The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES CHITAT NG,
Defendant and Appellant.
S080276
Orange County Superior Court
94ZF0195
July 28, 2022
Justice Groban authored the opinion of the Court, in which
Justices Corrigan, Liu, Kruger, Jenkins, Guerrero, and Pollak*
concurred.
*
Presiding Justice of the Court of Appeal, First Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. NG
S080276
Opinion of the Court by Groban, J.
A jury convicted defendant, Charles Chitat Ng, of 11
counts of first degree murder against Sean Dubs, Deborah Dubs,
Harvey Dubs, Clifford Peranteau, Jeffrey Gerald, Michael
Carroll, Kathleen Allen, Lonnie Bond, Sr., Lonnie Bond, Jr.,
Robin Scott Stapley, and Brenda O’Connor. (Pen. Code, § 187.)1
The jury found true the multiple-murder special circumstance.
(§ 190.2, subd. (a)(3).) The jury returned a death verdict, and
the trial court sentenced defendant to death in 1999. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment
in its entirety.
I. FACTUAL BACKGROUND
Between July 1984 and April 1985, 12 people went
missing from Northern California. In July 1984, Harvey Dubs,
his wife Deborah, and their 16-month-old son Sean disappeared
from their San Francisco apartment. In November 1984, Paul
Cosner disappeared from San Francisco; he tried to sell his car
on his way home from work and was never seen again. In
January 1985, Clifford Peranteau failed to show up for work in
San Francisco and was never seen again. One month later, in
February, Jeffrey Gerald disappeared from San Francisco after
telling his roommate he was going to do a “side job” of helping
1
All further undesignated statutory references are to the
Penal Code.
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someone move. In April 1985, Kathleen Allen disappeared from
Milpitas after getting into a car with a stranger who was
supposed to take her to see her boyfriend, Michael Carroll, in
Lake Tahoe. Carroll also disappeared. Later that month,
Lonnie Bond, Sr. (Bond), his fiancée Brenda O’Connor, and their
infant son Lonnie Bond, Jr. (Lonnie), disappeared from the
house they rented in Wilseyville. Their friend Scott Stapley,
who often visited, also disappeared.2
These disappearances remained unsolved and seemingly
unrelated until defendant, along with accomplice Leonard Lake,
attempted to shoplift a vise from a lumber store in June 1985.
While Lake spoke with police officers, defendant walked away
from the scene. After officers searched his vehicle, Lake was
arrested for possession of a firearm and subsequently committed
suicide while in police custody. Officers then began searching
for defendant. This search led officers to Lake’s property in
Wilseyville, where they uncovered evidence that connected
defendant and Lake to the missing persons.
Shortly after Lake’s arrest, defendant fled to Canada. He
was arrested in a shoplifting incident a few weeks later.
Defendant was ultimately extradited in 1991, at which time
proceedings in the present case began. After resolving dozens of
motions filed by the defense, a venue change, and a competency
hearing, trial began in September 1998. The jury returned its
verdicts on February 24, 1999. The penalty phase began on
March 8, 1999; the jury returned a sentence of death on April
30, 1999.
2
Stapley’s full name is Robin Scott Stapley, but he
generally went by the name Scott Stapley.
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A. Guilt Phase
1. Prosecution Case
a. Lake’s Capture
On June 2, 1985, John Kallas visited South City Lumber
Company in South San Francisco. Kallas had been a reserve
police officer for the South San Francisco Police Department for
28 years. While at the lumber store, he saw an Asian man, later
identified as defendant, carrying a large vise that was sold at
the store. Suspicious that the man was shoplifting, Kallas
continued observing defendant as he walked past him,
continued to walk past the checkout counter, and exited the
store with the merchandise. After a salesclerk confirmed that
they had not sold that vise to defendant, Kallas and one of the
clerks walked outside. Approximately 50 feet away, he observed
the Asian man standing by the passenger door of a gold Honda.
The man then started walking toward the street and away from
the store. Kallas walked over to the vehicle and saw a box of
wrenches in the back seat but did not see the vise. He saw the
trunk was ajar, opened it, and saw the missing vise. Kallas
called the police department. While he was on the phone, a
bearded man, later identified as Lake, approached Kallas and
started talking to him. He asked if he could pay for the vise;
Kallas told him to speak to a clerk because he did not work
there.
South San Francisco Police Officer Daniel Wright
responded to the store. Wright ran the license plate for the
vehicle and found that it was registered to Bond. Wright looked
inside the open trunk and saw the vise, as well as a backpack.
