
she would consider psychiatric evidence, if presented, along with all other
12
evidence, before determining the appropriateness of a death sentence. (VI Supp.
13
CT 14, at 4015.) This is exactly what a juror sitting on a capital murder case is
14
supposed to do -- weigh and consider all of the mitigating and aggravating
15
evidence presented. When considered in the context of Lang’s other psychology-
16
related questionnaire answers, it is clear that she was not in fact very “concerned
17
with the psychology of the case.” To the contrary, her questionnaire answers
18
revealed that she had not formed an opinion about the validity of psychiatric
19
opinions and understood that she was not bound to accept such evidence as
20
conclusive. (VI Supp. CT 14, at 40016-17.) Furthermore, her Hovey statement
21
that she would consider such evidence when determining the appropriateness of
22
the death penalty came in response to the defense attorney’s questions, which
23
indicated that such evidence should be considered during the penalty phase. (94
24
RT 9890-91.)
25
994. The prosecutor’s justification pertaining to Lang’s statements
26
regarding her consideration of psychological evidence is undermined by the fact
27
that several seated jurors stated that they would consider psychological evidence
28
before implementing a death sentence. Cynthia Hayden expressed in her juror
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questionnaire that she had valued her personal experience in psychological
2
therapy and had read a lot about the psychology of human development. (VI
3
Supp. CT 12, at 3408, 3414.) Donald McGee had been employed as a
4
psychological technician, and stated a psychiatric evaluation is a very important
5
way to determine a person’s state of mind. (VI Supp. CT 15, at 4271.) Felipe
6
Rodriquez, the jury foreperson, also stated that he had previously studied
7
psychology and thought that it has merit. (VI Supp. CT 1, at 154.) Martha
8
Salcido answered that psychological evidence is relevant, including information
9
about developmental psychology, such as evidence about upbringing and
10
childhood. (VI Supp. CT 1, at 170.)
11
995. The prosecution’s justification for challenging Lang based on her
12
sons’ prosecutions is undermined by the fact that two seated jurors had family
13
members also prosecuted for drug-related crimes. Lilian Aragon’s husband was
14
prosecuted for drug possession. (VI Supp. CT 6, at 1759.) Alfred Carrillo’s two
15
brothers were prosecuted by the Los Angeles County District Attorney’s office
16
and incarcerated for drug-related crimes, just like Lang’s sons. (106 RT 11570-
17
72.) Carrilo’s Hovey statement about why his brothers’ prosecutions would not
18
affect his ability to serve as an impartial juror was very similar to the explanation
19
provided by Lang. Carrilo stated, “They did what they did and. . . had to go to
20
prison for it.” (Id. at 11571.).
21
996. Finally, the prosecution’s justifications based on a vague notion of
22
Lang’s courtroom demeanor also ring hollow. Nothing in the record corroborates
23
the prosecutor’s characterization of Lang’s demeanor. Neither the court nor the
24
defense commented on the prosecution’s characterization. Because the court did
25
not discuss the prosecutor’s characterization of Lang’s court demeanor, it “cannot
26
be presume[d] that the trial judge credited the prosecutor’s assertion.” Snyder,
27
128 S.Ct. at 1209. Nothing in the record demonstrates that the prosecutor
28
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1
“credibly relied on demeanor in exercising a strike.” Id. As such, the
2
prosecutor’s justification cannot sustain his challenge.
3
D.
4
Hortensia Roberts
997. Hortensia Roberts was a black female potential juror. The
5
prosecutor peremptorily challenged Roberts. (131 RT 14626.) During her Hovey
6
voir dire Roberts said that a person who kills and then mutilates the deceased’s
7
body should always get the death penalty, regardless of their state of mind or
8
other types of mitigating evidence. (RT 10828-29.) Like Lang, in response to
9
the defense attorney’s Hovey questions, Roberts stated that she would consider
10
evidence of the defendant’s background and psychology when considering the
11
appropriateness of the death penalty. (101 RT 10830.) Similarly, Roberts’s juror
12
questionnaire reflected that during the penalty phase, she would consider all of
13
the circumstances of the crime, including the defendant’s psychological state,
14
before implementing the death penalty. (Id. at 10832.)
15
998. The prosecutor justified his challenge of Roberts by citing her
16
reliance on psychological evidence. (140 RT 15977.) Roberts’s statement that
17
she would consider the circumstances of the crime, including evidence pertaining
18
to the defendant’s psychological state, was not extraordinary. As stated above,
19
several seated and alternate jurors likewise stated that such information was
20
valuable and would be part of the evidence they would consider during the
21
penalty phase. The prosecutor’s justification for challenging Roberts, based
22
solely on her consideration of psychological evidence, was patently pretextual for
23
all of the same reasons that his similar justification of Lang’s strike was
24
pretextual.
25
999. The prosecution also justified dismissing the two following women
26
due to their purported “immaturity.” The challenges of these women were also
27
pretextual and therefore improper.
28
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1
2
E.
Demetrius Joseph
1000. Demetrius Joseph was a twenty-five-year-old black female
3
prospective juror. (VI Supp. CT 14, at 3912.) She was dismissed by the
4
prosecution with a peremptory challenge. (131 RT 14645.) Joseph was a mail
5
handler and had worked for the United States Postal Service for four years. (VI
6
Supp. CT 14, at 3912.) She was the mother of three children aged six years, four
7
years, and nineteen months. (Id.) During general voir dire, the defense attorney
8
asked her if she had ever experienced racial discrimination. (131 RT 14631.)
9
She described a situation in which a store clerk did not give her proper change,
10
and when she asked for it, the clerk called her and her friend “niggers.” She
11
explained that her friend ran at the man. (Id. at 14632.) When counsel asked her
12
the store clerk’s race, she responded that she thought he was Chinese. (Id. at
13
14633.) She stated that the incident did not make her feel prejudiced against
14
people of Chinese decent because “I figure that’s just the way he was. You
15
know, I don’t have anything against the whole race; it’s just the person
16
themselves.” (Id.) The prosecutor passed for cause for Joseph without any
17
further inquiry. (Id. at 14634.)
18
1001. The prosecutor justified his strike of Joseph by saying she appeared
19
to be “immature.” The prosecutor made specific reference to her incident with
20
the store clerk, stating:
21
I just concluded that she was so immature that she seemed to have a
22
problem in that regard. Certainly concerning this Chinese store
23
owner. We have Chinese victims in this case. We’re going to have
24
Chinese witnesses in this case. If there was some carry over, I didn’t
25
want to be the recipient of it, and basically her immaturity was why I
26
exercised a challenge with respect to Miss Joseph.
27
(140 RT 15978.)
28
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1002. Nothing in the record supports the prosecution’s assertion that
1
2
Joseph was an immature person. To the contrary, her employment and
3
parenthood spoke to her maturity. Just like seven of the seated and alternate
4
jurors, Joseph had a stable job as a U.S. Postal Service employee. (VI Supp. CT
5
14, at 3912; see juror questionnaires of the following postal employees: Mary
6
Herrera (VI Supp. CT 13, at 3543); Arthur Johnson (VI Supp. CT 14, at 3832);
7
Martha Salcido (VI Supp. CT 1, at 162); Shirley Zelaya (VI Supp. CT 6, at
8
1566); James Muldrow (VI Supp. CT 16, at 4680); and Sandra Perkins (VI Supp.
9
CT 17, at 4870). She was also a mother to three young children. (VI Supp. CT
10
14, at 3912.) The fact that a seated juror, Alfred Carrillo, was only one year older
11
than she was, undermined any implicit assertion that Joseph’s age made her too
12
immature to be on the jury. (VI Supp. CT 8, at 2324.) Nothing about Joseph’s
13
story regarding her incident with the store clerk suggested that she was immature.
14
She was the victim of racial discrimination, yet she refused to respond in kind.
15
She reasoned that it was not the clerk’s race, but his personal ignorance, that
16
caused him to treat her the way he did. Her reasoning demonstrated her maturity,
17
and the prosecutor’s justification was plainly pretextual.
18
1003. To the extent that the prosecutor believed that Joseph was immature
19
based on her demeanor, he failed to make a record of this fact; the trial court, too,
20
made no comment on Joseph’s demeanor. Her demeanor, therefore, cannot help
21
to support the prosecution’s strike. Snyder, 128 S.Ct. at 1209.
22
F.
23
Alicia Alex
1004. Alicia Alex was a nineteen-year-old black female potential alternate
24
juror. (VI Supp. CT 6, at 1676.) The prosecutor peremptorily challenged Alex
25
(135 RT 15213). Alex did not work, but did attend cosmetology classes in the
26
evening. (134 RT 15145.) On her juror questionnaire, Alex answered that she
27
had not really thought much about the death penalty. (VI Supp. CT 6, at 1683.)
28
During Hovey voir dire, Alex said that she would lean toward the death penalty in
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1
a case in which a person purposefully killed another person and felt no remorse.
2
(100 RT 10647). She also told the prosecutor that she would probably vote to
3
keep the death penalty if it were up for reconsideration in a general election. (Id.)
4
1005. The prosecutor justified striking Alex because he said that she
5
seemed immature, as exemplified by her age and lack of a job. (140 RT 15983).
6
The prosecutor also justified his strike by saying that she had not thought much
7
about the death penalty. (Id.) He also asserted that she paused too much during
8
her voir dire answers. (Id.) However, the prosecutor did note that such pausing
9
was not reflected in the record, because such things “don’t always show in the
10
transcript . . . but there was reluctance here. She was slow to answer.” (Id. at
11
15984.) The prosecutor’s justifications were pretextual.
12
1006. The prosecutor’s justification regarding Alex’s ambivalent death
13
penalty sentiments, as expressed on her juror questionnaire, is undermined by
14
similar ambivalence expressed by seated and alternate jurors. During Hovey voir
15
dire, two seated jurors stated that they had not formed a strong opinion about the
16
death penalty, and did not firmly know if they even supported it. Lilian Aragon
17
said she was not necessarily a supporter of the death penalty. (97 RT 10324.)
18
Arthur Johnson said that he did not have strong feelings either for or against the
19
death penalty. (Id. at 10333.) Since Alex stated during Hovey that she favored
20
the death penalty in some situations, and would likely vote for it during a general
21
election, her stance in favor of the death penalty was apparently stronger than
22
both Aragon’s and Johnson’s. The prosecutor’s justification was also
23
undermined by the presence of seated juror Shirley Zelaya, who took no position
24
about the death penalty on her juror questionnaire, and alternate juror Max
25
DeRuiter, who wrote that it was hard for him to “explore his feelings” about the
26
death penalty. (Zelaya, VI Supp. CT 6, at 1573; DeRuiter, VI Supp. CT 10, at
27
2683.)
28
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1007. The justification regarding Alex’s immaturity, based on her age, is
1
2
similarly undermined by the presence of Alfred Carrillo as a seated juror, who
3
himself was only twenty-six years old. (VI Supp. CT 8, at 2324.) Additionally,
4
although Alex was unemployed, she was attending school in the evenings.
1008. The prosecutor’s final statement that Alex’s pausing during voir dire
5
6
served as a basis for his challenge also seems thinly veiled, especially in light of
7
all of the other demonstrated pretexts. Even the prosecutor noted that the record
8
did not reflect Alex’s apparent speaking style and the trial court made no finding
9
on this issue. As such, it “cannot be presume[d] that the trial judge credited the
10
prosecutor’s assertion” of Alex’s demeanor or even that the prosecutor “credibly
11
relied on demeanor in exercising a strike” against Alex. Snyder, 128 S.Ct. at
12
1209. But even assuming Alex was “slow to answer,” the prosecutor provided no
13
explanation as to why that would make her a bad juror. (140 RT 15984.)
14
G.
15
The Prosecution’s Other Strikes
1009. In addition to the six black women described above, the prosecutor
16
peremptorily challenged eight additional black female prospective jurors. While
17
each and every one of the above peremptory challenges by itself constituted a
18
violation of the Equal Protection Clause under Batson, the prosecutor’s entire
19
record of peremptory challenges against black women was especially egregious
20
and constitutes additional evidence of discrimination at step three of the Batson
21
inquiry. The prosecution also struck five out of six Hispanic prospective
22
alternate jurors.
23
1010. Defense counsel, for his part, failed to challenge the pretextual
24
justifications provided by the prosecutor. The court gave defense counsel two
25
opportunities to respond to the prosecutor’s justifications for striking the 14 black
26
women. (140 RT 15991-92.) The following exchange ensued:
27
Mr. Hernandez: I think the court should look at the transcripts that
28
they referred to and the questionnaires they referred to, and look
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1
beyond their explanation before making a determination whether
2
their explanation is sufficient.
3
...
4
Mr. Halpin: Let me ask that Mr. Hernandez at this point, if he has
5
any specifics, refer them to the court.
6
Mr. Hernandez knew the subject of this inquiry and he had the
7
opportunity, the same as we did, to sit down and review his material.
8
9
(Id. at 15992.)
1011. Defense counsel failed entirely to respond to the prosecutor’s
10
patently pretextual justifications for the unconstitutional strikes of the 14 black
11
female prospective jurors. Defense counsel rendered constitutionally deficient
12
and prejudicial assistance of counsel insofar as he failed to respond. Counsel’s
13
incompetence deprived the court of valuable evidence of discrimination -- to wit,
14
the comparative analysis performed above. Strickland v. Washington, 466 U.S.
15
668 (1984).
16
1012.
The court denied Ramirez’s Batson motion. In doing so, it
17
relied primarily upon its longstanding personal relationship with the prosecuting
18
attorneys, and its opinion that neither of the attorneys was a “bigot”:
19
I, too, find these accusations -- these kind of accusations
20
troublesome and I have known Mr. Yochelson for some years and I
21
don’t think there is a man in this court building that does not have a
22
high respect for him.
23
Mr. Halpin and I have been acquainted for probably close to
24
18 or 19 years, I as a public defender and Mr. Halpin as a District
25
Attorney . . . nobody in this building, and certainly not this court,
26
has ever accused him of being dishonest or deceitful or a bigot.
27
28
And I see nothing in this record to indicate any of that.
(140 RT 15994.)
374
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1
1013. The trial court’s decision was entirely inappropriate. To deny
2
Ramirez’s Batson motion, the court relied upon evidence outside the record --
3
that is, his personal opinion of the prosecuting attorneys, formed from years of
4
interactions that occurred before Ramirez’s trial. Because this extrajudicial
5
evidence was not in the record, there was no possible way for defense counsel to
6
respond to it or attempt to rebut it. The trial judge essentially became a witness
7
in the case -- testifying to the good character of the prosecuting attorneys -- yet
8
defense counsel had no opportunity to cross-examine him or to present contrary
9
evidence. Furthermore, the trial court’s willingness to allow his personal
10
opinions to color his legal decisions suggests that he was anything but an
11
impartial adjudicator. In addition to the fact that the trial court’s decision
12
denying Ramirez’s Batson motion was substantively incorrect, the manner in
13
which the court reached that decision did not comport with due process.71
14
1014. The foregoing violations of Petitioner’s constitutional rights, taken
15
singly or in combination with the other errors alleged in the Petition, constitute
16
structural error and warrant the granting of this Petition without any
17
determination of whether the violations substantially affected or influenced the
18
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
19
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
20
doctrine applies to this claim, the foregoing constitutional violations, singly and
21
in combination with the other errors alleged in this Petition, so infected the
22
integrity of the proceedings that the error cannot be deemed harmless. The
23
24
25
26
27
28
71
In addition, the trial court had earlier stated on the record that it did not
believe that racial bias was a genuine problem in Southern California in 1988,
suggesting that it was not an impartial adjudicator with respect to the Batson
motion, but instead approached the motion already disinclined to grant it. (126
RT 13884 (“I suspect that the issue of racial bias might be a little bit more
pertinent in South Carolina than it is in Southern California.”).)
375
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1
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
2
influence on Petitioner’s convictions and sentences, rendering them
3
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
4
637-38.
5
1015. To the extent that this Court finds that this claim should have been
6
presented earlier, all prior counsel who failed to present the claim after the facts
7
on which it is based became known or should have been known rendered
8
ineffective assistance in not asserting it sooner, and the Court should consider the
9
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
10
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
11
Ct. 2052, 80 L. Ed. 2d 674 (1984); see Davis v. Sec’y for the Dep’t of Corr., 341
12
F.3d 1310, 1314-17 (11th Cir. 2003) (addressing failure to preserve a Batson
13
claim).
14
CLAIM 13:
15
THE PROSECUTOR VIOLATED THE EQUAL PROTECTION
16
CLAUSE BY EXERCISING PEREMPTORY CHALLENGES TO
17
REMOVE HISPANIC ALTERNATE JURORS BECAUSE OF
18
THEIR RACE
19
1016. Exhaustion of Claim: This claim will be presented to the California
20
Supreme Court in an exhaustion petition that he will file no later than March 17,
21
2009.
22
1017. Ramirez’s convictions, sentences, and death judgment violate the
23
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
24
Constitution because the prosecution exercised peremptory challenges against
25
Hispanic prospective alternate jurors on the basis of race. Batson v. Kentucky,
26
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
27
28
376
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1018. The exhibits filed with this Petition and the allegations set forth
2
elsewhere in this Petition are hereby incorporated by reference into this claim as
3
though set forth in full.
4
1019. The facts in support of this claim, among others to be presented after
5
full investigation, discovery, access to this Court’s subpoena power, and an
6
evidentiary hearing, include the following:
7
1020. Petitioner is a Hispanic man who stood trial for multiple interracial
8
murders. The prosecution exercised peremptory challenges to remove both of the
9
first two Hispanic prospective alternate jurors who were called to the jury box
10
and were not dismissed for hardship -- Eugene Mendez and John Lucero.
11
Defense counsel brought a motion under People v. Wheeler, 22 Cal. 3d 258, 148
12
Cal. Rptr. 890 (1978), the California counterpart to Batson v. Kentucky, after the
13
second strike.72 The trial court denied the motion at Batson’s step one, finding no
14
“systematic exclusion” of Hispanic alternates. (135 RT 15234-36.) The court
15
specifically stated, however, that “I would think that if we have another Latin
16
excluded, . . . that a hearing would be in order. (Id. at 15234.)
17
1021. Defense counsel renewed the Batson motion after the prosecution
18
struck Deloris Reserva. (139 RT 15881.) The court originally listed Reserva as a
19
“Latin,” but the prosecution asserted that she was not Hispanic. (Id. at 15882.)
20
The trial court again found no prima facie case -- no “pattern” -- even assuming
21
that Reserva was Hispanic. (Id. at 15883, 15890.) At this point, counting
22
Reserva as Hispanic, and not counting jurors removed for hardship dismissals,
23
the prosecution had struck three out of the four Hispanic prospective alternate
24
jurors who were called to the box. (Id. at 15883-87.)
25
26
27
28
72
A Wheeler challenge is sufficient to preserve a Batson claim. Paulino
v. Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004).
377
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1022. Voir dire continued, and eventually the prosecution struck two more
2
Hispanic alternates, Ramon Lopez and Celia Lucero. Defense counsel renewed
3
the Batson motion. By now the prosecution had struck five out of the six
4
Hispanic prospective alternates (four out of five if Reserva is not counted). The
5
prosecutor had also used peremptory strikes to remove 14 of the 27 black female
6
prospective jurors. See Claim 12. The trial court again found that no prima facie
7
case had been established and denied the motion without explanation. (141 RT
8
16076.)
9
10
11
1023. Petitioner incorporates by reference the statement of law regarding
Batson v. Kentucky and its progeny presented in Claim 12.
1024. The trial court’s determination that Ramirez failed to make out a
12
prima facie Batson claim was objectively unreasonable. The prosecutor struck
13
five of six, or 83 percent, of the available Hispanic alternate jurors who were
14
called to the jury box.73 This statistical figure is easily sufficient, by itself, to
15
raise an inference of discriminatory purpose. See Fernandez v. Roe, 286 F.3d
16
1073, 1078 (9th Cir. 2002) (four of seven (57%) Hispanic jurors satisfied prima
17
facie showing); Turner v. Marshall, 63 F.3d 807, 813 (9th Cir. 1995) (five of
18
nine (55%) African Americans stricken), overruled on other grounds by Tolbert
19
v. Page, 182 F.3d 677, 684 (9th Cir. 1999) (en banc); United States v. Lorenzo,
20
995 F.2d 1448, 1453-54 (9th Cir. 1993) (assuming prima facie case where three
21
of nine (33%) Hawaiian jurors stricken); United States v. Bishop, 959 F.2d 820,
22
822 (9th Cir. 1992) (assuming prima facie case where two of four (50%) African
23
American jurors stricken), overruled on other grounds, Boyde v. Brown, 404 F.3d
24
1159, 1171 n.10 (9th Cir. 2005).
25
26
27
28
73
Because the trial court found no prima facie case even assuming that
Reserva was Hispanic, Petitioner counts her as Hispanic here. In any event, the
data is clearly sufficient to make out a prima facie case even if Reserva is not
counted.
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1025. “[C]ourts should engage in a rigorous review of a prosecution’s use
2
of peremptory strikes. If a trial court’s conclusion that a defendant failed to make
3
a prima facie case could insulate from review a prosecution’s use of peremptory
4
strikes, the holdings of [Johnson and Miller-El II] would be undermined.” Boyd
5
v. Newland, 467 F.3d 1139, 1149-50 (9th Cir. 2006) (as amended).
6
1026. The trial court did not state what prima facie standard it applied in
7
rejecting Ramirez’s claim, but statements during voir dire strongly suggest that
8
the court applied the onerous Wheeler standard of which the U.S. Supreme Court
9
disapproved in Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed.
10
2d 129 (2005). The court first denied Ramirez’s Batson challenge because it
11
found no “systematic exclusion” of Hispanic alternates. (135 RT 15234-36.) It
12
later stated that it had found no “pattern.” (139 RT 15883.) This understanding
13
of the Batson threshold is incorrect: no invidious pattern must be shown, as even
14
a single race-based strike violates the constitution. United States v. Vasquez-
15
Lopez, 22 F.3d 900, 902 (9th Cir. 1994); see also Batson, 476 U.S. at 95 (“‘A
16
single invidiously discriminatory governmental act’ is not ‘immunized by the
17
absence of such discrimination in the making of other comparable decisions.’”
18
(quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
19
266 n.14, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)); accord Snyder v. Louisiana,
20
128 S. Ct. 1203, 1208 (2008). The Wheeler standard is contrary to Supreme
21
Court precedent. Johnson, 545 U.S. at 173.
22
1027. The only remaining question is whether “other relevant
23
circumstances” surrounding the strikes refute the inference of discrimination
24
raised by the statistical disparity. See Williams v. Runnels, 432 F.3d 1102, 1107
25
(9th Cir. 2006). Because the issue that ultimately matters is the prosecutor’s real
26
reasons for the strikes, “to rebut an inference of discriminatory purpose based on
27
statistical disparity, the ‘other relevant circumstances’ must do more than indicate
28
that the record would support race-neutral reasons for the questioned challenges.”
379
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1
Id. at 1108, 1109. In other words, it is not appropriate for a reviewing court to
2
survey the record for race-neutral reasons that might have supported the
3
prosecutor’s five peremptory strikes of the Hispanic jurors.
4
1028. Far from rebutting the inference of discriminatory purpose, the
5
totality of the circumstances helps confirm it. As noted, Ramirez is a Hispanic
6
man. The prosecutor may have feared that Hispanic jurors would be sympathetic
7
to Petitioner and his family. The prosecutor’s strikes against 14 of the 27 black
8
female jurors are also relevant circumstances militating in favor of an inference
9
of discrimination. See Snyder, 128 S. Ct. at 1208 (explaining that the strike of
10
one juror must be considered as it bears on the strike of another juror claimed to
11
have been removed based on discriminatory intent); Fernandez, 286 F.3d at 1079
12
(relying in part on prosecutor’s strikes against Hispanic jurors in determining that
13
prima facie case existed with respect to African American jurors).
14
1029. To the extent that the trial court relied on the presence of one
15
Hispanic alternate juror, Mary Herrera, to refute any finding of a prima facie
16
case, this was error. It is hornbook law that the presence of such jurors does not
17
immunize the prosecution’s race-based strikes. See, e.g., Miller-El II, 545 U.S. at
18
240, 266 (granting relief where black juror served); Turner, 63 F.3d at 811 (four
19
black jurors served); Id. at 814 (“In denying a Batson motion, . . . a trial court
20
may not rely solely on the fact that some African-Americans remain on the
21
jury.”). The threshold for making a prima facie Batson claim is quite low.” Boyd
22
v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006) (as amended). Ramirez has
23
passed that threshold here.
24
1030. The foregoing violations of Petitioner’s constitutional rights, taken
25
singly or in combination with the other errors alleged in the Petition, constitute
26
structural error and warrant the granting of this Petition without any
27
determination of whether the violations substantially affected or influenced the
28
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
380
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1
Ct. 1710, 123 L.Ed.2d 353 (1993). However, even assuming the harmless error
2
doctrine applies to this claim, the foregoing constitutional violations, singly and
3
in combination with the other errors alleged in this Petition, so infected the
4
integrity of the proceedings that the error cannot be deemed harmless. The
5
foregoing violations of Petitioner’s rights had a substantial and injurious effect
6
or influence on Petitioner’s convictions and sentences, rendering them
7
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
8
637-38.
9
1031. To the extent that this Court finds that this claim should have been
10
presented earlier, all prior counsel who failed to present the claim after the facts
11
on which it is based became known or should have been known rendered
12
ineffective assistance in not asserting it sooner, and the Court should consider the
13
claim on the merits. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct.
14
2546, 115 L. Ed. 2d 640 (1991); Strickland v. Washington, 466 U.S. 668, 104 S.
15
Ct. 2052, 80 L. Ed. 2d 674 (1984); see Davis v. Sec’y for the Dep’t of Corr., 341
16
F.3d 1310, 1314-17 (11th Cir. 2003) (addressing failure to preserve a Batson
17
claim).
18
CLAIM 14:
19
PETITIONER’S STATEMENTS WERE UNRELIABLE AND
20
INVOLUNTARILY OBTAINED AND COUNSEL FAILED TO
21
COMPETENTLY LITIGATE A MOTION TO EXCLUDE
22
THEM
23
1032. Exhaustion of the claim: This claim was fairly presented to the
24
California Supreme Court in Section XI of the June 2004 petition for writ of
25
habeas corpus, although it includes additional factual allegations. Petitioner will
26
present the claim with the additional factual allegations to the California Supreme
27
Court in an exhaustion petition he will file no later than March 17, 2009.
28
381
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1
1033. In support of this claim, Petitioner alleges the following facts,
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
4
1034. Those facts and allegations set forth in the petition, declarations,
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
9
1035. Petitioner’s conviction and sentence are illegal, unconstitutional and
void under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
10
United States Constitution because counsel failed to effectively prosecute the
11
motion to exclude Petitioner’s admission and protect Petitioner’s rights to due
12
process, a fair trial, and reliable determination of guilt and penalty.
13
1036. Petitioner’s conviction and sentence of death were rendered in
14
violation of his rights to due process; a fair trial; present a defense; compulsory
15
process; disclosure of all material, exculpatory and/or impeaching evidence; a
16
reliable, rational and accurate determination of guilt, death eligibility and death
17
worthiness, free of any unconstitutionally unacceptable risk that such
18
determinations were the product of bias, prejudice, arbitrariness or caprice; and
19
effective assistance of counsel under the Constitution.
20
1037. On March 17, 1987, the defense filed “Points and Authorities for
21
Motion to Exclude Statement of Defendant.” (XXIII CT 6713-18.) Counsel
22
asserted that Petitioner’s statements were involuntary without specifying any
23
grounds, other than invoking his Fifth Amendment rights.74 With respect to
24
statements allegedly made by Petitioner following his arrest and before his
25
26
27
28
74
After an evidentiary hearing, the court suppressed Petitioner’s
statements that were made after he invoked his Fifth Amendment rights.
382
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1
advisory, counsel failed to litigate any reasonable factual or legal grounds to
2
exclude the statements. (See 37 RT 2701-15.)
3
1038. The court found the statements were made voluntarily and were
4
spontaneous. (37 RT 2717.) The motion to suppress Petitioner’s statements was
5
denied. (Id. at 2716.)
6
1039. Had counsel conducted a competent investigation, they would have
7
learned of Petitioner’s background, his history of mental illness, psychosis, and
8
other significant neurological, cognitive, psychological and psychiatric
9
impairments. Competent counsel would have presented such evidence to the
10
court in support of their motion to suppress and the evidence would have
11
established the statements’ lack of voluntariness and spontaneity.75 Counsel
12
knew that Petitioner acted out while he was in police custody. He sustained a
13
head injury upon arrest and was observed by police banging his head on a table at
14
least ten times. (See 26 RT 1884, 1888.) There was ample evidence, known or
15
available to counsel, that Petitioner suffered from serious mental impairments.
16
1040. At the motion hearing, counsel failed to introduce evidence of
17
Petitioner’s long-standing temporal lobe epilepsy; mental incompetency in
18
September 1985; thought disorder of psychotic proportion, resulting from organic
19
brain disorder; psychotic disorder; disorganized speech, thought, and behavior;
20
hallucinations, delusions, paranoia; severe mood disorder; brain damage; severe
21
impairments in memory tasks and higher cognitive functioning, of a kind
22
typically associated with impairment of the frontal and temporal lobes;
23
impairments in his ability to inhibit behavior and responses and obsessive and
24
compulsive behaviors; and the impact on his behavior and personality of multiple
25
26
27
28
75
At a minimum, counsel was well aware of Petitioner’s history of
temporal lobe epilepsy, psychosis and mental illness having had Dietrich Blumer,
M.D., a neuropsychiatrist, examine Petitioner on January 19 and 20, 1986.
(Ex. 31, Blumer Dec.)
383
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1
disorders – all of which established that Petitioner was seriously mentally ill and
2
which rendered Petitioner’s statements involuntary and not spontaneous.
3
Petitioner incorporates by reference as though fully set forth in Exhibits 31, 32,
4
38, 41, 42, 43, 72, 100, 99, 98, 96 which are the Declarations of Dietrich Blumer,
5
M.D., dated 05/10/2004; Marilyn Cornell, dated 06/16/2004; Robert Schneider,
6
M.D., dated 02/23/2004; William Vicary, M.D., dated 03/15/2004; Dale Watson,
7
Ph.D., dated 04/24/2004; Jane Wells, J.D., Ph.D., dated 05/19/2004; and Anne
8
Evans, Ph.D., dated 04/18/1995, as well as the reports of George W. Woods,
9
M.D., dated 04/19/1995; Elise Taylor, MFCC, dated 03/06/1995; Myla H.
10
Young, Ph.D, dated 03/13/1995; and the letter from Victor Henderson, M.D., to
11
Daniel Hernandez, dated 05/29/1987.
12
1041. Competent counsel would also have introduced evidence that
13
psychological impairments render statements coercive. (Ex. 20, Trauma-Related
14
Coerced Confessions.) Thus, competent counsel would have established that
15
Petitioner was so impaired he was unable to function in a rational manner, and his
16
statements were involuntary.
17
1042. Petitioner was prejudiced by counsel’s failure to object or refute the
18
evidence at trial. Evidence of Petitioner’s guilt was established by his statements.
19
Petitioner’s statement that he would be blamed for the killings and would be sent
20
to the electric chair was crucial to the prosecution’s case. Trial counsel’s failure
21
to properly object to introduction of the statements and refute the prosecution’s
22
evidence was damaging to Petitioner. Petitioner was prejudiced by the
23
prosecutor’s closing argument that Petitioner’s admissions established his guilt.
24
(209 RT 24069.) There was no mental state evidence introduced on Petitioner’s
25
behalf. The jury was not informed as to the involuntary nature of the statements.
26
1043. Had counsel properly developed Petitioner’s case, evidence would
27
have been presented of Petitioner’s mental illness and of the circumstances of
28
Petitioner’s arrest; continuing objections would have been made on the grounds
384
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1
that the statements lacked the indicia of reliability; and counsel’s closing
2
argument to the jury would have explained that Petitioner’s statements were
3
unreliable and not reflective of his guilt.
4
1044. Trial counsel’s failure to investigate, develop and present evidence
5
of Petitioner’s state of mind, basis for the admissions, the fearful setting, and the
6
stress at the time that the statements were allegedly uttered deprived Petitioner of
7
effective assistance of counsel and the full panoply of his constitutional rights.
8
1045. The Due Process Clause bars the use of involuntary confessions in
9
criminal trials, independently of whether a violation of the Miranda prophylaxis
10
is established. See, e.g., Fikes v. Alabama, 352 U.S. 191, 193, 197, 77 S. Ct. 281,
11
1 L. Ed. 2d 246 (1957). Use of an involuntary confession is a separate violation
12
of due process of law regardless of whether the specific parameters of Miranda
13
were observed in obtaining the statement. For this reason, the Supreme Court has
14
stated that “any criminal trial use against a defendant of his involuntary
15
confession is a denial of due process . . . .” Mincey v. Arizona, 437 U.S. 385, 398,
16
98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (emphasis in original); see also Doody v.
17
Shriro, No.06-17161, 2008 WL 4937964 (9th Cir. 2008) .
18
1046. One reason why use of an involuntary statement at trial violates due
19
process is because of the high risk of its lack of reliability and accuracy. Leading
20
pre-Miranda case law on involuntary confessions repeatedly stressed the
21
reliability/accuracy rationale that bars the admission of involuntary confessions.
22
See, e.g., Stein v. New York, 346 U.S. 156, 182, 73 S. Ct. 1077, 97 L. Ed. 1522
23
(1953) (due process entails concerns for the accuracy of the evidence adduced in
24
the trial process); see also Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
25
Ed. 2d 215 (1963) (exculpatory evidence); Drope v. Missouri, 420 U.S. at
26
172-173 (defendant’s participation); Ake v. Oklahoma, 470 U.S. at 77 (defense
27
access to expert evidence).
28
385
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1
1047. The indicia of reliability of an involuntary confession was a valid
2
issue regardless of whether the statements were made pursuant to an official
3
police interrogation in violation of Miranda.76 Petitioner raises precisely such
4
concerns about the accuracy and reliability of the evidence against him. Counsel
5
failed to investigate, substantiate or argue Petitioner’s mental impairments to
6
establish the unreliable nature of his statements and violation of his due process
7
rights. Because of counsel’s failure to investigate or present any evidence of the
8
circumstances of Petitioner’s statement, available evidence of involuntariness
9
was never presented. Counsel’s failure was unreasonable in light of case
10
authority and statutory authority prohibiting use of involuntary statements.
11
1048. The foregoing violations of Petitioner’s constitutional rights, taken
12
singly or in combination with the other errors alleged in the Petition, constitute
13
structural error and warrant the granting of this Petition without any
14
determination of whether the violations substantially affected or influenced the
15
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.Ct.
16
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
17
doctrine applies to this claim, the foregoing constitutional violations, singly and
18
in combination with the other errors alleged in this Petition, so infected the
19
integrity of the proceedings that the error cannot be deemed harmless. The
20
foregoing violations of Petitioner’s rights had a substantial and injurious effect
21
or influence on Petitioner’s convictions and sentences, rendering them
22
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
23
637-38.
24
25
26
27
28
76
Involuntary statements are excludable if there is some element of
coercion present. See Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L.
Ed. 2d 473 (1986). Remediable claims of involuntary statements do not require
the usual trappings of a police interrogation. See Arizona v. Fulminante
(involuntary statement made to jailhouse informant).
386
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1
1049. In addition, the denial of his right to effective assistance of counsel
2
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
3
unfair, eroded the reliability of the verdict and had a substantial and injurious
4
effect on the verdict. But for the denial of this right, it is reasonably probable that
5
a more favorable result would have been attained. Under these circumstances,
6
the adversarial system completely broke down, and Petitioner was left without
7
meaningful representation. Although many of trial counsel’s errors were, by
8
themselves, so egregious as to require reversal, the extraordinary accumulation of
9
errors and omissions over the course of the trial created a total breakdown in the
10
adversarial process, so that prejudice is conclusively presumed. United States v.
11
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
12
(1984). Even assuming a showing of prejudice is required, Petitioner has made
13
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
14
L. Ed. 2d 674 (1984).
15
CLAIM 15:
16
COUNSEL’S INEFFECTIVE ASSISTANCE AT PRETRIAL PHASE:
17
FAILURE TO PROPERLY CHALLENGE THE LEGALITY OF
18
THE SEIZURE OF EVIDENCE
19
1050. Exhaustion of the claim: This claim was fairly presented to the
20
California Supreme Court in Section XII of the June 2004 petition for writ of
21
habeas corpus.
22
1051. In support of this claim, Petitioner alleges the following facts,
23
among others to be presented after full discovery, investigation, adequate
24
funding, access to this Court’s subpoena power, and an evidentiary hearing.
25
1052. Those facts and allegations set forth in the petition, declarations,
26
claims of constitutional violations, and the accompanying exhibits are
27
incorporated by reference as if fully set forth herein to avoid unnecessary
28
duplication of relevant facts.
387
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1
1053. Petitioner’s conviction and sentence are illegal, and unconstitutional
2
and void under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
3
Amendments because counsel failed to effectively represent Petitioner and
4
protect his rights to due process and a fair trial and reliable determination of guilt
5
and penalty.
6
1054. Petitioner’s conviction and sentence of death were rendered in
7
violation of his rights to due process; to a fair trial; to present a defense; to
8
compulsory process; to disclosure of all material, to exculpatory and/or
9
impeaching evidence; to a reliable, rational, and accurate determination of guilt,
10
death eligibility and death worthiness, free of any unconstitutionally unacceptable
11
risk that such determinations were the product of bias, prejudice, arbitrariness or
12
caprice; and to effective assistance of counsel under the above-referenced
13
provisions of the Constitution.
14
1055. The violations of these rights, individually and cumulatively,
15
prejudicially affected and distorted the investigation, discovery, presentation, and
16
consideration of evidence as well as each and every factual and legal
17
determination made by trial counsel, the state courts and the jurors at all stages of
18
the proceedings from the time of Petitioner’s arrest through and including the
19
rendering of the judgment of death.
20
1056. Counsel’s representation fell below an objective standard of
21
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 693-
22
94. As a result of trial counsel’s deficiencies, there was a complete breakdown in
23
the adversarial process. Counsel’s performance impaired the proper functioning
24
of the criminal justice system such that the proceedings cannot be relied on as
25
having produced a just result. Id. at 686. There is a reasonable probability that
26
but for counsel’s failings, the result in the guilt and penalty phases would have
27
been more favorable. Id. at 687-96.
28
388
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1
1057. On March 2, 1987, defense counsel moved to suppress evidence.
2
The motion was exceedingly short and without a statement of adequate grounds.
3
(XXIII CT 6703-06.) Counsel failed to move to quash and traverse the search
4
warrant. The court noted that counsel had failed to file a motion to quash and
5
traverse the search warrant but permitted counsel to examine the witnesses
6
concerning grounds for issuance of the warrant. (26 RT 1855.) Counsel also
7
failed to follow the evidentiary procedures required for a § 1538.5 hearing,
8
including calling witnesses to testify and raising a legal claim that evidence had
9
been illegally seized. (See, e.g., 27 RT 1976.)
10
1058. Trial counsel failed to properly investigate the circumstances
11
surrounding Petitioner’s arrest, the actions of various police agents, and the
12
seizure of incriminating physical evidence, including the contents of a bag
13
retrieved from a storage locker at a Greyhound bus station, and a green Pontiac
14
vehicle. Petitioner’s statements led police to search his person, the Greyhound
15
bag, and the car. Trial counsel’s failure to investigate and present evidence of the
16
circumstances surrounding the seizure of evidence amounted to ineffective
17
assistance of counsel.
18
1059. Allegations of probable cause contained in the search warrant
19
affidavit were based on statements Petitioner made while in custody without
20
being advised of his Miranda rights. He allegedly told a police officer that he
21
had in his possession a ticket to a bus locker in which a handgun was stored.
22
Another officer seized the ticket from Petitioner. Police relied on this
23
information as support for obtaining a search warrant for Petitioner’s person and
24
property, the Greyhound bag, and the vehicle. (Ex. 21, Search Warrant, Search
25
Warrant Affidavit and Return of Search Warrant (State Habeas Exhibit 11), p.
26
14.) Trial counsel were also ineffective because they failed to investigate and
27
present evidence that Petitioner’s statements were involuntary. See supra. The
28
seizure of evidence based on information obtained from Petitioner’s involuntary
389
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1
statements was unlawful and violated Petitioner’s fundamental constitutional
2
rights.
1060. On March 24, 1987, the court denied the motion to suppress
3
4
evidence. (XXIII CT 6722.) The court specifically found the search warrant had
5
been properly issued based on ample probable cause and that the police acted
6
properly with respect to the warrantless seizure of evidence from Petitioner.
7
(Ex. 21, Search Warrant, Search Warrant Affidavit and Return of Search
8
Warrant.)
9
1061. Had counsel properly investigated the circumstances that led to the
10
issuance of the search warrant and seizure of evidence, it is reasonably probable
11
that counsel would have been able to demonstrate Petitioner’s statements were
12
involuntary, that the evidence was unlawfully seized, and that there were
13
insufficient grounds to justify seizure of property from Petitioner’s person and
14
lack of legally sufficient probable cause to issue the search warrant.
1062. Competent counsel would have investigated, developed and
15
16
presented evidence to challenge the validity of information set forth in the search
17
warrant affidavit. Competent counsel would have established that Petitioner’s
18
statements lacked voluntariness due to Petitioner’s long-standing mental
19
impairments, including neurological and neurocognitive deficits, impaired and
20
psychotic thought processes, his severely compromised ability to shift mental sets
21
and make decisions, and the coercive setting in which Petitioner was held at the
22
time of the statements. Counsel would have properly moved to suppress
23
evidence seized from Petitioner’s person, the Greyhound bag, and the green
24
Pontiac because the statements were involuntary and the police lacked probable
25
cause. The seizure of evidence violated Petitioner’s Fourth and Fifth Amendment
26
rights.
27
28
1063. Evidence seized from Petitioner’s person, the Greyhound bag, and
the green Pontiac vehicle, was admitted at trial. As a result of counsel’s failures,
390
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1
the jury considered evidence that implicated Petitioner in the crimes of which he
2
was convicted. In failing to properly challenge and object to the seized evidence,
3
trial counsel deprived Petitioner of his fundamental constitutional rights.
4
1064. The foregoing violations of Petitioner’s constitutional rights, taken
5
singly or in combination with the other errors alleged in the Petition, constitute
6
structural error and warrant the granting of this Petition without any
7
determination of whether the violations substantially affected or influenced the
8
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
9
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
10
doctrine applies to this claim, the foregoing constitutional violations, singly and
11
in combination with the other errors alleged in this Petition, so infected the
12
integrity of the proceedings that the error cannot be deemed harmless. The
13
foregoing violations of Petitioner’s rights had a substantial and injurious effect
14
or influence on Petitioner’s convictions and sentences, rendering them
15
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
16
637-38.
17
1065. In addition, the denial of his right to effective assistance of counsel
18
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
19
unfair, eroded the reliability of the verdict and had a substantial and injurious
20
effect on the verdict. But for the denial of this right, it is reasonably probable that
21
a more favorable result would have been attained. Under these circumstances,
22
the adversarial system completely broke down, and Petitioner was left without
23
meaningful representation. Although many of trial counsel’s errors were, by
24
themselves, so egregious as to require reversal, the extraordinary accumulation of
25
errors and omissions over the course of the trial created a total breakdown in the
26
adversarial process, so that prejudice is conclusively presumed. United States v.
27
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
28
(1984). Even assuming a showing of prejudice is required, Petitioner has made
391
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1
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
2
L. Ed. 2d 674 (1984).
3
CLAIM 16:
4
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE
5
PRETRIAL PHASE: FAILING TO CHALLENGE
6
EFFECTIVELY IDENTIFICATION PROCEDURES
7
1066. Exhaustion of the claim: This claim was fairly presented to the
8
California Supreme Court in Section X of the June 2004 petition for writ of
9
habeas corpus, although it includes additional factual allegations. Petitioner will
10
present the claim with the additional factual allegations to the California Supreme
11
Court in an exhaustion petition he will file no later than March 17, 2009.
12
1067. In support of this claim, Petitioner alleges the following facts,
13
among others to be presented after full discovery, investigation, adequate
14
funding, access to this Court’s subpoena power, and an evidentiary hearing.
15
1068. Those facts and allegations set forth elsewhere in the petition,
16
declarations, claims of constitutional violations, and the accompanying exhibits
17
are incorporated by reference as if fully set forth herein to avoid unnecessary
18
duplication of relevant facts.
19
1069. Petitioner’s conviction and sentence are illegal, and unconstitutional
20
and void under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
21
United States Constitution because counsel failed to meaningfully test eyewitness
22
identification evidence and protect Petitioner’s rights to due process, a fair trial
23
and a reliable determination of guilt and penalty.
24
1070. In considering counsel’s deficient performance individually and
25
cumulatively in conjunction with other claims alleged herein, the verdicts in both
26
the guilt phase and penalty phases of Petitioner’s trial must be set aside.
27
Petitioner adopts and incorporates by reference, as though fully set forth, all facts
28
and claims set forth elsewhere in this petition.
392
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1
1071. Petitioner’s conviction and sentence of death were rendered in
2
violation of his rights to due process; a fair trial; to present a defense; compulsory
3
process; disclosure of all material, exculpatory and/or impeaching evidence; a
4
reliable, rational, and accurate determination of guilt, death eligibility and death
5
worthiness, free of any unconstitutionally unacceptable risk that such
6
determinations were the product of bias, prejudice, arbitrariness or caprice; and
7
effective assistance of counsel under the above-referenced provisions of the
8
Constitution.
9
1072. Counsel’s representation fell below an objective standard of
10
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 693-
11
94. There is a reasonable probability that but for counsel’s failings, the result in
12
the guilt and penalty phases would have been more favorable. Id. at 687-96.
13
1073. The prosecutor’s eyewitness identification evidence purportedly
14
linked Petitioner to nine of the sixteen incidents. It consisted of testimony of
15
eyewitnesses who viewed photographic spreads, assisted in the preparation of
16
composite drawings, and made identifications at a live lineup, and in court.
17
1074. Trial counsel failed to properly and adequately investigate, develop,
18
and present evidence through the meaningful adversarial testing of the evidence
19
to demonstrate in each incident the witness’s opportunity to view the suspect; the
20
stress the witness was under at the time; the witness’s ability to provide a
21
description; cross-racial and cross-gender aspects of the identification; multiple
22
viewings of Petitioner; and, most importantly, whether the identification was
23
based on independent grounds and not contaminated by the lineup procedures,
24
extensive media coverage, or other factors in the highly publicized case.
25
1075. Trial counsel failed to present all the relevant grounds to challenge
26
the evidence, including, as described in more detail below, irregularities at the
27
live lineup that contaminated the in-court identification; and unreliability due to
28
inconsistencies in the physical descriptions of the suspect. Counsel consistently
393
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1
failed to adequately cross-examine the witnesses, test the evidence, and object to
2
the lack of independent grounds for in-court identifications.
3
1076. Trial counsel failed to challenge the reliability of the prosecution’s
4
evidence effectively or to test the evidence. At pretrial hearings to suppress
5
identification based on the live lineup, counsel presented only limited information
6
about the circumstances surrounding the live lineup. Counsel failed to develop
7
and present evidence of the prejudicial impact of recent pervasive and prejudicial
8
media coverage of the crimes for which Petitioner was charged; multiple
9
opportunities the witnesses had to see Petitioner’s face on television and in the
10
print media following his arrest; crowded conditions at the lineup room; the
11
property lineup conducted at the same time in an adjoining room; conducting a
12
group live lineup and property lineup with a person who knew Petitioner well and
13
who was found to be in possession of some of the stolen property from the crimes
14
(see Ex. 86, witness card of Felipe Solano, Sr.; 172 RT 20115-16, 22-32, 42-44);
15
pressure and bias of witnesses to make an identification in the case; the lack of
16
independent grounds for the in-court identification; and the impact of stress, fear,
17
memory retrieval, and cross-racial factors on the reliability of eyewitness
18
identification. Counsel failed to elicit evidence of the tainted identification
19
procedures from defense expert witness Elizabeth Loftus, Ph.D. (See Ex. 37,
20
Declaration of Dr. Elizabeth Loftus).
21
1077. In addition, although trial counsel presented testimony of an
22
eyewitness identification expert, Dr. Elizabeth Loftus, trial counsel failed to
23
provide Dr. Loftus with an adequate background regarding the incidents in the
24
case to allow her to identify the factors that would likely have been relevant to
25
the witnesses’ identifications of Petitioner. As a result, Dr. Loftus was unable to
26
present testimony that related to the facts of the case. This had an adverse impact
27
on Petitioner’s case because Dr. Loftus’ testimony was general and not specific
28
to his case; the jury was less likely to be able to link the substance of the
394
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1
testimony to the facts; and Dr. Loftus’ testimony was less likely to actually
2
enhance the jurors’ sensitivity to the credibility of the eyewitness evidence
3
presented. (See Ex. 71, Declaration of Dr. Kathy Pezdek, ¶ 134).
4
1078. Also, during trial, counsel failed to adequately link the facts of
5
Petitioner’s case and the eyewitness identification factors that Dr. Loftus
6
described in her testimony. Thus, her testimony did not seem to be relevant to
7
the case, and was particularly dry and academic. (See id.) One example is that
8
many witnesses had seen Petitioner on television or in the newspaper before they
9
identified him at the lineup or in court. Because the witnesses had previously
10
seen Petitioner in the media, there was a high probability that the witnesses’
11
memories were suggestively influenced before they identified Petitioner at the
12
lineup or in court, at the preliminary hearing or the trial. (See id., pp. 134-35).
13
Although Dr. Loftus testified regarding the effect of “post event information” on
14
the memory of the witnesses, trial counsel never explained to the jury what the
15
term meant with respect to Petitioner’s case, and why it would call into question
16
the reliability of the identifications in this case. (See Dr. Loftus’ testimony, 194
17
RT 22699-838, Ex. 71, Declaration of Dr. Kathy Pezdek, pp. 134-35).
18
1079. Trial counsel failed to establish, through cross examination, through
19
the presentation of evidence, and through the presentation of expert testimony,
20
that the witnesses’ identifications of Petitioner were faulty. For example, many
21
of the witnesses initially described a suspect who was arguably different than
22
Petitioner. For example, Petitioner was a 25 year old, Mexican male, 6’1”, and
23
150 pounds. (See Ex. 94, 8/31/85 Supp. Report, p. 2830). Maria Hernandez
24
described the suspect as a light-skinned male, either Mexican or Caucasian. (See
25
Ex. 88, 4/15/85 LASO Supp. Report , p. 2809). Sophie Dickman initially told the
26
police that the suspect was a White male, approximately, 5’8” to 5’9”. (See Ex.
27
90, 7/7/85 Police Report, p. 2819.) She also helped to prepare a sketch of the
28
suspect, and indicated that the suspect was 5’8 or 5’9”. She later testified that
395
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she had described his height to the police as 6’ or 6’1” (CR 3202, 3218, 160 RT
2
18628, 18644). Somkid Khovananth described the suspect as White male, with a
3
tan complexion, who was 30-35 years old. (See Ex. 91, LAPD Press Release,
4
8/5/85, p. 2820). Virginia Petersen described the suspect as a male with a light
5
complexion. (See Ex. 92, 8/8/85 Police Interview, p. 2822). Sakina Abowath
6
initially described the suspect as a White male with light brown or blond curly
7
hair. (See Ex. 93, 8/8/85 Supp. Report, p. 2823). Jorge Gallegos only saw the
8
suspect from behind, and he could not be sure if the person was Asian or Latino.
9
(See Ex. 87, 3/18/85 Supp. Report, p. 2804).
10
1080. Trial counsel failed to provide the jury with examples of how “post
11
event information”, as described by defense expert Dr. Loftus, could possibly
12
have affected the identifications in Petitioner’s case. Trial counsel should have
13
provided the following examples to the jury to establish how “post event
14
information” may have had an effect on the memories of the eyewitnesses in
15
Petitioner’s case:
16
Maria Hernandez first identified Ramirez as the man who shot her at the
17
live lineup (3 CT 791), and then subsequently at the Preliminary Hearing
18
(3 CT 738). However, she admitted at the Preliminary Hearing that prior
19
to attending the lineup, she had seen his picture in the newspaper and saw
20
him on television about 5 times (3 CT 775-6), and that she specifically saw
21
his picture on television the day before he was arrested (8 CT 777).
22
23
Carol Kyle first identified Ramirez at the live lineup and then subsequently
24
at the Preliminary Hearing (8 CT 2286). However, she testified at the
25
Preliminary Hearing that prior to attending the lineup, she had seen his
26
picture in the newspaper and after the police identified him as the Night
27
Stalker (8 CT 2343, 2345-46). She testified that in the days leading up to
28
the lineup, she saw news reports “probably every day” (8 CT 2345-46).
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Officers had indicated to her that the Night Stalker would be in the lineup
2
(8 CT 2346).
3
4
Sophie Dickman first identified Ramirez at the live lineup (11 CT 3164-66)
5
and then subsequently at the Preliminary Hearing (11 CT 3135). However,
6
she testified at the Preliminary Hearing that she had seen Ramirez’s
7
photograph in the news “lots of times” before she picked him out of the
8
lineup, and she read the newspaper daily (11 CT 3221, 3224). She learned
9
from the news that the Night Stalker was responsible for her attack about 5
10
days after his arrest (11 CT 3224), which was prior to the live lineup.
11
12
Launie Dempster testified that while she was delivering newspapers very
13
early in the morning in the Monterey Park area, she saw the same man on
14
three different occasions. (16 CT 4624-26, 29-33, 37-38, 162 RT 18755,
15
60-61, 65-66, 69). She was shown a composite drawing by the police, but
16
it did not depict the same person that she saw. (162 RT 18802-04, 18845).
17
She testified that she saw Mr. Ramirez’s picture on the television news the
18
day before he was arrested (16 CT 4649-50, 162 RT 18777). After he was
19
arrested, she saw his picture in the newspaper paper and kept up with the
20
news for about a month (16 CT 4662). At the trial and at the Preliminary
21
Hearing, she identified Mr. Ramirez in court (16 CT 4624-25, 162 RT
22
18775). She did not attend the live lineup.
23
24
Somkid Khovananth first identified Ramirez at the live lineup (12 CT
25
3528, 164 RT 19110) and then subsequently in court at the Preliminary
26
Hearing (12 CT 3513). She testified that prior to the live lineup, she had
27
seen his picture on television a few weeks after she was attacked and knew
28
it was him although she did not call the police (12 CT 3551, 3563, 3570,
397
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3580). She also saw Ramirez’s picture in the news before he was arrested
2
(12 CT 3572).
3
4
Virginia Petersen first identified Ramirez at the live lineup (12 CT 3673)
5
and then subsequently in court at the Preliminary Hearing (12 CT 3672).
6
At the trial, she again identified Ramirez (165 RT 19189) and testified that
7
she had seen his picture on television and in newspaper at least 6-7 times
8
before attending the lineup. However, although she recognized him as the
9
man who attacked her, she never called the police to tell them (165 RT
10
11
12
19215, 19222).
(See Ex. 71, Declaration of Dr. Kathy Pezdek, at 135-37).
1081. In the Okazaki/Hernandez incident, counsel failed to effectively
13
cross-examine eyewitness Maria Hernandez about the lineup procedures or her
14
multiple opportunities to see Petitioner’s face on television or in the print
15
media.77 Counsel failed to establish the nature and extent of the witness’s
16
exposure to the coverage. Ms. Hernandez was not examined about the effect of
17
“weapon focus” during her quick viewing of the suspect, her inability to recall
18
the suspect’s features, or her stress and fear during the brief encounter. Counsel
19
failed to establish that poor viewing conditions rendered her identification
20
inherently unreliable. There was no defense challenge to the various lineups and
21
photographic spreads seen by the witnesses prior to Petitioner’s arrest and how
22
that affected the reliability of the evidence.
23
24
1082. In the Yu incident, prosecution witness Joseph Duenas testified that,
while he was on his balcony, he saw two cars parked on the street. The defense
25
26
77
27
28
The massive publicity surrounding Petitioner’s arrest gave witnesses
many opportunities to see Petitioner’s face on television and in newspapers
before the live lineup was held.
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failed to question the witness about his contacts with another witness, Jorge
2
Gallegos, related to identification of the suspect. Similarly, Mr. Gallegos was not
3
examined by the defense about multiple opportunities to view Petitioner’s face on
4
television; his contact with witness Mr. Duenas who was related to his girlfriend,
5
or others who knew Mr. Duenas, and their conversations about the case and
6
Petitioner’s arrest; the prejudicial impact of the media coverage to which he was
7
exposed; and failure of memory based on the length of time from the incident
8
(March 17, 1985), the preliminary examination approximately one year later, and
9
at trial four years later.78
10
1083. Trial counsel failed to competently challenge the testimony of
11
Launie Dempster related to the Doi and Nelson incidents. There were unusual
12
circumstances surrounding her identification due to the fact that Ms. Dempster
13
delivered newspapers early in the morning when it was still dark. She failed to
14
timely report her sightings of a possible suspect but later identified Petitioner
15
after seeing his face on television. There was no adequate defense examination
16
of her sightings, multiple opportunities to view Petitioner’s face, or the basis for
17
identification, including length of time viewing the person’s face or particular
18
features of the face. There was no defense examination with respect to
19
individuals depicted in the composite drawing and lack of independent grounds
20
for the in-court identification. Moreover, Ms. Dempster’s credibility for failing
21
to report her sightings during the rash of killings was suspect, but trial counsel
22
failed to establish her motivation for failing to do so.
23
1084. In the Kyle incident, trial counsel failed to establish that stress, fear,
24
weapon focus, lighting, memory retrieval, and related factors rendered the
25
eyewitness identification unreliable even though the suspect description given to
26
27
28
78
The prosecution attacked the inadequate defense photographic evidence
in the Yu, Doi, Nelson, and Petersen incidents.
399
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police was unreliable and inaccurate. The witness recalled the suspect’s teeth
2
were straight and white, unlike Petitioner’s. Ms. Kyle participated in several pre-
3
lineup identification procedures but the defense failed to adequately question her
4
about the features of the suspects depicted in the photo spread and composite
5
drawings. Counsel also failed to establish likely contamination due to the
6
witness’s multiple contacts with law enforcement and numerous opportunities to
7
modify and change the description from the original description given to police.
8
9
1085. Similarly in the Dickman incident, there were numerous factors trial
counsel overlooked. Ms. Dickman’s initial suspect description varied in key
10
respects with her trial testimony; she first described the suspect as possibly white,
11
5’8” to 5’9” tall. At the trial nearly four years later, she identified Petitioner as
12
the suspect. Counsel failed to establish cross-racial factors, stress and fear,
13
unreliability, lack of independent grounds for in-court identification, memory
14
retrieval, and contamination due to preparation of a composite drawing, viewing
15
a lineup prior to Petitioner’s lineup, and multiple opportunities to see Petitioner’s
16
face on television and the print media.
17
1086. In the Khovananth incident, trial counsel failed to establish
18
unreliability of the identification by the eyewitness based on cross-racial factors,
19
the composite drawing, multiple opportunities to see Petitioner’s face, to meet
20
with police and discuss the suspect’s descriptions, stress, fear, and bias that
21
influenced the in-court identification. Counsel failed to explore in any detail the
22
impact of these factors on the witness’s testimony.
23
1087. In the Petersen incident, trial counsel failed to prove the viewing
24
conditions at night prevented the witness from making a reliable identification.
25
Moreover, counsel failed to examine the witness about the multiple opportunities
26
to see Petitioner’s face on television and in newspapers, and to discuss, modify,
27
or change her memory of the suspect based on contacts with police and her
28
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husband who had also been shot. There was no attempt by counsel to establish
2
lack of independent grounds for the in-court identification.
3
1088. In the Abowath case, the witness described the suspect as a light-
4
skinned caucasian male. Trial counsel did not examine the witness about the
5
composite drawing, viewing conditions, stress, fear, bias, and cross-racial factors
6
that rendered the in-court identification unreliable.
7
1089. In each incident, competent counsel would have demonstrated the
8
unreliability of the identification and the live lineup, the nature of media exposure
9
encountered by the eyewitnesses and their respective police contacts, including
10
viewing of composite drawings, conversations about Petitioner’s case and arrest,
11
transportation to and from the live lineup, intense feelings of bias and pressure to
12
make an identification, and lack of independent grounds to establish reliability of
13
the in-court identification.
14
1090. Competent counsel would have presented evidence of the actual
15
extent of media coverage exposure by each eyewitness, including media
16
exposure, thorough examination of police personnel involved in preparing careful
17
composite drawings, and unreliability of eyewitness identification. The evidence
18
would have established that the witnesses were not able to accurately and
19
independently identify Petitioner as the suspect.
20
1091. Trial counsel’s performance fell below the objective standard of
21
reasonableness because trial counsel failed to present several relevant eyewitness
22
factors to the jury, factors which were known by eyewitness identification experts
23
at the time of the trial in 1989. Trial counsel failed to present evidence on the
24
following relevant factors:
25
Voice Identification Accuracy - Several of the eyewitnesses in this case
26
identified Mr. Ramirez at the live lineup based on his voice. The research
27
on voice identification suggests that voice identification is even less
28
reliable, and fades over time even faster than face identification (cf.
401
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1
Clifford, 1983). For example, when Carol Kyle identified Ramirez at the
2
live lineup (156 RT 17972) she noted down on her witness card “I’m
3
absolutely positive. Even the infliction [sic] in his voice is the same, . . .”
4
5
Tainted Identification Procedure - In a live lineup, all individuals should
6
match the description given by the eyewitnesses (Luus & Wells, 1991) and
7
be presented such that extra attention is not drawn to the suspect
8
(Buckhout, 1974). To the extent that this does not occur in a lineup, the
9
lineup is tainted and biased. It appears that the 6 individuals in the live
10
lineup did not all match the eyewitness descriptions. Also, to the extent
11
that the witnesses noticed the bald spot on the back of Ramirez’s head at
12
the lineup and knew the circumstances of his arrest, this would have drawn
13
attention to the defendant and thus enhanced the bias of the live lineup.
14
Another factor that could have tainted the live lineup was the fact that
15
during the lineup, apparently with the witnesses present, a deputy sheriff
16
stood in front of the room and held up 2 fingers (see Ex. 85, Photograph of
17
Lineup). Mr. Ramirez was in position #2.
18
19
Bias of an In-Court Identification - An in-court identification is not a fair
20
and unbiased identification procedure because the eyewitnesses are not
21
given a set of similar looking individuals from which to select the
22
perpetrator. There is also the suggestion in court that the defendant must
23
be guilty because he is there. All in-court identifications at the Preliminary
24
Hearing and the Trial would have suffered from this bias. In addition, two
25
witnesses identified Mr. Ramirez for the first time in Court. Launie
26
Dempster first identified the defendant at the Preliminary Hearing (16 CT
27
4624-25) having not attended the live lineup. Jorge Gallegos first identified
28
Ramirez at the Preliminary Hearing. He did not attend the live lineup (4 CT
402
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1
1080, 1107). He had reported to police that he only saw the suspect as the
2
suspect drove away (3/18/85 Monterey Park Police interview of Gallegos).
3
Nonetheless, he did identify Ramirez at the Preliminary Hearing. (4 CT
4
1103).
5
6
Experimenter Expectancy Effect - The Experimenter Expectancy Effect is
7
a specific type of suggestive identification procedure. If the officer
8
administering a lineup knows which person is the suspect, the officer may
9
find it difficult to avoid giving subtle cues to the witness regarding which
10
individual is the suspect. This effect has been known in the literature for
11
several decades.
12
13
(Ex. 71, Declaration of Dr. Kathy Pezdek, pp. 137-39).
1092. In addition, trial counsel failed to argue to the jury in closing
14
argument the full extent of the evidence that would have demonstrated
15
eyewitness identification lacked sufficient credibility to warrant conviction in the
16
Okazaki/Hernandez, Yu, Doi, Nelson, Kyle, Dickman, Khovananth, Petersen, and
17
Abowath incidents. Counsel’s failure to effectively challenge the eyewitness
18
identifications in this case is further evinced by observations of several jurors
19
who sat through Petitioner’s trial. (See e.g., Ex. 120, B. Smith Dec., ¶ ¶ 3, 5 and
20
6; Ex. 119, F. Sendejas Dec., ¶ 3; Ex. 117, D. McGee Dec., ¶ 3; Ex. 118, J.
21
Muldrow Dec., ¶ 4.)
22
1093. The defense expert witness, Elizabeth Loftus, Ph.D., testified in
23
general terms about the factors involved in eyewitness identification. Trial
24
counsel failed to elicit critical expert testimony about the specific factors
25
involved in the identification process, and reliability and accuracy of the
26
witnesses’ identification in the nine incidents discussed above.
27
28
1094. Competent counsel would have presented expert testimony in each
of the incidents, Okazaki/Hernandez, Yu, Doi, Nelson, Kyle, Dickman,
403
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Khovananth, Petersen, and Abowath, regarding the length of time of the witness’s
2
observation, fear and stress at that time, the witness’s focus during the time of the
3
observation, such as weapon focus, and the impact of fear and stress on memory
4
and retrieval of information. An expert such as Dr. Loftus would also have
5
explained the factors that influenced identification at the live lineup, including
6
the impact of media coverage, bias and pressure to identify a potential suspect.
7
(Ex. 37, Declaration of Dr. Elizabeth Loftus). The expert would have explained
8
other factors as well, such as the impact of the crowded lineup and the property
9
lineup held at the same time.
10
An adequate explanation of the facts and circumstances surrounding
11
identification is critical to the jury’s understanding of the
12
identification process.
13
. . . I was not asked to render an opinion about the facts and
14
circumstances of eyewitness identification. If I had been asked, I
15
would have rendered an opinion based on the following:
16
(a)
17
drawings prepared by law enforcement with the assistance of
18
eyewitnesses;
19
(b)
inconsistencies in physical descriptions of the
suspect given by eyewitnesses;
20
21
Procedures employed during preparation of composite
(c)
massive publicity following Petitioner’s arrest on
August 31, 1985, including
22
23
extensive television coverage
24
of Petitioner’s face; and
25
(d)
the impact of post-event information on eyewitness identification, including
26
5, 1985, pretrial live lineup and simultaneous property lineup, and multiple
27
viewing of Petitioner in court, which had the potential to alter, supplement, or
28
contaminate the witnesses’ recollection.
404
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1
In my opinion, expert testimony pertaining to the above facts and
2
circumstances was important for the jury to consider in assessing the
3
credibility of eyewitness identification evidence.
4
(Ex. 37, Declaration of Dr. Elizabeth Loftus, pp. 1267-68). Expert testimony
5
about the unique factors in Petitioner’s case was crucial evidence for the jury to
6
consider in assessing credibility of eyewitness testimony.
7
1095. A competent examination of an expert witness that adequately
8
explores the individual factors that influence identification evidence, such as
9
length of opportunity to view the suspect, race of the witness and suspect,
10
weapon focus, fear and stress, and memory retrieval, is set forth in the deposition
11
given by Dr. Loftus in a criminal prosecution in the State of South Carolina.
12
(Ex. 40, Deposition of Elizabeth Loftus, Ph.D., in South Carolina v. John Boyd
13
Frazier, 02/11/2000).
14
1096. In failing to properly and adequately test the prosecution’s
15
eyewitness identification evidence, trial counsel prejudiced Petitioner’s rights.
16
The jury was misinformed as to the relevant criteria to consider with respect to
17
the factors affecting reliability and accuracy of identification evidence in nine
18
incidents, and thus had no basis for a verdict more favorable to Petitioner.
19
1097. Trial counsel failed to explain to the jury the critical flaws in
20
eyewitness testimony, and thus failed to rebut the prosecution’s misstatements
21
and misrepresentations of the evidence in closing argument. Trial counsel failed
22
to request appropriate pinpoint instructions related to credibility of identification
23
testimony, including identification made at the live lineup and the impact of
24
extensive media coverage of Petitioner and his case. Counsel’s failures deprived
25
Petitioner of his fundamental rights to a fair trial and reliable determination of
26
guilt and penalty.
27
1098. After reviewing the eyewitness identification evidence presented in
28
this case, Dr. Kathy Pezdek, an expert on eyewitness memory, found as follows:
405
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1
“[g]iven the strong reliance on eyewitness evidence in this case - the fact that the
2
prosecutor’s eyewitnesses linked Petitioner to nine of the sixteen incidents - it is
3
my opinion that it was ineffective for defense counsel not to have presented a
4
more competent eyewitness defense.” (Exhibit 71, Declaration of Dr. Kathy
5
Pezdek, p. 140).
6
1099. The foregoing violations of Petitioner’s constitutional rights, taken
7
singly or in combination with the other errors alleged in the Petition, constitute
8
structural error and warrant the granting of this Petition without any
9
determination of whether the violations substantially affected or influenced the
10
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
11
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
12
doctrine applies to this claim, the foregoing constitutional violations, singly and
13
in combination with the other errors alleged in this Petition, so infected the
14
integrity of the proceedings that the error cannot be deemed harmless. The
15
foregoing violations of Petitioner’s rights had a substantial and injurious effect
16
or influence on Petitioner’s convictions and sentences, rendering them
17
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
18
637-38.
19
1100. In addition, the denial of his right to effective assistance of counsel
20
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
21
unfair, eroded the reliability of the verdict and had a substantial and injurious
22
effect on the verdict. But for the denial of this right, it is reasonably probable that
23
a more favorable result would have been attained. Under these circumstances,
24
the adversarial system completely broke down, and Petitioner was left without
25
meaningful representation. Although many of trial counsel’s errors were, by
26
themselves, so egregious as to require reversal, the extraordinary accumulation of
27
errors and omissions over the course of the trial created a total breakdown in the
28
adversarial process, so that prejudice is conclusively presumed. United States v.
406
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1
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
2
(1984). Even assuming a showing of prejudice is required, Petitioner has made
3
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
4
L. Ed. 2d 674 (1984).
5
CLAIM 17:
6
PETITIONER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
7
ASSISTANCE OF COUNSEL AND TO A FAIR AND RELIABLE
8
DETERMINATION OF GUILT AND PENALTY BY COUNSEL’S
9
PREJUDICIALLY DEFICIENT PERFORMANCE: FAILURE TO
10
CHALLENGE THE PROSECUTION’S CASE
11
1101. Exhaustion of the claim: This claim was fairly presented to the
12
California Supreme Court in Section XII of the June 2004 petition for writ of
13
habeas corpus, although it includes additional factual allegations. Petitioner will
14
present the claim with the additional factual allegations to the California Supreme
15
Court in an exhaustion petition he will file no later than March 17, 2009.
16
1102. In support of this claim, Petitioner alleges the following facts,
17
among others to be presented after full discovery, investigation, adequate
18
funding, access to this Court’s subpoena power, and an evidentiary hearing.
19
1103. Those facts and allegations set forth elsewhere in this petition, and
20
the claims of constitutional violations and accompanying exhibits, are
21
incorporated by reference as if fully set forth herein to avoid unnecessary
22
duplication.
23
1104. Petitioner’s convictions and sentence of death were rendered in
24
violation of Petitioner’s rights to a fair and impartial jury, to a reliable, fair, non-
25
arbitrary, and non-capricious determination of guilt and penalty, to the effective
26
assistance of counsel, to present a defense, to confrontation and compulsory
27
process, to the enforcement of mandatory state laws, to a trial free of materially
28
false and misleading evidence, and to due process of law as guaranteed by the
407
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1
Fifth, Sixth, Eighth and Fourteenth Amendments of the federal constitution
2
because Petitioner’s trial counsel rendered constitutionally deficient
3
representation at all critical stages of the criminal proceedings.
4
1105. Trial counsel unreasonably failed to conduct a timely or adequate
5
investigation of the potential guilt and penalty phase issues, did not develop or
6
present a coherent trial strategy, and were unable to make informed and rational
7
decisions regarding potentially meritorious defenses and tactics. Trial counsel’s
8
errors and omissions were such that a reasonably competent attorney acting as a
9
diligent and conscientious advocate would not have performed in such a fashion.
10
Reasonably competent counsel handling a capital case at the time of Petitioner’s
11
trial would have known that a thorough investigation of the prosecution’s
12
theories of guilt, independent analyses of the physical evidence supporting those
13
theories, and a thorough investigation of potential defenses was essential to the
14
development and presentation of a defense at trial. Reasonably competent
15
counsel also would have recognized that a thorough investigation of Petitioner’s
16
background and family history, including, but not limited to, Petitioner’s medical,
17
mental health, academic, and social history, was essential to the adequate
18
preparation of both the guilt and penalty phases.
19
1106. Counsel’s failures to investigate adequately and present defenses and
20
protect Petitioner’s statutory and constitutional rights prejudiced the defense. It
21
is reasonably likely that, but for counsel’s unprofessional errors, the result of the
22
proceeding would have been different.
23
1107. Trial counsel unreasonably and prejudicially failed to investigate,
24
develop, and present a coherent trial strategy to challenge the multiple charges of
25
murder, attempted murder, burglary, rape, oral copulation, sodomy, and multiple
26
special circumstances. Instead of undertaking a reasonable investigation of
27
potential defenses to these charges, trial counsel abdicated their duty to
28
investigate and present a defense at trial, conceded the truth of much of the
408
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1
prosecution’s evidence, and failed to challenge the prosecution’s case with
2
respect to many of the charges. Reasonably competent counsel would have
3
investigated and developed possible defenses to the charges, including the
4
defense that Petitioner (1) was not present at the crime scenes; (2) did not shoot
5
or kill the victims; (3) did not act with intent to kill; or (4) suffered from impaired
6
mental functioning that precluded him from forming the requisite mental state to
7
commit capital murder. (Ex. 1, Guideline 11.41.1.) See, e.g., (Terry) Williams v.
8
Taylor, 529 U.S. 362, 396 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (defense
9
counsel in a capital case has an “obligation to conduct a thorough investigation of
10
the defendant’s background”); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.
11
2000) (“To perform effectively in the penalty phase of a capital case, counsel
12
must conduct sufficient investigation and engage in sufficient preparation to be
13
able to ‘present[] and explain[] the significance of all the available [mitigating]
14
evidence.’”); Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999) (“[i]t is
15
imperative that all relevant mitigating information be unearthed for consideration
16
at the capital sentencing phase”); Stouffer v. Reynolds, 168 F.3d 1115, 1167 (10th
17
Cir. 1999) (“[i]n a capital case the attorney’s duty to investigate all possible lines
18
of defense is strictly observed”) (emphasis added); Bell v. Ohio, 438 U.S. 637, 98
19
S. Ct. 2977, 57 L. Ed. 2d 1010 (1978). As a result, counsel provided ineffective
20
assistance.
21
1108. Trial counsel unreasonably and prejudicially failed to conduct a
22
complete and thorough investigation of possible defenses to the charged crimes
23
and special circumstances. Trial counsel failed to properly challenge admission
24
of Petitioner’s inherently unreliable statements and police seizure of evidence.
25
1109. Trial counsel unreasonably and prejudicially failed to investigate and
26
challenge the prosecution’s theory that Petitioner was present at the crime scenes
27
and participated in the crimes. Reasonably competent counsel would have
28
investigated, developed, and presented evidence and argument to the jury
409
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1
supporting the conclusion that Petitioner was not culpable of the crimes for which
2
he was convicted.
3
A.
4
Introduction
1110. At trial, counsel were unable to agree among themselves about
5
decisions in Petitioner’s case. (See 178 RT 20789-90.) Counsel failed to raise
6
reasonable and adequate defenses to the 43 charged offenses, or to the uncharged
7
Monrovia burglary. Through their incompetent representation, the defense failed
8
to challenge critical evidence in support of the prosecution’s case: the uncharged
9
Monrovia burglary,79 and the shoe print impressions and ballistics evidence.80 In
10
nine incidents (Zazzara, Doi, Bell/Lang, Cannon, Bennett, Nelson, Khovananth,
11
Abowath, and the uncharged case), trial counsel failed to challenge or refute the
12
testimony of the prosecution’s unqualified, inexperienced shoe print witness. In
13
eight incidents, ballistics evidence went unchallenged. The testimony of the
14
prosecution’s firearms expert attempted to link the Okazaki homicide to those of
15
Yu and Kneiding; attempted to link the Zazzara homicide to the Khovananth
16
incident; attempted to link a Jennings semi-automatic pistol that fires .22-caliber
17
long-rifle ammunition81 to the Doi case; and attempted to link the Petersen and
18
Abowath incidents. Defense counsel failed to competently challenge this
19
evidence.
20
21
22
23
24
79
See 210 RT 24225 (closing argument).
25
80
See 210 RT 24197, 24201, 24224-24225, 24228-29 (closing argument).
26
81
27
28
In this context, “long-rifle ammunition” refers to ammunition of a
designated length and weight that is longer and heavier than “short-rifle”
ammunition.
410
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B.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
2
or Otherwise Adequately Challenge the State’s Evidence in the Vincow
3
Incident, Counts 1-2 (burglary, murder, burglary-murder special
4
circumstance)
5
1.
6
1111. On June 28, 1984, the apartment of Jennie Vincow was broken into
The Prosecution’s Case
7
and ransacked, and Vincow was killed. Entry was gained through a window near
8
the front door. The victim’s throat was slashed; a coroner’s investigator opined
9
at trial that Vincow may have been sexually assaulted; however, no physical
10
evidence supported this assertion, except for the investigator’s observation that
11
Vincow’s girdle was pulled down and her dress partially lifted. (143 RT 16402-
12
04.) Deputy medical examiner Joseph Cogan estimated Vincow’s time of death
13
as within two or three hours of 2:00 p.m. (144 RT 16588.)
14
15
1112. According to Los Angeles County Deputy Sheriff Hannah Woods, a
partial fingerprint found on the window screen matched Petitioner’s.82
16
1113. In closing argument, the prosecutor emphasized that Petitioner was
17
guilty of burglary murder by virtue of his entry to commit theft, even if nothing
18
in the apartment had been taken. (204 RT 23663.) The prosecutor urged
19
conviction based upon fingerprint identification. (204 RT 23664-65.)
20
2.
21
1114. Daniel Hernandez argued outside the presence of the jury that one of
Defense Evidence
22
the victim’s sons, Manny Vincow, had a motive to kill his mother.83 The court
23
rejected the theory after the prosecution represented to the court that Manny
24
25
26
27
28
82
Palm print and shoe print evidence allegedly linked Petitioner to the
May 9, 1985 uncharged Monrovia burglary.
83
The defense failed to litigate and obtain a ruling as to the viability of a
third-party culpability defense before trial.
411
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1
Vincow was in New York at the time of the killing, and the defense had been
2
provided with discovery of that fact. (142 RT 16213-15.) The defense also
3
failed to make an adequate offer of proof that Jack Vincow had killed his mother.
4
(142 RT 16235-37.)
5
1115. Trial counsel did not introduce any evidence challenging the
6
fingerprint evidence. Hernandez briefly questioned prosecution witness
7
Reynaldo Clara regarding the age and duration of the latent prints found at the
8
scene. (143 RT 16392.)
9
10
1116. The defense offered only the testimony of forensic pathologist Dr.
Werner Spitz regarding time of death. (191 RT 22450-543)
11
3.
The Defense Failed to Competently Challenge the Charges
12
1117. Testifying for the defense, Dr. Spitz attempted to establish the time
13
of death was consistent with a defense theory that the victim’s son, Jack Vincow,
14
may have killed her. On cross-examination, Dr. Spitz admitted having never seen
15
photographs of the victim that were relevant as to the time of death. (191
16
RT 22540.) As a result of counsel’s failure to adequately prepare their expert
17
witness, the prosecution succeeded in challenging and impeaching Dr. Spitz’s
18
testimony as to the time of death. (206 RT 23700-24.)
19
1118. As a result of trial counsel’s failures, no affirmative evidence was
20
introduced on Petitioner’s behalf with respect to fingerprint evidence, third-party
21
suspect(s), or mental state.
22
1119. Trial counsel failed to present a competent and adequate defense to
23
the incident which occurred nearly nine months before the March 17, 1985
24
incident. The defense failed to challenge or refute the only physical evidence
25
linking Petitioner to the crime: the fingerprint on the window screen. They did
26
not present exculpatory evidence based upon the presence of other, unidentifiable
27
prints on the same window screen. (210 RT 24186.)
28
412
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1
1120. Standing alone, it was unlikely that the Vincow case would have
2
resulted in conviction. The dissimilarities between this case and the other
3
incidents would have led a reasonable juror to conclude the state overreached in
4
its efforts to link Petitioner to all of the cases. There was a lengthy period of time
5
between the 1984 Vincow incident and the 1985 crimes. The Vincow case did
6
not fit the prosecution’s assertion of a “pattern.” This was the only incident
7
involving the daytime death of a lone woman by means of stab wounds and the
8
only charged incident in which a partial fingerprint was identified as Petitioner’s.
9
No property from Vincow’s apartment was recovered. (Ex. 40, Declaration of
10
Steve Strong, dated 06/11/2004.)
11
1121. Trial counsel failed to investigate, develop, and present expert
12
testimony regarding fingerprint evidence or the significance of other prints found
13
at the scene.84 The defense failed to object, challenge, or request sanctions for the
14
prosecution’s failure to preserve the prints. At a pretrial hearing, trial counsel
15
sought sanctions for the prosecution’s failure to preserve evidence, i.e., the
16
unidentifiable prints on the window screen at the Vincow apartment. (47
17
RT 3225-27.) At trial, the defense failed to challenge the unidentifiable prints
18
through cross-examination of the prosecution’s latent print technician, Reynaldo
19
Clara, the print examiner, Deputy Woods, or the victim’s son, Jack Vincow.
20
Trial counsel failed to challenge the reliability of partial fingerprint comparison
21
22
23
24
25
26
27
28
84
Fingerprint examiner, Ron Smith, has been retained by federal habeas
counsel to review the fingerprint evidence introduced against Petitioner at trial;
however, he requires the release of the fingerprint exhibits to his care in order to
do so. (See Ex. 74, Declaration of Ron Smith.) Petitioner has filed a request with
the Superior Court to release the exhibits to Mr. Smith’s care; the government has
opposed Petitioner’s request.
413
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1
and identification during cross-examination of the prosecution’s expert.85 (See
2
175 RT 20507-11.)
3
1122. The defense failed to argue against the prosecution’s case and raise a
4
reasonable doubt about Petitioner’s guilt. The jury questioned the unidentifiable
5
fingerprints during deliberations. At the outset of their protracted deliberations,
6
the jury asked the court for a definition of unidentifiable fingerprints.
7
What is the legal definition of an unidentifiable fingerprint? Is it
8
because there is not enough of a print to make an I.D. or because the
9
print is not a part of the records the police have with which to make
10
a comparison.
11
(XXIX CT 8609.) Thus, the defense should have explained to the jury the
12
significance of unidentifiable prints and argued that the prints were not
13
Petitioner’s.
14
1123. Trial counsel failed to object to the prosecutor’s misconduct with
15
respect to the fingerprint evidence during closing argument. The prosecution
16
effectively shifted the burden of proof to the defense to prove when Petitioner’s
17
fingerprints were left at the scene.
18
And there is no evidence that the defendant was ever at that location
19
at any time other than this time when the screen upon which his
20
fingerprints were located was found inside.
21
(204 RT 23665.)
22
23
24
25
26
85
27
28
See Ex. 23 (Article entitled “Letter from the National Institute of Justice
Regarding the Solicitation of Forensic Friction Ridge (Fingerprint) Examination
Validation Studies” July 2000, Vol. 2, Number 3 (State Habeas Exhibit 11).)
414
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1
1124. The defense failed to investigate, develop, and present competent
2
evidence regarding time of death.86 Dr. Spitz testified only about the Vincow and
3
Yu homicides. The prosecution impeached Dr. Spitz because of his inadequate
4
preparation. Counsel lacked even the most basic skills to competently prepare
5
their witnesses, develop defense strategy, properly ask questions, and lay the
6
necessary foundation for the expert’s opinion. 87 Because counsel had failed to
7
provide Dr. Spitz with the Vincow autopsy photographs, Spitz was unable to
8
render an opinion about the lack of distinctive features of the wounds. (191
9
RT 22539-40.)
10
1125. The defense failed to investigate, develop, and present a third-party
11
defense. In order to assert a third-party culpability defense, counsel was required,
12
at a minimum, to properly investigate potential suspects and make an adequate
13
offer of proof in a timely manner. Counsel did neither, with the result that no
14
third-party evidence was admitted. Counsel failed to lay a proper foundation to
15
impeach Jack Vincow regarding his prior mental hospitalization (142 RT 16233-
16
40); his less than enthusiastic cooperation with the police investigation (142
17
RT 16247-50); and his unwillingness to take a polygraph examination (142
18
RT 16256, 16259-62).
19
1126. Ultimately, counsel failed to present a defense to the charges. In
20
closing argument, after conceding the fingerprint evidence, counsel offered a
21
wholly inadequate basis for acquittal: that Petitioner’s fingerprints found on the
22
window screen were an insufficient basis for conviction because his fingerprints
23
were not found inside the apartment. (210 RT 24185-86.)
24
25
26
27
28
86
The only conceivable relevance of the time of death was to show that
Jack Vincow had an opportunity to commit the crime. However, the defense
failed to offer any third-party culpability evidence.
87
Dr. Spitz mistakenly testified that he evaluated photographs and autopsy
reports pertaining to all of the murder charges. (191 RT 22452.)
415
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1
1127. Trial counsel failed to investigate, develop, or present any evidence
2
with respect to alternative defenses based on lack of requisite mental state due to
3
Petitioner’s history of serious mental illness, neurocognitive and neurological
4
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
5
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
6
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
7
In addition, counsel failed to conduct a reasonable investigation that would have
8
permitted them to make a reasonable tactical decision to forego such defenses in
9
favor of a defense based on innocence.
10
C.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
11
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
12
Okazaki/Hernandez Incident, Counts 3-5 (Burglary, Attempted
13
Murder, Murder, Burglary-Murder Special Circumstance)
14
1.
15
1128. On March 17, 1985, Maria Hernandez entered the garage of her
The Prosecution’s Case
16
condominium in Rosemead, where an assailant pointed a gun at her and shot her
17
in the right hand. As she fell to the ground, the assailant pushed past her and
18
opened the door to her residence. Hernandez ran out of the garage and saw the
19
assailant by her front door. The assailant pointed a gun at her but did not fire the
20
weapon. Hernandez went inside her residence and found her roommate, Dale
21
Okazaki, lying on the floor; Okazaki had been shot in the head.
22
1129. Maria Hernandez identified Petitioner as her assailant at a live lineup
23
conducted September 5, 1985, at Los Angeles County Jail. She subsequently
24
identified Petitioner at pretrial hearings and at trial. (203 RT 23601)
25
1130. A baseball cap with the letters AC/DC was found on the garage
26
floor. Following his arrest, Petitioner allegedly hummed a song by the rock
27
group AC/DC. He allegedly said he was a killer and deserved to die. (171 RT
28
19916-19; 19944.)
416
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1
1131. A firearms examiner testified that the .22-caliber firearm with which
2
Okazaki was shot was also used in the Yu and Kneiding homicides. Deputy
3
Sheriff Edward Robinson opined that projectiles recovered from all three scenes
4
were fired from the same weapon.
5
1132. The prosecutor argued in closing argument that a burglary was
6
committed even though no evidence was presented that property was taken.
7
[O]nce he’s through the door, the burglary is committed, and the fact
8
that it did not go as he planned . . . the burglary has still been
9
committed.
10
11
(206 RT 23719-20.)
1133. The prosecutor also argued that the defense undermined its own case
12
by failing to prove representations made in opening statement that the garage
13
door closed in one to two seconds, thus depriving Hernandez of the opportunity
14
to identify the suspect (203 RT 23599) and that sweat on the cap found in the
15
garage did not originate from Petitioner (203 RT 23601-02).
16
2.
17
1134. Trial counsel sought to impeach Maria Hernandez’s identification
Defense Evidence
18
based on a prior inconsistent statement and lack of independent basis for the in-
19
court identification.88 (210 RT 24195.) In closing argument, counsel argued that
20
21
22
23
24
25
26
27
28
88
Elizabeth Loftus testified generally about the effects of stress on
eyewitness identification. However, once again the prosecution undermined the
expert’s testimony because of trial counsel’s failure to investigate and prepare
their expert about relevant issues in the case. Trial counsel failed to present
evidence about improprieties inherent in eyewitness identification and lineup
procedures. (See Ex. 37, E. Loftus Dec.)
Dr. Kathy Pezdek, an eyewitness expert retained by federal habeas counsel,
has further examined the trial record in Petitioner’s case as it relates to
eyewitness identification issues. Dr. Pezdek details the ineffectiveness of
Petitioner’s trial counsel in challenging identification evidence as well as the
ineffective use of the eyewitness identification expert at trial. (See Ex. 71, K.
417
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1
Hernandez was under great stress at the time she observed the suspect. (210
2
RT 24196-97.)
3
1135. With respect to ballistics evidence, trial counsel offered no evidence,
4
instead stating: “[Y]ou have to assume that the [prosecution’s] ballistics evidence
5
is correct . . . .” (210 RT 24197.) Counsel unreasonably conceded evidence that
6
the prosecution used to link Petitioner to other incidents.
7
3.
8
1136. The defense presented no affirmative evidence on Petitioner’s behalf
9
10
The Defense Failed to Competently Challenge the Charges
with respect to ballistics evidence, mental state, or the circumstances of the
eyewitness identification and the September 5, 1985, live lineup.
11
1137. Trial counsel failed to investigate, develop, or present evidence to
12
refute the prosecution’s ballistics findings connecting three unrelated murders.
13
Trial counsel failed to present any evidence with respect to ballistics testing,
14
accuracy of scientific findings, chain of custody, or qualifications and reliability
15
of the examiners who tested the projectiles and weapons. Expert testimony
16
would have challenged the conclusions reached by Deputy Sheriff Edward
17
Robinson because law enforcement analysis conducted by three different
18
examiners was inaccurate and unreliable.
19
1138. Firearms expert Paul Dougherty explains that the law enforcement
20
work up was inaccurate and inadequate. In reviewing the work up performed in
21
this case, he found that “there are internal conflicts in the written reports with
22
regard to the testing conducted, such as condition of the bullets.” (Ex. 35,
23
Declaration of Paul Dougherty, dated 06/12/2004, ¶ 4.) In Dougherty’s opinion,
24
all of the ballistics evidence should be retested. (Id., ¶ 5.) The State, in its zeal to
25
convict Petitioner, presented evidence that was unreliable. “It is impossible to
26
say with certainty whether the findings . . . are accurate. [T]here are internal
27
28
Pezdek Dec.)
418
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1
conflicts in the written reports with regard to the testing . . . such as the condition
2
of the bullets.” (Id., ¶ 4.)
3
1139. Trial counsel failed to adequately cross-examine Hernandez
4
regarding lack of an independent basis for her in-court identification. Trial
5
counsel failed properly to lay the foundation with respect to factors that influence
6
and contaminate eyewitness identification, i.e., massive media exposure of
7
Petitioner’s face, pressure to make an identification, and lack of reliability due to
8
stress, fear, and limited viewing of the suspect. (Ex. 37, E. Loftus Dec.) (See also
9
Ex. 71, K. Pezdek Dec.)
10
1140. Competent counsel would have argued to the jury specific factors set
11
forth in CALJIC No. 2.92 related to bias, stress, poor lighting, limited viewing,
12
and other factors that influence the accuracy of eyewitness identification. (XXIX
13
CT 8538-39.) However, the defense failed to competently establish that
14
Hernandez’s eyewitness testimony was unreliable. In closing argument trial
15
counsel weakly observed: “Hernandez’s identification of Petitioner was of
16
insufficient certainty to tie him to the crime.” (210 RT 24197.)
17
1141. In his opening statement, trial counsel claimed to have proof that the
18
cap found at the scene was not Petitioner’s. However, incompetent counsel had
19
not provided the cap for testing before trial, and there was no evidence available
20
regarding test results. (Ex. 44, Declaration of Brian Wraxall, dated 05/25/2004.)
21
1142. Trial counsel failed to investigate, develop, or present any evidence
22
with respect to alternative defenses based on lack of requisite mental state due to
23
Petitioner’s history of serious mental illness, neurocognitive and neurological
24
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
25
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
26
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
27
In addition, trial counsel failed to conduct a reasonable investigation that would
28
419
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1
have permitted them to make a reasonable tactical decision to forego such
2
defenses in favor of a defense based on innocence.
3
D.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
4
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
5
Yu Incident, Count 6 (murder)
6
1.
7
1143. On March 17, 1985, shortly after the Hernandez/Okazaki incident
The Prosecution’s Case
8
and several miles away, Tsai-Lian Yu was found unconscious in the street in
9
Monterey Park. She had been shot twice; there was evidence of stippling around
10
11
one of the wounds. She was pronounced dead at a nearby hospital.
1144. Eyewitness Jorge Gallegos testified that he saw two cars stopped on
12
a street where he was parked. Gallegos saw a man trying to pull a woman from
13
one of the two cars. He thought they were having a “lover’s quarrel.” He heard
14
someone call for help. He did not hear any shots. He saw an Asian woman
15
crawling on the ground. Gallegos went to her aid. At trial, Gallegos identified
16
Petitioner as the man he saw at the scene.
17
1145. Joseph Duenas was in his residence when he heard a woman scream
18
for help. He saw a man and a woman across the street. The woman screamed
19
again and held onto the man’s jacket. The man got in a car and left. Duenas
20
called police. At trial, he was unable to positively identify Petitioner as the man
21
he saw at the scene.
22
1146. The prosecution introduced ballistics evidence in an attempt to link
23
the Yu incident to the Hernandez/Okazaki and Kneiding incidents.89 Deputy
24
Sheriff Robinson testified that projectiles recovered from all three scenes were
25
26
89
27
28
The defense theory that Petitioner was not the perpetrator necessarily
entailed refuting ballistics evidence linked him to other incidents; yet, the defense
presented no ballistics evidence to refute the prosecution’s case.
420
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1
fired from the same .22-caliber firearm. Robinson could not determine the
2
manufacturer and exact type of firearm used in the incidents.
3
1147. In closing, the prosecutor pointed out that the defense had failed to
4
prove matters raised in opening statement: specifically, that a silver medallion
5
found at the scene would be shown to belong to an assailant (not Petitioner); that
6
Yu was involved in a “lover’s quarrel”; that Gallegos had identified a car from
7
Pomona that had nothing to do with the shooting; and that Yu was shot while
8
seated in her car. (203 RT 23603-07.)
9
1148. Earlier in the trial, the court asked Petitioner to remove his
10
sunglasses. Petitioner refused. The prosecutor argued in his closing argument
11
that Petitioner’s refusal to remove his sunglasses when the prosecutor asked
12
Gallegos if he could identify Petitioner in court as the man he saw amounted to
13
consciousness of guilt.
You might conclude from that that he didn’t want to give Mr.
14
15
16
17
Gallegos any more opportunity to identify him than was necessary.
(206 RT 23743.)
1149. The prosecution attacked defense witness Dennis Lew and
18
photographs Lew had taken of the crime scene. The photographs failed to
19
simulate the approximate lighting at the time of the incident. (203 RT 23605.)
20
The prosecution attacked the defense theory that the crime was manslaughter
21
because it was inconsistent with defense counsel’s contention that Petitioner was
22
not present at the scene and did not kill the victim; thus there was no plausible
23
support for a verdict less than murder. (211 RT 24346-47.)
24
2.
25
1150. The defense theory was that Petitioner was not present at the scene
26
27
28
Defense Evidence
and did not shoot Ms. Yu.
1151. Dr. Werner Spitz testified regarding the circumstances of the Yu
shooting and rendered an opinion as to the nature of the injuries. On cross421
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1
examination, Dr. Spitz participated in a demonstration with the prosecution that,
2
in effect, undermined his own testimony that Yu could have been shot while in
3
the driver’s seat. On cross-examination, the prosecutor also impeached Dr.
4
Spitz’s testimony regarding Yu’s injuries by establishing that Dr. Spitz was
5
unfamiliar with crime scene and autopsy photographs. (191 RT 22471-512.) The
6
defense had failed to prepare Dr. Sptiz by providing him with the relevant
7
photographs. (191 RT 22470.) In closing, the prosecution denigrated Dr. Spitz’s
8
testimony as “worthless.” (211 RT 24346.)
9
1152. Dennis Lew photographed the scene in an effort to show that the
10
lighting conditions impaired the eyewitnesses’ ability to identify a passerby from
11
inside a parked vehicle. The prosecution assailed Mr. Lew’s testimony, calling
12
the photographs inaccurate and unreliable. (See 206 RT 23756-63 (closing
13
argument).)
14
1153. In closing, defense counsel inexplicably and unreasonably
15
highlighted the defense’s failure to challenge the prosecution’s ballistics
16
evidence: “I didn’t have any evidence to prove that it was a different gun,
17
therefore you didn’t hear any. [¶] I certainly would have brought it in if I had,
18
you could rest assured of that.”90 (210 RT 24201.)
19
3.
20
1154. The defense failed to defend against the prosecution’s case by failing
The Defense Failed to Competently Challenge the Charges
21
to present competent evidence that: (1) the identification by eyewitness Gallegos
22
was inherently suspect; (2) ballistics evidence was inaccurate and less than
23
conclusive proof of Petitioner’s guilt; (3) Petitioner’s refusal to remove his
24
sunglasses in order for witness Gallegos to view him at trial did not evince a
25
26
27
28
90
The defense argued alternatively that Petitioner was guilty of
manslaughter: “Lover’s quarrel came out a couple of times from both witnesses.
Maybe something to it. There may be something to the way they characterize it.”
(210 RT 24200-01.)
422
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1
consciousness of guilt; and (4) circumstances of the shooting supported a
2
manslaughter verdict.
3
1155. In closing argument, the prosecution emphasized the defense’s
4
failings. (See 206 RT 23735-40, 23745-86, 23788-826 (closing argument).) The
5
prosecutor argued: “[B]ut you do know that it was with the same gun that
6
murdered Ms. Okazaki, and the same gun that later murdered the Kneidings.”
7
(206 RT 23735-36.) The prosecutor recalled that in response to defense
8
questioning of Gallegos: “The court asked [Petitioner to stand up and take off his
9
sunglasses] and the defendant, ‘no,’ he said. [¶] You might conclude from that
10
that he didn’t want to give Mr. Gallegos any more opportunity to identify him
11
than was necessary. [¶] I think that is a reasonable conclusion.” (206 RT 23743.)
12
1156. The defense failed to competently investigate, develop, and present
13
evidence that Gallegos’s identification of Petitioner as the assailant was
14
unreliable. Gallegos’s identification was unreliable based on his limited viewing
15
of the assailant, the poor lighting conditions, and the stress of the events. The
16
defense failed to properly present evidence regarding these factors that adversely
17
affected his eyewitness identification.
18
1157. The defense failed to investigate, develop, and present competent
19
photographic evidence of the scene in order to establish that Gallegos’s
20
identification was less than reliable. Competent evidence would have
21
demonstrated that night-time lighting impaired the witness’s ability to make an
22
accurate and reliable eyewitness identification while seated inside a vehicle. The
23
defense photographs did not accurately depict the conditions or visibility.
24
1158. The defense failed to investigate, develop, and present evidence to
25
refute the prosecution’s ballistics evidence. No evidence was introduced on
26
Petitioner’s behalf to contest the prosecution’s findings with respect to accuracy
27
of the comparison of projectiles in the Okazaki and Kneiding cases. The defense
28
failed to competently examine the prosecution witness about the testing and
423
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1
findings made in each instance. Defense counsel limited his cross-examination of
2
Deputy Sheriff Edward Robinson to generic information about ballistics testing
3
and findings. (172 RT 20081-104.) Mr. Clark was unprepared to challenge the
4
prosecution’s case. (Ex. 16, R. Clark Dec., ¶ 6.)
5
1159. Counsel incompetently prepared defense expert Dr. Spitz to testify
6
by failing to provide him with vital crime scene and autopsy records. The
7
defense elicited an uninformed opinion about the cause of death.
8
1160. Additionally, the prosecutor impeached defense photographer
9
Dennis Lew regarding his less than accurate depiction of the scene. Competent
10
counsel would have presented evidence of the lighting at or near the time of the
11
incident to accurately depict the viewing conditions.
12
1161. During his preliminary evaluation, firearms expert Paul Dougherty
13
found that faulty testing protocol rendered the evidence unreliable. (See Ex. 35,
14
P. Dougherty dec., ¶¶ 4-5.) His opinion regarding validity of the testing results
15
provides support for relief. Had trial counsel investigated and presented evidence
16
challenging the accuracy and reliability of firearms evidence – instead of
17
conceding the evidence – the result would have been more favorable as there
18
would have been a reasonable doubt regarding the prosecution’s evidence.
19
1162. Counsel’s failure to challenge the firearms evidence allowed the
20
prosecution to link Petitioner to both the Okazaki and Kneiding incidents. An
21
alternative defense based on mental state was supported by the observations of
22
bystanders who reported witnessing a quarrel between two parties --
23
circumstances of the offense which would have supported a finding of
24
manslaughter. However, trial counsel failed to investigate and develop this
25
crucial mental state evidence. Failure to investigate alternate defenses does not
26
excuse as tactical a decision not to present a readily available line of defense.
27
Phillips v. Woodford, 267 F.3d 966, 976-79 (9th Cir. 2001). “A defense
28
attorney’s failure to consider alternate defenses constitutes deficient performance
424
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1
when the attorney ‘neither conduct[s] a reasonable investigation nor ma[kes] a
2
showing of strategic reasons for failing to do so.’” Rios v. Rocha, 299 F.3d 796,
3
805 (9th Cir. 2002). The allegations in the petition and supporting
4
documentation show counsel made no reasoned investigation of reasonable
5
alternate defenses to the charges. Absent a proper and adequate investigation, the
6
decision not to present a reasonable alternate defense was unsound and resulted in
7
constitutionally deficient representation.
8
1163. Trial counsel failed to investigate, develop, or present any evidence
9
with respect to alternative defenses based on lack of requisite mental state due to
10
Petitioner’s history of serious mental illness, neurocognitive and neurological
11
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
12
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
13
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
14
In addition, trial counsel failed to conduct a reasonable investigation that would
15
have permitted them to make a reasonable tactical decision to forego such
16
defenses in favor of a defense based on innocence.
17
E.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
18
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
19
Zazzara Incident, Counts 7-9 (burglary, murder, burglary-murder
20
special circumstance)
21
1.
22
1164. On March 28, 1985, Vincent and Maxine Zazzara were found dead
The Prosecution’s Case
23
inside their home. Vincent Zazzara had been shot in the head with a small-caliber
24
gun. Maxine Zazzara had a gunshot wound to her neck and check. Her eyes had
25
been gouged out. Stab wounds to the eyes and abdomen appeared to be
26
postmortem injuries.
27
28
425
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1165. Shoe prints found at the scene matched an Avia shoe size 11-½ to
2
12. Ballistics evidence determined that projectiles were fired from the same .22-
3
caliber firearm as in the Khovananth case.
4
1166. In closing, the prosecutor urged that Petitioner was the assailant
5
based on throat wounds; ligature marks; Avia shoes, size 11-½ to 12; and
6
testimony that the weapon used in the Zazzara crimes was the same .22-caliber
7
gun used in the Khovananth case. (207 RT 23839-41.) The prosecution also
8
argued that the defense failed to prove matters raised in opening statement:
9
specifically, that shoe print impressions of Avia and Van shoes were found in the
10
front of the house; evidence the modus operandi was not unique, and evidence
11
that unidentified fingerprints were not Petitioner’s. (203 RT 23611-14.)
12
2.
Defense Evidence
13
1167. Trial counsel presented no evidence on Petitioner’s behalf.
14
1168. In closing argument, counsel argued that “Zazzara was the first place
15
that the Avia showed up . . . .” (210 RT 24224.) The defense argued that the
16
prosecution linked Petitioner to Zazzara based upon palm prints and an Avia shoe
17
print found at the May 9, 1985, uncharged Monrovia burglary. (210 RT 24224.)
18
Trial counsel stated that Petitioner “is not a choir boy.” (Id.) Trial counsel urged
19
that “when you find this man [at a crime scene], you should find no people. That
20
is the way [Sandra Hotchkiss and Petitioner] operated.” (210 RT 24224.) The
21
defense unreasonably, and inexplicably, conceded that Petitioner committed the
22
Monrovia burglary: “No question he was there. [¶] It was a typical Ramirez
23
burglary.” (210 RT 24225.)
24
3.
The Defense Failed to Competently Challenge the Charges
25
1169. Trial counsel failed to investigate, develop, and present evidence to
26
refute the prosecution’s evidence. The defense presented no evidence or expert
27
testimony to challenge the prosecution’s physical and forensic evidence; defense
28
counsel presented no evidence about third-party suspects; and they presented no
426
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1
evidence about Petitioner’s mental state. Nor did defense counsel present
2
evidence to refute the ballistics evidence introduced by the prosecution in an
3
attempt to link the Zazzara crimes to the Khovananth crimes.
4
1170. A competent defense expert could have testified that the conclusions
5
made by the prosecution’s criminalist, Burke, regarding Avia shoe prints were
6
inaccurate, unreliable, and misleading.
7
1171. No police investigation was conducted of Petitioner’s appearance,
8
clothing, or shoe size. There was no law enforcement follow-up investigation of
9
witnesses or potential suspects with respect to footwear.91 According to Lisa
10
DiMeo:
11
In the first case involving shoe print evidence, there were
12
Avia shoe prints – one right, one left, and several partial impressions
13
– observed in dry soil outside the residence. Photographs and casts
14
(approximately 12-12-½) were collected. The impressions were
15
consistent with many Avia shoes: Aerobics, All Sport/Court and
16
Basketball models, men’s and women’s styles, which exhibit a
17
convex dam inset that meets the flex joint. Models 252, 255 255W,
18
552R, 560, 565, 565W, 652, and 655 were eliminated based on heel
19
design. (See Avia chart attached to the declaration.)
20
In addition, a partial herringbone pattern was observed on a
21
bucket outside a window. However, contrary to accepted
22
professional standards and practice, there was no scale in the
23
photographs. A Van’s right shoe print also was recovered from soil
24
outside the scene.
25
26
91
27
28
By failing to challenge the shoe print identification, the defense allowed
the prosecution to make the argument that there was only one pair of size 11½–to–12 Avia shoes involved in the case.
427
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1
2
(Ex. 33, L. DiMeo Dec. dated 05/21/2004, ¶¶ 22-23.)92
1172. No defense evidence was presented with respect to nondistinctive
3
features of throat wounds. Counsel’s cross-examination was limited to the time
4
period in which the wounds were inflicted. (154 RT 17690-95.) A competent
5
defense expert would have testified that the prosecution’s case lacked distinctive
6
features of pattern evidence. (See Ex. 40, S. Strong dec.)
7
1173. Ms. DiMeo has found that two shoe impressions were Avia
8
Aerobics; however, she specifically found the prosecution’s evidence “incorrect”
9
with respect to size of shoe. (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s
10
supplemental declaration addresses discrepancies with respect to Gerald Burke’s
11
measurement of shoe impression evidence. DiMeo also found that “[a]ny shoe
12
exhibiting a similar herringbone pattern could have been the source of th[e]
13
partial print.” (Ex. 34, Supplemental Declaration of Lisa DiMeo, dated
14
11/10/2005, ¶ 17.) The defense unreasonably failed to present, through the
15
testimony of an expert such as DiMeo, available evidence about the large pool of
16
possible shoes and testimony regarding shoe measurement to challenge the
17
prosecution’s case. Competent counsel would have done so.
18
1174. Trial counsel failed to elicit evidence from the prosecution’s
19
witnesses or their own witnesses to show that the Zazzara incident lacked a
20
connection to the other charged crimes. Steve Strong’s opinion the crimes were
21
not related is based on his training and his analysis of modus operandi evidence,
22
as well as his consideration of physical evidence that went unchallenged by the
23
24
25
26
27
28
92
Lisa DiMeo, who has been retained by federal habeas counsel, requires
additional access to the shoe print evidence introduced against Petitioner at trial
in order to give even greater depth and detail to her findings and conclusions.
Petitioner has filed a request with the Superior Court to release the shoe print
evidence to Ms. DiMeo’s care; the government has opposed Petitioner’s request.
(See Ex. 75, Lisa DiMeo Dec. dated 12/12/2008).
428
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defense. (Ex. 40, S. Strong dec., ¶¶ 9-22.) Strong identified specific factors
2
signifying the lack of a distinctive pattern: the nature of the wounds, the location
3
of the crime scene, and the lack of fingerprint evidence. (Id., ¶ 20 (chart).)
4
Counsel failed to challenge the prosecution’s false and unreliable physical
5
evidence. Reasonable investigation of the case necessarily included an
6
investigation into third-party culpability. Petitioner has established that there was
7
evidence available to trial counsel with respect to several potential suspects,
8
including Manuel Hechevarria (also known as “Cuba”), Julio, and Sandra
9
Hotchkiss. These individuals admitted having committed crimes during the same
10
period as the charged crimes.93 (See Ex. 22, Los Angeles County Sheriff’s
11
Department - Supplementary Report, dated 09/11/1985 by Sgt. William S. Stoner
12
and Investigator Michael W. Griggs, p. 3.)
13
1175. Counsel failed to challenge the prosecution’s firearms evidence,
14
even though there was evidence of bullet distortion and lack of unique rifling
15
characteristics. (Ex. 35, P. Dougherty dec., ¶ 3.) Although three firearms
16
examiners generally were involved in firearms testing, only one examiner
17
testified at trial. Firearms expert Paul Dougherty has declared that the
18
prosecution’s test results are unreliable because of faulty testing results in certain
19
incidents. (Id.) At a minimum, Mr. Dougherty’s preliminary evaluation raises
20
serious questions about the validity of the prosecution’s evidence. Based on his
21
preliminary findings, a comprehensive examination of the evidence would likely
22
raise further questions about the reliability of the evidence. Trial counsel’s
23
24
25
26
27
28
93
Cuba claimed to have ended his involvement in residential burglaries by
November 1984; however, he was in possession of stolen property when
contacted by sheriff deputies on September 3, 1985. (Ex. 22, Los Angeles
County Sheriff’s Department - Supplementary Report, dated 09/11/1985 by Sgt.
William S. Stoner and Investigator Michael W. Griggs (State Habeas Exhibit
11I), p. 6.)
429
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1
failure to investigate, develop, and present evidence related to reliability of
2
testing procedures and accuracy of the evidence constituted ineffective
3
representation.
4
1176. Counsel’s failure to challenge shoe print and firearms evidence
5
prejudiced Petitioner. Trial counsel also unreasonably failed to investigate
6
available evidence that supported an alternative defense based on mental state.
7
Given Petitioner’s lengthy history of serious mental illness, impoverished living
8
conditions, illicit drug usage, and psychotic behavior at or near the time of the
9
offense, counsel were required, at a minimum, to investigate and develop mental
10
11
state evidence before reaching a decision regarding the theory of the case.
1177. As discussed above, counsel’s failure to investigate any alternate
12
defenses does not excuse as tactical a decision not to present a readily available
13
line of defense. See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure
14
to consider alternate defenses constitutes deficient performance when the attorney
15
‘neither conduct[s] a reasonable investigation nor ma[kes] a showing of strategic
16
reasons for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the
17
petition and the supporting documentation show counsel made no reasoned
18
investigation of alternate defenses to the charges. Absent a thorough and
19
adequate investigation, the decision not to present a reasonable alternate defense
20
was unsound and resulted in constitutionally deficient representation.
21
1178. Furthermore, trial counsel failed to investigate, develop, or present
22
any evidence with respect to alternative defenses based on lack of requisite
23
mental state due to Petitioner’s history of serious mental illness, neurocognitive
24
and neurological deficits, psychosis, mood disorders, mind-altering substance
25
abuse, and brain impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D.
26
Blumer, M.D.; R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J.
27
Wells, J.D., Ph.D.) In addition, trial counsel failed to conduct a reasonable
28
430
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1
investigation that would have permitted them to make a reasonable tactical
2
decision to forego such defenses in favor of a defense based on innocence.
3
F.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
4
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
5
Doi Incident, Counts 10-11 (burglary, murder, burglary-murder
6
special circumstance)
7
1.
8
1179. On May 14, 1985, William Doi suffered a gunshot wound to the
9
The Prosecution’s Case
head at his home in Monterey Park. His wife, Lillian Doi, sustained injuries to
10
her face and hand. Their home was ransacked. A shoe print was discovered
11
under the Doi’s front bedroom window. A bathroom window screen had been
12
removed. A blood-stained pillowcase was found in the bathtub.
13
1180. The prosecution introduced evidence in an attempt to show that a
14
bullet fragment recovered from William Doi had been fired from a Jennings
15
pistol, later recovered from ex-convict Jesse Perez on August 30, 1985.
16
1181. In closing, the prosecutor urged conviction based on Avia shoe
17
prints and ballistics evidence, including recovery of the .22-caliber Jennings
18
semi-automatic pistol. (211 RT 24375.)
19
1182. Ms. Launie Dempster testified that she delivered newspapers on
20
May 14, 1985, in Monterey Park. During her route, she saw a man sitting in a car
21
opposite the Doi residence. She later identified photographs of a car and stated
22
that Petitioner was the man she had seen sitting in the car, based on seeing his
23
face on television.
24
25
1183. Property purportedly stolen from the Doi residence on May 14, 1985
was identified by the Doi’s daughter, Linda Doi-Fick, at the September 5, 1985,
26
27
28
431
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1
property lineup.94 Felipe Solano, a “fence”, testified that he bought property from
2
Petitioner. In closing, the prosecutor told the jury that although Solano was
3
involved in receiving stolen property, the State would have to release Petitioner if
4
they wanted to prosecute Solano.95 (209 RT 24085.) The prosecution credited
5
Dempster for her supposed familiarity with the Monterey Park neighborhood,
6
despite the fact that her deliveries took place in the dark. (211 RT 24391.) The
7
prosecutor also argued that defense photographs of the neighborhood were
8
inaccurate. (208 RT 23959-61.)
9
10
11
2.
Defense Evidence
1184. Dennis Lew testified about lighting conditions at night on the street
in front of the Doi residence and photographs of the area.
12
1185. No other evidence was presented on Petitioner’s behalf.
13
1186. In closing argument trial counsel argued that Jesse Perez could not
14
be believed (210 RT 24173-79); that Felipe Solano lied about the stolen property
15
(210 RT 24181); and that recovery of property did not mean Petitioner was the
16
killer, absent his prints on the property. (210 RT 24243.)
17
3.
18
1187. Trial counsel did not mount a reasonable or adequate defense to the
The Defense Failed to Competently Challenge the Charges
19
charges. The defense did not present any evidence related to the origin of the
20
stolen property. The defense failed to challenge the physical evidence or
21
impeach Dempster about her sightings and eyewitness identification. (Ex. 37, E.
22
Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
23
24
1188. The defense failed to investigate, develop, or present evidence to
challenge the accuracy and reliability of the prosecution’s ballistics findings.
25
26
27
28
94
The Doi home had reportedly been burglarized a few weeks prior to the
incident.
95
The defense failed to object to the inflammatory remarks.
432
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1
(Ex. 35, P. Dougherty dec.) Moreover, the defense failed to investigate, develop,
2
and present evidence to challenge recovery and chain of custody of a Jennings
3
.22-caliber semi-automatic pistol. Mr. Perez claimed to have retrieved the
4
firearm from a friend in Tijuana, Mexico, more than three months after the Doi
5
shooting. (170 RT 19663-65.)
6
7
8
9
1189. The defense failed to present expert testimony challenging the
prosecution’s case with respect to the shoe print impressions.
1190. Photographs and casts were taken of two partial shoe impressions at
the scene. Concentric circles were noted on the impressions. However, the
10
questioned impressions were too poor to make any meaningful comparison. It
11
was not possible to exclude any Avia Aerobics, Basketball, Referee/Coach or All
12
Court Sport model, which exhibited a similar design to the partial questioned
13
impressions. (Ex. 33, L. DiMeo dec., ¶ 24.)
14
1191. The defense also failed to introduce reasonably competent evidence
15
to demonstrate the poor lighting conditions at the time that Dempster claimed to
16
have seen the suspect as well as other factors affecting reliability of her
17
identification. The defense photographs failed to depict accurately the viewing
18
conditions.
19
1192. Trial counsel unreasonably failed to introduce evidence to challenge
20
the prosecution’s assertion that the crimes were necessarily a series committed by
21
one person. (Ex. 40, S. Strong dec., ¶ 22.)
22
1193. Trial counsel failed to challenge the eyewitness testimony of Launie
23
Dempster. By failing properly to cross-examine this eyewitness regarding
24
lighting conditions, stress, fear, memory, multiple viewings, and her lack of
25
independent basis for identification, and by failing to properly prepare the
26
defense eyewitness identification expert, trial counsel deprived Petitioner of a
27
meaningful defense. As discussed, supra, the defense was obligated to prepare
28
433
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1
their expert to testify as to relevant factors that influence reliability of eyewitness
2
identification. This they consistently failed to do.
3
1194. Trial counsel improperly conceded firearms and shoe print evidence.
4
Counsel were obligated adequately to defend their client by challenging the
5
prosecution’s false and unreliable evidence. Petitioner has shown preliminary
6
review of firearms evidence in certain incidents to be unreliable. Mr. Dougherty
7
stated that the testing was faulty and inaccurate; the reliability of the test results is
8
in question. (Ex. 35, P. Dougherty dec., ¶ 4.) Based on the preliminary findings,
9
there are serious questions as to the validity of the prosecution’s evidence.
10
Competent counsel would have investigated, developed, and presented testimony
11
to challenge the reliability and accuracy of the firearms evidence.
12
1195. Lisa DiMeo found that “there were many possible models and sizes
13
of shoes that could have been identified from the shoe print impressions. Mr.
14
Burke’s testimony . . . was incorrect.” (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s
15
findings undermine the validity of the prosecution’s evidence as to size and
16
model of shoe:
17
[the two casts] represent a large possible pool of shoes as the source
18
of the impressions.
19
(Ex. 34, L. DiMeo suppl. dec., ¶ 8.) Shoe print evidence did not conclusively
20
link Petitioner to the incident. Petitioner has provided specific showing of
21
prejudice with respect to the individual incidents charged against him, including
22
false and unreliable physical evidence, unreliable eyewitness identification, and
23
lack of a reasonable defense theory of the case.
24
1196. Steve Strong’s declaration that the crimes were not related is based
25
on his training and analysis of lack of distinctiveness of modus operandi evidence
26
and consideration of physical evidence. (Ex. 40, S. Strong dec., ¶¶ 8-9.) Mr.
27
Strong has identified specific factors pointing to lack of distinctive pattern:
28
specifically, the nature of the wounds, the lack of fingerprints, and the location of
434
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1
the crime scene, all of which the defense failed to challenge. (Id., ¶ 17.) The
2
unreliability of the shoe print and firearms evidence introduced against Petitioner
3
further support s Mr. Strong’s findings.
1197. As previously discussed, counsel’s decision to forego investigation
4
5
of a mental health defense was neither reasonable nor informed. Having
6
conceded physical evidence of shoe print and firearms evidence, trial counsel
7
failed to investigate evidence to support an alternate mental state defense. Given
8
Petitioner’s lengthy history of serious mental illness, impoverished living
9
conditions, illicit drug usage, and psychotic behavior at or near the time of the
10
offense, counsel were required, at a minimum, to investigate and develop mental
11
state evidence before reaching a decision regarding the theory of the case.
12
1198. Trial counsel failed to investigate, develop, or present any evidence
13
with respect to alternative defenses based on lack of requisite mental state due to
14
Petitioner’s history of serious mental illness, neurocognitive and neurological
15
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
16
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
17
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
18
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
19
would have permitted them to make a reasonable tactical decision to forego such
20
defenses in favor of a defense based on innocence.
21
G.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
22
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
23
Bell/Lang Incident, Counts 12-14 (Burglary, Attempted Murder,
24
Murder, Burglary-Murder Special Circumstance)
25
1.
26
1199. Between May 29 and June 1, 1985, two elderly women were
27
attacked in their home in Monrovia. Mabel Bell subsequently died; the cause of
28
death was head trauma. Florence Lang suffered head injuries, ligature marks on
The Prosecution’s Case
435
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1
both wrists, and bruising on the face. A treating physician also observed an
2
injury to the vaginal tissue.
1200. Physical evidence found at the scene included a shoe print
3
4
impression on a clock, found to be consistent with the concentric circle pattern of
5
an Avia shoe. Fabric marks were found on a telephone and clock, which
6
indicated they were handled by someone possibly wearing gloves. A star-circle
7
had been drawn on the wall over Lang’s bed. A relative identified a cassette tape
8
player stolen from the residence and later recovered from Felipe Solano.
1201. In closing, the prosecutor urged conviction based on an Avia shoe
9
10
print (207 RT 23868), identification of property stolen from the residence and
11
recovered from Felipe Solano (207 RT 23869), a pentagram found at the scene
12
(207 RT 23873), the use of restraints (207 RT 23888), fabric glove impressions
13
(207 RT 25868), and failure of the defense to present a credible alibi (207 23897-
14
900).
15
2.
Defense Evidence
16
1202. Despite dental records that conclusively showed Petitioner was in
17
Los Angeles on May 30, 1985, the defense attempted to show that Petitioner was
18
in El Paso, Texas at the same time. Petitioner’s father, another relative, and a co-
19
worker testified that he was in El Paso around May 23, 1985, and left on May 31,
20
1985. While in El Paso, Petitioner attended a family party for his niece who
21
received her First Communion. In closing argument, trial counsel’s own remarks
22
defeated the alibi defense by asserting there was no basis to doubt the dental
23
records: “I believe the doctor’s testimony from Chinatown regarding the 30th was
24
25
26
27
28
436
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accurate. I have no reason to believe that it is not accurate . . . .”96 (211 RT 24308.)
2
3.
The Defense Failed to Competently Challenge the Charges
3
1203. The defense offered no affirmative evidence to refute the
4
prosecution’s physical evidence, including shoe print, fabric gloves, restraints, or
5
identification of stolen property.97
6
1204. The defense failed to investigate, develop, and present competent
7
evidence pertaining to shoe print impression evidence. As indicated supra,
8
expert testimony would have established that the prosecution’s evidence was
9
inexact.
10
A partial concentric circle pattern was developed with
11
fingerprint power on a plastic clock case. Based on the lack of
12
sufficient detail, it was not possible to eliminate any Avia athletic
13
shoe model, size, or style, or any manufactured shoe that exhibited a
14
similar concentric circle pattern as the source of the impression.
15
16
(Ex. 33, L. DiMeo dec., ¶ 25.)
1205. The defense failed to investigate, develop, and present evidence to
17
challenge the prosecution’s evidence about fabric glove impressions. Competent
18
defense counsel would have presented evidence that fabric impressions were
19
incapable of yielding identifiable prints. (Ex. 24, Articles on Latent Prints (State
20
Habeas Exhibit 11E).)
21
1206. In failing to present a reasonably competent alibi defense, trial
22
counsel lost any credibility they had with the jury. In addition to failing to
23
account for the alibi witnesses’ lack of specificity, the defense failed to account
24
25
26
27
28
96
Trial counsel argued the crime occurred on May 29. However, no
substantial proof was presented to support the theory. (211 RT 24309, 24314.)
Counsel’s argument contradicted Petitioner’s alibi.
97
The appearance of a pentagram-like drawing at the scene by itself did
not connect Petitioner to the crime.
437
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1
for dental records that the prosecution introduced to demonstrate that Petitioner
2
was in Los Angeles.
3
1207. The prosecution also presented evidence to impeach Petitioner’s
4
father. A local newspaper reporter testified that, in an interview, Petitioner’s
5
father stated that he had not seen his son for more than two years before his
6
arrest. The defense failed to rehabilitate their witness or to clarify that
7
Petitioner’s father had been mistaken in his recollection.
8
9
10
1208. The defense failed to investigate, develop, and present evidence that
restraints allegedly used during the incident were unremarkable and easily
obtainable.
11
1209. The defense failed to adequately investigate, develop, and present
12
evidence that Felipe Solano’s testimony was not credible. Competent counsel
13
would have established that Solano’s self-serving testimony was false and that
14
law enforcement agencies had knowledge about other individuals who sold
15
property to Solano.
16
1210. The prosecution’s shoe print evidence was neither accurate nor
17
reliable. (Ex. 33, L. DiMeo dec., ¶ 35.) DiMeo’s findings demonstrate that many
18
shoes could have made the impressions. (Ex. 34, Lisa DiMeo suppl. dec., ¶ 28.)
19
With respect to the fabric glove impressions, cross-examination of the
20
prosecution’s witness, Mr. Vander Wende, would have established that the fabric
21
impressions could not yield identifiable prints and were unreliable. Competent
22
counsel would have challenged the evidence. (See also Ex. 24, Articles on Latent
23
Prints; Ex. 46, R. Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint
24
“Science” Is Revealed, 75 So. Cal. L.R. 605 (2002).)
25
1211. Evidence was available to trial counsel of potential third-party
26
suspects who committed burglaries and likely sold stolen property to Solano.
27
(Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Law enforcement identified
28
potential third-party suspects but the defense failed to investigate, develop, or
438
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present any evidence on Petitioner’s behalf. Hechavarria, also known as “Cuba,”
2
admitted having committed burglaries allegedly with Petitioner. He denied
3
committing burglaries after November 1984; yet, he was in possession of stolen
4
property on September 3, 1985. (Id., pp. 2-6.) Eva Castillo admitted having
5
committed burglaries with Cuba. (Id., p. 6.) Sandra Hotchkiss admitted
6
burglarizing residences with Petitioner. Third-party evidence would have
7
benefitted Petitioner by establishing a reasonable likelihood that Solano, who was
8
well-acquainted with Castillo, obtained stolen property from Castillo and from
9
other persons Castillo knew. Counsel failed to cross-examine Felipe Solano
10
regarding Castillo’s background and criminal activity, as well as her knowledge
11
of and involvement with Cuba, Julio, and Charlie. (Id., p. 7.)
12
1212. Having failed to present an adequate alibi defense, counsel failed to
13
investigate, develop, and present an alternate defense. Having conceded the
14
Prosecution’s shoe print evidence and at the same time arguing a less-than-
15
credible alibi defense, trial counsel deprived Petitioner of any reasonable defense.
16
Given Petitioner’s lengthy history of serious mental illness, impoverished living
17
conditions, illicit drug usage, and psychotic behavior at or near the time of the
18
offense, counsel were required, at a minimum, to investigate and develop mental
19
state evidence before reaching a decision regarding the theory of the case.
20
1213. Failure to investigate alternate defenses does not excuse as tactical a
21
decision not to present a readily available line of defense. Phillips, 267 F.3d at
22
976-79. “A defense attorney’s failure to consider alternate defenses constitutes
23
deficient performance when the attorney ‘neither conduct[s] a reasonable
24
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
25
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
26
documentation show counsel made no reasoned investigation of alternate
27
defenses to the charges. Absent a proper and adequate investigation, the decision
28
439
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1
not to present a reasonable alternate defense was unsound and resulted in
2
constitutionally deficient representation.
3
1214. Trial counsel failed to investigate, develop, or present any evidence
4
with respect to alternative defenses based on lack of requisite mental state due to
5
Petitioner’s history of serious mental illness, neurocognitive and neurological
6
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
7
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
8
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
9
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
10
would have permitted them to make a reasonable tactical decision to forego such
11
defenses in favor of a defense based on innocence.
12
H.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
13
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
14
Kyle Incident, Counts 15-18 (Burglary, Rape, Oral Copulation,
15
Sodomy)
16
1.
17
1215. Early in the morning on May 30, 1985, Carol Kyle was attacked in
The Prosecution’s Evidence
18
her Burbank home. She later identified Petitioner as the man who sexually
19
assaulted her, stole property from her home, and handcuffed her and her son to
20
the bed. The house was ransacked. Handcuffs found at the scene were unlike
21
those used by police. Kyle assisted in preparing composite drawings; a sketch
22
was made of the suspect on August 30, 1985, shortly before Petitioner’s arrest.
23
1216. In closing argument the prosecutor urged conviction based on Kyle’s
24
identification (207 RT 23888); discovery of a handcuff key that matched
25
handcuffs in other incidents (207 RT 23893); recovery of the Kyles’ property at
26
the home of Petitioner’s sister Rosa in El Paso (207 RT 23898); and Petitioner’s
27
inherently implausible alibi (2067 RT 23898-001).
28
440
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1217. In an effort to challenge identification of jewelry found at
2
Petitioner’s sister’s home, defense counsel argued, but failed to present evidence
3
in support of the contention, that the recovered jewelry was not unique and
4
lacked distinctive characteristics. (211 RT 24310-13.)
5
2.
Defense Evidence
6
1218. The defense presented no evidence on Petitioner’s behalf except for
7
the failed alibi defense discussed in the Bell/Lang incident, supra. Trial counsel
8
argued unconvincingly in closing argument that the identification by Ms. Kyle
9
was inconsistent with her statements that her suspect had straight teeth. “If the
10
person who committed these crimes . . . had straight white teeth, the person was
11
not Petitioner.” (210 RT 24255.)
12
3.
The Defense Failed to Competently Challenge the Charges
13
1219. The defense failed to investigate, develop, and present competent
14
evidence to support a credible alibi defense, as in the Bell/Lang incident, supra.
15
1220. Trial counsel failed to investigate, develop, or present any evidence
16
with respect to alternative defenses based on lack of requisite mental state due to
17
Petitioner’s history of serious mental illness, neurocognitive and neurological
18
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
19
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
20
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
21
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
22
would have permitted them to make a reasonable tactical decision to forego such
23
defenses in favor of a defense based on innocence.
24
1221. As in the Bell/Lang incident, trial counsel presented a wholly
25
discredited alibi. Counsel failed to present any credible evidence that Petitioner
26
was somewhere other than in the Los Angeles area on May 30, 1985. In fact,
27
uncontroverted evidence from a Los Angeles dental office established that
28
Petitioner was in Los Angeles on May 30, 1985.
441
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1222. Viewing conditions at the time of the incident were crucial to a
2
determination of the reliability of the victim’s identification. There was evidence
3
in the record regarding lighting, stress, and fear, as well as memory and
4
post-event information, which competent defense counsel would have used to
5
show that the identification was inaccurate and unreliable. Dr. Loftus was not
6
asked to testify about many factors that influence a witness’s ability to accurately
7
recall physical features of a suspect. Competent counsel would have elicited
8
testimony from the eyewitness and expert as set forth in Dr. Loftus’s declaration
9
with respect to stress, fear, lighting, and memory contamination by post-event
10
information such as multiple viewings of the same suspect. (Ex. 37, E. Loftus
11
Dec., ¶ 6.) (See also Ex. 71, K. Pezdek Dec.) Competent counsel would have
12
urged the jury to consider relevant factors in evaluating eyewitness testimony.
13
1223. Defense counsel unreasonably failed to investigate mental state
14
evidence. Given Petitioner’s lengthy history of serious mental illness,
15
impoverished living conditions, illicit drug usage, and psychotic behavior at or
16
near the time of the offense, counsel were required, at a minimum, to investigate
17
and develop mental state evidence before reaching a decision regarding the
18
theory of the case.
19
1224. Counsel presented a defense that was inherently flawed and
20
incompetent. As noted above, failure to investigate alternate defenses does not
21
excuse as tactical a decision not to present a readily available line of defense. See
22
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
23
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
24
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
25
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
26
supporting documentation show counsel made no reasoned investigation of
27
alternate defenses to the charges. Absent a proper and adequate investigation, the
28
442
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1
decision not to present a reasonable alternate defense was unsound and
2
uninformed, resulting in constitutionally deficient representation.
3
I.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-Examine
4
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
5
Cannon Incident, Counts 19-20 (Burglary, Murder, Burglary-Murder
6
Special Circumstance)
7
1.
8
1225. On July 2, 1985, Mary Louise Cannon was found dead in her
9
Arcadia home. She had suffered blunt trauma head and face wounds, stab
The Prosecution’s Case
10
wounds to the neck and carotid artery, and manual strangulation. A partial shoe
11
print on a piece of tissue paper was consistent with an Avia shoe; a shoe print
12
found on carpeting was similar to an Avia shoe, size 11 or 11-½. Jewelry stolen
13
from her residence was recovered from Felipe Solano and later identified at the
14
property lineup held September 5, 1985.
15
1226. The state urged conviction based on Avia shoe prints and jewelry
16
stolen from the residence. The prosecutor compared the wounds to the Zazzara
17
case: “the slash/stab wound to the neck” (207 RT 23915); “same types of stab
18
wounds” (207 RT 23916); and a similar type of weapon: “[the sharp object
19
might] not have facilitated the sawing slashing act as much as these others” (207
20
RT 23916).
21
2.
Defense Evidence
22
1227. The defense offered testimony regarding hairs found at the scene and
23
blood stains found near the victim’s head and on a mitten. A sheriff’s criminalist
24
testified that the findings of the PGM subtype on the glass were inaccurate
25
26
27
28
443
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1
because the sample was degraded.98 Blood found on the mitten was not
2
Petitioner’s. Hair examined from the scene was dissimilar to Petitioner’s.
3
1228. Trial counsel offered no evidence concerning shoe print impressions
4
or stolen property recovered from Felipe Solano. In closing, trial counsel argued
5
that the Cannon homicide was not part of a unique pattern: “[S]tabbings and
6
beating people with things is the most common method of killing someone” (211
7
RT 24272); “you [cannot] take them all together and try to put some sort of
8
pattern to it” (211 RT 24273); “once again, you cannot give these shoes to
9
Petitioner.” (Id.)
10
3.
The Defense Failed to Competently Challenge the Charges
11
1229. The defense failed to investigate, develop, and present a competent
12
defense, including a third-party culpability defense. Defense counsel failed to
13
challenge the shoe print evidence or the recovery of property.
14
1230. As discussed above, competent defense counsel would have refuted
15
the prosecution’s evidence, particularly the shoe print comparison. Expert
16
testimony would have cast doubt on the conclusions of the prosecution’s experts’.
17
1231. At trial, the prosecution introduced a photographic display of a shoe
18
impression in carpet. (Prosecution’s Trial Ex. 20A-1.) The impression was
19
consistent in general shape and gross pattern with any model and style of Avia
20
athletic shoe.
21
1232. A photograph taken of a facial tissue on the floor with a partial print
22
revealed a series of straight lines and a block-shaped element, consistent with any
23
model, size, and style Avia athletic left shoe. No measurement scale was used in
24
the photographs. (Ex. 33, L. DiMeo Dec., ¶¶ 26, 27.)
25
26
27
28
98
The defense failed to move for sanctions for the prosecution’s failure to
preserve the evidence.
444
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1
1233. The defense failed to investigate, develop, or present evidence to
2
challenge Felipe Solano’s testimony. Competent counsel would have established
3
that other persons engaged in selling stolen property to Solano could have been
4
involved in committing the crimes. (Ex. 40, S. Strong Dec., ¶ 22.)
5
1234. Trial counsel failed to investigate, develop, or present any evidence
6
with respect to alternative defenses based on lack of requisite mental state due to
7
Petitioner’s history of serious mental illness, neurocognitive and neurological
8
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
9
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
10
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
11
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
12
would have permitted them to make a reasonable tactical decision to forego such
13
defenses in favor of a defense based on innocence.
14
1235. Counsel unreasonably failed to investigate potential third-party
15
suspects, challenge the prosecution’s shoe print evidence, and develop a
16
reasonable theory of the case.
17
1236. Counsel unreasonably failed to investigate potential third-party
18
suspects: Sandra Hotchkiss, Eva Castillo, Monje, Cuba, Julio, and Charlie.
19
(Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Third-party culpability evidence
20
was not investigated, developed, or presented at trial. Some of these individuals
21
were interviewed by law enforcement and admitted involvement in criminal
22
activity. (Id.) Cuba admitted he had committed burglaries with Petitioner and
23
Julio in 1984. (Id., pp. 1-6.) On September 3, 1985, he was found in possession
24
of stolen property. (Id., p. 6.) Castillo admitted to committing burglaries in 1984
25
with Cuba and Julio. (Id., pp. 7-8.) She also reported that Charlie and Cuba
26
burglarized her apartment. (Id., p. 7.) Moreover, Sandra Hotchkiss testified that
27
she committed burglaries with Petitioner in 1985. (185 RT 21698.) Counsel’s
28
failure to investigate and develop third-party culpability evidence precluded the
445
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1
jury from making a connection between Felipe Solano and third-party suspects.
2
The jury had little to consider because counsel failed to adequately impeach
3
Solano regarding his involvement with Cuba, Monje, and Castillo. (Ex. 22,
4
LACSD - Suppl. Rpt., 09/11/1985, p. 6.) The prosecutor observed that trial
5
counsel had failed properly to investigate Solano. (See 177 RT 20663-66.)
6
1237. Counsel failed to challenge the prosecution’s shoe print evidence.
7
Petitioner’s habeas expert, Lisa DiMeo, has reviewed the evidence and
8
determined that the impression evidence compares to different models and sizes
9
of Avias. DiMeo established a valid basis for examination and comparison of the
10
impressions. The lack of distinctive marks makes it impossible to exclude many
11
models and sizes. (Ex. 33, L. DiMeo Dec., ¶ 35.) DiMeo explains that
12
prosecution expert Burke’s identification was unsubstantiated and conflicted with
13
his examination of the evidence. (Ex. 34, L. DiMeo Suppl. Dec., ¶¶ 19-25.) Trial
14
counsel unreasonably failed to cross-examine the prosecution’s expert as to
15
comparison methods and lack of distinctive marks.
16
1238. Trial counsel failed to develop a reasonable defense theory of the
17
case. By conceding shoe print evidence, while at the same time challenging the
18
prosecution’s bloodstain evidence, the defense presented an inconsistent and
19
illogical defense. Competent counsel would have properly challenged the
20
Prosecution’s physical evidence and investigated and presented third-party
21
culpability evidence. Trial counsel failed to investigate and develop a reasonable
22
theory of the case and a reasonable alternate defense. Given Petitioner’s lengthy
23
history of serious mental illness, impoverished living conditions, illicit drug use,
24
and psychotic behavior, competent counsel would have, at a minimum,
25
investigated and developed mental state evidence before reaching a decision
26
regarding the theory of the case.
27
1239. Trial counsel presented an inconsistent defense. Moreover,
28
counsel’s failure to investigate alternate defenses does not excuse as tactical a
446
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1
decision not to present a readily available line of defense. See Phillips, 267 F.3d
2
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
3
deficient performance when the attorney ‘neither conduct[s] a reasonable
4
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
5
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
6
documentation show counsel made no reasoned investigation of alternate
7
defenses to the charges. Absent a proper and adequate investigation, the decision
8
not to present a reasonable alternate defense was unsound and resulted in
9
constitutionally deficient representation.
10
J.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
11
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
12
Bennett Incident, Counts 21-22 (Burglary, Attempted Murder)
13
1.
14
1240. On July 5, 1985, 16-year-old Whitney Bennett was attacked in her
The Prosecution’s Case
15
sleep in her Sierra Madre home. When she woke up early that morning, her head
16
and hands hurt. She suffered head lacerations, skull fractures, fracture of the eye
17
socket, and fracture to a finger on her left hand. Marks around her neck were
18
likely caused by a rope or cord. Her head injuries were consistent with blunt
19
force trauma caused by a tire iron. She had no recollection of the assault.
20
1241. Evidence found at the scene included a tire iron, curtain sash, and a
21
bed comforter. The tire iron had not been there before she went to sleep. A shoe
22
impression on the comforter appeared similar to shoe prints found at the Cannon
23
and Zazzara scenes. A photograph of a shoe impression on the comforter was
24
identified as an Avia aerobics shoe, size 11 to 12. Fabric glove impressions were
25
found on the bedroom window sill.
26
1242. In closing argument the prosecution urged conviction based on shoe
27
prints, ligature marks, blunt force trauma, fabric glove marks, and evidence of
28
ransacking. (207 RT 23924-27.) The prosecutor argued that the Bennett
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1
residence was near Cannon’s home as well as Bell and Lang’s. (207 RT 23919-
2
20.)
3
2.
4
1243. The defense presented evidence only with respect to hair and blood.
Defense Evidence
5
A buckled hair found on the carpet was similar to Petitioner’s pubic hair and
6
dissimilar to the victim’s; however, it lacked unique characteristics. Antigens
7
found on the sash did not originate from the victim or Petitioner.
8
9
10
1244. Trial counsel conceded the shoe print impression evidence. (211
RT 24279.) Trial counsel argued to the jury that “Petitioner is not wearing Avias,
never been seen with Avias on . . . .” (Id.)
11
3.
12
1245. Trial counsel failed to investigate, develop, and present evidence to
13
refute the prosecution’s physical evidence, including shoe print and fabric glove
14
marks and failed to challenge the prosecution’s assertion that the case fit a pattern
15
of crimes linked to Petitioner.
16
The Defense Failed to Competently Challenge the Charges
1246. Trial counsel failed to challenge the prosecution’s findings related to
17
shoe print impressions.99 Competent counsel would have presented evidence of
18
the following:
19
Found at the scene was a partial shoe print – ball area – in
20
apparent blood on a fabric comforter. This was consistent with an
21
Avia athletic right shoe that exhibited similar class characteristics to
22
the Aerobics model. Only the Avia Referee/Coach model 552R can
23
be eliminated as the source of the print based upon the break
24
between the dam element and flex joint. A second partial print on
25
26
27
28
99
Trial counsel argued in closing that Petitioner was never seen wearing
Avia shoes, but failed to present evidence in support of this assertion.
448
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1
the comforter in apparent blood exhibited herringbone elements, but
2
no further description could be determined.
3
4
(Ex. 33, L. DiMeo dec., ¶¶ 28, 29.)
1247. The defense failed to investigate, develop and present evidence with
5
respect to fabric glove marks. Expert testimony would have established that no
6
identifiable prints could be obtained.
7
1248. The defense failed to investigate, develop and present evidence to
8
establish that the case did not fit the prosecution’s theory of a pattern of crimes;
9
specifically, trial counsel failed to assert differences between this case and other
10
incidents.100 By failing to competently argue that the Bennett case and the vast
11
geographical range did not fit the overall pattern, counsel undermined Petitioner’s
12
defense. (See Ex. 40, S. Strong dec., ¶ 22.) Moreover, the defense failed to offer
13
a logical scenario with respect to hair and blood findings that may have involved
14
other suspects. (Id.) Thus, Petitioner was deprived of an adequate defense.
15
1249. Trial counsel failed to investigate, develop or present any evidence
16
on alternative defenses based on lack of requisite mental state due to Petitioner’s
17
history of serious mental illness, neurocognitive and neurological deficits,
18
psychosis, mood disorders, mind-altering substance abuse, and brain impairment.
19
(See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.; R. Schneider,
20
M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.) In
21
addition, trial counsel failed to conduct a reasonable investigation that would
22
have permitted them to make a reasonable tactical decision to forego such
23
defenses in favor of a defense based on innocence.
24
25
26
100
27
28
By contrast, the prosecutor summed up the relative differences in
closing argument and offered an explanation as to how the crime fit an overall
pattern with other incidents. (207 RT 23919-29.)
449
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1
1250. Without conducting a proper investigation, trial counsel conceded
2
that shoe print evidence linked Petitioner to the crime. There was no reasonable
3
basis for trial counsel’s failure to challenge this evidence. DiMeo’s testimony
4
would have cast a reasonable doubt on Mr. Burke’s conclusions with respect to
5
the size and model of shoes involved, as well as the prosecution’s theory that
6
there was only one pair of shoes that could have been involved. (Ex. 33, L.
7
DiMeo Dec., ¶ 17.)
8
1251. The defense did not challenge the glove-print evidence. As
9
discussed previously, there was no reasonable basis for counsel not to challenge
10
this unreliable evidence. Petitioner has demonstrated grounds for challenging the
11
fingerprint evidence. (See, e.g., Ex. 24, Articles on Latent Prints; Ex. 46,
12
“Fingerprints Meet Daubert”.)
13
1252. Petitioner has demonstrated evidence of potential third-party
14
suspects that was not investigated or presented at trial. (Ex. 22, LACSD - Suppl.
15
Rpt., 09/11/1985.) As discussed earlier, competent counsel would have
16
investigated potential suspects based on interviews of individuals who had
17
admitted involvement in burglaries.
18
1253. Steve Strong’s declaration shows “there was significant evidence to
19
demonstrate lack of pattern . . . crimes were not related, including inexactness of
20
the shoe print evidence; distance between crime scenes; different weapons . . .,
21
and lack of physical evidence found at the scenes indicating there could have
22
been additional suspects.” (Ex. 40, S. Strong Dec., ¶ 22.) Thus, there was crucial
23
evidence the defense failed to present to distinguish Bennett from other incidents,
24
and to demonstrate potential third-party suspects.
25
1254. As a result, trial counsel presented an inconsistent defense. Trial
26
counsel failed to investigate an alternate defense, despite evidence of Petitioner’s
27
lengthy history of serious mental illness, impoverished living conditions, illicit
28
drug usage, and psychotic behavior at or near the time of the offense. Counsel
450
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1
were required, at a minimum, to investigate and develop mental state evidence,
2
before reaching a decision regarding the theory of the case.
1255. As noted above, failure to investigate alternate defenses does not
3
4
excuse as tactical a decision not to present a readily available line of defense. See
5
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
6
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
7
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
8
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
9
supporting documentation show counsel made no reasoned investigation of
10
alternate defenses to the charges. Absent a proper and adequate investigation, the
11
decision not to present a reasonable alternate defense was unsound and resulted in
12
constitutionally deficient representation.
13
K.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
14
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
15
Nelson Incident, Counts 23-24 (burglary, murder, burglary-murder
16
special circumstance)
17
1.
18
1256. On July 7, 1985, Joyce Nelson was found dead in her Monterey Park
The Prosecution’s Case
19
home. Death resulted from a head injury and manual strangulation. Shoe print
20
impressions found at the scene were similar to a sole pattern found at the
21
Bell/Lang incident. Shoe prints at the scene also were similar in appearance to
22
shoe prints found at the Zazzara, Cannon, and Bennett scenes.
23
24
25
1257. Ms. Dempster identified Petitioner as the person she saw in the
neighborhood around July 5, 1985.
1258. The prosecutor argued to the jury that Nelson resembled the Cannon
26
case in terms of injuries (208 RT 23938); that shoe print impressions were
27
identified as Avia shoes (208 RT 23943-45); that Dempster saw a person she
28
identified as Petitioner in the neighborhood (208 RT 23950); that the residence
451
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1
had been ransacked; and that a jewelry box was found on Nelson’s bed (208
2
RT 23946-47).
3
2.
4
1259. The defense evidence was limited to Dennis Lew’s inaccurate
5
6
Defense Evidence
photographs, and testimony regarding hairs recovered from the scene.
1260. In closing, defense counsel argued that the shoe print evidence failed
7
to tie Petitioner to the crimes (210 RT 24228); that the prosecution did not prove
8
Petitioner wore Avia shoes (210 RT 24238); and that Dempster’s eyewitness
9
identification was not credible (211 RT 24303).
10
3.
11
1261. Trial counsel failed to investigate, develop, and present evidence to
12
challenge the physical evidence and to discredit Dempster’s identification. The
13
defense also failed to explain to the jury the differences between the Nelson
14
incident and the other charged crimes, to refute the prosecution’s argument that
15
the crimes fit a pattern.
16
The Defense Failed to Competently Challenge the Charges
1262. The defense failed to challenge the shoe print evidence. Competent
17
counsel would have presented expert testimony to explain that there were
18
thousands of pairs of shoes that compared to the impressions.
19
Two partial overlapping shoe prints exhibiting herringbone
20
elements and a flex joint were found in dry soil outside the scene.
21
They were consistent with any model and style of Avia athletic
22
shoes.
23
24
25
Of four shoe prints on the concrete floor, the following
findings were made:
a) Left Avia. Cannot exclude any Aerobics, Basketball, or
26
All Court Sport model, which exhibited similar class characteristics
27
as the questioned print. Heel area was not captured in the
28
photograph.
452
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1
(b) Right Avia. Cannot exclude any Aerobics, Basketball,
2
Referee/Coach or All Court Sport model, which exhibited similar
3
class characteristics as the questioned print. Heel area was not
4
captured in the photograph.
5
(c) Right Avia. Cannot exclude Aerobics, Basketball, or All
6
Court Sport model, which exhibited similar class characteristics as
7
the questioned print. Heel – three graduating length parallel bars –
8
observed in the photograph are consistent with models 252, 255,
9
255W, 552R, 560, 565W, and 565.
10
(d)
Left Avia. Cannot exclude any Aerobics, Basketball,
11
Referee/Coach All Court Sport model, which exhibited similar class
12
characteristics as the questioned print. Heel area was not captured in
13
the photograph.
14
(Ex. 33, L. DiMeo Dec., ¶¶ 30, 31.)
15
1263. Trial counsel failed to investigate, develop, or present any evidence
16
with respect to alternative defenses based on lack of requisite mental state due to
17
Petitioner’s history of serious mental illness, neurocognitive and neurological
18
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
19
impairment. (See Exs. 31, 38, 41, 42, 43, Declarations of D. Blumer, M.D.; R.
20
Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D., Ph.D.)
21
In addition, trial counsel failed to conduct a reasonable investigation that would
22
have permitted them to make a reasonably informed decision to forego such
23
defenses in favor of a defense based on innocence.
24
1264. Shoe print evidence purportedly linked Petitioner to the scene. But
25
the prosecution presented unreliable and inaccurate shoe print evidence about the
26
make, model, and size of shoe, and the defense presented no evidence to refute
27
the prosecution’s case. Trial counsel failed to challenge the shoe print evidence,
28
and effectively conceded the truth of the prosecution’s evidence in closing
453
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1
argument. Counsel thus deprived Petitioner of a reasonable defense. Forensic
2
specialist Lisa DiMeo disputes Burke’s findings and would have testified that his
3
conclusions are not supported by the evidence; specifically, she would have
4
testified that the model and size of the shoes cannot be determined. Many other
5
shoes could have been responsible for the impressions. (Ex. 24, Articles on
6
Latent Prints; Ex. 34, L. DiMeo Suppl. Dec., ¶ 26.)
7
1265. Counsel were ineffective in failing to challenge Dempster’s
8
identification. They failed to introduce substantial evidence pointing to
9
unreliability of eyewitness identification. Expert testimony would have
10
established fear, stress, memory, poor lighting, and multiple viewings impacted
11
eyewitness identification. (Ex. 37, E. Loftus Dec., ¶ 4.) (See also Ex. 71, K.
12
Pezdek Dec.) Trial counsel did not properly cross-examine Dempster about the
13
reliability of her identification. The record establishes that the viewing
14
conditions were poor, but counsel failed to cross-examine the witness effectively
15
about her observations.
16
1266. Steve Strong opines there were significant differences between
17
various incidents demonstrating lack of pattern, which trial counsel failed to
18
develop and present. (Ex. 40, S. Strong dec., ¶ 21.) Moreover, available
19
evidence pointed to potential third-party culpability. (Id., ¶ 22.) Trial counsel
20
failed to present evidence that someone other than Petitioner could have
21
committed the crime. Trial counsel’s failure to challenge shoe print and pattern
22
evidence and eyewitness identification states a prima facie case for relief.
23
1267. Competent counsel would have investigated alternate defenses,
24
including mental state. Given Petitioner’s lengthy history of serious mental
25
illness, impoverished living conditions, illicit drug usage, and psychotic behavior
26
at or near the time of the offense, counsel were required, at a minimum, to
27
investigate and develop mental state evidence, before reaching a decision
28
regarding the theory of the case.
454
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1268. As noted above, failure to investigate alternate defenses does not
1
2
excuse as tactical a decision not to present a readily available line of defense. See
3
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
4
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
5
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
6
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
7
supporting documentation show that counsel unreasonably failed to adequately
8
investigate alternate defenses to the charges. Absent a proper and adequate
9
investigation, the decision not to present a reasonable alternate defense was
10
unsound and resulted in constitutionally deficient representation.
11
L.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
12
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
13
Dickman Incident, Counts 25-27 (Burglary, Rape, Sodomy)
14
1.
15
1269. On July 7, 1985, Sophie Dickman was awakened in the bedroom of
The Prosecution’s Case
16
her Monterey Park home. A man was standing there, holding a metallic silver
17
handgun. He handcuffed her, stole her jewelry and money, then sexually
18
attacked her. The man left after handcuffing Dickman to the bed. According to
19
police, the handcuffs appeared to be an inexpensive novelty item. The house had
20
been ransacked. At trial Dickman identified a .22-caliber Jennings firearm as
21
similar to the weapon used by the intruder. She identified Petitioner as the
22
assailant. She also identified jewelry at the September 5, 1985 lineup.
23
1270. The prosecution urged the jury to convict Petitioner based on alleged
24
similarities to the Kyle case (208 RT 23987); evidence that a similar handgun
25
was used in Doi (208 RT 23988); evidence that handcuffs were used to restrain
26
the victim (208 RT 23985); evidence that jewelry was placed in a pillowcase
27
taken from her home (208 RT 23991); and the proximity of Dickman’s home the
28
to the Nelson incident (208 RT 23997-98).
455
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1
2.
Defense Evidence
2
1271. The defense presented testimony with respect to a photographic
3
lineup held before Petitioner’s arrest. Dickman identified one of the photographs
4
as the suspect; Petitioner’s photograph was not included in the lineup. No other
5
evidence was presented on Petitioner’s behalf.
6
1272. In closing argument, trial counsel argued that the circumstances of
7
the Dickman crime did not fit the alleged modus operandi of other charged
8
crimes, such as Zazzara, Doi, Bell/Lang, Okazaki, and Khovananth. (211
9
RT 24281-82). Counsel also argued that Dickman’s description of her assailant
10
did not match Petitioner’s physical appearance. (211 RT 24281.)
11
3.
The Defense Failed to Competently Challenge the Charges
12
1273. Trial counsel failed to present a reasonable and competent defense to
13
the incident. Counsel failed to investigate, develop, and present evidence to
14
challenge the prosecution’s case, including eyewitness identification and
15
recovery of stolen property.
16
1274. Trial counsel failed to properly challenge the eyewitness
17
identification. The only direct evidence linking Petitioner to the incident was
18
Dickman’s identification.
19
1275. As discussed supra, trial counsel failed to investigate, develop, and
20
present evidence that the in-court identification was tainted due to the victim’s
21
repeated exposure to Petitioner’s photographs, extensive media coverage of the
22
case, inconsistencies in the initial physical description, and factors related to
23
limiting viewing, lighting, and stress of the events at the time of the incident.
24
(Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
25
1276. Trial counsel failed to impeach Felipe Solano with respect to his
26
fencing activities with other parties who may have been involved in the crimes
27
for which Petitioner was on trial. As discussed supra, there were individuals
28
engaged in selling stolen property to Solano; they were not called as witnesses at
456
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1
Petitioner’s trial. (Ex. 40, S. Strong dec., ¶ 22.) Thus, Petitioner was deprived of
2
competent and effective representation.
3
1277. Trial counsel failed to investigate, develop, or present any evidence
4
with respect to alternative defenses based on lack of requisite mental state due to
5
Petitioner’s history of serious mental illness, neurocognitive and neurological
6
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
7
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
8
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
9
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
10
would have permitted them to make a reasonable tactical decision to forego such
11
defenses in favor of a defense based on innocence.
12
1278. The prosecution introduced eyewitness identification testimony in an
13
attempt to link Petitioner to the Dickman case. Trial counsel unreasonably failed
14
to competently cross-examine the eyewitness in order to establish the
15
unreliability of her identification. Counsel failed adequately to cross-examine the
16
witness as to memory, recall, and independent grounds for identification.
17
Counsel also failed to elicit testimony from the defense expert regarding factors
18
that influence eyewitness identification, such as lack of independent grounds for
19
the identification, unreliability of memory and retrieval due to multiple viewings,
20
and the impact of stress, fear, and physical conditions at the time of the incident.
21
1279. Pursuant to discovery provided by the prosecution, trial counsel
22
knew of third-party suspects. (Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Eva
23
Castillo and several other individuals (Cuba, Charlie, and Julio) had been
24
involved in burglaries and may have committed crimes with which Petitioner was
25
charged. Counsel’s failure to investigate, develop, and present available evidence
26
of third-party culpability was inexcusable. Third-party evidence established that
27
other suspects allegedly committed crimes and sold stolen property to Felipe
28
Solano. Eva Castillo did not testify; however, she had been involved in
457
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1
drug-related activities, and had a relationship with Felipe Solano. Trial counsel
2
failed to establish the link between Castillo, Julio, Charlie, and Cuba that
3
involved stolen property and would have further discredited Solano.
4
1280. Counsel failed adequately to refute the prosecution’s case, including
5
eyewitness identification and Petitioner’s link to Solano. As a result of counsel’s
6
deficient performance, Petitioner was deprived of his fundamental rights.
7
Competent counsel would have investigated reasonable alternate defenses. Given
8
Petitioner’s lengthy history of serious mental illness, impoverished living
9
conditions, illicit drug usage, and psychotic behavior at or near the time of the
10
offense, counsel was required, at a minimum, to investigate and develop mental
11
state evidence before reaching a decision regarding the theory of the case.
12
1281. As discussed above, failure to investigate alternate defenses does not
13
excuse as tactical a decision not to present a readily available line of defense. See
14
Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider alternate
15
defenses constitutes deficient performance when the attorney ‘neither conduct[s]
16
a reasonable investigation nor ma[kes] a showing of strategic reasons for failing
17
to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and the
18
supporting documentation show counsel made no reasoned investigation of
19
alternate defenses to the charges. Absent a proper and adequate investigation, the
20
decision not to present a reasonable alternate defense was unsound and resulted in
21
constitutionally deficient representation.
22
23
24
25
26
27
28
458
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1
M.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
2
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
3
Kneiding Incident, Counts 28-30 (Burglary, Murder, Burglary-murder
4
Special Circumstance)
5
1.
6
1282. On July 20, 1985, Maxon and Lela Kneiding were found dead in
The Prosecution’s Case
7
their Glendale home. Maxon died from a gunshot wound to the neck. No bullet
8
was recovered. Four incised wounds to the neck occurred before the gunshot
9
wound. Lela suffered two gunshot wounds to the head; both were fired at close
10
range. There were cuts to her neck, hand, and arms that appeared to have been
11
inflicted before death. The house had been ransacked. The Kneidings’ daughters
12
identified their mother’s jewelry at the property lineup. A projectile recovered
13
from Lela Kneiding was fired from the same .22-caliber firearm in the Okazaki
14
and Yu cases.
15
1283. In closing argument the prosecution argued that the incident was
16
very similar to Zazzara (209 RT, 24014); property was recovered from Solano101
17
(209 RT 24016); and ballistics evidence established that the same weapon fired
18
the rounds in Okazaki, Yu, and Kneiding (209 RT 24018). The state also argued
19
that “within minutes virtually of the murder of Maxon and Lela Kneiding, the
20
defendant arrived in Sun Valley [Khovananth] . . . again the same morning . . . .”
21
(209 RT 24020.)
22
2.
23
1284. Trial counsel presented a limited defense to the Kneiding charges. A
Defense Evidence
24
shirt discovered near the scene appeared to have been dropped or thrown there;
25
hairs found on the shirt were dissimilar to Petitioner’s hair. The defense
26
27
28
101
The prosecutor falsely characterized Felipe Solano as less than a “major
receiver of stolen property . . . .” (209 RT 24017.)
459
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1
presented no evidence with respect to the prosecution’s ballistics findings or as to
2
Felipe Solano’s testimony regarding stolen property.
3
3.
The Defense Failed to Competently Challenge the Charges
4
1285. The defense failed to investigate, develop, and present evidence to
5
defend against the charges. The defense’s failure to challenge the prosecution’s
6
ballistics evidence in Okazaki and Yu, prejudiced Petitioner’s defense in the
7
Kneiding case. Competent defense counsel would have presented evidence
8
regarding conflicts and inaccuracies of the prosecution’s ballistics evidence in all
9
three cases. (See Ex. 35, P. Dougherty dec.)
10
1286. Trial counsel failed to adequately and properly impeach Felipe
11
Solano. Competent counsel would have offered evidence to show that other
12
parties sold stolen property to Solano and that oher suspects may have been
13
involved in the crimes for which Petitioner was on trial. (See Ex. 22, LACSD -
14
Suppl. Rpt., 09/11/1985.)
15
1287. Trial counsel failed to investigate, develop, or present any evidence
16
with respect to alternative defenses based on lack of requisite mental state due to
17
Petitioner’s history of serious mental illness, neurocognitive and neurological
18
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
19
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
20
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
21
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
22
would have permitted them to make a reasonable tactical decision to forego such
23
defenses in favor of a defense based on innocence.
24
1288. Trial counsel unreasonably conceded the inaccurate and unreliable
25
firearms evidence the prosecutor introduced in an attempt to link Petitioner to the
26
Okazaki and Yu incidents. As previously explained, competent counsel would
27
have challenged this evidence based on the distortion of the bullets and the fact
28
that the ballistics evidence lackedreliability. At a minimum, competent counsel
460
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1
would have challenged the testing results of the firearms evidence. Paul
2
Dougherty reviewed the Okazaki, Yu, and Kneiding incidents and concluded that
3
“there are internal conflicts in the written reports with regard to the testing
4
conducted, such as condition of the bullets.” (Ex. 35, P. Dougherty dec., ¶ 4; see
5
also attachment to Ex. 35.)
1289. Trial counsel failed to investigate third-party culpability evidence.
6
7
Individuals with ties to Eva Castillo included Cuba, Charlie, and Julio, all of
8
whom had been involved in burglaries. (Ex. 22, LACSD - Suppl. Rpt.,
9
09/11/1985, pp. 3, 6-7.) Cuba turned over stolen property to police agents on
10
September 3, 1985. (Id., p. 6.) According to the supplemental Los Angeles
11
Sheriff report (Ex. 22), Cuba was not prosecuted for his criminal activity. (Id.)
12
Steve Strong’s analysis of the case adds further support for relief: other
13
individuals had motive and opportunity to commit crimes and sell stolen property
14
to Solano. (See Ex. 40, S. Strong dec.) Trial counsel failed to investigate,
15
develop, and present evidence that pointed to Castillo and others with whom she
16
associated as the perpetrators. (Ex. 22, LACSD - Suppl. Rpt., 09/11/1985, pp. 3,
17
6-7.)
18
1290. Competent counsel would have investigated reasonable alternate
19
defenses, including a mental state defense. Given Petitioner’s lengthy history of
20
serious mental illness, impoverished living conditions, illicit drug usage, and
21
psychotic behavior at or near the time of the offense, counsel was required, at a
22
minimum, to investigate and develop mental state evidence before reaching a
23
decision regarding the theory of the case. There was substantial evidence of
24
Petitioner’s long-standing impairments that would have been admissible at trial.
25
1291. Trial counsel’s failure to investigate alternate defenses does not
26
excuse as tactical their decision not to present a readily available line of defense.
27
See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to consider
28
alternate defenses constitutes deficient performance when the attorney ‘neither
461
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1
conduct[s] a reasonable investigation nor ma[kes] a showing of strategic reasons
2
for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the petition and
3
the supporting documentation show counsel made no reasoned investigation of
4
alternate defenses to the charges. Absent a proper and adequate investigation, the
5
decision not to present a reasonable alternate defense was unsound and resulted in
6
constitutionally deficient representation.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
462
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1
N.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
2
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
3
Khovananth Incident, Counts 31-35 (burglary, murder, rape, oral
4
copulation, sodomy, burglary-murder special circumstance)
5
1.