He opened the backpack and found a semiautomatic gun and a
silencer. He ran the serial number for the gun through the
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computer system and found it was registered to R. Scott Stapley.
He put the gun and silencer back in the backpack as Lake
approached. Lake explained that he paid for the vise that his
friend took. When Wright asked for Lake’s name, Lake
identified himself as R. Scott Stapley and provided Wright with
a California driver’s license bearing the name Robin Scott
Stapley. Lake acknowledged that the vehicle belonged to Bond
and said that Bond was “up north.”
Wright arrested Lake for possession of a firearm that had
a silencer. At the police station, Lake ingested cyanide and
started convulsing. He was taken to the hospital where he died
a few days later. Before convulsing, Lake wrote a note to “Lyn”
that stated, in part, “I love you. I forgive you. Freedom is better
than all else. Tell Fern I’m sorry . . . I’m sorry for all the
trouble.”
Police officers subsequently ran the vehicle identification
number from the Honda and learned it was associated with a
missing person, Paul Cosner. After that, the South San
Francisco Police Department turned the vehicle over to
Inspector Irene Brunn of the San Francisco Police Department.
She worked in the missing persons unit and had been
investigating Cosner’s disappearance. Inside the vehicle,
Inspector Brunn found a Pacific Gas and Electric Company bill
addressed to Lake’s ex-wife Claralyn B. The envelope listed an
address in Wilseyville, a town in Calaveras County,
approximately three hours west of San Francisco.
b. Wilseyville Property
Inspector Brunn contacted Claralyn on June 3 hoping she
could help the police find defendant. Inspector Brunn and
Claralyn met at a local café and made arrangements to meet at
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the Wilseyville property the following day. Claralyn gave
Inspector Brunn a key and permission to search the premises.
Inside the living room, Inspector Brunn discovered two pieces of
equipment, including a VCR, that had been missing from the
Dubs residence; unrelated to the Cosner case, Inspector Brunn
had also been investigating the Dubs family disappearance. She
called her office, provided them the serial number for the VCR,
and confirmed it was from the Dubs residence.
At that point, Claralyn revoked her permission for the
officers to search the property. The officers left the house,
secured the premises, and obtained a search warrant.
An investigation of the Wilseyville property subsequently
commenced. The investigation lasted five weeks and involved
four law enforcement agencies. Investigators discovered
thousands of bone and tooth fragments buried throughout the
property. At least four dental specimens belonged to a child
under the age of three years old. After reviewing all the found
fragments, two forensic anthropologists concluded that they
belonged to at least four adults, one child, and one infant.
“Many hundreds” of the bone fragments showed various degrees
of burning. Investigators also found a child’s liver buried on the
property.
In addition to the main house, there was also a bunker on
the Wilseyville property. The bunker contained three rooms,
two of which were behind a hidden doorway. One of the hidden
rooms contained a bed, a desk, dressers, and some food. The
second room was approximately seven by three feet and enclosed
by a wooden door. Inside that room was a small bed with a foam
pad on it, a plastic bucket, a roll of toilet paper, and a small
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lamp. The door into the small room could only be opened from
the outside.
c. Search for Defendant
Police searched defendant’s San Francisco apartment on
June 7, five days after he walked away from the lumber store.
They found items belonging to Bond and Peranteau, as well as
a map of San Francisco on which the Dubses’ street had been
circled. The police also found two boxes of .22-caliber
ammunition, a pamphlet about how to make a silencer for a .22-
caliber gun, and photos of the bunker under construction.
Toward the end of June, a 14-year-old boy was playing in
a wildlife park in Calgary, Canada with a friend. He came
across a lean-to near some bushes and saw an Asian man lying
down inside. The man said that he was tired and asked the boy
to leave. The boy had seen a photograph of defendant in the
news and thought that might have been the person he saw in
the park. He told his parents about the man.
On July 6, defendant was arrested for shoplifting. Officers
seized a pair of handcuffs and a key, a .22-caliber handgun that
previously belonged to Lake, and ammunition.
The following day, a detective met with the young boy and
his father at the wildlife park. He asked the boy to show him
where the man had been camping. The detective found the lean-
to and approximately 30 meters away found a cleared area with
a sleeping bag. The sleeping bag lay on top of wood planks;
underneath the planks was a dugout big enough to fit a person.
The dugout contained a camera belonging to Stapley and a towel
from Peranteau’s apartment.