6
1292. On July 20, 1985, Somkid Khovananth was attacked in her home.
The Prosecution’s Case
7
She was sexually assaulted and forced to turn over jewelry and money to her
8
assailant. Her husband, Chainarong Khovananth, was shot in the head at very
9
close range. The prosecution introduced evidence that a small-caliber bullet
10
recovered from Mr. Khovananth’s scalp had been fired from the same .22-caliber
11
firearm that was used in the Zazzara case.
12
1293. Shoe prints found at the scene were similar to impressions at the
13
Nelson and Bell/Lang residences. Khovananth identified Petitioner as her
14
assailant. She also identified jewelry at the property lineup.
15
1294. The prosecution urged conviction based on similarities to the
16
Abowath case (see infra); argued that the same .22-caliber gun was used in
17
Zazzara; that ligature marks on her arm were similar to marks on Zazzara’s arm;
18
and that eyewitness and property identification linked Petitioner to the
19
Khovananth crimes. (209 RT 24024-32.)
20
2.
21
1295. Trial counsel conceded the truth of the prosecution’s ballistics
22
evidence that purportedly linked Petitioner to the Zazzara case. (210 RT 24201.)
23
Defense Evidence
1296. Trial counsel presented the testimony of Chainarong Khovananth’s
24
sister regarding the initial description given by Somkid Khovananth of her
25
assailant as dark-skinned.
26
1297. Trial counsel argued that Somkid Khovananth’s initial suspect
27
description should be believed and the case did not fit a distinctive pattern. (211
28
RT 24284-89.)
463
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3.
The Defense Failed to Competently Challenge the Charges
2
1298. The defense failed to investigate, develop, and present evidence with
3
respect to the Prosecution’s ballistics evidence, shoe print impression evidence,
4
and the property recovered from Felipe Solano. Trial counsel’s failures deprived
5
Petitioner of adequate assistance of counsel.
6
1299. Competent defense counsel would have challenged the ballistics
7
evidence and the lack of accuracy and unreliability of the prosecution’s findings.
8
The findings were inaccurate. Firearms expert Paul Dougherty has stated that
9
there are internal conflicts in the reports of various law enforcement examiners
10
11
12
and the evidence should be retested. (Ex. 35, P. Dougherty dec., ¶ 4.)
1300. Competent counsel would have presented expert testimony
regarding shoe print impressions.
13
A partial print on the floor developed with black fingerprint powder
14
consisted of eight straight parallel bar elements; a second partial
15
print consisted of four half-circles.
16
A photograph of an Avia left shoe print on the floor was made
17
by a possible wet soil transfer that was subsequently treated with
18
black fingerprint powder and lifted with tape. It was consistent with
19
Avia Aerobics model, or any other Avia model, which exhibited
20
similar class characteristics: convex dam area, which meets the last
21
straight bar element of the flex joint. The heel area is
22
indistinguishable. Exemplars of all other shoe models would be
23
needed for elimination.
24
(Ex. 33, L. DiMeo Dec., ¶¶ 32, 33.)
25
1301. Trial counsel failed to impeach the testimony of Felipe Solano
26
regarding his fencing activities with other individuals. Competent counsel would
27
have introduced evidence to show that individuals other than Petitioner sold
28
464
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1
stolen property to Solano during the same time period. (Ex. 22, LACSD - Suppl.
2
Rpt., 09/11/1985.)
3
1302. Trial counsel failed to investigate, develop, and present evidence to
4
challenge eyewitness identification. Trial counsel failed to introduce evidence to
5
show that the eyewitness’s initial description of her assailant was more reliable
6
than her later description. Expert testimony would have established the factors
7
that influenced the identification and rendered the in-court identification
8
unreliable. (See Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek Dec.)
9
1303. Trial counsel failed to investigate, develop, or present any evidence
10
with respect to alternative defenses based on lack of requisite mental state due to
11
Petitioner’s history of serious mental illness, neurocognitive and neurological
12
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
13
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
14
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
15
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation and
16
thus could not have made a reasonable, tactical decision to forego such defenses
17
in favor of a defense based on innocence.
18
1304. The prosecution sought to link Petitioner to the Zazzara and
19
Khovananth incidents using firearms evidence. Trial counsel’s failure to
20
challenge the firearms evidence -- effectively, a concession -- allowed the
21
prosecution to link Petitioner to both incidents. As a result of trial counsel’s
22
deficient performance, the jury never heard evidence related to the inaccuracy of
23
the testing results and internal discrepancies in the firearms examiners’ reports.
24
(Ex. 35, P. Dougherty dec., ¶ 2.) Counsel unreasonably failed to investigate and
25
challenge the bullet distortion and firearms identification evidence. (See id.;
26
Ex. 47, U.S. Department of Justice Press Release, “FBI Laboratory Announces
27
Discontinuation of Bullet Lead Examinations, 09/01/2005; Los Angeles County
28
Sheriff’s Department – General Rifling Characteristics Report, by Sgt. J.D.
465
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1
Smith, 04/01/1985, pp. 28-29.) Petitioner has demonstrated, based on
2
preliminary evaluation, that the prosecution’s firearms testing was faulty,
3
unreliable, and inaccurate. Competent counsel would have challenged the
4
prosecution’s evidence. Petitioner has provided specific showing of prejudice
5
with respect to individual incidents and incidents linked together by unreliable
6
evidence.
7
1305. Trial counsel also conceded the truth of the prosecution’s shoe print
8
evidence. However, forensic specialist DiMeo found that the prosecution’s
9
evidence was insufficient to determine the exact model of the shoe. A partial
10
print on the floor and indistinguishable heel area of another print preclude further
11
identification. (Ex. 33, L. DiMeo Dec., ¶ 17.) Many models and sizes could have
12
made the shoe print impression in question. (Ex. 34, L. DiMeo Suppl. Dec.,
13
¶ 19.) Trial counsel were required to investigate the prosecution’s evidence,
14
which was inaccurate, misleading, and unreliable. Competent counsel would not
15
have conceded the evidence and would have elicited testimony from a forensic
16
specialist such as Dimeo, which would have raised a reasonable doubt in the
17
jurors’ minds as to reliability and accuracy of the prosecution’s evidence.
18
1306. Trial counsel knew or should have known of third-party culpability
19
evidence, based upon the Los Angeles Sheriff Supplemental Report dated
20
September 11, 1985. (Ex. 22, LACSD - Suppl. Rpt., 09/11/1985.) Individuals
21
known to Eva Castillo, including Cuba, Charlie, and Julio, had been involved in
22
burglaries and thefts. Available evidence would have established that these
23
persons committed crimes and were likely to have sold stolen property to Felipe
24
Solano. Trial counsel also failed to investigate Eva Castillo’s background, her
25
criminal activities, her illicit drug use, and her relationship with Felipe Solano, all
26
of which would have further impeached Solano.
27
1307. Eyewitness identification evidence went unchallenged by the
28
defense. Evidence related to factors that affect memory, recall, and retrieval was
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1
not elicited on cross-examination of eyewitnesses by trial counsel or from the
2
defense expert. Petitioner has demonstrated grounds to impeach eyewitness
3
identification, i.e., factors related to confidence of memory, retention, retrieval,
4
and unreliability of eyewitness identification described in Dr. Loftus’s deposition
5
which are critical to a determination of reliability of eyewitness identification.
6
(Ex. 37, E. Loftus Dec., pp. 1-113.) (See also Ex. 71, K. Pezdek Dec.)
7
1308. Competent counsel would have investigated alternate defenses,
8
including a mental state defense. Given Petitioner’s lengthy history of serious
9
mental illness, impoverished living conditions, illicit drug usage, and psychotic
10
behavior at or near the time of the offense, counsel was required, at a minimum,
11
to investigate and develop mental state evidence before reaching a decision
12
regarding the theory of the case.
13
1309. Counsel undermined Petitioner’s defense by conceding the truth of
14
physical evidence introduced by the prosecution in an attempt to link Petitioner to
15
the crime. There was no sound reason for failing to investigate alternate
16
defenses. Moreover, as discussed above, failure to investigate alternate defenses
17
does not excuse as tactical a decision not to present a readily available line of
18
defense. See Phillips, 267 F.3d at 976-79. “A defense attorney’s failure to
19
consider alternate defenses constitutes deficient performance when the attorney
20
‘neither conduct[s] a reasonable investigation nor ma[kes] a showing of strategic
21
reasons for failing to do so.’” Rios, 299 F.3d at 805. The allegations in the
22
petition and the supporting documentation show counsel made no reasoned
23
investigation of alternate defenses to the charges. Absent a proper and adequate
24
investigation, the decision not to present a reasonable alternate defense was
25
unsupported and resulted in constitutionally deficient representation.
26
27
28
467
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O.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
2
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
3
Petersen Incident, Counts 36-38 (burglary, attempted murder)
4
1.
5
1310. On August 5, 1985, Virginia and Christopher Petersen were shot
The Prosecution’s Case
6
while asleep in their Northridge home. No weapon was recovered. The
7
prosecution introduced evidence that expended .25-caliber cartridge casings and a
8
slug were fired from the same firearm as the bullet recovered in the Abowath
9
incident. The prosecution also introduced evidence that .25-caliber ammunition
10
found in the bag in the locker at the Greyhound Bus Station after Petitioner’s
11
arrest had the same tool marks as the expended casings in both cases. Fingerprint
12
lifts from the doors in the house appeared to have been made by garden gloves.
13
Virginia Petersen identified Petitioner as her assailant.
14
1311. The prosecution urged conviction based on ballistics evidence,
15
eyewitness identification, and similarities to other cases. (209 RT 24034, 24038-
16
43.) The prosecutor argued that photographs taken by the defense showed that
17
Virginia Petersen could readily monitor her daughter’s movement at the end of
18
the hallway and thus had an adequate opportunity to view the suspect.
19
And I don’t know exactly what the point was, but the point
20
couldn’t have been made better by anyone else, . . . Mrs. Petersen
21
could look down there and she (sic) her, and that is a reasonable
22
thing to do.
23
(209 RT 24035.)
24
2.
Defense Evidence
25
1312. Trial counsel conceded the truth of ballistics evidence that the
26
prosecutor introduced in an attempt to link Petitioner to the Abowath case.
27
Counsel offered only testimony regarding photographs taken of the house in an
28
effort to show the limited view of a person in the hallway from the bed in the
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1
back bedroom. Counsel argued that the photographs proved the lighting was
2
insufficient to identify a person standing the hallway. Defense counsel also
3
argued that Virginia Petersen did not call the police to identify Petitioner once his
4
photograph was shown on television and in the newspaper and that her
5
identification was suspect. Counsel observed that this case did not involve any
6
Avia shoe prints. (211 RT 24296.)
7
3.
8
1313. Trial counsel failed to challenge the prosecution’s case. By
9
conceding the truth of the prosecution’s ballistics evidence in the Petersen and
10
The Defense Failed to Competently Challenge the Charges
Abowath crimes, counsel deprived Petitioner of a competent defense.
1314. Trial counsel failed to investigate, develop, and present evidence to
11
12
refute ballistics evidence. Competent defense counsel would have challenged the
13
ballistics evidence and the lack of accuracy and unreliability of the prosecution’s
14
findings. Firearms expert Paul Dougherty states that there are internal conflicts
15
in the reports of various law enforcement examiners and the evidence should be
16
retested. (Ex. 35, P. Dougherty dec., ¶ 4.)
1315. Trial counsel failed to investigate, develop, and present evidence to
17
18
refute eyewitness identification. Expert testimony would have challenged the
19
basis for eyewitness identification; there were sources of contamination that led
20
to unreliable identification. (Ex. 37, E. Loftus Dec.) (See also Ex. 71, K. Pezdek
21
Dec.)
22
1316. Trial counsel failed to investigate, develop, or present any evidence
23
with respect to alternative defenses based on lack of requisite mental state due to
24
Petitioner’s history of serious mental illness, neurocognitive and neurological
25
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
26
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
27
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
28
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
469
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1
would have permitted them to make a reasonable tactical decision to forego such
2
defenses in favor of a defense based on innocence.
3
1317. Mr. Dougherty found evidence of inaccuracies and internal
4
inconsistencies in the firearm examiners’ reports related to other incidents.
5
(Ex. 35, P. Dougherty dec., ¶ 4.) Trial counsel were required to investigate the
6
firearms evidence and properly determine accuracy of testing results, bullet
7
distortion, and firearm identification. Counsel improperly conceded firearms
8
evidence. Eyewitness identification evidence was presented with respect to each
9
of these crimes. Counsel were ineffective in failing to investigate, develop, and
10
present evidence through cross-examination of the eyewitness and the defense
11
expert with respect to memory and retrieval of information, including the effect
12
of fear, stress, and multiple viewings of a suspect. The eyewitness was not
13
questioned about the extent to which publicity surrounding the case resulted in
14
contamination of her identification. Petitioner has demonstrated that Dr. Loftus
15
would have testified about the impact of various factors, including contamination
16
and thus would have established the identification lacked reliability. (Ex. 37, E.
17
Loftus Dec., ¶ 4.) (See also Ex. 71, K. Pezdek Dec.)
18
1318. Trial counsel failed to challenge the firearms evidence and conceded
19
the truth of the prosecution’s evidence linking Petitioner to the Abowath incident.
20
Thus, counsel were required to properly investigate, develop, and present
21
evidence of an alternate defense. Competent counsel would have investigated
22
and considered reasonable alternate defenses. Counsel failed to investigate
23
evidence of a mental state defense. Given Petitioner’s lengthy history of serious
24
mental illness, impoverished living conditions, illicit drug usage, and psychotic
25
behavior at or near the time of the offense, counsel was required, at a minimum,
26
to investigate and develop mental state evidence before they could reach a
27
decision regarding the theory of the case.
28
470
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1
1319. Failure to investigate alternate defenses does not excuse as tactical a
2
decision not to present a readily available line of defense. See Phillips, 267 F.3d
3
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
4
deficient performance when the attorney ‘neither conduct[s] a reasonable
5
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
6
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
7
documentation show counsel made no reasoned investigation of alternate
8
defenses to the charges. Absent a proper and adequate investigation, the decision
9
not to present a reasonable alternate defense was unsound and resulted in
10
constitutionally deficient representation.
11
P.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
12
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
13
Abowath Incident, Counts 39-43 (burglary, murder, rape, oral
14
copulation, sodomy, burglary-murder special circumstance)
15
1.
16
1320. On August 8, 1985, Sakina Abowath was attacked and sexually
The Prosecution’s Case
17
assaulted in her Diamond Bar home. Her husband, Elyas Abowath, was shot in
18
the head; the weapon had been fired at close range. The bullet recovered during
19
autopsy was fired from the same .25-caliber firearm as the bullets fired in the
20
Petersen incident. The prosecution introduced evidence that Stadia shoes taken
21
from Petitioner upon his arrest matched the shoe print impressions on the dining
22
room floor.
23
24
1321. Ms. Abowath identified Petitioner as the assailant. She also
identified property recovered from Felipe Solano.
25
1322. In closing, the prosecution urged the jury to convict Petitioner
26
because of similarities to the Khovananth case (209 RT 24044); shoe print
27
evidence (209 RT 24045); ballistics evidence (209 RT 24048); use of restraints
28
(209 RT 24050); eyewitness identification (209 RT 24033); and discovery of .25471
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1
caliber ammunition that purportedly matched tool marks on the bullet recovered
2
from Mr. Abowath. (209 RT 24067.)
3
2.
4
1323. The defense case was limited to impeachment of the eyewitness; and
5
to the introduction of hair and semen findings that were negative as to Petitioner.
6
7
Defense Evidence
1324. Trial counsel conceded the truth of the prosecution’s ballistics and
shoe print evidence.
8
3.
The Defense Failed to Competently Challenge the Charges
9
1325. As indicated supra, the defense failed to investigate, develop, and
10
present a competent defense with respect to ballistics evidence. Expert testimony
11
would have established that the prosecution’s ballistics findings were not
12
accurate or reliable. (Ex. 35, P. Dougherty dec., ¶ 4.)
13
14
15
1326. Competent counsel would have presented evidence that the incident
was not part of a pattern that linked Petitioner to numerous crimes.
1327. Trial counsel failed to impeach Ms. Abowath with respect to
16
eyewitness identification. Expert testimony would have established important
17
factors that influenced her identification, including pressure and bias to make an
18
identification, fear, stress, and memory retrieval. (Ex. 37, E. Loftus Dec.) (See
19
also Ex. 71, K. Pezdek Dec.)
20
1328. Trial counsel failed to investigate, develop, or present any evidence
21
with respect to alternative defenses based on lack of requisite mental state due to
22
Petitioner’s history of serious mental illness, neurocognitive and neurological
23
deficits, psychosis, mood disorders, mind-altering substance abuse, and brain
24
impairment. (See Exs. 31, 38, 41, 42, 43, the Declarations of D. Blumer, M.D.;
25
R. Schneider, M.D.; W. Vicary, M.D.; D. Watson, Ph.D.; and, J. Wells, J.D.,
26
Ph.D.) In addition, trial counsel failed to conduct a reasonable investigation that
27
would have permitted them to make a reasonable tactical decision to forego such
28
defenses in favor of a defense based on innocence.
472
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1
1329. Trial counsel conceded the truth of the prosecution’s firearms
2
evidence and failed to challenge this evidence. Counsel failed to challenge the
3
accuracy and reliability of the firearms examiner’s findings. Preliminary review
4
raises serious concerns about the firearms testing results. Further examination of
5
the firearms evidence would likely show additional problems with bullet
6
distortion and identification. Trial counsel failed to challenge reliability and
7
accuracy of the testing results that linked numerous incidents. Thus, counsel
8
failed to defend against the charges effectively.
9
1330. Defense counsel unreasonably failed to introduce available evidence
10
to show that the Abowath crimes were not related to other cases. (See Ex. 40, S.
11
Strong dec., pp. 7-9.) Defense counsel unreasonably failed to challenge the
12
prosecution’s evidence or investigate and present evidence of dissimilarities
13
between the Abowath crimes and other incidents. Counsel unreasonably failed to
14
refute the prosecution’s shoe print and firearms evidence, pattern evidence, and
15
eyewitness identification testimony.
16
1331. Trial counsel unreasonably failed to challenge eyewitness
17
identification evidence. Counsel failed to elicit crucial evidence of memory and
18
retrieval related to the witness’s identification. Counsel failed to properly
19
investigate eyewitness identification, then failed to prepare the defense expert to
20
address specific factors related to eyewitness identification, including the effects
21
of fear, stress, and focus on memory and retrieval, all of which impact reliability
22
of identification.
23
1332. Competent counsel would have investigated reasonable alternate
24
defenses, including a mental state defense. Given Petitioner’s lengthy history of
25
serious mental illness, impoverished living conditions, illicit drug usage, and
26
psychotic behavior at or near the time of the offense, counsel was required, at a
27
minimum, to investigate and develop mental state evidence before reaching a
28
decision regarding the theory of the case.
473
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1
1333. Failure to investigate alternate defenses does not excuse as tactical a
2
decision not to present a readily available line of defense. See Phillips, 267 F.3d
3
at 976-79. “A defense attorney’s failure to consider alternate defenses constitutes
4
deficient performance when the attorney ‘neither conduct[s] a reasonable
5
investigation nor ma[kes] a showing of strategic reasons for failing to do so.’”
6
Rios, 299 F.3d at 805. The allegations in the petition and the supporting
7
documentation show that counsel made no reasoned investigation of alternate
8
defenses to the charges. Absent a proper and adequate investigation, the decision
9
not to present a reasonable alternate defense was unsound and resulted in
10
constitutionally deficient representation.
11
Q.
Trial Counsel Failed to Investigate, Litigate, Object to, Cross-examine
12
or Otherwise Adequately Challenge the Prosecution’s Evidence in the
13
Uncharged Incident (Burglary)
14
1334. The prosecution presented evidence of a palm print identified as
15
16
Petitioner’s and an Avia shoe that left an impression at the scene.
1335. Trial counsel failed to challenge the prosecution’s evidence.
17
Competent counsel would have demonstrated that the shoe print impression
18
evidence was less conclusive; “[the partial shoe print] was consistent with any
19
model and style of an Avia athletic right shoe exhibiting similar class
20
characteristics . . . .” (Ex. 33, L. DiMeo dec., ¶ 34.) Moreover, counsel failed to
21
challenge the reliability of the fingerprint evidence.
22
1336. Petitioner has described available evidence, including Lisa DiMeo’s
23
declaration regarding inaccurate and unreliable shoe print evidence. (Ex. 33,
24
L. DiMeo Dec., ¶ 35; Ex. 34, L. DiMeo Suppl. Dec., ¶ 27.) Grounds also existed
25
to challenge fingerprint evidence. (Ex. 24, Articles on Latent Prints; Ex. 46,
26
“Fingerprints Meet Daubert”.)
27
28
1337. Petitioner has shown a partial shoe print found at the scene “was
consistent with any model and style of an Avia athletic right shoe exhibiting
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1
similar class characteristics . . . .” (Ex. 33, L. DiMeo dec., ¶ 34.) However, trial
2
counsel failed to challenge the evidence or show lack of distinctive shoe print
3
characteristics. Avia shoes were not a rare commodity in the Los Angeles area.
4
As DiMeo has stated:
5
. . . there were many possible models and sizes of shoes that could
6
have been identified from the shoeprint impressions. ¶ There were
7
actually many models . . ., totaling tens of thousands of shoes . . .
8
that could have been the source of the impression evidence.
9
(Ex. 33, L. DiMeo Dec., ¶¶ 35-36.) Here, no evidence linked Petitioner to the
10
crime other than shoe print evidence. By failing to present any evidence in
11
Petitioner’s defense, and failing to challenge -- effectively, conceding -- the truth
12
of the prosecution’s unreliable shoe print evidence, trial counsel failed to
13
reasonably defend Petitioner against the uncharged offense.
14
R.
Failure to Competently Present an Opening Statement
15
1338. Trial counsel failed to present an opening statement that reasonably
16
reflected a rational defense to be presented at trial. During closing argument, the
17
prosecution made repeated reference to counsel’s opening statement, and
18
exploited the lack of a cohesive and competent defense strategy.102
19
[O]n May 9, Tuesday May 9, 1989, in volume 179 if (sic) our daily
20
transcript here beginning at page 20819, Mr. Hernandez made his
21
opening statement in this case.
22
because there were a lot of errors in that opening statement. . . .
23
[M]aybe he just misunderstood it or maybe they are going to try to
24
show that we were wrong . . . . But we came to the end of the
And I want to talk about that,
25
26
27
28
102
Trial counsel consistently failed to object to the prosecution’s
argument.
475
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defense case and most of that stuff is not addressed . . . . Mr.
2
Hernandez . . . failed to deliver . . . .
3
(203 RT 23576.)
4
Page 20839, . . . Mr. Hernandez, . . . indicated that the defendant will
5
show that Felipe Solano bought items that he said he bought from
6
the defendant but were actually bought from other people. Now, this
7
is important. There is no such evidence in this case. ¶ [T]hat is not
8
true. That was never proved.
9
(203 RT 23594-95.)
1339. The prosecution argued numerous other instances of defense
10
11
incompetency during opening statement.
12
[T]here were a lot of errors in [Daniel Hernandez’s] opening
13
statement.
14
(203 RT 23576.)
15
[I]t turns out to be something Mr. Hernandez told you he was going
16
to present and failed to deliver . . . .
17
(Id.)
18
[A] diagram . . . purported to be the Kneiding, household. . . . It is
19
not in evidence . . . [o]n that diagram there were some locations . . .
20
Avia shoeprints were recovered. [¶] Well, that is not so. . . . This
21
is something that was made up.
22
(203 RT 23579.)
23
[T]here must be something here then in his opening statement. What
24
does Mr. Hernandez tell you? . . . [Y]ou never heard from Mr.
25
Hernandez again on the subject. . . . [¶] Why? Because it was all
26
bunk.
27
(203 RT 23585-86.)
28
476
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1
And again, again in his opening statement Mr. Hernandez promised
2
you he was going to prove that Eva and Julio were committing these
3
burglaries. . . . ¶ Never happened, bunk, never happened.
4
(203 RT 23587.)
5
So again, Mr. Hernandez harps upon Eva and Julio and yet nothing
6
came forward; nothing.
7
(203 RT 23588.)
8
The same volume at page 20834, Mr. Hernandez told you that the
9
defendant was working with a fellow . . . . Well, you really don’t
10
11
have any evidence of that.
(203 RT 23592.)
12
Oh, again now, again . . . page 20837, talking about Felipe Solano
13
. . . dealing in all sorts of things . . . there is absolutely no evidence
14
of that at all, . . . so that again is off the wall.
15
(203 RT 23593.)
16
Page 20839 . . . Mr. Hernandez . . . indicated that the defendant will
17
show that Felipe Solano bought items that he said he bought from
18
the defendant but were actually bought from other people.
19
20
Now, this is important. There is no such evidence in this case.
(203 RT 23594.)
21
You see, Hernandez stands up and gives the clear indication that . . .
22
Solano is a big dealer . . . .
23
Absolutely not one shred of evidence of that . . . .
24
(203 RT 23597.)
25
Mr. Hernandez told you that he was going to prove that an
26
examination of the sweatband of that cap showed that the blood type
27
. . . was different from that of the defendant’s.
28
477
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1
Absolutely bogus. You never heard any more about it. That never
2
existed, never happened.[103]
3
(203 RT 23601-02.)
4
[Blood evidence] does not exist and it was not presented, because it
5
does not exist. . . . [Y]ou should not speculate about those things that
6
are discussed by counsel and were never forthcoming.
7
You should not speculate about any of it, whether it is bogus
8
or whether it just was some – some inadvertence and didn’t make it
9
this far.
10
(203 RT 23602.)
11
And when you start talking about reasonable doubt at some point in
12
these arguments, that is not reasonable doubt. That is not the
13
creation of reasonable doubt.
14
You do that by the presentation of evidence or the lack of
15
presentation of evidence, but not by suggesting something to a jury
16
and then not showing up.
17
(203 RT 23604.)
18
And that part begins at page 20870. Mr. Hernandez was telling you
19
what he was going to present in the Bennett incident.
20
...
21
That [fingerprint evidence] is non-existent, . . . . [Y]ou just can’t
22
throw this stuff out if you are a lawyer. This is serious business here
23
and it is not just because you are on the defense side you can throw
24
this stuff out and let it flow.
25
26
27
28
103
The defense failed to present any evidence about the cap. The cap was
never tested by the defense expert. (Ex. 44, B. Wraxall dec., ¶ 4.)
478
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There was not evidence of that at all. If there was such
1
2
evidence, then the defense, and they considered it relevant, the
3
defense had the obligation to bring it forward.
4
(203 RT 23615-17.)
5
[T]hese things were referred to by counsel, and yet there was no
6
evidence on it . . . .
In Mr. Hernandez’ opening statement, again volume 179, this
7
8
time at page 20879, he referred to the Nelson incident . . . he did
9
make the remark that . . . [hair recovered] . . . was compared to . . .
family members, that type of thing. That is not true.
10
11
(204 RT 23627-28.)
Mr. Hernandez told you that they were going to prove to you
12
13
that there was a private security guard in the area of the Abowath
14
murder . . . .
15
...
16
No nothing, no evidence of that at all.
17
I mean that is – you know, you are not allowed to make up
evidence, and that is one of the rules.
18
19
(204 RT 23648.)
20
S.
21
Further Evidence of Failure to Defend Against the Charges
1340. Trial counsel failed to properly and Competently Challenge the
22
charges, due in part to its failure to properly and competently examine the
23
prosecution’s witnesses. The prosecution capitalized on the failings during
24
closing argument by arguing that the burden of proof was on the defense to prove
25
Petitioner’s innocence.
26
[The fingerprint witness] was here and could have been examined
27
. . . and was not.
28
479
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So if there was some evidence there that was going to be helpful to the
1
2
defense, they didn’t bother to ask anybody any questions about it.
3
(203 RT 23613.)
4
First of all, Mr. Clark indicated that he saw nothing wrong with our
5
firearms identification. If he did, if he had some contra evidence, he
6
would present it, and of course that is true, and you know the
7
testimony was not presented. . . . And nothing came from the
8
defense about firearms. So I presume we’ll take Mr. Clark at his
9
word, that the firearms in this case was done, was done right.
10
(211 RT 24335.)
1341. Petitioner has demonstrated that (1) counsel failed to adequately
11
12
defend against the charges and competently examine the prosecution’s witnesses,
13
and (2) the prosection, without any objection from trial counsel, improperly
14
argued that the burden of proof was on the defense to prove Petitioner’s
15
innocence. It is not merely the prosecutor’s opinion that is at issue, but the
16
prosecution’s improper argument shifting the burden of proof to the defense.
17
1342. Counsel failed to develop a coherent theory of defense. Counsel
18
failed competently to challenge fingerprint, shoe print, and ballistics evidence.
19
Competent counsel would have evaluated the prosecution’s testing protocol,
20
uncovered inaccuracies and discrepancies in the testing, and cross-examined the
21
prosecution’s witnesses. Competent counsel would not have conceded the
22
prosecution’s case. Petitioner has shown a more favorable result would have
23
occurred had counsel properly defended against the charges and objected to the
24
prosecutor’s improper argument.
25
T.
Failure to Challenge the Prosecution’s Evidence
26
1343. Trial counsel’s failure to competently defend Petitioner is further
27
illustrated by the prosecution’s final comments in closing argument regarding
28
promises made by the defense to produce evidence.
480
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1
And I talked to you before about promises that were made by the
2
defense that were unfulfilled.
The real problem with Mr. Clark’s argument is the same as
3
with Mr. Hernandez’ opening statement, and that is this:
4
5
Mr. Clark told you to forget what I said about Mr. Hernandez’
6
opening statement because the defense was a team and the members
7
of the team can get together and change their mind (sic) about their
8
approach to a case at any given time.
They had the entire people’s case plus there were two weeks
9
10
between the people’s case and the defense. That was the time when
11
the team should have gotten together and decided what they were
12
going to do.
And if they weren’t going to present evidence, nobody should
13
have talked about it, you see?
14
Well, that is dishonest. That is not true. If there was
15
evidence, it would be here. It should be here.
16
17
(211 RT 24319-20.)
18
U.
Failure to Object to the Prosecutor’s Closing Argument
1344. Trial counsel failed to object to the prosecutor’s closing argument on
19
20
the grounds that the State committed misconduct, improperly commented on
21
matters not in evidence, shifted the burden of proof, and misled the jury. In
22
failing to object, trial counsel was incompetent.
1345. The prosecutor argued the case to the jury over a seven-day period.
23
24
The defense failed to object to the prejudicial and inflammatory argument and
25
numerous instances of prosecutorial misconduct discussed infra.
26
V.
27
28
Other Guilt Phase Errors Rendered the Guilt Trial Verdict Unreliable
1346. Counsel failed in numerous other respects, including but not limited
to the following:
481
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(a) Trial counsel failed to investigate all available defenses, and as a
1
2
result failed to properly voir dire prospective jurors and exercise peremptory
3
challenges, and failed to give a reasonable and coherent presentation of the
4
defense case during voir dire, in opening statement and closing argument.
(b) Trial counsel were on notice that there was evidence that pointed
5
6
to third-party suspects, including in the Vincow and uncharged incidents.
7
Counsel failed to properly investigate, present evidence of third-party culpability;
8
counsel failed to challenge the Prosecution’s case and failed to object to
9
misconduct by law enforcement officers, the district attorney, and other state
10
actors who acted independently and in concert to present unreliable and
11
misleading testimony regarding Petitioner’s alleged statements, Felipe Solano,
12
Cuba, and other potential third party suspects. The district attorney and law
13
enforcement officers consistently presented evidence in a misleading and
14
factually inaccurate way to establish that Petitioner acted alone in order to obtain
15
a conviction of capital murder and a sentence of death against Petitioner. This
16
misconduct infected the adversarial process so as to deny Petitioner his right to a
17
fair trial and reliable determination of guilt and penalty.
(c) Trial counsel failed to object to, cross-examine the prosecution’s
18
19
experts, and present competent evidence with respect to ballistics testing, shoe
20
print impressions findings, chain of custody, and preservation of physical
21
evidence. Counsel failed to properly challenge the prosecution’s evidence. Had
22
counsel done so, the jury would have known that the evidence was inaccurate and
23
unreliable.
24
(d) Counsel failed to seek a ruling on all grounds of admissibility of
25
the physical evidence, including failure to preserve evidence, Hitch sanctions,
26
and failure to request and obtain jury instructions. Counsel failed to present
27
evidence to establish that the State had not proven Petitioner’s guilt beyond a
28
reasonable doubt, nor proven all the elements required to convict Petitioner of the
482
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1
capital charges. Had counsel adequately investigated and presented these
2
defenses, issues and instructions, it is reasonably probable that the jury would
3
have found Petitioner not guilty of capital murder and rendered a sentence less
4
than death.
5
(e) Counsel failed to object to, cross-examine the prosecution’s
6
experts, and present competent evidence to challenge the prosecution’s theories
7
regarding evidence of pattern and how the physical evidence and Solano’s
8
testimony bore on Petitioner’s culpability; and counsel failed to assert proper
9
grounds for severance of counts.
10
(f) Counsel failed to investigate and present guilt phase defenses
11
including Petitioner’s inability to form the requisite mental state. Competent
12
counsel would have investigated and properly determined the evidence of
13
Petitioner’s intoxication, drug usage, as well as his cognitive and mental
14
impairments, his resulting inability to plan, organize, orchestrate, and execute
15
complex motor and intellectual functions, and his impoverished and limited
16
background. Competent counsel would have investigated all available defenses
17
and made a reasoned tactical decision regarding the defense. Had counsel done
18
so, it is reasonably probable that the jury would have determined that Petitioner
19
was not culpable for capital murder and rendered a verdict other than capital
20
murder and a sentence less than death.
21
(g) Counsel failed to properly request and obtain necessary jury
22
instructions on all matters raised above, and other material including but not
23
limited to Petitioner’s appearance at trial in shackles, improper inference of
24
consciousness of guilt by Petitioner not removing his sunglasses, and failure of
25
the evidence.
26
27
(h) The cumulative errors that occurred at the guilt trial were due to
counsel’s ineffectiveness.
28
483
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1
1347. The resulting failure of counsel to subject the case against Petitioner
2
to a constitutionally acceptable adversarial process denied him effective
3
assistance of counsel and the full panoply of federal and state constitutional rights
4
to which he is entitled under the First, Fourth, Fifth, Sixth, Eighth, and
5
Fourteenth Amendments to the United States Constitution and their California
6
analogues.
7
1348. In addition, the denial of his right to effective assistance of counsel
8
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
9
unfair, eroded the reliability of the verdict and had a substantial and injurious
10
effect on the verdict. But for the denial of this right, it is reasonably probable that
11
a more favorable result would have been attained. Under these circumstances,
12
the adversarial system completely broke down, and Petitioner was left without
13
meaningful representation. Although many of trial counsel’s errors were, by
14
themselves, so egregious as to require reversal, the extraordinary accumulation of
15
errors and omissions over the course of the trial created a total breakdown in the
16
adversarial process, so that prejudice is conclusively presumed. United States v.
17
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
18
(1984). Even assuming a showing of prejudice is required, Petitioner has made
19
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
20
L. Ed. 2d 674 (1984).
21
CLAIM 18:
22
COUNSEL’S INEFFECTIVE ASSISTANCE AT THE GUILT AND
23
PENALTY PHASES: SOCIAL HISTORY AND MENTAL HEALTH
24
1349. Petitioner’s confinement, convictions, and death sentences are illegal
25
and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments
26
of the United States Constitution, because he was denied the effective assistance
27
of counsel at the guilt and penalty phases of his trial. The performance of
28
Petitioner’s counsel fell below reasonable standards of representation, to
484
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1
Petitioner’s prejudice, in that counsel failed to exercise the skill, judgment and
2
diligence expected of a reasonably competent criminal defense lawyer in
3
investigating the case, preparing for trial, retaining, preparing, and presenting
4
defense experts, challenging the prosecution’s evidence, and presenting evidence
5
and a defense at both phases of his trial. Rompilla v. Beard, 545 U.S. 374, 125 S.
6
Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.
7
Ct. 2527, 156 L. Ed. 2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 694;
8
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
9
1350. Exhaustion of the claim: This claim was fairly presented to the
10
California Supreme Court in Section XVIII of the June 2004 petition for writ of
11
habeas corpus, although it includes additional factual allegations. Petitioner will
12
present the claim with the additional factual allegations to the California Supreme
13
Court in an exhaustion petition he will file no later than March 17, 2009.
14
1351. In support of this claim, Petitioner alleges the following facts,
15
among others to be presented after full discovery, investigation, adequate
16
funding, access to this Court’s subpoena power, and an evidentiary hearing.
17
1352. Those facts and allegations set forth in the petition, declarations,
18
claims of constitutional violations, and the accompanying exhibits are
19
incorporated by reference as if fully set forth herein to avoid unnecessary
20
duplication of relevant facts.
21
1353. Trial counsel provided constitutionally deficient performance
22
throughout Petitioner’s trial proceedings. Trial counsel improperly failed to
23
conduct a comprehensive inquiry into the events and circumstances of
24
Petitioner’s childhood, life, and family history, as well as Petitioner’s long-
25
standing history of neurological, cognitive, psychological, and psychiatric
26
impairments. A thorough and competent investigation would have developed
27
crucial evidence and information, and counsel’s failure to conduct such an
28
investigation infected their representation of Petitioner throughout the
485
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1
proceedings and prevented counsel from (a) obtaining and presenting a complete
2
mental state evaluation; (b) developing and presenting mental state and other
3
defenses to the guilt-phase charges, including Petitioner’s incompetence to stand
4
trial and to waive his rights; (c) developing and presenting significant mitigating
5
evidence at the penalty phase; and (d) discharging their constitutional and ethical
6
obligations to provide Petitioner with informed, competent advice.
7
1354. Trial counsel improperly failed to research and otherwise educate
8
themselves about the medical, neurological, psychological, psychiatric, and legal
9
issues necessary to competently advise Petitioner and to investigate, develop, and
10
present evidence and information concerning Petitioner’s background, social and
11
family history, and his significant cognitive, neurological, psychological, and
12
psychiatric impairments.
13
1355. Trial counsel improperly failed to retain and consult with
14
appropriate medical, mental health, and other experts. Trial counsel failed to
15
provide retained experts with information and evidence necessary to obtain
16
crucial expert opinions, including a thorough and competent mental health
17
evaluation of Petitioner. The assistance of a psychiatrist is crucial to a capital
18
defendant’s ability to marshal a defense to the charges and in mitigation of
19
sentence. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 84 L. Ed. 2d 53
20
(1985). Unlike lay witnesses, psychiatrists can identify the “elusive and often
21
deceptive” symptoms of mental illness. “[P]sychiatrists gather facts, through
22
professional examination, interviews, and elsewhere, that they will share with the
23
judge or jury; they analyze the information gathered and from it draw plausible
24
conclusions about the defendant’s mental condition, and about the effects of any
25
disorder on behavior; and they offer opinions about how the defendant’s mental
26
condition might have affected his behavior at the time in question.” Id. at 80.
27
1356. Trial counsel improperly failed to recognize, competently
28
investigate, develop, and present to the trial court and to the jury evidence
486
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1
pertaining to Petitioner’s family and social history and his significant medical,
2
neurological, cognitive, psychological, and psychiatric impairments. Counsel
3
improperly failed adequately to prepare and consult with lay witnesses and
4
qualified experts with regard to these topics. Counsel improperly failed to
5
present expert or lay testimony with regard to these topics: among other failures,
6
counsel failed to challenge Petitioner’s competence to stand trial and to waive his
7
rights; failed to present mental health and other available defenses to the charges
8
at the guilt-phase of his trial; failed to present to the sentencing jury significant
9
mitigating evidence; failed to provide Petitioner constitutionally and ethically
10
11
required competent advice.
1357. Trial counsel’s failings constituted an abandonment of Mr. Ramirez
12
and ineffective assistance of counsel. And, but for this ineffective assistance, it is
13
reasonably probable that the jury would have returned more favorable verdicts at
14
the guilt- and penalty-phases of his trial.
15
1358. Trial counsel’s performance prior to and during the trial fell below
16
the standard of care that reasonably competent attorneys would have provided
17
and that the Sixth Amendment commands. Trial counsel’s deficient performance
18
prejudiced Petitioner because, had trial counsel performed competently,
19
Petitioner would have been found incompetent to stand trial and have been
20
provided with a powerful and compelling defense at both the guilt and penalty
21
phases. The result of the trial would have been more favorable to Petitioner but
22
for counsel’s deficient performance. The evidence that counsel failed to
23
investigate, develop, and present demonstrated that Petitioner was incompetent to
24
stand trial and to waive his rights and explained Petitioner’s behavior, provided a
25
basis for Petitioner’s acquittal or reduced culpability and established that he
26
should not be sentenced to death.
27
1359. Counsel’s failures impaired the representation they gave to
28
Petitioner, and the fundamental fairness of the trial he received, on numerous
487
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1
occasions and with respect to numerous issues throughout the guilt and penalty
2
phases of his trial. These issues include but are not limited to the following:
3
Petitioner’s mental state at the times of the charged offenses; Petitioner’s lack of
4
competency to waive rights, his inability to assist counsel and to stand trial; the
5
waiver of powerful mitigation case at penalty phase; effective challenges to the
6
prosecution’s case at guilt and penalty phases; and effective voir dire of jurors.
7
1360. Trial counsel’s errors and omissions denied Petitioner the right to
8
present a defense and to present all relevant evidence; the right to cross-examine
9
and confront witnesses; the privilege against self-incrimination; the right to a jury
10
determination of every material fact; the right to compulsory process; the right to
11
a reliable, rational, and accurate determination of guilt, death-eligibility and
12
death-worthiness, free from any constitutionally unacceptable risk that those
13
determinations were the product of bias, prejudice, arbitrariness or caprice; the
14
right to be subjected to the death penalty only if reliable evidence was properly
15
introduced proving that Petitioner was death-eligible and death-worthy; the right
16
to a trial free of intentionally, demonstrably or inferentially false inculpatory
17
evidence; the right to the effective assistance of counsel; the right to due process
18
and the equal protection of law; and the right to a fair trial and to a reliable and
19
appropriate penalty as guaranteed by the Fourth, Fifth, Sixth, Eighth, and
20
Fourteenth Amendments.
21
A.
Trial Counsel Failed to Adequately and Competently Investigate,
22
Develop, and Present Petitioner’s Life History and Evidence of
23
Petitioner’s Significant Cognitive, Neurological, Psychological, and
24
Psychiatric Impairments
25
1361. According to Marilyn Cornell, a licensed Marriage and Family
26
Therapist who prepared a social history in Petitioner’s post-conviction
27
case:
28
488
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1
[Petitioner’s] development as an infant, child, and adolescent was severely and
2
adversely affected by poverty, neglect, physical and emotional deprivation and
3
abuse, exposure to violence, family dysfunction and instability, lack of parental
4
supervision, guidance and protection, trauma, and a host of cognitive, emotional,
5
environmental, psychological, neuropsychological, and psychiatric impairments.
6
(Ex. 32, Declaration of Marilyn Cornell, M.F.T., dated 06/16/2004, ¶ 88.)
7
1362. As described by Dr. Jane Wells, J.D., Ph.D., who evaluated
8
Petitioner at the request of state post-conviction counsel: Petitioner’s background
9
severely impaired his overall functioning. According to Dr. Wells, Petitioner
10
suffered from:
11
(1) a childhood characterized by extreme poverty, physical and
12
emotional neglect, physical and emotional abuse, and overall
13
deprivation; (2) a gross and persistent absence of parental attention,
14
guidance, affection, and protection due in part to his parents’ lack of
15
education and their impoverished lifestyle that resulted in a
16
pervasive pattern of neglect and left Petitioner on his own much of
17
the time; (3) a serious brain impairment of early origin known at the
18
time of trial; (4) a psychotic disorder that was evident and diagnosed
19
and/or diagnosable at the time of trial; (5) serious mood disorders
20
that often accompany psychosis with components of both mania and
21
depression that was treatable at an early age but that went untreated;
22
(6) early use with side effects of phenobarbital, exposure to illegal
23
depressants, stimulants and hallucinogens during Petitioner’s critical
24
formative years; (7) early childhood exposure to criminal activity by
25
Petitioner’s brothers and other adults; (8) childhood exposure to
26
violence and trauma, including extremely traumatic events outside
27
the range of normal human experience, including witnessing the
28
aftermath of the shooting death of his cousin’s wife; and finally (9)
489
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1
commitment as a teenager to the Texas Youth Council and long-term
2
confinement while awaiting trial on capital charges in the Los
3
Angeles County Jail, where the inadequate staffing, programming,
4
and other adverse conditions of confinement resulted in institutional
5
failure to address and provide appropriate intervention and
6
treatment.
7
(Ex. 43, Declaration of Dr. Jane Wells, J.D., Ph.D., dated 05/19/2004, ¶ 46.)
8
1363. Petitioner’s trial counsel, however, failed to adequately and
9
competently investigate, develop, and present such evidence concerning
10
Petitioner’s life history and his significant cognitive, neurological, psychological
11
and psychiatric impairments. Competent investigation was necessary to
12
formulate a competent theory of the case at guilt and penalty, to adequately
13
prepare mental health professionals in order to obtain competent and reliable
14
diagnoses, to meaningfully and adequately voir dire jurors, to competently
15
challenge jurors for cause and exercise peremptory challenges, and to present a
16
constitutionally adequate defense in all phases of the trial, including challenging
17
Petitioner’s competence to stand trial. Competent counsel would have
18
recognized, investigated, developed, and presented to the court and to the jury, at
19
the guilt and penalty phases of Petitioner’s trial, evidence including, but not
20
limited to, the following:
21
1364. Petitioner incorporates herein, as though fully set forth, the
22
declarations of Robert Schneider, M.D.; William Vicary, M.D.; Dietrich Blumer,
23
M.D.; Marilyn Cornell, M.F.T.; Mercedes Ramirez, Julian Ramirez, Jr., Ignacio
24
Ramirez, Robert Ramirez, Rosario Ramirez, Katharine Baur, A.C.S.W., Dale
25
Watson, Ph.D., Jane Wells, J.D., Ph.D., Steve Strong, Howard Kessler, Ph. D;
26
Anne Evans, Ph.D., Cynthia Melendez, Edward Milam, David Palacios, Patricia
27
Kassfy, Elizabeth Duenas, and Gilbert Flores; the reports of Myla H. Young,
28
490
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1
Ph.D., and George Woods, M.D.; and the letter from Victor Henderson to Daniel
2
Hernandez, dated May 29, 1987.
3
1.
Family Background
4
1365. Petitioner was born into an impoverished family on February 28,
5
1960, in El Paso, Texas. (Ex. 55, Birth Certificate of Richard Ramirez; Ex. 69,
6
Declaration of Mercedes Munoz Ramirez, dated 06/2004, ¶ 6; Ex. 67, Declaration
7
of Julian Ramirez, Jr., dated 04/30/2004, ¶ 2; Ex. 102, Declaration of Ignacio
8
Ramirez, dated 12/13/2008, ¶ 2; Ex. 32, M. Cornell Dec., ¶ 49.)
9
1366. Petitioner’s father, Julian Ramirez, Sr., was born in 1927, in
10
Carmargo, Mexico. Petitioner’s mother, Mercedes Ramirez, was born in 1927, in
11
Rocky Ford, Colorado. When she was ten years old, her family moved to
12
Carmargo, Mexico, where she later met Julian Ramirez, Sr. Petitioner’s parents
13
traveled from Camargo, Mexico, to Cuidad Juarez, Mexico, in the 1940’s, where
14
they married. In 1951, they moved across the border to El Paso. (Ex. 32, M.
15
Cornell Dec., ¶¶ 10, 14, 15; Ex. 69, M. Ramirez Dec., ¶ 1.)
16
1367. Petitioner’s father had a first-grade education and no significant job
17
skills when he entered the United States. After his arrival in the United States, he
18
struggled to find regular, full-time employment; for some periods he was unable
19
to find work, and, at other times, could only find part-time work. He worked
20
various jobs, including construction, and at the Tony Lama boot factory and the
21
ASARCO oil refinery. He eventually found employment with the Santa Fe
22
Railroad, where he worked installing ties and tracks. He worked for the Santa Fe
23
Railroad at the time of Petitioner’s birth. Mr. Ramirez’s job with the railroad
24
frequently kept him away from home for long periods of time; it was not unusual
25
for him to be gone for days at a time or longer. Julian Ramirez ultimately worked
26
for the Santa Fe Railroad for nearly 40 years, retiring in 1990. He died from
27
cancer in 1991. (Ex. 32, M. Cornell Dec., ¶¶ 14-19; Ex. 69, M. Ramirez Dec., ¶
28
1; Ex. 103, M. Ramirez Dec., ¶ 3; Ex. 103, I. Ramirez Dec., ¶ 2; Ex. 105,
491
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1
Declaration of Rosario Ramirez, dated 11/25/2008, ¶ 6; Ex. 104, Declaration of
2
Robert Ramirez, dated 11/19/2008, ¶ 2.)
3
1368. Petitioner’s mother had a fifth-grade education and no significant
4
job skills when his parents moved to El Paso. She worked for a while as a
5
domestic, cleaning homes. Later she found full-time employment at the Tony
6
Lama boot factory. Ms. Ramirez worked at Tony Lama while she was pregnant
7
with Petitioner. (Ex. 32, M. Cornell Dec., ¶¶ 15, 20-21; Ex. 69, M. Ramirez
8
Dec., ¶¶ 4-5; Ex. 102, I. Ramirez Dec., ¶ 3 .)
9
1369. Generally, Ms. Ramirez worked eight hours a day, five days a week.
10
The working conditions were very difficult. Other than lunch breaks, she spent
11
all day on her feet. She typically did not use the restroom all day, because the
12
restrooms at the plant did not provide privacy from the male workers. Her job
13
involved polishing, shining, and treating the leather boots with various chemicals,
14
dyes, paints, paint thinners, rubber cement, and glue. Her fingers were nearly
15
always stained black, and the dyes and paints were nearly impossible to wash off
16
her skin. She was not provided gloves, masks, or eye protection, and the factory
17
was poorly ventilated. The fumes from the chemicals in the factory often made
18
her dizzy and nauseated, and she suffered headaches. (Ex. 32, M. Cornell Dec.,
19
¶¶ 20-21; Ex. 69, M. Ramirez Dec., ¶ 4; Ex. 103, M. Ramirez Dec., ¶¶ 5-6.)
20
1370. While she was pregnant with Petitioner, Ms. Ramirez suffered
21
nausea, headaches, and dizziness from the fumes at the factory, and, as a result,
22
she consulted a medical specialist. The doctor advised her to take some time off
23
from work; he told her that continuing to work might harm her and her unborn
24
child. She was able to take two months off from work just before Petitioner’s
25
birth. She also took forty days off from work after he was born. Despite the
26
terrible working conditions, she had no choice but to continue to work at the
27
factory because her family needed the money. (Ex. 32, M. Cornell Dec., ¶ 21;
28
Ex. 103, M. Ramirez Dec., ¶¶ 5-6.)
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2
3
1371. Richard was the youngest of five children born to Julian and
Mercedes Ramirez.
1372. Petitioner’s brother, Julian Ramirez, Jr., was born on June 10, 1950.
4
He was born with a large bump behind his left ear, and doctors were not sure he
5
would live. He remained hospitalized for nearly one month after his birth. Even
6
after he was released, his mother frequently had to take him to a clinic for
7
treatment of the growth. Growing up, Julian, Jr., had problems with his studies at
8
school and had to attend special education classes in high school. Intelligence
9
testing administered at school indicated that Julian, Jr.’s I.Q. met the diagnostic
10
criterion for mental retardation, and he was classified as the educable mentally
11
retarded. He was sexually abused by a special education teacher. Julian, Jr.,
12
began getting in trouble with the law when he was a teenager. Julian, Jr., became
13
addicted to heroin and dropped out of high school after sustaining a knife wound
14
that disabled the use of one arm. He is a life-long heroin addict, who has been in
15
and out of jail, mostly on drug-related offenses. (Ex. 32, M. Cornell Dec.,¶¶ 22-
16
23-24; Ex. 67, J. Ramirez Dec., ¶¶ 4-6; Ex. 103, M. Ramirez Dec., ¶¶ 9-10; Ex.
17
105, Rosario Ramirez Dec., ¶ 3; Ex. 105, School Records of Julian Ramirez, Jr.)
18
1373. Petitioner’s brother, Ignacio Ramirez, was born May 31, 1951.
19
Although he appeared healthy at birth, when he began to learn to walk his parents
20
realized Ignacio had health problems. He suffered painful bone deformities in his
21
legs and ankles that required frequent doctor visits and numerous surgeries,
22
throughout his childhood and adolescence and even into adulthood. Ignacio
23
underwent surgery every summer from the age of five to the age of eighteen. The
24
surgeries often involved painful, lengthy recovery periods. Ignacio was forced to
25
wear special shoes and braces for much of his childhood, and walking was always
26
difficult for him. His leg was amputated a few years ago. Intelligence testing
27
administered at school indicated that Ignacio’s I.Q. met the diagnostic criterion
28
for mental retardation. The same special education teacher who sexually abused
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his brothers Julian, Jr., and Robert, visited Ignacio at home while his parents were
2
at work and once visited him in the hospital following one of his surgeries. The
3
teacher did not sexually abuse Ignacio. (Ex. 32, M. Cornell Dec., ¶ 26; Ex. 103,
4
M. Ramirez Dec., ¶ 12; Ex. 102, I. Ramirez Dec., ¶¶ 7-8, 15; Ex. 105, Rosario
5
Ramirez Dec., ¶ 4; Ex. 109, School Records of Ignacio Ramirez.)
6
1374. Petitioner’s brother, Robert Ramirez was born December 1, 1953.
7
When Mercedes Ramirez was pregnant with Robert, Julian Ramirez, Sr., had
8
been laid off from work, and the family worried about making ends meet. Robert
9
had difficulty learning to speak, and he was unable to form words clearly. He
10
also had problems understanding things. Robert attended special education
11
classes at school. Intelligence testing administered at school indicated that
12
Robert’s I.Q. met the diagnostic criterion for mental retardation, and he was
13
classified as the educable mentally retarded. Robert was sexually abused by the
14
same special education teacher who sexually abused his older brother Julian, Jr.
15
Robert began getting into trouble with the law when he was a teenager. Robert
16
dropped out of school in the tenth grade. He was convicted of theft and other
17
crimes, and, at the age of eighteen was incarcerated for approximately two years.
18
Thereafter, his life continued to be unstable. Robert has been diagnosed with
19
bipolar disorder and schizophrenia. (Ex. 32, M. Cornell Dec.,¶ 26; Ex. 103, M.
20
Ramirez Dec., ¶ 13; Ex. 104, Robert Ramirez Dec., ¶¶ 15, 17, 19; Ex. 105,
21
Rosario Ramirez Dec., ¶ 5; Ex. 107, School Records of Robert Ramirez.)
22
1375. Petitioner’s sister, Rosario (“Rosa”) Ramirez was born February 6,
23
1955. Rosa and Petitioner were always very close, from the time that Petitioner
24
was a young boy. Petitioner followed Rosa everywhere she went. Rosa was like
25
a second mother to Petitioner and often cared for him while his parents were
26
away at work. When Rosa got married, Petitioner, who was then around 13, was
27
very depressed and afraid because she was leaving. He was so upset that he
28
would not allow anyone to photograph him at the wedding. Petitioner eventually
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1
moved in with Rosa and her husband, before he moved to California. (Ex. 32, M.
2
Cornell Dec.,¶ 30; Ex. 103, M. Ramirez Dec., ¶ 14.)
3
1376. Petitioner, as a young boy, was a happy and seemingly healthy child,
4
who was sweet natured and loved music and animals. He was something of a
5
loner, more likely to play alone than with other children. He was quiet as a
6
young boy and never a trouble maker. (Ex. 103, M. Ramirez Dec., ¶¶ 15, 18; Ex.
7
102, I. Ramirez Dec., ¶ 16.)
8
9
1377. Petitioner’s upbringing, however, was characterized by parental
neglect and a lack of adult supervision. To make ends meet, both of his parents
10
worked and were frequently absent from the home. For a few years, until
11
Petitioner was three years old, his parents employed a young girl to watch him,
12
while his mother was at work. From the time that Petitioner was three or four
13
years old, when his parents were at work, the children were left unsupervised.
14
Lacking adult supervision, he and his siblings engaged in wild horseplay in and
15
around the home and had to fend for themselves. And, even when his parents
16
were not at work, Petitioner’s siblings required most of their attention and care.
17
His brother Ignacio, in particular, given his severe medical needs, received most
18
of their parents’ love and concern. Even Ignacio, however, at the age of eleven,
19
had to take himself to the hospital for one of his surgeries, because his mother
20
could not afford to take time off from work. His brothers Julian, Jr., and Robert,
21
too, with their difficulties in school and, later, their problems with the law,
22
worried their parents and absorbed the little time they had outside of work. (Ex.
23
32, M. Cornell Dec., ¶¶ 59-63, 67; Ex. 103, M. Ramirez Dec., ¶ 12; Ex. 104,
24
Robert Ramirez Dec., ¶ 2; Ex. 105, Rosario Ramirez Dec., ¶¶ 6-7; Ex. 102, I.
25
Ramirez Dec., ¶¶ 2-6, 12, 13; Ex. 68, I. Ramirez Dec., ¶ 3.)
26
1378. Petitioner and his siblings were also subjected to physical abuse by
27
Julian Ramirez, Sr., who was a very strict father and who had a violent temper.
28
Julian Ramirez, Sr., once became so enraged while trying to fix the kitchen sink
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1
that he hit himself repeatedly in the head with a hammer; on another occasion,
2
when attempting to repair the brakes on a car, he became so frustrated that he
3
kicked the jack, knocking the car to the ground. Julian Ramirez, Sr., beat his sons
4
(except for the disabled Ignacio); he hit them with a water hose, electrical cords,
5
and belts. He beat Petitioner many times, hard enough to leave bruises on
6
Petitioner’s legs. He once brandished a gun at his son Robert. (Ex. 32, M.
7
Cornell Dec., ¶¶ 64, 69; Ex. 104, Robert Ramirez Dec., ¶¶ 2-4; Ex. 105, Rosario
8
Ramirez Dec., ¶ 13; Ex. 102, I. Ramirez Dec., ¶ 13.)
9
1379. Petitioner was also subjected to the abusive and neglectful treatment
10
of his older brothers. Petitioner’s brother Julian, Jr., abused Petitioner when he
11
was a young child, and Petitioner’s sister Rosa tried to protect him from the
12
brothers’ abuse. Petitioner’s sister sought to care for him and protect from his
13
older brothers. After Rosa left home, she allowed Petitioner to stay at her home.
14
Rosa knew that Petitioner was having difficulties at home as well as at school.
15
(Ex. 32, M. Cornell Dec., ¶ 59; Ex. 67, J. Ramirez, Jr. Dec., ¶ 7; Ex. 70, Rosario
16
Ramirez Dec., ¶ 2.)
17
1380. Petitioner attended school in El Paso, where records show that he
18
had a history of learning problems. Petitioner attended Lincoln Elementary
19
School from 1966 to 1970. (Ex. 56, Cumulative School Records of Richard
20
Ramirez.) In 1970, Petitioner attended Cooley Elementary School and his grades
21
began to decline. When he attended Henderson Junior High School in 1972,
22
Petitioner experienced serious learning problems. He was unable to read or solve
23
mathematical problems at the eighth grade level. His grades suffered and he
24
began to stay away from his classes. He first experienced difficulties with law
25
enforcement in 1974, when he was 14 years old. Petitioner attended Jefferson
26
High School in 1975, but was unable to finish the ninth grade. He was found
27
truant and eventually left school followed by his commitment to Texas Youth
28
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Council on March 17, 1977. (Ex. 56, Cumulative School Records of Richard
2
Ramirez; Ex. 60, Texas Youth Council Records re: Richard Ramirez.)
3
2.
4
1381. Petitioner was exposed to multiple traumas and “suffered a
5
significant history of physical and psychological trauma, beginning as a young
6
child. (Ex. 32, M. Cornell Dec., ¶ 54.) “He received no treatment or help of any
7
kind for the lengthy pattern of traumatic experiences he had endured. Institutions
8
responsible for Petitioner’s care . . . ignored his disturbed background and
9
consistently failed to provide necessary treatment.” (Id.)
10
Experience with Injury, Trauma, and Violence
1382. In addition to the physical abuse that he suffered at the hands of his
11
father and older brothers, described above, examples of injuries, trauma, and
12
violence that Petitioner experienced include the following:
13
1383. At age three, Petitioner climbed up on a dresser to turn on a radio
14
that was too high for him to reach. The dresser and other objects fell on him,
15
hitting him on the back of the head and cutting his face. He bled profusely. His
16
mother rushed him to the hospital, where he was treated for a bump on the back
17
of his head and a large gash. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M.
18
Ramirez Dec., ¶ 16; Ex. 102, I. Ramirez Dec., ¶ 18.)
19
1384. At age six, Petitioner was knocked unconscious when he was hit in
20
the head by a swing. He was unconscious for a long period of time and had a
21
large cut on his forehead that bled profusely. His mother rushed him to the
22
emergency room, where doctors treated a large gash on his head that required six
23
or seven stitches to close. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M. Ramirez
24
Dec., ¶ 17; Ex. 105, Rosario Ramirez Dec., ¶ 8; Ex. 102, I. Ramirez Dec., ¶ 19.)
25
1385. When Petitioner was seven or eight years old, his older brother,
26
Julian Ramirez, Jr., was stabbed in an altercation. Friends rushed him to the
27
hospital and then came to Petitioner’s home to inform his family. Petitioner’s
28
parents went to the hospital, leaving Robert, Ignacio, Rosario, and Petitioner at
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home. Petitioner ran out to look at the car in which Julian Jr. had been
2
transported to the hospital. The inside of the car was soaked with blood,
3
including pools of blood on the floor of the car. Petitioner was very frightened
4
and disturbed by what he saw and deeply affected by his brother’s injuries when
5
Julian, Jr., returned from the hospital. Julian, Jr., lost full use of his arm as a
6
result of his injuries. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M. Ramirez Dec., ¶
7
17; Ex. 104, Robert Ramirez Dec., ¶ 8; Ex. 105, Rosario Ramirez Dec., ¶ 3; Ex.
8
102, I. Ramirez Dec., ¶ 23.)
1386. Each summer, Petitioner witnessed his brother Ignacio go to the
9
10
hospital for leg surgery and return home for lengthy recuperation following the
11
painful operations. Petitioner worried about his brother and was frightened and
12
devastated by these events. (Ex. 103, M. Ramirez Dec., ¶ 12; Ex. 15, I. Ramirez
13
Dec., ¶¶ 2, 4; Ex. 105, Rosario Ramirez Dec., ¶ 4; Ex. 102, I. Ramirez Dec., ¶¶ 9-
14
11.)
15
1387. When Petitioner was young, his brother Robert was incarcerated for
16
about a year and a half. Petitioner was extremely upset, crying and asking his
17
mother to bring Robert home. (Ex. 103, M. Ramirez Dec., ¶ 13.)
18
1388. In the fifth grade, Petitioner was hit by a car while riding his bicycle.
19
He was knocked hard to the pavement and was unconscious for a minute or two.
20
Bystanders called an ambulance, and Petitioner suffered a large bump on his head
21
and a concussion. Also in the fifth grade, Petitioner suffered a blow to the head
22
while playing football, sustaining a concussion. (Ex. 32, M. Cornell Dec., ¶ 54;
23
Ex. 125, Declaration of Edward Milam, dated 11/2008, ¶¶ 7, 9.)
24
1389. At age 13 or 14, Petitioner was injured jumping from a moving train.
25
He climbed on the train while it was stationary, and when it began to move, not
26
sure when or when it would stop, he jumped, injuring his back and legs.
27
Petitioner refused to go to the doctor. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103,
28
M. Ramirez Dec., ¶ 21.)
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1390. Petitioner was exposed to extreme levels of violence through his
2
cousin Miguel Valles. Petitioner spent a lot of time with Valles, after Valles
3
returned home from military service in Viet Nam. Petitioner was then twelve or
4
thirteen years old. Valles filled Petitioner’s head with stories of rape, violence,
5
torture, murder, and other atrocities that he claimed to have witnessed or
6
participated in while in Viet Nam. Valles claimed to have brought back a bag of
7
shrunken heads that he said were the remains of persons he killed. He showed, or
8
described, to Petitioner photographs that he claimed to have brought back from
9
Viet Nam – photographs that depicted Valles and others participating in rape,
10
violence, torture, murder, and other atrocities against Vietnamese prisoners.
11
Valles sexualized the atrocities he described to Petitioner. Petitioner was
12
extremely upset after he spent time with Valles, however, Valles remained a
13
strong influence on Petitioner. Petitioner’s parents tried to prevent Petitioner
14
from spending time with Valles, but were unsuccessful. (Ex. 32, M. Cornell
15
Dec., ¶ 54; Ex. 69, M. Ramirez Dec., ¶ 7; Ex. 103, M. Ramirez Dec., ¶ 22; Ex.
16
105, Rosario Ramirez Dec., ¶ 17; Ex. 102, I. Ramirez Dec., ¶ 26.)
17
1391. When Petitioner was thirteen years old, Valles shot and killed his
18
wife – in front of Petitioner. Valles was arrested and charged in the killing.
19
Petitioner witnessed the shooting, and, later, after Valles had been arrested,
20
returned to and observed the blood-soaked crime scene. Petitioner was
21
traumatized by the event, upset and frightened. Following his arrest, Valles was
22
found incompetent to stand trial and was hospitalized at a mental health facility.
23
He was later found criminally liable for the death of his wife, but served little
24
time in prison, having spent significant time awaiting trial, committed to a mental
25
facility. Vallles was diagnosed with schizophrenia. (Ex. 32, M. Cornell Dec., ¶
26
54; Ex. 103, M. Ramirez Dec., ¶ 23; Ex. 105, Rosario Ramirez Dec., ¶ 18; Ex.
27
125, E. Milam Dec., ¶ 11.)
28
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1392. When Petitioner was approximately fourteen or fifteen years old, his
2
sister’s husband frequently stole through the neighborhood late at night, spying in
3
people’s windows and trying to catch women undressing. Her husband derived
4
sexual gratification from the spying, and he sometimes took Petitioner with him.
5
(Ex. 105, Rosario Ramirez Dec., ¶ 19.)
1393. When Petitioner was approximately sixteen years old, he was a
6
7
passenger in a car driven by one of his good friends. The car was in an accident,
8
and the driver was impaled and killed. Petitioner witnessed his friend’s death and
9
was deeply saddened and upset by the event. For four or five months after the
10
accident, Petitioner suffered nightmares and seemed very nervous and scared.
11
(Ex. 32, M. Cornell Dec., ¶ 54; Ex. 103, M. Ramirez Dec., ¶ 24; Ex. 105, Rosario
12
Ramirez Dec., ¶ 16.)
13
1394. At age sixteen, Petitioner was thrown from a horse. He was
14
experimenting with acid (LSD), and he tried to ride the horse while high. The
15
horse threw him, and Petitioner injured his ribs, arm, and head in the fall. He
16
suffered a concussion. (Ex. 32, M. Cornell Dec., ¶ 54; Ex. 102, I. Ramirez Dec.,
17
¶ 20.)
18
1395. Having been repeatedly traumatized in his childhood and
19
adolescence, Petitioner was re-traumatized in jail following his arrest in 1985.
20
Men who have been traumatized in the past and experience any significant degree
21
of psychiatric morbidity are vulnerable to new traumas and with trauma their
22
conditions tend to worsen. (Kupers, M.D. “Trauma and its Sequelae in Male
23
Prisoners: Effects of Confinement, Overcrowding, and Diminished Services,” 66
24
(2) Am. J. Orthopsychiatry, 194 (1996); Ex. 48, County of Los Angeles, County
25
Counsel 06/15/1988 Opinion re: Los Angeles County Jail Overcrowding .)
26
1396. Petitioner’s long history of injuries, trauma, and experience of
27
violence went entirely untreated. This history profoundly affected Petitioner’s
28
development.
500
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3.
2
1397. Petitioner’s parents scraped by raising five children in the Segundo
3
Barrio of El Paso, next to the Juarez border and close to the ASARCO smelting
4
plant. An Environmental Protection Agency (EPA) Superfund Cleanup is
5
underway in El Paso for lead poisoning caused by the long-term presence of the
6
ASARCO smelting plant.104 This was one of the poorest areas in the United
7
States.
8
9
Exposure to Neurotoxins and Other Environmental Risk Factors
1398. As stated above, Petitioner’s mother, Mercedes Ramirez, worked at
the boot factory where she was exposed daily to high levels of toxins and other
10
substances used in curing, dying, manufacture, and finishing of leather.
11
Petitioner’s father worked for a time at the ASARCO plant, and then for the
12
Santa Fe Railroad where he was similarly exposed to high levels of chemicals
13
and other toxic substances in connection with his work. And the family lived
14
near the ASARCO plant.
15
1399. Petitioner, his siblings, and his parents were thus exposed to various
16
neurotoxins, including lead, arsenic, leather tanning chemicals, paint thinner,
17
glue, and other chemicals that his parents unwittingly transported into the family
18
home through their work clothing, shoes, tools, and other implements that they
19
wore and utilized at their respective places of employment. This exposure to
20
neurotoxins was in addition to the neurotoxins that emanated from the ASARCO
21
smelting plant, which was in close proximity to the family home. Petitioner’s
22
family members suffered from symptoms and impairments consistent with
23
exposure to high levels of these chemicals and other neurotoxins, including
24
headaches, neurocognitive deficits and learning disorders, depression and other
25
26
27
28
104
Ex. 49 (Environmental Protection Agency (EPA) Literature on El Paso
Neurotoxins.)
501
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1
psychological and psychiatric impairments, bone disease and cancer. (Exs. 61-
2
70, declarations of Ramirez family members, and birth and death certificates.)
3
1400. It is well-documented that neurotoxins cause impairment to
4
developing brains. “Exposure to . . . lead as a child – even at low levels – can
5
result in neurodevelopmental disorders and lowered IQ’s.” (Ex. 36, Declaration
6
of Howard Kessler, Ph.D., dated 06/16/2004, ¶ 3.) These and other factors likely
7
contributed to Petitioner’s multiple impairments, including but not necessarily
8
limited to genetic markers for Marfan Syndrome (see attachment to Ex. 42, Dr.
9
Dale Watson Declaration, dated 04/24/2004), a genetic predisposition to
10
depression and mood disorders (Ex. 43, J. Wells Dec.), and his lifelong learning
11
disabilities and cognitive, neurological, psychological, and psychiatric
12
impairments.
13
14
15
4.
Petitioner’s Long-Standing History of Neurological, Cognitive,
Psychological, and Psychiatric Impairments
1401. Beginning at age ten, close in time after he sustained a concussion
16
playing football, Petitioner began to suffer epileptic seizures. He suffered at least
17
three convulsive epileptic seizures at school, which prompted school officials to
18
call an ambulance to have Petitioner taken to the hospital, and numerous others
19
outside of school. Petitioner was twice hospitalized at Hospital Hotel Dieu
20
following seizures: once in 1970, at age 10, and once in 1972, at age 12. In 1972,
21
doctors diagnosed him with epilepsy and prescribed Phenobarbital to control the
22
seizures. EEGs administered at the time revealed abnormal results, which
23
confirmed a diagnosis of epilepsy or seizure disorder. Petitioner took the
24
prescribed phenobarbital, which can have significant adverse effects, for
25
approximately a year and a half, before stopping on his own. Petitioner suffered
26
at least twelve serious convulsive epileptic seizure and continued to experience
27
such seizures at least until he was seventeen years old, and, from the age of ten
28
on, he experienced partial or absence epileptic seizures – characterized by brief
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periods of staring into space, unaware of his surroundings – multiple times per
2
day. (Ex. 32, M. Cornell Dec., ¶ 51; Ex. 103, M. Ramirez Dec., ¶ 19; Ex. 104,
3
Robert Ramirez Dec., ¶ 10; Ex. 105, Rosario Ramirez Dec., ¶ 10-11; Ex. 102, I.
4
Ramirez Dec., ¶ 21; Ex. 125, E. Milam Dec., ¶¶ 3-4, 9; Ex. 123, Declaration of
5
Patricia Kassfy, dated 10/28/2008, ¶¶ 3-4; Ex. 121, Declaration of Elizabeth
6
Duenas, dated 10/27/2008, ¶ 3; Ex. 50, Declaration of Robert Schneider, M.D.;
7
Ex. 57, Hospital Hotel Dieu Records re Richard Ramirez.)
8
9
1402. After the seizures, Petitioner’s behavior changed significantly. He
became an insomniac. He became socially withdrawn. He began leaving the
10
house late at night, sometimes staying out all night without telling anyone where
11
he was or what he was doing. His performance at school declined, and eventually
12
he dropped out. He began drinking Coke and eating cookies and candy
13
obsessively. He suffered headaches and paranoid fears. He began to get in
14
trouble with the law and was known in the neighborhood for stealing. And he
15
began to show psychiatric and psychotic symptoms consistent with an organic
16
brain disorder and temporal lobe epilepsy. (Ex. 32, M. Cornell Dec., ¶ 51; Ex.
17
102, M. Ramirez Dec., ¶¶ 20, 25-26; Ex. 105, Rosario Ramirez Dec., ¶ 12; Ex.
18
121, E. Duenas Dec., ¶ 4.)
19
1403. At age 17, Petitioner was committed to the Texas Youth Council.
20
He was evaluated by a psychologist, who concluded Petitioner was unable to
21
separate reality from fantasy, exhibited disorganized thinking, weakness in
22
ideation, depression, and withdrawal. Psychiatric treatment was recommended,
23
but Petitioner never received such treatment. (Ex. 32, M. Cornell Dec., ¶ 75-79;
24
Ex. 60, Texas Youth Council Records re: Richard Ramirez.)
25
1404. Around the age of 19, Petitioner moved to California. After living
26
briefly with his brother, Julian Ramirez, Jr., Petitioner essentially became
27
homeless, living on the streets and failing to care for himself. His family became
28
worried, and his parents and his sister traveled to California to attempt to find
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1
him and bring him home. On one such trip, his sister found him living on the
2
street, but his physical appearance had worsened so significantly that she failed to
3
recognize him initially, (Ex. 103, M. Ramirez Dec., ¶ 28; Ex. 105, Rosario
4
Ramirez Dec., ¶ 22; I. Ramirez Dec., ¶¶ 34-35; Ex. 124, Declaration of Cynthia
5
Melendez, dated 11/24/2008, ¶ 9; Ex. 123, P. Kassfy Dec., ¶ 9.)
6
1405. Also around the age of 19, Petitioner became obsessed with Satan
7
and Satanism. He had developed an interest in Satanism and the occult as early
8
as the ninth grade. But in late adolescence and in his early twenties, he
9
experienced severe delusions, hallucinations, and disorganized, psychotic
10
thoughts concerning Satan as an actual presence in his life, with whom he
11
believed he had a significant personal relationship. After he moved to California,
12
he called his mother and told her that he had met people involved with Satanism
13
who frightened him and that he had seen some scary things – including a lamp
14
moving by itself. At first his experiences frightened him, but over time his
15
psychosis and thought disorder developed and deepened. (Ex. 125, E. Milam
16
Dec., ¶ 12; Ex. 102, M. Ramirez Dec., ¶ 29; Ex. 124, C. Melendez Dec., ¶ 7; Ex.
17
122, Declaration of Gilbert Flores, dated 11/24/2008, ¶¶ 4-5.)
18
5.
History of Significant Drug Use from an Early Age
19
1406. Beginning around the age of thirteen, at approximately the same
20
time he stopped taking the Phenobarbital that doctors had prescribed to control
21
his epileptic seizures, Petitioner began using illegal and potentially unadulterate
22
drugs. From age thirteen on, he smoked marijuana heavily – almost every day,
23
frequently all day. He also began snorting cocaine two or three times a week. At
24
the age of approximately seventeen, he began taking LSD. After he moved to
25
California at age nineteen, Petitioner developed a serious cocaine addiction, using
26
as much as $500 worth of cocaine daily, and he injected the cocaine
27
intravenously. Petitioner’s heavy drug use from such a young age, impaired his
28
development and exacerbated his cognitive, neurological, psychological, and
504
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1
psychiatric impairments. (Ex. 32, M. Cornell Dec., ¶¶ 54, 68-73; Ex. 67, J.
2
Ramirez Dec., ¶ 8; Ex. 103, M. Ramirez Dec., ¶ 23; Ex. 105, Rosario Ramirez
3
Dec., ¶ 21; Ex. 102, I. Ramirez Dec., ¶¶ 31-32; Ex. 126, Declaration of David
4
Palacios, dated 10/27/2008, ¶¶ 5-6; Ex. 125, E. Milam Dec., ¶ 10; Ex. 124, C.
5
Melendez Dec., ¶ 4; Ex. 122, G. Flores Dec., ¶¶ 2-3, 9.)
6
6.
7
8
9
Petitioner’s Mental State at the Time of the Offenses and His
Arrest and Throughout the Trial Proceedings
1407. At the time of the crimes of which Petitioner was convicted and of
his arrest and throughout the trial proceedings, Petitioner suffered severe
10
psychiatric impairments and disorders that rendered him incompetent to stand
11
trial and to waive his rights and that reduced his culpability for the crimes and
12
constituted significant mitigating evidence in favor of a sentence less than death.
13
Competent counsel would have presented to the trial court and to the jury at both
14
phases of Petitioner’s trial mental health evidence including, but not limited to:
15
1408. Shortly after Petitioner’s arrest, in September 1985, William Vicary,
16
M.D., a psychiatrist, briefly examined Petitioner at the request of his counsel at
17
the time the Los Angeles County Public Defender.105 Dr. Vicary found that
18
Petitioner was psychotic, i.e., he suffered mental impairment that
19
interfered with his ordinary functioning. He appeared to be
20
irrational and self-destructive. [He] met the criteria for mental
21
incompetence, . . . in that he did not have the ability to rationally
22
assist counsel in his defense.
23
24
25
(Ex. 41, W. Vicary, M.D., Dec., ¶ 5.)
1409. Only a few months later, on January 19 and 20, 1986, Dietrich
Blumer, M.D., neuropsychiatrist, examined Petitioner at trial counsel’s request
26
27
28
105
Trial counsel provided ineffective assistance of counsel for failing to
obtain, review, follow up on, and fairly present Dr. Vicary’s findings. See infra.
505
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1
and found he suffered from temporal lobe disorder. “[T]here is evidence of a
2
disorder of psychotic proportion . . . .” (Ex. 31, D. Blumer, M.D., Dec., ¶ 10.)
3
1410. Petitioner’s psychosis prevented him from thinking logically or
4
behaving in a rational manner. His judgment was impaired; he could not function
5
rationally. As Dr. Blumer stated:
6
Petitioner suffers from a persistent thought disorder of psychotic
7
degree. His chief delusion consists of the conviction of having an
8
intimate relationship with Satan.
9
....
10
The neurological and psychiatric symptoms of epilepsy are
11
complicated; they require careful treatment and periodic monitoring
12
over a long period of time. Even when the patient no longer
13
experiences complex partial seizures, there is concern that additional
14
symptoms may appear, especially where, as here, the patient has
15
used illicit drugs and no longer takes prescribed medication. It is not
16
uncommon to see patients with temporal lobe epilepsy develop
17
psychotic disorders. Treatment for interictal (the phase free of
18
seizures) psychosis requires effective use of drugs.
19
(Ex. 31, D. Blumer, M.D., Dec., ¶¶ 9, 14; see Blumer, et al., Treatment of
20
Interictal Psychoses, J. Clin. Psychiatry 61:2 (Feb. 2000), attached to Exhibit 31.)
21
1411. Dr. Blumer opined that Petitioner was mentally incompetent and
22
could not assist counsel in his own defense. (Ex. 31, at ¶ 8.) He further opined
23
that Petitioner’s psychotic disorder bore directly on the criminal charges that
24
Petitioner faced, and it would have been vital for the jury to consider such
25
evidence with respect to Petitioner’s state of mind at the time of the crimes, at the
26
time of his arrest, and with respect to sentencing. (Id. at ¶¶ 10, 16.)
27
28
1412. In May 1987, at the request of trial counsel, Dr. Victor Henderson, a
neurologist, examined Petitioner and concluded that he had suffered brain
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1
damage. He informed Daniel Hernandez, Petitioner’s trial counsel, of his
2
findings. (Ex. 96, Henderson letter.)
1413. The opinions of Drs. Vicary, Blumer, and Henderson were known to
3
4
trial counsel. They provided constitutionally deficient performance in failing to
5
present the opinions of those expert to the trial court in support of a motion to
6
determine Petitioner’s competence to stand trial and to waive rights. The
7
opinions of these experts, and the factual bases for those opinions, moreover,
8
would have constituted mental health and other defenses to the charged crimes at
9
the guilt phase and powerful mitigation at the sentencing phase of Petitioner’s
10
trial, and counsel performed deficiently in failing to present such defenses to the
11
jury.
12
1414. Trial counsel also provided constitutionally deficient performance in
13
failing to investigate, develop, and present evidence of Petitioner’s mental illness
14
and impairments that was developed and presented by counsel representing
15
Petitioner in subsequent legal proceedings – criminal trial proceedings in the San
16
Francisco County Superior Court and post-conviction proceedings arising from
17
the Los Angeles case. Evidence such as that obtained by lawyers representing
18
Petitioner in those proceedings could and should have been presented in
19
Petitioner’s proceeding in the Los Angeles County Superior Court.
20
1415. After Petitioner was convicted and sentenced to death in Los
21
Angeles, he was transferred to San Francisco for trial on additional criminal
22
charges arising from an incident that occurred there. San Francisco County
23
Superior Court, Case No. 140188. He was represented by the Office of the
24
Public Defender for the City and County of San Francisco (“SFPD”). His
25
counsel in the San Francisco case conducted the social history and mental health
26
investigation that his counsel in the Los Angeles case failed to undertake. The
27
social history and mental health investigation confirmed and expanded on the
28
opinions of Drs. Vicary, Blumer, and Henderson that Petitioner was psychotic,
507
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1
suffered an organic-based thought disorder of psychotic proportion, had suffered
2
brain damage, and was not competent to stand trial or to waive his rights. Such
3
evidence, which would have been discovered and developed by competent
4
counsel, would have reduced or eliminated Petitioner’s culpability for the
5
charged crimes and would have mitigated sentence in the Los Angeles
6
proceedings.:
7
1416. George W. Woods, M.D., retained by the SFPD, evaluated
8
Petitioner. He diagnosed Petitioner with a severe mental disorder: a Psychotic
9
Disorder due to Temporal Lobe Syndrome, which includes delusions that are both
10
paranoid and erotomanic. Dr. Woods also found that Petitioner exhibited
11
significant compulsive and obsessive behavior. And Dr. Woods concluded that
12
Petitioner suffers significant cognitive deficits, of a kind typically associated with
13
prefrontal, frontal, and temporal areas of the brain. (Ex. 100, Woods Report, at p.
14
1.) He identified a number of symptoms resulting from Petitioner’s disorder that
15
impaired his ability to rationally assist counsel in his defense, including paranoia,
16
impaired concentration, poor attention span, delusional thinking, forced thinking,
17
severe mood swings, inability to analyze and process relevant data, altered
18
sexual interest, limited insight and judgment, and profound depression. As a
19
result of this constellation of impairments, Dr. Woods opined that Petitioner was
20
incompetent to stand trial and to waive rights and that Petitioner’s incompetence
21
dated back to the time of his first contact with the criminal justice system and had
22
impaired his cognitive, intellectual, and emotional functioning since childhood.
23
(Id. at pp. 2, 4, 8.)
24
1417. Dr. Wood’s conclusions are supported by the report of Myla H.
25
Young, Ph.D., who was retained by the SFPD and administered a series of
26
neuropsychological and personality tests to Petitioner. Her diagnostic
27
impressions included: Axis I: Personality Change Due to Epilepsy, Combined
28
Type (Disinhibited, Aggressive, Paranoid Features) and Mood Disorder Due to
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1
Epilepsy, with Depressive Features; Axis III: Epilepsy, partial, with Impairment
2
of Consciousness (Temporal Lobe). (Ex. 98, Young Report, at p. 7.) The
3
neuropsychological testing that she administered revealed particular impairments
4
in tasks of memory and higher cognitive functioning – a pattern similar to that of
5
individuals who have a known history of cognitive impairment secondary to
6
seizure disorder. (Id. at 3-4.) Petitioner’s impairments in those areas suggest that
7
he experiences brain impairment that affects his abilities for judgment, planning
8
ahead, anticipating consequences of his behavior, and modulating his impulses.
9
The personality testing that she administered revealed that Petitioner suffers
10
severe, painful depression, pervasive anger, and unmodulated, impulsive
11
emotionality and indicated that he tends to become lost in an internal world that is
12
perceptually inaccurate; at times that is grossly distorted; and at times reaches
13
delusional proportions. (Id. at 7.)
14
1418. The SFPD also retained Anne Evans, Ph.D., who evaluated
15
Petitioner and who administered neuropsychological and personality tests. Dr.
16
Evans concluded, consistent with the findings of Drs. Vicary, Blumer,
17
Henderson, Woods, and Young, that Petitioner suffers from a serious mental
18
disorder of long standing. (Ex. 72, A. Evans Dec., at pp. 4-5.) She believed it
19
likely that his impairments related to his temporal lobe system, noting that the
20
constellation of symptoms and behaviors are consistent with an organically based
21
syndrome such as seizure disorder. (Id. at pp. 32-33.) Dr. Evans opined that he
22
suffers paranoid delusions, that his thinking is severely psychotic, disturbed,
23
disorganized, and fragmented; his perceptions are markedly inaccurate; he is
24
seriously out of touch with reality, distorting the meaning of what is going on
25
around him; and he is unable to modulate his behavior or control his responses
26
(Id. at pp. 7, 10, 31.) Dr. Evans further opined that Petitioner suffers intense
27
mood swings and long-standing depression. (Id. at pp. 8.) She concluded that he
28
was not competent to assist counsel in a rational manner and not competent to
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1
stand trial or waive rights and that his incompetence dated back at least to his first
2
contact with the criminal justice system in 1985 and that his mental problems
3
have been of a long-standing and severe nature. (Id. at pp. 11, 12, 14, 31, 34.)
4
1419. Petitioner’s mental illness and other mental impairments, evidence
5
of which lawyers at the SFPD discovered and developed, rendered him
6
incompetent to stand trial in the San Francisco County Superior Court case. For
7
that reason, proceedings there were stayed indefinitely in 1995, and he was never
8
brought to trial. Petitioner’s counsel in the Los Angeles proceeding could and
9
should have developed and presented the same evidence, to challenge Petitioner’s
10
competence and to raise guilt- and penalty-phase defenses, and their failure to do
11
deprived him of the effective assistance of counsel.
12
1420. State post-conviction counsel in the instant proceedings retained two
13
additional mental health experts, Dale Watson, Ph.D., and Jane Wells, J.D.,
14
Ph.D., who evaluated Petitioner and opined that he suffers significant mental
15
illness and other impairments. Their opinions, again, are consistent with, and
16
corroborate and expand upon, the previous opinions of Drs. Vicary, Blumer,
17
Henderson, Woods, Young, and Evans. Again, Petitioner’s Los Angeles County
18
trial counsel performed deficiently in failing to investigate, develop, and present
19
this mental health evidence to the trial court and the jury.
20
1421. Dale Watson, Ph.D., is a neuropsychologist who examined Petitioner
21
and administered neuropsychological testing at the request of state post-
22
conviction counsel and determined that Petitioner is severely impaired. Dr.
23
Watson’s testing shows that Petitioner has impaired executive functions –
24
abilities associated with supervisory or control functions including the
25
monitoring, initiation, inhibition, and shifting of behaviors and cognitive sets;
26
memory impairment; and impairment in the auditory processing centers of the
27
brain. Such impairments are typically associated with impairment in frontal and
28
temporal lobes. As a result of these impairments, Petitioner is unable to shift his
510
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1
thinking or behaviors to, solve new situation, or make decisions and exercise
2
judgment. Petitioner’s long-standing neurocognitive impairments adversely
3
affects his behavior, personality, and functioning. (Ex. 42, D. Watson, Ph.D.,
4
Dec., ¶¶ 11-21.)
5
1422. Dr. Watson concluded that Petitioner has temporal lobe disorder that
6
was likely etiologically related to the psychotic disorder that other mental health
7
experts had diagnosed. (Id., at ¶¶ 19-20.) According to Dr. Watson’s findings,
8
Petitioner suffers from a neurocognitive brain-related disorder and is psychotic –
9
the same findings made by Dr. Blumer twenty-two years ago. Petitioner remains
10
severely impaired. Dr. Watson also concluded that Petitioner appears to suffer
11
from frontal lobe dysfunction with neurocognitive deficits and that he suffers
12
from depression, a mood disorder, and memory impairment. (Id. at ¶ 21-22.)
13
1423. Dr. Watson opined that Petitioner was not competent to stand trial or
14
waive rights in his state-court proceedings. (Id. at ¶¶ 24, 26.) He further opined
15
that his mental health findings were linked directly to Petitioner’s culpability for
16
the crimes charged, his competence to stand trial, his waiver of fundamental
17
rights, including penalty trial and a reliable determination of penalty and would
18
have been crucial to provide to the jury. (Id. at ¶¶ 26.)
19
1424. Dr. Jane Well, J.D., Ph.D., evaluated Petitioner at the request of state
20
post-conviction counsel. She concluded that he suffers a myriad of mental
21
problems, including a psychotic disorder somewhere on the schizophrenic or
22
psychotic end of the spectrum. (Ex. 43, Wells, Dec., ¶ 49.) She observed him to
23
be significant paranoid, delusional, and thought-disordered. (Id.) She also
24
opined that he suffers a mood disorder with transient manic and depressive states
25
as well as agitation and hypersexuality. (Id.) And she concluded that he suffered
26
organic brain damage. (Id., at ¶ 52.) Based on her findings, Dr. Wells concluded
27
that Petitioner was incompetent to stand trial and to waive rights in his state-court
28
proceedings. (Id. at ¶ 51.)
511
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1425. In light of the above, competent counsel could and should have
1
2
investigated, developed, and presented evidence that Petitioner, from his
3
childhood and continuing to the present day, suffered from long-standing and
4
severe psychiatric, psychological, neurological, and cognitive impairments,
5
including, but not limited to, long-standing temporal lobe epilepsy; mental
6
incompetency in September 1985; thought disorder of psychotic proportion,
7
resulting from his seizure disorder; psychotic disorder; disorganized speech,
8
thought, and behavior; hallucinations, delusions, paranoia; severe mood disorder;
9
brain damage; severe impairments in memory tasks and higher cognitive
10
functioning, of a kind typically associated with impairment of the frontal and
11
temporal lobes; impairments in his ability to inhibit behavior and responses and
12
obsessive and compulsive behaviors; and the impact on his behavior and
13
personality of multiple disorders – all of which established that Petitioner was
14
seriously mentally ill and incompetent to stand trial and waive his rights and
15
which would have constituted effective defenses, at guilt and penalty, to the
16
crimes charged against him. Indeed, Petitioner’s conduct throughout his life was
17
consistent with these types of mental disorders.
18
B.
Petitioner Was Prejudiced at Both Phases of His Capital Trial by Trial
19
Counsel’s Failure to Conduct an Adequate Social History
20
Investigation, to Present that Information to Appropriate Mental
21
Health Experts, and to Present to the Jury on Petitioner’s Behalf All
22
the Evidence that Bore on Petitioner’s Competence to Stand Trial and
23
to Waive Rights and on Guilt and Penalty
24
1426. While the prosecution portrayed Petitioner as a cold-blooded,
25
remorseless killer, in fact, Petitioner’s myriad impairments indicate that he was
26
incompetent at the time of the offenses charged and throughout his trial
27
proceedings. Had the jury known about Petitioner’s serious mental impairments,
28
especially his psychosis, severe mood disorder, neurological and cognitive
512
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1
deficits, PTSD, and other mental impairments, it would have better understood
2
Petitioner and his background. The multiple deficits and impairments described
3
by Drs. Blumer, Vicary, Henderson, Woods, Young, Evans, Wells, and Watson
4
indicate that numerous mental state and other defenses could have been presented
5
at Petitioner’s guilt and penalty phases. Had the jury been presented an accurate
6
profile of Petitioner’s history and life, this evidence would have mitigated the
7
prosecution’s case because the jurors would have had a proper context in which
8
to judge Petitioner’s behavior and assess his culpability. Similarly, had the jurors
9
known that Petitioner was suffering from serious and bona fide mental illness,
10
they would have viewed the guilt evidence in a manner that comported with all
11
the relevant facts and reached a verdict more favorable to Petitioner. (Exs. 28, M.
12
Herrera Dec., dated 06/12/2004; 29, D. McGee Dec., dated 06/09/2004; 117, D.
13
McGee Dec., ¶ 10; 30, M. Salcido Dec., dated 06/09/2004; Ex. 115, M. De Ruiter
14
Dec., ¶ 3.)
15
1427. At the guilt trial, the defense counsel ineffectively relied on or
16
presented the testimony of several witnesses, including an expert who testified
17
regarding time of death in the Vincow case and the circumstances of Yu’s death;
18
two witnesses who testified regarding visibility and viewing conditions at night
19
in Yu, Doi, Nelson, and Petersen incidents; alibi witnesses regarding Petitioner’s
20
whereabouts at the end of May 1985; testimony about hair and serology in six of
21
the cases; testimony from an expert regarding eyewitness identification generally;
22
and finally, testimony of convicted felon Sandra Hotchkiss who testified about
23
her contact with Petitioner in the course of committing burglaries. While this
24
evidence had some potential to undermine the prosecution’s case, it was not even
25
remotely as powerful or relevant to the issues before the jury as the compelling
26
mental health evidence that was readily available, bore directly on Petitioner’s
27
legal and moral culpability, and unequivocally negated the mental states required
28
to convict Petitioner and sentence him to death.
513
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1
1428. Had the jurors known of Petitioners severe and long-standing mental
2
illness and impairments, they would have given full consideration to all the
3
relevant evidence bearing on the question of guilt and sentence. Several of the
4
trial jurors indicate they would have considered all evidence bearing on
5
Petitioner’s guilt. The jurors report that had the defense presented more
6
evidence, the outcome of the guilt trial could have been different. (Exs. 28-30,
7
115, 117.)
8
9
1429. Several of the jurors indicate they expected to hear evidence
presented by the defense to save their client’s life. Mitigation evidence could
10
have had a difference in the outcome. Evidence presented on Petitioner’s behalf
11
would have been carefully considered during four days of deliberations,
12
particularly evidence of Petitioner’s background and mental condition. (Exs. 28-
13
30, 115, 117.) Counsel’s failings made Petitioner even less sympathetic in the
14
eyes of the jury and inclined it even more toward death.
15
1430. The account of Petitioner’s life presented in this petition, although
16
incomplete, as a result of Petitioner’s present incompetence to assist habeas
17
counsel, nevertheless evokes sympathy for Petitioner by providing an
18
explanation, grounded in documents and facts about his history, of the conduct
19
that led to his current circumstances. This critical evidence, which was never
20
presented on Petitioner’s behalf, clearly establishes Petitioner’s reduced
21
culpability and the utter inappropriateness of the death sentence imposed by the
22
jury. Indeed, it presents a prima facie case of ineffective assistance of counsel –
23
counsel’s performance fell below the stand of competent performance articulated
24
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
25
(1984) and its progeny, and but for counsel’s errors, Petitioner would have
26
received a more favorable outcome at both phases of his capital trial. Had
27
counsel performed competently, and conducted a minimally adequate
28
514
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1
investigation, they would have been able to present a wealth of evidence on
2
Petitioner’s behalf, including but not necessarily limited to the following proof:
3
4
5
(a) A childhood characterized by extreme poverty, physical and
emotional neglect, physical and emotional abuse, and overall deprivation;
(b) A gross and persistent absence of parental attention, guidance,
6
affection, and protection that resulted in a pervasive and premature independence
7
from authority;
8
9
(c) Cognitive, neurological, psychological and psychiatric
impairments of early origin as disclosed in pre-existing medical reports, pretrial
10
neuropsychiatric reports, and post-conviction neuropsychological testing and
11
psychiatric evaluation;
12
13
14
15
16
17
18
(d) Early childhood exposure to alcohol and illegal depressants,
stimulants and hallucinogens during Petitioner’s critical formative years;
(e) Early and repeated childhood exposure to extreme levels of
violence, trauma, and abuse;
(f) Early childhood exposure to criminal activity by older brothers
and others in the community;
(g) Extreme traumatic events outside the range of normal human
19
experience, including witnessing the aftermath of the shooting death of his
20
cousin’s wife;
21
(h) Petitioner’s commitment as a teenager to Texas Youth Council
22
and his incarceration in the Los Angeles County Jail while awaiting trial on the
23
capital charges as a young adult.
24
1431. Trial counsel’s failure to investigate and discover detailed and
25
documented information about Petitioner’s personal and family history, and to
26
present evidence of Petitioner’s background and impairments to appropriate
27
mental health experts, denied Petitioner the right to a reliable mental health
28
evaluation and precluded Petitioner from presenting the jury powerful statutory
515
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1
and nonstatutory mitigation evidence as a basis for a sentence less than death.
2
Had counsel performed competently and presented the wealth of evidence that
3
existed regarding Petitioner’s life, upbringing, and multiple cognitive, organic,
4
and mental health impairments, a result more favorable to Petitioner would have
5
been obtained. Counsel’s substandard performance prejudiced the defense by
6
failing to present the jury with readily available evidence that demonstrated
7
Petitioner’s lessened moral and legal culpability.
8
9
1432. Counsel’s many failings rendered both the trial court and the jury
completely ignorant and unaware of the existence of significant and compelling
10
evidence of Petitioner’s multiple cognitive, neuropsychological, neurological,
11
emotional and psychiatric impairments and deficits. This evidence was critical to
12
Petitioner’s constitutional rights to, inter alia, effective assistance of counsel, due
13
process and a fair trial. The failure to present this evidence assured that
14
Petitioner’s trial was anything but fair; under these circumstances, Petitioner’s
15
trial could not comport with the constitutional requirements of the due process
16
mandated by capital jurisprudence. Counsel had a duty to present all evidence
17
that demonstrated that Petitioner was not competent to stand trial or waive rights,
18
that potentially negated Petitioner’s culpability and that provided a basis for a
19
sentence less than death. There was significant available mitigating evidence of
20
Petitioner’s serious mental illness, his youthfulness, lack of prior felony record,
21
close family ties, and even in the circumstances of charged offenses, particularly
22
the instances in which victims were not killed. Counsel’s failings are
23
inexcusable.
24
1433. The lack of mitigation evidence clearly was not lost on the court. In
25
preparation for instructing the jury at penalty trial, the court observed that defense
26
requested special instruction setting forth mitigating factors (see XXX CT 8893)
27
was not warranted by the evidence.
28
516
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1
The Court: Well, since none of this has been done, it is really not a
relevant instruction.
2
3
(217 RT 24789.) Similarly, the court denied the defense requested instruction
4
concerning Petitioner’s age. (See XXX CT 8894.)
5
The Court: I do not believe, Mr. Clark, that the instruction is
pertinent to any evidence that I’ve heard in this case.
6
7
(217 RT 24790.)
8
1434. Counsel’s failure to present any extenuating evidence was repeatedly
9
called to the jury’s attention by the prosecution in argument. First, the prosecutor
10
structured his argument based on the list of aggravating and mitigating factors
11
that the statute directed the jury to take into account in fixing the penalty. See
12
former Cal. Penal Code § 190.3. Reviewing each of those factors, (d) through
13
(k), the prosecutor found none favorable to Petitioner. (See 217 RT 24807-18.)
14
The prosecutor told the jury:
15
There has been no evidence presented to you in terms of mitigation
16
here, and I submit because there is none. There is no mitigating this
17
person. . . .
18
This man is the personification of evil and if anyone ever has earned the
19
death penalty, Petitioner has.
20
21
(217 RT 24832-33.)
1435. In response to the prosecution’s argument, trial counsel’s
22
substandard performance left them no choice but to concede what the prosecution
23
had already argued. No mitigating evidence regarding Petitioner’s character,
24
background or history was presented. And, as if counsel’s own failings were not
25
enough, as the prosecutor had done, trial counsel reminded the jury of the
26
absence of mitigation evidence. “I don’t think anybody knows and I don’t think
27
anybody will ever know [Petitioner’s motivation].” (217 RT 24840.) Counsel
28
had the temerity to comment on the lack of mental state evidence: “What
517
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1
possessed Petitioner to do this we will not know soon.” (Id. at 24841.) Indeed,
2
counsel told the jury “it is your job to search for [mitigating evidence] if you
3
decide to extend mercy for Petitioner, that is, permit him to live.” (Id. at 24852.)
4
Given the very serious charges against Petitioner, it is difficult to imagine a more
5
impotent closing argument or more troubling example of ineffective assistance of
6
counsel.
7
1436. Trial counsel totally failed to present any positive evidence of
8
Petitioner’s attributes, actions, his youth, or family relationships in mitigation.
9
Although trial counsel claimed to have spoken with witnesses in Texas, it is not
10
clear what, if anything, was actually done to prepare for the penalty trial. Indeed,
11
given the nature of this case with numerous brutal killings, any hope or chance
12
that the jury would return anything less than a death verdict rested exclusively on
13
the efforts of counsel to present mitigating evidence at penalty trial and to explain
14
and make understandable for the jury Petitioner’s background, upbringing, and
15
motivations – in essence, to humanize Petitioner in the eyes of the jury. Trial
16
counsel’s tactics cannot be construed as reasonable. Trial tactics or strategy did
17
not militate in favor of abandoning mitigating evidence; to the contrary,
18
appropriate tactics and strategy in this case above all demanded a vigorous
19
presentation of all possible evidence on Petitioner’s behalf. Strickland v.
20
Washington.
21
1437. Had all the information described herein been adequately
22
investigated, developed and presented to mental health experts at Petitioner’s
23
trial, they would likely have concluded, that Petitioner’s history was rife with
24
serious mental illness, brain impairment, psychosis; he in fact exhibited
25
symptoms of mental illness and disturbance, including but not necessarily limited
26
to schizophrenia, mood disorders, depression and trauma, and that these disorders
27
would likely have supported a mental state defense at trial and would have
28
mitigated the evidence against him.
518
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1
1438. Trial counsel’s submission of the case without offering any tangible
2
mitigating evidence during the penalty trial was tantamount to a concession that
3
the death penalty was proper in this case. The refusal to present any mitigating
4
evidence of which counsel was aware constitutes a miscarriage of justice. While
5
nothing in the pertinent statutory provisions or jury instructions suggested that a
6
death penalty was required in the event Petitioner failed to offer any mitigating
7
evidence (See § 190.3), the absence of any mitigating evidence in light of the
8
prosecution’s overwhelming case against Petitioner offered the jury no alternative
9
but to vote for the death penalty.
10
1439. Petitioner’s conviction and death sentence must be reversed and
11
vacated due to the failure of Petitioner’s counsel to render effective assistance of
12
counsel in the preparation, investigation and presentation of the defense case at
13
the guilt and penalty phases. Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.
14
Ct. 2574, 91 L. Ed. 2d 305 (1986); Strickland v. Washington, 466 U.S. at 685.
15
1440. The declarations of Drs. Blumer, Vicary, Woods, Evans, Young,
16
Henderson, Watson, and Wells, and of Marilyn Cornell make clear that Petitioner
17
was prejudiced by the ineffective assistance of his trial lawyers in failing to
18
present available mitigating evidence on Petitioner’s behalf at the penalty trial.
19
Trial counsel’s substandard performance resulted in their failure to discover and
20
develop this evidence, even though they had information in their possession that
21
should have put them on notice that such investigation was necessary.
22
Petitioner’s habeas experts have discovered and developed the evidence that was
23
readily available to counsel at the time of trial, had they performed even
24
minimally adequate investigation into Petitioner’s life. Had trial counsel
25
presented the trial experts with the evidence which current counsel has
26
developed, and had the trial experts performed competently, they would have
27
reached the same conclusions as Petitioner’s habeas experts.
28
519
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1
1441. Petitioner was severely prejudiced by counsel’s failure to investigate
2
and present all mitigating evidence at trial. This evidence would have provided a
3
powerful counterpoint to the prosecutor’s damning argument that Petitioner
4
deserved to die. In fact, the combination of Petitioner’s deprived history of
5
mental illness and impairment, neglect, abuse, exposure to neurotoxins, excessive
6
exposure to trauma and violence, PTSD, and depression, would have provided the
7
jurors with powerful evidence of his impairments and garnered the jury’s
8
sympathy. Petitioner’s impairments cast serious doubt on the prosecution’s case
9
and on the outcome at the guilt and penalty phases of trial.
1442. Given this evidence, which was not presented on Petitioner’s behalf
10
11
due to the ineffective assistance of counsel and experts, Petitioner’s conviction
12
and sentence must be set aside. This evidence should have been presented on
13
Petitioner’s behalf at both the guilt and penalty phases of his capital trial. But for
14
counsel’s errors, it’s more probable than not, that the jury would have returned
15
verdicts more favorable to Petitioner and that they would have rendered a
16
sentence of life, not death.
17
C.
18
19
20
Additional Constitutional Violations
1443. Counsel failed in numerous other respects, including but not limited
to the following;
(a) Trial counsel were on notice of Petitioner’s serious mental
21
impairments and his mental incompetency. Their performance in not
22
investigating and presenting mental state evidence fell below the standard of care
23
at the time of Petitioner’s trial. Because of the history of mental impairments,
24
Petitioner’s purported waivers taken by the court were not knowing, voluntary, or
25
intelligent, including but not limited to use of restraints at trial, waiver of a guilt
26
and penalty defense, absence from trial proceedings, self-incrimination, and
27
impermissible consciousness of guilt inference due to Petitioner’s refusal to
28
remove his sunglasses.
520
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1
(b) Trial counsel incompetently conducted the Hovey voir dire and
2
failed to explain a reasonable defense strategy and mental state and mitigation
3
evidence to prospective jurors.
4
(c) Counsel failed to explain Petitioner’s mental state at the time of
5
the murders, including brain impairment, psychosis, mental illness, drug use, and
6
addiction that would have persuaded the jury at the guilt trial that Petitioner was
7
not culpable for first degree murder and at the penalty trial, that Petitioner was
8
not death-worthy.
9
(d) Counsel failed to explain Petitioner’s mental state with respect
10
to his post-arrest conduct. On one occasion, Petitioner was observed by a jail
11
deputy in his cell sitting on the toilet with blood on his hands drawing a
12
pentagram on the floor. (176 RT 20599-600.) On numerous occasions in the
13
courtroom, Petitioner invoked the words “Hail, Satan” and displayed a pentagram
14
on the palm of his hand in the courtroom. (See Id. at 20603-04, 20607.) On
15
January 30, 1989, Petitioner appeared at trial in leg shackles. The court accepted
16
a waiver from Petitioner to wear shackles instead of a less obtrusive leg-brace.
17
Petitioner was absent from the courtroom for the guilt verdicts on September 20,
18
1989. He was housed in a holding cell near the courtroom. (XXX CT 8789). On
19
November 7, 1989 prior to being sentenced, Petitioner made a bizarre and
20
incoherent statement to the court.
21
(e) Counsel failed to properly defend Petitioner. On May 8, 1989,
22
trial counsel was not prepared to present its case because Petitioner said that he
23
did not want any defense. (178A RT 20759-60). Later that day, Mr. Clark
24
indicated that Petitioner “flip-flopped” again, and he wanted a limited defense.
25
However, Daniel Hernandez stated that he did not intend to present a complete
26
defense because without Petitioner’s cooperation it would not be in the client’s
27
best interests. (Id. at 20789, 20794).
28
521
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(f) Petitioner has been prejudiced by the ineffective assistance of
1
2
trial counsel due to failures discussed above and for their failure to request legally
3
correct and accurate jury instructions at guilt and penalty phases and by their
4
failure to formulate appropriate jury instructions.
5
(g) Petitioner certainly was not asked to waive his right to have the
6
jury fully instructed. Without such a waiver, Petitioner’s counsel are simply not
7
authorized to deprive him of these important constitutional rights. A fundamental
8
decision to waive constitutional rights to have a jury fully instructed on the law is
9
not something that can be waived without an express waiver given by Petitioner
10
in open court.
(h) Petitioner was denied his constitutional rights to due process and
11
12
a reliable penalty determination because his trial counsel failed to present
13
mitigating evidence of Petitioner’s age and the trial judge refused to instruct the
14
jury as to Petitioner’s age.
(i) Because Petitioner’s trial counsel failed to present mitigation
15
16
evidence, the prosecution relied on the language of CALJIC No. 8.85, which
17
undermined Petitioner’s right to a reliable determination of penalty.
(j) Petitioner was denied his constitutional rights to due process and
18
19
a reliable penalty determination because his trial counsel failed to propose an
20
appropriate admonition pursuant to CALJIC No. 8.84.1. (RB 310-12.) The
21
deficiencies in this instruction prejudiced his substantial rights because the
22
instruction was fundamentally flawed. Petitioner has been prejudiced from the
23
ineffective assistance of trial counsel for their failure to propose an appropriate
24
instruction.
25
(k) Trial counsel requested and then withdrew a jury instruction on
26
the meaning of life without the possibility of parole. It was ineffective assistance
27
of counsel not to submit a properly worded instruction regarding life without the
28
possibility of parole.
522
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(l) The cumulative errors that occurred at the guilt and penalty trials
1
2
were due to counsel’s ineffectiveness.
(m) Counsel failed to adequately prepare, litigate, and represent
3
4
Petitioner at the motion for modification of the verdict under § 190.4(e) based on
5
the omissions discussed above. Under the statute, before a trial judge may
6
impose the death penalty after a jury’s recommendation thereof, the judge must
7
undertake an independent reweighing of the evidence, make an independent
8
determination as to whether imposition of the death penalty is appropriate, give a
9
specific statement on the record of the reasons for its decision on those matters,
10
and provide for the entry of such reasons on the clerk’s minutes.
11
CLAIM 19:
12
THE TRIAL COURT VIOLATED PETITIONER’S
13
CONSTITUTIONAL RIGHTS WITH RESPECT TO
14
PETITIONER’S MENTAL COMPETENCY TO WAIVE
15
PRESENTATION OF MITIGATION EVIDENCE
16
1444. Exhaustion of the claim: This claim was fairly presented to the
17
California Supreme Court in the direct appeal. It was presented in Section XIX
18
of the Opening Brief.
19
1445. In support of this claim, Petitioner alleges the following facts,
20
among others to be presented after full discovery, investigation, adequate
21
funding, access to this Court’s subpoena power, and an evidentiary hearing.
22
1446. Those facts and allegations set forth in the petition, declarations,
23
claims of constitutional violations, and the accompanying exhibits are
24
incorporated by reference as if fully set forth herein to avoid unnecessary
25
duplication of relevant facts.
26
27
1447. Petitioner exhibited irrational and bizarre behavior before and during
the guilt trial, as described, supra.
28
523
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1448. On August 23, 1989, counsel informed the trial court that Petitioner
2
would “do whatever he can physically and otherwise to resist coming into the
3
courtroom” on August 31, 1989, the date for hearing on his mistrial motion. (I
4
Supp. CT VIII 2433.) The trial court expressed concern about “any unnecessary
5
physical altercations, that means everybody, and there is a chance of injury all the
6
way around.” (Id. at 2433.) The court did not want to have televised coverage of
7
a fight in the courtroom. (Id. at 2434.) The court informed counsel that
8
Petitioner allegedly made a threat against the court. (Id. at 2433-34.) The
9
prosecutor was upset about Petitioner’s behavior; Petitioner previously disrupted
10
11
court proceedings and called the trial court “a bunch of names.” (Id. at 2435.)
1449. Trial counsel told the court that Petitioner would be disruptive if he
12
were required to appear in court on August 31, 1989. Counsel requested that
13
Petitioner be allowed to listen to court proceedings in a holding cell. (214
14
RT 24624-25.) Counsel Daniel Hernandez also stated:
15
I am representing to the court that it is a serious situation. ¶ At this
16
point I’m concerned that I may not be able to maintain that type of
17
situation [courtroom decorum].
18
19
(Id. at 24625.)
1450. The trial court commended counsel for a “stellar job that you have
20
done in keeping this guy under control,” and credited the law clerk, “who spends
21
a great deal of his time at counsel table talking with him or amusing one another.”
22
(Id. at 24625.)
23
1451. Shortly thereafter, Petitioner appeared in court and stated: “This
24
trial is a joke.” (Id. at 24629.) He also directed crude remarks to the court:
25
“Piece of shit” and “Fuckin’ asshole,” before being escorted from the courtroom.
26
(Id. at 24629.)
27
28
1452. Petitioner subsequently absented himself from two crucial court
proceedings: the hearing on the motion for mistrial and the guilt trial verdicts.
524
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1
At the hearing on the mistrial motion, held on August 17, 1989, Petitioner was
2
placed in a holding cell with a “piped-in sound system.” (215 RT 24653.) The
3
next occasion when Petitioner appeared in court on September 20, 1989, the jury
4
returned its verdicts. Petitioner wore jail clothes and chains, and sought to waive
5
his appearance before the jury. (216 RT 24705-08.) On accepting Petitioner’s
6
waiver, the trial court observed that “if [Petitioner] decides to raise a physical
7
fight by being in court and we have to chain him, rather than do that, I will take a
8
waiver from him and let him sit this one out. ¶ He can listen to it in the lockup.”
9
(Id. at 24709.) The court advised Petitioner that, “we have no way of knowing
10
what sort of an impact [your absence] will have on the jury,” and that “if there is
11
a penalty phase . . . that unknown impact may very well go against your best
12
interests.” (Id. at 24710.)
13
14
1453. Before the verdicts were read, the court informed the jury that
Petitioner was absent from trial.
15
We took a waiver from him. He did so. He waived his right to be
16
here. I found that was freely and voluntarily and intelligently made,
17
and I went along with his desires and he is listening to these
18
proceedings in a cell below us. We have piped in sound, and so he
19
is aware of what is going on and to that extent is present in court, but
20
physically he is not.
21
So please do not consider this for any purpose. It is just a request
22
that he has made and I think the law requires to me to along with that
23
request.
24
(216 RT 24714-15.)
25
1454. Following Petitioner’s conviction of thirteen murders, thirty lesser
26
crimes, and true findings of nineteen special circumstances, one week later, on
27
September 27, 1989, the court accepted Petitioner’s waiver of presenting any
28
mitigating evidence on his behalf. At the time of the waiver, and despite manifest
525
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1
and substantial evidence of Petitioner’s continued bizarre behavior, including his
2
lack of cooperation with counsel, his refusal to appear in court, his outbursts in
3
court, and his irrational comments to the court, the court made no inquiry of
4
counsel, or Petitioner, as to Petitioner’s present mental condition or competency.
5
The court was aware that Petitioner repeatedly had refused to cooperate with
6
counsel in his defense and repeatedly had made strange and bizarre expressions,
7
all of which, by any measure, cast doubt on his mental competence.106
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
106
Illustrative of Petitioner’s delusional and psychotic thinking and mental
incompetence was his statement at his sentencing:
It is nothing you would understand, but I do have something
to say. In fact, I have a lot to say, but now is not time or the place. I
don’t even know why I’m wasting my breath, but what the hell.
As for what is said of my life, there have been lies in the past
and there will be lies in the future. I don’t believe in the hypocritical
moralistic dogma of this so-called civilized society and need not
look beyond this room to see all of the liars, the haters, the killers,
the crooks, the paranoid cowards, truly the trematodes of the earth,
each one in his own legal profession.
You maggots make me sick. Hypocrites one and all. We are
all expendable for a cause, and no one knows that better than those
who kill for policy, clandestinely or openly, as do the governments
of the world which kill in the name of God and country and for
whatever else they deem appropriate.
I don’t need to hear all of society’s rationalizations. I’ve
heard them all before and the fact remains that is what it is.
You don’t understand me. You are not expected to. You are
not capable of it. I am beyond your experience. I am beyond good
and evil.
Legions of the night, night breed, repeat not the errors of night
prowler and show no mercy. I will be avenged. Lucifer dwells
within us all. (219 RT 24929-30.)
This was but a sample of Petitioner’s statements and conduct throughout trial,
which put the trial court on notice that Petitioner was not competent to waive
presentation of mitigation evidence, including evidence of his mental
incompetency.
526
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1
1455. In the Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d
2
815 (1966), the Supreme Court found that where sufficient evidence is presented
3
that a defendant may be mentally incompetent, due process requires that a hearing
4
be held on that issue. The defense in Pate presented testimony of four lay
5
witnesses who related defendant’s history of disturbed behavior and gave
6
opinions of present insanity, as well as evidence of a brief prior commitment. Id.
7
at 383-84. The court found this showing sufficient to grant habeas corpus relief
8
due to failure properly to inquire as to defendant’s competence to stand trial. Id.
9
at 385.
10
1456. In Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103
11
(1975), the Court reconfirmed Pate, that due process requires a hearing on the
12
issue of a defendant’s mental competency upon a proper showing. The Court
13
considered evidence of defendant’s absence from the courtroom resulting from
14
injuries sustained in a suicide attempt as supporting the need to inquire into the
15
defendant’s competence. First, the accused’s forced absence implied a demeanor
16
making him unable to cooperate with counsel in his defense; second, it deprived
17
court and counsel of a further opportunity to observe his capacity rationally to
18
understand the proceedings and contribute to his defense. Id. at 180-81. The
19
Court noted that, “[e]ven when a defendant is competent at the commencement of
20
his trial, a trial court must always be alert to circumstances suggesting a change
21
that would render the accused unable to meet the standards of competence to
22
stand trial.” Id. at 181. The Court described the requirements of the inquiry:
23
The import of our decision in Pate v. Robinson is that evidence of a
24
defendant’s irrational behavior, his demeanor at trial, and any prior
25
medical opinion on competence to stand trial are all relevant in
26
determining whether further inquiry is required, but that even one of
27
these factors standing alone may, in some circumstances, be
28
sufficient. There are, of course, no fixed or immutable signs which
527
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1
invariably indicate the need for further inquiry to determine fitness
2
to proceed; the question is often a difficult one in which a wide
3
range of manifestations and subtle nuances are implicated. That they
4
are difficult to evaluate is suggested by the varying opinions trained
5
psychiatrists can entertain on the same facts.
6
7
Id. at 180.
1457. There is a basic presumption against the waiver of constitutional
8
rights. Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 16 L. Ed. 2d 314
9
(1966). To properly waive a constitutional right a defendant must do so
10
voluntarily, knowingly and intelligently, with a sufficient understanding of the
11
relevant circumstances and the likely consequences. See Brady v. United States,
12
397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Johnson v. Zerbst,
13
304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). To meet this standard when
14
waiving the right of presenting mitigating evidence to a penalty phase jury, an
15
individual must understand what constitutes mitigating evidence and whether any
16
such evidence exists in his case. Against this backdrop, Petitioner’s decision did
17
not constitute a valid waiver.
18
1458. Counsel’s performance was deficient. Trial counsel failed properly
19
to investigate mitigating evidence their cursory investigation had revealed.
20
Evidence of childhood abuse, institutional failure, poly drug use, and long-
21
standing mental illness and organic brain disorder was available to trial counsel.
22
Counsel decided not to go forward at trial without fully investigating and
23
understanding the impact of the mitigation evidence and Petitioner’s impaired
24
mental state. Thus, the primary evidence the jury heard was extremely violent
25
criminal acts.
26
1459. A proper investigation by trial counsel using the evidence in their
27
possession would have uncovered significant, readily available mitigating
28
evidence regarding childhood abuse and neglect, institutional failure, polydrug
528
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1
use, multiple mental impairments, including organic brain damage, and
2
psychosis. Petitioner’s purported waiver was based on lack of advisal and
3
understanding of the consequences and was therefore not a knowing and
4
intelligent waiver under Brady. Petitioner cannot be held to have waived his
5
fundamental right to present penalty phase evidence as he was mentally
6
incompetent.
7
1460. The Court has repeatedly held that the criminal trial of an
8
incompetent defendant violates due process. Medina v. California, 505 U.S. 437,
9
112 S. Ct. 2572, 120 L . Ed. 2d 353 (1992); Pate, 383 U.S. at 378.Competence to
10
stand trial is rudimentary, for upon it depends the main part of those rights
11
deemed essential to a fair trial, including the right to effective assistance of
12
counsel, the rights to summon, to confront, and to cross-examine witnesses, and
13
the right to testify on one’s own behalf or to remain silent without penalty for
14
doing so.
15
Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S. Ct. 1810, 118 L. Ed. 2d 479
16
(Kennedy, J., concurring) (citation omitted).
17
1461. As demonstrated above, following the guilt trial, there was further,
18
substantial evidence of Petitioner’s unsound mental condition that placed the
19
court on notice that Petitioner was mentally incompetent to stand trial and to
20
waive his rights, thus, triggering the trial court’s duty of inquiry regarding
21
Petitioner’s mental state. Despite ample evidence that Petitioner was mentally
22
unsound and incompetent, the court failed to order a competency hearing sua
23
sponte. Under the circumstances of this case, federal due process obligated the
24
court to initiate proceedings to determine Petitioner’s competency to waive
25
presentation of mitigation evidence. Before accepting Petitioner’s purported
26
waiver of mitigation evidence at the penalty trial, the court was required by law
27
to determine his competency. Failing to do so, the court erred and abused its
28
discretion.
529
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1
1462. An error in failing to declare a doubt as to competence is reversible
2
per se. Pate, 383 U.S. at 389. Such an error may not be cured by a retrospective
3
determination of Petitioner’s mental competence.
4
1463. Were a lesser standard of error other than prejudice per se to apply,
5
the trial court’s failure to inquire as to Petitioner’s mental competence to waive
6
penalty trial ultimately prejudiced Petitioner. First, a retrospective determination
7
of Petitioner’s competence would demonstrate that Petitioner was, in fact,
8
incompetent to stand trial and incompetent to waive his rights. Second, in the
9
alternative, the jury considered the mass of evidence at guilt trial. Following the
10
guilt verdicts, the jury deliberated for a lengthy period of time at the penalty trial.
11
However, the jury was prevented from considering any mitigation evidence in
12
the penalty phase because the court turned a blind eye to Petitioner’s mental
13
incompetence and permitted him to waive presentation of significant mitigating
14
evidence to the jury. The Supreme Court in Godinez v. Moran, 509 U.S. 389,
15
396, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), reaffirmed that a defendant
16
cannot stand trial if he cannot “consult with his lawyer with a reasonable degree
17
of rational understanding,” or lacks “a rational as well as factual understanding of
18
the proceedings against him.” The Court has long held that an incompetent
19
person cannot be permitted to proceed to trial: “We have repeatedly and
20
consistently recognized that ‘the criminal trial of an incompetent defendant
21
violates due process.’” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373,
22
134 L. Ed. 2d 498 (1996).
23
1464. The error constituted a federal due process violation under the
24
Fourteenth Amendment and penalty reliability under the Eighth and Fourteenth
25
Amendments with respect to the heightened need for the determination that death
26
is the appropriate punishment. Woodson v. North Carolina, 428 U.S. 280, 96 S.
27
Ct. 2978, 49 L. Ed. 2d 944 (1976); California v. Ramos, 463 U.S. 992, 103 S. Ct.
28
3446, 77 L. Ed. 2d 1171 (1983). Petitioner’s right to a fair penalty determination
530
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1
was prejudiced as a result of the court’s failure to conduct a proper competence
2
and waiver inquiry.
3
1465. The foregoing violations of Petitioner’s constitutional rights, taken
4
singly or in combination with the other errors alleged in the Petition, constitute
5
structural error and warrant the granting of this Petition without any
6
determination of whether the violations substantially affected or influenced the
7
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
8
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
9
doctrine applies to this claim, the foregoing constitutional violations, singly and
10
in combination with the other errors alleged in this Petition, so infected the
11
integrity of the proceedings that the error cannot be deemed harmless. The
12
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
13
influence on Petitioner’s convictions and sentences, rendering them
14
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
15
637-38.
16
1466. In addition, the denial of his right to effective assistance of counsel
17
substantially prejudiced Petitioner, rendered the trial proceeding fundamentally
18
unfair, eroded the reliability of the verdict and had a substantial and injurious
19
effect on the verdict. But for the denial of this right, it is reasonably probable that
20
a more favorable result would have been attained. Under these circumstances,
21
the adversarial system completely broke down, and Petitioner was left without
22
meaningful representation. Although many of trial counsel’s errors were, by
23
themselves, so egregious as to require reversal, the extraordinary accumulation of
24
errors and omissions over the course of the trial created a total breakdown in the
25
adversarial process, so that prejudice is conclusively presumed. United States v.
26
Cronic, 466 U.S. 648, 656-662, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657
27
(1984). Even assuming a showing of prejudice is required, Petitioner has made
28
531
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1
that showing here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
2
L. Ed. 2d 674 (1984).
3
CLAIM 20:
4
THE TRIAL COURT’S DENIAL OF PETITIONER’S
5
MOTION TO SEVER UNRELATED INCIDENTS VIOLATED
6
HIS CONSTITUTIONAL RIGHTS AT BOTH PHASES OF
7
THE TRIAL
8
1467. Exhaustion of the claim: The argument in this claim regarding the
9
guilt phase was fairly presented to the California Supreme Court in the direct
10
appeal, in Section V of the Opening Brief. The argument as to the effect of the
11
violation at the penalty phase was fairly presented to the California Supreme
12
Court, in Section XXI of the Opening Brief.
13
1468. In support of this claim, Petitioner alleges the following facts,
14
among others to be presented after full discovery, investigation, adequate
15
funding, access to this Court’s subpoena power, and an evidentiary hearing.
16
1469. Those facts and allegations set forth in the petition, declarations,
17
claims of constitutional violations, and the accompanying exhibits are
18
incorporated by reference as if fully set forth herein to avoid unnecessary
19
duplication of relevant facts.
20
A.
Facts
21
1470. On September 30, 1987, Petitioner moved to sever counts
22
comprising fifteen incidents: forty-three charges, and nineteen special
23
circumstances. (XXIV CT 7003-17.) Petitioner offered two principal grounds in
24
support of his motion: (1) the crimes charged were not connected in their
25
commission and (2) the offenses were not cross-admissible. He sought to sever
26
the charged crimes into eight different trials based on cross-admissibility of
27
physical evidence as follows:
28
532
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(a) Petersen and Abowath (common ballistics evidence)107;
2
(b) Hernandez/Okazaki, Yu and Kneiding (common ballistics evidence);
3
(c) Khovananth and Zazzara (common ballistics evidence);
4
(d) Higgins108 (absence of any cross-admissible evidence);
5
(e) Vincow (absence of cross-admissible evidence);
6
(f) Kneiding, Bennett, Bell/Lang, Cannon, Nelson, and Doi (similar shoe
7
print evidence);109
8
(g) Dickman (absence of cross-admissible evidence); and,
9
(h) Kyle (absence of cross-admissible evidence).
10
11
(XXIV CT 7119.)
1471. Petitioner conceded the existence of eyewitness identification
12
evidence in nine incidents: Hernandez/Okazaki, Yu, Doi, Kyle, Nelson,
13
Dickman, Khovananth, Petersen, and Abowath. (XXIV CT 7120-22.)
14
15
16
17
18
19
20
21
22
23
24
25
26
107
According to the prosecution’s case, there were four different firearms
used in three separate sets of incidents and one unrelated incident. At trial, the
prosecution established that the same .22-caliber firearm was used in
Hernandez/Okazaki, Yu and Kneiding, but a different .22-caliber firearm was
used in Zazzara and Khovananth. A third weapon was used in Doi, a .22-caliber,
Jennings semi-automatic pistol. Bullets and cartridge casings recovered in
Petersen and Abowath were identified as fired from the same .25-caliber firearm
which was not recovered.
108
At the hearing on the severance motion, the prosecution conceded that
the Higgins incident was dissimilar and moved to dismiss counts 19 and 20 of the
information pursuant to § 1385. The court so ordered. (40 RT 2865-67.) The
dismissal is reflected in the amended information filed December 9, 1987. (XIX
CT 5372-5417.) Petitioner was neither tried for nor convicted of any crimes
involving Higgins. That incident is thus not included in this claim for relief.
109
27
28
Shoe prints were identified as having been made by Avia aerobic shoes,
size 11 to 12, except in Abowath, where the shoe print matched Stadia brand
shoes worn by Petitioner at the time of his arrest.
533
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1472. The prosecution argued that all counts had been properly joined and
2
that all evidence would be cross-admissible. It argued, for example, that stab
3
wounds inflicted on the victim in the Vincow incident were shared common
4
marks with evidence in other incidents in which a sharp instrument was used.
5
(See 40 RT 2865.)
6
1473. The trial court ruled that all crimes were of the same class. In all
7
incidents in which a homicide had occurred, it reasoned that burglary charges
8
formed the basis for alleged felony-murder special circumstances, and that all
9
evidence in every incident was cross-admissible because of the existence of a
10
common scheme and design. (40 RT 2868.) The court also ruled that the need
11
for judicial economy outweighed any potential prejudice to Petitioner. (Id. at
12
2869-70; XXV CT 7217.)
13
14
B.
Argument
15
1474. Joinder of separate offenses in a single trial is permitted under § 954
16
if the alleged crimes are all related by stemming from the same incident, being
17
alternate statements of the same offense, or belonging to the “same class of
18
crimes or offenses.” Section 954 grants discretion to a trial court to sever counts
19
that are otherwise joinable under the statute. However, a trial court must sever
20
separate offenses if the defendant makes a clear showing of potential prejudice
21
from the joinder. People v. Kraft, 23 Cal. 4th 978, 1030, 5 P.3d 68, 99 Cal. Rptr.
22
2d 1 (2000); People v. Bradford, 15 Cal. 4th 1229, 1314-15, 939 P.2d 259, 65
23
Cal. Rptr. 2d 145 (1997).
24
1475. The party seeking severance has the burden to show there is a
25
“substantial danger of prejudice requiring that the charges be separately tried.”
26
People v. Bradford, 15 Cal. 4th at 1315. A trial court’s ruling denying severance
27
is reviewed under an abuse of discretion standard. Id. Appellate review of the
28
denial of a motion to sever is judged by the information “available to the court at
534
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1
the time the motion is heard.” People v. Cummings, 4 Cal. 4th 1233, 1284, 850
2
P. 2d 1, 18 Cal. Rptr. 2d 796 (1993).
3
1476. The factors to be considered in granting or denying severance are
4
well-established. Denial of a motion to sever may constitute an abuse of
5
discretion when: (1) evidence of the crimes to be tried jointly would not be
6
cross-admissible in separate trials; (2) certain charges are unusually likely to
7
inflame the jury against the defendant; (3) a relatively “weak” case has been
8
joined to a relatively “strong” one; and (4) a capital offense is joined to
9
noncapital ones or the joinder itself causes the case to be a capital one.110 People
10
11
v. Bradford, 15 Cal. 4th at 1315; People v. Kraft, 23 Cal. 4th at 1030.
1477. The process of determining the first of these factors (cross-
12
admissibility) essentially involves an application of Evidence Code § 1101 to the
13
evidence of each incident.111 Kraft, 23 Cal. 4th at 1030-31. As noted in People v.
14
Thompson, 27 Cal. 3d 303, 316-17, 611 P.2d 883, 165 Cal. Rptr. 289 (1980):
15
Evidence Code § 1101 subdivision (a) expressly prohibits the use of
16
an uncharged offense if the only theory of relevance is that the
17
18
19
110
The Yu incident was a non-capital homicide charge that was elevated to
a capital case by reason of joinder.
111
20
21
22
23
24
25
26
27
28
In relevant part, § 1101 provides as follows:
(a) . . . [E]vidence of a person’s character or a trait of
his character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances
of his conduct) is inadmissible when offered to prove
his conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of
evidence that a person committed a crime, civil wrong,
or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan
knowledge, identity, or absence of mistake or accident)
other than his disposition to commit such acts.
535
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accused has a propensity (or disposition) to commit the crime
2
charged and that this propensity is circumstantial proof that the
3
accused behaved accordingly on the occasion of the charged offense
4
. . . . Subdivision (a) does not permit a court to balance the
5
probative value of the evidence against its prejudicial effect. The
6
inference of a criminal disposition may not be used to establish any
7
link in the chain of logic connecting the uncharged offense with a
8
material fact. If no theory of relevancy can be established without
9
this pitfall, the evidence of the uncharged offense is simply
10
inadmissible.
11
1478. Evidence Code § 1101(b), however, permits evidence of other
12
crimes if offered to prove identity or intent, for example, not simply propensity:
13
[E]vidence of ‘other crimes’ or prior acts of misconduct may be
14
admissible provided that it has relevance to the issues of the intent or
15
identity of the accused . . . . Thus, for example, evidence of a
16
common design or plan, which might be highly probative of the
17
identity of the perpetrator or of his intent to commit the offense, may
18
very well meet relevancy standards.
19
Williams v. Superior Court, 36 Cal. 3d 441, 449, 683 P.2d 699, 204 Cal. Rptr.
20
700 (1984).
21
1479. If the evidence supporting the joined counts does not meet the test
22
under Evidence Code § 1101, it would not be cross-admissible in separate trials
23
and, therefore, joinder is potentially prejudicial although not dispositive. People
24
v. Bradford, 15 Cal. 4th at 1315-16.
25
1480. The proffered evidence must first be analyzed to determine what
26
facts are in dispute. See People v. Alcala, 36 Cal. 3d 604, 634, 685 P.2d 1126,
27
205 Cal. Rptr. 775 (1984); People v. Thompson, 27 Cal. 3d at 316 ((the trial court
28
“must examine the precise elements of similarity between the offenses with
536
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1
respect to the issue for which the evidence is proffered and satisfy itself that each
2
link of the chain of inference between the [offenses] is reasonably strong.”)
3
(quoting People v. Schader, 71 Cal. 2d 761, 775, 457 P.2d 841, 80 Cal. Rptr. 1
4
(1969)).
5
1481. Before admitting evidence of one crime to prove commission of
6
another crime, this Court requires a strong chain of inference to show that the
7
facts surrounding the commission of one crime are probative of the identity or
8
intent of the perpetrator in another crime. The court should resolve any doubts
9
regarding admissibility in favor of exclusion. See, e.g., People v. Bean, 46 Cal.
10
3d 919, 937-38, 760 P.2d 996, 251 Cal. Rptr. 467 (1988) (burglary-homicides
11
twelve blocks apart in which victims were struck on the head were not
12
sufficiently similar to allow cross admission); People v. Alcala, 36 Cal. 3d at 631-
13
36 (evidence of attacks on young girls not admissible in prosecution for murder
14
of a young girl); People v. Thompson, 27 Cal. 3d at 316-21 and note 22 (evidence
15
of prior robbery not sufficiently similar to charged robberies); People v.
16
Guerrero, 16 Cal. 3d 719, 548 P. 2d 366, 129 Cal. Rptr. 166 (1976) (rape of a 17-
17
year-old girl six weeks earlier not admissible to prove rape of a murder victim).
18
1482. In admitting other crimes evidence, the California Supreme Court
19
has also found the requirement of common marks a touchstone of cross-
20
admissibility:
21
[O]nly common marks having some degree of distinctiveness tend to
22
raise an inference of identity and thereby invest other-crimes
23
evidence with probative value. The strength of the inference in any
24
case depends upon two factors: (1) the degree of distinctiveness of
25
individual shared marks, and (2) the number of minimally distinctive
26
shared marks.
27
People v. Thornton, 11 Cal. 3d 738, 756, 523 P.2d 267, 114 Cal. Rptr. 467 (1974)
28
(overruled on other grounds in People v. Flannel, 25 Cal. 3d 668, 684 n.12, 603
537
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P.2d 1, 160 Cal. Rptr. 84 (1979) (emphasis in original). The evidence required to
2
lead to the different inferences is significant. To show common scheme or plan,
3
“the common features must indicate the existence of a plan rather than a series of
4
similar spontaneous acts, but the plan thus revealed need not be distinctive or
5
unusual.” People v. Ewoldt, 7 Cal. 4th 380, 403, 867 P.2d 757, 27 Cal. Rptr. 2d
6
646 (1994). To show identity via modus operandi, the evidence must disclose
7
common marks or identifiers that, considered singly or in combination, support a
8
“strong inference” that the defendant committed all the crimes so joined. People
9
v. Bean, 46 Cal. 3d at 937; People v. Ewoldt, 7 Cal. 4th at 403; Bradford, 15 Cal.
10
11
4th at 1316.
1483. In Petitioner’s case, many incidents were dissimilar. For example,
12
the Yu incident occurred on a public street and involved the shooting of a woman
13
following a struggle near a parked car. That case was completely dissimilar to
14
the stabbing death that occurred in the Vincow incident or the shooting deaths in
15
the Zazzara incident. They, in turn, were dissimilar to the sexual assaults in the
16
Kyle and Dickman incidents. Under People v. Bean, 46 Cal. 3d at 937, there
17
were insufficient distinctive marks among the various incidents to support a
18
strong inference that Petitioner committed all the crimes. The court should not
19
have permitted joinder under Evidence Code §§ 1101(a) or (b).
20
1484. Petitioner’s case was so unusual and unique that once some evidence
21
linked Petitioner to one incident, the jury would presume his guilt of every
22
charged crime. At the time of the trial court’s ruling, each of the joined offenses
23
was highly inflammatory. The media had identified Petitioner as the perpetrator
24
of four non-homicide incidents. Some physical evidence linked Petitioner to the
25
brutal killings of other elderly or vulnerable victims in eleven other incidents.
26
However, the disparity in the strength of evidence between non-homicide and
27
homicide incidents was likely to result in impermissible bootstrapping and
28
538
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1
spillover effects, leading inevitably to Petitioner’s conviction on all counts
2
despite the state or strength of the evidence.
3
1485. The joinder of forty-three counts involving fifteen separate incidents
4
also allowed the prosecution unfairly to exploit relatively strong fingerprint
5
evidence that existed solely in the Vincow incident to bolster evidence in other
6
incidents, such as Yu, Cannon, and Kneiding, where there was only a weak,
7
inferential link to Petitioner. Moreover, joinder of non-homicide offenses in the
8
Kyle, Bennett, Dickman, and Petersen incidents with the more inflammatory
9
murders committed in the Zazzara, Khovananth and Abowath incidents was
10
highly likely to preclude the jury from dispassionately evaluating any of the
11
evidence and from returning any verdict based solely on the evidence of each
12
particular crime.
13
1486. The prosecution needed joinder of all fifteen incidents to make its
14
case on all forty-three counts, since evidence of Petitioner’s identity as the
15
perpetrator was derived from inferential links from those incidents with
16
seemingly solid identification evidence to those with none whatsoever. In
17
closing argument, the prosecutor used the circumstantial links between the
18
attempted murders in the Petersen incident and the Zazzara murders, and those
19
between the sexual assault incidents in Dickman and Kyle, and the murders in
20
Doi, Nelson, and Bell\Lang to urge the jury to convict Petitioner on all counts.
21
1487. The prosecutor also argued that generic marks in some incidents
22
proved Petitioner’s guilt in all of the incidents. With respect to the Kneiding and
23
Zazzara incidents, for example, the prosecutor argued Petitioner’s guilt was
24
demonstrated by evidence that, although different weapons had been used, the
25
victims commonly suffered gunshot wounds to the head and three of the four
26
victims in unrelated incidents suffered cuts to the throat. (209 RT 24007.)
27
28
539
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1
1488. Manifesting the extent to which purported common marks were
2
used, the prosecutor stressed that the Kneiding residence was underneath a
3
freeway that was near another freeway that led to Vincow’s apartment:
4
[T]his was an incident that took place in Glendale, . . . just almost
5
virtually underneath the freeways there, a couple of freeways that
6
join, and just up the way there from our very first murder, that is the
7
murder of Jennie Vincow, just over the border from Los Angeles
8
into Glendale.
9
10
(209 RT 24007.)
1489. Similarly, the prosecutor urged that in the Khovananth incident
11
marks found on Mrs. Khovananth’s arm had some similarity to marks on Mrs.
12
Zazzara. (209 RT 24025.) The prosecution argued similarities in the Petersen
13
and Zazzara incidents. (209 RT 24039.) In the Dickman incident, the prosecutor
14
argued Petitioner’s guilt based on similar evidence in the Nelson and Doi
15
incidents:
16
Just like the Nelson situation, somebody has torn that screen opened
17
and tried to get in there and then opted for the cat door . . . .
18
...
19
And so we showed her the gun that we had here that was associated
20
with the Doi murder, and she said ‘yeah,’ it appeared similar to that
21
gun . . . .
22
23
24
(208 RT 23984-85; 208 RT 23988.)
1490. In the Kyle incident, the prosecutor argued there was evidence that
was identical to the Bell and Lang incident:
25
[W]e actually have the handcuffs here and the key. The key is still
26
hooked there, and you will see that that key is identical to the one
27
that was found at the Bell and Lang residence.
28
(207 RT 23893.)
540
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1
1491. The prosecutor premised the theory of guilt in all incidents on
2
tenuous common links or marks among all crimes. The prosecutor’s closing
3
argument insured that the jury would focus on inferential links and would use
4
weak, but inflammatory evidence from one incident unfairly to bolster the
5
evidence in other incidents.
6
1492. In evaluating inflammatory evidence in the fifteen unrelated
7
incidents, the Court should consider that nighttime attacks on vulnerable victims
8
in their homes, often in their own beds, are shocking and disturbing to average
9
jurors. Besides this reality, other evidence heightened the potential prejudice
10
from joinder of unrelated crimes. For example, the nature of some wounds was
11
particularly gruesome (postmortem removal of victim Maxine Zazzara’s eyes). A
12
pentagram was discovered drawn on a victim in another case. Satanist elements
13
were found in the Abowath incident.
14
1493. Empathy for a particularly vulnerable victim, revulsion at gruesome
15
acts committed on the bodies of some victims, and random attacks on average
16
citizens were likely to provoke strong emotional reactions by the jury and prevent
17
unbiased evaluation of the evidence concerning each separate incident. The
18
joinder of less sensational incidents – the attempted murders of Hernandez,
19
Bennett and the Petersens; murders in the Okazaki, Yu, Doi, Nelson, and Cannon
20
incidents; and sexual assaults in the Kyle and Dickman incidents with the more
21
sensational and inflammatory incidents – Zazzara, Bell/Lang, Kneiding,
22
Khovananth, and Abowath was thus highly prejudicial.
23
1494. In evaluating the trial court’s ruling on Petitioner’s severance
24
motion, this Court should also examine the relative levels of inflammatory
25
evidence. People v. Balderas, 41 Cal. 3d at 174-76. Inflammatory evidence
26
generally induces an irrational or emotional reaction in the jury. See, e.g., People
27
v. Karis, 46 Cal. 3d 612, 638, 758 P.2d 1189, 250 Cal. Rptr. 659 (1988)
28
(evidence that evokes emotional bias against a defendant but has little effect on
541
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1
the issues is prejudicial). One such category of evidence in this case was
2
evidence of sexual misconduct or deviant behavior. Sexual acts have an
3
exponentially greater potential for inducing emotional responses from jurors,
4
inflaming their passions, than other types of evidence. Although the state court
5
has not found that a sexual offense is inherently inflammatory (see People v.
6
Balderas, 41 Cal. 3d at 174 (in joinder of sex offense and robbery to homicide
7
count, “there was no charge or evidence particularly calculated to inflame or
8
prejudice a jury” since the behavior was not “particularly brutal, repulsive, or
9
sensational”)), there is little doubt that this sort of evidence stirs profound
10
emotions. See Coleman v. Superior Court, 116 Cal. App. 3d 129, 172 Cal. Rptr.
11
86 (1981) (joinder of child molestation count to adult rape and murder counts was
12
inflammatory).
13
1495. In Coleman, the court specifically found prejudice from the joinder
14
of unrelated incidents to be great because evidence of charged sex crimes would
15
inflame the jury in its consideration of a charged murder. Coleman v. Superior
16
Court, 116 Cal. App. 3d at 138.
17
This difficulty would be exacerbated by the fact that the murder
18
case consists primarily of circumstantial evidence; [palm and thumb
19
prints] . . . . If a juror has a reasonable and appropriate doubt about
20
the identity of the murderer, the jury may find it difficult to maintain
21
that doubt in the face of direct evidence concerning [the] repulsive
22
crimes . . . .
23
Id. Petitioner’s case is more analogous to Coleman than Balderas in that the jury
24
here, as in Coleman, had many opportunities to become inflamed by relatively
25
weak evidence that was simply brutal, repulsive, and sensational. In Balderas,
26
multiple sexual assaults all involved the same victims during a single, continuing
27
episode. The victims in Balderas were not physically harmed beyond the sexual
28
assaults. People v. Balderas, 41 Cal. 3d at 170. Here, in contrast, Petitioner’s
542
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1
jury was presented with multiple sexual assaults in four unrelated incidents
2
(Kyle, Dickman, Khovananth, and Abowath). In two of the four incidents, the
3
victims’ husbands were murdered. In eleven other incidents, sex offenses were
4
not alleged. Thus, both the number and nature of sexual assaults in some, but not
5
all, incidents constituted highly inflammatory evidence likely to infect evaluation
6
of the evidence in all remaining incidents unlike Balderas. In view of the number
7
of incidents and victims, and the extensive media attention given to events
8
surrounding Petitioner’s apprehension and trial, this case is both quantitatively
9
and qualitatively different from such cases as Balderas where joinder was upheld.
1496. Joinder has also been upheld where a defendant failed to
10
11
demonstrate prejudice. For example, in People v. Mendoza, 24 Cal. 4th 130, 162,
12
6 P.3d 150, 99 Cal. Rptr. 2d 485 (2000), the court held that evidence as to each of
13
the consolidated counts was of the same relative strength and, further, that
14
“counts likely to inflame a jury . . . were sufficiently distinct from the
15
consolidated counts as to render the likelihood of prejudice minimal.” In People
16
v. Bradford, 15 Cal. 4th at 1317, the court found that two unrelated murders were
17
“similar in nature and equally gruesome.” The court held the defendant failed to
18
show prejudice by the joinder of both counts where the prosecution’s case as to
19
each murder was “nearly equal in strength.” Id. In People v. Davis, 10 Cal. 4th
20
463, 896 P.2d 119, 41 Cal. Rptr. 2d 826 (1995), the defendant conceded that
21
evidence of sexual assault against one victim and sexual assault and murder
22
against another victim was cross-admissible. Id. at 508-09. The court ruled the
23
defendant failed to show the evidence was inflammatory. In Cummings, 4 Cal.
24
4th at 1284-85, the court held that robbery and murder charges were properly
25
joined where eyewitnesses identified the defendant as a participant in the murder,
26
thus ruling out any possibility that evidence of the robbery unfairly influenced the
27
jury.
28
543
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1497. Here, however, the prosecutor linked Petitioner to weak incidents
2
simply because the cases were joined. The tremendous difference in the
3
inflammatory nature of some murders, such as the Zazzara incident as compared
4
to the Yu incident or the Petersen attempted murder incident, rendered the joinder
5
of all incidents highly prejudicial. This case thus contrasts dramatically with
6
People v. Bradford, 15 Cal. 4th at 1315, where evidence as to some counts was
7
not sufficiently inflammatory to infect or taint other counts. See also People v.
8
Kraft, 23 Cal. 4th at 1030 (murder, mayhem, and sodomy charges alleged against
9
same victims).
10
1498. A prejudicial spillover effect also occurred in this case by joining
11
counts involving relatively weak evidence with those involving relatively strong
12
evidence. In People v. Smallwood, 42 Cal. 3d 415, 722 P.2d 197, 228 Cal. Rptr.
13
913 (1986), the court held that such erroneous joinder of counts likely
14
contributed to the defendant’s convictions. The court found that the verdicts on
15
some counts could have been the result of a compromise due to the spillover
16
effect arising from the jury’s consideration of unrelated charges. Citing Williams
17
v. Superior Court, 36 Cal. 3d 441, the court further observed that evidence on one
18
joined count was weak, thus making it more likely that joinder affected the
19
outcome. People v. Smallwood, 42 Cal. 3d at 429.
20
1499. In People v. Musselwhite, 17 Cal. 4th 1216, 954 P.2d 475, 74 Cal.
21
Rptr. 2d 212 (1998), the court again considered the potential spillover effect of
22
joining two unrelated offenses in a consolidated trial. The court stressed that the
23
evidence was not inflammatory and that the spillover effect was minimal largely
24
owing to the mental state defense and brain disorder evidence offered by the
25
defendant as to both murders. Id. at 1245-46.
26
1500. In Petitioner’s case, in contrast, strong evidence supported some
27
counts; other counts were only weakly supported. The weak counts, however,
28
were extremely inflammatory. The prosecution’s eyewitness identification
544
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1
evidence established that Petitioner was the assailant in Hernandez and Okazaki,
2
Kyle, Dickman, Khovananth, Petersen, and Abowath. Eyewitness testimony of
3
bystanders in Yu, Doi and Nelson pointed to Petitioner as the perpetrator. As to
4
the other counts, Bell and Lang, Cannon, and Nelson, there was either no
5
identification evidence or at best weak physical evidence that only tenuously
6
linked Petitioner to the crimes.
7
1501. Moreover, the evidence in each incident was not of equal strength.
8
People v. Balderas, 41 Cal. 3d at 173 (joinder of weak and strong cases may alter
9
the outcome). The spillover effect thus made it impossible for the jury to
10
compartmentalize evidence of fifteen unrelated incidents, including cases in
11
which there were eyewitnesses as compared with cases in which there were no
12
eyewitnesses and very little physical evidence to connect Petitioner to the crimes.
13
There was no safeguard against a significant spillover effect of the evidence in
14
some incidents in this case that would otherwise have been prevented had
15
Petitioner’s severance motion been granted. The trial court’s instructions did not
16
deal with the possibility of the spillover effect. (See 212 RT 24418.)
17
1502. Judicial economy was not an overriding concern. It should not have
18
outweighed inflammatory evidentiary concerns or the spillover effect. The court
19
could have easily severed Petitioner’s case, for example, into four separate
20
groups: the distinct Vincow incident; those incidents involving inflammatory
21
evidence, such as mutilation and Satanism;112 incidents with minimal
22
inflammatory evidence;113 and incidents in which no murders occurred.114
23
24
25
112
The Zazzara, Bell/Lang, Cannon, Nelson, and Khovananth incidents.
113
The Hernandez/Okazaki, Yu, Kneiding, and Abowath incidents.
114
The Bennett, Kyle, Dickman, and Petersen incidents.
26
27
28
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Petitioner’s trials overall would have been substantially shortened. As the
2
Williams court observed:
3
Although there is inevitably some duplication in cases where the
4
same defendant is involved, it would be error to permit this concern
5
to override more important and fundamental issues of justice. Quite
6
simply, the pursuit of judicial economy and efficiency may never be
7
used to deny a defendant his right to a fair trial.
8
Williams v. Superior Court, 36 Cal. 3d at 451-52.
9
1503. The state court has condemned joinder that bolsters a weak case. In
10
Bradford, for example, the court found that where evidence of guilt was stronger
11
in one case, joinder may bolster an otherwise weak case due to the cumulative
12
effect of the evidence. That is precisely what occurred here. Because of
13
similarities of some incidents, coupled with inflammatory evidence in others, the
14
cumulative effect of the evidence as a whole could not be compartmentalized by
15
the jury. Where “it would be difficult for jurors to maintain doubts about the
16
weaker case when presented with stronger evidence as to the other,” prejudice
17
has been demonstrated. Williams v. Superior Court, 36 Cal. 3d at 453; see also
18
Coleman v. Superior Court, at 138; People v. Davis, 10 Cal. 4th at 508; Bradford,
19
at 1318.
20
1504. Improper joinder of fifteen unrelated incidents was highly
21
prejudicial. Judicial economy did not justify it. There was a strong likelihood
22
that the spillover effect would ineluctably lead to Petitioner’s conviction on all
23
counts despite the evidentiary gaps in some cases.
24
1505. Overall, the joint trial of forty-three counts and nineteen special
25
circumstance allegations was unfair and amounted to a denial of due process.
26
People v. Ochoa, 19 Cal. 4th 353, 409, 966 P.2d 442, 79 Cal. Rptr. 2d 408
27
(1998); People v. Arias, 13 Cal. 4th 92, 127, 913 P.2d 980, 51 Cal. Rptr. 2d 770
28
(1996); see also People v. Johnson, 47 Cal. 3d 576, 590, 764 P.2d 1087, 253 Cal.
546
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1
Rptr. 710 (1988). Denial of due process of law in a capital trial violates the Fifth,
2
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
3
See Estelle v. McGuire (erroneous trial court evidentiary rulings implicate federal
4
due process guarantees); Walters v. Maass (infringement on federal constitutional
5
protections deprives a defendant of due process); Caldwell v. Mississippi (reliable
6
determination of penalty required under the Eighth Amendment).
7
1506. Federal authority fully protects state defendants against improper
8
joinder of inflammatory charges. See Park v. California, 202 F.3d 1146 (9th Cir.
9
2000); Procter v. Butler, 831 F.2d 1251 (5th Cir. 1987); Breeland v. Blackburn,
10
786 F.2d 1239 (5th Cir. 1986). In Bean v. Calderon, 163 F.3d 1073 (9th Cir.
11
1998), the Court ruled that the defendant was deprived of his fundamental right to
12
a fair trial because of the improper joinder of weak and strong cases. The Court
13
noted that a high risk of prejudice occurs when other-crimes evidence is
14
introduced, making it difficult for jurors to compartmentalize the damaging
15
information. The Court concluded after review of the record that joinder of the
16
two cases was fundamentally unfair because weak counts consolidated with more
17
compelling charges led the jury “to infer criminal propensity.” Id. at 1083; see
18
also United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986).
19
1507. In Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991), the
20
Court held that consolidation of separate incidents taints proceedings and renders
21
a trial fundamentally unfair where the jury is unable properly to
22
compartmentalize the evidence. In Featherstone, however, the jury failed to
23
convict the defendant on one count, thus demonstrating by its verdicts that it had
24
properly compartmentalized the evidence. In Petitioner’s case, nothing in the
25
record shows that the jury compartmentalized the highly inflammatory evidence.
26
1508. In addition, Petitioner was further prejudiced by the continued
27
impact and spillover effect of the court’s ruling during the penalty trial in
28
547
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1
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
2
States Constitution.
3
1509. A prejudicial spillover effect first occurred during the guilt trial as a
4
result of the joinder of weak and strong counts. At the penalty trial, the joinder
5
also created a spillover effect. In closing argument, the prosecutor urged
6
Petitioner’s convictions of noncapital crimes as a basis for a death verdict:
May 30, 1985, we get to the first instance where the defendant
7
8
committed one of these crimes, that is Carol Kyle, . . . and someone
9
survived that he did not intend to kill.
10
...
And I submit to you, if somebody tells you, well, that was an
11
12
act in mitigation, maybe so if the killing had ended there, see?
13
Maybe so.
14
(217 RT 24827.)
15
16
1510. The prosecutor compared less sensational murders, such as the Yu
incident to more sensational murders which involved mutilation:
17
. . . so you didn’t have the mutilation [in Okazaki] that you had in a
18
number of these other cases, but certainly very cold-blooded,
19
deliberate act and inexcusable.
20
...
21
22
23
24
March 17 also, the murder of Ms. Yu out on the street . . . .
Another terrible act again with no time to mutilate . . . .
(217 RT 24824.)
1511. In addition, any lingering doubt about Petitioner’s guilt on some
25
counts sought to be severed was removed by the prosecutor’s prejudicial
26
argument that Petitioner deserved death because of his convictions in all of the
27
fifteen unrelated incidents. (See 217 RT 24823-31; People v. Marshall, 13 Cal.
28
548
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1
4th 799 (1996); People v. Osband, 13 Cal. 4th 622, 919 P.2d 640, 55 Cal. Rptr.
2
2d 26 (1996)).
3
1512. Based on the length of the jury’s deliberations, it is reasonably likely
4
that in the absence of the prejudicial joinder, at least one juror would have voted
5
for a sentence less than death. Thus, Petitioner’s right to a reliable determination
6
of penalty was violated. Caldwell v. Mississippi, 472 U.S. at 341. The error
7
implicated Petitioner’s Eighth and Fourteenth Amendment rights.
8
9
1513. For the same reasons set forth supra, the inflammatory evidence
pertaining to fifteen consolidated incidents produced a spillover effect and
10
precluded a fair and reliable determination of penalty. Given the nature of the
11
defense at the guilt trial coupled with the total absence of mitigation evidence at
12
the penalty trial, the penalty of death determination was unreliable in this case in
13
violation of the Eighth Amendment. Caldwell v. Mississippi, 472 U.S. at 341.
14
1514. The erroneous denial of a severance motion or improper joinder of
15
charges is of federal constitutional dimension. For the same reasons discussed in
16
Bean v. Calderon, 163 F.3d 1073, and Park v. California, 202 F.3d 1146, joinder
17
of fifteen unrelated incidents in the present case violated Petitioner’s rights to due
18
process of law and fair trial in violation of the Fifth, Sixth, Eighth, and
19
Fourteenth Amendments to the United States Constitution. In light of
20
Petitioner’s convictions – twelve counts of first degree murder, one count of
21
second degree murder, thirty additional felony counts, and nineteen true special-
22
circumstance findings – it cannot be said that the jury was effectively able to
23
compartmentalize the damaging, spillover information. Considering as well the
24
absence of any mitigating evidence at the penalty trial, the conclusions are
25
inescapable that joinder could not have been harmless beyond a reasonable doubt
26
and that Petitioner was denied a reliable and meaningful determination of penalty
27
in violation of the Eighth Amendment. Caldwell v. Mississippi, 472 U.S. at 329.
28
549
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1
1515. Violation of federal due process and fair trial rights occurs where the
2
improper joinder of charges renders a trial unfair. Park v. California, 202 F.3d
3
1146 (9th Cir. 2000). Petitioner’s Fifth, Sixth, Eighth, and Fourteenth
4
Amendment rights were violated by the improper consolidation of charges at
5
trial. Petitioner’s rights to due process, a fair trial, and a reliable penalty
6
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments were
7
also violated because the improper joinder unfairly tipped the scales toward
8
death. Washington v. Texas, 338 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 119
9
(1967); Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385
10
(1991).
11
1516. The foregoing violations of Petitioner’s constitutional rights, taken
12
singly or in combination with the other errors alleged in the Petition, constitute
13
structural error and warrant the granting of this Petition without any
14
determination of whether the violations substantially affected or influenced the
15
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
16
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
17
doctrine applies to this claim, the foregoing constitutional violations, singly and
18
in combination with the other errors alleged in this Petition, so infected the
19
integrity of the proceedings that the error cannot be deemed harmless. The
20
foregoing violations of Petitioner’s rights had a substantial and injurious effect
21
or influence on Petitioner’s convictions and sentences, rendering them
22
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
23
637-38.
24
25
26
27
28
550
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1
CLAIM 21:
2
THE TRIAL COURT VIOLATED PETITIONER’S
3
CONSTITUTIONAL RIGHTS BY DENYING HIS MOTION
4
TO HAVE A JURY DRAWN FROM A REPRESENTATIVE
5
CROSS-SECTION OF THE COMMUNITY
6
1517. Exhaustion of the claim: This claim was fairly presented to the
7
California Supreme Court in the direct appeal. It was presented in Section VI of
8
the Opening Brief.
9
1518. In support of this claim, Petitioner alleges the following facts,
10
among others to be presented after full discovery, investigation, adequate
11
funding, access to this Court’s subpoena power, and an evidentiary hearing.
12
1519. Those facts and allegations set forth elsewhere in this petition, and
13
the claims of constitutional violations and the accompanying exhibits are
14
incorporated by reference as if fully set forth herein to avoid unnecessary
15
duplication.
16
1520. Petitioner’s trial was held in the Superior Court of Los Angeles
17
County in the downtown region of the City of Los Angeles. Both the superior
18
and municipal courts housed in the downtown courthouse were part of a segment
19
of Los Angeles County courts known as the “Central Judicial District.” All
20
superior and municipal courts of every district in Los Angeles County shared the
21
same jury pool managed by the Los Angeles County Office of the Jury
22
Commissioner.
23
1521. On January 20, 1988, prior to jury selection, Petitioner challenged
24
the composition of Los Angeles County jury pools and moved to quash all
25
existing panels.115 Petitioner alleged that Los Angeles County jury selection
26
27
28
115
The motion was not part of the record on appeal. Subsequent to record
certification, Petitioner filed with the California Supreme Court, pursuant to
551
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1
procedures failed to comply with California Code of Civil Procedure § 190 et
2
seq., that cognizable groups were unconstitutionally excluded from the jury pool
3
for Los Angeles County and its downtown superior court, and that Petitioner was
4
denied his right to a representative cross-section of the community guaranteed by
5
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
6
In response, the prosecution asserted that Petitioner failed to make a prima facie
7
showing of systematic exclusion of a cognizable group. (26 CT 7578-88.)
8
9
10
1522. The trial court heard Petitioner’s motion during various hearings in
April and May 1988. (See 26 CT 7650-53, 7659, 7661-62, 7680-82, 7684.)
1523. On April 1, 1988, defense counsel moved to continue both the jury
11
composition hearing and the trial because the new 1988-1989 master list
12
containing most of Petitioner’s jurors would not be completed or available to
13
study until sometime in May or June 1988. (51 RT 3392, 3397, 3413.) The
14
prosecution argued that the claim could be proven using statistics from any fiscal
15
year’s master list. “(I)f the jury selection system is systematically invalid at this
16
time, . . . it will be systematically invalid in the future . . . . The statistics are not
17
going to change.” (51 RT 3383, 3506.) The court agreed with the prosecution
18
that no statistically significant difference existed from one fiscal year to the next
19
and denied defense counsel’s motion to continue. (51 RT 3511.) Defense
20
counsel objected. (51 RT 3513.)
21
1524. Beginning in 1984, the California legislature required jury
22
commissioners to merge the Registrar of Voters (ROV) list with the California
23
Department of Motor Vehicle (DMV) list of drivers when creating their master
24
list of qualified and eligible jurors. (51 RT 3462; 52 RT 3629.) The DMV list in
25
26
27
28
California Rules of Court, Rule 12, a motion to augment the record on appeal to
include Petitioner’s motion challenging the composition of the jury pool
summoned to the Los Angeles County Superior Court in downtown Los Angeles.
On February 13, 2002, the court so ordered.
552
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Los Angeles County at the time of Petitioner’s trial contained 5 million names
2
compared to the Registrar of Voters (ROV) list which contained 3 million names.
3
(52 RT 3582.) According to testimony of Raymond Arce, Director of Jury
4
Management, Los Angeles County Office of the Jury Commissioner, a merger of
5
the larger DMV list with the smaller ROV list was expected to result in a more
6
inclusive jury pool and remedy under-representation of minority groups. Yet Mr.
7
Arce found no statistically significant increase in minorities on the master jury
8
lists from 1984 to 1987 as a result of his office’s annual merging of ROV and
9
DMV lists for Los Angeles County. (51 RT 3431; 58 RT 4212.)
10
1525. Mr. Arce was unaware that his data processing staff was erroneously
11
deleting multiple names from the master jury list. (58 RT 4230.) During his first
12
appearance at the jury composition hearings, Mr. Arce explained why he had
13
instructed Los Angeles County data processors to include a field for driver and
14
voter addresses in the county’s matching software program. He said, “(T)he
15
more information you have, the more likely you are to make a good decision . . .
16
(when) eliminating a name as being (a) duplicate.” (58 RT 4197, 4213, 4215.)
17
Mr. Arce’s staff’s error became evident when expert witnesses from both sides
18
met with his staff at the Department of Data Processing to discuss their matching
19
software and merger procedures. (52 RT 3618, 3628; 57 RT 4146-48.) Mr.
20
Arce’s computer staff explained that their matching software was capable of
21
including fields for driver and voter addresses, birth dates, age, and sex. They
22
just had not complied with Mr. Arce’s instruction to include the address field and
23
to check whether addresses matched before deleting duplicate names. (57 RT
24
4103, 4105, 4146-47, 4150.) Mr. Arce testified that addresses should have been
25
included, that no name should have been deleted without first checking its
26
address, and that he had never questioned his staff to check whether or not his
27
instructions had been followed. (58 RT 4232.)
28
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1
1526. Mr. Arce testified that his staff was comparing only last names and
2
the first four letters of first names. They were “tak(ing) a common name such as
3
Jose Jiminez” from the ROV list and deleting it wherever it appeared again in the
4
DMV list when in fact those names on the DMV list represented “a unique person
5
and should (have been) added” to the master list. (52 RT 3673; 58 RT 4207.)
6
1527. Petitioner introduced Dr. John Weeks, a demographics expert and
7
professor of sociology at San Diego State University, who testified that the
8
problem of common first and last names is even more prevalent for Spanish-
9
origin names. The mismanagement of the matching software had caused a
10
disproportionate exclusion of Hispanics from the master jury list. (57 RT 4146-
11
47; 53 RT 3749; 57 RT 4101.)
12
1528. Both Mr. Arce and Dr. Nancy Minter, the prosecution’s expert in
13
demographics employed by the County of Los Angeles, agreed with Dr. Weeks
14
that adding an address field would increase the number of Hispanics in the jury
15
pool for the downtown Los Angeles County courthouse, although they disagreed
16
on the extent of the increase. (60 RT 4488; 62 RT 4660-65.)
17
1529. Experts also agreed it would take minimal cost and about two
18
months for changes to the matching program to increase the number of Hispanics
19
in the jury pool. (51 RT 3408; 58 RT 4225; 60 RT 4409-12, 4488-89.) Mr. Arce
20
informed the trial court that the new master jury list for the 1988-89 fiscal year
21
would be compiled in May and go into effect in early June; however, any changes
22
to the matching program could not be implemented until the end of August 1988
23
at the very earliest. (52 RT 3526; 58 RT 4225.) Voir dire of jurors for
24
Petitioner’s trial began in July 1988.
25
1530. Taking note of “a certain lightness . . . in the number of Hispanics . .
26
. in the jury lounge,” the trial court suggested to Mr. Arce that he take steps to
27
include addresses in the matching software. The trial court declined to order Mr.
28
Arce to make that change because it did “not want to take over the jury selection
554
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1
process in this county or the Jury Commissioner’s Office.” (61 RT 4653.) Mr.
2
Arce reported to the trial court on June 7, 1988, that he had not been able to add
3
addresses to the matching software as the trial court requested. (62 RT 4660-65.)
4
Mr. Arce explained that the Department of Data Processing had experimented on
5
a sample list using new software and adding a field for birth dates but not
6
addresses. Jurors from the resulting list were mailed questionnaires and would
7
enter the jury lounge with jurors from older lists by approximately mid-July. Full
8
first names were still not included, and addresses would not be included until
9
September or October, well after Petitioner’s jurors were summoned to court.
10
11
(Id.)
1531. Petitioner renewed his request to continue the trial until Mr. Arce
12
could institute agreed upon changes to the 1988-1989 master jury list. Defense
13
counsel wanted to prevent re-litigation of the issue. (69 RT 4244.) The trial
14
court denied a continuance and said, “We’re not going to re-litigate this issue that
15
we have litigated once.” (68 RT 4253.)
16
1532. Mr. Arce also testified that potential jurors were deleted from the
17
master jury list whenever their preliminary questionnaires were incomplete, lost,
18
or otherwise unreturned. (52 RT 3553.) He added that California Code of Civil
19
Procedure § 204.3(B) made it optional for courts to send follow-up letters to track
20
lost, unreturned, or incomplete jury questionnaires, so Los Angeles County courts
21
had opted not to follow up. (51 RT 3448; 52 RT 3559.) Mr. Arce estimated that
22
11 percent more Hispanics would qualify for jury service if Los Angeles County
23
changed the policy and required courts to follow up on lost, unreturned, and
24
incomplete questionnaires. (51 RT 3443.)
25
1533. Dr. Weeks testified that the lack of follow up by Los Angeles
26
County courts disproportionately excluded Hispanics from the jury pool since
27
more than half of all lost, unreturned, and incomplete jury questionnaires were
28
originally sent to people with Hispanic last names. Dr. Weeks estimated that 47
555
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1
percent of Hispanics excluded for not properly responding to questionnaires
2
would have otherwise qualified as eligible jurors. (51 RT 3401, 3404, 3487-88;
3
52 RT 3636, 3639-40; 53 3685.)
4
1534. While Dr. Minter agreed that Hispanics are disproportionately
5
represented among people who do not respond to the jury questionnaire, she
6
theorized that Hispanics disqualify themselves and purposefully fail to return the
7
questionnaires because they are non-citizens or do not speak English. (55 RT
8
4005-4008.) Dr. Weeks suggested that Dr. Minter was overestimating self-
9
disqualification among Hispanics compared to any other ethnic group. He cited
10
supporting studies in Riverside and San Diego Counties. (52 RT 3620-24; 53 RT
11
3671, 3690.) Dr. Weeks asked for the Court’s permission and time to take a
12
sample of recently sent and returned questionnaires to determine the population
13
of self-disqualifying Hispanic jurors in Los Angeles County and to determine
14
whether follow-ups would increase all races proportionately, or whether it would
15
disproportionately increase the number of jury-eligible Hispanics. (53 RT 3686.)
16
The court disallowed the study and suggested that Dr. Weeks had enough
17
information from other counties to give his opinion. The court called the issue
18
“nebulous” and “a filigree” with no statistical significance. (53 RT 3826-27.)
19
1535. In Dr. Weeks’ opinion the timing of the DMV/ROV merger
20
systematically excluded eligible 18 and 19-year-old jurors and by extension,
21
eligible Hispanic jurors. Mr. Arce testified that the first step in the merger of the
22
two lists was to remove anybody on the DMV list who was under 18 years old.
23
(52 RT 3582.) Dr. Weeks noted that because DMV lists were created in
24
November, DMV data was outdated before the ROV/DMV merger in July. On
25
the date of the master jury list’s production, half of 18 year olds on the DMV list
26
had turned 19 and half of the 19-year-olds had turned 20. By the end of the fiscal
27
year, the list had no 18-year-old potential jurors. (60 RT 4422.) Dr. Weeks
28
estimated that 84 percent of Los Angeles County’s 18 to 20-year-olds were
556
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1
under-represented on the jury master list. Two-thirds of that under-representation
2
related to Los Angeles County’s merger timing problem. (Id.) Dr. Weeks
3
offered the solution of leaving all drivers on the DMV list, adding birth dates to
4
the matching software, and phasing eligible jurors in as they became 18-years-
5
old. (60 RT 4422.) Although Mr. Arce and his staff eventually added a birth
6
date field to the matching software, the Office of the Jury Commissioner did not
7
rectify the timing issue. (62 RT 4660.) According to Dr. Weeks, young people
8
in Los Angeles County are disproportionately Hispanic, so their exclusion from
9
the master jury list further reduced the percentage of Hispanics in the jury room.
10
11
(53 RT 3685.)
1536. Dr. Weeks testified that the jury commissioner’s system for merging
12
ROV and DMV lists relied too heavily upon the ROV list as the primary source
13
for jurors. The result was a jury lounge more closely aligned to the list of voters
14
than to the population in Los Angeles County. (57 RT 4095-4101.) Even
15
Hispanics who were eligible to vote were three-fourths less likely to register to
16
vote than non-Hispanics. (60 RT 4418.) Consequently, the ROV list was
17
missing a significant portion of eligible Hispanic jurors. (52 RT 3621, 3627.)
18
The DMV list more closely represented the population of Los Angeles County.
19
(52 RT 3628.)
20
1537. The trial court ordered Mr. Arce and Dr. Weeks to perform a test to
21
determine whether it mattered which list the jury commissioner used as the
22
primary list when merging and matching names. (53 RT 3812-14.) Dr. Weeks
23
and Mr. Arce took a 1 percent sample from both the ROV and DMV lists to
24
create a test sample master lists. The list was 26 percent Hispanic when the
25
DMV list was the primary source and only 19 percent Hispanic when the ROV
26
list was the first source. (57 RT 4144; 58 RT 4201.) Dr. Weeks concluded that
27
the DMV list was more representative and the ROV list was inadequate; that an
28
inadequate primary source list creates an inadequate master jury list; and that Los
557
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1
Angeles County should either use the DMV list as the primary source or merge
2
both lists to avoid the primary source list problem. (52 RT 3625, 3629.)
3
1538. Dr. Weeks supposed that a preference in procedure that gave the
4
ROV list greater weight, the invasive deletion of eligible jurors’ names from the
5
list, the six-month delay in merging the DMV list, and the lack of follow up for
6
lost, incomplete, or unreturned questionnaires could account for the fact that Mr.
7
Arce had found no statistically significant increase in eligible Hispanic jurors
8
even after DMV lists began to be merged in 1984. (52 RT 3628.)
9
1539. Population of Hispanics in the jury lounge: Dr. Weeks and Mr. Arce
10
did a study of jurors who appeared in the downtown Los Angeles County
11
Superior Court from August 5 to December 14, 1987. Of the 10,125 jurors
12
sampled from the court’s jury lounge, 14 percent identified themselves as
13
Hispanic. (52 RT 3596.) Experts on both sides used 14 percent as their base for
14
comparison.
15
1540. Community: The trial court heard testimony from all of the expert
16
witnesses defining the community from which jurors were summoned to the
17
downtown Los Angeles Superior Court. Three possibilities were discussed: the
18
Central Judicial District, a 20-mile radius, and Los Angeles County.
19
a.
The “Central Judicial District” community was defined as a
20
relatively small geographic area around the courthouse in downtown
21
Los Angeles. Experts agreed that the “Central Judicial District”
22
community contained the largest percentage of Hispanics among all
23
of the definitions of community, though they could not agree upon
24
exact population figures. (60 RT 4500.) In Dr. Minter’s opinion,
25
the “Central Judicial District” community was too small of an area to
26
represent the population from which jurors were drawn to the
27
courthouse in downtown Los Angeles. Dr. Minter thought this
28
definition of community was statistically unworkable and unrealistic
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because “20 percent of the population (of Los Angeles County) is
2
not supplying 40 percent of the jurors.” (60 RT 4454.) Asked by
3
the prosecution how he could make population comparisons for the
4
“Central Judicial District” community when jurors presently sitting
5
in the jury lounge were drawn from an area larger than the “Central
6
Judicial District” community, Dr. Weeks conceded that it required
7
certain mathematical assumptions, but fewer than the assumptions
8
required to make the same comparisons using the community
9
defined as the 20-mile radius. (53 RT 3740.)
10
b.
The idea of a community of jurors within a 20-mile radius of the
11
courthouse originated from language in California Code of Civil
12
Procedure § 203: “No juror shall be required to serve at a distance
13
greater than 20 miles from his or her residence.” (52 RT 3529.) Mr.
14
Arce of the Jury Commissioner’s Office testified that in Los Angeles
15
County, a juror’s name would be pulled randomly from the master
16
list. If a court within 20 miles of the juror’s residence needed jurors
17
that day, the juror would be summoned to that court. If no court
18
within 20 miles of the juror’s residence needed a juror, then that
19
juror was rejected and a new juror’s name was pulled from the
20
master list.
21
i.
Many courts in Los Angeles County were closer then
22
20 miles from each other and shared portions of jurors
23
from both of their 20-mile radii. (52 RT 3544.) Dr.
24
Weeks testified that the overlapping nature of these 20-
25
mile radius communities created a “non-probability
26
sample” since it was not possible to establish in
27
advance the probability that any eligible juror within
28
the 20-mile radius of a given courthouse could be
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1
drawn to that court. (57 RT 4107.) The population of
2
the 20-mile radius was unpredictable and unquantifiable
3
on any given day. At the Los Angeles County level, a
4
juror was drawn randomly and placed on the master list.
5
The juror’s name then could be drawn randomly from
6
the master list. But if that juror resided within the 20-
7
mile radii of two or more courthouses that required
8
jurors on the same day, the jury commissioner’s staff
9
had to decide which courthouse to place the juror. The
10
decision was based upon the juror’s residence, but it
11
was no longer random.
12
ii.
Mr. Arce testified that the Los Angeles County master
13
jury list provided jurors for both the superior and the
14
municipal courts. (52 RT 3527.) The downtown Los
15
Angeles court where Petitioner’s case was heard shared
16
an overlapping 20-mile radius with the municipal court
17
in the same building and with other courts in Los
18
Angeles County as well. Dr. Weeks said the 20-mile
19
radius around the downtown court in Los Angeles was
20
not a community from which jurors could be adequately
21
counted or compared because its population could not
22
be statistically defined. Too many variables remained
23
consistently unknowable. (53 RT 3752-69, 3771,
24
3784.) Dr. Minter added that the smaller size of the 20-
25
mile radii made those communities more fluid in
26
population and increased the possibility of statistical
27
error. (55 RT 4055; 60 RT 449.)
28
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iii.
In Williams v. Superior Court, 49 Cal. 3d 736, 781 P.2d
2
537, 263 Cal. Rptr. 503 (1989), a case litigated in Los
3
Angeles County at the same time as Petitioner’s case,
4
the prosecution maintained that the community was the
5
predominantly Caucasian “Central Judicial District.”
6
The prosecution argued in Williams that the “20-mile
7
radius” community created overlaps such that jurors
8
could reside in multiple “communities” at once and be
9
counted multiple times, and would require the jury
10
commissioner to violate numerous provisions of state
11
and federal statutory and constitutional law in the
12
course of jury selection, thus a “community” so defined
13
would not be a “community” in any meaningful sense.
14
Id. In Petitioner’s case, the prosecution preferred to
15
define community as the “20-mile radius” to include
16
predominantly Caucasian neighborhoods outside the
17
predominantly Hispanic “Central Judicial District.” It
18
is evident that the prosecution manipulated definitions
19
of “community” differently to suit their cases.
20
iv.
The trial court had a more intuitive understanding of the
21
20-mile radius and could not comprehend why the “20-
22
mile radius” community would not work for
23
comparisons, as so many Hispanics lived near the
24
downtown courthouse in Los Angeles. Dr. Weeks
25
explained to the trial court that its bull’s eye approach
26
was a statistically inaccurate way to measure the issue.
27
(53 RT 3771-72.) Dr. Minter gave a similar
28
explanation to the trial court about why prudence is
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1
required in making statistical assumptions about the
2
race of residents within the different 20-mile radii. (60
3
RT 4502.)
4
c.
All of the experts agreed that Los Angeles County was well defined
5
and its population statistics were easily determined. (57 RT 4110;
6
60 RT 4500.) According to Dr. Weeks, “The only disparity
7
(figures) that we can really rely upon in this case is the disparity that
8
we have found in the master list, because we know what the entire
9
community of Los Angeles (County) should look like in terms of
10
(the) percent(age) of Hispanic(s).” (57 RT 4110.) In Dr. Minter’s
11
opinion, county-wide calculations were more specific and required
12
less assumption than the other community models. (60 RT 4504.)
13
1541. Standard Deviation: Dr. Weeks calculated that 37.6 percent of the
14
population of Los Angeles County were Hispanic as of the 1980 census. (52 RT
15
3597; 3615.) Dr. Weeks and Mr. Arce studied a sample of 10,125 jurors in the
16
downtown Los Angeles Superior Court over a period of four months. (57 RT
17
4144; 58 RT 4201.) Given the population of 37.6 percent Hispanic in Los
18
Angeles County, Dr. Weeks would have expected the number of Hispanics
19
among the 10,125 people summoned to serve at the downtown courthouse over 4
20
months to be 3,807. The observed number of Hispanics in the courthouse was 14
21
percent, or 1,418 Hispanics. (Id.) Dr. Weeks testified that the difference between
22
the expected value (3,807) and the observed number (1,418) with 49 standard
23
deviations is so large that “there is less than one chance in a ... million that we
24
would get this kind of difference only by chance alone.” (57 RT 4129-31; see
25
26
27
28
562
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also 53 RT 3763-64, 4130; 57 RT 4110.) Generally, a standard deviation of 2 or
2
3 is considered large enough to be suspect.116
3
1542. Even after subtracting for lack of English proficiency and
4
citizenship, Dr. Weeks said that he would expect to find a 24.3 percent117
5
Hispanic population in jury pools at the “bare minimum.” (52 RT 3601.) He
6
cautioned, though, that calculating in the language and citizenship disqualifiers
7
for Hispanics only and not for other non-English-speaking and non-citizen groups
8
skewed the statistics. (53 RT 3741-48, 3774, 3804; 57 RT 4113.) Dr. Minter did
9
not have an estimate for 1987 but did give an estimate of the population of
10
Hispanics in Los Angeles County in 1985. Subtracting a percentage of Hispanics
11
which she believed would be disqualified for language and citizenship, Dr.
12
Minter gave her opinion that the population in Los Angeles County in 1985
13
included 15.7 percent jury-eligible Hispanics.118 (60 RT 4453.)
14
15
16
17
18
19
20
21
22
23
24
25
26
116
The data reflect a difference between the expected and observed
number of Hispanics of approximately 49 standard deviations since the square
root of 10,125 multiplied by .376 multiplied by .624 is 49. “As a general rule ...
if the difference between the expected value and observed number is greater than
2 or 3 standard deviations, then the hypothesis that the jury drawing was random
would be suspect to a social scientist.” Casteneda v. Partida, 430 U.S. 482, 496
n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (explaining how to calculate
standard deviations); see also United States v. Rodriguez-Lara, 421 F.3d 932,
943 n.10 (9th Cir. 2005); Hirst v. Gertzen, 676 F.2d 1252, 1258 n.14 (9th Cir.
1982) (suggesting courts are incorrect to rely upon “absolute disparity” analysis
which can be less accurate than standard deviation in some cases).
117
The data reflect a difference between the expected and observed
number of Hispanics of approximately 43 standard deviations. (The square root
of 10,125 multiplied by .243 multiplied by .757 is 43.)
118
27
28
The data reflect a difference between the expected and observed
number of Hispanics of approximately 36 standard deviations. (The square root
of 10,125 multiplied by .157 multiplied by .843 is 36.)
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1543. Absolute and Comparative Disparities: Mr. Arce provided Drs.
2
Weeks and Minter with 1980 United States Census data for two geographic areas
3
within the boundaries of the “Central Judicial District” and the “20-mile radius”
4
communities. Dr. Weeks requested data for the entire Los Angeles County but
5
never received that information from Mr. Arce. (53 RT 3702.)
6
a.
Dr. Weeks estimated 37.6 percent of the “Central Judicial District”
7
community to be Hispanic. Compared to the 14 percent population
8
in the downtown Los Angeles jury lounge survey, Dr. Weeks
9
calculated an absolute disparity119 of 23.6 percentage points. (51 RT
10
3476.) This meant a relative or comparative disparity of 63 percent
11
under-representation of Hispanics in the jury pool.120 Dr. Minter did
12
not contest Dr. Weeks’ figures as to the “Central Judicial District”
13
community. (60 RT 4479-81.)
14
b.
Dr. Weeks estimated 27 percent of the population within the “20-
15
mile radius” community to be Hispanic. (52 RT 3615.) Compared
16
to the 14 percent population in the downtown Los Angeles jury
17
lounge survey, Dr. Weeks calculated an absolute disparity of 13
18
percentage points. This meant a 48 percent under-representation of
19
Hispanics in the jury pool.
20
1544. One dispute with the census numbers was whether upward
21
adjustments were needed to reflect a disproportionate Hispanic population growth
22
from 1980 to 1987. All of the expert witnesses agreed that the 1980 census data
23
was outdated and that the Hispanic population had increased in Los Angeles
24
25
26
27
28
119
“Absolute disparity” is the difference between the percentage of a
group within a community and its percentage in the jury pool.
120
“Comparative” or “relative” disparity is a ratio of the absolute disparity
and the expected number in the population (census data).
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County from 1980 to 1987, though Dr. Minter was not certain that the Hispanic
2
population had grown more rapidly than the remainder of the population. (51 RT
3
3486; 55 RT 3998-99; 4019, 4023.)
4
1545. Dr. Weeks adjusted upward for an estimated 8 percent growth in the
5
jury-eligible Hispanic population from 1980 to 1987. He used data of similar
6
growth in the population between 1970 and 1979 of jury-eligible Hispanics over
7
the age of eighteen. (52 RT 3611-14; 53 RT 3713.) Dr. Minter estimated a 7.5
8
percent population growth from 1980 to 1985. (60 RT 4481.)
9
a.
Accounting for a disproportionate increase in the population of
10
Hispanics in Los Angeles County, Dr. Weeks gave what he
11
considered a conservative estimate that 26.3 percent of the “Central
12
Judicial District” community was Hispanic. (52 RT 3611.)
13
Compared to the 14 percent in the downtown Los Angeles jury
14
lounge survey, Dr. Weeks calculated an absolute disparity of 12.3
15
percent. This meant a relative disparity of 47 percent under-
16
representation of Hispanics in the jury pool.
17
b.
Accounting for a disproportionate increase in the population of
18
Hispanics in Los Angeles County, Dr. Weeks estimated 17.5
19
percent of the “20-mile radius” community to be Hispanic. (52 RT
20
3615.) Compared to the 14 percent in the downtown Los Angeles
21
jury lounge survey, Dr. Weeks calculated an absolute disparity of
22
3.5 percent. This meant a relative disparity 20 percent under-
23
representation of Hispanics in the jury pool.
24
c.
Dr. Minter disagreed with Dr. Weeks that population growth
25
statistics could be applied uniformly below the Los Angeles County
26
level to smaller communities such as the “20-mile radius”
27
community. (60 RT 4453; 4498.)
28
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1546. Another dispute regarding the 1980 census figures was whether
2
downward adjustments were needed to reflect jury disqualifications of language
3
and citizenship particular to the Hispanic population. The trial court believed that
4
a downward adjustment of the Hispanic population in the 1980 census was
5
required. (53 RT 3778-80.) Experts on both sides disagreed with the trial court.
6
Dr. Weeks explained that a downward adjustment for one race would skew
7
disparity and deviation calculations. (53 RT 3748.) Dr. Minter said there was no
8
statistical difference in excusals between non-Hispanics with a 62.8 percent
9
excusal rate, and Hispanics, with a 63.5 percent excusal rate for all reasons,
10
including citizenship, language difficulties, and hardship. (53 RT 3748; 55 RT
11
4034.) Dr. Weeks explained, “When you meet an Hispanic on the street, he or
12
she is just as likely to be qualified for jury service as the non-Hispanic that you
13
meet on the street.” (52 RT 3638, 3652.) Dr. Weeks’ advice was to take out all
14
eligibility factors, or include them all, but not to take out some factors piecemeal.
15
(57 RT 4113.) The trial court acknowledged a “standstill” on the issue and
16
requested that Dr. Weeks “try to convince me I’m wrong on this or . . . confine
17
yourself to numbers involving people of Hispanic descent who would be eligible
18
to serve on a jury.” (53 RT 3778-80; 3804; 57 RT 4112.)
19
a.
To accommodate the trial court, Dr. Weeks made estimates taking
20
into account English language deficiency and non-citizenship. He
21
estimated 24.3 percent of the “Central Judicial District” community
22
to be Hispanic. (52 RT 3600.) Compared to the 14 percent in the
23
downtown Los Angeles jury lounge survey, Dr. Weeks calculated an
24
absolute disparity of 10.3 percentage points. (53 RT 3751.) This
25
meant a 42 percent under-representation of jury-eligible Hispanics in
26
the jury pool.
27
28
b.
Accounting for English language deficiency and non-citizenship, Dr.
Weeks estimated 16.1 percent of the “20-mile radius” community to
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1
be Hispanic. (52 RT 3615.) Compared to the 14 percent in the
2
downtown Los Angeles jury lounge survey, Dr. Weeks calculated an
3
absolute disparity of 2.1 percentage points. This meant a 13 percent
4
under-representation of jury-eligible Hispanics in the jury pool.
5
c.
Dr. Minter testified that the percentage of Hispanics with citizenship
6
and proficiency in the English language was 16.3 percent of the
7
population in the “20-mile radius” community. (55 RT 3988.)
8
Compared to the 14 percent in the downtown Los Angeles jury
9
lounge survey, Dr. Minter found an absolute disparity of 2.3 percent.
10
This meant a 14 percent under-representation of Hispanics in the
11
jury pool. (55 RT 4913.)
12
1547. On May 31, 1988, the court denied Petitioner’s motion and declined
13
to order any changes in the jury pool selection or the ROV/DMV merger
14
procedures. The trial court suggested, but did not order, that Mr. Arce should
15
make changes to the merger software to include an address match, but changes
16
were not implemented before voir dire of the jury for Petitioner’s trial. (62
17
RT 4653, 4660-65.)
18
1548. The trial court found that the jury selection process and procedures
19
in Los Angeles County complied with Code of Civil Procedure § 190 et. seq. (61
20
RT 4653.)
21
1549. As a matter of law, the court found that the appropriate community
22
for comparison was the “20-mile radius” and not the “Central Judicial District” or
23
Los Angeles County. (61 RT 4652.)
24
1550. Although finding Hispanics a cognizable group and stating that it
25
was “frankly troubled by the number” (61 RT 4652), the trial court did not find a
26
constitutional violation in the deviations and disparities between the percentage
27
of Hispanics in the “20-mile radius” community and Hispanics summoned to the
28
downtown Los Angeles County Superior Court. (See id. at 4650-53.) The trial
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1
court said the disparity “does not appear to this court to be of constitutional
2
significance, but it does appear to this court that there is a certain lightness, if you
3
will, in the number of Hispanics that actually appear in the jury lounge.” (Id. at
4
4652.)
5
A.
The Los Angeles County Jury Selection Procedures Violated the “Fair
6
Cross Section” Requirements of the Sixth Amendment and the Equal
7
Protection Clause of the Fourteenth Amendment
8
1551. The Sixth Amendment provides:
9
In all criminal prosecutions, the accused shall enjoy the right to a
10
speedy and public trial, by an impartial jury of the State and district
11
wherein the crime shall have been committed, which district shall
12
have been previously ascertained by law.
13
1552. The rights to jury trial guaranteed by the Sixth Amendment and the
14
California Constituion are “coextensive protections and the analysis identical.”
15
People v. Bell, 49 Cal. 3d 502, 525 n.10, 778 P.2d 129, 262 Cal. Rptr. 1 (1989).
16
The federal guarantee of a trial by a jury of one’s peers is a fundamental
17
constitutional right. People v. Collins, 26 Cal. 4th 297, 304, 27 P. 3d 726, 109
18
Cal. Rptr. 2d 836 (2001). Indeed, there is no more fundamental provision of the
19
Bill of Rights than the right of a criminal defendant to a trial by an impartial jury
20
selected from a representative cross-section of the community. Taylor v.
21
Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).
22
1553. In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579
23
(1979), the Supreme Court held that the fair cross-section requirement of the
24
Sixth Amendment was violated by the disproportionate exclusion of women from
25
jury venires. Duren found that jury venires must represent the community and
26
systematic exclusion of women from juries by virtue of automatic exemption
27
violated the Sixth Amendment. Id. at 363-64. To establish a prima facie
28
violation of the fair cross-section requirement, Duren held, a defendant must
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1
show: (1) that a group alleged to be excluded is “distinctive” in the community
2
(Duren prong one); (2) the representation of this group in jury venires is not fair
3
and reasonable in relation to the number of such persons in the community
4
(Duren prong two); and (3) the under-representation is the result of systematic
5
exclusion of the group in the selection process (Duren prong three). Duren v.
6
Missouri, 439 U.S. at 364; see also Thomas v. Borg, 159 F.3d 1147, 1149-50 (9th
7
Cir. 1998). In People v. Sanders, 51 Cal. 3d at 491-93, the court held that a jury
8
must be drawn from a representative cross-section of the community and
9
reaffirmed the Duren three-pronged analysis. See People v. Ochoa, 26 Cal. 4th
10
398.
11
1.
Duren prong one
12
1554. All parties below, and the trial court, agreed that Hispanics are a
13
distinctive group. The Supreme Court has so held. Castaneda v. Partida, 430
14
U.S. 482, 97 S. Ct. 1272, 51 L. Ed.2d 498 (1977); Lockhart v. McCree, 476 U.S.
15
162, 175, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). Duren prong one was
16
satisfied in this case as to the Hispanic population in the downtown Los Angeles
17
courthouse.
18
2.
Duren prong two
19
1555. As to the second Duren prong, the Supreme Court ruled that a
20
defendant may rely on census data for adults to establish “the percentage of the
21
community made up of the group alleged to be under represented, for this is the
22
conceptual benchmark for the Sixth Amendment fair cross-section requirement.”
23
Duren, 439 U.S. at 364. The use of census data on the actual population of the
24
community, rather than more detailed data on the “jury eligible” population of the
25
community, was reaffirmed in Castaneda v. Partida, 430 U.S. 482; see also
26
People v. Harris, 36 Cal. 3d at 53-54.
27
1556. In Harris, the court rejected the prosecution’s argument that
28
evidence of studies comparing the entire population base rather than just a jury569
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1
eligible population were inadequate to meet the second Duren prong. In People
2
v. Morales, 48 Cal. 3d 527, 548, 770 P.2d 244, 257 Cal. Rptr. 64 (1989), the
3
court confirmed that Harris had allowed “challenges based upon gross population
4
statistics, rather than ‘voter eligible’ statistics,” where voter eligibility was
5
tantamount to juror eligibility.
6
1557. In People v. Bell, 49 Cal. 3d 502, the court held that for cases tried
7
before its decision (September 5, 1989), total population figures rather than jury-
8
eligible population figures could be used to establish a prima facie case under the
9
second Duren prong. Once a significant disparity is shown the prosecution may
10
introduce evidence to more accurately define the presumptively jury-eligible
11
population in order to rebut the prima facie case. Bell, 49 Cal. 3d at 526 n.12;
12
accord Sanders, 51 Cal. 3d at 490 n.4, 496 n.8.
13
1558. In Petitioner’s hearing, the trial court required the expert witnesses
14
to base population comparisons upon jury-eligible Hispanics who could speak
15
English proficiently and who were citizens. When Dr. Weeks explained the error
16
of discounting juror disqualifications for Hispanics without also discounting juror
17
disqualifications for non-Hispanics, the trial court could not understand his
18
reasoning and stood by its own intuition. The court said:
19
I’m honestly not sure I can accept that. And again because maybe
20
my training hasn’t been adequate in this arcane science, but if these
21
folks aren’t going to be eligible legally . . . then it seems to this court
22
that they need not be accounted for . . . whereas folks that are just
23
excused for . . . hardship or whatever, are legally eligible, and
24
therefore, . . . appropriate to include . . . in the analysis.
25
26
(53 RT 3802.)
1559. The prosecution’s expert witness, Dr. Minter, made comparisons that
27
began with an estimate of Hispanics who were jury-eligible. Her statistical
28
comparisons were not helpful in the determination of whether Petitioner made a
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1
prima facie showing of an unreasonable relationship between population and jury
2
pool under the second Duren prong. Rather, her numbers were more relevant as a
3
rebuttal to an established prima facie case. The trial court told Dr. Weeks, “Try
4
to convince me I’m wrong on this or . . . confine yourself to numbers involving
5
people of Hispanic descent who would be eligible to serve on a jury.” (57 RT
6
4112.) On the same subject, the court told Dr. Weeks, “I guess we’re at a
7
standstill on this one.” (53 RT 3804.) It is evident in the court’s finding of no
8
constitutional disparity between the population of Hispanics in the county and the
9
number of Hispanics serving as jurors in its courthouse that the trial court was
10
unconvinced by mathematical calculations to sway from his own intuitions about
11
race in the community. (61 RT 4652.)
12
1560. Petitioner presented expert testimony proving that Hispanics were
13
substantially under-represented in the relevant community. Dr. Weeks found an
14
absolute disparity of 23.6 percent in the Central Judicial District and of 13
15
percent in the 20-mile radius. With a correction of 8 percent for growth of the
16
Hispanic population, Dr. Weeks found an absolute disparity for the 20-mile
17
radius of 3.5 percent and comparative disparity of 20 percent; the absolute
18
disparity for the Central Judicial District was 12.3 percent and the comparative
19
disparity was 47 percent.
20
1561. Petitioner also demonstrated that the absolute disparity, as defined
21
for purposes of a prima facie showing (the percentage of Hispanics in the adult
22
population minus the percentage in the jury pool), was 23.6 percent for the
23
“Central Judicial District” community and 13 percent for the “20-mile radius”
24
community. Petitioner proved that the “Central Judicial District” community
25
could not be compared to the courthouse jury lounge because of its small and
26
inherently unrepresentative size. Petitioner proved that the “20-mile radius” was
27
not a random sample and contained too many unknown variables to be
28
statistically relevant in an analysis by comparison. Petitioner proved disparity
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1
and a large standard deviation by comparing Los Angeles County’s population of
2
Hispanics in 1980 to the sample in the juror lounge of the downtown Los Angeles
3
Superior Court. Petitioner’s expert witness provided multiple methods to repair
4
the disparity, but did not, nor was he required to, guarantee those methods would
5
repair the disparity. His recommendations were largely ignored.
6
1562. Petitioner met the second Duren prong. Petitioner showed that the
7
Los Angeles County jury commissioner’s office, fully aware of the problem, had
8
failed to remedy the disparities in the downtown Los Angeles County courthouse,
9
although means were readily available to do so. The prosecution expert largely
10
conceded Petitioner’s evidence that overwhelmingly showed that the jury pool in
11
Los Angeles County was unrepresentative of the community. Petitioner showed
12
by clear, convincing and largely uncontroverted evidence that representation of
13
Hispanics was not fair and reasonable under the Constitution.
14
3.
Duren prong three
15
1563. As to the third Duren prong, Petitioner also demonstrated, by largely
16
uncontroverted evidence, that the under-representation of Hispanics resulted from
17
a systematic exclusion inherent in the procedures used in the Los Angeles County
18
jury selection process.
19
[I]n Sixth Amendment fair-cross-section cases, systematic
20
disproportion itself demonstrates an infringement of the defendant’s
21
interest in a jury chosen from a fair community cross section. The
22
only remaining question is whether there is adequate justification for
23
this infringement . . . . [O]nce the defendant has made a prima facie
24
showing of an infringement of his constitutional right to a jury
25
drawn from a fair cross section of the community, it is the State that
26
bears the burden of justifying this infringement by showing
27
attainment of a fair cross section to be incompatible with a
28
significant state interest.
572
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1
Duren, 439 U.S. at 368 n.26.
2
1564. Under the most stringent test, Petitioner showed an absolute
3
disparity for Hispanics of more than 10 percent in the “Central Judicial District”
4
community. An absolute disparity of more than 10 percent is generally deemed
5
substantial. People v. Bell, 49 Cal. 3d at 528. Certainly, the higher absolute
6
disparity demonstrated here must also be considered substantial. Sanders, 51 Cal.
7
3d at 492 n.5 (absolute disparity measures representativeness between under-
8
represented group in the general population and under-represented group in the
9
jury pool).
10
1565. By demonstrating that the disparity resulted in systematic
11
disproportion, Petitioner also met the test outlined by the court in Bell. The
12
failure to merge DMV and ROV lists correctly, match names before deletion of
13
“duplicates,” follow-up on lost, incomplete, or unreturned questionnaires, or use
14
a recent and updated DMV list resulted in systematic exclusion of Hispanics. Mr.
15
Arce mismanaged his staff and failed to supervise or inquire whether his
16
instruction to add addresses to the DMV/ROV matching software had been
17
implemented until he was made aware of the problem by Petitioner’s expert
18
witness. Even after the trial court suggested the inclusion of an address field in
19
the software and a comparison of addresses before deletion, Mr. Arce did not
20
make those changes although he expressed a desire to make the changes and his
21
opinion that adding addresses would increase the number of Hispanics in the Los
22
Angeles County jury pool at a minimal cost of time or money. The statistical
23
evidence offered by Petitioner showed a direct, causal relationship between the
24
absolute and comparative disparities and the merger process.
25
1566. A jury selection process that results in significant under-
26
representation of a cognizable group, such as Hispanics here, violates the
27
fundamental and explicit purpose of the Sixth Amendment: maintenance of the
28
appearance and reality of “impartial” juries.
573
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1
1567. In his motion before the trial court, Petitioner asserted his intent to
2
incorporate equal protection claims to the extent supported by the facts. The third
3
Duren prong need not be established when a prima facie claim of discrimination
4
is established. Cf., Castaneda v. Partida, 430 U.S. 482. Petitioner showed a
5
presumption of discrimination by at least three facts, individually and
6
cumulatively:
7
(a)
the prosecution’s insistence on the “Central Judicial District”
8
community in the context of Caucasians surrounded by
9
minorities in Williams v. Superior Court, 49 Cal. 3d 736,
10
while insisting in Petitioner’s case that the “20-mile radius”
11
community was the community of jurors for comparison in
12
the context of minorities surrounded by Caucasians;
13
(b)
the jury commissioner’s failure to institute follow-up
14
procedures for unreturned, lost, or incomplete questionnaires
15
with the knowledge that this practice reduced Hispanic
16
representation (see VI Supp. CT XII 3487-88, 3559); and
17
(c)
the objections of the prosecution, the trial court, and the jury
18
commissioner (i) to modification of the jury selection software
19
to do what the jury commissioner had originally intended and
20
instructed his staff to do, i.e., add addresses and check
21
matches before deleting names; (ii) to merging of the ROV
22
and DMV lists with matching weights or with the DMV list as
23
the primary and; (iii) to adjusting the timing of the merger to
24
avoid using outdated DMV lists, knowing that this would
25
likely help correct the under-representation of Hispanics in the
26
jury pool.
27
Accordingly, Petitioner established a prima facie showing of intentional
28
discrimination which the State was obliged to but failed to rebut.
574
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1568. In any event, in People v. Anderson, 25 Cal. 4th 543, 22 P.3d 347,
1
2
106 Cal. Rptr. 2d 575 (2001), the court found no dispute in the record that
3
Hispanics were a cognizable group and were under-represented in the jury pool
4
(prongs one and two of Duren). However, the court held that evidence of
5
systematic exclusion was speculative and thus failed to satisfy the third prong of
6
Duren. Id. at 564-68. By contrast, Petitioner has shown clear, convincing, and
7
largely uncontroverted evidence statistically establishing the disparity, resulting
8
from systematic exclusion inherent in the Los Angeles County jury selection
9
procedures, thus satisfying the third prong of Duren as well. The evidence here
10
established that the disparity among Hispanics arose from improper DMV/ROV
11
merger procedures (conceded by the county) and the erroneous use of a 20-mile
12
radius for cross-sectional analysis improperly approved by the trial court. The
13
causes of the under-representation among Hispanics were well documented.
1569. In conclusion, Petitioner met all three prongs of Duren. Petitioner
14
15
established that Hispanics are a cognizable group under Duren prong one. Jury-
16
eligible Hispanics were under-represented in the venire under Duren prong two.
17
Under-representation resulted from systematic exclusion under Duren prong
18
three. Duren, 439 U.S. at 366-67. The prosecution failed to show any state
19
interest in justifying the disproportionate exclusion of Hispanics from the Los
20
Angeles County Superior Court in downtown Los Angeles County as required
21
under Duren. Id. at 367-68.
22
B.
23
The Constitutional Violations Were Prejudicial Per Se
1570. The denial of Petitioner’s fundamental federal constitutional right to
24
trial by jury drawn from a representative cross-section of the community was
25
prejudicial per se. Duren v. Missouri, 439 U.S. at 369-70; Rose v. Clark, 478
26
U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
27
1571. The foregoing violations of Petitioner’s constitutional rights, taken
28
singly or in combination with the other errors alleged in the Petition, constitute
575
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1
structural error and warrant the granting of this Petition without any
2
determination of whether the violations substantially affected or influenced the
3
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
4
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
5
doctrine applies to this claim, the foregoing constitutional violations, singly and
6
in combination with the other errors alleged in this Petition, so infected the
7
integrity of the proceedings that the error cannot be deemed harmless. The
8
foregoing violations of Petitioner’s rights had a substantial and injurious effect
9
or influence on Petitioner’s convictions and sentences, rendering them
10
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
11
637-38.
12
CLAIM 22:
13
THE TRIAL COURT UNCONSTITUTIONALLY SHACKLED
14
PETITIONER THROUGHOUT THE CAPITAL TRIAL
15
1572. Exhaustion of the claim: This claim was fairly presented to the
16
California Supreme Court in Section XVII of the June 2004 petition for writ of
17
habeas corpus, and in Section IX of the Opening Brief, although it includes
18
additional factual allegations. Petitioner will present the claim with the additional
19
factual allegations to the California Supreme Court in an exhaustion petition he
20
will file no later than March 17, 2009.
21
1573. In support of this claim, Petitioner alleges the following facts,
22
among others to be presented after full discovery, investigation, adequate
23
funding, access to this Court’s subpoena power, and an evidentiary hearing.
24
1574. Those facts and allegations set forth in the petition, declarations,
25
claims of constitutional violations, and the accompanying exhibits are
26
incorporated by reference as if fully set forth herein to avoid unnecessary
27
duplication of relevant facts.
28
576
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1
1575. Petitioner’s conviction, death sentence and confinement were
2
unlawfully obtained in violation of his Fifth, Sixth, Eighth, and Fourteenth
3
Amendment rights to due process, a fair and open trial, the presumption of
4
innocence, equal protection, the right to be present and the opportunity to be
5
heard, the effective assistance of counsel, and a fair, reliable and accurate
6
determination of guilt and penalty by the trial court’s decision to shackle
7
Petitioner at trial.
8
1576. Prior to trial, on February 24, 1986, at a hearing in the court’s
9
chambers, outside of the presence of Petitioner, the court stated that even though
10
it had already indicated that Petitioner would be required to wear handcuffs and
11
no leg shackles to court, the court had decided that Petitioner would be required
12
to wear leg shackles, and no handcuffs. The court made the decision based on the
13
advice of the marshal. The court stated that the marshal had indicated to the court
14
that Petitioner had made some statements indicating that he was going to try to
15
escape, if he could, and he would do so by taking the officer’s weapon if he
16
could. ( I CT 8.).121 The court stated as follows:
17
Based upon that, we have elected to proceed in this fashion. I am not
18
welded (sic) to it. If things go well, we may change. It is also better for
19
your client’s benefit to have a rather peaceful Marshal’s Corp.
20
21
22
(I CT 8.).
After a recess, in another hearing held in the court’s chambers which was
held outside of the presence of Petitioner, the court and the parties discussed
23
24
25
26
27
28
121
The statements allegedly made by Petitioner were provided to the court
ex parte by the marshal. They were also relayed to the court out of the presence
of petitioner, trial counsel, and the district attorney. There was never an
evidentiary hearing held, so that the marshal who allegedly heard the statements
could be cross-examined, or to determine the reliability of the alleged statements.
See (CR 8-11).
577
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1
courtroom security. Trial counsel was concerned that there had been no
2
screening of the members of the public which were coming to watch the trial.
3
Trial counsel was concerned because the defense attorneys had received death
4
threats. The court allowed a law enforcement officer, who was referred to as “the
5
sergeant,” to discuss the issue. (I CT 9-11.). The sergeant indicated that since
6
the metal detector had failed, courtroom security had to opt for either hand
7
searching, or no searching. They decided not to search individuals based upon
8
what they had learned from other deputies that had provided security for
9
Petitioner’s case, and based on intelligence that they had received. (I CT 9-10.).
10
The sergeant indicated that if the metal detector was repaired or replaced, then
11
they would consider whether it was necessary to use it on a day-to-day basis,
12
taking into account what the court wanted. (I CT 10.)
13
14
15
Next, the court discussed that Petitioner did not pose a danger in the
courtroom. The exchange took place as follows:
The Court:
Now what is it that gives you your sense of
16
satisfaction with the security status of the
17
courtroom now?
18
The Bailiff:
The fact that the defendant has not proven to be
19
violent. He has had contact with a lot of our
20
deputies.
21
The Court:
I am not worried about him, I am worried about
22
the people in the audience. Why do they not
23
present a threat to him or you or to counsel?
24
The Bailiff:
cases as the trials progress...
25
26
27
28
We do monitor the audience in these security
(I CT 11.)
1577. Even though Petitioner had contact with many deputies and had not
proven to be violent, at trial, Petitioner was visibly restrained. During jury
578
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1
selection, on December 19, 1988, he was restrained with shackles, which could
2
be observed by the jurors, and a discussion was held regarding whether Petitioner
3
was to be restrained in shackles or a leg brace. (127 RT 13961-68.) Deputy
4
District Attorney Halpin addressed the court and indicated as follows:
5
I was just going to bring up another issue that we talked about briefly at the
6
bench, but the defendant was not party to the conversation, and that is the
7
fact that the defendant is wearing chains in the courtroom.
8
I was going back over some old material and did come across those cases
9
where we’re admonished not to -- not to do that. We are back now in a
10
smaller situation, smaller courtroom again, and I’m told the jury is going to
11
have to walk by the counsel table here to get up to the jury box, apparently,
12
because the other gate is blocked by some chairs.
13
I think we probably better address the issue of chains again.
14
15
(127 RT 13961.)
When the court inquired as to what trial counsel, Daniel Hernandez, would
16
suggest regarding restraints, trial counsel suggested that all restraints should be
17
removed from Petitioner. (127 RT 13963.) Deputy District Attorney Halpin
18
suggested that a leg brace be utilized, since it would not be visible. (127
19
RT 13964.) The court noted that the leg brace was physically painful for
20
Petitioner, and indicated that the court was not going require Petitioner to be
21
“uncomfortable and physically in pain” during the trial. (id.) The court stated
22
that because of some statements Petitioner had made, and the history of the case,
23
restraints were required. (id.) Trial counsel noted that any statement allegedly
24
made by Petitioner had never been established at a hearing, and questioned
25
whether such baseless allegations were sufficient grounds for the shackles. (id.)
26
The court acknowledged that the restraints had been visible to the jurors, and
27
stated as follows:
28
579
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1
I mean, quite frankly, gentleman, Mr. Ramirez has been in restraints the
2
entire period of jury selection and his legs, I would assume, have been in
3
view of the prospective jurors as they came in individually and sat in the
4
jury box and looked down the table and saw him.
5
I don’t think it is any surprise.
6
7
(See 127 RT 13964-65.)
Trial counsel suggested building a barrier or putting up a curtain so that the
8
jurors would not see the leg shackles worn by petitioner. The court denied that
9
request. (See 127 RT 13966.) Thus, it is apparent from the record, that
10
beginning at jury selection, Petitioner was visibly restrained in front of the jury.
11
1578. The record reflects that at a closed hearing held at the beginning of
12
trial on January 30, 1989, the trial court ordered Petitioner to be restrained in
13
chains, which were visible to the jury. Trial counsel had previously objected to
14
Petitioner being restrained in chains. The court gave Petitioner a choice of either
15
wearing a leg brace, that Petitioner had indicated was uncomfortable, or wearing
16
shackles, that were visible to the jury. Petitioner indicated that he did not want to
17
wear anything. (I Supp. CT VIII 2284-85.) The court responded, stating “I
18
understand that you would prefer not to have any kind of restraint at all, but that
19
appears to be a security measure that the sheriff feels is necessary.” (I Supp.
20
CT VIII 2285.) The court then took a “waiver” from Petitioner and trial counsel
21
which purported to assert Petitioner’s “willingness” to wear leg shackles at trial
22
instead of a leg brace in light of his complaints that a leg brace was painful and
23
uncomfortable. (I Supp. CT VIII 2284-86.)
24
1579. The waiver was not valid, however. The court did not advise
25
Petitioner that he had a constitutional right not to wear visible restraints without
26
manifest need and, further, that there was a recognized danger the jury would
27
likely consider him guilty or dangerous, thus affecting both the guilt and penalty
28
determinations. See infra. In addition, the court essentially gave Petitioner a
580
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1
choice between wearing an uncomfortable leg brace during a trial that was going
2
to be extremely long, or wearing shackles, which were visible to the jury. Such a
3
choice was unreasonable, and thus, the waiver was invalid.
4
1580. At the conclusion of the guilt trial, the prosecutor requested the trial
5
court to instruct the jury regarding Petitioner’s restraints. (208 RT 23931-32; 209
6
RT 24004.) The trial court instructed the jury as follows:
7
You may have observed that the defendant has worn restraints while
8
in the courtroom. This fact shall have no bearing upon your
9
determination of the defendant’s guilt or innocence. That
10
determination must be based solely upon the evidence presented to
11
you.
12
(212 RT 24413.)
13
1581. The juror and alternate jurors were aware that Petitioner was
14
shackled during the trial. (Ex. 120, Declaration of Bonita Smith, ¶ 10; Ex, 129,
15
Declaration of Martha Salcido, p. Ex. 129,¶ 6). Alternate juror Janice McDowell
16
recalled as follows:
17
I remember seeing leg chains on Mr. Ramirez. Sometimes I could hear the
18
chains rattle when he entered the courtroom or shifted in his seat.
19
(Ex. 116, Declaration of Janice McDowell, ¶ 5) Another alternate juror, Max De
20
Ruiter, believed that Petitioner was shackled at trial, and he believed that the
21
shackling was necessary because he had heard that Petitioner had tried to attack
22
someone in the court room. (Ex. 115, Declaration of Max De Ruiter, ¶ 5). The
23
unconstitutional and visible shackling of Petitioner during his trial deprived him
24
of a fair trial because jurors believed that Petitioner was dangerous and that it was
25
necessary to shackle him during the trial for security purposes.
26
1582. The Ninth Circuit has stated:
27
It is axiomatic that our criminal justice system affords every accused
28
individual a presumption of innocence. Coffin v. United States, 156
581
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1
U.S. 432, 453, 15 S. Ct. 394, 402, 39 L. Ed. 481 (1895), cited in
2
[Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973)]. When an
3
accused is forced to appear before his peers in chains, this
4
presumption is seriously jeopardized. See Holbrook v. Flynn, 475
5
U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d 525 (1986) . . . .
6
Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989) (other citations omitted); see
7
also People v. Duran, 16 Cal. 3d 282, 290, 545 P.2d 1322, 127 Cal. Rptr. 618
8
(1976) (United States Supreme Court decisions collected); Williams v. Woodford,
9
306 F.3d 665, 689 (9th Cir. 2003) “A criminal defendant has a constitutional
10
right to be free of shackles and handcuffs in the presence of the jury absent an
11
essential state interest that justifies the physical restraints.”).
12
13
1583. Jones v. Meyer, 899 F.2d 883, 885 (9th Cir. 1990) described the
analysis a reviewing court must undertake:
14
First, the [trial] court must be persuaded by compelling
15
circumstances ‘that some measure was needed to maintain the
16
security of the courtroom.’ Spain, 883 F.2d at 720. Second, the
17
court must ‘pursue less restrictive alternatives before imposing
18
physical restraints.’ Id. at 721; see also Illinois v. Allen, 397 U.S. [at
19
344] (stating that shackling and gagging should only be used as a
20
‘last resort’).
21
1584. There was insufficient justification in Petitioner’s case for physical
22
restraints. Petitioner had no history of escape or violence in the courtroom.
23
There was no showing of manifest need to restrain Petitioner. See Duran, 16 Cal.
24
3d at 291. The only apparent reasons the court ordered Petitioner restrained were
25
the nature of the charges, the high media profile of Petitioner’s case, and
26
statements allegedly made by Petitioner.
27
28
1585. In relation to these apparent bases for the shackling, Petitioner’s case
compares with Spain v. Rushen, 883 F.2d 712 (9th Cir. 1989). There, the
582
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1
petitioner was a high-profile prisoner serving a life sentence for crimes
2
committed in connection with his membership in the Black Panther Party. He
3
was tried for murder allegedly committed during a prison escape attempt. The
4
trial was held in the same courthouse where, not long before, another escape
5
attempt had resulted in the killing of a trial judge. Thus, the atmosphere created
6
concern for security and safety; Spain and his five co-defendants were ordered
7
heavily shackled throughout the proceedings. Despite this background, and
8
despite evidence that Spain posed a serious escape and security risk while in
9
court, the Ninth Circuit affirmed the district court’s finding that Spain had been
10
denied his constitutional rights by being shackled at trial. The trial court was
11
deemed to have erred and abused its discretion in not considering and applying
12
less extreme measures of courtroom control. Spain, 883 F.2d at 728-29.
13
1586. While Petitioner’s case also involved a very high degree of media
14
attention and public awareness, there was no evidence that Petitioner posed an
15
immediate threat to security or safety while in the courtroom during trial. In
16
Spain, the petitioner was charged with conspiring to violently escape from
17
custody with the assistance of outside conspirators and was associated with
18
previous actual deadly attempts. Here, Petitioner committed no such acts and
19
was never shown to pose any sort of security or escape risk. In fact, prior to trial,
20
the bailiff stated that many deputies had been in contact with Petitioner, and that
21
he was not violent.
22
(I CT 11.) The court also indicated that it was not worried about Petitioner as a
23
security risk. ( id.)
24
1587. The improper restraints violated Petitioner’s Fifth, Sixth, Eighth, and
25
Fourteenth Amendment rights. See Rhoden v. Rowland, 172 F.3d 633 (9th Cir.
26
1999) (unjustified shackling of defendant in trial violated due process). The trial
27
court’s ruling in ordering Petitioner restrained interfered with his fundamental
28
rights, including his right to counsel, and his right to a reliable determination of
583
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1
guilt and penalty under the Sixth, Eighth and Fourteenth Amendments.
2
Petitioner’s right to a fair trial was violated in that the improper restraints created
3
a negative impression of him that undermined the presumption of innocence.
4
Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). As a
5
result, Petitioner was prejudiced in the eyes of the jury. The visible restraints
6
detracted from the dignity of the proceedings and impeded Petitioner’s ability to
7
communicate with counsel. Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir.
8
1995).
9
1588. Moreover, the trial court’s cautionary instruction in Petitioner’s case
10
was legally and factually deficient. The instruction admonished the jury not to
11
use the fact of restraints in the determination of guilt or innocence. However, the
12
language of CALJIC No. 1.04 is much broader and prohibits consideration of
13
restraints for any purpose:122
14
The fact that physical restraints have been placed on defendant [
15
must not be considered by you for any purpose. They are not
16
evidence of guilt, and must not be considered by you as any
17
evidence that [he] [she] is more likely to be guilty than not guilty.
18
You must not speculate as to why restraints have been used. In
19
determining the issues in this case, disregard this matter entirely.
20
CALJIC No. 1.04 (6th ed. 1996). CALJIC No. 1.04, adopted in 1992, must be
21
given sua sponte if restraints are visible.123 People v. Jackson, 14 Cal. App. 4th
22
1818, 1825, 18 Cal. Rptr. 2d 586 (1993). CALJIC No. 1.04 clarifies the general
23
rule that restraints have no role in the weighing of any evidence. The instruction
]
24
25
26
122
The Use Note to CALJIC No. 1.04 cites People v. Duran, 16 Cal. 3d
282.
123
27
28
There is no sua sponte duty to give CALJIC No. 1.04 if the restraints
are not visible. People v. Medina, 11 Cal. 4th 694, 732, 906 P.2d 2, 47 Cal. Rptr.
2d 165 (1995).
584
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1
given here, however, failed adequately to clarify that the jury was not to consider
2
Petitioner’s restraints for any purpose. The approved instruction contains a
3
specific admonition against speculation as to the purpose or reason for restraints;
4
the instruction given in Petitioner’s case did not. Finally, CALJIC No. 1.04
5
reiterates that restraints serve no function whatsoever in the jury’s consideration
6
of the evidence; the instruction given here was limited only as to the issue of guilt
7
or innocence.
8
1589. As the Supreme Court has reiterated, due process under the federal
9
Constitution forbids visible shackling of a criminal defendant in the presence of
10
the jury absent a showing of an “essential state interest.” Deck, 544 U.S. 622,
11
125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005). In Deck, Justice Breyer, writing for
12
the majority, held that the ban on shackling of a defendant in front of the jury was
13
so long-standing and universal that it applied equally to guilt and penalty phases
14
of a capital trial. Deck, 544 U.S. at 632-33. Noting that American courts have
15
long followed this “principle deeply embedded in the law” (id. at 629), the Court
16
held fundamental due process bans such practice even in the penalty phase of a
17
capital trial absent “indisputably good reasons.” Id. at 634-35. This is so because,
18
even though there is no longer a concern the jury will attribute guilt to the
19
defendant on account of the shackles, the decision as to life or death is akin to a
20
guilt determination, so that adverse inferences arising from visible shackling are
21
as grave a matter as at the guilt phase:
22
Although the jury is no longer deciding between guilt and
23
innocence, it is deciding between life and death. That decision, given
24
the “ ‘severity’ “ and “ ‘finality’ “ of the sanction, is no less
25
important than the decision about guilt. [¶] Neither is accuracy in
26
making that decision any less critical. The Court has stressed the
27
“acute need” for reliable decision making when the death penalty is
28
at issue. . . . It also almost inevitably affects adversely the jury’s
585
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1
perception of the character of the defendant. And it thereby
2
inevitably undermines the jury’s ability to weigh accurately all
3
relevant considerations – considerations that are often unquantifiable
4
and elusive – when it determines whether a defendant deserves
5
death. In these ways, the use of shackles can be a “thumb [on]
6
death’s side of the scale.”
7
Id. at 632-33 (citations omitted). Noting the Court had previously held that
8
shackling is “inherently prejudicial” (Id. at 635 (quoting Holbrook v. Flynn 475
9
U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)), and that the prejudice
10
accruing “cannot be shown from a trial transcript,” Deck ruled improper restraint
11
orders require no showing of prejudice by the defendant under the Due Process
12
clause, and the burden lay on the prosecution to show “beyond a reasonable
13
doubt that the error complained of did not contribute to the verdict obtained.”
14
Deck, 544 U.S. at 635. (quoting Chapman v. California, 386 U.S. at 24).
15
1590. The court violated Petitioner’s right to appear before the court with
16
the appearance, dignity and self-respect of a free and innocent man, that is,
17
without restraints. Petitioner was charged with numerous crimes of violence and
18
lesser felonies. Petitioner did not testify on his own behalf at the guilt trial. The
19
jury found Petitioner guilty on all counts. The use of chains and shackles to
20
restrain Petitioner adversely affected the jury’s impression of him and likely
21
contributed to the jury’s view that he had violent propensities and must be guilty
22
as charged. Finally, at the penalty trial, Petitioner’s jury was allowed improperly
23
to draw the inference of Petitioner’s future dangerousness and greater culpability
24
by virtue of the instruction permitting the jury to consider all guilt evidence. See
25
Claim 36, infra.
26
1591. In addition, during the trial, there were times when Petitioner
27
appeared before the jury in prison clothes. During the penalty phase, the court
28
found that Petitioner waived his right to appear in civilian clothes. (217 RT
586
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1
24775-76.) The court instructed the jury to disregard the fact that Petitioner
2
appeared in jail clothes. (Id. at 24798-99.) Jurors also observed Petitioner in
3
prison clothes at times during the trial. (Ex. 118, J. Muldrow Dec., ¶ 7) The
4
United States Supreme Court has held that it is a violation of the Fourteenth
5
Amendment to force a defendant to appear before a jury in prison clothes. See
6
Estelle v. Williams, 425 U.S. 501, 512 (1976). Petitioner was unconstitutionally
7
restrained in shackles, and he unconstitutionally appeared in prison clothes before
8
the jury at his trial
9
1592. The foregoing violations of Petitioner’s constitutional rights, taken
10
singly or in combination with the other errors alleged in the Petition, constitute
11
structural error and warrant the granting of this Petition without any
12
determination of whether the violations substantially affected or influenced the
13
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S.
14
Ct. 1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
15
doctrine applies to this claim, the foregoing constitutional violations, singly and
16
in combination with the other errors alleged in this Petition, so infected the
17
integrity of the proceedings that the error cannot be deemed harmless. The
18
foregoing violations of Petitioner’s rights had a substantial and injurious effect
19
or influence on Petitioner’s convictions and sentences, rendering them
20
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
21
637-38.
22
CLAIM 23:
23
THE TRIAL COURT VIOLATED PETITIONER’S
24
CONSTITUTIONAL RIGHTS BY ADMITTING
25
INFLAMMATORY PHOTOGRAPHS
26
1593. Exhaustion of the claim: This claim was fairly presented to the
27
California Supreme Court in the direct appeal. It was presented in Section X of
28
the Opening Brief.
587
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1
1594. In support of this claim, Petitioner alleges the following facts,
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
4
1595. Those facts and allegations set forth in the petition, declarations,
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
1596. The prosecution sought to introduce autopsy and crime scene
9
photographs of victims in fifteen unrelated incidents. (See, e.g., 143 RT 16427;
10
see also XXVIII CT 8355-59.) Petitioner objected to the introduction of
11
photographs of the victims and crime scenes under Evidence Code § 352. (Id. at
12
8310-14.)
13
1597. With respect to the Vincow incident, Petitioner objected to
14
photographs of the victim taken at the scene and autopsy (People’s Exs. 1-F, 1-G,
15
1-H, 2, 2-A, and 2-B), because the photographs were not relevant; rather, they
16
were gruesome and highly inflammatory. (143 RT 16428; 145 RT 16595-96; 158
17
RT 18215-18.) The trial court admitted the photographs, finding they were
18
relevant to the time and manner of death and were not “unduly gruesome.” (143
19
RT 16429; 158 RT 18219.)
20
1598. With respect to the Hernandez/Okazaki incident, Petitioner objected
21
to photographs of the victim taken at the scene and autopsy (People’s Exs. 4-D,
22
4-E and 5) on relevance and prejudice grounds. (See 146 RT 16803-06.) The
23
trial court admitted the photographs, finding they were probative as to cause of
24
death. (Id. at 16804, 16806, 16811.)
25
1599. With respect to the Yu incident, Petitioner objected to introduction
26
of coroner photographs of the victim (particularly People’s Ex. 5-F showing the
27
victim while intubated) because the photographs were irrelevant and prejudicial.
28
(See 147 RT 16971-73; 148 RT 17119.) The court admitted the photographs,
588
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1
ruling that People’s Exhibit No. 6-F was unpleasant but was relevant. (147
2
RT 16974-75.)
1600. With respect to the Zazzara incident, Petitioner objected to
3
4
photographs of Maxine Zazzara at the scene (People’s Exs. 9-A and 9-B) as
5
“extremely grotesque and prejudicial.” (151 RT 17554-55.) The court ruled that
6
the photographs, although unpleasant, were relevant to the cause of death. (Id. at
7
17555.) Petitioner also objected to coroner photographs of Mrs. Zazzara
8
(People’s Exs. 9-C, 9-D, 9-E, and 9-F). (151 RT 17557.) The court ruled the
9
photographs were relevant to establish the nature of the wounds. (Id. at 17557-
10
11
58.)
1601. With respect to the Doi incident, Petitioner objected to a coroner’s
12
photograph of William Doi with a breathing apparatus in his mouth and a
13
photograph of Lillian Doi in a hospital bed with a bruise on her face (People’s
14
Exs. 11-A and 10-X, respectively). (151 RT 17545-48.) The court ruled that the
15
photographs were probative and not inflammatory. (Id. at 17547-48.)
16
1602. With respect to the Cannon incident, Petitioner objected to
17
photographs of the victim which depicted neck wounds (People’s Exs. 20-G, 20-
18
H and 20-1) as gory and inflammatory. (157 RT 18070-71.) The court admitted
19
two photographs of the victim (People’s Exs. 20-H and 20-1) pursuant to
20
Evidence Code § 352. (157 RT 18072-73; 162 RT 18850.)
21
1603. With respect to the Kneiding incident, Petitioner objected to coroner
22
photographs of victim Lela Kneiding (People’s Exs. 30, 30-B and 30-C) as
23
irrelevant and inflammatory. (164 RT 18992-95; 165 RT 19249.) The court
24
admitted two photographs (People’s Exs. 30 and 30-C). (164 RT 18993, 18997-
25
98; 165 RT 19249.)
26
1604. It has long been held to be an abuse of discretion for a trial court to
27
admit explicit autopsy photographs or photographs of postmortem examinations
28
where the victim’s body is badly decomposed or disfigured. See People v. Cox,
589
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1
53 Cal. 3d 618, 665-66, 809 P.2d 351, 280 Cal. Rptr. 692 (1991). In Cox, the
2
court held that the introduction of autopsy photographs did not constitute an
3
abuse of discretion where they were small and not particularly gruesome.
4
Significantly, in Cox, the prosecution also declined to introduce even more
5
graphic depictions of the victim’s wound. People v. Cox, 53 Cal. 3d at 666.
6
1605. As to the Vincow incident, photographs of the victim were not
7
probative because the cause of the victim’s death was not at issue, only the time
8
of death. The admitted photographs did not assist the jury in determining the
9
time of death. Matters relevant to time of death, such as body temperature and
10
11
lividity, were not discernible from the photographs.
1606. As to the Okazaki incident, the coroner photograph of the victim
12
(People’s Ex. 5) was not probative of any material issue at trial. Any slight
13
probative value was far outweighed by the prejudicial effect of the autopsy
14
photograph. Other photographs of the scene and the victim (People’s Exs. 4-D
15
and 4-E) admitted by the court were cumulative. The photographs did not aid the
16
jury in its determination of any contested fact. Contrast People v. Scheid, 16 Cal.
17
4th 1, 15, 939 P.2d 748, 65 Cal. Rptr. 2d 348 (1997) (crime scene photographs
18
bolstered witnesses’ credibility); People v. Frank, 51 Cal. 3d 718, 734, 798 P.2d
19
1215, 274 Cal. Rptr. 372 (1990) (gruesome photographs ruled admissible as
20
highly relevant evidence).
21
1607. In the Yu incident, the coroner photograph of the victim with a
22
mechanical device in her mouth was gruesome and highly inflammatory. The
23
photograph did not assist the jury in determining the manner of death. Extensive
24
testimony of two pathologists described the victim’s wounds and conditions of
25
the shooting. The photograph was superfluous and designed only to inflame the
26
passions of the jury. Contrast People v. Taylor, 26 Cal. 4th 1155, 1168, 34 P.3d
27
937, 113 Cal. Rptr. 2d 827 (2001) (crime scene photographs of victim lying face
28
down but no close-up views held admissible).
590
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1
1608. Unlike photographs admitted in People v. Cox, the admitted
2
photographs of Maxine Zazzara were highly inflammatory and prejudicial.
3
Detailed photographs of her wounds, particularly the gouged eye sockets, were
4
not probative of the determination of guilt. People’s Exhibit No. 9-B depicted
5
gruesome scarring caused by removal of the victim’s eyes. This exhibit was
6
extremely gruesome, highly inflammatory, and had no evidentiary value with
7
respect to any material or contested issue before the jury. The trial court erred in
8
failing properly to determine the relevance of the photographs. People v.
9
Thompson, 50 Cal. 3d 134, 182-83, 785 P.2d 857, 266 Cal. Rptr. 309 (1990).
10
1609. In Doi, photographs of the two victims were not probative of the
11
determination of guilt. Petitioner was charged only with the death of William
12
Doi. The prejudicial effect of having the jury view both the decedent and his
13
injured wife outweighed any probative value under Evidence Code § 352. The
14
photographs did not assist the jury in deciding any contested fact in the case.
15
People v. Frank, 51 Cal. 3d at 735.
16
1610. Similarly, in Cannon, photographs of the victim’s wounds were
17
inflammatory and not probative of any issue related to the determination of guilt.
18
The photographs did not assist the jury in deciding any contested facts. Id.
19
1611. As to the Kneiding incident, photographs of the victim Lela
20
Kneiding taken at the scene were inflammatory and not probative of any
21
contested issues in the case. The nature and extent of the victim’s injuries,
22
although brutal, were not at issue. Id.
23
1612. Petitioner was prejudiced by the gruesome and inflammatory
24
photographs in the joint trial of fifteen unrelated incidents. The photographs did
25
not aid the jury in its determination of the evidence; they were highly prejudicial.
26
The photographs had little, if any, relevance to the determination of guilt.
27
1613. In closing argument, the prosecutor urged the jury to consider
28
photographs of the gaping throat wound in the Vincow incident as evidence of a
591
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1
signature mark. (See 206 RT 23701.) However, the prosecution’s speculation
2
about the possible significance of the wounds failed adequately to demonstrate
3
relevance; the photographs should have been excluded under Evidence Code
4
§ 352. In the Yu incident, the prosecutor relied on photographs of the victim’s
5
injuries to support his theory of her death. (See 206 RT 23781-84, 23789-825.)
6
The gruesome photograph objected to by Petitioner was not instructive as to the
7
cause of death; it was inflammatory, cumulative and prejudicial. In the Okazaki
8
incident, the prosecution relied on photographs of the victim in order to speculate
9
about a motive for the killing consistent with a possible motive in other incidents.
10
11
(See Id. at 23718-20.)
1614. In the Zazzara incident, the prosecution argued that ligature marks
12
and throat wounds on Maxine Zazzara were similar to marks observed on victims
13
in other incidents. (207 RT 23839-40.) The prosecutor also argued that the
14
photographs of Maxine Zazzara’s injuries showed her eyes had been cut out. (Id.
15
at 23839.) However, there was no relevance as to the injuries to her eyes; the
16
photographs were highly inflammatory, prejudicial and cumulative. In the Doi
17
incident, the prosecution engendered sympathy for the victim by emphasizing
18
photographs of both William Doi and Lillian Doi that were not probative of the
19
determination of guilt. (Id. at 25854.)
20
1615. In many instances, the prosecutor’s argument created an
21
impermissible spillover effect. By comparing inflammatory photographs of
22
victims and crime scenes in incidents with stronger evidence to photographs of
23
victims and crimes scenes in incidents with weaker evidence, the prosecution
24
created a prejudicial spillover effect which the jury was unable to
25
compartmentalize. The prejudicial photographs were also used to link Petitioner
26
to many of the numerous crimes in violation of his rights to a fair trial, to a fair
27
and reliable determination of guilt, to have every element of the charge proven
28
beyond a reasonable doubt, and to due process and fundamental fairness under
592
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1
the Fifth, Sixth, Eighth, and Fourteenth Amendments. In re Winship, 397 U.S.
2
358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The erroneous ruling also violated
3
Petitioner’s right to a reliable determination of penalty. Caldwell v. Mississippi.
4
For the reasons discussed above, the trial court erred in admitting cumulative and
5
prejudicial evidence. A number of death judgments have been reversed due, at
6
least in part, to the failure to exclude gruesome photographs. Cf. Spears v.
7
Mullin, 343 F.3d 1215, 1226 (10th Cir. 2003) (photographs “so infected the
8
sentencing proceeding with unfairness as to render the jury’s imposition of the
9
death penalty a denial of due process”); People v. Love, 53 Cal. 2d 843, 856, 350
10
P.2d 705, 3 Cal. Rptr. 665 (1960) (photographs “served primarily to inflame the
11
passions of the jurors;” probative value “was more than adequately” conveyed
12
“by the doctor”); accord Clark v. Commonwealth, 833 S.W.2d 793, 794-95 (Ky.
13
1991); Tobler v. State, 688 P.2d 350, 355-56 (Okla. Crim. App.1984); see also
14
United States v. Sampson, 335 F. Supp. 2d 166, 181-83 (D. Mass. 2004)
15
(photographs excluded to protect the defendant’s “due process right … to a
16
fundamentally fair [penalty] trial”).).
17
1616. As the jurors were improperly inflamed and impassioned by the
18
erroneous admission of the photograph, Petitioner’s right to a reliable
19
adjudication at all stages of a capital case was denied. Ford v. Wainwright, 477
20
U.S. 399, 411, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986); see also Beck v.
21
Alabama, 447 U.S. at 638. The trial court abuse of discretion in admitting this
22
photograph also violated Petitioner’s right to due process and made his trial
23
fundamentally unfair. Estelle v. McGuire, 502 U.S. at 67-69; Kealohapauole v.
24
Shimoda, 800 F.2d at 1465 (citing Lisenba v. California, 314 U.S. 219, 236, 62 S.
25
Ct. 280, 86 L. Ed. 166 (1941)).
26
1617. The court’s rulings admitting the photographs into evidence violated
27
Petitioner’s constitutional right to due process, a fundamentally fair trial, and a
28
reliable adjudication at all stages of a capital case. U.S. Const. amends V, VIII,
593
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1
XIV; Ford v. Wainwright, 477 U.S. 399; Gardner v. Florida, 430 U.S. 349; Hicks
2
v. Oklahoma, 447 U.S. 343.124 For these reasons, Petitioner’s death sentence
3
must be reversed.
4
1618. The foregoing violations of Petitioner’s constitutional rights, taken
5
singly or in combination with the other errors alleged in the Petition, constitute
6
structural error and warrant the granting of this Petition without any
7
determination of whether the violations substantially affected or influenced the
8
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
9
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
10
doctrine applies to this claim, the foregoing constitutional violations, singly and
11
in combination with the other errors alleged in this Petition, so infected the
12
integrity of the proceedings that the error cannot be deemed harmless. The
13
foregoing violations of Petitioner’s rights had a substantial and injurious effect
14
or influence on Petitioner’s convictions and sentences, rendering them
15
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
16
637-38.
17
CLAIM 24:
18
THE TRIAL COURT VIOLATED PETITIONER’S
19
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY
20
THAT PETITIONER’S REFUSAL TO REMOVE HIS
21
SUNGLASSES WAS EVIDENCE OF CONSCIOUSNESS OF
22
GUILT
23
1619. Exhaustion of the claim: This claim was fairly presented to the
24
California Supreme Court in the direct appeal. It was presented in Section XI of
25
the Opening Brief.
26
27
28
124
See note, supra.
594
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1
1620. In support of this claim, Petitioner alleges the following facts,
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
4
1621. Those facts and allegations set forth in the petition, declarations,
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
1622. During Jorge Gallegos’ testimony regarding the Yu incident, the
9
court advised Petitioner to take off his sunglasses to permit the witness to view
10
Petitioner’s profile. Petitioner refused to remove his glasses. (146 RT 16889.)
11
1623. The prosecution requested an instruction on consciousness of guilt
12
relating to Petitioner’s refusal to remove his glasses at trial. The prosecution
13
contended that Petitioner’s refusal to remove his glasses demonstrated
14
consciousness of guilt. (200 RT 23339; 201 RT 23348-49.) Trial counsel
15
objected to such an instruction, contending that Petitioner’s conduct did not give
16
rise to an inference or consciousness of guilt. (Id. at 23347-48, 23352-53.) The
17
trial court recalled that Petitioner had been warned at the time the request was
18
made that as a consequence of his refusal, the prosecution would be permitted to
19
argue that Petitioner’s conduct was evidence of consciousness of guilt.125 (201
20
RT 23350-53.) Overruling Petitioner’s objections, the trial court thus instructed
21
the jury as follows:
22
If you find that the defendant was offered and refused the
23
opportunity in court to stand and remove his sunglasses for the
24
purpose of viewing by a witness, such refusal is not sufficient
25
26
125
27
28
The record does not support the trial court’s recollection that Petitioner
had been so advised or admonished at the time of his refusal. (See 146
RT 16889.)
595
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1
standing alone and by itself to establish the guilt of the defendant,
2
but it is a fact which, if proved, may be considered by you in the
3
light of other facts in deciding whether the defendant is guilty or not
4
guilty. ¶ The weight to which such a circumstance is entitled and
5
whether or not such conduct shows a consciousness of guilt are
6
matters for your determination.
7
8
9
10
(212 RT 24430.)
1624. Generally, a defendant’s efforts to suppress evidence indicate
consciousness of guilt.
1625. The trial court erred by failing to determine whether Petitioner’s
11
refusal supported an inference of consciousness of guilt. The court did not
12
conduct a hearing to determine whether Petitioner’s conduct amounted to an
13
inference of consciousness of guilt. In addition, the court failed properly to
14
advise Petitioner of the prejudicial inferences to be drawn from his refusal.
15
16
17
1626. Prior to Petitioner’s refusal to remove his glasses, the prosecution
established through Gallegos’ testimony the following:
•
Gallegos identified Petitioner as the perpetrator and stated that
18
at trial Petitioner looked “a little different” as to his hair and
19
clothing (146 RT 16848-50);
20
•
and
21
22
23
24
25
26
Gallegos saw the suspect’s profile at the scene (Id. at 16875);
•
Gallegos previously identified Petitioner based on a
photograph in a newspaper (Id. at 16879).
1627. The trial court also failed appropriately to guide the jury’s
deliberations and proper evaluation of key evidence.
1628. The prosecutor, in closing argument, urged the jury to find Petitioner
27
guilty of the Yu murder because of his refusal to remove his glasses. The
28
prosecutor quoted the trial testimony of witness Gallegos:
596
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‘But are you sure this is the man? Does he look different
1
2
today than he did on this occasion?’
‘Yeah, hair might be a little longer and he’s wearing
3
4
sunglasses.’
5
‘Could he stand up and take his sunglasses off, please?’
6
The court asked him to do that and the defendant, ‘no,’ he
7
8
9
10
said.
You might conclude from that that he didn’t want to give Mr.
Gallegos any more opportunity to identify him than was necessary.
I think that is a reasonable conclusion.
11
(206 RT 23743.) By the prosecutor’s argument, the jury was urged to convict
12
Petitioner on all counts by virtue of his refusal to remove his sunglasses at trial.
13
1629. Petitioner’s refusal to remove his glasses did not impinge upon or
14
adversely impact in any meaningful way the witnesses’s identification of
15
Petitioner. Thus, the evidence failed to “supply the necessary nexus between
16
defendant and the alleged suppression of evidence.” People v. Hannon, 19 Cal.
17
3d 588, 599, 564 P.2d 1203, 138 Cal. Rptr. 885 (1977).
18
1630. Reducing the prosecution’s burden to prove every element of the
19
crime beyond a reasonable doubt is a violation of federal due process guarantees.
20
Sandstrom v. Montana, 442 U.S. 510, 520, 99 S. Ct. 2450, 61 L. Ed. 2d 39
21
(1979). Instructional error may constitute a federal due process violation where
22
the issue of intent is removed from the jury’s consideration. Jackson v. Virginia,
23
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Without sufficient
24
evidence to warrant the consciousness of guilt instruction, the jury was
25
effectively compelled to draw an improper inference of guilt in violation of
26
Petitioner’s right to due process of law. Sandstrom, 442 U.S. 510; In re Winship,
27
397 U.S. 358, 361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
28
597
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1
1631. In the absence of the trial court’s erroneous instruction, it is
2
reasonably probable that the jury would have properly considered the evidence.
3
For example, in respect to the Yu incident, and incidents involving weaker
4
counts, and eyewitness identifications such as in the Kyle, Dickman and Petersen
5
incidents, and found that Petitioner’s refusal did not in itself signify his guilt.
6
Thus, the error was prejudicial.
7
1632. The foregoing violations of Petitioner’s constitutional rights, taken
8
singly or in combination with the other errors alleged in the Petition, constitute
9
structural error and warrant the granting of this Petition without any
10
determination of whether the violations substantially affected or influenced the
11
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
12
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
13
doctrine applies to this claim, the foregoing constitutional violations, singly and
14
in combination with the other errors alleged in this Petition, so infected the
15
integrity of the proceedings that the error cannot be deemed harmless. The
16
foregoing violations of Petitioner’s rights had a substantial and injurious effect
17
or influence on Petitioner’s convictions and sentences, rendering them
18
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
19
637-38.
20
CLAIM 25:
21
THE TRIAL COURT VIOLATED PETITIONER’S
22
CONSTITUTIONAL RIGHTS BY REMOVING JUROR
23
ROBERT LEE DURING DELIBERATIONS
24
1633. Exhaustion of the claim: This claim was fairly presented to the
25
California Supreme Court in the direct appeal. It was presented in Section XII of
26
the opening appeal brief.
27
28
598
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1
1634. In support of this claim, Petitioner alleges the following facts,
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
4
1635. Those facts and allegations set forth in the petition, declarations,
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
9
1636. Jury selection in this case began on July 21, 1988. (65 RT 4803.)
Robert Lee became one of the regular, impaneled jurors. (See XXVIII CT 8295.)
10
The trial commenced on January 30, 1989. (Id. at 8299) During closing
11
argument on July 25, 1989, the court received a note from a member of the jury
12
regarding Juror Lee and his tendency “to catnap during the day.” (XXIX
13
CT 8498.) In response to the juror’s note, the court instructed the jury to report
14
to the court if “you’ve missed any of the evidence that has come before the court
15
. . . .” (211 RT 24268-69.) Following the court’s admonition, the jury reported
16
no such incidents to the court. Thereafter, at the conclusion of trial and following
17
the court’s instructions, jury deliberations began on July 26, 1989. (212
18
RT 24483.)
19
1637. On August 11, 1989, after Juror Lee had served for six months of
20
trial and after 13 days of deliberations, the trial court was presented with a note
21
from the jury foreman. The note read as follows:
22
Your honor, fellow jurors have brought it to my attention that juror
23
No. 3, Mr. Robert Lee, has fallen asleep on two occasions during our
24
deliberations. I have also seen him not quite as attentive as a result
25
of this – of his dozing off. ¶ As foreman I find it my responsibility
26
to bring this to your attention.
27
(213 RT 24522-23; XXIX CT 8622.) Trial counsel told the court: “I just don’t
28
think the jury should be able to select the jury, and it appears as though this is
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1
what is happening.” (213 RT 24524.) The prosecutor remarked for the first time
2
that this juror had previously been sleeping in court, a characterization the court
3
questioned: “I can’t say he has slept, but he certainly has jerked his head up
4
abruptly from time to time as if he were nodding off or had nodded off and was
5
awakening, but I cannot say that I have ever found him to be asleep.” (Id. at
6
24524.)
7
1638. The court held a hearing at which the foreman was questioned, not
8
under oath, as to what had occurred. He said that from his vantage point he could
9
see all the jurors well. He saw Juror Lee nod off for four to five minutes on
10
Tuesday, August 8, just before the lunch break, and again briefly in the afternoon
11
on Wednesday, August 9, the eleventh day of deliberations. Significantly, the
12
foreman stated he had not noticed Juror Lee sleeping before Tuesday, nor did any
13
of the other jurors mention it before then. (213 RT 24525-30.) The foreman also
14
represented that Juror Lee appeared on both occasions during deliberations to be
15
asleep; the foreman called his name, and he awakened and said he had been
16
reading. (Id. at 24528-29.) In a contradictory representation, the foreman said
17
the second incident was not after lunch but “during lunch actually.” (Id. at
18
24531.) Proceeding to discuss Juror Lee’s participation during deliberations –
19
which was not at issue – the foreman characterized Juror Lee’s comments on
20
matters under discussion as “a little off the wall sometimes.” (Id. at 24527.)
21
1639. In the prosecutor’s view, the jury, having been out two weeks, was
22
“at a point where they should start making decisions,” but “what they’re trying to
23
tell you is that there is some interference here.” (213 RT 24534.)
24
1640. Only two other jurors had allegedly noticed that Juror Lee may have
25
briefly fallen asleep, but they were not questioned by the court. (See Id. at
26
RT 24531.) On August 11, 1989, on the basis of the information provided by the
27
jury foreman, without exploring alternatives and without questioning Juror Lee
28
himself, the court decided to remove Juror Lee from the jury. Trial counsel
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1
objected. (Id. at 24533, 24535-36.) The court found that “[g]ood cause exists to
2
excuse him because of his sleeping . . . . I think I really have no choice and I find
3
good cause to excuse Mr. Lee. ¶ I don’t think there is any other finding I need
4
make.” (Id. at 24537.)
5
1641. On August 28, 1989, Petitioner filed a mandamus petition in the
6
Court of Appeal, Case No. B044368, to compel the trial court to discharge the
7
jury and dismiss the case against Petitioner, and issue a writ of prohibition to bar
8
refiling of the charges in Petitioner’s case. Relief was sought on the basis of the
9
trial court’s failure to conduct a sufficient inquiry and determine whether good
10
cause existed to discharge Juror Lee under § 1089. Petitioner argued that he had
11
been placed in jeopardy by virtue of the trial court’s order to renew jury
12
deliberations. The appellate court summarily denied the petition on August 29,
13
1989. (See I Supp. CT 9-58.)
14
15
1642. Over 180 years ago in United States v. Perez, 22 U.S. 579, 6 L. Ed.
165 (1824), the Supreme Court stated:
16
[T]he law has invested Courts of justice with the authority to
17
discharge a jury from giving any verdict, whenever, in their opinion,
18
taking all the circumstances into consideration, there is a manifest
19
necessity for the act, or the ends of public justice would otherwise be
20
defeated. They are to exercise a sound discretion on the subject; and
21
it is impossible to define all the circumstances, which would render
22
it proper to interfere. To be sure, the power ought to be used with
23
the greatest caution, under urgent circumstances, and for very plain
24
and obvious causes; and, in capital cases especially, Courts should
25
be extremely careful how they interfere with any of the chances of
26
life in favour of the prisoner.
27
Id., at 580 (emphasis added).
28
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1643. Ever since Perez, courts have recognized that once a jury is sworn,
2
the defendant has a constitutional right to have his case decided by that particular
3
jury. See United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993). The
4
Supreme Court has held that this right is rooted in the double jeopardy clause of
5
the Fifth Amendment. United States v. Jorn 400 U.S. 470, 484, 91 S. Ct. 547, 27
6
L. Ed. 2d 543 (1971). As elsewhere noted by the United States Court of Appeals
7
for the Eleventh Circuit, the necessity referred to in Perez is intended to
8
accommodate an accused’s right to have his trial completed by the tribunal sworn
9
to hear the case. United States v. Chica, 14 F.3d 1527, 1531 (11th Cir. 1994).
10
1644. In addition to the defendant’s right under the Fifth Amendment to
11
have his case decided by the particular jury selected, the requirements imposed
12
by the Sixth Amendment right to a jury trial, the Eighth Amendment requirement
13
of a reliable fact-finding process in a capital case, the federal rights to a
14
unanimous determination of guilt and penalty beyond a reasonable doubt, and the
15
rights to an impartial jury and to equal protection of the laws, also preclude
16
interference by the jury itself in its composition.
17
1645. In Tanner v. United States, 483 U.S. 107, 115-16, 107 S. Ct. 2739,
18
97 L. Ed. 2d 90 (1987), the Court held that evidence of juror incompetence was
19
too “meager” even to allow for an evidentiary hearing, let alone the discharge of
20
a juror as in this case. In Tanner, allegations arose during trial that the foreperson
21
was an alcoholic and that other jurors daily imbibed large quantities of alcohol,
22
marijuana and cocaine, and slept their way through Tanner’s trial. At least one
23
offending juror “felt like . . . the jury was on one big party.” Id. Even under
24
those circumstances, the Supreme Court concluded that the evidence of juror
25
incompetence was too “meager” to warrant a hearing. Tanner v. United States,
26
483 U.S. at 126.
27
28
1646. When one or more members of a jury complain to a trial court about
relatively innocuous behavior, such as occasional instances of napping or
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1
sleeping during trial or even during deliberations, extreme care is thus required to
2
avoid unnecessary inquiry. In this case, Juror Lee did not sleep throughout
3
deliberations; he was observed sleeping a few minutes on two brief occasions.
4
The foreman’s report itself was contradictory as to what had actually occurred as
5
one incident of sleeping actually may have occurred during lunch and not
6
deliberations. Evidence of Juror Lee’s sleeping was thus insufficient to establish
7
that he was either incompetent, had committed misconduct warranting discharge,
8
or was unable to perform his duties during deliberations. By taking the
9
statements of the foreman at face value, without further inquiry of Juror Lee, and
10
by discharging Juror Lee for two brief unsubstantiated incidents, the court erred
11
and abused its discretion. The court also impermissibly allowed the jurors to
12
exercise control over the composition of the jury.
13
1647. The court failed to conduct an appropriate hearing sufficient to
14
establish good cause to remove Juror Lee. The court limited its inquiry by
15
speaking briefly only with the jury foreman. The court did not question Juror
16
Lee. Thus, the court’s investigation court was inadequate. Absent sufficient
17
inquiry, the court did not marshal or obtain the facts needed to decide whether
18
Juror Lee’s ability to continue his deliberations was impaired. The trial court
19
thus erred in removing Juror Lee.
20
1648. The discharge of Juror Lee violated Petitioner’s rights to due process
21
and a fair trial. Petitioner had a constitutional right to have his trial completed by
22
the tribunal selected and sworn to hear the case. “[W]here the judge, acting
23
without the defendant’s consent, aborts the proceeding, the defendant has been
24
deprived of his ‘valued right to have his trial completed by a particular tribunal.’”
25
United States v. Jorn, 400 U.S. at 484; United States v. Shafer, 987 F.2d 1054.
26
1649. Moreover, the Supreme Court has explicitly recognized that “in
27
capital cases especially, Courts should be extremely careful” in exercising their
28
limited discretion to remove jurors after they have been sworn, especially after
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1
they have commenced deliberations. United States v. Perez, 22 U.S. at 579. The
2
long-ago ruling in Perez was a premonition of current Eighth Amendment
3
jurisprudence that particular care is required to protect a defendant’s right to a
4
reliable determination of penalty under such circumstances.
5
1650. The removal of Juror Lee violated Petitioner’s fundamental rights
6
under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The court’s failure
7
to conduct a sufficient inquiry to determine whether the juror’s conduct
8
warranted removal flawed the deliberative process. Petitioner was denied his
9
constitutional right to a fair trial by a particular jury. United States v. Jorn, 400
10
U.S. at 484. Affecting the framework within which Petitioner’s trial proceeds and
11
rendering the trial fundamentally unfair, the error constituted a structural error
12
that was reversible per se. Arizona v. Fulminante, 499 U.S. at 310.
13
1651. Petitioner was entitled to have his case decided by the particular jury
14
sworn to hear the case, which included Juror Lee. The trial court’s unwarranted
15
removal of Juror Lee violated Petitioner’s constitutionally protected right to a
16
particular jury. United States v. Jorn, 400 U.S. at 484. Following removal of
17
Juror Lee, the newly-constituted jury ultimately returned guilty verdicts on all
18
counts, made true findings on 19 special-circumstance allegations, and rendered a
19
death verdict. Thus, the trial court’s error was prejudicial. Under the federal
20
standard, it cannot be said that the error was harmless beyond a reasonable doubt.
21
1652. The foregoing violations of Petitioner’s constitutional rights, taken
22
singly or in combination with the other errors alleged in the Petition, constitute
23
structural error and warrant the granting of this Petition without any
24
determination of whether the violations substantially affected or influenced the
25
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
26
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
27
doctrine applies to this claim, the foregoing constitutional violations, singly and
28
in combination with the other errors alleged in this Petition, so infected the
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1
integrity of the proceedings that the error cannot be deemed harmless. The
2
foregoing violations of Petitioner’s rights had a substantial and injurious effect
3
or influence on Petitioner’s convictions and sentences, rendering them
4
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
5
637-38.
6
CLAIM 26:
7
THE TRIAL COURT’S REFUSAL TO VOIR DIRE THE
8
JURY AND GRANT MR. RAMIREZ’S MOTION FOR A
9
MISTRIAL AFTER A JUROR WAS MURDERED DURING
10
TRIAL, AND TRIAL COUNSEL’S FAILURE TO
11
COMPETENTLY PRESENT MR. RAMIREZ’S MOTIONS
12
VIOLATED MR. RAMIREZ’S CONSTITUTIONAL RIGHTS
13
1653. Mr. Ramirez’s convictions, confinement, and sentence are illegal
14
and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments
15
of the United States Constitution because (1) the trial court erroneously refused to
16
voir dire the jury and grant Mr. Ramirez’s motion for a mistrial after a juror was
17
murdered just after guilt-phase deliberations had begun, and (2) trial counsel
18
performed deficiently in failing to competently present motions to voir dire the
19
jury and for a mistrial. These errors deprived Mr. Ramirez of his rights to be free
20
from cruel and unusual punishment; to a fair and impartial jury; to a reliable, fair,
21
non-arbitrary, and non-capricious determination of guilt, death eligibility, and
22
penalty; to the effective assistance of counsel; to present a defense; to
23
confrontation and compulsory process; to the enforcement of mandatory state
24
laws; to a trial free of materially false and misleading evidence; to equal
25
protection of law; and to due process of law as guaranteed by the Fifth, Sixth,
26
Eighth and Fourteenth Amendments to the Untied States Constitution; and
27
international human rights law as established by treaties, customary law, and
28
under the doctrine of jus cogens.
605
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1654. Exhaustion of the claim: This claim was fairly presented to the
1
2
California Supreme Court in the direct appeal. It was presented in Section XIII
3
of the Opening Brief, although it includes additional factual allegations.
4
Petitioner will present the claim with the additional factual allegations to the
5
California Supreme Court in an exhaustion petition he will file no later than
6
March 17, 2009.
1655. The facts in support of this claim, among others to be presented after
7
8
full investigation, discovery, access to this Court’s subpoena power, and an
9
evidentiary hearing, include the following:
1656. Mr. Ramirez’s jury began guilt phase deliberations on July 26, 1989.
10
11
(212 RT 24483.) In the middle of guilt-phase deliberations, Phyllis Singletary,
12
Juror No. 8, was murdered. The circumstances of Juror Singletary’s murder were
13
eerily similar to the murders of which the jury was deciding Mr. Ramirez’s
14
responsibility for. Ms. Singletary was found in her home dead: beaten very badly
15
and then shot.
1657. On the Monday afternoon of August 14, 1989, the trial court was
16
17
told over lunch that Juror Singletary “was dead in her home of a gunshot wound.”
18
(213-A RT 23549.) During the afternoon session, the court informed counsel,
19
outside the presence of the jury, that it believed Juror Singletary was killed. The
20
court recognized that “this is going to make a splash whether [the jury]
21
conscientiously avoid news media material or not. I think it’s going to be very,
22
very difficult for them to avoid this[.]” (Id. at 24550.)
1658. The court then brought the jury out and informed them that it is
23
24
“attempting to find out exactly what is going on with Juror Singletary. We
25
haven’t anything definitive yet to tell you.” (Id. at 24553.) After a brief
26
admonishment, the court excused the jury and ordered them to return the next
27
day.
28
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1659. That evening, as the trial court had predicted, Los Angeles county
1
2
was inundated with media accounts of Juror Singletary’s murder -- much of
3
which was prejudicial to Mr. Ramirez and falsely implied the murder was related
4
to his case. On Tuesday, August 15, 1989, a Herald Examiner newsstand located
5
directly in front of the Criminal Courts building displayed the headline from the
6
daily paper reading “NIGHT STALKER JUROR SHOT DEAD” with the
7
subheading “No mistrial seen in case beset with problems.” (29 CT 8670); (Ex.
8
80.)
9
1660. On the morning of Tuesday, August 15, 1989, the court again
10
addressed counsel outside of the jury’s presence, suggesting a stern
11
admonishment to the jury and then “get on with the business of selecting an
12
alternate jury -- juror and then proceed with their deliberations.” (213-B RT
13
24555.) Defense counsel indicated that its only concern was when the jury was
14
to resume deliberations, but otherwise had no objection to the trial court’s initial
15
plan. (Id. at 24556.) The trial court then told counsel, “What I was going to do,
16
and I think this also might be required, would be to poll them as a group, if there
17
is anybody who, because of this tragedy, could no longer be a fair and impartial
18
juror.” (Id. at 24557.)
19
1661. At this time, trial counsel informed the court it anticipated making a
20
motion for a mistrial but the court told counsel he needed to make the motion
21
immediately to which counsel responded, “I can’t do it this morning.” (Id. at
22
24558.) Clearly perturbed, the court dismissed the idea of a mistrial: “I know
23
you can’t and I don’t think there are any grounds for it, Mr. Hernandez.” (Id.)
24
The trial court then told Mr. Hernandez “If you could find that there are grounds .
25
. . I think you might be able to bring them up at a later date, in a day or two, if we
26
decide to go forward with this thing.” (Id. at 24559.)
27
28
1662. The court admitted the jurors were shaken by the incident: “[T]here
are some very distraught people walking into this courtroom that went into the
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1
jury room. I mean, there were some very, very --“ (Id.) It then told counsel its
2
intention to inform the jury as to what happened, question the jury as to whether
3
they could be impartial, and select an alternate. (Id. at 24561-62.) This
4
procedure, however, never occurred.
5
1663. Instead, before the jury was brought out, the prosecution objected to
6
the court’s intended plan; in part because “polling at this time might in fact elicit
7
emotional responses and could well cause a mistrial.” (213 RT 24564.) The
8
court agreed: “I think Mr. Halpin has an excellent point, and I think people are
9
shocked by a situation of sudden death and that perhaps requesting an immediate
10
11
response is not appropriate.” (Id. at 24565.)
1664. The court then brought out the jury to inform them of the murder.
12
Rather than put the jurors’ minds at ease, however, its tepid explanation only
13
exacerbated whatever feelings of fear for their personal safety they may have
14
already had. First, the court explained to the jury why it had not informed them
15
the previous day about he murder of Juror Singletary, stressing that it “didn’t
16
want to alarm you, I didn’t want to panic you and I didn’t want to give you false
17
information that I would have to retract later on, so I made a decision simply to
18
not give you any information at all.” (Id. at 24568.)
19
1665. The court then, for the first time, acknowledged to the jury that
20
“your friend, and our juror here in court, Phyllis Singletary, has been shot.” (Id.)
21
1666. Then, in giving a half-hearted admonition, the court added to
22
speculation that the juror’s murder was related to the trial: “I want to emphasize
23
it has, as far as we are able to determine, and I’m sure, has nothing to do with
24
this case.” (Id. (emphasis added.))
25
1667. After this less-then-reassuring statement, the court stoked the jurors’
26
fears, warning them “I talked to the undersheriff of this county and an arrest [has]
27
not been made, but that is the latest we have.” (Id. at 24569.)
28
608
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1
1668. The court then selected the distraught and overwhelmed alternate
2
juror Herrerra to replace Ms. Singletary -- certainly traumatizing her as she
3
replaced a juror who was murdered just days ago.
4
1669. Before dismissing the jury for the evening, the trial court morbidly
5
told the jury, “I feel sorry for all of you,” and ordered them to resume
6
deliberations the next morning at 9:30 a.m. Finally, the court ended with a
7
cautionary warning to “take care of yourselves.” (213 RT 24571.) Even the
8
prosecutor recognized the court’s speech created a “misimpression” that the
9
murder could have been related to petitioner’s case. (Id. at 24583.)
10
1670. The next morning, on Wednesday, August 16, 1989, out of the
11
presence of the jury, the court and counsel again discussed juror Singletary’s
12
death and the impact of her murder on the jury. Trial counsel moved for
13
suspension of jury deliberations to enable the defense to discuss the matter with
14
its jury consultant, Jo-Ellen Dimitrius, Ph.D., who had assisted the defense
15
throughout the jury selection process, and with Dr. Carlo Webber, a clinical
16
psychologist specializing in trauma and crisis intervention. (Id. at 24574-76.)
17
The trial court dismissed counsel’s proposal to suspend deliberations, “perhaps as
18
long as a week, so that the jury can go through the three-or four-step process that
19
they must to get back on some kind of equilibrium that they will need to possibly
20
deliberate on this case.” (Id. at 24582.)
21
1671. Instead, the court opted merely to “inquire of the jury foreman as to
22
his belief” about the other eleven jurors’ state of mind. (Id. at 24590.) The court
23
deemed a mere three-question inquiry sufficient to gauge the ability of the jurors
24
to fairly and impartially continue deliberations. The three questions posed to the
25
foreperson were improperly leading and required answers well beyond his ability
26
to perceive:
27
28
609
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1
The Court: Do you have an opinion as to whether or not the events
2
of the last few days have sort of settled down now and that the jury
3
is able to continue on with their deliberations?
4
Juror Seven (Mr. Rodriguez): Yea, I feel that it is somewhat
5
tranquil, but it is -- I feel that we can probably continue today.
6
The Court: Nobody has indicated in the jury room that they are
7
unable to proceed?
8
Juror Seven (Mr. Rodriguez): No.
9
The Court: They all seem to be able to carry out their duties then as
10
jurors?
11
Juror Seven (Mr. Rodriguez): Right. Everyone appears to have put
12
it behind them.
13
14
(Id. at 24591.)
1672. If there were any doubt as to the answer the court hoped to elicit
15
from his leading questions, it was made obvious by its response to the foreperson
16
at the conclusion of his two-question interview: “I am delighted to hear that.”
17
(Id. at 24591.)
18
1673. Immediately after the foreperson left the stand, the court ruled:
19
“Unless someone has some authority to give me, the court is reasonably satisfied
20
that the jurors are able to proceed with their deliberations and that upon further
21
admonishment I propose that is exactly what we do.” (Id. at 24592.) The court
22
then denied trial counsel’s objections and motion for further inquiry.
23
1674. By 10:45 A.M. on Wednesday, August 16th, a mere two days after
24
the jury learned one of their colleagues was brutally murdered in a similar
25
manner as the charged murders of which they were deliberating, the jury had
26
resumed their deliberations.
27
28
610
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1
A.
The Trial Court Violated Petitioner’s Constitutional Rights by Failing
2
to Grant Counsel’s Motion for a Mistrial and Immediately Voir Dire
3
the Jury
4
1675. The trial court committed egregious error and violated Petitioner’s
5
federal and constitutional rights in failing to declare a mistrial after Juror
6
Singletary was murdered.
7
1676. On Tuesday, August 15, 1989, defense counsel informed the court
8
that they would file a motion for a mistrial. (213-B RT 24557.) The trial court
9
curtly and improperly told counsel “I don’t think there are any grounds for it.”
10
(Id. at 24558.) After counsel’s insistence that it was his “obligation” to bring a
11
motion, the court instructed counsel “bring them up at a later date, in a day or
12
two, if we decide to go forward with this thing.” (Id. at 24559.)
13
1677. On August 23, 1989, Petitioner moved to disqualify the jurors and
14
for a mistrial. Petitioner alleged that under the California Constitution and the
15
Sixth Amendment, the jury was unable to deliberate in an unbiased manner
16
because of the death of Juror Singletary and should be disqualified. Trial counsel
17
further argued that the jury committed misconduct through their volitional, as
18
well as unavoidable, exposure to media coverage of the juror’s death. (XXIX CT
19
8667-77.) The prosecution opposed the motion on August 31, 1989. (XXX CT
20
8692-94.)
21
1678. The trial court denied Petitioner’s motion on September 5, 1989
22
without conducting any inquiry. The court found no good cause to grant relief as
23
the jury had resumed deliberations without any reported difficulty. (215 RT
24
24674-75.) At the hearing, however, the court indicated it had made clear its
25
ruling long before it formally denied the motion: “the motion for mistrial is also
26
denied for reasons stated last week.” (Id. at 24675.)
27
28
1679. Trial counsel’s motion and accompanying declaration provided
alarming details regarding the extent of shock and dismay felt by the jurors. In
611
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1
his declaration counsel stated he noticed the alternate juror replacing Juror
2
Singletary as “conspicuously distraught and unable to proceed to take juror chair
3
number 8.” (XXIX CT 8670.) Counsel also informed the court that it learned
4
“Ms. Herrera was emotionally overcome with grief in the corridor just prior to the
5
hearing. One person informed defense counsel that Ms. Herrera was ‘hysterical.’
6
The entire panel of regular jurors as well as all the alternate jurors were teary
7
eyes and appeared subdued by emotion.” (Id. at 8671.)
8
9
1680. Trial counsel’s declaration also stated “A Herald Examiner
newsstand located directly in front of the Criminal Courts Building displayed” a
10
headline referring the Juror Singletary’s murder. Indeed, the August 15, 1989
11
edition of the Herald Examiner carried as its headline: “Night Stalker juror shot
12
dead” in large bold letters. (Ex. 80.)
13
1681. Moreover, the murder of a female juror by a male perpetrator was
14
similar in execution to many of the charges in Petitioner’s case, leaving jurors
15
with a psychological attachment between the two perpetrators and victims that
16
would endanger their ability to remain impartial during deliberations.
17
1682. Further, the jury was not unaccustomed to acts of violence, which
18
they could have reasonably associated as purposefully targeted against them. For
19
example, Juror Singletary’s car windows were previously broken out during trial
20
(133 RT 14822-26), and Juror Salcido had her car stolen and recovered. (Ex.
21
129, J. Salcido Dec., ¶ 10.)
22
1683. The events surrounding the murder of Juror Singletary led to juror
23
bias and constituted a legal ground to discharge the jury. The murder of Juror
24
Singletary substantially interfered with the discharge of the jury’s duties. As the
25
trial court noticed, the jurors were “very distraught.” (213-A RT 24559.) Having
26
spent months enveloped in a trial beset with violent and disturbing facts, having
27
the jurors’ bond broken by a brutal murder required the court to declare a
28
mistrial.
612
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1
1684. The trial court also committed error by refusing even to question
2
jurors regarding their ability to remain impartial. As early as Tuesday, August
3
15, 1989, counsel objected to the court’s decision to solely question the juror
4
foreperson, and instead made a “request that the other jurors be questioned[.]”
5
(213 RT 24595.) However, the court immediately dismissed counsel’s objection,
6
stating, “Mr. Hernandez, it is never my intention to permit counsel to do any
7
polling whatsoever, so I mean the most I was inclined to read and consider any
8
questions you had to offer.” (Id.)
9
1685. On August 21, 1989, Petitioner submitted a written motion to voir
10
dire the jurors regarding their impartiality in light of Juror Singletary’s death.
11
(XXIX CT 8639-44, 8647-55.) On August 23, 1989, Petitioner filed
12
supplemental points and authorities in support of his motion to voir dire jurors.
13
(Id. at 8661-64.) The prosecution filed its opposition on August 24, 1989. (Id. at
14
8681-83.)
15
1686. In a remarkable display of ‘putting the cart before the horse,’ the
16
court denied trial counsel’s motion to question the jurors about their thoughts and
17
feelings regarding the murder because the court had not yet gotten any indication
18
of the juror’s thoughts and feelings about the murder. “This court has had
19
nothing that would put it on notice, either by the jury or by its own observations,
20
that would indicate that this jury is not able to continue on with its deliberations .
21
. . I so find . . . that they are able to deliberate, that we have had no words from
22
the jury indicating otherwise . . . so your motion to have the jury polled, either by
23
court or counsel, is denied.” (215 RT 24665.)
24
1687. Had the court conducted a voir dire, it would have realized the jury
25
could not have fairly deliberated on petitioner’s guilt. For example, one juror
26
recalls already having sleepless nights “because of the gruesome nature of the
27
crimes and the evidence presented in the courtroom.” (Ex. 120, B. Smith Dec., ¶
28
11.) After Juror Singletary’s murder, the juror “became even more uneasy.” (Id.)
613
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1
1688. Another juror remembered Petitioner always staring at the jurors as
2
they were brought in. (Ex. 114, J. Dabney Dec., ¶ 5.) While this did not
3
necessarily trouble the juror before, Juror Singletary’s murder suddenly made
4
Petitioner’s courtroom conduct bothersome. (Id.)
5
6
1689. A Los Angeles Times newspaper article reported at least three jurors
expressing concerns over the murder of Juror Singletary:
7
Several jurors also told of fears for their personal safety when they
8
learned of Singletary’s murder on the night of Aug. 14 -- mostly
9
from television news bulletins. At the time, it had not been
10
determined who killed the woman. [Juror Cynthia] Haden was in
11
her Glendale home -- only two blocks from the scene of a Night
12
Stalker double homicide -- when a news flash interrupted a late-
13
night TV movie. ‘My first thought was that we were all going to be
14
picked off, one by one. Who’s next?’ she recalled. Her roommate
15
got his gun out and kept it handy. Moments later, Haden got a
16
frantic call from Chakalit Harris, another juror, expressing the same
17
concern. But Harris was less fearful for her own safety. During the
18
course of the trial, she had installed window bars on her home -- and
19
had bought a third dog, a Great Dane. When [juror] Rodriguez
20
heard the news, while watching an Angels baseball game, he quickly
21
gathered up his two children and locked up the house. His wife was
22
still at work.
23
24
(Ex. 78, at p. 2208-09.)
1690. The trial court similarly erred in refusing to question jurors
25
regarding the impact of prejudicial publicity on their ability to be impartial. The
26
morning the court learned Jury Singletary was murdered, it admitted “this is
27
going to make a splash whether they conscientiously avoid news media material
28
614
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1
or not. I think it is going to be very, very difficult for them to avoid this[.]
2
(213A-RT 24550.)
3
1691. The jury was not told by the trial court what happened to Juror
4
Singletary on Monday, August 15, 1989. Instead, they were sent home. As the
5
trial court predicted, news of the juror’s murder inundated the county. Rather
6
than from the court, the media’s inflammatory and sensational reporting about the
7
jurors’ murder were the first the jury heard about their fellow juror’s murder.
8
a.
newspaper, the Herald Examiner, read the headline: “Night
9
Stalker juror shot dead.” (Ex. 80.)
10
11
Plastered in a front page headline across a major Los Angeles
b.
One juror recalls finding out about the murder of Juror
12
Singletary “while I was watching a movie on the television.”
13
(Ex. 113, L. Casselli Dec., ¶ 3.) Even with the most diligent
14
attempt to follow the court’s admonishment to avoid media
15
surrounding the case, it was impossible to avoid hearing of her
16
death as a “news flash came up that said one of the Ramirez
17
jurors had been murdered.” (Id.) She explained that upon
18
hearing the news, her “first thought was that the murder as
19
related to the Ramirez case and for a few days we jurors
20
believed that to be true.” (Id.)
21
c.
Despite trying to follow the court’s admonishment, another
22
juror admitted to catching “a glimpse of the murdered juror
23
being wheeled out on a gurney but I immediately looked
24
away. I was nervous on the way to court. I wondered what
25
was going on.” (Ex. 129, J. Salcido Dec., ¶ 2.)
26
d.
Still another juror still remembers that he “was at home one
27
night and passed by a television set and caught a fleeting
28
glimpse of a fellow juror named Phyllis Singletary. When
615
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1
that happened, I remember saying, ‘My God, I know that
2
lady.’” (Ex. 117, J. McGee Dec., ¶ 4.)
3
1692. The Supreme Court has long held that a defendant has a
4
constitutional right to an impartial tribunal. An impartial jury is at the core of our
5
criminal justice system. Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct.
6
654, 56 L. Ed. 1038 (1912). Jurors must render a verdict based on evidence
7
presented at trial. Irwin v. Dowd, 366 U.S. 717, 721-22, 81 S. Ct. 1639, 6 L. Ed.
8
2d 751 (1961). Testimony of jurors in situations where an extraneous influence
9
may have affected the jury is required in Mattox v. United States, 146 U.S. 140,
10
149, 13 S. Ct. 50, 36 L. Ed. 917 (1892) (jurors heard and read prejudicial
11
information not admitted at trial); Parker v. Gladden, 385 U.S. 363, 365, 87 S.
12
Ct. 468, 17 L. Ed. 420 (1966) (comments about defendant made by bailiff); and
13
Remmer v. United States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 98 L. Ed. 654
14
(1954) (juror offered a bribe.)
15
1693. An inquiry into the jury’s exposure to the news coverage of Juror
16
Singletary’s death was required, yet the trial court did nothing to determine the
17
nature and extent of the jurors’ exposure to publicity. Comments by the court,
18
the prosecution and trial counsel clearly indicated that jurors had been exposed to
19
media coverage of the juror’s death and that one, several, or all of the jurors were
20
likely to have been influenced to Petitioner’s potential detriment.
21
1694. Petitioner’s right to an inquiry by the trial court to determine
22
possible juror bias (exposure to material outside the record) or other bias leading
23
to the necessity of a mistrial has been fully recognized and protected in federal
24
law. See Remmer, 347 U.S. at 230. Where a defendant alleges facts raising the
25
possibility of juror misconduct, for example, the trial court should order an
26
evidentiary hearing to ascertain what occurred and whether a defendant has been
27
prejudiced. As one prominent federal commentator has summarized: “A party
28
who makes a proper preliminary showing is entitled to an evidentiary hearing,
616
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1
and in criminal cases the entitlement is of constitutional dimension.” Mueller,
2
Jurors’ Impeachment of Verdicts and Indictments in Federal Court Under Rule
3
606(b), 57 Neb. L. Rev. 920, 962-63 (1978) (footnotes omitted.)
4
1695. In Remmer, someone approached one of the jurors during trial and
5
suggested “he could profit by bringing in a verdict favorable to the [defendant].”
6
Id. at 228. The matter was brought to the attention of the trial court and
7
prosecutors who investigated the matter. They apparently concluded the
8
statement had been made in jest. Defense counsel was not informed about the
9
matter until after the verdict. Counsel moved for a new trial. The trial court
10
denied the motion without an evidentiary hearing. In reversing the conviction,
11
the Supreme Court explained:
12
The trial court should not decide and take final action ex parte on
13
information such as was received in this case, but should determine
14
the circumstances, the impact thereof upon the juror, and whether or
15
not it was prejudicial, in a hearing with all interested parties
16
permitted to participate.
17
18
Id. at 229-30.
1696. The United States Courts of Appeals have regularly used evidentiary
19
hearings to explore claims of jury misconduct and bias. E.g., United States v.
20
Madrid, 842 F.2d 1090 (9th Cir. 1988); United States v. Bagnariol, 665 F.2d 877,
21
884 (9th Cir. 1981); United States v. Mirkin, 649 F.2d 78, 80 (1st Cir. 1981); Port
22
Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328 (11th Cir.
23
1983); Morgan v. United States, 380 F.2d 915 (5th Cir. 1967). As one Court of
24
Appeals has noted, a party claiming an improperly influenced jury returned a
25
verdict against him is entitled to the opportunity to prove the claim. In response
26
to such an allegation, the trial judge “must conduct a full investigation to
27
ascertain whether the alleged jury misconduct actually occurred; if it occurred, he
28
must determine whether or not it was prejudicial.” United States v. Brantley, 733
617
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1
F.2d 1429, 1439 (11th Cir. 1984) (quoting United States v. McKinney, 429 F.2d
2
1019, 1026 (5th Cir. 1970)); accord, Bagnariol, 665 F.2d at 885 (trial court, upon
3
learning of a possible incident of juror misconduct, must hold an evidentiary
4
hearing to determine the precise nature of the extraneous information); Haley v.
5
Blue Ridge Transfer Co., Inc., 802 F.2d 1532, 1535 n.1 (4th Cir. 1986)
6
(allegations of juror prejudice arising from extraneous communications during
7
trial raise serious questions about the fairness of the result and, in most cases,
8
require a probing factual inquiry into the substance of the allegations – an inquiry
9
that is reviewable on appeal); see also United States v. Corbin, 590 F.2d 398, 400
10
11
(1st Cir. 1979).
1697. While district courts have discretion to decide whether and how to
12
conduct evidentiary hearings dealing with allegations of jury misconduct and
13
tampering (e.g., United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir.
14
1986); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977)), abuse of
15
discretion has been invariably found where evidentiary hearings, necessary to
16
fairly and adequately determine the extent to which the allegations of misconduct
17
were true, were not conducted, as in the present case. See, e.g., Remmer, 347
18
U.S. 227; United States v. Brantley; Richardson v. United States, 360 F.2d 366,
19
369 (5th Cir. 1966); Wheaton v. United States, 133 F.2d 522, 527 (8th Cir. 1943).
20
1698. The California Supreme Court unreasonably attributed the trial
21
court’s error in failing to grant a mistrial and voir dire the jurors to the court
22
being “asked to rule on this request more than two weeks after the jury had
23
resumed deliberations.” People v. Ramirez, 39 Cal. 4th 398, 460, 139 P.3d 64, 46
24
Cal. Rptr. 3d 677 (2006). As described above, as early as August 16, 1989 - one
25
day after learning of the murdered juror, trial counsel indicated to the court its
26
objection to questioning only one juror and asked that all jurors be questioned.
27
(213 RT 24595.) While the written motions for voir dire and a mistrial were
28
submitted on August 21st and 23rd, the rules regarding notice did not allow for a
618
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1
hearing until September 5, 1989. Indeed, it was the trial court itself that endorsed
2
the idea of counsel proceeding by notice motion, which under California rules
3
stalled the ability of the trial to hear the matter. (See 213-B RT 24557-59.) In
4
any event, to the extent counsel was to blame for the court’s failure to grant a
5
mistrial and voir dire the jurors, counsel acted deficiently and prejudicially. See
6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
7
CLAIM 27:
8
COUNTS 3 AND 5 – THE EVIDENCE WAS INSUFFICIENT
9
TO SUPPORT PETITIONER’S CONVICTIONS OF
10
BURGLARY AND FIRST-DEGREE FELONY-MURDER
11
1699. Exhaustion of the claim: This claim was fairly presented to the
12
California Supreme Court in the direct appeal. It was presented in Section XIV
13
of the Opening Brief.
14
1700. In support of this claim, Petitioner alleges the following facts,
15
among others to be presented after full discovery, investigation, adequate
16
funding, access to this Court’s subpoena power, and an evidentiary hearing.
17
1701. Those facts and allegations set forth in the petition, declarations,
18
claims of constitutional violations, and the accompanying exhibits are
19
incorporated by reference as if fully set forth herein to avoid unnecessary
20
duplication of relevant facts.
21
1702. The prosecution alleged commission of burglary with the intent to
22
commit larceny in fourteen of the fifteen charged incidents (counts 1, 3, 7, 10, 12,
23
15, 19, 21, 23, 25, 28, 31, 36, and 39). (See XIX CT 5419-57.) The prosecution
24
relied on burglary charges as to those counts to support felony-murder allegations
25
in ten of the incidents involving Vincow, Okazaki, Zazzara, Doi, Bell, Cannon,
26
27
28
619
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1
Nelson, Kneidimg, Khovananth, and Abowath (counts 2, 5, 8, 9, 11, 13, 20, 24,
2
29, 30, 32, and 40).126 (See Id. at 5420-58.)
3
1703. The case was submitted to the jury on alternative theories of first
4
degree felony murder and willful, deliberate and premeditated murder. Jury
5
instructions on deliberate and premeditated murder (CALJIC No. 8.20) as well as
6
first degree felony murder (CALJIC No. 8.21) were given by the trial court. (See
7
212 RT 24445-48; XXIX CT 8548-50.) The trial court instructed the jury on
8
burglary (CALJIC No. 14.50) (212 RT 24471-73), and theft by larceny (CALJIC
9
Nos. 14.00 and 14.02) (Id. at 24470-71). During closing argument, the
10
prosecutor focused exclusively on the felony-murder theory of liability on count
11
5. (See 206 RT 23719-20.) The jury convicted Petitioner of all burglaries and
12
felony murders as charged. Death sentences were imposed on counts 2, 5, 8, 9,
13
11, 13, 20, 24, 29, 30, 32, and 40. (See XXX CT 8727-88; XXXI CT 9076.)
14
1704. In respect to the Okazaki incident (counts 3 and 5), the evidence was
15
insufficient to support his conviction of burglary and felony murder based on the
16
commission of burglary. The evidence failed to establish that a theft occurred –
17
before, during, or after the homicide. There was insufficient evidence that a
18
burglary had occurred. There was insufficient evidence of specific intent to
19
commit burglary. And there was insufficient evidence to prove beyond a
20
reasonable doubt that Petitioner was the perpetrator of the charged crimes.
21
1705. A conviction or other finding which is not supported by sufficient
22
evidence constitutes not just an error of state law, but also a denial of due process
23
and a violation of an accused’s federal constitutional rights. Jackson v. Virginia,
24
443 U.S. at 309. The federal constitutional standard for determining the
25
sufficiency of evidence is identical to the standard under California law. People
26
v. Staten, 24 Cal. 4th 434, 460, 11 P.3d 968, 101 Cal. Rptr. 2d 213 (2000). Under
27
28
126
The Yu homicide (count 6) took place on a public street.
620
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1
both, reversal is required if one of the essential elements of the crime is not
2
supported by substantial evidence. People v. Hernandez, 47 Cal. 3d 315, 345-46,
3
763 P.2d 1289, 253 Cal. Rptr. 199 (1988).
4
1706. The elements of burglary to commit larceny are defined in CALJIC
5
No. 14.50. The commission of burglary consists of (1) entry into a structure, (2)
6
a specific intent to take away someone else’s property at the time of the entry,
7
and (3) the intent to permanently deprive the owner of such property. Theft by
8
larceny is defined in CALJIC No. 14.02.
9
1707. The commission of theft by larceny consists of (1) taking the
10
personal property of another, (2) with the specific intent to permanently deprive
11
the person of such property, and (3) obtaining physical possession and control of
12
the property for some period of time.
13
1708. An attempt to commit burglary requires a specific intent to commit
14
burglary and a direct but ineffectual act done towards its commission. (CALJIC
15
No. 6.00.)
16
1709. Burglary requires proof of entry into a structure with the intent to
17
commit theft or a felony. If there is evidence of the requisite intent to commit
18
theft or a felony, the offense is deemed completed whether or not the underlying
19
act actually is committed. People v. Montoya, 7 Cal. 4th 1027, 1041-42, 874
20
P.2d 903, 31 Cal. Rptr. 2d 128 (1994). However, where there is a lack of intent
21
to commit the underlying felony or theft, the evidence fails to establish a
22
burglary. People v. Teamer, 20 Cal. App. 4th 1454, 1457-58, 25 Cal. Rptr. 2d
23
296 (1993).
24
1710. The evidence at trial was insufficient to support the underlying
25
burglary conviction in count 3. There was no evidence of theft, ransacking, or
26
attempted taking of property. The discovery of Okazaki’s body in the
27
condominium without any sign of theft did not support the commission of a
28
burglary with the specific intent to commit theft.
621
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1
1711. A charge of first-degree murder based on the theory of felony
2
murder requires proof of an independent felonious intent separate from the intent
3
to commit homicide. People v. Ireland, 70 Cal. 2d 522, 539, 450 P.2d 580, 75
4
Cal. Rptr. 188 (1969). In other words, if the theory of homicide is felony murder
5
based on a killing in the course of a burglary, the intent to commit an assault or to
6
commit murder cannot be the felonious intent which underlies the burglary.
7
People v. Teamer, 20 Cal. App. 4th at 1459-60; People v. Wilson, 1 Cal. 3d 431,
8
436-42, 462 P.2d 22, 82 Cal. Rptr. 494 (1969); People v. Garrison, 47 Cal. 3d
9
746, 778, 765 P.2d 419, 254 Cal. Rptr. 257 (1989). There must be an
10
independent intent to commit another felony (e.g., theft) underlying the burglary
11
for it to serve as the basis for a felony- murder conviction. See People v. Sears, 2
12
Cal. 3d 180, 188, 465 P.2d 847, 84 Cal. Rptr. 711 (1970) (first degree murder
13
conviction reversed on basis of Ireland and Wilson); People Sanders, 51 Cal. 3d
14
471, 509 (1990) (burglary based on intent to assault cannot support felony-
15
murder instruction, following Ireland and Wilson); People v. Baker, 74 Cal. App.
16
4th 243, 250, 87 Cal. Rptr. 2d 803 (1999) (trial court erred in applying felony-
17
murder rule to conspiracy to commit assault with deadly weapon, following
18
Wilson).
19
1712. Here, the evidence at best showed that a killing occurred but not in
20
the course of a burglary. The evidence offered at trial in respect to count 5
21
demonstrated that the perpetrator’s intent fell within the Ireland merger doctrine,
22
that is, an intent to commit murder or assault, rather than a separate, primary
23
intent to commit theft. The manner of the victim’s death and the absence of any
24
attempt to take property from the victim failed to support a finding of first degree
25
felony murder. The evidence at trial more reasonably supported the view that the
26
entry was merely incidental to the killing.
27
28
1713. Although reasonable inferences must be drawn in support of the
judgment, an appellate court may not “go beyond inference and into the realm of
622
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1
speculation in order to find support for a judgment. A finding of first degree
2
murder which is merely the product of conjecture and surmise may not be
3
affirmed. People v. Memro, 38 Cal. 3d 658, 695-96, 700 P.2d 446, 214 Cal. Rptr.
4
832 (1985). Considered as a whole, the evidence is neither strong nor substantial.
5
No rational trier of fact could have found that Petitioner was the perpetrator of a
6
burglary with the intent to commit theft.
7
1714. Consequently, Petitioner’s burglary conviction in count 3 cannot be
8
sustained. Moreover, the jury’s determination of guilt failed to support the
9
burglary-murder conviction in count 5. Because the jury considered legally
10
insufficient evidence in rendering its verdicts, Petitioner’s right to due process
11
and fundamental fairness under the Fifth, Sixth, Eighth, and Fourteenth
12
Amendments were violated. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116
13
L. Ed. 2d 385 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
14
Ed. 2d 560 (1979). Absent sufficient evidence, his convictions on counts 3 and 5
15
also violated the Eighth Amendment requirement of a reliable determination of
16
penalty. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231
17
(1985).
18
1715. The foregoing violations of Petitioner’s constitutional rights, taken
19
singly or in combination with the other errors alleged in the Petition, constitute
20
structural error and warrant the granting of this Petition without any
21
determination of whether the violations substantially affected or influenced the
22
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
23
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
24
doctrine applies to this claim, the foregoing constitutional violations, singly and
25
in combination with the other errors alleged in this Petition, so infected the
26
integrity of the proceedings that the error cannot be deemed harmless. The
27
foregoing violations of Petitioner’s rights had a substantial and injurious effect
28
or influence on Petitioner’s convictions and sentences, rendering them
623
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1
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
2
637-38.
3
CLAIM 28:
4
COUNT 5 – THE EVIDENCE WAS INSUFFICIENT TO
5
SUPPORT THE SPECIAL CIRCUMSTANCE FINDING OF
6
BURGLARY/MURDER
7
1716. Exhaustion of the claim: This claim was fairly presented to the
8
California Supreme Court in the direct appeal. It was presented in Section XV of
9
the Opening Brief.
10
1717. In support of this claim, Petitioner alleges the following facts,
11
among others to be presented after full discovery, investigation, adequate
12
funding, access to this Court’s subpoena power, and an evidentiary hearing.
13
1718. Those facts and allegations set forth in the petition, declarations,
14
claims of constitutional violations, and the accompanying exhibits are
15
incorporated by reference as if fully set forth herein to avoid unnecessary
16
duplication of relevant facts.
17
1719. The burglary-murder special circumstance is defined as the
18
commission of “murder . . . while the defendant was engaged in . . . the
19
commission of, attempted commission of, or the immediate flight after
20
committing or attempting to commit,” the felony of burglary. Cal. Pen. Code
21
§ 190.2(a)(l7)(vii). The jury found this alleged special circumstance to be true in
22
count 5. (See XXX CT 8733.)
23
1720. In reviewing the sufficiency of the evidence for a special
24
circumstance, the question to be addressed on appeal is whether, after viewing the
25
evidence in the light most favorable to the prosecution, any rational trier of fact
26
could have found the essential elements of the allegation beyond a reasonable
27
doubt. People v. Rowland, 4 Cal. 4th at 271.
28
624
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1721. For the same reasons as set forth in Argument 22, supra, the
2
evidence in this case was also insufficient to support the charged burglary-murder
3
special circumstance within the meaning of § 190.2(a)(l7)(vii). It follows that if
4
evidence is insufficient as to the underlying burglary and first degree felony
5
murder, the finding of the felony-murder special circumstance must automatically
6
be set aside. People v. Green, 27 Cal. 3d at 52.
7
1722. The foregoing violations of Petitioner’s rights under the Fifth, Sixth,
8
Eighth, and Fourteenth Amendments to the United States Constitution, taken
9
singly or in combination with the other errors alleged in the Petition, constitute
10
structural error and warrant the granting of this Petition without any
11
determination of whether the violations substantially affected or influenced the
12
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
13
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
14
doctrine applies to this claim, the foregoing constitutional violations, singly and
15
in combination with the other errors alleged in this Petition, so infected the
16
integrity of the proceedings that the error cannot be deemed harmless. The
17
foregoing violations of Petitioner’s rights had a substantial and injurious effect
18
or influence on Petitioner’s convictions and sentences, rendering them
19
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
20
637-38.
21
CLAIM 29:
22
COUNT 6 – THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
23
PETITIONER’S CONVICTION OF SECOND-DEGREE MURDER
24
IN THE YU INCIDENT
25
1723. Exhaustion of the claim: This claim was fairly presented to the
26
California Supreme Court in the direct appeal. It was presented in Section XVI
27
of the Opening Brief.
28
625
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1
1724. In support of this claim, Petitioner alleges the following facts,
2
among others to be presented after full discovery, investigation, adequate
3
funding, access to this Court’s subpoena power, and an evidentiary hearing.
4
1725. Those facts and allegations set forth in the petition, declarations,
5
claims of constitutional violations, and the accompanying exhibits are
6
incorporated by reference as if fully set forth herein to avoid unnecessary
7
duplication of relevant facts.
8
9
1726. At the initial jury instruction conference, the court held in abeyance
Petitioner’s request for instructions on manslaughter as to the Yu incident
10
pending further research of the case law. (200 RT 23320-21.) Subsequently,
11
Petitioner argued that there was sufficient evidence in the record for a
12
manslaughter instruction predicated on heat of passion on the basis of witness
13
Gallegos’s characterization of the encounter between the suspect and the victim
14
as a “lover’s quarrel,” and witness Duenas’s description of the incident as an
15
argument between two parties. (201 RT 23363-68.)
16
1727. The trial court ruled that evidence of a fight supported an instruction
17
on voluntary manslaughter. (201 RT 23368-69, 23373.) The jury was instructed
18
pursuant to CALJIC Nos. 8.37 (definition of manslaughter), 8.40 (voluntary
19
manslaughter), 8.42 (quarrel and heat of passion defined), 8.43 (cooling period),
20
8.44 (heat of passion non-specific) and 8.50 (murder vs. manslaughter). (212
21
RT 24450-54; XXIX CT 8552-58.)
22
1728. In closing argument, the prosecution urged the jury to find Petitioner
23
guilty of first degree murder in the Yu incident based on a theory of deliberate
24
and premeditated killing with malice aforethought. (206 RT 23749.) In rebuttal
25
argument, the prosecution stated that Petitioner’s denial of involvement in the Yu
26
shooting abrogated the jury’s need to consider any of the manslaughter
27
instructions. (211 RT 24347-48.) The jury returned a verdict of second-degree
28
murder. (XXX CT 8734.)
626
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1
1729. The jury was instructed on three homicide theories in regard to the
2
Yu incident: first-degree murder, second-degree murder, and voluntary
3
manslaughter. For the jury to have found Petitioner guilty of any degree of
4
murder, there had to be evidence at trial of malice aforethought, as the element of
5
malice distinguished murder from manslaughter. People v. Blakeley, 23 Cal. 4th
6
82, 87, 999 P.2d 675, 96 Cal. Rptr. 2d 451 (2000). That is, Petitioner must have
7
had an intent to kill or killed without considerable provocation and under
8
circumstances showing an abandoned and malignant heart. Penal Code § 188.
9
1730. The evidence of malice aforethought was insufficient to support
10
Petitioner’s conviction of second degree murder on count 6. The evidence at trial
11
was not sufficient to show either an intent to kill or reckless disregard for human
12
life, the bases for express and implied malice respectively. As for express malice,
13
there was no showing of an express or verbalized intent to kill. However, intent
14
to kill can sometimes be inferred from the method or manner of death. Malice
15
may be implied when “the killing results from an intentional act, the natural
16
consequences of which are dangerous to life, which act was deliberately
17
performed by a person who knows that his [or her] conduct endangers the life of
18
another and who acts with conscious disregard for life.” People v. Blakeley, 23
19
Cal.4th at 87. Here, the evidence was insufficient to prove beyond a reasonable
20
doubt that Petitioner acted with the intent to fire the weapon and kill the victim.
21
1731. Nor did the manner of Yu’s death manifest an intent to kill. While
22
the firing of a weapon at close range may be sufficient to demonstrate express
23
malice (see, e.g., People v. Jackson, 49 Cal. 3d 1170, 1201, 783 P.2d 211, 264
24
Cal. Rptr. 852 (1989) (“[T]he very act of firing a shotgun toward the officer . . .
25
would permit an inference of intent to kill from the manner of killing”); People
26
v. Lashley, 1 Cal. App. 4th 938, 946, 2 Cal. Rptr. 2d 629 (1991) (substantial
27
evidence of intent to kill malice present where defendant aimed and fired a .22-
28
caliber rifle in victim’s direction at a range and in a manner that would have
627
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1
inflicted a mortal wound had the bullet been on target)), Petitioner’s case differs
2
significantly from those cases where such a finding was made.
3
1732. In Jackson, the defendant argued that the evidence showed he had
4
aimed a shotgun at a patrol car’s light bar, not at the officer who was hit.
5
Witnesses, however, had seen the defendant aim at the victim, and a shotgun blast
6
at a short distance was certain to hit the officer even if not aimed precisely at him.
7
There was also evidence that the defendant had removed a police shotgun from
8
the patrol car and attempted to cock the weapon before pointing it at the officer.
9
People v. Jackson, 49 Cal. 3d at 1201. Similarly, in Lashley, there was evidence
10
of the defendant’s threat to do bodily harm. Testimony at trial established that he
11
took aim before firing. This fact, coupled with the proximity in time of the
12
shooting and the nature of the wound, was held sufficient evidence of intent to
13
kill. People v. Lashley, 1 Cal. App. 4th at 945.
14
1733. In contrast, the evidence in Petitioner’s case did not establish any
15
prior threat or intent to harm the victim. Witnesses did not see a weapon aimed at
16
the victim in a manner suggesting an intent to kill. The expert testimony of two
17
pathologists established that the shots were not fired at a vital organ. The
18
wounds, the direction of each bullet, and the number of shots fired demonstrated
19
at most a chaotic encounter, not a determined effort to inflict lethal harm.
20
1734. Even in cases where there may be sufficient evidence of express or
21
implied malice, where the evidence also shows the presence of a condition which
22
negates or mitigates the finding of malice, the crime committed is voluntary
23
manslaughter, not murder. People v. Rios, 23 Cal. 4th 450, 463 n.10, 2 P.3d
24
1066, 97 Cal. Rptr. 2d 512 (2000). Thus, if evidence shows that a killing was
25
committed in the heat of passion, upon a sudden quarrel, or pursuant to an
26
unreasonable belief in the need to defend oneself, notwithstanding any other
27
evidence suggesting the presence of malice aforethought, an accused can be
28
convicted of no greater crime than voluntary manslaughter. These conditions
628
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1
legally negate the finding of malice. People v. Lasko, 23 Cal. 4th 101, 110-11,
2
999 P.2d 666, 96 Cal. Rptr. 2d 441 (2000).
3
1735. The logical corollary to the Blakeley-Lasko rule is that if there is
4
evidence of a negating factor which creates a burden of proof on the prosecution
5
as to the absence of that negating factor, it follows that the defense need only
6
raise a reasonable doubt that the factor is present to avoid a conviction of murder
7
as a matter of law. Where the evidence warrants the imposition of the burden on
8
the prosecution, that burden must be discharged by proof beyond a reasonable
9
doubt. Thus, an accused need only raise a reasonable doubt in support of that
10
defense. See, e.g., People v. Flannel, 25 Cal. 3d at 680-83.
11
1736. Similarly, in the context of the presumption of malice under Penal
12
Code § 189.5, the state court has held in a line of cases deriving from People v.
13
Cornett, 33 Cal. 2d 33, 42, 198 P.2d 877 (1948), that “the defendant is not
14
required to prove mitigating circumstances by a preponderance of the evidence,
15
but need only introduce evidence of such circumstances to raise a reasonable
16
doubt.” This long established rule is firmly ensconced in criminal jurisprudence:
17
The prosecution bears the burden of proving all elements of the
18
offense charged and must persuade the factfinder ‘beyond a
19
reasonable doubt’ of the facts necessary to establish each of these
20
elements . . . .
21
Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182
22
(1993) (citations omitted).
23
1737. In Petitioner’s case, there was ample evidence to support a
24
reasonable doubt as to the charge of second degree murder. First, percipient
25
witnesses observed what appeared to be a “lovers’ quarrel.” The prosecution
26
conceded more than once in closing argument that witnesses Gallegos and
27
Duenas so characterized the confrontation as a two-way altercation. (206
28
RT 23730, 23732, 23734.) Second, the eyewitness observations were objectively
629
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1
supported by evidence of a struggle, including, most significantly, attempts by
2
the assailant to get away, and his overheard statement “Get away from me.” (146
3
RT 16846, 16872; 147 RT 16988-89.) While physical evidence showed that the
4
assailant attempted to pull the victim from the car, the evidence also showed that
5
the victim may have been dragged in an effort by the assailant to leave the scene.
6
Finally, another eyewitness placed the victim and the assailant outside the
7
victim’s car standing by the curb, indicating that they were likely to have been
8
engaged in a mutual confrontation or struggle. (Id. at 16981-84.)
9
1738. The evidence at trial thus did not strongly support a finding of
10
express or implied malice in light of the countervailing evidence that the shooting
11
involved a struggle between the victim and assailant. The fatal encounter by all
12
accounts and evidence occurred during the heat of passion or a sudden quarrel
13
between the victim and assailant. With weak evidence of intent to kill and the
14
presence of malice-negating factors, the evidence on the whole thus failed to
15
support Petitioner’s conviction of second degree murder on count 6. People v.
16
Blakeley, 23 Cal. 4th at 87.
17
1739. Because the jury considered legally insufficient evidence in
18
rendering its verdicts, Petitioner’s right to due process and fundamental fairness
19
under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated.
20
Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);
21
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
22
Absent sufficient evidence, his convictions on counts 3 and 5 also violated the
23
Eighth Amendment requirement of a reliable determination of penalty. Caldwell
24
v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).
25
1740. The foregoing violations of Petitioner’s constitutional rights, taken
26
singly or in combination with the other errors alleged in the Petition, constitute
27
structural error and warrant the granting of this Petition without any
28
determination of whether the violations substantially affected or influenced the
630
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1
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
2
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
3
doctrine applies to this claim, the foregoing constitutional violations, singly and
4
in combination with the other errors alleged in this Petition, so infected the
5
integrity of the proceedings that the error cannot be deemed harmless. The
6
foregoing violations of Petitioner’s rights had a substantial and injurious effect
7
or influence on Petitioner’s convictions and sentences, rendering them
8
fundamentally unfair and resulting in a miscarriage of justice. Id. at 622, 637-38.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
631
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1
CLAIM 30:
2
THE PROSECUTION KNOWINGLY AND IN BAD FAITH
3
PRESENTED UNRELIABLE AND FALSE EVIDENCE
4
1741. Exhaustion of the claim: This claim was fairly presented to the
5
California Supreme Court in Section XIII of the June 2004 petition for writ of
6
habeas corpus.
7
1742. In support of this claim, Petitioner alleges the following facts,
8
among others to be presented after full discovery, investigation, adequate
9
funding, access to this Court’s subpoena power, and an evidentiary hearing.
10
1743. Those facts and allegations set forth elsewhere in this petition, and
11
the claims of constitutional violations and the accompanying exhibits are
12
incorporated by reference as if fully set forth herein to avoid unnecessary
13
duplication.
14
1744. Petitioner’s convictions and sentences were obtained by reason of
15
prosecution misconduct in knowingly presenting inaccurate, misleading and
16
unreliable evidence in violation of his rights to a fair trial, impartial jury, jury
17
trial, effective assistance of counsel, to confront and cross-examine witnesses, to
18
present a defense, a reliable determination of guilt and sentence, and to due
19
process and fundamental fairness, and in violation of Petitioner’s right to be free
20
from cruel and unusual punishment, under the Sixth, Eighth, and Fourteenth
21
Amendments.
22
1745. The constitutional violations had a substantial and injurious effect
23
upon the verdict and were it not for the errors, it is reasonably probable that the
24
results at guilt and penalty would have favored Petitioner.
25
1746. The prosecution’s case was based primarily on physical evidence,
26
including shoe print impression evidence and ballistics, and the testimony of a
27
“fence.” The state relied heavily on an inexperienced law enforcement witness
28
632
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1
and presented false, misleading and unreliable testimony in an effort to connect
2
Petitioner to the crimes.
3
1747. The shoe print evidence was misleading and based on inaccurate
4
findings by an unqualified witness with no prior experience in the field of shoe
5
print impressions. According to the prosecution expert Gerald Burke, the overall
6
findings in eight incidents pointed to a size 11-½ to 12 Avia aerobics shoe. The
7
prosecution presented evidence that only one such pair of shoes was sold in
8
Southern California from January to July 1985. Burke did not properly examine
9
the impression evidence and was not qualified to render an opinion. Thus, the
10
prosecution knowingly presented materially unreliable and false evidence.
11
1748. Forensic specialist Lisa DiMeo disputes Mr. Burke’s findings.
12
Based on my review of the trial testimony and exhibits
13
described above and my findings, it is my opinion that the trial
14
testimony of Gerald Burke was misleading in several critical
15
respects: his findings and conclusions regarding size and models
16
were inaccurate and based on improper information; he lacked the
17
necessary experience and training to properly compare impression
18
evidence; distortion in casting sizes led to inaccurate findings; the
19
lack of individual shoeprint characteristics, including wear patterns
20
rendered his findings scientifically unreliable. In this case, there
21
were many possible models and sizes of shoes that could have been
22
identified from the shoeprint impressions. Mr. Burke’s testimony
23
that the impression evidence originated from an Avia 445B model,
24
size 11 to 12 (See, e.g., 174 RT 20382-384, 20386-92, 20396,
25
20399, 20405-14) was incorrect.
26
In conjunction with Mr. Brewer’s testimony that only one
27
Avia model 445B size 11-½ was sold in Southern California in the
28
first half of 1985 (see 174 RT 20280-81), the jury was led to believe
633
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1
that only one pair of shoes could be identified from the shoeprint
2
impression evidence. There were actually many models of Avia
3
athletic shoes, and numerous sizes of shoes totaling tens of
4
thousands of shoes, which were distributed throughout the United
5
States through sales and promotions that could have been the source
6
of the impression evidence. (See generally 174 RT 20286-89.)
7
(Ex. 33, L. DiMeo dec., ¶¶ 35-36.) In the absence of Mr. Burke’s conclusions as
8
to Zazzara, Doi, Bell and Lang, Cannon, Bennett, Nelson, Khovananth, and the
9
uncharged incident, the evidence failed to link shoe print impression evidence to
10
11
Petitioner. The jury was misled by the unreliable evidence.
1749. The prosecution relied on ballistics evidence to try to link the crimes
12
in Okazaki and Yu to Kneiding, Zazzara to Khovananth, and Petersen to
13
Abowath. Prosecution witness Edward Robinson testified that ballistics evidence
14
conclusively linked the incidents above (172 RT 20034-52.) He also testified that
15
a recovered Jennings .22-caliber semi-automatic pistol was positively compared
16
to the Doi case (172 RT 20061.) Robinson was the last of three law enforcement
17
firearms examiners to evaluate the general rifling characteristics of the ballistics
18
evidence. Yet the two other examiners, who did not reach entirely the same
19
conclusions, were not called to testify at trial. For example, in the report
20
prepared by Robert Christiansen on March 28, 1985, he concluded that due to
21
distortions of the .22-caliber bullet in the Okazaki case, no positive comparison
22
can be made to the Yu case. In the Kneiding case, firearms examiner Hawkins
23
found there was 60% mutilation of an expended bullet but identified the bullet as
24
having been fired from the same firearm as the bullets fired in the Yu case. This
25
finding raises questions about the reliability of the testing. (See Ex. 35, P.
26
Dougherty dec., and attached GRC reports.)
27
28
1750. Firearms expert Paul Dougherty explains that the law enforcement
work up was inaccurate and inadequate. In reviewing the work up performed in
634
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1
this case, he found that “there are internal conflicts in the written reports with
2
regard to the testing conducted, such as condition of the bullets.” (Ex. 35, P.
3
Dougherty dec., ¶ 4.) In his opinion, all of the ballistics evidence should be
4
retested. (Id., ¶ 5.)
5
6
7
1751. The prosecution improperly relied on evidence that was inaccurate
and unreliable.
1752. The prosecution also relied on the uncorroborated testimony of
8
Felipe Solano, who was granted immunity from prosecution, to establish that
9
property belonging to some of the victims allegedly was sold to him by
10
Petitioner. Property recovered from Solano was identified by witnesses in the
11
Doi, Bell and Lang, Cannon, Kneiding, and Abowath incidents. The prosecution
12
improperly based its case on Solano’s unreliable and self-serving testimony. The
13
testimony of Mr. Solano was suspect because there was evidence that other
14
individuals also sold him stolen property and may have been involved in the
15
crimes with which Petitioner was charged. See infra.
16
1753. In closing argument, the prosecution emphasized to the jury that
17
physical evidence, specifically shoe print impression and ballistics, linked
18
Petitioner to the commission of a series of crimes. (See, e.g., 206 RT 23724; 209
19
RT 24044, 24060; 211 RT 24329-41, 24377.)
20
1754. The prosecution argued improperly that the crimes constituted a
21
pattern of offenses. There was significant evidence to show that the offenses
22
were not all linked to one another. Private investigator Steve Strong describes
23
the prosecution’s evidence as demonstrating a lack of pattern with respect to
24
many of the incidents.
25
In the Vincow incident, Petitioner’s fingerprints were found on a
26
window screen but not inside the residence. Time of death was
27
estimated to be in the afternoon, unlike the nighttime intrusions in
28
the other incidents. Based on the conditions of the crime scenes in
635
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1
many of the cases (Vincow, Zazzara, Doi, Bell and Lang, Cannon,
2
Bennett, Nelson, Kneiding, and the uncharged incident), it is not
3
possible to determine how many persons were involved in each
4
incident. It is not so obvious that Petitioner was the only suspect
5
due, in part, to the lack of evidence at the scenes. For example, it is
6
just as likely that one person could have opened a window to allow
7
another person to enter the residence.
8
9
The reason it was hard to apprehend a suspect was because
there was no discernable pattern among the crimes. The locations of
10
the scenes had no particular pattern, except for four incidents in
11
Monterey Park. The killings had no distinctive pattern; different
12
weapons were used in many incidents. The state’s theory that
13
Petitioner must have put gloves on upon entry does not make sense
14
because the crimes lacked organization according to the victims’
15
testimony.
16
Ballistics evidence was involved in only eight of the incidents.
17
The firearms comparison evidence did not determine who fired the
18
weapons. Shoeprint impressions were discovered in only eight
19
incidents.
20
21
(Ex. 40, S. Strong dec., ¶¶ 18-20.) Mr. Strong concludes:
There was substantial evidence to show that the crimes were
22
not related, including inexactness of the shoeprint evidence; distance
23
between crime scenes; different weapons that were not recovered,
24
nondistinctive wounds, and lack of evidence found at the scenes
25
indicating there could have been additional suspects.
26
(Ex. 40, S. Strong dec., ¶ 22.)
27
28
636
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1
1755. Throughout the guilt trial, the prosecution knowingly and repeatedly
2
emphasized unreliable and inaccurate evidence, urging its significance upon the
3
jury in a manner calculated to win a conviction and sentence of death.
4
1756. The prosecution’s reliance on the evidence led to the jury’s incorrect
5
and prejudicial assumptions about the evidence presented against Petitioner and,
6
in turn, to his conviction and sentence. Reliance upon incorrect assumptions
7
from the evidence when passing upon guilt and sentence violates due process and
8
constitutes plain error. United States v. Tobias, 662 F.2d 381, 388 (5th Cir.
9
1981); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592
10
(1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1960 (1948).
11
Petitioner’s conviction and sentence rest upon materially false evidence and
12
misinformation. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
13
(1959). The prosecution’s abuse of its power and discretion denied Petitioner’s
14
rights to fair trial and a judicial process that comports with minimal constitutional
15
standards under federal decisional and statutory law.
16
1757. Because the death penalty is qualitatively different from any other
17
criminal punishment, there is a corresponding difference in the need for reliability
18
in the determination that death is the appropriate punishment in a specific case.
19
In capital cases the finality of the sentence imposed warrants protections that may
20
not be required in other cases. The Supreme Court has repeatedly condemned
21
sentencing procedures that inject unreliability into jury deliberations in capital
22
cases. Petitioner’s death sentence is based on evidence introduced at the guilt
23
trial and relied on by the jury at the penalty trial, that does not meet the
24
constitutional requirement of heightened reliability for capital cases and which
25
was materially false and inaccurate.
26
1758. The foregoing violations of Petitioner’s constitutional rights, taken
27
singly or in combination with the other errors alleged in the Petition, constitute
28
structural error and warrant the granting of this Petition without any
637
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1
determination of whether the violations substantially affected or influenced the
2
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
3
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
4
doctrine applies to this claim, the foregoing constitutional violations, singly and
5
in combination with the other errors alleged in this Petition, so infected the
6
integrity of the proceedings that the error cannot be deemed harmless. The
7
foregoing violations of Petitioner’s rights had a substantial and injurious effect
8
or influence on Petitioner’s convictions and sentences, rendering them
9
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
10
637-38.
11
CLAIM 31:
12
THE PROSECUTION MISLED THE JURY ABOUT
13
PETITIONER’S INVOLVEMENT IN THE OFFENSES
14
1759. Exhaustion of the claim: This claim was fairly presented to the
15
California Supreme Court in Section XIV of the June 2004 petition for writ of
16
habeas corpus.
17
1760. In support of this claim, Petitioner alleges the following facts,
18
among others to be presented after full discovery, investigation, adequate
19
funding, access to this Court’s subpoena power, and an evidentiary hearing.
20
1761. Those facts and allegations set forth in the petition, declarations,
21
claims of constitutional violations, and the accompanying exhibits are
22
incorporated by reference as if fully set forth herein to avoid unnecessary
23
duplication of relevant facts.
24
1762. Petitioner’s convictions and sentences were obtained by reason of
25
prosecution misconduct in knowingly presenting inaccurate, misleading and
26
unreliable evidence in violation of his rights to a fair trial, impartial jury, jury
27
trial, effective assistance of counsel, to confront and cross-examine witnesses, to
28
present a defense, a reliable determination of guilt and sentence, and to due
638
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1
process and fundamental fairness, and in violation of Petitioner’s right to be free
2
from cruel and unusual punishment, under Sixth, Eighth and Fourteenth
3
Amendments.
4
1763. The prosecution asserted that Petitioner alone committed the crimes
5
with which he was charged. In closing argument, the prosecutor argued to the
6
jury that no other suspects were involved in the crimes charged against Petitioner.
7
(See, e.g., 203 RT 23613.) However, the prosecutor was aware of the police
8
interview with Manuel “Cuba” Hechevarria in which the witness professed his
9
involvement with Petitioner in committing thefts and burglaries, along with
10
another accomplice. Hechevarria reportedly committed burglaries with Petitioner
11
on many occasions in 1984, including four to five residential burglaries. He
12
claimed to have terminated his involvement with Petitioner when he became
13
employed as a security guard in November 1984. (Ex. 22, L.A. Sheriff Dept.
14
Supp. Report dated 9/11/85.) The state did not call Mr. Hechevarria to testify at
15
Petitioner’s trial.
16
1764. In the September 11, 1985 interview, Hechevarria admitted having
17
been involved in committing burglaries with Petitioner and another person,
18
“Julio,” whom he described as a male Mexican, approximately 21 years old, 6
19
feet, 160 pounds and, blond hair parted in the middle. (Id.) The description of
20
Julio fit the description of the suspect given by eyewitnesses in the
21
Okazaki/Hernandez and Abowath incidents.
22
1765. Hechevarria mentioned in the police interview that Julio introduced
23
him to Eva Rosa (Rosa Solis) – Solano’s friend. (Id.) Solis and Hechevarria also
24
sold stolen property to Solano. Hechevarria’s statements provided strong
25
evidence that he participated in residential burglaries near the time of Vincow’s
26
death; stolen property allegedly received by Solano from Petitioner came from
27
other sources, including Hechevarria and Julio; and Julio was involved in
28
committing burglaries at the time the crimes alleged against Petitioner were
639
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1
committed. Moreover, the witnesses’ statement and description of Julio comport
2
with Steve Strong’s conclusions that other parties could have been involved in
3
the crimes charged against Petitioner. (Ex. 40, S. Strong dec., ¶ 22.)
4
1766. Despite evidence to the contrary, the prosecution did not present any
5
evidence of the involvement of Manuel Hechevarria or Julio in the crimes with
6
which Petitioner was charged. It did not present evidence of any involvement by
7
other parties in the crimes charged against Petitioner, and thus misled the jury to
8
Petitioner’s culpability.
9
1767. Based on the Sheriff Department’s investigation, the prosecution
10
misrepresented Petitioner’s involvement in the offenses and misled the jury. This
11
misconduct led to the jury’s incorrect and prejudicial assumptions about the
12
evidence presented against Petitioner and, in turn, to his conviction and sentence.
13
Reliance upon incorrect assumptions from the evidence when passing upon guilt
14
and sentence violates due process and constitutes plain error. Napue v. Illinois,
15
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); United States v. Tobias,
16
662 F.2d 381, 388 (5th Cir. 1981); United States v. Tucker, 404 U.S. 443, 92 S.
17
Ct. 589, 30 L. Ed. 2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct.
18
1252, 92 L. Ed. 1960 (1948). The prosecution’s abuse of its power and discretion
19
denied Petitioner’s rights to a fair trial and a judicial process that comports with
20
minimal constitutional standards under federal decisional and statutory law.
21
1768. The foregoing violations of Petitioner’s constitutional rights, taken
22
singly or in combination with the other errors alleged in the Petition, constitute
23
structural error and warrant the granting of this Petition without any
24
determination of whether the violations substantially affected or influenced the
25
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
26
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
27
doctrine applies to this claim, the foregoing constitutional violations, singly and
28
in combination with the other errors alleged in this Petition, so infected the
640
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1
integrity of the proceedings that the error cannot be deemed harmless. The
2
foregoing violations of Petitioner’s rights had a substantial and injurious effect
3
or influence on Petitioner’s convictions and sentences, rendering them
4
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
5
637-38.
6
CLAIM 32:
7
PETITIONER’S CONSTITUTIONAL RIGHTS WERE
8
VIOLATED BY THE PROSECUTOR’S PREJUDICIAL
9
MISCONDUCT
10
1769. Exhaustion of the claim: This claim was fairly presented to the
11
California Supreme Court in Section XVI of the June 2004 petition for writ of
12
habeas corpus.
13
1770. In support of this claim, Petitioner alleges the following facts,
14
among others to be presented after full discovery, investigation, adequate
15
funding, access to this Court’s subpoena power, and an evidentiary hearing.
16
1771. Those facts and allegations set forth in the petition, declarations,
17
claims of constitutional violations, and the accompanying exhibits are
18
incorporated by reference as if fully set forth herein to avoid unnecessary
19
duplication of relevant facts.
20
1772. The prosecution violated Petitioner’s constitutional rights under the
21
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
22
Constitution during closing argument by making improper comment on the
23
evidence, improper argument regarding matters not in evidence, stating his
24
personal beliefs, misleading the jury as to reasonable doubt, improper shifting of
25
the burden of proof, misrepresentation of the prosecution’s power and authority,
26
and misstating legal concepts.
27
1773. The violations of these rights, individually and cumulatively,
28
prejudicially affected and distorted the investigation, discovery, presentation, and
641
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1
consideration of evidence, as well as each and every factual and legal
2
determination made by trial counsel, the state courts and the jurors at all stages of
3
the proceedings from the time of Petitioner’s arrest through and including the
4
rendering of the judgment of death.
5
1774. The prosecution misstated the legal standard of proof beyond a
6
reasonable doubt and improperly argued that failure of the evidence did not
7
amount to reasonable doubt.
8
Reasonable doubt does not have anything to do with the prospective.
9
It does not have anything to do with something to come in the future,
10
. . . . [¶] And it has nothing to do with your belief that it may come
11
true or may not. [¶] Reasonable doubt is only retrospective. . . . [¶]
12
So reasonable doubt can only be applied to something in the past.
13
(211 RT 24317.)
14
And the argument was, well, there with (sic) no prints found inside,
15
just on this screen. [¶] Well, the screen was inside, . . . [the
16
defendant] was a burglar so he might have burglarized that house
17
sometime in the past and his prints were still on the screen. [¶] He
18
might have. Might have is not reasonable doubt.
19
20
21
(Id. at 24341.)
1775. The prosecutor improperly shifted the burden of proof, and argued
the State had no interest in convicting the wrong person.
The real problem with Mr. Clark’s argument is the same as
22
23
with Mr. Hernandez’ opening statement . . . .
24
...
Well, let me submit to you that they had plenty of time to
25
26
[decide their approach to the case] before Mr. Hernandez made his
27
opening statement.
28
...
642
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And if they weren’t going to present evidence, nobody should
1
2
have talked about it, you see?
3
...
4
That there is evidence, but the team has just decided late in the game
5
that they didn’t have to present it, see?
Well, that is dishonest. That is not true. If there was
6
7
evidence, it would be here. It should be here.
8
...
If a man says that to you, you are going to have to disbelieve
9
10
11
12
13
him.
They have had every opportunity to fulfill those grandiose
statements made by Mr. Hernandez at the opening of their case.
(Id. at 24319-20.)
14
[A]nd I always wonder at that point why would a prosecutor want
15
the wrong guy? Why would he want to prosecute the wrong guy?
16
17
(Id. at 24324.)
Mr. Clark doesn’t have to worry about how many Avias were
18
sold and who was wearing them because his position is the
19
defendant never owned them.
20
(Id. at 24374.)
21
[If the defense] could have done better than Kong, then of course
22
they would have brought in their own experts.
23
24
25
(Id. at 24377-78.)
1776. The prosecution improperly argued that its authority guaranteed that
prosecution witness Solano was telling the truth.
26
[S]o there was no reason for [Solano] . . . to testify falsely, because
27
the immunity applied no matter what he said. I mean, once the court
28
643
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1
2
3
signs the order, that is it.
(Id. at 24333.)
1777. Additionally, in closing argument at the guilt phase, the prosecutor
4
improperly shifted the burden of proof by arguing that defense counsel raised
5
matters in his opening statement but failed to prove them at trial. (See, e.g., 203
6
RT 23576 (“[T]here were a lot of errors in [Daniel Hernandez’s] opening
7
statement.”) and (“[I]t turns out to be something Mr. Hernandez told you he was
8
going to present and failed to deliver . . . .”); see also id. at 23579; 23585-86;
9
23587; 23588; 23592; 23593; 23594; 23597; 23601-02; 23604; 23615-17;
10
11
23627-28; 23648 (all similar)
1778. The prosecutor improperly and in bad faith argued that the State
12
would be forced to release Petitioner from custody if its witness Felipe Solano
13
were arrested and charged with receiving stolen property. (Id. 24085.)
14
15
16
17
18
19
20
1779. The prosecutor, an employee of county government himself, argued
that government funding influenced an expert’s findings. (209 RT 24122.)
1780. The prosecution improperly and prejudicially asserted references to
the devil in an effort to link Petitioner to the crimes. (211 RT 24336.)
1781. The prosecutor misled the jury with respect to the prosecution’s
eyewitness identification evidence. (Id. at 24373-74.)
1782. After Petitioner waived the penalty trial, in his closing argument, the
21
prosecutor referenced religious views and the morality of the death penalty
22
repeatedly.
23
. . . it seems to me to be as difficult as that admonition in the Bible
24
which says ‘Thou shalt not kill.’
25
And I submit that that is a difficult philosophical issue, . . .
26
you have to arrive at the conclusion that the death penalty is not the
27
moral equivalent of murder.
28
644
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The death penalty is not the moral equivalent of murder by the
1
2
state; it is a banding together of people in the society to attempt to
3
survive.
4
(217 RT 24804-05.)
A friend of mine is a biblical scholar, and . . . suggests to me
5
6
that perhaps the King James version that employs the language
7
‘Thou shalt not kill’ was a departure from the original language.
8
. . . Suppose then that the language was instead of ‘Thou shalt not
9
kill’ was simply ‘Thou shalt not commit murder’ and suppose that
10
the language specified that that base antisocial activity of taking a
11
life under those circumstances that amount to murder, that that tends
12
to make more sense in the scheme of a death penalty in a society. [¶]
13
I submit to you that – that that may well be a morally acceptable
14
translation . . . of the Old Testament that call[s] for the death penalty
15
in certain cases.
16
17
18
19
(Id. at 24806.)
1783. The prosecutor improperly urged the jury to consider everything
considered at the guilt trial. (Id. at 24813.)
1784. The prosecutor improperly argued there was no evidence of extreme
20
mental or emotional disturbance under factor (d) or (h). (Id. at 24813-16.) The
21
prosecutor urged the jury not to consider Petitioner’s age as evidence in
22
mitigation. (Id. at 24816 (“No evidence of anything like that here.”).)
23
1785. The prosecution improperly argued that, under aggravating factor (j),
24
there was “[n]o evidence of anyone else being involved in this case, the defendant
25
apparently being a lone actor throughout this case.” (Id. at 24817.) The
26
prosecutor argued under factor (k) there was no mitigating evidence. (Id. at
27
24819.)
28
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1
1786. The prosecutor contended the defense waiver of the penalty trial
2
signified that there was no mitigation. The prosecution argued that the defense
3
presented no evidence “because there is none. There is no mitigating this person.
4
¶ . . . It is difficult for us as human beings to face this type of evil . . . . [¶] This
5
man is the personification of evil . . . .” (Id. at 24832-33.)
6
1787. The prosecutor’s argument at the guilt and penalty trials was
7
improper and constituted misconduct by urging the jury to misapply the law to
8
the evidence, and shifting the burden of proof. This misconduct led to the jury’s
9
incorrect and prejudicial assumptions about the evidence presented against
10
Petitioner and, in turn, to his conviction and sentence. Reliance upon incorrect
11
assumptions from the evidence when passing upon guilt and sentence violates
12
due process and constitutes plain error. Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
13
1173, 3 L. Ed. 2d 1217 (1959); United States v. Tobias, 662 F.2d 381, 388 (5th
14
Cir. 1981); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 1690
15
(1948); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948);
16
Sechrest v. Ignacio, No. 04-99004, 2008 WL 510988, at *16 (9th Cir. 2008) .
17
Petitioner’s conviction and sentence rest upon materially false evidence and
18
misinformation. The prosecution’s abuse of its power and discretion denied
19
Petitioner’s rights to a fair trial and a judicial process that comports with minimal
20
constitutional standards under federal decisional and statutory law.
21
1788. The foregoing violations of Petitioner’s constitutional rights, taken
22
singly or in combination with the other errors alleged in the Petition, constitute
23
structural error and warrant the granting of this Petition without any
24
determination of whether the violations substantially affected or influenced the
25
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
26
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
27
doctrine applies to this claim, the foregoing constitutional violations, singly and
28
in combination with the other errors alleged in this Petition, so infected the
646
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1
integrity of the proceedings that the error cannot be deemed harmless. The
2
foregoing violations of Petitioner’s rights had a substantial and injurious effect
3
or influence on Petitioner’s convictions and sentences, rendering them
4
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
5
637-38.
6
CLAIM 33:
7
THE GUILT PHASE CUMULATIVE ERRORS VIOLATED
8
PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH,
9
AND FOURTEENTH AMENDMENTS
10
1789. Exhaustion of the claim: This claim was fairly presented to the
11
California Supreme Court in the direct appeal. It was presented in Section XVII
12
of the Opening Brief.
13
1790. In support of this claim, Petitioner alleges the following facts,
14
among others to be presented after full discovery, investigation, adequate
15
funding, access to this Court’s subpoena power, and an evidentiary hearing.
16
1791. Those facts and allegations set forth in the petition, declarations,
17
claims of constitutional violations, and the accompanying exhibits are
18
incorporated by reference as if fully set forth herein to avoid unnecessary
19
duplication of relevant facts.
20
1792. At the outset of the trial proceedings, Petitioner was substantially
21
prejudiced due to denial of qualified counsel, denial of conflict-free counsel, and
22
denial of a proper determination of his mental competency. See related claims,
23
supra.
24
1793. At trial, the trial court erred in denying Petitioner’s change of venue
25
motion and challenge to the jury composition. The court also erred in denying
26
Petitioner’s severance motion. See related claims, supra. Other trial court
27
rulings violated Petitioner’s constitutional right to a fair trial.
28
647
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1
1794. The Court should address not only the individual errors that may
2
have occurred during the guilt phase but also their cumulative impact. People v.
3
Hill, 17 Cal. 4th 800, 844-48, 952 P.2d 673, 72 Cal. Rptr. 2d 656 (1998),
4
considered the combined effect of prosecutorial misconduct, improper shackling
5
of the defendant, error regarding testimony by the bailiff, and Carlos127 error.
6
While acknowledging that an accused is not entitled to a perfect trial, only a fair
7
one, the court nonetheless observed: “Lengthy criminal trials are rarely perfect,
8
and this court will not reverse a judgment absent a clear showing of a miscarriage
9
of justice. Nevertheless, a series of trial errors, though independently harmless,
10
may in some circumstances rise by accretion to the level of reversible and
11
prejudicial error.” People v. Hill, 17 Cal. 4th at 844-45. This is particularly true
12
if some of the errors permeate the entire process of the adjudication or are so
13
numerous as to amount to a heightened level of prejudice. Id. at 845.
14
1795. Moreover, the state court has found that the weight of numerous,
15
individually harmless errors can also combine to create an even greater effect on
16
the jury, which is exposed to them over the course of a trial, than accrues to each
17
one considered on its own or altogether. Multiple error may create a negative
18
synergistic effect, rendering a degree of overall unfairness to the defendant more
19
than that flowing from the sum of individual errors. Id. at 847.
20
1796. In the present case, the errors at the outset of the proceedings and at
21
trial, and demonstrated elsewhere in this petition, combined together so that the
22
prejudicial whole was greater than the sum of its parts. The combined weight and
23
effect of the errors on the jury prejudiced Petitioner. Significantly, all of the
24
errors were of federal constitutional magnitude.
25
26
27
28
127
Carlos v. Superior Court, 35 Cal. 3d 131, 672 P.2d 862, 197 Cal. Rptr.
79 (1983).
648
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1
1797. Under federal constitutional standards, the cumulative effect of
2
multiple errors in violation of Petitioner’s Fifth, Sixth, Eighth, and Fourteenth
3
Amendment rights must be considered to determine the overall prejudice to the
4
defendant. In Mak v. Blodgett, 970 F.2d at 622, the Ninth Circuit observed: “We
5
do not need to decide whether these deficiencies alone meet the prejudice
6
standard because other significant errors occurred that, considered cumulatively,
7
[warrant relief].”
8
1798. The Court in Mak cited improper preclusion of third-party evidence
9
and erroneous jury instructions as combining with the ineffective assistance of
10
counsel to produce overall prejudice justifying reversal. Id. at 622-25; accord
11
Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995).
12
13
1799. As a result of judicial, prosecutorial, and trial counsel error in this
case, Petitioner’s federal constitutional rights were violated:
14
1.
Petitioner was denied his right to qualified counsel;
15
2.
Petitioner was denied his right to conflict-free counsel;
16
3.
Petitioner was denied his right to a proper determination of his
mental competency;
17
18
4.
Petitioner was improperly restrained in trial;
19
5.
The trial court erred by permitting the jury to view inflammatory and
irrelevant autopsy and crime scene photographs;
20
21
6.
on an impermissible consciousness of guilt inference;
22
23
7.
8.
28
The evidence was insufficient to support the burglary-murder special
circumstance in the Okazaki incident;
26
27
The evidence was insufficient to support burglary and burglarymurder convictions in the Okazaki incident;
24
25
The trial court erred by permitting the jury to base Petitioner’s guilt
9.
The evidence was insufficient to support findings that Petitioner
committed second degree murder in the Yu incident;
649
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1
10.
deliberations; and,
2
3
4
5
The trial court erred by improperly excusing a juror during
11.
The trial court erred by failing to conduct an inquiry of juror
misconduct during deliberations.
1800. The errors specified above violated the federal Constitution. The
6
errors cumulatively and in the aggregate deprived Petitioner of his right to a fair
7
trial (Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991));
8
violated due process guarantees (Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct.
9
2227, 65 L. Ed. 2d 175 (1980)); rendered the proceedings unreliable in violation
10
of the prohibition against cruel and unusual punishment (Woodson v. North
11
Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)); and
12
impermissibly lightened the prosecution’s burden of proof (Yates v. Evatt, 500
13
U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991)). In short, the errors
14
violated Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth
15
Amendments. In light of the seriousness and constitutional ramifications of the
16
errors involved, under either Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17
17 L. Ed. 2d 705 (1967), or People v. Watson, 46 Cal. 2d 818, 836 (1956),
18
Petitioner was prejudiced. The combination and cumulative impact of the errors
19
adversely influenced the jury; but for the errors, a more favorable result would
20
have occurred in this case. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116
21
L. Ed. 2d 385 (1991).
22
1801. The foregoing violations of Petitioner’s constitutional rights, taken
23
singly or in combination with the other errors alleged in the Petition, constitute
24
structural error and warrant the granting of this Petition without any
25
determination of whether the violations substantially affected or influenced the
26
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
27
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
28
doctrine applies to this claim, the foregoing constitutional violations, singly and
650
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1
in combination with the other errors alleged in this Petition, so infected the
2
integrity of the proceedings that the error cannot be deemed harmless. The
3
foregoing violations of Petitioner’s rights had a substantial and injurious effect
4
or influence on Petitioner’s convictions and sentences, rendering them
5
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
6
637-38.
7
CLAIM 34:
8
THE ABSENCE OF ANY MITIGATING EVIDENCE
9
RENDERED THE CAPITAL SENTENCING PROCESS
10
CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF
11
THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS
12
1802. Exhaustion of the claim: This claim was fairly presented to the
13
California Supreme Court in the direct appeal. It was presented in Section XX of
14
the Opening Brief,, although it includes additional factual allegations. Petitioner
15
will present the claim with the additional factual allegations to the California
16
Supreme Court in an exhaustion petition he will file no later than March 17,
17
2009.
18
1803. Those facts and allegations set forth in the petition, declarations,
19
claims of constitutional violations, and the accompanying exhibits are
20
incorporated by reference as if fully set forth herein to avoid unnecessary
21
duplication of relevant facts.
22
1804. The trial court accepted Petitioner’s waiver of mitigating evidence at
23
the penalty. (See 217 RT 24774-76.) Petitioner did not offer or present any
24
mitigating evidence on his behalf in support of a sentence less than death. In
25
closing argument, the State vigorously argued under factors (a) and (b), Penal
26
Code § 190.3, that Petitioner must be sentenced to death. (See Id. at 24823-31.)
27
1805. In his closing argument, the prosecutor urged the jury to return a
28
death verdict in part because of the absence of mitigating evidence. (See 217
651
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1
RT 24813-19.) The prosecutor argued there was “no evidence [under factor (d)]
2
of that at all, . . . .” (Id. at 24814.) The prosecutor argued that under (e), “Of
3
course there is no evidence of that at all . . . .” (Id. at 24815.) Under factor (g),
4
the prosecutor argued: “It doesn’t exist. No evidence of that here.” (Id.) The
5
prosecutor further argued that there was no evidence under factors (h), (I), and
6
(j). (Id. at 24816-17.) The prosecutor argued against application of factor (k):
7
“Now, I submit to you that there has been virtually no mitigating evidence in the
8
case, but you might find some.” (Id. at 24819.)
9
1806. Evolving due process standards and requirements of reliability of the
10
death sentencing procedure have undermined any argument that a one-sided
11
presentation of penalty evidence is sufficient to constitute a reliable determination
12
of penalty. Absent mitigation evidence, a penalty trial becomes a mere
13
formalistic proceeding and fails to provide any rational foundation for the jury to
14
weigh the evidence or make a normative decision on punishment. See, e.g.,
15
(Terry) Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 389
16
(2000) (defense counsel in a capital case has an “obligation to conduct a
17
thorough investigation of the defendant’s background”); Mayfield v. Woodford,
18
270 F.3d 915, 927 (9th Cir. 2001) (“To perform effectively in the penalty phase
19
of a capital case, counsel must conduct sufficient investigation and engage in
20
sufficient preparation to be able to ‘present[] and explain[] the significance of all
21
the available [mitigating] evidence.’”); Caro v. Calderon, 165 F.3d 1223, 1227
22
(9th Cir. 1999) (“[i]t is imperative that all relevant mitigating information be
23
unearthed for consideration at the capital sentencing phase”); Stouffer v.
24
Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (“[i]n a capital case the
25
attorney’s duty to investigate all possible lines of defense is strictly observed”)
26
(emphasis added). As a result, counsel failed to prepare and present readily
27
available mitigation evidence at trial.
28
652
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1807. There was no penalty verdict reliability in Petitioner’s case. No
2
mitigation was presented at the penalty trial. Thus, his penalty trial violated the
3
requirement of reliability in two ways. First, the penalty jury had no facts
4
pertaining to Petitioner on which to base its decision. Absent appropriate
5
mitigating evidence, the penalty verdict became a mere procedural hurdle devoid
6
of evidentiary substance. In People v. Weaver, 26 Cal. 4th 876, 976-77, 29 P.3d
7
103, 111 Cal. Rptr. 2d 2 (2001), the court found no constitutional infirmity at the
8
penalty trial by virtue of counsel’s performance where the defendant (in contrast
9
to the present case) presented some mitigation evidence of mental disturbance
10
under factor (d), and testified about the circumstances surrounding an assault. As
11
Weaver demonstrated, there always is some evidence in mitigation that may be
12
offered and considered by the jury. Here, there was none. No one spoke for
13
Petitioner. Nothing was offered. There was only dead silence in response to the
14
evidence in aggravation.
15
1808. Second, the lack of penalty trial or any mitigating evidence on
16
Petitioner’s behalf deprived the jury of a rational basis for conducting its
17
constitutionally required balancing process. The scales of justice were lopsided
18
and ineluctably skewed toward death from the start absent mitigation evidence; a
19
death verdict was inevitable. The process of normative weighing of the evidence
20
at the heart of the penalty determination, as described in People v. (Albert)
21
Brown, 40 Cal. 3d 512, 538-40, 726 P.2d 516, 230 Cal. Rptr. 834 (1985), accord,
22
People v. Bacigalupo, 6 Cal. 4th 457, 468, 862 P.2d 808, 24 Cal. Rptr. 2d 808
23
(1993), was not logically possible; there was nothing for the jury to weigh.
24
[W]ith respect to the process of selecting from among that class
25
those defendants who will actually be sentenced to death, ‘[w]hat is
26
important . . . is an individualized determination on the basis of the
27
character of the individual and the circumstances of the crime.’ It is
28
not simply a finding of facts which resolves the penalty decision,
653
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‘but . . . the jury’s moral assessment of those facts as they reflect on
2
whether defendant should be put to death . . . .’ The jury must be
3
free to reject death if it decides on the basis of any constitutionally
4
relevant evidence or observation that it is not the appropriate
5
penalty.
6
7
People v. (Albert) Brown, 40 Cal. 3d. at 540 (citations omitted).
1809. Brown signifies that a capital jury cannot carry out its sentencing
8
duties on a rational basis if it lacks requisite balancing evidence on which to
9
make that assessment. Here, the jury considered circumstances of the offenses
10
under factor (a), and other acts of force or violence under factor (a), as argued by
11
the prosecution, factors contributing only one side of the normative equation.
12
(See 217 RT 24823-31.) An individualized moral assessment of the
13
appropriateness of the penalty was impossible given the evidentiary vacuum.
14
When considered additionally through the lens of trial counsel’s vacuous
15
argument against his own client which stressed the absence of any mitigating
16
evidence concerning Petitioner’s background (id. at 24853 (“I don’t know what
17
school he went to”)); lack of mitigating evidence of Petitioner’s mental state (id.
18
at 24841 (“What possessed Petitioner to do this we will not know soon”)); and,
19
trial counsel’s feelings of retribution (id. at 24848 (“if anyone in this courtroom
20
had come upon Petitioner during the commission of one of these crimes, and we
21
had the ability to kill him, he would be dead now, and I think that includes
22
everybody in this courtroom other than him”)), the jury was precluded from
23
performing its constitutionally mandated weighing process to reach a reliable
24
penalty verdict in this case. Absent any evidence in mitigation, the penalty could
25
not have involved an individualized determination or rational moral assessment
26
as required.
27
28
1810. The Supreme Court has stressed that capital-sentencing bodies must
be allowed to examine and consider all available mitigation that a defendant
654
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1
wishes to present. Lockett v. Ohio, 458 U.S. 586, 98 S. Ct. 2954 57 L. Ed. 2d 973
2
(1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1
3
(1982); Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1
4
(1986); Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384
5
(1988). This requirement is rooted in the notion that society and the state need to
6
ensure that the death penalty is imposed only in appropriate situations when fully
7
and constitutionally warranted. By allowing the jury to hear and consider all
8
evidence relevant to its decision, society can be satisfied that the process has been
9
fair and just.
10
1811. For this reason, “[t]he fundamental respect for humanity underlying
11
the Eighth Amendment’s prohibition against cruel and unusual punishment gives
12
rise to a special ‘need for reliability in the determination that death is the
13
appropriate punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S.
14
578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988). The Court has stressed that
15
reliability of the penalty determination underpins scrutiny of error in capital
16
sentencing proceedings. Petitioner’s jury neither considered mitigating evidence
17
nor properly performed the requisite weighing process. Thus, society cannot be
18
satisfied that the capital sentencing jury reliably determined death was the
19
appropriate punishment. See Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.
20
Ct. 2633, 86 L. Ed. 2d 231 (1985).
21
1812. The California Supreme Court has rejected contentions that the
22
weighing process described in People v. (Albert) Brown, 40 Cal. 3d 512, requires
23
presentation of mitigating evidence. People v. Stansbury, 4 Cal. 4th 1017, 1066,
24
846 P.2d 756, 17 Cal. Rptr. 2d 174 (1993). However, the court has not
25
considered a situation as extreme as Petitioner’s case in which no mitigation
26
evidence at all was offered and the reasons offered to justify that decision were
27
absolutely devoid of merit. Unlike virtually every other capital case, the jury
28
here lacked any type of essential mitigating evidence with which to perform the
655
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1
requisite weighing process to determine penalty. Absent mitigating evidence, the
2
jury’s putative or normative evaluation of appropriate penalty amounted to a
3
mere pretense, a virtual sham of penalty reliability.
4
1813. Despite the absence of mitigation evidence, the jury deliberated four
5
days before returning its verdict of death. The jury thus worked long and hard
6
but in a vacuum, considering or balancing nothing. The penalty jury’s function
7
was reduced to a one-sided effort full of formalism without substance. Had the
8
defense presented mitigating evidence of Petitioner’s background, his childhood,
9
family life, good deeds, and, most significantly, of his mental condition, only
10
then could it be said that a meaningful, constitutionally sufficient weighing
11
process had been performed. Indeed, there was a reasonable possibility that at
12
least one juror would have considered mitigating evidence and weighed such
13
evidence in favor of a verdict of life imprisonment without the possibility of
14
parole rather than death. People v. (John) Brown, 46 Cal. 3d 432, 448-49, 758
15
P.2d 1135, 250 Cal. Rptr. 604 (1988).
16
1814. The jurors and alternate jurors have indicated that trial counsel was
17
unprepared and not qualified to handle Petitioner’s case. (See Ex. 117, Donald G.
18
McGee dec., ¶ 2; Ex. 120, Bonita Smith dec., ¶ 2; Ex. 115, Max De Ruiter dec., ¶
19
2.) Alternate Juror Hernease Dabney stated that it was obvious that trial counsel
20
“didn’t have a clue as to how to defend a capital case”. (See Ex. 114, Hernease
21
Dabney dec., ¶ 3.) Hernease Dabney also indicated that it appeared as if trial
22
counsel was trying to cause a mistrial. (Id.) Another juror indicated that Daniel
23
Hernandez and Arturo Hernandez were “both idiots”. (See Ex. 119, Fernando
24
Sendejas dec., ¶ 2.) Jurors indicated that had the defense presented some
25
evidence at the penalty phase, they would certainly have considered it in
26
determining the appropriate penalty verdict. For example, Donald G. McGee, a
27
juror in Petitioner’s case, stated as follows: “[i]f the defense had presented
28
evidence about the defendant’s background and his mental condition, I would
656
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1
have carefully considered that evidence before reaching my decision on the
2
penalty.” (See Ex. 117, Donald G. McGee dec., ¶ 10.) In addition, alternate
3
Juror Max De Ruiter stated as follows:
4
[i]n the penalty phase of the trial, I do not remember the defense
5
presenting anything to the jury about Mr. Ramirez’s mental state, his
6
mental history, or his life history. The defense lawyers did nothing
7
to help us understand why Mr. Ramirez did the things he was found
8
guilty of doing. I believe that it would have been important for Mr.
9
Ramirez’s lawyers to help us understand why Mr. Ramirez did what
10
he did. If I had deliberated as a juror in this case, I would have
11
considered any and all mitigating evidence presented by the defense
12
before making a decision as to the proper penalty for Mr. Ramirez.”
13
(See Ex. 115, Max De Ruiter dec., ¶ 3.)
14
1815. Based on the state of the evidence and the nature of the jury’s
15
deliberations absent mitigating evidence, it cannot be said that the error had “no
16
effect” on the verdict. Caldwell v. Mississippi, 472 U.S. at 341. Accordingly, the
17
death judgment must be reversed.
18
1816. The foregoing violations of Petitioner’s constitutional rights, taken
19
singly or in combination with the other errors alleged in the Petition, constitute
20
structural error and warrant the granting of this Petition without any
21
determination of whether the violations substantially affected or influenced the
22
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
23
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
24
doctrine applies to this claim, the foregoing constitutional violations, singly and
25
in combination with the other errors alleged in this Petition, so infected the
26
integrity of the proceedings that the error cannot be deemed harmless. The
27
foregoing violations of Petitioner’s rights had a substantial and injurious effect
28
or influence on Petitioner’s convictions and sentences, rendering them
657
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1
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
2
637-38.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
658
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1
CLAIM 35:
2
THE TRIAL COURT VIOLATED PETITIONER’S
3
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
4
THE JURY THAT PETITIONER’S AGE IS A MITIGATING
5
FACTOR
6
1817. Exhaustion of the claim: This claim was fairly presented to the
7
California Supreme Court in the direct appeal. It was presented in Section XXI
8
of the Opening Brief.
9
1818. In support of this claim, Petitioner alleges the following facts,
10
among others to be presented after full discovery, investigation, adequate
11
funding, access to this Court’s subpoena power, and an evidentiary hearing.
12
1819. Those facts and allegations set forth in the petition, declarations,
13
claims of constitutional violations, and the accompanying exhibits are
14
incorporated by reference as if fully set forth herein to avoid unnecessary
15
duplication of relevant facts.
16
1820. Petitioner requested the following jury instruction:
17
One of the factors for you to consider in determining the
18
penalty is the age of the defendant at the time of the offense(s).
19
Chronological age, by itself, is a matter over which the
20
defendant has no control, and which is not relevant to the choice of
21
penalty.
22
However, the factor relating to ‘defendant’s age,’ as set forth
23
in these instructions, refers to any matter concerning defendant’s
24
age, maturity, and judgment which common experience or morality
25
might indicate to be relevant to the issue of penalty.
26
27
You shall therefore give any age-related factors and argument
consideration in arriving at a judgment as to penalty.
28
659
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1
(XXX CT 8894.) The trial court refused the proffered instruction, indicating that
2
there was no evidence in the record to support the instruction. (217 RT 24789-
3
90.) The court instructed the jury in the standard language of CALJIC No. 8.85
4
(penalty trial – factors in consideration) which permitted the jury under factor (i),
5
to consider “[t]he age of the defendant at the time of the crime.” (Id. at 24870-
6
73.)
7
1821. Petitioner was present at trial and observed by the jury. His youthful
8
appearance was a matter to be considered under Penal Code § 190.3(i). Petitioner
9
was twenty-four to twenty-five years old at the time of the offenses. (See XXXV
10
CT 10429.) Thus, there was evidence in the record of Petitioner’s age that was
11
relevant to the jury’s determination of penalty.
12
1822. The California Supreme Court has long recognized that the statutory
13
factor of age of the defendant can be legitimately argued by either side at penalty
14
phase. People v. Rodriguez, 42 Cal. 3d 730, 789, 726 P.2d 113, 230 Cal. Rptr.
15
667 (1986). Thus, the court has recognized the prosecution may constitutionally
16
argue to the jury the absence of any mitigation under this factor without
17
committing Davenport error. See People v. Davenport, 41 Cal. 3d 247, 288, 710
18
P.2d 861, 221 Cal. Rptr. 794 (1985).
19
1823. CALJIC No. 8.85, as given by the trial court, clearly required the
20
jury to consider all applicable factors, including the age of Petitioner at the time
21
of the crimes. However, the instruction given by the trial court did nothing more
22
than state that age was a factor for consideration; it provided no guidance to the
23
jury about how it should apply Petitioner’s age to the penalty determination. A
24
bare instruction, as given by the trial court, caused confusion with factor (i) in
25
that the prosecution was thereby justified in arguing lack of age-related
26
mitigation as weighing in favor of death. To avoid that danger, the court was
27
obligated to give a more explicit statement of the meaning of factor (i) to indicate
28
what and how the jury could weigh under this factor. In the absence of a
660
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1
clarifying instruction, as submitted by Petitioner, the jury could have overlooked
2
relevant mitigation or have treated the apparent absence of this factor as
3
aggravation.
4
1824. The California Supreme Court has held that pinpoint instructions at
5
penalty phase are inappropriate if they are argumentative or duplicative of
6
standard instructions. People v. Catlin, 26 Cal. 4th 81, 174, 26 P.3d 357, 109
7
Cal. Rptr. 2d 31 (2001).
8
[T]he proffered special instruction for the most part in effect argued
9
the evidence by ‘highlight[ing] certain aspects . . . without further
10
illuminating the legal standards at issue [citations].’ [Citation.]
11
Other instructions given by the trial court and summarized above
12
adequately covered the defense theory in the penalty phase. Those
13
elements of defendant’s special instruction that were not
14
argumentative were thus duplicative, and the trial court did not err in
15
declining to give them. [Citation.] There was no error.
16
People v. Musselwhite, 17 Cal. 4th 1216, 1269-70, 954 P.2d 475, 74 Cal. Rptr. 2d
17
212 (1998) (quoting People v. Noguera, 4 Cal. 4th 599, 648, 842 P.2d 1160, 15
18
Cal. Rptr. 2d 400 (1992) (italics omitted)).
19
1825. The instruction proffered by Petitioner here differed from those
20
disapproved in Musselwhite and Noguera. Petitioner’s instruction was not
21
argumentative and did not identify age as solely mitigating in nature. People v.
22
Sandoval, 4 Cal. 4th 155, 189, 841 P.2d 862, 14 Cal. Rptr. 2d 342 (1992). In
23
fact, the proffered instruction relied on language in Lucky, indicating that age
24
alone is neither aggravating nor mitigating. People v. Lucky, 45 Cal. 3d, 259,
25
301-02, 753 P.2d 1052, 247 Cal. Rptr. 1 (1988). Nor was the instruction merely
26
duplicative of the standard instruction or language in CALJIC No. 8.85. CALJIC
27
No. 8.85 provided no guidance at all to the jury about how to apply factor (i); no
28
other instruction guided the jury that age could be considered either way in its
661
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1
penalty determination or age-related considerations that evidence the jurors’
2
common experience, or morality reasonably bore on the penalty decision. In fact,
3
the prosecutor even argued that under factor (i) actual age was not relevant. (See
4
217 RT 24816.) Finally, the statement of law set forth in the proffered
5
instruction was neither biased toward one side nor duplicated in other
6
instructions; it was appropriate, and in view of the statement made in CALJIC
7
No. 8.85 as to age generally, the instruction was necessary to provide the jury
8
with proper guidance on this factor.
9
1826. The trial court rejected the special instruction, not on the ground that
10
it was an inappropriate pinpoint instruction, but that there was no evidence to
11
support it. In this regard, the court’s ruling was also erroneous as there was
12
evidence of Petitioner’s age before the jury. The jury was certainly required to
13
make a proper penalty verdict based on the statutory factors. Trial counsel’s
14
failure otherwise to present a case in mitigation on Petitioner’s behalf did not
15
relieve the jury of the duty to consider each of the factors in reaching its decision.
16
Moreover, under Lucky, the jury was to consider not only “evidence” on age-
17
related factors, but “common experience or morality that might reasonably
18
inform the choice of penalty.” People v. Lucky, 45 Cal. 3d at 302. That is, the
19
jury was to apply its experience and conscience on this factor regardless of
20
whether it was suggested by specific evidence in the record. For that reason, the
21
special instruction was both proper and necessary.
22
1827. Petitioner’s age was vital evidence that the jury was entitled to
23
consider. Eddings v. Oklahoma, 455 U.S. 104, 115 102 S. Ct. 869, 71 L. Ed. 2d 1
24
(1982); Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1
25
(1986). In the absence of the presentation of mitigating evidence at the penalty
26
trial, evidence of Petitioner’s age was the one discernible mitigating factor that
27
the jury properly could have weighed in Petitioner’s favor. Thus, the
28
662
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1
prosecutor’s argument based on CALJIC No. 8.85, that there was no mitigating
2
evidence with respect to Petitioner’s age, was especially harmful.
3
1828. Petitioner was entitled to have the jury consider mitigation evidence
4
of age. The trial court’s refusal to instruct on mitigating evidence under factor (i)
5
rendered the jury’s penalty determination unreliable under the Eighth
6
Amendment. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.
7
2d 231 (1985). Given the four days of penalty deliberations, it cannot be said that
8
the error had no effect on the jury. Thus, it is both reasonably possible and
9
probable that had the jury properly been instructed regarding age, a more
10
favorable result would have occurred. The court’s error denied Petitioner due
11
process of law. Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d
12
175 (1980).
13
1829. The foregoing violations of Petitioner’s constitutional rights, taken
14
singly or in combination with the other errors alleged in the Petition, constitute
15
structural error and warrant the granting of this Petition without any
16
determination of whether the violations substantially affected or influenced the
17
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
18
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
19
doctrine applies to this claim, the foregoing constitutional violations, singly and
20
in combination with the other errors alleged in this Petition, so infected the
21
integrity of the proceedings that the error cannot be deemed harmless. The
22
foregoing violations of Petitioner’s rights had a substantial and injurious effect
23
or influence on Petitioner’s convictions and sentences, rendering them
24
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
25
637-38.
26
27
28
663
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1
CLAIM 36:
2
THE TRIAL COURT VIOLATED PETITIONER’S
3
CONSTITUTIONAL RIGHTS BY INSTRUCTING THE JURY
4
IN THE LANGUAGE OF CALJIC NO. 8.85, THUS
5
UNDERMINING HIS RIGHTS TO A RELIABLE PENALTY
6
DETERMINATION
7
1830. Exhaustion of the claim: This claim was fairly presented to the
8
California Supreme Court in the direct appeal. It was presented in Section XXIII
9
of the opening appeal brief.
10
1831. In support of this claim, Petitioner alleges the following facts,
11
among others to be presented after full discovery, investigation, adequate
12
funding, access to this Court’s subpoena power, and an evidentiary hearing.
13
1832. Those facts and allegations set forth in the petition, declarations,
14
claims of constitutional violations, and the accompanying exhibits are
15
incorporated by reference as if fully set forth herein to avoid unnecessary
16
duplication of relevant facts.
17
1833. In his closing argument, the prosecutor urged the jury to return a
18
death verdict in part because of the absence of mitigating evidence. (See 217
19
RT 24813-19.) The prosecutor argued there was “no evidence [under factor (d)]
20
of that at all, . . . .” (Id. at 24814.) The prosecutor argued that under (e), “[o]f
21
course there is no evidence of that at all . . . .” (Id. at 24815.) Under factor (f),
22
the prosecutor argued: “It doesn’t exist. No evidence of that here.” (Id.) With
23
respect to factor (g), the prosecutor argued, ‘No evidence of that here. Not to be
24
considered by you.” (Id. at 24815.) The prosecutor further argued that there was
25
no evidence under factors (h), (i), and (j). (Id. at 24816-17.) The prosecutor
26
argued against application of factor (k): “Now, I submit to you that there has
27
been virtually no mitigating evidence in the case, but you might find some.” (Id.
28
at 24819.)
664
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1
2
3
1834. The trial court instructed the jury in the standard language of
CALJIC No. 8.85. (217 RT 24870-71; see also XXX CT 8881-83.)
1835. The court’s use of CALJIC No. 8.85 as given was constitutionally
4
deficient. The instruction failed properly to inform the jury of its duty and
5
interfered with the jury’s proper determination of the appropriate penalty.
6
Specifically, the instruction was given without deleting inapplicable language.
7
The wording of most enumerated factors suggested that, even in their absence,
8
they could be weighed by the jurors either as factors in mitigation or aggravation.
9
1836. CALJIC No. 8.85 as given provided jurors with largely irrelevant
10
considerations. The instruction expressed aggravating and mitigating factors in a
11
manner that invited improper attention by jurors. Notwithstanding the court’s
12
admonition, the instruction failed to eliminate the probability that jurors would
13
treat the absence of mitigation as aggravation.
14
1837. CALJIC No. 8.85 as given was severely defective. It invited
15
arbitrary and capricious responses to capital sentencing according to how each
16
juror individually may have perceived the instruction’s meaning. See Proffitt v.
17
Florida, 428 U.S. 242, 260, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
18
1838. Empirical evidence and the jurors’ actual trial experience support the
19
conclusion that it was both reasonably possible and probable (People v. Brown,
20
46 Cal. 3d at 448-49; Chapman v. California, 386 U.S. at 24) that the jury
21
misunderstood and therefore misapplied the various sentencing factors on which
22
they were instructed. Misapplication of sentencing factors violated Petitioner’s
23
rights under the Eighth Amendment by making the death determination
24
constitutionally unreliable. Johnson v. Mississippi, 486 U.S. at 584. Considering
25
as well the absence of mitigating evidence and the prosecutor’s argument
26
emphasizing absence of mitigation, the instructional error was particularly
27
harmful. As a result, Petitioner’s rights to due process and a fair jury trial under
28
the Fifth, Sixth, and Fourteenth Amendments were also violated. Estelle v.
665
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1
McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991); Gardner v.
2
Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
3
1839. The Court must examine the propriety of CALJIC No. 8.85 in light
4
of the need for consistency of federal due process guarantees. See People v.
5
Davenport, 11 Cal. 4th 1171, 1228, 906 P.2d 1068, 47 Cal. Rptr. 2d 800 (1995);
6
Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988).
7
1840. As with many pattern jury instructions, CALJIC No. 8.85 contains
8
factors and conditions which may not be applicable to the facts of a particular
9
case. The usual procedure followed by trial courts is to delete inapplicable
10
portions of the instruction. In rejecting prior challenges to CALJIC No. 8.85,
11
however, the state court has held that it is not necessary to edit the instruction or
12
delete factors that are inapplicable to the case involved. Unlike other instructions
13
that must be modified or edited to delete potentially misleading or confusing
14
language (People v. Jennings, 53 Cal. 3d 334, 807 P.2d 1009, 279 Cal. Rptr. 780
15
(1991) (penalty phase jury instruction should have been tailored)), CALJIC No.
16
8.85 alone is treated differently. In a situation where the law requires heightened,
17
not lessened scrutiny, the state court incongruously sanctioned irrelevant or
18
inapposite instructional language.
19
1841. CALJIC No. 8.85 apprises jurors of factors irrelevant to the case.
20
Prosecutors, as here, commonly engage in the pernicious tactic of reviewing the
21
entire list of statutory factors, both applicable and not applicable, to highlight the
22
lack of mitigation evidence. The prosecutor did so in his closing argument when
23
he urged the jury to find there was no mitigation under factors (d), (e), (f), (g),
24
(h), (i), (j), and (k). He argued the absence of those factors did not warrant a
25
sentence less than death. Some factors mentioned by the prosecutor and used in
26
support of his argument for the death penalty were not germane to this case.
27
Other factors were rare and are hardly ever present. Nevertheless, by
28
highlighting the absence of exceptional factors, the prosecutor created an
666
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1
inaccurate impression of the weighing criteria used by the jury to determine
2
penalty that improperly and unfairly tipped the scales toward death.
3
1842. It is unrealistic to believe that the jurors in this case avoided
4
considering the entire list of factors or failed to conclude that were those factors
5
present, Petitioner would be more worthy of receiving a sentence less than death.
6
The failure to delete irrelevant factors placed undue emphasis on the
7
consideration of absent factors and effectively characterized Petitioner as
8
unworthy to live by their very absence.
9
1843. There are almost always more inapplicable mitigating factors under
10
factors (d) through (j) than aggravating ones under factors (a) through (c). The
11
instruction as given inevitably created the improper illusion that a case for
12
mitigation was far less substantial than a case in aggravation.
13
1844. The wording of the instruction in regard to factors (d), (e), (f), (g),
14
(h), (i), and (j) instructed the jury to consider “whether or not” each applied to the
15
case at hand. This wording created the inescapable inference that the factors
16
could either be mitigating (if they applied) or aggravating. This interpretation
17
was virtually inevitable because similar alternative wording was used in factors
18
(b) and (c), which were indeed “bivalent” factors: aggravating if present,
19
mitigating if absent. The language of the instruction thus greatly increased the
20
likelihood that the jurors would mistakenly think that mitigating factors could be
21
used as factors in aggravation. Such use by the jury violated federal decisional
22
law on capital sentencing requirements. Mills v. Maryland, 486 U.S. at 367, 108
23
S. Ct. 1860, 100 L. Ed. 2d 384 (1988).
24
25
26
27
28
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1845. The misleading language of the instruction was compounded by the
2
fact that factors (d) through (h) and (j) which could only be mitigating in effect128
3
were not so identified in the instruction.
4
1846. The deliberate withholding of legally correct information relevant to
5
the jury’s proper duties was illogical and invited improper application of the
6
instruction by individual jurors, particularly considering the absence of mitigating
7
evidence under Penal Code § 190.3.
8
1847. Empirical research shows how juries understand these factors as
9
aggravating. A 1994 study of impaneled jurors on California capital trials found
10
that they had actually believed, despite ostensible instruction to the contrary, that
11
the absence of mitigation evidence supported a sentence of death. See Haney,
12
Sontag, and Costanzo, Deciding to Take a Life: Capital Juries, Sentencing
13
Instructions, and the Jurisprudence of Death, 50 J. Soc. Issues, 149, 169 (1994).
14
In the face of such empirical evidence, it is apparent that jurors in fact understand
15
what is commonly – but erroneously – considered to be the “plain meaning” of
16
the instruction’s language.
17
1848. Counsel presented no mitigation evidence at the penalty trial.
18
Nevertheless, the jury deliberated over a four-day period. (XXX CT 8901, 8903-
19
05.) It is both reasonably possible and reasonably likely that the jury
20
misunderstood and misapplied the sentencing factors. The prosecutor urged the
21
jury to return a death verdict not only because of the nature of the offenses, but
22
because of the lack of mitigation under factors (d) through (k). The prosecutor
23
encouraged the jury to misapply the sentencing factors. It is likely that the jury
24
25
26
27
28
128
Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235
(1983) (some matters can only be mitigating); see also People v. Davenport, 41
Cal. 3d at 288; People v. Hamilton, 48 Cal. 3d 1142, 1184, 774 P.2d 730, 259
Cal. Rptr. 701 (1989); People v. Whitt, 51 Cal. 3d 620, 654, 798 P.2d 849, 274
Cal. Rptr. 252 (1990).
668
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1
both considered the prosecutor’s argument as to the lack of mitigating factors and
2
weighed their absence adversely to Petitioner.
3
1849. Under the circumstances of this case, therefore, it cannot be said that
4
the inherently confusing wording regarding factors to be considered, the failure to
5
excise inapplicable factors, and lack of guidance provided by the trial court had
6
“no effect” on the verdict. See Caldwell v. Mississippi, 472 U.S. at 341. To the
7
contrary, given the close attention paid to the evidence by the jury, it is likely that
8
in the absence of error a more favorable result would have occurred.
9
1850. The foregoing violations of Petitioner’s constitutional rights, taken
10
singly or in combination with the other errors alleged in the Petition, constitute
11
structural error and warrant the granting of this Petition without any
12
determination of whether the violations substantially affected or influenced the
13
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
14
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
15
doctrine applies to this claim, the foregoing constitutional violations, singly and
16
in combination with the other errors alleged in this Petition, so infected the
17
integrity of the proceedings that the error cannot be deemed harmless. The
18
foregoing violations of Petitioner’s rights had a substantial and injurious effect
19
or influence on Petitioner’s convictions and sentences, rendering them
20
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
21
637-38.
22
CLAIM 37:
23
THE TRIAL COURT VIOLATED PETITIONER’S
24
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
25
THE JURY REGARDING SUFFICIENCY OF MITIGATING
26
EVIDENCE
27
28
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1851. Exhaustion of the claim: This claim was fairly presented to the
2
California Supreme Court in the direct appeal. It was presented in Section XXIV
3
of the Opening Brief.
4
1852. AEDPA: The California Supreme Court denied this claim. People
5
v. Ramirez, 39 Cal. 4th at 469-73. Because the state court’s adjudication of this
6
claim was dependent on an antecedent unreasonable application of federal law,
7
this Court “must then resolve the claim without the deference that AEDPA
8
otherwise requires.” Panetti, 127 S. Ct. at 2858.
9
1853. In support of this claim, Petitioner alleges the following facts,
10
among others to be presented after full discovery, investigation, adequate
11
funding, access to this Court’s subpoena power, and an evidentiary hearing.
12
1854. Those facts and allegations set forth in the petition, declarations,
13
claims of constitutional violations, and the accompanying exhibits are
14
incorporated by reference as if fully set forth herein to avoid unnecessary
15
duplication of relevant facts.
16
1855. Trial counsel requested that the court instruct the jury regarding
17
sympathy, sufficiency of one mitigating factor, and that the list of aggravating
18
factors is exclusive. The court refused to so instruct the jury, indicating the
19
instruction was argumentative. (See 217 RT 24788; XXX CT 8889-92.) The
20
defense closing argument focused on sympathy for Petitioner, mercy, and
21
forgiveness. (See Id. at 24835, 24839-41, 24843, 24846-47, 24849-50, 24852-53,
22
24857-60 (closing argument).) The jury was not specifically instructed as to the
23
application of sympathy or mercy. (See Id. at 24869-76 (jury instructions).
24
1856. The trial court’s failure to instruct the jury on sympathy and its
25
refusal to specify the exclusivity of aggravation evidence invited
26
misunderstanding by jurors. This was the heart of Petitioner’s case. The trial
27
court did not explain to the jury the role of sympathy or the weight to be assigned
28
to sympathy in determining penalty. Thus, without guidance from the court, the
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jury was unfairly persuaded by the prosecutor’s argument and weighed
2
aggravating evidence against Petitioner. See Mills v. Maryland, 486 U.S. 367,
3
108 S. Ct. 1860 100 L. Ed. 2d 384 (1988); People v. Davenport, 11 Cal. 4th
4
1171, 906 P.2d 1068, 47 Cal. Rptr. 2d 800 (1995).
5
1857. As discussed in Claim 28, supra, Petitioner presented no mitigation
6
evidence at the penalty trial. Petitioner’s hopes for a sentence less than death
7
hinged on sympathy – practically the only factor that could be construed in
8
Petitioner’s favor. Under the circumstances of this case, it is both reasonably
9
possible and probable that the jury misapplied the sentencing factors. Given the
10
fact that the jury deliberated at length in a conscientious manner, it is likely that
11
in the absence of the error a more favorable result would have occurred. At least
12
one juror would have been inclined to vote for life imprisonment without the
13
possibility of parole if the jury had been properly instructed that sympathy was a
14
sufficient basis for imposing a punishment less than death.
15
1858. The foregoing violations of Petitioner’s constitutional rights, taken
16
singly or in combination with the other errors alleged in the Petition, constitute
17
structural error and warrant the granting of this Petition without any
18
determination of whether the violations substantially affected or influenced the
19
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
20
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
21
doctrine applies to this claim, the foregoing constitutional violations, singly and
22
in combination with the other errors alleged in this Petition, so infected the
23
integrity of the proceedings that the error cannot be deemed harmless. The
24
foregoing violations of Petitioner’s rights had a substantial and injurious effect
25
or influence on Petitioner’s convictions and sentences, rendering them
26
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
27
637-38.
28
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CLAIM 38:
2
THE TRIAL COURT VIOLATED PETITIONER’S
3
CONSTITUTIONAL RIGHTS BY REFUSING TO INSTRUCT
4
THE JURY ON THE MEANING OF LIFE WITHOUT THE
5
POSSIBILITY OF PAROLE
6
1859. Exhaustion of the claim: This claim was fairly presented to the
7
California Supreme Court in the direct appeal. It was presented in Section XXV
8
of the opening appeal brief.
9
1860. In support of this claim, Petitioner alleges the following facts,
10
among others to be presented after full discovery, investigation, adequate
11
funding, access to this Court’s subpoena power, and an evidentiary hearing.
12
1861. Those facts and allegations set forth in the petition, declarations,
13
claims of constitutional violations, and the accompanying exhibits are
14
incorporated by reference as if fully set forth herein to avoid unnecessary
15
duplication of relevant facts.
16
17
1862. Trial counsel requested that the court instruct the jury as follows:
Statements by some jurors during jury selection
18
showed an awareness of news reports concerning other
19
cases where sentences of death were not carried out for
20
legal reasons or where person sentenced to life
21
imprisonment have been considered for parole.
22
Under the 1978 death penalty law, which governs
23
this case, the only possible penalties are death or life
24
imprisonment without the possibility of parole.
25
26
27
28
In the past, other cases were decided under other
laws which are no longer in effect.
You must not consider other cases or news
reports, or speculate about actions by other authorities
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1
in arriving at a penalty verdict in this case. Those are
2
matters that must not affect your verdict.
3
4
(XXX CT 8895.)
1863. The trial court indicated that it would clarify the meaning of life
5
imprisonment without the possibility of parole only if requested to do so by the
6
jury. The court ruled that it was not necessary to raise the question and was
7
“bound not to bring forth [the issue] unless the jury itself raises the question
8
during their deliberations.” (217 RT 24790.) The court further ruled it would be
9
error to so instruct the jury on the meaning of life imprisonment without the
10
possibility of parole and requested defense counsel to withdraw his proffered
11
instruction. (Id.) As a direct result of the court’s request, and only in response to
12
the court’s request asking counsel to withdraw the instruction, trial counsel
13
obeyed the court and withdrew the instruction. (Id.) The trial court did not
14
instruct the jury on the meaning of life imprisonment without the possibility of
15
parole. The court only instructed the jury in the language of CALJIC No. 8.88
16
(1989 Revision) which stated in relevant part:
17
It is now your duty to determine which of the two
18
penalties, death or confinement in the state prison for
19
life without the possibility of parole shall be imposed
20
on the defendant.
21
22
(Id. at 24874.)
1864. Petitioner’s proffered special instruction was appropriate under the
23
circumstances of this case. In the face of vehement and repeated insistence by the
24
prosecutor that Petitioner deserved to die; that he was evil; and that he posed a
25
danger to society (217 RT 24802, 24805, 24819-21, 24832-33), the trial court
26
should have, consonant with due process principles, instructed the jury as
27
Petitioner requested that life imprisonment without parole meant exactly that.
28
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1865. Under the Fifth, Sixth, Eighth, and Fourteenth Amendments,
2
Petitioner was entitled to the proffered instruction. At the time of Petitioner’s
3
trial, decisional law provided that Petitioner was entitled at the very least to
4
explain parole ineligibility. Barclay v. Florida, 463 U.S. 939, 950, 103 S. Ct.
5
3418, 77 L. Ed. 2d 1134 (1983); Gardner v. Florida, 430 U.S. at 362, 97 S. Ct.
6
1197, 51 L. Ed. 2d 393 (1977).
7
1866. The California Supreme Court’s prior rulings that a further
8
instruction on the meaning of life imprisonment without the possibility of parole
9
is not required were predicated on a footnote in the plurality opinion in Simmons
10
v. South Carolina, 512 U.S. 154, 167 n.7, 114 S. Ct. 2187, 129 L. Ed. 2d 133
11
(1994). Footnote 7 lists California as one of seventeen states in which the capital
12
sentencing jury is expressly told about a defendant’s ineligibility of parole.
13
Relying on that footnote, the state court repeatedly has turned aside challenges to
14
CALJIC No. 8.88. However, the Simmons Court based its decision on two
15
foundations. First, the Court concluded that the defendant was denied due
16
process by being precluded from responding to the prosecution’s claims of future
17
dangerousness by informing the jury that he was in actuality ineligible for parole.
18
Second, and most importantly, the plurality in Simmons held that instructions
19
which simply inform a capital jury of the sentencing options in literal terms but
20
without explanation are constitutionally inadequate under the Eighth and
21
Fourteenth Amendments.
22
1867. In Simmons, South Carolina argued the instruction given informed
23
the jury that “life imprisonment was to be understood in its ‘plain and ordinary
24
meaning.’” Simmons v. South Carolina, 512 U.S. at 169. The Court nevertheless
25
found the instruction insufficient under the Fifth and Fourteenth Amendments:
26
An instruction directing juries that life imprisonment
27
should be understood in its ‘plain and ordinary’
28
meaning does nothing to dispel the misunderstanding
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reasonable jurors may have about the way in which the
2
particular State defines ‘life imprisonment.’ See Boyde
3
v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108
4
L.Ed.2d 316 (1990) (where there is a ‘reasonable
5
likelihood that the jury has applied the challenged
6
instruction in a way that prevents the consideration of
7
constitutionally relevant evidence,’ the defendant is
8
denied due process).
9
10
Simmons v. South Carolina, 512 U.S. at 170 (footnote omitted).
1868. Justice Blackmun, writing in Simmons for three concurring justices,
11
stated: “It can hardly be questioned that most juries lack accurate information
12
about the precise meaning of ‘life imprisonment’ as defined by the States.” Id.,
13
512 U.S. at 169. Jurors and the general public alike regularly misunderstand that
14
defendants sentenced to life imprisonment without the possibility of parole may
15
be and are later released from prison. Id. at 169-70 n.9.
16
1869. The Court in Simmons also cited Barclay v. Florida, 463 U.S. at
17
950, which held: “Any sentencing decision calls for the exercise of judgment. It
18
is neither possible nor desirable for a person to whom the State entrusts an
19
important judgment to decide in a vacuum, as if he had no experiences.”
20
Simmons v. South Carolina, 512 U.S. at 171. Justice Blackmun, in his concurring
21
opinion, further noted that an instruction that simply tells the jury not to consider
22
parole possibilities is not the same as informing it positively what the sentences
23
they impose mean in actuality. Id.
24
1870. Justice Souter’s concurring opinion (joined by Justice Stevens) went
25
further in stressing that in addition to the Fifth Amendment, the Eighth
26
Amendment also demands the jury be fully informed of the meaning of the
27
sentencing options they must mete out. Id. at 172-74. Noting that the Eighth
28
Amendment “requires provision of ‘accurate sentencing information [as] an
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1
indispensable prerequisite to a reasoned determination of whether a defendant
2
should live or die,”’ Justice Souter indicated that this necessitates instructions on
3
the meaning of legal terms, so that “whenever there is a reasonable likelihood that
4
a juror will misunderstand a sentencing term, a defendant may demand
5
instruction on its meaning, and a death sentence following the refusal of such a
6
request should be vacated as having been ‘arbitrarily or discriminatorily’ and
7
‘wantonly and . . . freakishly imposed.’” Id. And in fact, Simmons made a
8
substantive showing of juror confusion in the trial court through a survey that
9
showed over 90% of jury-eligible adults did not believe that a life sentence meant
10
11
the prisoner would actually stay in prison the rest of his life. Id. at 159.
1871. There was reasonable likelihood of a similar misunderstanding of
12
the nature of life imprisonment without the possibility of parole among jury-
13
eligible California adults generally and at the time of Petitioner’s trial. See Craig
14
Haney and Mona Lynch, “Clarifying Life and Death Matters: An Analysis of
15
Instructional Comprehension and Penalty Phase Closing Argument,” 21 Law &
16
Hum. Behav. 575 (1997). Accordingly, by virtue of the Court plurality opinions
17
in Simmons, Petitioner was entitled to an instruction such as that which he
18
requested clarifying the meaning of a life sentence without the possibility of
19
parole.
20
1872. The state court has approved instructions telling the jury to assume
21
that the sentence imposed will not be overturned and that the penalty chosen will
22
indeed be imposed. See, e.g., People v. Smithey, 20 Cal. 4th 936, 1007-08, 978
23
P.2d 1171, 86 Cal. Rptr. 2d 243 (1999).129 To instruct a jury to assume that its
24
25
26
27
28
129
Of an instruction that “you should vote on the assumption that your
decision will not be overturned” and that the jury should choose the penalty on
the basis that its decision will stand, the Smithey court remarked, “We conclude
that the court’s instructions regarding the jury’s sentencing alternatives were
sufficient and correct . . . .” People v. Smithey, at 1009-10.
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1
decision on penalty will be carried out is virtually identical to an instruction that
2
the jury must assume for sentencing purposes that the defendant will either be
3
executed or remain in prison the rest of his life with no chance of parole. It is
4
logically impossible for the Smithey formulation to be correct and the one offered
5
by Petitioner to be incorrect.
6
7
1873. Also, Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L.
Ed. 2d 178 (2001), makes clear that:
8
It is only when the jury endeavors the moral judgment
9
whether to impose the death penalty that parole
10
eligibility may become critical. Correspondingly, it is
11
only at that stage that Simmons comes into play . . . .
12
[W]henever future dangerousness is at issue in a capital
13
sentencing proceeding under South Carolina’s new
14
scheme, due process requires that the jury be informed
15
that a life sentence carries no possibility of parole.
16
17
Id., 532 U.S. at 37-38 (citation omitted).
1874. The Court in Shafer reaffirmed the need of a Simmons instruction.
18
The Court rejected suggestions that the trial court’s instructions or defense
19
counsel’s argument made up for the lack of a Simmons instruction. In particular,
20
the Court found inadequate the instruction that “life imprisonment means until
21
the death of the offender. Parole eligibility is not for your consideration.” Id. at
22
45. That instruction, concluded the Court, failed to inform the jury of the true
23
nature of the sentences it might impose. “That instruction did nothing to ensure
24
the jury was not misled and may well have been taken to mean ‘that parole was
25
available but that the jury, for some unstated reason, should be blind to this
26
fact.”’ Id. at 53 (quoting Simmons v. South Carolina, 512 U.S. at 170.) The
27
Shafer Court also quoted with approval the dissenting opinion in State v. Kelly,
28
343 S.C. 350, 375, 540 S.E.2d 851 (2001): “Without the knowledge that, if
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1
aggravators are found, a life sentence is not subject to being reduced by parole, or
2
any other method of early release, the jury is likely to speculate unnecessarily on
3
the possibility of early release, and impose a sentence of death based upon ‘fear
4
rather than reason.’” Shafer v. South Carolina, 532 U.S. at 53-54.
5
1875. In Petitioner’s case, his proffered special instruction informed the
6
jury that he would remain in prison for the rest of his life and never be paroled.
7
The instruction further obligated the jury to ignore other cases in the past under
8
other laws in which the death penalty, particularly in other notorious cases, was
9
not carried out. Petitioner’s instruction fell squarely within the reasoning of
10
Simmons and now Shafer. Petitioner’s jury was not informed of the true nature of
11
its sentencing options.
12
1876. Simmons and Shafer are applicable to the California capital
13
sentencing scheme. Together, these cases hold that whenever a statutory capital
14
sentencing scheme presents the sentencer with a choice, but fails to provide
15
adequate information on the nature of those choices, due process has been
16
violated. This is particularly so where the prosecution, as here, relies on
17
continuing dangerousness and the sentencer is ignorant as to the meaning of an
18
alternate sentence of life without the possibility of parole. In such cases, the
19
sentencer is susceptible to inflicting death out of misplaced fear the defendant
20
may be released from prison on parole or by another method of early release.
21
The jury here should have been advised that Petitioner’s sentence would never be
22
reduced by parole or other method of early release or that a sentence of life
23
without possibility of parole meant that Petitioner would remain in prison for the
24
rest of his life.
25
1877. As in Simmons, there is empirical evidence that California jurors
26
fundamentally misunderstand even the most basic concepts of the capital
27
sentencing process. See Haney & Lynch, “Clarifying Life and Death Matters:
28
An Analysis of Instructional Comprehension and Penalty Phase Closing
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1
Argument,” 21 Law & Hum. Behav. 575; see also Simmons v. South Carolina,
2
512 U.S. at 170 n.9 (studies on misconstruing the meaning of life without the
3
possibility of parole). The language of the instructions condemned in Simmons
4
and Shafer and those given by the trial court in this case without Petitioner’s
5
proffered instruction differ but superficially.130 The danger that the jury would
6
misunderstand the operation of the capital sentencing process lurked beneath the
7
trial court’s instructions just as in Simmons and Shafer. The Simmons-Shafer
8
rationale thus applies, for to “simply identify the jury’s sentencing alternatives”
9
(Simmons v. South Carolina, at 167 n.7) as was also done here, failed to address
10
the likelihood of substantive confusion among jurors that underpinned the
11
identical process violation in Simmons.
12
1878. The objectionable instructions are equally susceptible to a Simmons-
13
Shafer analysis. Absent Petitioner’s proffered instruction, those given by the
14
court presented the sentencing jury with the same two-way decision. Petitioner’s
15
proffered instruction was a bare minimum explication needed under both
16
Simmons and Shafer to dispel any possibility of jury misunderstanding about the
17
meaning of life without the possibility of parole.
18
1879. Moreover, KelIy v. South Carolina, 534 U.S. 246, 122 S. Ct. 726,
19
151 L. Ed. 2d 670 (2002), confirms Petitioner’s right to an appropriate instruction
20
with respect to parole ineligibility, especially where there was evidence that
21
22
23
24
25
26
27
28
130
The California Supreme Court’s statement that life without the
possibility of parole is to be understood “in the common and nontechnical sense
that the plain meaning of its words conveys” (People v. Bonin, 46 Cal. 3d 659,
698, 758 P.2d 1217, 250 Cal. Rptr. 687 (1988) precisely echoes the South
Carolina argument that the words “life imprisonment” were to be understood in
their “plain and ordinary meaning” that the United States Supreme Court rejected
in Simmons v. South Carolina, at 169-70. Both states adopted the same
unconstitutionally sanguine but erroneous attitude toward jurors’ abilities to
divine the actual meaning of sentencing options from unclear or vague
instructions.
679
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1
supported an inference of future dangerousness. Thus, the Eighth Amendment
2
requirement of penalty reliability was not met. Woodson v. North Carolina, 428
3
U.S. 280, 196 S. Ct. 2978, 49 L. Ed. 2944 (1976).
4
1880. The trial court’s failure properly to instruct the jury on the meaning
5
of life without the possibility of parole and its rejection of Petitioner’s
6
explanatory instruction were highly prejudicial. Moreover, in view of the
7
particular facts of this case, the issue of future dangerousness was of greater
8
concern to the jury than in other cases. The prosecutor vigorously argued in
9
closing argument that Petitioner should be sentenced to death. The defense, on
10
the other hand, struggled to convince the jury that Petitioner should be spared
11
because of mercy and sympathy. (See 217 RT 24839.) The defense emphasized
12
that life imprisonment without the possibility of parole constituted harsh
13
punishment. (See 217 RT 24836-37.) The actual meaning of the punishment was
14
a cornerstone of the defense case. Even without mitigation evidence, the jury
15
conscientiously considered the issue of punishment during four days of
16
deliberations. Given the length of deliberations, a proper instruction defining life
17
imprisonment without the possibility of parole could well have affected the
18
penalty decision rendered.
19
1881. Petitioner was unfairly denied a clear instruction that informed the
20
jury adequately and fully of the precise and accurate meaning of life without the
21
possibility of parole. The lack of clarifying instruction, as proposed by
22
Petitioner, made it reasonably possible and reasonably likely that at least one
23
juror misunderstood the actual consequences of the potential punishments set
24
forth in CALJIC No. 8.88 (1989 Revision), and voted accordingly. People v.
25
Brown, 46 Cal. 3d 432, 471, 757 P.2d 1135, 250 Cal. Rptr. 604; Chapman v.
26
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In light of the
27
length of the jury’s penalty deliberations, it cannot be said that the lack of
28
clarification on the meaning of life imprisonment without the possibility of parole
680
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1
had “no effect” on this jury’s penalty verdict. Caldwell v. Mississippi, 472 U.S.
2
at 341.
3
1882. The foregoing violations of Petitioner’s constitutional rights, taken
4
singly or in combination with the other errors alleged in the Petition, constitute
5
structural error and warrant the granting of this Petition without any
6
determination of whether the violations substantially affected or influenced the
7
jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
8
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
9
doctrine applies to this claim, the foregoing constitutional violations, singly and
10
in combination with the other errors alleged in this Petition, so infected the
11
integrity of the proceedings that the error cannot be deemed harmless. The
12
foregoing violations of Petitioner’s rights had a substantial and injurious effect
13
or influence on Petitioner’s convictions and sentences, rendering them
14
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
15
637-38.
16
CLAIM 39:
17
PETITIONER’S CONSTITUTIONAL RIGHT TO LIMIT THE
18
AGGRAVATING CIRCUMSTANCES TO SPECIFIC
19
LEGISLATIVELY-DEFINED FACTORS WAS VIOLATED
20
BY CALJIC NO. 8.84.1
21
1883. Exhaustion of the claim: This claim was fairly presented to the
22
California Supreme Court in the direct appeal. It was presented in Section XXVI
23
of the opening appeal brief.
24
1884. In support of this claim, Petitioner alleges the following facts,
25
among others to be presented after full discovery, investigation, adequate
26
funding, access to this Court’s subpoena power, and an evidentiary hearing.
27
28
1885. Those facts and allegations set forth in the petition, declarations,
claims of constitutional violations, and the accompanying exhibits are
681
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1
incorporated by reference as if fully set forth herein to avoid unnecessary
2
duplication of relevant facts.
3
1886. The trial court instructed the jury in the language of CALJIC No.
4
8.84.1 that “you must determine what the facts are from the evidence received
5
during the entire trial unless you are instructed otherwise.” (217 RT 24869.)
6
1887. The court refused the defense instruction informing the jury not to
7
consider any other facts except the list of aggravating circumstances. (217
8
RT 24789; XXX CT 8892.)
9
1888. There is no statutory basis for the mandate given the jury to
10
determine the facts under CALJIC No. 8.84.1. What the jury may consider at the
11
penalty phase is dictated by Penal Code § 190.3, as construed to meet
12
constitutional requirements. Section 190.3 sets forth specific aggravating and
13
mitigating factors which must be considered by the jury. CALJIC No. 8.84.1
14
contravenes the requirements of § 190.3.
15
1889. People v. Boyd, 38 Cal. 3d 762, 700 P.2d 782, 215 Cal. Rptr. 1
16
(1985), held that, pursuant to Penal Code § 190.3. the “prosecution’s case for
17
aggravation is limited to evidence relevant to the listed factors exclusive of factor
18
(k).” People v. Boyd, 38 Cal. 3d at 775. The directive to the jury in CALJIC No.
19
8.84.1 violated § 190.3 by permitting the jury to interpret a new guilt phase
20
evidence as factors in aggravation although the evidence failed to fit into any of
21
the specific statutory factors. For instance, under the sweeping mandate of
22
CALJIC No. 8.84.1 that the jury “must determine what the facts are from the
23
evidence received during the entire trial unless you are instructed otherwise,” the
24
jury was required to consider evidence that:
25
•
Petitioner was Hispanic, a transient, and the subject of a
26
massive manhunt, and that his prosecution attracted extensive
27
media coverage;
28
682
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1
•
Petitioner associated with drug users and other known
criminals;
2
3
•
Petitioner may have used illicit drugs;
4
•
Petitioner may have bought or sold stolen property;
5
•
Petitioner was in chains throughout trial and refused to
remove his sunglasses at trial; and,
6
7
•
Petitioner harbored Satanist beliefs, made pentagram
8
drawings, and engaged in other unusual cult-like behavior at
9
crime scenes, in jail, and in the courtroom
10
– all of which was constitutionally impermissible (Zant v. Stephens, 462 U.S.
11
862); unconstitutionally vague (People v. Sanders, 51 Cal. 3d 471, 797 P.2d 561,
12
273 Cal. Rptr. 537 (1990)); and, irrelevant with respect to the jury’s
13
determination of penalty.
14
1890. People v. Boyd, 38 Cal. 3d 762, held that nonstatutory factors in
15
aggravation cannot be considered by the jury. Boyd necessarily implies that the
16
wholesale incorporation of the guilt phase evidence into the record for the jury’s
17
consideration at the penalty phase is improper. Even without Boyd, however,
18
constitutional safeguards would preclude consideration of such evidence.
19
1891. Zant v. Stephens, 462 U.S. at 873-80, upheld Georgia penalty phase
20
jury instructions which allow the jury to consider nonstatutory aggravating
21
circumstances provided at least one statutory aggravating circumstance is found
22
to be true. In so ruling, however, the Court specifically held that a
23
“constitutionally necessary function” of statutory aggravating circumstances is to
24
“circumscribe the class of persons eligible for the death penalty.” Id. at 878.
25
Under Zant, a statute which fails “to create any ‘inherent restraint on the arbitrary
26
and capricious infliction of the death sentence,’” remains unconstitutional. Id.
27
Such a defect exists in CALJIC No. 8.84.1 by allowing the jury to consider, as in
28
this case, nonstatutory aggravating factors and to consider in its total discretion,
683
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1
as conferred by CALJIC No. 8.84.1 any or all guilt phase evidence as
2
circumstances warranting the death penalty.131
3
1892. At the very least, the trial court was obligated to reassess the balance
4
of prejudice and probative value of evidence adduced at the guilt phase before
5
placing it wholesale before the jury for its mandatory consideration at the penalty
6
phase by virtue of CALJIC No. 8.84.1. The California instruction was erroneous
7
precisely because it permitted the jury to sentence Petitioner to death even if it
8
considered the statutory aggravating circumstances to be of minimal or no
9
significance, based on other nonstatutory circumstances or evidence introduced
10
during the guilt trial. See Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct.
11
2187, 129 L. Ed. 2d 133 (1994); Stringer v. Black, 503 U.S. 222, 113 S. Ct. 2078,
12
124 L. Ed. 2d 182 (1993).
13
1893. For these reasons, instruction of the jury in the vague, unmodified
14
language of CALJIC No. 8.84.1 in this case was erroneous as a matter of
15
statutory construction and as a matter of federal constitutional law. Petitioner
16
was denied his right to due process under the Fourteenth Amendment and his
17
right to a reliable determination of penalty under the Eighth Amendment.
18
Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944
19
(1976).
20
1894. The foregoing violations of Petitioner’s constitutional rights, taken
21
singly or in combination with the other errors alleged in the Petition, constitute
22
structural error and warrant the granting of this Petition without any
23
determination of whether the violations substantially affected or influenced the
24
25
26
27
28
131
A similar conclusion was drawn by the Supreme Court of Washington
in People v. Bartholomew, 101 Wash. 2d 631, 683 P.2d 1079 (1984), which held,
as a matter of both state and federal constitutional law, that nonstatutory
aggravating circumstances cannot be given the same weight as specifically listed
statutory factors. Id. at 1089.
684
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1
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
2
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
3
doctrine applies to this claim, the foregoing constitutional violations, singly and
4
in combination with the other errors alleged in this Petition, so infected the
5
integrity of the proceedings that the error cannot be deemed harmless. The
6
foregoing violations of Petitioner’s rights had a substantial and injurious effect
7
or influence on Petitioner’s convictions and sentences, rendering them
8
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
9
637-38.
10
CLAIM 40:
11
THE DEATH SENTENCE IS DISPROPORTIONATE AND IS
12
CRUEL AND UNUSUAL PUNISHMENT BECAUSE OF
13
PETITIONER’S SERIOUS PSYCHIATRIC,
14
PSYCHOLOGICAL, NEUROCOGNITIVE,
15
NEUROLOGICAL, AND OTHER IMPAIRMENTS
16
1895. Exhaustion of the claim: This claim was fairly presented to the
17
California Supreme Court in Section XIX of the June 2004 petition for writ of
18
habeas corpus.
19
1896. In support of this claim, Petitioner alleges the following facts,
20
among others to be presented after full discovery, investigation, adequate
21
funding, access to this Court’s subpoena power, and an evidentiary hearing.
22
1897. Those facts and allegations set forth in the petition, declarations,
23
claims of constitutional violations, and the accompanying exhibits are
24
incorporated by reference as if fully set forth herein to avoid unnecessary
25
duplication of relevant facts.
26
1898. Petitioner is mentally incompetent, and was at the time of his arrest
27
and throughout his trial proceedings. His execution would therefore be in
28
contravention of rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
685
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1
Amendments guaranteeing fair trial, rights to present a defense, to counsel, to due
2
process, to a reliable determination of sentence, and to prohibiting cruel and
3
unusual punishment. Sections 3701 to 3704 also prohibit the execution of the
4
insane.
5
1899. Petitioner challenges his sentence on the grounds that the death
6
penalty is inappropriate for an individual of his mental capabilities, who suffers
7
from severe psychiatric impairments, including psychosis, disorganized thought
8
and behavior, and impaired reality testing; and, other severe psychological,
9
neurological, and cognitive deficits.
10
11
12
1900. Petitioner’s multiple impairments and incompetency render a death
sentence disproportionate and in violation of his constitutional rights.
1901. Severe mental illness, rendering an individual insane, bars execution
13
under §§ 3701 through 3704. Thus, independent state grounds prohibit a
14
disproportionate sentence.
15
1902. Petitioner’s impairments manifested when he was a young child. In
16
1970, at the age of 10, he suffered serious neurological problems, was
17
hospitalized, and found to have neurological deficits and a seizure disorder. (Ex.
18
57, Hotel Dieu Medical Records.) His functioning was and is impaired; he is
19
mentally ill, suffers a thought disorder of psychotic proportion, a severe mood
20
disorder, is cognitively impaired, and incompetent – all of which contribute to his
21
severe mental impairments and limited functioning. The psychiatric impairments
22
likely manifested by age 12.
23
1903. Atkins v. Virginia, bars execution of the mentally retarded.
24
Petitioner has asserted that his condition is long-standing, profoundly affects his
25
functioning and, therefore, is akin to an Atkins claim. The reasoning in Atkins to
26
exempt the mentally retarded from execution is based on the permanent and
27
debilitating effect of mental impairments.
28
686
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1
Cognitive and behavioral impairments . . . diminished ability to
2
understand and process information, to learn from experience, to
3
engage in logical reasoning, or to control impulses – all of which is
4
applicable to a seriously mentally ill defendant.
5
Atkins v. Virginia, 536 U.S. at 320. Moreover, the Supreme Court acknowledged
6
the deterrence effect of capital punishment is predicated on deliberate and
7
premeditated murders. Id. at 319 (quoting Enmund v. Florida, 458 U.S. 782, 102
8
S. Ct. 3368, 73 L. Ed.2d 1140 (1982)).
9
10
1904. The American Psychiatric Association’s position statement on
diminished responsibility in capital sentencing holds:
11
Defendants shall not be sentenced to death or executed if, at the time
12
of the offense, they had a severe mental disorder or disability that
13
significantly impaired their capacity (a) to appreciate the nature,
14
consequences or wrongfulness of their conduct, (b) to exercise
15
rational judgment in relation to their conduct, or (c) to conform their
16
conduct to the requirements of the law.
17
American Psychiatric Association, Diminished Responsibility in Capital
18
Sentencing (Position Statement 2004). Moreover, mental illness and retardation
19
are similar in many respects. Mentally ill individuals may have permanent
20
impairments which interfere with the normal range of functioning. They are
21
similarly situated as mentally retarded persons with respect to limited
22
functioning. Mental illness equates to mental retardation in reduced functioning
23
and lack of normalcy, unlike the situation of juvenile and adult offenders, which
24
are separate groups lacking common ground.
25
1905. Dr. Blumer has stated that Petitioner’s multiple impairments require
26
“proper care and treatment for serious, lifelong neuropsychiatric deficits because
27
[of] … debilitating effects of organic brain dysfunction.” (Ex. 31, D. Blumer,
28
M.D., dec., ¶ 15.) Dr. Blumer’s findings establish that Petitioner is permanently
687
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1
afflicted; he will not recover or regain normal functioning. Treatable in this
2
instance certainly does not mean curable. Petitioner has been ill for at least
3
thirty-five years, and probably all of his life. Dr. Watson conservatively
4
estimated that Petitioner suffers from “temporal lobe disorder and frontal lobe
5
dysfunction” and, “[he has] neurocognitive deficits related to a psychotic and/or
6
schizophrenic spectrum disorder. His functioning is impaired. He suffers …
7
from mood disorders. These conditions combine to render Petitioner severely
8
impaired.” (Ex. 42, D. Watson, Ph.D., dec., ¶¶ 19-20 (fn. omitted).)
9
1906. Petitioner was seriously impaired and insane or had reduced mental
10
state at the time of the offenses, and he was incompetent throughout the trial
11
proceedings. Given the nature of Petitioner’s debilitating and long-standing
12
mental illness, the death sentence violates his fundamental rights under the
13
Constitution. Petitioner is entitled to a hearing in which he will demonstrate the
14
nature and extent of his psychiatric and psychological, neurological, and
15
cognitive deficits, their profound effects upon his ability to function as a child
16
and adult; that the impairments are of long duration and negatively impact his
17
behavior, and that there is presently a national and regional consensus against the
18
execution of the mentally retarded. See Atkins v. Virginia, 536 U.S. 304. Persons
19
exhibiting the same kinds of cognitive impairments and disabilities as described
20
by the High Court in Atkins should, as a matter of equal protection, fall within the
21
ambit of this ruling. Petitioner exhibits symptoms and impairments similar or
22
identical to those described in Atkins and under equal protection principles; his
23
execution is also prohibited under the Eighth and Fourteenth Amendments.
24
Reversal of his death sentence is required.
25
1907. The foregoing violations of Petitioner’s constitutional rights, taken
26
singly or in combination with the other errors alleged in the Petition, constitute
27
structural error and warrant the granting of this Petition without any
28
determination of whether the violations substantially affected or influenced the
688
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1
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
2
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
3
doctrine applies to this claim, the foregoing constitutional violations, singly and
4
in combination with the other errors alleged in this Petition, so infected the
5
integrity of the proceedings that the error cannot be deemed harmless. The
6
foregoing violations of Petitioner’s rights had a substantial and injurious effect
7
or influence on Petitioner’s convictions and sentences, rendering them
8
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
9
637-38.
10
CLAIM 41:
11
CALIFORNIA’S DEATH PENALTY STATUTE, AS
12
INTERPRETED BY THE CALIFORNIA SUPREME COURT AND
13
APPLIED TO PETITIONER, IS CONSTITUTIONALLY
14
DEFECTIVE
15
1908. Exhaustion of the claim: Petitioner presented subsections of this
16
17
claim to the California Supreme Court.
1909. Many features of California’s capital sentencing scheme violate the
18
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
19
Constitution. The California Supreme Court has rejected challenges to many of
20
these features, but the challenges retain their federal constitutional validity since
21
they have not been rejected by the United States Supreme Court. Petitioner
22
presents these arguments in an abbreviated fashion sufficient to alert the Court to
23
the nature of each claim and its federal constitutional basis. Individually and
24
collectively, these various constitutional defects require that Petitioner’s sentence
25
of death be set aside.
26
1910. In support of these subclaims, Petitioner alleges the following facts,
27
among others to be presented after full discovery, investigation, adequate
28
funding, access to this Court’s subpoena power, and an evidentiary hearing.
689
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1911. Those facts and allegations set forth in the petition, declarations,
1
2
claims of constitutional violations, and the accompanying exhibits are
3
incorporated by reference as if fully set forth herein to avoid unnecessary
4
duplication of relevant facts.
5
1912. The following violations of Petitioner’s constitutional rights, taken
6
singly or in combination with the other errors alleged in the Petition, constitute
7
structural error and warrant the granting of this Petition without any
8
determination of whether the violations substantially affected or influenced the
9
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
10
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
11
doctrine applies to this claim, the foregoing constitutional violations, singly and
12
in combination with the other errors alleged in this Petition, so infected the
13
integrity of the proceedings that the error cannot be deemed harmless. The
14
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
15
influence on Petitioner’s convictions and sentences, rendering them
16
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
17
637-38.
18
A.
The California Death Penalty Statute Fails to Narrow the Class of
19
Murders Eligible for the Death Penalty.
20
1913. Exhaustion of the claim: This claim was fairly presented to the
21
California Supreme Court in the direct appeal. It was presented as Claim XXXIII
22
of the Opening Brief. It was also fairly presented to the California Supreme
23
Court as Claim XX in the June 2004 petition for a writ of habeas corpus.
24
1914. Petitioner’s convictions and sentence are unconstitutional because
25
the California death penalty scheme does not sufficiently narrow the class of
26
persons eligible for the death penalty. The California capital statutory scheme is
27
overly broad and inclusive because it contains so many special circumstances that
28
it fails to perform the constitutionally required narrowing function. The statutory
690
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1
scheme, therefore, violates the Eighth Amendment prohibition against cruel and
2
unusual punishments and the Fifth and Fourteenth Amendment requirement of
3
due process of law.
4
1915. Under the United States Supreme Court decisions, inter alia, in
5
effect at the time of Petitioner’s trial, a state statutory scheme must provide
6
rational, meaningful and objective criteria for narrowing the class of person’s
7
eligible for the death penalty from the larger group of murder defendants who are
8
not. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235
9
(1983) (“To pass constitutional muster, a capital sentencing scheme must
10
‘genuinely narrow the class of persons eligible for the death penalty’”); Furman
11
v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (a death
12
penalty law violates the Eighth Amendment unless it provides a meaningful basis
13
for distinguishing the few cases where the death penalty is imposed from the
14
many in which it is not); California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77
15
L. Ed. 2d 1171 (1983) (a capital murder statute must take into account the
16
concepts that death is different be in accord with Eighth Amendment).
17
1916. The narrowing must occur at the definitional stage and is required to
18
ensure that those chosen for the death penalty will be among the worst offenders,
19
those whose murders are “particularly serious or for which the death penalty is
20
peculiarly appropriate . . . .” Gregg v. Georgia, 428 U.S. 153, 222, 96 S. Ct.
21
2909, 49 L. Ed. 2d 859 (1976) (White, J., conc. op.); Zant v. Stephens, 462 U.S.
22
at 878; Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d
23
255 (1990); Lowenfeld v. Phelps, 484 U.S. 231, 244-45, 108 S. Ct. 546, 98 L. Ed.
24
2d 568 (1988); see also Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988)
25
(blanket eligibility for death sentence may violate the Fifth and Fourteenth
26
Amendment due process guarantees as well as the Eighth Amendment).
27
1917. The Furman principle has resulted in a statutory narrowing
28
requirement with two components: (1) the death-eligible class of convicted
691
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1
murderers must be small enough that a substantial percentage are in fact
2
sentenced to death; and (2) the states, through their legislatures, must decide the
3
composition of the death-eligible class. (Ex. 39, Steven Shatz dec., ¶ 5.). In
4
other words, Furman is satisfied if, and only if, the legislature, by defining
5
categories of murderers eligible for the most severe penalty, genuinely narrows
6
the death-eligible class. (Id.)
7
1918. California’s death penalty statute, however, enacted by initiative, has
8
ignored the Eighth Amendment by multiplying the “few” into the many. Because
9
of the breadth of California’s definition of first-degree murder, nearly all murders
10
committed in California can be capitally charged. At the time of the homicide in
11
Petitioner’s case, there were 26 “special” circumstances in existence under
12
California Penal Code § 190.2, effectively embracing every likely type of murder.
13
There were only eight fact situations possible where a defendant could have been
14
guilty of first degree murder and actually not be death-eligible. (Ex. 39, Steven
15
Shatz dec., ¶ 5.)
16
1919. It appears the proponents of Proposition 7, the initiative enacted into
17
law as § 190.2, contemplated an unconstitutionally over-broad purpose in
18
drafting and advocating such expansive special circumstances. In their
19
“Argument in Favor of Proposition 7” in the 1978 Voter’s Pamphlet, they
20
described certain murders not covered by the then-existing death penalty statute,
21
and then stated:
22
And, if you were to be killed on your way home tonight simply
23
because the murderer was high on dope and wanted the thrill, the
24
criminal would not receive the death penalty. Why, Because the
25
Legislature’s weak death penalty law does not apply to every
26
murderer. Proposition 7 would.
27
(1978 Voter’s Pamphlet, p. 34 (emphasis added).)
28
692
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1920. In California, death eligibility is the rule, not the exception.
1
2
Professor Steven Shatz determined that from 1988-1992, a four-year period
3
encompassing this case, at least 84 percent of first-degree murderers convicted in
4
California were death-eligible. (Ex. 39, Steven Shatz dec., ¶¶ 17 & 28.) Through
5
his careful statistical studies, Shatz has concluded that California’s statutorily
6
defined death-eligible class is so large, and the imposition of the death penalty on
7
members of the class so infrequent, that the statute performs no narrowing of the
8
death-eligible class as mandated by Furman. In fact, it creates a greater risk of
9
arbitrary death sentences than the pre-Furman death penalty schemes. (Id., ¶ 33.)
10
1921. With the exception of the “heinous, atrocious or cruel” special
11
circumstance already held unconstitutional, People v. Superior Court (Engert), 31
12
Cal. 3d 797, 800-02, 647 P.2d 76, 183 Cal. Rptr. 800 (1982), any of the 26
13
individual special circumstances, when viewed in isolation, may have been
14
sufficiently objective and narrow to satisfy Furman. However, given the number
15
and breadth of the special circumstances, the scheme as a whole does not
16
genuinely narrow the death-eligible class.
17
B.
The California Death Penalty Scheme Gives Prosecutors Unfettered
18
Discretion
19
1922. Exhaustion of the claim: This claim was fairly presented to the
20
California Supreme Court in the direct appeal. It was presented as Claim XXXII
21
of the Opening Brief.
22
1923. Under Furman, sentencing procedures may not create a substantial
23
risk that the death penalty will be inflicted in an arbitrary or capricious manner.
24
Furman does not require that all sentencing discretion be eliminated, only that it
25
be directed and limited so that the death penalty will be imposed in a more
26
consistent and rational manner, and so that there will a meaningful basis for
27
distinguishing the cases in which it is imposed from those in which it is not. See
28
Lockett v. Ohio, 438 U.S. 576, 600-01, 98 S. Ct. 2957, 57 L. Ed. 2d 973 (1978).
693
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1924. In California, however, each individual prosecutor has sole authority
2
and complete discretion to determine whether a penalty hearing will be held to
3
determine if the death penalty will be imposed. No sentencing hearing is required
4
after conviction for murder with special circumstances, nor is the prosecutor
5
directed as to when he may seek the death penalty. People v. Williams, 30 Cal.
6
3d 470, 477, 637 P.2d 1029, 179 Cal. Rptr. 443 (1981); Ramos v. Superior Court,
7
32 Cal. 3d 26, 29, 648 P.2d 589, 184 Cal. Rptr. 622 (1982). Under California’s
8
scheme, it is the prosecutor who narrows the class of similarly charged
9
defendants through his decision to waive death or to demand a sentencing hearing
10
following conviction. The prosecutor has unlimited discretion, unaided by
11
legislatively created directives, in the performance of this indispensable part of
12
the sentencing function.132
13
1925. Just like the “arbitrary and wanton” jury discretion condemned in
14
Woodson, 428 U.S. at 303, such unprincipled, broad discretion is contrary to the
15
principled decision-making mandated by Furman, 408 U.S. at 239-40. Under
16
these principles, the complete discretion given to the prosecutor by California’s
17
death penalty statute to seek, or not to seek, a sentence of death violates the
18
Eighth Amendment’s ban against cruel and unusual punishment.
19
20
21
22
23
24
25
26
27
28
132
Petitioner acknowledges that in Gregg v. Georgia, the opinions joined
in by Justices Stewart, Powell, Stevens, White, Rehnquist, and Chief Justice
Burger, suggested that the requirements imposed upon a sentencing body are not
applicable to decisions by prosecutors. Gregg v. Georgia, 428 U.S. at 199,
224-26;
However, any such expression in Gregg does not apply to the California
death penalty law because the statutes in Georgia, Florida and Texas, approved
by the Supreme Court in Gregg and its companion cases, properly serve the
function of narrowing the class of death-eligible defendants. The California
statutory scheme fails in that essential function, leaving the task of narrowing to
prosecutorial discretion.
694
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1
C.
County-by-County Variation in the Application of the Death Penalty
2
Violates Petitioner’s Right to Equal Protection
3
1926. The California Attorney General is the chief law officer of the state,
4
with supervisory power over every District Attorney. Cal. Const. art. V, § 13;
5
Cal. Govt. Code § 12550. The California Attorney General has the power, as
6
well as the duty, to assure uniformity in implementing a fundamental right (the
7
fundamental right to life, as well as the rights to due process and freedom from
8
cruel and unusual punishment). However, the Attorney General has instead
9
allowed charging decisions to be made in a standardless and inconsistent fashion
10
from county to county, without any assurance that the rudimentary requirements
11
of equal treatment and fundamental fairness are satisfied.
12
1927. Implementation of the death penalty in California violates the Equal
13
Protection Clause because the decision whether to seek the death penalty against
14
a potentially death eligible defendant (i.e. one where special circumstances have
15
been charged) is left solely to the discretion of the prosecutor in the county where
16
the crime was committed. In California, the fifty-eight counties, through the
17
respective prosecutors’s offices, make their own rules, within the broad
18
parameters of §§ 190.2 and 190.25, as to who is charged with capital murder and
19
who is not. There are no effective restraints or controls on prosecutorial
20
discretion in California. Each county may and does impose its own standards (or
21
none at all), for deciding who will face death.
22
1928. Of the California counties that have five or more death verdicts in a
23
twenty-year period, the rate of death verdicts has ranged from sixty-two death
24
verdicts per thousand homicides down to only four. The lack of general
25
consistency constitutes a violation of equal protection of the laws and deprives
26
Petitioner of his legitimate expectation that he will be deprived of his life or
27
liberty only to the extent and in the manner provided for by law. See Bush v.
28
695
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1
Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000); Hicks v. Oklahoma,
2
447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980).
3
D.
California Fails to Provide Inter-Case Proportionality Review
4
1929. California’s death penalty scheme does not require a trial or
5
appellate court to undertake a comparison between Petitioner’s case and other
6
similar cases regarding the relative proportionality of the death sentence imposed.
7
See People v. Fierro, 1 Cal. 4th 173, 253, 821 P.2d 1302, 3 Cal. Rptr. 2d 426
8
(1991). This omission violates the Eighth Amendment’s requirement that the
9
death penalty not be imposed arbitrarily or capriciously. Gregg v. Georgia, 428
10
U.S. at 189.
11
1930. The Supreme Court has recognized that such a provision “guards
12
against a situation comparable to that present in Furman [v. Georgia, 408 U.S.
13
238]” in which Georgia’s capital scheme was struck down because it gave juries
14
unfettered discretion to impose the death penalty without proportionality review.
15
Gregg v. Georgia, 428 U.S. at 198. As a result, states such as Georgia and
16
Florida have adopted procedures to allow for intercase proportionality review.
17
See e.g. Ga. Stat. Ann., § 27-2537(c); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct.
18
2960, 49 L. Ed. 2d 913 (1976). California’s lack of such a review mechanism
19
violates his rights under the Eighth and Fourteenth Amendments of the
20
Constitution.
21
E.
California’s Scheme Violates Due Process By Allowing the Jury to
22
Repeatedly Consider the Same Evidence in Aggravation
23
1931. Exhaustion of the claim: This claim was fairly presented to the
24
California Supreme Court in the direct appeal. It was presented in Section XXIX
25
of the Opening Brief.
26
27
1932. The California death penalty scheme improperly allows the jury to
repeatedly consider the same facts throughout the guilt and penalty phases.
28
696
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1
1933. First, the scheme allows for the “triple use” of the same facts
2
underlying the felony conduct; (1) to support the conviction of first degree
3
murder on a felony murder theory, (2) to support the finding of the felony as a
4
special circumstance and (3) the use of the felony as an aggravating factor which
5
warrants the imposition of the death penalty. See People v. Marshall, 50 Cal. 3d
6
907, 790 P.2d 676, 269 Cal. Rptr. 269 (1990). The Supreme Court in Lowenfield
7
v. Phelps, 484 U.S. 231, 246 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), rejected a
8
similar challenged to Louisiana’s death penalty scheme, reasoning that the
9
“legislature may more broadly define capital offenses and provide for narrowing
10
by jury findings of aggravating circumstances at the penalty phase.” Id. at 246.
11
However, California’s scheme has a far greater number of felonies that make a
12
defendant both eligible for first degree murder and death eligible than did
13
Louisiana. As such, the scheme under which Petitioner was convicted does not
14
provide for the narrowing of death-eligible murders by the jury that the Court
15
found in Lowenfield and, thus, violates Petitioner’s rights under the Eighth and
16
Fourteenth Amendments.
17
1934. Second, under § 190.3(a), the jury may consider “the circumstances
18
of the crime of which the defendant was convicted in the present proceedings and
19
the existence of any special circumstances found to be true.” No limitations are
20
placed on the jury’s use of these “circumstances.” The California Supreme Court
21
has acknowledged the potential for double-counting the same felony conduct as
22
both a special circumstance and an aggravating factor under § 190.3(a). People v.
23
Melton, 44 Cal. 3d at 768-69. The use of felony-based special circumstances as
24
independent factors for imposing a death sentence violated Petitioner’s right to a
25
reliable determination of penalty in violation of the Eighth and Fourteenth
26
Amendments. Caldwell v. Mississippi, 472 U.S. at 341.
27
1935. Third, § 190.3(b) (presence of any criminal activity involving
28
attempted use of force or violence) and § 190.3(c) (presence of any prior felony
697
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1
conviction) allow the jury to double count the same violent conduct as separate
2
aggravating factors. Thus, double-counting the aggravating circumstances
3
prevented the jury from a fair and proper consideration of the evidence and a
4
reliable determination of penalty. Caldwell v. Mississippi, 472 U.S. at 341.
5
F.
The Penalty Phase Instructions Deprived Petitioner of His
6
Constitutional Right to an Individualized and Reliable Sentencing
7
Decision Because They Failed to Designate Factors as “Aggravating”
8
or “Mitigating”
9
1936. CALJIC 8.85, which was given to Petitioner’s jury, presents a list of
10
factors to be considered in the penalty phase determination, but it does not
11
indicate which factors are aggravating and which are mitigating. Under
12
California law, certain factors133 may be given only mitigating weight and may
13
not be used in aggravation. People v. Hardy, 2 Cal. 4th 86, 207, 825 P.2d 781, 5
14
Cal. Rptr. 2d 796 (1992); People v. Hamilton, 48 Cal. 3d 1142, 1184, 7744 P.2d
15
730, 259 Cal. Rptr. 701 (1989); People v. Davenport, 41 Cal. 3d 247, 288-90,
16
710 P.2d 861, 221 Cal. Rptr. 794 (1985).
17
1937. The failure of the trial court to define these terms permitted the
18
prosecutor to improperly convert mitigating evidence into aggravating evidence.
19
Here, the prosecutor argued that because there were people Petitioner could have
20
21
22
23
24
25
26
27
28
133
(d) (whether offense was committed under influence of extreme mental
or emotional disturbance), (e) (whether victim participated in or consented to the
defendant’s homicidal conduct), (f) (whether offense was committed under
circumstances which the defendant reasonably believed to be a moral justification
or extenuation for his conduct), (g) (whether the defendant acted under extreme
duress or under the substantial domination of another person), (h) (whether the
defendant lacked the capacity to appreciate the criminality of his conduct or
conform his conduct to the requirements of law was impaired as a result of a
mental disease or defect or the effects of intoxication) and (k) (any other
circumstance which extenuates the gravity of the crime...or any other aspect of
the defendant’s character or record) .
698
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1
killed but did not was not mitigating, it was aggravating. The prosecutor argued
2
that,
3
The defendant might say, well, that was mitigation in that he spared
4
their life, but I submit to you that perhaps – perhaps not; perhaps he
5
enjoyed more doing what he did and not killing them at that
6
particular time. ¶ Perhaps that was more than gratifying in some of
7
those cases.
8
(217 RT 24820.) Turning Petitioner’s factor (k) mitigating evidence into a
9
non-statutory dangerousness factor violated Petitioner’s Eighth and Fourteenth
10
Amendment rights to a reliable and individualized sentencing decision. Zant v.
11
Stephens, 462 U.S. at 878-79 n.17; People v. Boyd, 38 Cal. 3d 762, 772-76, 700
12
P.2d 782, 215 Cal. Rptr. 1 (1985).
13
G.
The Jury Instructions Failed to Require a Reasonable Doubt
14
Determination of Aggravating Factors
15
1938. Exhaustion of the claim: This claim was fairly presented to the
16
California Supreme Court in the direct appeal. It was presented in Section
17
XXVIII of the Opening Brief.
18
1939. Although § 190.3 requires the trier of fact in a capital case to find
19
that at least one aggravating factor exists and that such aggravating factor (or
20
factors) outweigh any and all mitigating factors, as a prerequisite to the
21
imposition of the death penalty, California does not require that a reasonable
22
doubt standard be used during any part of the penalty phase of a defendant’s trial
23
except as to proof of prior criminality relied upon as an aggravating circumstance
24
– and even in that context, the required finding need not be unanimous. The
25
jurors in Petitioner’s case were not instructed that there was any burden of proof
26
at the penalty phase with respect to the aggravating factors or the penalty
27
determination itself.
28
699
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1940. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
2
L. Ed. 2d 435 (2000), the United States Supreme Court held that a state may not
3
impose a sentence greater than that authorized by the jury’s simple verdict of
4
guilt unless the facts supporting an increased sentence (other than a prior
5
conviction) were also submitted to the jury and proved beyond a reasonable
6
doubt. Id. at 478. In Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.
7
2d 556 (2002), the Supreme Court held that Arizona’s death penalty scheme,
8
under which a judge sitting without a jury makes factual findings necessary to
9
impose the death penalty, violated the defendant’s constitutional right to have the
10
jury determine, unanimously and beyond a reasonable doubt, any fact that might
11
increase the maximum punishment. While the primary problem presented by
12
Arizona’s capital sentencing scheme was that a judge, sitting without a jury,
13
made the critical findings, the court reiterated its holding in Apprendi, that when
14
the state bases an increased statutory punishment upon additional findings, such
15
findings must be made by a unanimous jury beyond a reasonable doubt.
16
1941. The death penalty scheme under which Petitioner was sentenced
17
violates the federal constitution because Petitioner’s jury was not asked to
18
determine, unanimously and beyond a reasonable doubt, the existence of at least
19
one aggravating factor, and whether the aggravating factors outweighed the
20
mitigating factors. These two sets of determinations are critical and a death
21
sentence is not authorized by California law without them, despite the fact that a
22
jury has previously determined a special circumstance to be true.
23
1942. In addition, Ring dictates habeas relief with respect to Petitioner’s
24
death sentence because his jury was not asked to determine, unanimously and
25
beyond a reasonable doubt, whether each of the unadjudicated acts introduced in
26
aggravation was proven. In light of the crucial importance of such findings, the
27
trial court erred in failing to instruct the jury regarding the elements of the alleged
28
other criminal acts. Absent such instructions, the jury could not be expected to
700
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1
decide, unanimously and beyond a reasonable doubt, whether the elements of the
2
alleged other crimes were proven.
1943. Besides the Fifth and Sixth Amendment violations under Apprendi
3
4
and Ring, the lack of a reasonable doubt standard at penalty also deprived
5
Petitioner of his Eighth Amendment right to a reliable penalty determination.
6
Woodson v. North Carolina, 428 U.S. at 305; see also California v. Ramos, 463
7
U.S. at 998-99; Caldwell v. Mississippi, 472 U.S. at 341. There can be no
8
explanation why the most important and sensitive fact-finding process in all of
9
the law – a penalty phase jury’s choice between life and death – could or should
10
be the only fact-finding process in all of the law completely exempted from a
11
burden of proof.
12
1944. The absence of the appropriate burden of proof prevented the jury
13
from rendering a reliable determination of penalty. The error was structural and
14
interfered with the jury’s function, thus “affecting the framework within which
15
the trial proceeds” and rendered the trial fundamentally unfair. Arizona v.
16
Fulminante, 499 U.S. at 310.
17
H.
The Jury Instructions Failed to Require Unanimity on Aggravating
18
Factors
19
1945. Exhaustion of the claim: This claim was fairly presented to the
20
California Supreme Court in the direct appeal. It was presented in Section XXX
21
of the Opening Brief.
22
1946. As a prerequisite to the imposition of the death penalty in California,
23
§ 190.3 requires the trier of fact to find that at least one aggravating factor exists
24
and that such aggravating factor (or factors) outweigh any and all mitigating
25
factors. According to California’s former principal sentencing instruction, “an
26
aggravating factor is any fact, condition or event attending the commission of a
27
crime which increases its guilt or enormity, or adds to its injurious consequences
28
701
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1
which is above and beyond the elements of the crime itself.” CALJIC No. 8.88
2
(emphasis added); see CALCRIM 763.
3
1947. Thus, before the process of weighing aggravating factors against
4
mitigating factors can begin, the presence of one or more aggravating factors
5
must be found by the jury. And before the decision whether or not to impose
6
death can be made, the jury must find that aggravating factors outweigh
7
mitigating factors. These factual determinations are essential prerequisites to
8
death-eligibility, but do not mean that death is the inevitable verdict; the jury can
9
still reject death as the appropriate punishment notwithstanding these factual
10
11
findings.
1948. As previously stated, the Supreme Court made clear in Ring that the
12
mere availability of either life or death as sentencing options does not relieve
13
states of the responsibility for ensuring that jurors unanimously find, beyond a
14
reasonable doubt, any facts increasing the authorized punishment. “If a State
15
makes an increase in a defendant’s authorized punishment contingent on the
16
finding of a fact, that fact – no matter how the State labels it – must be found by a
17
jury beyond a reasonable doubt.” Ring, 536 U.S. at 600-01. The issue of Ring’s
18
applicability hinges on whether, as a practical matter, the sentencer must make
19
additional fact-findings during the penalty phase before determining whether or
20
not the death penalty can be imposed.
21
1949. A California jury must first decide whether any aggravating
22
circumstances, as defined by § 190.3 and the standard penalty phase instructions,
23
exist in the case before it. Only after this initial factual determination has been
24
made can the jury move on to weigh those factors against the proffered
25
mitigation. The presence of at least one aggravating factor is the functional
26
equivalent of an element of capital murder in California and requires the same
27
Sixth Amendment protection. See Ring, 536 U.S. at 600-01.
28
702
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1
1950. Thus, in summary, two critical sets of factual determinations must be
2
made by California jurors before a death sentence may be imposed: the existence
3
of at least one factor in aggravation, and whether the aggravation outweighs the
4
mitigation. The earlier determination of the existence of a special circumstance
5
merely permits the penalty phase to occur and does not dispense with these
6
additional, crucial determinations that capital jurors are required to make.
7
Because no death sentence is permitted under California law without these two
8
critical determinations, Ring makes clear that the jury must make its findings
9
unanimously and beyond a reasonable doubt.
10
1951. No greater interest is ever at stake than in the penalty phase of a
11
capital case. Monge v. California, 524 U.S. 721, 732, 118 S. Ct. 2246, 141 L. Ed.
12
2d 615 (1998) (“the death penalty is unique in its severity and its finality”). As
13
the Supreme Court stated in Ring,:
14
Capital defendants, no less than non-capital defendants, we
15
conclude, are entitled to a jury determination of any fact on which
16
the legislature conditions an increase in their maximum punishment .
17
. . . The right to trial by jury guaranteed by the Sixth Amendment
18
would be senselessly diminished if it encompassed the fact-finding
19
necessary to increase a defendant’s sentence by two years, but not
20
the fact-finding necessary to put him to death.
21
536 U.S. at 588, 606.
22
1952. Petitioner was deprived of his rights to due process and trial by jury
23
because of the constitutionally inadequate sentencing procedure employed at his
24
trial.
25
I.
The Trial Court Failed to Instruct on the Presumption of a Life
26
Sentence
27
1953. In non-capital cases, the presumption of innocence acts as a core
28
constitutional and adjudicative value to protect the accused, and is a basic
703
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1
component of a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691,
2
48 L. Ed. 2d 126 (1976). Paradoxically, at the penalty phase of a capital trial,
3
where the stakes are life or death, the jury is not instructed as to the presumption
4
of life, the penalty phase correlates of the presumption of innocence. Note, The
5
Presumption of Life: A Starting Point For A Due Process Analysis Of Capital
6
Sentencing, 94 Yale L.J. 351 (1984); cf. Delo v. Lashley, 507 U.S. 272, 113 S. Ct.
7
1222, 122 L. Ed. 2d 620 (1993).
1954. Here, the failure to instruct the jury that the law establishes a
8
9
10
presumption of life, correlative to the presumption of innocence at the guilt
phase, violated Petitioner’s federal constitutional rights.
11
12
13
J.
The Jury Instructions Failed to Require Written Findings of
14
Aggravating Factors
15
1955. Exhaustion of the claim: This claim was fairly presented to the
16
California Supreme Court in the direct appeal. It was presented as Claim XXX in
17
the Opening Brief.
18
1956. The California capital sentencing scheme under which Petitioner
19
was tried was constitutionally flawed by failing to require explicit findings by the
20
jury on which aggravating factors it relied in reaching its death verdict. Each
21
juror could have relied on one of many factors in the twelve capital murders
22
which potentially constituted proper aggravation yet still have differed on the
23
factors on which other jurors may have relied. As a result, there was no actual
24
agreement by the jury why Petitioner should be condemned to death. The jury
25
should have been required to state the findings on which it relied in its sentencing
26
determination. See Hamelin v. Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680,
27
115 L. Ed. 2d 836 (1991).
28
704
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1
1957. The failure to require written or other specific findings by the jury
2
on the aggravating factors selected by it deprived Petitioner of his federal due
3
process and Eighth Amendment rights to meaningful appellate review.
4
California v. Brown, 479 U.S. 538, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987);
5
Gregg, 428 U.S. at 195. In Mills v. Maryland , 486 U.S. 367, 108 S. Ct. 1860,
6
100 L. Ed. 2d 384 (1988), for example, the written-finding requirement in
7
Maryland death cases enabled the Supreme Court not only to identify the error
8
that had been committed under the prior state procedure, but to gauge the
9
beneficial effect of the newly implemented state procedure. Id. at 383 n.15.
10
Further, most state statutory schemes, moreover, require such findings.134
11
1958. The failure to require explicit findings here precludes meaningful
12
appellate review and violates the Fifth, Sixth, Eighth, and Fourteenth
13
Amendments.
14
K.
The Trial Court Failed to Delete Inapplicable Mitigating Factors from
15
the Language of CALJIC 8.85
16
1959. The jury was instructed in the standard language of CALJIC 8.85
17
which lists the entire list of statutory aggravating and mitigating factors.
18
(XXX CT 8881-83.) However, several of the mitigating factors were not
19
20
21
22
23
24
25
26
27
28
134
See, e.g., Ala. Code, §13A-5-47(d); Ariz. Rev. Stat., § 13-703(D)
(1995); Conn. Gen. Stat., § 53a-46a(e); 11 Del. Code, § 4209(d)(3); Fla. Stat.,
§ 921.141(3); Idaho Code, § 19-2515(e); Ind. Code Ann., § 35-38-1-3(3); Md.
Code Ann., Art. 27, §§ 413(i), (j); Miss. Code Ann., § 99-19-101(3); Rev. Stat.
Mo., § 565.030(4); Mont. Code Ann., § 46-18-306; Neb. Rev. Stat., § 29-2522;
N.J. Stat., § 2C:11-3(c)(3); N.C. Gen. Stat., § 15A-2000(c); 21 Okla. Stat., §
701.11; 42 Pa. Stat., § 9711(F)(1); Tenn. Code Ann., § 39-13- 204(g)(2)(A)(1);
Wyo. Stat., § 6-2-102(d)(ii); see also 21 U.S.C., § 848(k).
705
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1
applicable to Petitioner’s case.135 The mitigating factors not present in
2
Petitioner’s case were not deleted from the instruction.
3
1960. The trial court’s failure to delete inapplicable mitigating factors
4
rendered this instruction constitutionally deficient. The presence of irrelevant
5
mitigating factors suggested that their absence could be considered aggravation.
6
The wording of the instruction furthers this misperception because factors (e), (f),
7
(g), and (j) are prefaced with the term “whether or not.” This wording created the
8
inescapable inference that the factors could either be mitigating (if they applied)
9
or aggravating. This interpretation was virtually inevitable because similar
10
alternative wording was used in factors (b) and (c), which were indeed “bivalent”
11
factors: aggravating if present, mitigating if absent. The language of the
12
instruction thus greatly increased the likelihood that the jurors would mistakenly
13
think that mitigating factors could be used as factors in aggravation. Such use by
14
the jury violated federal decisional law on capital sentencing requirements. Mills
15
v. Maryland, 486 U.S. at 373-75.
16
1961. The presence of irrelevant mitigating factors in the jury instructions
17
also diminished the weight of Petitioner’s mitigating evidence by inviting the
18
jurors to compare it to the entire realm of possible mitigating factors, even though
19
some factors are rarely ever present (e.g. victim participation in the homicidal
20
act) and virtually no case will have every factor. Thus it likely that the jurors
21
sentenced Petitioner to death because there was “only” two or three mitigating
22
factors present, rather than weighing the factors that were present against the
23
aggravating factors as the law requires. The standard language of CALJIC 8.85
24
therefore deprived Petitioner of his right to an individualized and non-arbitrary
25
26
27
28
135
Factors (e) (victim participation or consent offense); (f) (moral
justification); (g) (defendant’s extreme duress or substantial domination of
another person); and, (j) (defendant was an accomplice and participation was
relatively minor), did not specifically apply to Petitioner’s case.
706
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1
sentencing determination. See Proffitt v. Florida, 428 U.S. 242, 260, 96 S. Ct.
2
2960, 49 L. Ed. 2d 913 (1976); Woodson v. North Carolina, 428 U.S. at 304.
3
L.
CALJIC’S Requirement that Mitigating Evidence Be “Extreme”
4
Unconstitutionally Limited the Jury’s Consideration of Petitioner’s
5
Mitigating Evidence
6
1962. CALJIC 8.85(d) states that the jury may consider “whether or not
7
the offense was committed while the defendant was under the influence of
8
extreme mental or emotional disturbance.” The requirement that the mitigating
9
evidence as “not relevant” if it fell below a certain weight or degree of severity.
10
11
1963. The “extreme” qualifier included in the instructions deprived
12
Petitioner of his right to have the capital sentencing jury consider and give effect
13
to all relevant mitigating evidence. Boyde, 494 U.S. at 377-78; Penry, 492 U.S.
14
at 328 (“full consideration of evidence that mitigates against the death penalty is
15
essential” [emphasis in original]). By providing that the jurors could consider
16
only whether the homicide occurred under the influence of mental or emotional
17
disturbance only if the disturbance was “extreme,” the jurors were implicitly
18
instructed that they were required to disregard a mental or emotional disturbance
19
of a lesser severity.
20
1964. Where instructed that they could consider a mental or emotional
21
disturbance only if it was “extreme,” after finding the mental or emotional
22
disturbance not to be “extreme,” reasonable jurors would understand the
23
invitation to consider “any other circumstance” in mitigation as constituting
24
factors other than mental or emotional disturbance that had already been deemed
25
insufficient under law as given by the court. Smith v. McCormick, 914 F.2d
26
1153, 1165-66 (9th Cir. 1990) (Montana scheme unconstitutional because it
27
permitted sentencer “to refuse to consider . . . mitigating evidence simply because
28
it fell below a certain weight.”); Kenley v. Armontrout, 937 F.2d 1298, 1309 (8th
707
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1
Cir. 1991) (defendant need not be insane for mental problems to “be . . .
2
considered mitigating evidence”).
3
M.
The Language of CALJIC No. 8.88 Prevents Proper Weighing of
4
Aggravating and Mitigating Evidence
5
1965. Petitioner’s jury was instructed in the 1989 revised language of
6
CALJIC No. 8.88 which, in pertinent part, allows the jury to impose a death if
7
each person is “persuaded that the aggravating circumstances are so substantial in
8
comparison with the mitigating circumstances that it warrants death instead of
9
life without parole.” (See XXX CT 8885.)
1966. The language of this instruction was constitutionally defective
10
11
because it failed to accurately describe the proper process for weighing
12
aggravating and mitigating circumstances. It contradicted the language of 190.3
13
by indicating that a death judgment could be returned if the aggravating
14
circumstances were merely “substantial” in comparison to mitigating
15
circumstances, thus permitting the jury to impose death even if the mitigating
16
circumstances ultimately outweighed the “substantial” aggravating
17
circumstances. It also failed to inform the jury that a single mitigating
18
circumstance, by itself, could be sufficient to outweigh any aggravating
19
circumstances. These defects deprived Petitioner of the individualized sentencing
20
decision to which he was entitled under the Eighth and Fourteenth Amendments.
21
N.
The Penalty Phase Instructions Were Unconstitutionally Vague and
22
Incapable of Being Understood by Jurors
23
1967. Prior to penalty phase deliberations in this case, the trial court issued
24
pattern instructions to the jury that tracked the language of § 190.3, factors (a)
25
through (k), concerning the factors that the jury was to take into consideration in
26
determining Petitioner’s sentence. Taken as a whole, these instructions were not
27
readily understandable to the lay jurors and failed to adequately guide the jury in
28
rendering a reliable, individualized and non-arbitrary penalty determination.
708
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1
1968. California capital sentencing jurors, virtually without exception, fail
2
to understand many of the concepts at the core of the Eighth Amendment
3
restrictions on the death penalty and, as a result, skew the process in favor of a
4
death verdict.
5
1969. The jury instructions based on § 190.3 (a) were particularly
6
confusing. Factor (a), which directs the jury to consider the “circumstances of
7
the crime,” is unconstitutionally vague, not in an abstract sense (see Tuilaepa v.
8
California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994)), but
9
because it fails to identify any circumstances or types of circumstances that the
10
jury may consider in order to distinguish the offense from other offenses not
11
subject to the death penalty or to make clear that there may be mitigating aspects
12
to the circumstances of the crime. Furthermore, factor (a) allows the sentencer to
13
consider the presence of any special circumstance findings. The sentencer’s
14
discretion is therefore not properly channeled because all capital cases have at
15
least one special circumstance and a jury cannot know how to distinguish a death-
16
worthy case from one that is not death-worthy. For these reasons, the broad
17
expanse of factor (a) did not constitutionally guide Petitioner’s jury in
18
determining whether death was the appropriate punishment.
19
1970. Further, the instructions given to Petitioner’s jury did not properly
20
explain that they could take their emotions, including pity and sympathy, into
21
account when considering Petitioner’s mitigating evidence, as was his right under
22
section190.3(k). As a result, the jury did not give full consideration to the
23
mitigation. The common mistake of interpreting factor (k) as a non-statutory
24
dangerousness factor violated Petitioner’s federal constitutional rights.
25
1971. To the extent that any of the errors alleged in the present claim
26
deprived Petitioner of the benefits of state law in which he had a liberty interest,
27
he was deprived of equal protection and due process of law under the federal
28
Constitutions. Hicks v. Oklahoma, 447 U.S. at 346.
709
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1
O.
The California Sentencing Scheme Violates Equal Protection Because
2
by Denying Procedural Safeguards to Capital Defendants That Are
3
Afforded to Non-capital Defendants
4
1972. The Equal Protection Clause of the Fourteenth Amendment to the
5
United States Constitution guarantees all persons that they will not be denied
6
their fundamental rights and bans arbitrary and disparate treatment of citizens
7
when fundamental interests are at stake. Bush v. Gore, 531 U.S. 98, 104-105
8
(2000)). In addition to protecting the exercise of federal constitutional rights, the
9
Equal Protection Clause also prevents violations of rights guaranteed to the
10
people by state governments. Charfauros v. Board of Elections, 249 F.3d 941,
11
951 (9th Cir. 2001).
12
1973. The United States Supreme Court has repeatedly said that a greater
13
degree of reliability is required when death is to be imposed and that courts must
14
be vigilant to ensure procedural fairness and accuracy in fact-finding. See, e.g.,
15
Monge v. California, 524 U.S. 728, 731-732 (1998). Despite this directive,
16
California’s death penalty scheme provides significantly fewer procedural
17
protections for persons facing a death sentence than are afforded persons charged
18
with non-capital crimes. This differential treatment violates the constitutional
19
guarantee of equal protection of the laws.
20
1974. Under the Equal Protection Clause, a state may not create a
21
classification scheme which affects a fundamental interest without showing that it
22
has a compelling interest which justifies the classification and that the
23
distinctions drawn are necessary to further that purpose Skinner v. Oklahoma,
24
316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); People v. Olivas 17
25
Cal. 3d 236, 251 (1976).
26
1975. The interest at stake is Ramirez’s right to life. The “right to life” is
27
not merely a fundamental right. It occupies the most “prominent place in the due
28
process clause . . . . [T]he right to life is the basis of all other rights . . . . It
710
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1
encompasses, in a sense, ‘the right to have rights,’ Trop v. Dulles, 356 U.S. 86,
2
102 (1958).” Given the paramount nature of the interest at stake here, the
3
scrutiny of the disparities under challenge must be as strict as possible, and any
4
purported justification by the state for the differential treatment must be
5
extraordinarily compelling.
6
1976. In Ring v. Arizona, 536 U.S. at 589, the Supreme Court stated that
7
“capital defendants, no less than non-capital defendants, … are entitled to” the
8
procedural protections necessary to assure the reliability of and accurate
9
fact-finding in sentencing proceedings. “The right[s] … guaranteed by the
10
[Fifth,] Sixth[, and Eighth] Amendment[s]” – as well as the “right to life” –
11
“would be senselessly diminished if [they] encompassed the factfinding
12
necessary to increase a defendant’s sentence by two years, but not the factfinding
13
necessary to put him to death.”
14
1977. Yet that is not the case. An enhancing allegation in a California
15
non-capital case is a finding that must, by law, be unanimous. (See, e.g., §§
16
1158, 1158a.) No such unanimity is required before a juror can find that a
17
particular fact is aggravating and militates in favor of death. See, e.g., People v.
18
Prieto, 30 Cal. 4th 226, 265 (2003).
19
1978. When a California judge in a non-capital case is considering which
20
sentence is appropriate: “The reasons for selecting the upper or lower term shall
21
be stated orally on the record, and shall include a concise statement of the
22
ultimate facts which the court deemed to constitute circumstances in aggravation
23
or mitigation justifying the term selected.” California Rules of Court, Rule
24
4.42(e). No such requirement exists in a capital case. See, e.g., People v. Fauber,
25
2 Cal. 4th 792, 859, 831 P.2d 249, 9 Cal. Rptr. 2d 24 (1992).
26
1979. In a non-capital case, furthermore: “Circumstances in aggravation
27
and mitigation shall be established by a preponderance of the evidence.” Rule
28
4.42(b). There is no standard of proof in the penalty phase of a capital case. See,
711
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1
e.g., People v. Hawthorne, 4 Cal. 4th 43, 79, 841 P.2d 118, 14 Cal. Rptr. 2d 133
2
(1992)
1980. In non-capital cases, defendants are entitled to disparate-sentence
3
4
review. Cal. Pen. Code § 1170(d). Those sentenced to death are not. See, e.g.,
5
People v. Crittenden, 9 Cal. 4th 83, 157, 885 P.2d 887, 36 Cal. Rptr. 2d 474
6
(1994).
1981. The disparity in treatment described above violates the Equal
7
8
Protection Clauses of the Fifth and Fourteenth Amendments. The foregoing
9
violations of Petitioner’s constitutional rights, taken singly or in combination
10
with the other errors alleged in the Petition, constitute structural error and warrant
11
the granting of this Petition without any determination of whether the violations
12
substantially affected or influenced the jury’s verdict. See Brecht v. Abrahamson,
13
507 U.S. 619, 637-38 & n.9, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
1982. However, even assuming the harmless error doctrine applies to this
14
15
claim, the foregoing constitutional violations, singly and in combination with the
16
other errors alleged in this Petition, so infected the integrity of the proceedings
17
that the error cannot be deemed harmless. The foregoing violations of Petitioner’s
18
rights had a substantial and injurious effect or influence on Petitioner’s
19
convictions and sentences, rendering them fundamentally unfair and resulting in a
20
miscarriage of justice. See id. at 622, 637-38.
21
P.
Carrying out Petitioner’s Death Sentence after Excessive Pre-
22
execution Delay Would Be Cruel and Unusual Punishment
23
1983. Exhaustion of the claim: This claim was fairly presented to the
24
California Supreme Court in Section XXII of the June 2004 petition for writ of
25
habeas corpus.
26
1984. Petitioner’s death sentence, confinement on death row, and any
27
eventual carrying out of the death sentence violates the Fifth, Sixth, Eighth, and
28
Fourteenth Amendments in that Petitioner was sentenced to death over fourteen
712
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1
years ago, and is waiting for resolution of his appellate process due to
2
circumstances substantially beyond his control.
3
1985. International standards have established that subjecting a person to
4
the agony and degradation of extended years on death row is inhumane. Pratt
5
and Morgan v. Attorney General of Jamaica, 3 SLR 995, 2AC 1, 4 All ER. 769
6
(1993) (en banc); Catholic Comm’n for Justice and Peace in Zimbabwe v.
7
Attorney General, No. S.C. 73 (Zimb. 1993) (Supreme Court of Zimbabwe
8
commuted the death sentences of four men due to the prolonged delay in
9
conjunction with the harsh and degrading conditions under which the prisoners
10
were confined); and see Soering v. United Kingdom, 11 Eur. Hum. Rgts. Rep.
11
439 (1989) (European Court of Human Rights refused to extradite a man detained
12
in England and wanted in Virginia on capital murder charges, partly because of
13
the extremely long duration of stay on death row, coupled with severe conditions
14
and “mounting anguish”).
15
1986. In Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed .2d
16
304 (1995) the defendant argued that his seventeen years on death row violated
17
the Eighth Amendment. Although the Supreme Court denied certiorari, Justice
18
Stevens wrote a memorandum to stress the importance of the claim due to the far-
19
reaching consequences. Justice Stevens noted that under Gregg v. Georgia, the
20
death penalty was upheld against Eighth Amendment attacks because it “might
21
serve ‘two principal social purposes: retribution and deterrence.’” However,
22
Justice Stevens pointed out that those goals are not served when prisoners have
23
spent many years on death row. Lackey v. Texas, 514 U.S. 1045; see also In re
24
Medley, 134 U.S. 160, 172, 10 S. Ct. 384, 33 L. Ed. 835 (1890); Ceja v. Stewart,
25
134 F.3d 1368 (9th Cir. 1998) (Fletcher, J., dis. op.).
26
1987. Some reviewing courts which have considered the issue of excessive
27
confinement on death row have rejected the claim because the delays were caused
28
by the condemned inmate’s pursuit of collateral avenues of relief. See, e.g.,
713
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1
McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995), aff’d en banc, McKenzie v. Day,
2
57 F.3d 1493. In Petitioner’s case, however, the excessive confinement on death
3
row has been through no fault of his own. In fact, the loss of and failure to
4
prepare critical court records resulted in numerous delays in record correction.
5
Full and fair review of the trial court proceedings necessitates a complete record
6
(Chessman v. Teets, 354 U.S. 156, 77 S. Ct. 1127, 1 L. Ed. 2d 1253 (1957); Cal.
7
Pen. Code § 190.7; see Cal. R. Ct., Rule 39.5) and effective appellate
8
representation. People v. Barton, 21 Cal. 3d 513, 518, 579 P.2d 1043, 146 Cal.
9
Rptr. 727 (1978); People v. Gaston, 20 Cal. 3d 476, 573 P.2d 423, 143 Cal. Rptr.
10
205 (1978); People v. Silva, 20 Cal. 3d 489, 573 P.2d 430, 143 Cal. Rptr. 212
11
(1978); In re Smith, 3 Cal. 3d 192, 474 P.2d 969, 90 Cal. Rptr. 1 (1970).
12
California’s procedure for review of death judgments does not permit a
13
condemned person to choose whether he or she wishes to appeal his or her
14
sentence in the first place, as the appeal is automatic. Cal. Pen. Code § 1239(b);
15
People v. Sheldon, 7 Cal. 4th 1136, 1139, 875 P.2d 83, 31 Cal. Rptr. 368 (1994)
16
(“no authority to allow [the] defendant to waive the [automatic] appeal”); People
17
v. Stanworth, 71 Cal. 2d 820, 833-34, 457 P.2d 889, 80 Cal. Rptr. 49 (1969).
18
1988. The delays in Petitioner’s automatic appeal are attributable to the
19
State and the criminal justice system that failed in its obligation to preserve and
20
prepare the records of trial proceedings in Petitioner’s case. The delays have
21
nothing to do with the exercise of any discretion on Petitioner’s part. The delays
22
have been caused by the negligence and action by the State. Lackey v. Texas, 514
23
U.S. 1045.
24
1989. Many long years of life on death row must be considered with
25
respect to an Eighth Amendment analysis. See People v. Anderson, 6 Cal. 3d
26
628, 649, 493 P.2d 880, 100 Cal. Rptr. 152 (1972) (“The cruelty of capital
27
punishment lies not only in the execution itself and the pain incident thereto, but
28
also in the dehumanizing effects of the lengthy imprisonment prior to execution
714
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1
during which the judicial and administrative procedures essential to due process
2
of law are carried out. Penologists and medical experts agree that the process of
3
carrying out a verdict of death is often so degrading and brutalizing to the human
4
spirit as to constitute psychological torture.”); see also Furman v. Georgia, 408
5
U.S. at 288-89 (“Mental pain is an inseparable part of our practice of punishing
6
criminals by death, for the prospect of pending execution exacts a frightful toll
7
during the inevitable long wait between the imposition of sentence and the actual
8
infliction of death”); Suffolk County District Attorney v. Watson, 411 N.E.2d
9
1274, 1287 381 Mass. 648 (Mass. 1980) (“The mental agony is, simply beyond
10
11
question, a horror.”).
1990. A death sentence “must serve some legitimate penological end that
12
could not be otherwise accomplished.” Ceja v. Stewart, 134 F.3d 1368, 1373. In
13
the absence of such a legitimate end, death violates the Eighth and Fourteenth
14
Amendments.
15
1991. The delay caused by the appellate process itself is also beyond
16
Petitioner’s control. California’s procedure for review of death judgments does
17
not permit a condemned person to choose whether he or she wishes to appeal his
18
or her sentence in the first place, as the appeal is automatic. Cal. Pen. Code §
19
1239(b); People v. Sheldon, 7 Cal. 4th 1136, 1139, 875 P.2d 83, 31 Cal. Rptr. 368
20
(1994) (“no authority to allow [the] defendant to waive the [automatic] appeal”);
21
People v. Stanworth, 71 Cal. 2d 820, 833-34, 457 P.2d 889, 80 Cal. Rptr. 49
22
(1969).
23
1992. Confinement under a sentence of death subjects a condemned inmate
24
to extraordinary psychological duress, as well as the extreme physical and social
25
restrictions that inhere in life on death row. In People v. Anderson, the California
26
Supreme Court recognized as much:
27
The cruelty of capital punishment lies not only in the execution itself
28
and the pain incident thereto, but also in the dehumanizing effects of
715
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1
the lengthy imprisonment prior to execution during which the
2
judicial and administrative procedures essential to due process of
3
law are carried out. Penologists and medical experts agree that the
4
process of carrying out a verdict of death is often so degrading and
5
brutalizing to the human spirit as to constitute psychological torture.
6
6 Cal. 3d 628, 649 (1972)
1993. The penological justification for carrying out an execution
7
8
disappears when an extraordinary period of time has elapsed between the
9
conviction and the proposed execution date. When the death penalty “ceases
10
realistically to further [legitimate penological] purposes, . . . its imposition would
11
then be the pointless and needless extinction of life with only marginal
12
contributions to any discernable social or public purposes. A penalty with such
13
negligible returns to the State would be patently excessive and cruel and unusual
14
punishment violative of the Eighth Amendment.” Furman v. Georgia, 408 U.S. at
15
312 (White, J., concurring).); see also Gregg v. Georgia, 428 U.S. at 183 (“The
16
sanction imposed cannot be so totally without penological justification that it
17
results in the gratuitous infliction of suffering.”).
18
Q.
Imposition of the Death Penalty Violates Petitioner’s Rights under the
19
Eighth Amendment and International Law
20
1994. Exhaustion of the claim: This claim was fairly presented to the
21
California Supreme Court in the direct appeal. It was presented in Section
22
XXXVII of the Opening Brief.
23
1995. In support of these subclaims, Petitioner alleges the following facts,
24
among others to be presented after full discovery, investigation, adequate
25
funding, access to this Court’s subpoena power, and an evidentiary hearing.
26
Those facts and allegations set forth in the petition, declarations, claims of
27
constitutional violations, and the accompanying exhibits are incorporated by
28
716
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1
reference as if fully set forth herein to avoid unnecessary duplication of relevant
2
facts.
3
1996. The following violations of Petitioner’s constitutional rights, taken
4
singly or in combination with the other errors alleged in the Petition, constitute
5
structural error and warrant the granting of this Petition without any
6
determination of whether the violations substantially affected or influenced the
7
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
8
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
9
doctrine applies to this claim, the foregoing constitutional violations, singly and
10
in combination with the other errors alleged in this Petition, so infected the
11
integrity of the proceedings that the error cannot be deemed harmless. The
12
foregoing violations of Petitioner’s rights had a substantial and injurious effect or
13
influence on Petitioner’s convictions and sentences, rendering them
14
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
15
637-38.
16
1997. The United States’s use of the death penalty violates widely-
17
accepted international norms of humanity and decency. The United States stands
18
as one of a small number of nations that regularly uses the death penalty as a
19
form of punishment. . . . The United States stands with China, Iran, Nigeria,
20
Saudi Arabia, and South Africa as one of the few nations which has executed a
21
large number of persons. . . . Of 180 nations, only ten, including the United
22
States, account for an overwhelming percentage of state ordered executions.
23
Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in
24
the United States Contradicts International Thinking, 16 Crim. and Civ.
25
Confinement 339, 366 (1990). According to Amnesty International, 137
26
countries are either abolitionist by law or in practice, i.e. they have not executed
27
anyone in 10 years and are believed to have policies o an established practice of
28
not carrying out death sentences. “The Death Penalty: List of Abolitionist and
717
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1
Retentionist Countries” (July 21, 2008), on Amnesty International website
2
www.amnesty.org.
3
1998. Due process is not a static concept, and neither is the Eighth
4
Amendment. Roper v. Simmons, 543 U.S. 551, 560-61, 125 S. Ct. 1183, 161 L.
5
Ed. 2d 1 (2005); Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L.
6
Ed. 2d 335 (2002). The Eighth Amendment in particular draws its meaning from
7
the evolving standards of decency that mark the progress of a maturing society.
8
Id. Further, inasmuch as the law of nations now recognizes the impropriety of
9
capital punishment as regular punishment, it is unconstitutional in this country
10
inasmuch as international law is a part of our law. Roper, 543 U.S. at 575
11
(Supreme Court historically “has referred to the laws of other countries and to
12
international authorities as instructive for its interpretation of the Eighth
13
Amendment’s prohibition of ‘cruel and unusual punishments’”).
14
1999. International law has clearly established a norm against the infliction
15
of the death penalty as a regular form of punishment. This norm is codified in
16
such international agreements as the Universal Declaration of Human Rights, the
17
International Covenant on Civil and Political Rights (ICCPR), Article 14, and the
18
American Declaration of the Rights and Duties of Man (American Declaration),
19
Article 26. Infliction of the death penalty on Petitioner in light of the errors
20
identified in this Petition would constitute arbitrary deprivation of life in
21
violation of customary international law and Article 6, § 1, of the ICCPR, and
22
Article 1 of the American Declaration.
23
2000. In addition, Petitioner’s status as a mentally disordered individual
24
provides a separate basis for the prohibition of the death penalty under
25
international law. See The Question of the Death Penalty, Hum. Rts. Comm., 61
26
Sess., Resolution 2002/104 (2002) E/CN.4/2002/L.104; United Nations,
27
Extrajudicial, Summary or Arbitrary Executions: Report by the Special
28
Rapporteur, E/CN.4/2000/3, Para. 97, Jan. 25, 2000.)
718
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2001. The United States is bound by customary international law, as
1
2
informed by such instruments as the ICCPR and the American Declaration. The
3
purpose of these treaties is to bind nations to an international commitment to
4
further protections of human rights. The United States must honor its role in the
5
international community by recognizing the human rights standards in our own
6
country to which we hold other countries accountable.
2002. Should all appeals within the United States justice system fail,
7
8
Petitioner intends to bring his claim to the Inter-American Commission on the
9
basis that the violations appellant has suffered are violations of the American
10
Declaration of the Rights and Duties of Man.
11
R.
12
Execution by Lethal Injection Is Cruel and Unusual Punishment
2003. Exhaustion of the Claim: this Claim Was Fairly Presented to the
13
California Supreme Court in the direct appeal. It was presented in Section
14
XXXVI of the Opening Brief, and in Sections XXIII and XXIV of the June 2004
15
petition for writ of habeas corpus.
16
1.
Execution by Lethal Injection is Unconstitutional
17
2004. An execution procedure that involves “the unnecessary and wanton
18
infliction of pain . . . ,” violates the Eighth Amendment. Gregg, 428 U.S. at 173.
19
The Eighth Amendment’s prohibition is not static, but is responsive to “evolving
20
standards of decency,” and “contemporary values concerning the infliction of a
21
challenged sanction.” Id. Furthermore, the Fourteenth Amendment guarantees
22
that no person may be deprived of life, liberty, or property without due process of
23
law. A violation of procedural due process requires a showing of (1) a
24
constitutionally protected interest in life, liberty, or property; (2) governmental
25
deprivation of that right; and (3) constitutional inadequacy of tChalleghe
26
procedures effecting the deprivation. Bank of Jackson County v. Cherry, 980 F.2d
27
1362, 1366 (11th Cir. 1993). A prisoner sentenced to death has a constitutionally
28
protected interest in life not extinguished by the conviction and death sentence.
719
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1
Ohio Adult Parole Authority v. Woodward, 523 U.S. 272, 281, 118 S. Ct. 1244,
2
140 L. Ed. 2d 387 (1998).
3
2005. In Morales v. Tilton, the Honorable Jeremy Fogel, District Judge of
4
the Northern District of California held that California’s current protocol raised
5
substantial questions as to whether Petitioner will suffer excessive pain when he
6
is executed. Morales v. Tilton, Nos. C 06 219 JF RS & C 06 926 JF RS, 415 F.
7
Supp. 2d 1037 (N.D. Cal. 2007); see Taylor v. Crawford, 457 F.3d 902 (8th Cir.
8
2006) (remanding cruel and unusual lethal injection claim, brought pursuant to §
9
1983, to the district court with regard to newly revised protocol); Anderson v.
10
Evans, 2006 WL 83093 (W.D.Okla. Jan. 11, 2006) (denying motion to dismiss
11
and holding that death row inmate properly stated claim that lethal injection
12
procedure, nearly identical to California’s, violated the Eighth Amendment); see
13
also Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006)
14
(discussing the viability of lethal injection claims).
15
2006. In addition, a state court judge has found that the California
16
Department of Corrections and Rehabilitations (“CDCR”) violated the
17
Administration Procedures Act when it adopted the lethal injection protocol,
18
officially known as San Quentin Operational Procedure No. 0-770 (“OP 0-770).
19
Morales v.CDCR, CV061436, Marin County Superior Court, Order After
20
Hearing (October 31, 2007). Thus, California is currently enjoined from carrying
21
out any execution by lethal injection according to 0-770. Id. As a result of the
22
Morales litigation in state and federal court, California does not currently have in
23
place a lethal injection procedure.
24
2007. If and when California enacts a revised protocol for the
25
administration of lethal injection, the method must adhere to “standards
26
established under the direction of the Department of Corrections.” Cal. Gov’t
27
Code § 3604(a). Unless and until such standards have been properly formulated
28
and implemented, imposition of the lethal injection method would deprive
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1
appellant of his right to due process of law, threaten him with the infliction of
2
cruel and unusual punishment, and cannot be imposed as in violation of explicit
3
state law and the Eighth and Fourteenth Amendment.
4
2008. Because California has not yet enacted a protocol for executing the
5
condemned,136 this claim is not ripe. Petitioner raises it to preserve his rights to
6
federal habeas review.
7
2.
8
2009. Petitioner’s rights under the First, Fourth, Fifth, Sixth, Eighth, and
Execution by Lethal Gas Is Unconstitutional
9
Fourteenth Amendments will be violated because punishment of death may be
10
inflicted by administering a lethal gas in violation of Petitioner’s constitutional
11
rights as guaranteed by the Eighth and Fourteenth Amendments.
12
2010. Justice Stevens, in a dissent joined by Justice Blackmun, “concludes
13
that execution by cyanide gas is both cruel and unusual, and that it violates
14
contemporary standards of human decency.” Gomez v. U.S. District Court, 503
15
U.S. 653, 658, 112 S. Ct. 1652, 118 L. Ed. 2d 293 (1992).
16
2011. The Supreme Court has condemned as violative of the Eighth
17
Amendment all punishment that inflicts torture or a lingering death (In re
18
Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890)) and
19
punishment that involve the unnecessary and wanton infliction of pain. Hudson
20
v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).
21
2012. The Supreme Court has not confined the prohibition embodied in the
22
Eighth Amendment to “barbarous” methods that were generally outlawed in the
23
18th century, but instead has interpreted the Amendment in a flexible and
24
25
26
27
28
136
Because there is no protocol in place, the Supreme Court’s decision in
Baze v. Rees, 128 S. Ct. 1520, 1531 170 L. Ed. 2d 420 (2008) which held that
Kentucky’s particular lethal injection protocol did not pose a “substantial risk of
serious harm,” does not foreclose this claim.
721
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dynamic manner. Stanford v. Kentucky, 492 U.S. 361, 371, 73 S. Ct. 1077, 97 L.
2
Ed. 1522 (1953).
2013. Use of lethal gas constitutes a barbaric means of execution that
3
4
inflicts unnecessarily cruel and wanton pain and suffering on those subjected to
5
it. Petitioner’s execution by lethal gas pursuant to his death sentence under the
6
laws of the State of California would constitute cruel and unusual punishment in
7
violation of Petitioner’s Eighth Amendment rights.
2014. Administration of a lethal gas was adopted as a means of execution
8
9
10
in California in 1937, replacing death by hanging. The lethal gas used is
hydrogen cyanide.
2015. As administered in the State of California, execution by lethal gas
11
12
constitutes torture. Death occurs as a result of asphyxiation. A person subjected
13
to the administration of hydrogen cyanide gas desperately gasps for air and
14
chokes as the gas is inhaled. A person forced to breathe hydrogen cyanide gas
15
does not immediately lose consciousness or die, but suffers a lingering, torturous
16
death.
17
18
19
2016. Witness accounts of lethal gas executions proves that this barbaric
method of execution inflicts unnecessary and extreme pain.
2017. Death by lethal gas is brutal, agonizing and cruel. It is also unusual
20
given the infrequency of its use and the virtual unanimous abandonment of it as a
21
method of execution. Thompson v. Oklahoma, 487 U.S. 815, 822, 108 S. Ct.
22
2687, 101 L. Ed. 2d 702 (1988).
23
24
25
2018. The overwhelming majority of states with death penalty statutes
have abandoned or rejected the use of lethal gas as a method of execution.
2019. In fact, use of the gas chamber is so aberrational that it must be
26
considered incompatible with the evolving standards of decency that mark the
27
progress of a maturing society.
28
722
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2020. Petitioner’s execution by lethal gas pursuant to his sentence of death
2
would constitute cruel and unusual punishment in violation of Petitioner’s Eighth
3
Amendment rights.
4
S.
California’s System of Unified Appellate and Postconviction Review is
5
Unconstitutional
6
2021. Petitioner has a statutory duty and a constitutional right to appeal his
7
convictions and death sentence. People v. Sheldon, 7 Cal. 4th at 1139. In a
8
criminal case, the defendant’s right to assistance of counsel derives from the
9
Sixth and Fourteenth Amendments to the Constitution of the United States.
10
Where an indigent defendant has a statutory right to appeal, he or she has a
11
constitutional right, under the due process and equal protection of the law
12
provisions of the Fourteenth Amendment, to court-appointed counsel. In re
13
Smith, 3 Cal. 3d 192, 474 P.2d 969, 90 Cal. Rptr. 1 (1970); Evitts v. Lucey, 469
14
U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985), Smith v. Robbins, 528 U.S.
15
259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
16
2022. The California Supreme Court requires that ineffective assistance of
17
counsel claims – including claims of ineffective assistance on appeal – be filed in
18
a habeas petition. People v. Tello, 15 Cal. 4th 264, 266-67, 933 P.2d 1134, 62
19
Cal. Rptr. 2d 437 (1997). Generally, in a capital case the habeas petition must be
20
filed simultaneously with the appeal to be presumptively timely. The habeas
21
petition is presumptively timely if filed within 180 days of the due date of the
22
reply brief. The Court appears to maintain that there is no actual due date for the
23
filing of a habeas petition. Yet, at least in practice, the petition is “due” within
24
180 days of the reply because a timeliness default may apply if the petition is
25
filed after the 180 days. A petitioner who files an untimely petition risks losing
26
his claims to relief, and, to put it starkly, his life.
27
2023. Ineffective assistance of appellate counsel claims, however, do not
28
arise and are not discoverable until after the Court has decided the appeal. Thus,
723
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there is no appropriate time under the California scheme of capital case review to
2
raise claims of ineffective assistance of appellate counsel. As a result, the
3
California scheme of capital case review violates the Fourth, Fifth, Sixth, Eighth,
4
and Fourteenth Amendments (due process and the equal protection clauses) of the
5
federal Constitution.
6
T.
The Trial Court Violated Petitioner’s Constitutional Rights When it
7
Failed to Instruct the Jury on the Meaning of Life Without Parole
8
2024. The trial court instructed the jury, in part, that,
9
It is the law of this state that the penalty for a defendant found
10
guilty of murder of the first degree shall be death or confinement in
11
the state prison for life without possibility of parole in any case in
12
which the special circumstance[s] alleged in this case [have] been
13
specially found to be true.
14
(XXX CT 8879 (CALJIC 89.84.) However, it failed to explain significant
15
language in that instruction: the meaning of “life without the possibility of
16
parole.” The court should have instructed the jury that Petitioner will remain in
17
prison for the rest of his life and will not be paroled at any time.137
18
2025. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed.
19
2d 178 (2001), holds that, where future dangerousness is at issue in a capital
20
sentencing, due process requires that the jury be informed that a life sentence
21
carries no possibility of parole. Id. at 51.
22
2026. The jury in Shafer was told by defense counsel in closing argument
23
that if they elected to impose a life sentence, Shafer would “die in prison” after
24
“spending his natural life there.” Shafer, 532 U.S. at 52. Furthermore, the Shafer
25
jury was instructed that “life imprisonment means until the death of the
26
defendant.” Id. Nevertheless, the Supreme Court held that neither of these was a
27
28
137
Counsel’s failure to request this instruction was ineffective assistance.
724
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1
substitute for an instruction that informed the jury a defendant sentenced to life
2
imprisonment would not be eligible for any type of parole or early release
3
program. Id. at 53. Petitioner’s jury was never informed about this fact.
2027. The rationale behind Shafer is that, without such an instruction, the
4
5
“jury is likely to speculate unnecessarily on the possibility of early release, and
6
impose a sentence of death based upon fear rather than reason.” Id. at 53-54
7
(internal quotations omitted). This rationale is based on the fact that
8
displacement of ‘the longstanding practice of parole availability’
9
remains a relatively recent development, and ‘common sense tells us
10
that many jurors might not know whether a life sentence carries with
11
it the possibility of parole.’
12
Shafer, 532 U.S. at 52 (citing Simmons v. South Carolina, 512 U.S. 154, 177-78,
13
114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) (O’Connor, J.)).
2028. A substantial number of death qualified jurors (almost 25%)
14
15
erroneously believe that life without parole will allow the parole or judicial
16
system to release the defendant in less than ten years due to overcrowding and
17
over 75% believe the literal language of life without parole. See CACJ Forum
18
Vol. 21, No. 2, pp. 42-45 (1994); see also Haney, Sontag and Costanzo, Deciding
19
to Take a Life: Capital Juries Sentencting Instructions, and the Jurisprudence of
20
Death, 50 Journal of Social Sciences, No. 2 (Summer 1994).
2029. The trial court’s failure to inform the jury of all the relevant
21
22
information deprived Petitioner of his constitutional rights under the Fifth, Sixth,
23
Eighth and Fourteenth Amendments to the United States Constitution.
24
U.
The Capital Sentencing Scheme Violated the Fifth, Sixth, Eighth, and
25
Fourteenth Amendments by Permitting Multiple Use of a Single
26
Felony as the Basis for a First Degree Murder Finding, as a Capital-
27
Eligibility Factor, and as a Narrowing Factor in Sentencing
28
725
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2030. Exhaustion of the claim: This claim was fairly presented to the
2
California Supreme Court in the direct appeal. It was presented in Section XXXI
3
of the Opening Brief.
4
2031. The California death penalty statute in effect at the time of
5
Petitioner’s trial was unconstitutional by allowing the jury to make multiple use
6
of a single underlying felony. Death-selection was virtually automatic and
7
mandatory as well as unfair by permitting a capricious infliction of punishment
8
under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Proffitt v. Florida,
9
428 U.S. 242; Eddings v. Oklahoma, 455 U.S. at 112.
10
2032. The state court has rejected these claims previously. In People v.
11
Sanchez, 12 Cal. 4th 1, 906 P.2d 1129, 47 Cal. Rptr. 2d 843 (1995), the court
12
held that the statute properly narrows the class of death-eligible murders.
13
However, Sanchez’s reliance on Tuilaepa v. California was misplaced, thus
14
rendering its opinion unsound and in need of reexamination, because Tuilaepa
15
did not rule on the question of the constitutionality of the narrowing factors. See
16
People v. Adcox, 47 Cal. 3d 207, 272, 763 P.2d 906, 253 Cal. Rptr. 55 (1988).
17
Moreover, in Adcox, the court relied on Lowenfeld v. Phelps, without
18
appropriately considering that the California capital sentencing scheme differs
19
significantly from the Louisiana scheme approved in Lowenfeld.138
20
2033. Unlike the procedure approved by the Supreme Court in Lowenfeld,
21
in California, a single felony, such as burglary charged in Petitioner’s case, was
22
utilized three times by the jury. Having determined initially the facts underlying
23
24
25
26
27
28
138
In Louisiana, the legislature has determined by statute which
defendants are death-eligible, and the capital jury applies the narrowing factors to
determine appropriateness of the death penalty. Lowenfeld v. Phelps, 484 U.S. at
246. In California, in contrast, the same jury in this case (1) determined guilt, (2)
determined the existence of death eligibility factors (special circumstances) and
(3) applied the narrowing factors in the penalty trial.
726
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1
a felony at guilt trial, the jury was then mandated to make a finding as to the
2
alleged special circumstance involving the same felony and then, on finding the
3
truth of the special circumstance, weigh the predicate felony as evidence in
4
aggravation. Based on the prosecution’s closing argument and the lack of any
5
clarifying jury instructions, multiple use of a single felony inevitably made death
6
eligibility and narrowing virtually automatic. See Claim 37, subpart C, supra.
7
The use of this process in Petitioner’s case precluded a fair and reliable
8
determination of appropriate punishment in violation of his Fifth, Sixth, Eighth,
9
and Fourteenth Amendment rights. Caldwell v. Mississippi, 472 U.S. at 341;
10
Mills v. Maryland, 486 U.S. at 376-77; Johnson v. Mississippi, 486 U.S. at 584-
11
85.
12
V.
The Trial Court Erred by Ordering Determinate Sentences to Be
13
Served Subsequent to Imposition of Death in Violation of Petitioner’s
14
Rights under the Eighth and Fourteenth Amendments
15
2034. Exhaustion of the claim: This claim was fairly presented to the
16
California Supreme Court in the direct appeal. It was presented in Section
17
XXXV of the Opening Brief.
18
2035. On November 7, 1989, Petitioner was sentenced to a total
19
determinate term of fifty-nine years and four months on counts 4, 14, 15, 16, 17,
20
18, 21, 22, 25, 26, 27, 36, and 37. He was sentenced to death on counts 2, 5, 8, 9,
21
11, 13, 20, 24, 29, 30, 32, and 40. (XXXI CT 9076-78.) The trial court explicitly
22
ordered the determinate sentence of fifty-nine years and four months to be served
23
after imposition of the death judgment.
24
As soon as all appeals have become final, the court orders the
25
warden and the Department of Corrections not to permit the
26
defendant to complete the determinate sentence part of this sentence
27
prior to imposing the death penalty in this case. ¶ I don’t believe
28
that order is necessary. I think the Department of Corrections and
727
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the Warden of the State of California State Prisons know what their
2
duties are, but if there is any doubt in your mind, I hope that takes
3
care of it.
4
5
(219 RT 24951-52.)
2036. The prosecution indicated that the determinate sentence should be
6
stayed pending imposition of the death sentence. (219 RT 24952.) The court
7
rejected the prosecution’s request. (Id. at 24953.)
8
2037. The trial court modified the sentence nunc pro tunc on November
9
15, 1989, and ordered as follows: “The sentences on the noncapital counts are
10
ordered to be consecutive to, and to be served subsequent to, and only upon
11
completion of, the death sentences enumerated above : . . .” (XXXI CT 9074.)
12
2038. The trial court erred in ordering the determinate sentence to be
13
served subsequent to the death sentence. The trial court imposed a death sentence
14
and ordered that the determinate sentence be served subsequent to the death
15
sentence. The trial court thus violated the principles under Penal Code § 654
16
prohibiting multiple punishment.
17
2039. When a greater sentence is imposed upon a defendant, the lesser
18
sentence must be stayed pursuant to the bar against multiple punishment under
19
§ 654. In People v. Price, 1 Cal. 4th 324, 821 P.2d 610, 3 Cal. Rptr. 2d 106
20
(1991), the court held that the defendant was required to serve the sentence
21
imposed in a separate, noncapital murder only in the event his death sentence was
22
set aside. Id. at 492. In People v. Thompson, 7 Cal. App. 4th 1966, 10 Cal. Rptr.
23
2d 15 (1992), the court held that, where the trial court had the discretion to
24
impose the greater punishment of life imprisonment without the possibility of
25
parole or 25-years-to-life, the trial court was required to impose only one
26
punishment and stay the other punishment under§ 654.
27
28
2040. Under Penal Code § 669, Petitioner was entitled to be sentenced to
serve the determinate sentence first. Section 669 states, in part, that “[w]henever
728
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1
a person committed to prison on a life sentence which is ordered to run
2
consecutive to any determinate term of imprisonment . . . the determinate term of
3
imprisonment shall be served first . . . .” In People v. Grimble, 116 Cal. App. 3d
4
678, 172 Cal. Rptr. 362 (1981), the court held that the determinate term must be
5
served prior to the life term:
6
We construe Penal Code § 669 to mean that whenever a person is
7
sentenced to prison on a life sentence and any other term of
8
imprisonment for a felony conviction, and the sentences are to run
9
consecutively, the sentence must provide that the determinate term
10
of imprisonment shall be served first and the life sentence shall be
11
consecutive to the determinate term, and not vice versa.
12
Id. at 684-85.
13
2041. Although the death sentence imposed here was not a life term in the
14
ordinary sense, it was analogous to an indeterminate sentence under Penal Code
15
§ 1168. See, e.g., People v. Hardy, 73 Cal. App. 4th 1429, 1433-34, 87 Cal. Rptr.
16
2d 279 (1999) (a doubled sentence of life imprisonment without the possibility of
17
parole is consistent with § 669).) The sentence thus was the functional equivalent
18
of a life sentence in that Petitioner was sentenced to spend the rest of his life in
19
prison. The trial court thus erred in ruling that the death sentence must be carried
20
out before the determinate sentence of 59 years and 4 months could be served.
21
Both the intent and reasoning of § 669 preclude such a sentence. People v.
22
Grimble, 116 Cal. App. 3d at 684-85.
23
2042. The trial court was required to sentence Petitioner in accordance
24
with the constitutional protections afforded him under the Eighth and Fourteenth
25
Amendments. The trial court’s error in ordering the determinate term to be
26
served subsequent to the death sentence violated Petitioner’s rights under the
27
Eighth and Fourteenth Amendments. See Fetterly v. Paskett, 997 F.2d 1295 (9th
28
Cir. 1993) (misapplication of sentencing statute in imposition of death sentence
729
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implicates Eighth and Fourteenth Amendments). Thus, the trial court’s order in
2
this case should be modified accordingly.
3
W.
Ineffective Assistance of Counsel on Appeal and in Postconviction
4
Proceedings
5
2043. Exhaustion of the claim: This claim was fairly presented to the
6
California Supreme Court in Section XXV of the June 2004 Petition for Writ of
7
Habeas Corpus.
2044. Petitioner has been denied effective assistance of counsel on appeal
8
9
and in state post-conviction proceedings in violation of the Fifth, Sixth, Eighth,
10
and Fourteenth Amendments. Petitioner has also been denied his rights to
11
competent representation on appeal and in post-conviction proceedings.
2045. The performance of appellate counsel was below reasonable
12
13
standards of representation. To the extent counsel’s performance in appellate and
14
postconviction proceedings in any way limits the consideration of the claims in
15
this petition, Petitioner has been substantially prejudiced.
16
17
18
19
X.
The Impact of the Constitutional Violations Regarding the Penalty
20
Phase Rendered the Sentencing Determination Constitutionally
21
Unreliable
22
2046. Exhaustion of the claim: This claim was fairly presented to the
23
California Supreme Court in the direct appeal. It was presented in Section
24
XXVII of the Opening Brief.
25
2047. The court instructed the jury according to the standard language in
26
CALJIC No. 8.85 to “consider all of the evidence which has been received during
27
any part of the trial of this case, except as you may be hereafter instructed.” (217
28
RT 24870; XXX CT 8881.) By this instruction, the jury was required to take into
730
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consideration all of the evidence admitted in the guilt trial. It is presumed that the
2
jury followed the court’s instructions. People v. Bonin, 46 Cal. 3d at 699; People
3
v. Mickey, 54 Cal. 3d 612, 689 n.17, 818 P.2d 84, 286 Cal. Rptr. 801 (1991).
4
2048. Among the evidence considered by the jury in the penalty trial and
5
previously admitted during the guilt trial, was inflammatory evidence in the joint
6
trial of fifteen unrelated incidents. See Claim 10, supra. There was a prejudicial
7
spillover effect of this evidence that carried over to the penalty trial. See Claim
8
30, supra. The jury was also permitted to consider Petitioner’s shackling and his
9
refusal to remove his sunglasses at trial. See Claims 17 and 19, supra.
10
2049. In addition, other errors committed at the guilt trial, even if harmless
11
as to the determination of guilt, were considered by the jury in its penalty
12
determination.
13
2050. The California Supreme Court has expressly recognized that
14
evidence which may otherwise not affect the guilt determination can have a
15
prejudicial impact during penalty trial. As noted by the court:
16
Conceivably, an error that we would hold nonprejudicial on the guilt
17
trial, if a similar error were committed on the penalty trial, could be
18
prejudicial. Where, as here, the evidence of guilt is overwhelming,
19
even serious error cannot be said to be such as would, in reasonable
20
probability, have altered the balance between conviction and
21
acquittal. But in determining the issue of penalty, the jury, in
22
deciding between life imprisonment and death, may be swayed one
23
way or another by any piece of evidence. If any substantial piece or
24
part of that evidence was inadmissible, or if any misconduct or other
25
error occurred, particularly where, as here, the inadmissible
26
evidence, the misconduct and other errors directly related to the
27
character of appellant, the appellate court by no reasoning process
28
731
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can ascertain whether there is a “reasonable probability” that a
2
different result would have been reached in the absence of error.
3
People v. Hamilton, 60 Cal. 2d 105, 136-37, 383 P.2d 412, 32 Cal. Rptr. 4
4
(1963); see also People v. Brown, 46 Cal. 3d at 466.
2051. Guilt trial errors affected the jury’s determination of penalty and
5
6
detracted from its consideration of any lingering doubt in determining the proper
7
punishment. By definition, guilt phase errors deemed harmless beyond a
8
reasonable doubt do not erode confidence in the verdict’s factual foundation.
9
Lingering doubt based on any residual disbelief concerning evidence of
10
Petitioner’s involvement which remained after the reasonable doubt standard had
11
been satisfied, however, had continued vitality during the penalty trial
12
particularly as Petitioner presented no mitigation evidence. Therefore, even
13
harmless guilt phase errors may undermine or taint constitutionally-rooted
14
penalty determinations. The previously enumerated guilt phase errors in this case
15
had a significant impact on the jury’s penalty determination.
2052. The jury was likely swayed by the prejudicial spillover effect of
16
17
inflammatory evidence erroneously admitted in the joint trial, Petitioner’s
18
shackling at trial, and instructional errors. Given the substantial nature of the trial
19
court errors in the guilt trial, coupled with Petitioner’s waiver of mitigation
20
evidence in the penalty trial, there is a “reasonable probability” that a different
21
result would have occurred in the absence of the errors. Hamilton, 60 Cal. 2d at
22
137.
23
2053. Improper consideration by the jury of guilt phase errors during the
24
penalty trial violated Petitioner’s right to due process of law and a fair trial under
25
the Fifth and Sixth Amendments. Washington v. Texas. Improper consideration
26
of prejudicial evidence also violated Petitioner’s rights to a reliable determination
27
of sentence under the Eighth and Fourteenth Amendments. Caldwell v.
28
732
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Mississippi. In light of the serious nature of the guilt phase errors, it cannot be
2
said that the evidence had no effect on the penalty determination by the jury. Id.
3
CLAIM 42:
4
PETITIONER’S CONVICTIONS AND SENTENCES MUST
5
BE REVERSED BECAUSE OF THE CUMULATIVE EFFECT
6
OF ALL THE ERRORS AND CONSTITUTIONAL
7
VIOLATIONS ALLEGED IN THIS PETITION; THE
8
CUMULATIVE EFFECT OF GUILT PHASE AND PENALTY
9
PHASE ERRORS WAS PREJUDICIAL
10
2054. Exhaustion of the claim: This claim was fairly presented to the
11
California Supreme Court in the direct appeal. It was presented in Section
12
XXXIV of the opening appeal brief, and in Section XXI of the June 2004 petition
13
for writ of habeas corpus.
14
2055. In support of this claim, Petitioner alleges the following facts,
15
among others to be presented after full discovery, investigation, adequate
16
funding, access to this Court’s subpoena power, and an evidentiary hearing.
17
2056. Petitioner’s confinement is illegal and unconstitutional under the
18
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because the errors
19
complained of in this petition compound one another, resulting in a trial that was
20
fundamentally unfair and in imposition of cruel and unusual punishment.
21
22
23
2057. All other allegations and supporting exhibits are incorporated into
this claim by specific reference.
2058. Each of the specific allegations of constitutional error in each claim
24
and sub-claim of this petition requires the issuance of a writ of habeas corpus.
25
Assuming arguendo that the Court finds that the individual allegations are, in and
26
of themselves, insufficient to justify relief, the cumulative effect of the errors
27
demonstrated by this petition and the briefing submitted in Petitioner’s Automatic
28
Appeal (No. S012944) compels reversal of the judgment and issuance of the writ.
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When all of the errors and constitutional violations are considered together, it is
2
clear that Petitioner has been convicted and sentenced to death in violation of his
3
basic human and constitutional right to a fundamentally fair and accurate trial,
4
and his right to an accurate and reliable penalty determination, in violation of the
5
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
6
2059. Petitioner hereby incorporates by specific reference the record on
7
appeal, and each of the claims and arguments raised in his Opening Brief and
8
Reply Brief in his related automatic appeal (No. S012944) and any appendices
9
and exhibits referred to therein as if fully set forth in this paragraph.
10
Alternatively, Petitioner requests that the Court take judicial notice of the same.
11
2060. Petitioner’s convictions, sentences, and confinement were obtained
12
as the result of serious errors constituting multiple violations of his fundamental
13
constitutional rights at every phase of his trial, from the unfair and discriminatory
14
decision to charge and prosecute him, prosecutorial misconduct, the presentation
15
of inaccurate, incomplete and unreliable evidence in the guilt phase, and
16
culminating in a sentencing phase, in which no evidence of his character,
17
background, and mental illness was presented, and was fatally flawed by gross
18
prosecutorial misconduct. Through it all, Petitioner’s trial counsel were so
19
ineffective and incompetent that they consistently provided grossly ineffective
20
representation and failed to protect his fundamental rights.
21
2061. Each of the specific allegations of error and constitutional violation
22
presented in the instant petition, whether or not it justifies reversal or issuance of
23
the writ standing alone, must be considered in the context of all the other such
24
allegations set forth in the petition. As the Ninth Circuit stated recently,
25
[T]rial errors are more likely to be prejudicial to a defendant – i.e.,
26
not harmless – when the government’s case on a critical element is
27
weak. [citation] Accordingly, in determining whether the combined
28
effect of multiple errors rendered a criminal defense ‘far less
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persuasive’ and had a ‘substantial and injurious effect or influence’
2
on the jury’s verdict, the overall strength of the prosecution’s case
3
must be considered because ‘a verdict or conclusion only weakly
4
supported by the record is more likely to have been affected by
5
errors than one with overwhelming record support.’
6
Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (quoting Strickland v.
7
Washington, 466 U.S. at 696). As explained throughout this Petition, the
8
prosecution’s case against Petitioner, largely unchallenged by ineffective counsel,
9
was insufficient and circumstantial.
10
2062. The prejudicial impact of each of the specific allegations of
11
constitutional error presented in this petition and in the direct appeal must be
12
analyzed within the overall context of the evidence introduced against Petitioner
13
at trial. No single allegation of constitutional error is severable from any other
14
allegation set forth in this petition and/or in Petitioner’s automatic appeal. “In
15
other words, a column of errors may sometimes have a logarithmic effect,
16
producing a total impact greater than the arithmetic sum of its constituent parts.”
17
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993). Where, as here,
18
“the combined effect of multiple trial errors” give rise to a due process violation,
19
even though “each error considered individually would not require reversal.”
20
Parle v. Runnels, 505 F.3d at 928 (citing Donnelly, 416 U.S. at 643; Chambers,
21
410 U.S. at 290 n.3, 298, 302-03); United States v. Frederick, 78 F.3d 1370, 1381
22
(9th Cir. 1996) (“Where, as here, there are a number of errors at trial, ‘a
23
balkanized, issue-by-issue harmless error review’ is far less effective than
24
analyzing the overall effect of all the errors in the context of the evidence
25
introduced at trial against the defendant.”); Taylor v. Kentucky, 436 U.S. 478,
26
487-88, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).
27
28
2063. Justice demands that Petitioner’s convictions and sentences, and
especially his convictions for capital murder and his sentence of death, must be
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reversed because the cumulative effect of all the errors and violations alleged in
2
the present petition “was so prejudicial as to strike at the fundamental fairness of
3
the trial.” United States v. Parker, 997 F.2d 219, 222 (6th Cir. 1993) (citation
4
omitted); see also Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (inflammatory
5
statements during argument, taken together, denied defendant a fair trial); United
6
States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (cumulative effect of errors
7
deprived defendant of fair trial).
8
2064. This is also true of state law violations which may not independently
9
rise to the level of a federal constitutional violation. See, e.g., Barclay v. Florida,
10
463 U.S. 936, 951, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983). The cumulative
11
effect of state law errors in this case resulted in the denial of fundamental fairness
12
and violate due process and equal protection guarantees under the Fourteenth
13
Amendment. See Hicks v. Oklahoma, 447 U.S. at 346; Walker v. Engle, 703 F.2d
14
959, 962 (6th. Cir. 1983).
15
2065. The cumulative weight of the guilt phase errors and penalty trial
16
errors was prejudicial to Petitioner. As demonstrated elsewhere in this Petition
17
and in the opening brief with respect to various guilt phase errors, Petitioner’s
18
rights were violated under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
19
See Hicks v. Oklahoma, 447 U.S. at 346. In the penalty trial, Petitioner was
20
deprived of a fair and reliable determination of penalty under the Fifth, Sixth,
21
Eighth, and Fourteenth Amendments. Eddings v. Oklahoma, 455 U.S. at 112;
22
Johnson v. Mississippi, 486 U.S. at 584. Together, the cumulative effect of the
23
errors was prejudicial.
24
2066. It is both reasonably probable and likely that the jury’s penalty
25
determination was adversely affected by the cumulative errors. In the absence of
26
the errors, the outcome could have been more favorable to Petitioner. It certainly
27
cannot be said that the errors had “no effect” on this jury’s penalty verdict.
28
Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 263, 86 L. Ed. 231 (1985). In
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light of the cumulative effect of all the errors and constitutional violations that
2
occurred over the course of the proceedings in Petitioner’s case, the writ should
3
issue to prevent a fundamental miscarriage of justice.
4
2067. The foregoing violations of Petitioner’s constitutional rights, taken
5
singly or in combination with the other errors alleged in the Petition, constitute
6
structural error and warrant the granting of this Petition without any
7
determination of whether the violations substantially affected or influenced the
8
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 & n.9, 113 S. Ct.
9
1710, 123 L. Ed. 2d 353 (1993). However, even assuming the harmless error
10
doctrine applies to this claim, the foregoing constitutional violations, singly and
11
in combination with the other errors alleged in this Petition, so infected the
12
integrity of the proceedings that the error cannot be deemed harmless. The
13
foregoing violations of Petitioner’s rights had a substantial and injurious effect
14
or influence on Petitioner’s convictions and sentences, rendering them
15
fundamentally unfair and resulting in a miscarriage of justice. See id. at 622,
16
637-38.
17
X.
18
PRAYER FOR RELIEF
19
WHEREFORE, Petitioner prays that this Court:
20
2068. Permit Petitioner, who is indigent, to proceed without prepayment of
21
costs or fees;
22
2069. Grant Petitioner the authority to obtain subpoenas in forma pauperis
23
for witnesses and documents necessary to prove the facts alleged in this Petition;
24
2070. Grant Petitioner and his counsel the right to conduct discovery,
25
including the right to take depositions, request admissions, and propound
26
interrogatories, as well as the means to preserve the testimony of witnesses;
27
28
2071. Require Respondent to bring forth the entire state court records in
the following cases so that this Court can review those parts of the record that are
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relevant to the issues and defenses raised in this proceeding: People v. Richard
2
Munoz Ramirez, Case No. S012944, and In Re Ramirez, Case No. S125755.
3
4
5
2072. Order respondent to show cause why Petitioner is not entitled to the
relief sought;
2073. Permit Petitioner to amend this Petition to allege any other basis for
6
his unconstitutional confinement as it is discovered or becomes ripe for federal
7
habeas review;
8
9
10
2074. Conduct an evidentiary hearing at which proof may be offered
concerning all of the allegations in this Petition;
2075. Issue a writ of habeas corpus to have Petitioner brought before this
11
Court to the end that he might be discharged from his unconstitutional
12
confinement and restraint and/or relieved of his unconstitutional sentences,
13
including the sentence of death, imposed in Los Angeles County Superior Court
14
Case No. A771272; and,
15
2076. Grant such other relief as this Court may deem appropriate.
16
17
Respectfully submitted,
18
SEAN K. KENNEDY
Federal Public Defender
19
20
21
22
23
DATED: December 17, 2008
By /s/ Sean J. Bolser
SEAN J. BOLSER
DAISY BYGRAVE
CALLIE GLANTON STEELE
Deputy Federal Public Defenders
Counsel for Petitioner
Richard Munoz Ramirez
24
25
26
27
28
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XI.
2
VERIFICATION
3
I, Sean J. Bolser, declare as follows:
4
1.
I am a Deputy Federal Public Defender in the Central District of
5
California. I represent Richard M. Ramirez in his federal habeas corpus
6
proceeding, Richard Munoz Ramirez v. Ayers, et al., CV 07-8310-JVS (C.D.
7
Cal.).
8
9
2.
Petitioner is confined and restrained of his liberty at San Quentin
State Prison, San Quentin, California. I make this verification on Petitioner’s
10
behalf because these matters are more within my knowledge than his, and
11
because he is incarcerated in a county different from my office. I have read this
12
Petition and know the contents of the Petition to be true.
13
14
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 17th day of December 2008, at Los Angeles, California.
15
16
17
/s/ Sean J. Bolser
Sean J. Bolser
Deputy Federal Public Defender
18
19
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27
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2
PROOF OF SERVICE
I, the undersigned, declare that I am a resident or employed in Los Angeles
3
County, California; that my business address is the Office of the Federal Public
4
Defender, 321 East 2nd Street, Los Angeles, California 90012-4202; that I am
5
over the age of eighteen years; that I am not a party to the above-entitled action;
6
that I am employed by the Federal Public Defender for the Central District of
7
California, who is a member of the Bar of the United States District Court for the
8
Central District of California, and at whose direction I served the Petition for
9
Writ of Habeas Corpus and Exhibits in Support of Petition for Writ of
10
Habeas Corpus (Exhibits 56, 60, 71-129), by hand-delivery addressed as
11
follows:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Death Penalty Law Clerk
U. S. Courthouse, Room 801
312 N. Spring Street
Los Angeles, CA 90012
This proof of service is executed at Los Angeles, California, on December
17, 2008.
I declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge.
/s/ Dolores Coultas
DOLORES COULTAS
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