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d. Discovery of Bond’s and Stapley’s bodies
On July 8, back in Calaveras County, police officers were
patrolling the area near the Wilseyville property. The officers
observed some tufts of material and cloth scattered on the
ground approximately one quarter mile away from the property.
The material looked like it was insulation from a sleeping bag.
Upon further investigation, it appeared that animals had dug
up the material along with some bone. Investigators began
excavating the site and discovered bodies, later identified as
Bond and Stapley. The bodies were in separate sleeping bags,
one on top of the other.
Bond had been shot once in his head. His wrists were
handcuffed together. He had a plastic bag over his head. He
had a leather strap with a ball gag wrapped around his neck.
Stapley had been shot three times: in the front of his
mouth; above his right eyebrow; and in his right collarbone. He
had a plastic bag over his head and shoulders, and his hands
and ankles were bound with duct tape. A leather strap with a
ball gag was wrapped around his neck.
e. Evidence of the Murders
i. Dubs family
In July 1984, Harvey Dubs, his wife Deborah, and their
16-month-old son Sean lived in an apartment in San Francisco.
Harvey worked at Petrov Graphic Types World, also in San
Francisco. In addition to his day job, Harvey was trying to start
a new videotaping business that he ran out of their home.
On July 25, Harvey left work around 5:00 p.m., which was
earlier than usual. He told a coworker, Lauren Bradbury, that
he had put an ad in the newspaper to sell video equipment, and
he was meeting someone who had responded to his ad. Shortly
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after, around 5:45 p.m., Deborah spoke on the phone with her
friend Karen Tuck. Deborah told Tuck that she was expecting
someone to come over to talk to Harvey about his video
equipment. Someone either rang the bell or knocked on the
door, so Deborah terminated the phone conversation to go
answer the door. Tuck tried to call Deborah the following day,
but Deborah did not answer.
Dorice Murphy lived across the street from the Dubs
family. At approximately 5:45 p.m. on July 25, Murphy saw an
Asian man walking down the Dubses’ front steps struggling to
carry a suitcase. He approached a waiting car. A second man
walked out of the driver’s side and opened the trunk. The Asian
man put the suitcase in the trunk, entered the vehicle, and they
drove away.
Harvey did not show up for work the following day, nor did
he notify his boss in advance that he would not appear at work.
It was unusual and “totally out of character” for him to not notify
his boss that he would miss a day of work. Another man,
identifying himself as James Bright, did call Petrov Graphic
Types World and told Bradbury that Harvey was not coming
into work. The caller said that Harvey had to go to Washington
State for a family emergency. Bradbury found the conversation
to be odd because Harvey was from New York, did not have any
other relatives, and would never leave the company “stranded.”
Bradbury also knew that Deborah was from the Bay Area.
Bradbury asked the caller for his phone number, after which he
became very irritated and hung up. Deborah’s father filed a
missing persons report that evening, on July 26.
Barbara Speaker lived in an apartment directly below the
Dubs family. On July 27, she heard footsteps around 11:30 a.m.
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coming from the Dubses’ apartment. She stepped outside and
saw defendant closing the Dubses’ front door. He left the keys
in the door and then walked down the stairs carrying a “flight
bag” and a duffle bag. The bags appeared full and heavy.
Speaker followed defendant down the stairs and outside to the
street. She said, “Excuse me” to try to get his attention, but he
continued walking. When defendant reached the end of the
street, a car came around the corner quickly and pulled over.
Defendant entered the car, and it drove away. Speaker believed
the car was the Dubses’ car. While testifying, defendant
confirmed that the driver of the car was Lake.
Around half an hour later, Tuck’s husband George visited
the Dubses’ apartment to see if he could find out anything. He
recognized Deborah’s key ring in the front door. He went inside
and saw empty space on shelving in the bedroom where Harvey
usually kept his cassette tapes and VCR machines. George
believed items had recently gone missing in light of the fact that
there was dust on the shelf but no dust in the specific spots
where items had been removed.
Later that night, as Speaker arrived home, she saw a man
through the living room window of the Dubses’ apartment. Once
inside her apartment, she heard footsteps upstairs. She looked
out her window and saw the man walking down the stairs
carrying something large. The man resembled the man she had
seen walking out of the Dubses’ apartment that morning.
The Dubs family disappearance received extensive media
coverage, including in the newspaper and television press
conferences. Investigators had no leads on their disappearance
until Inspector Brunn discovered the family’s VCR in
Wilseyville the following summer.
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A few days after that discovery, officers showed Dorice
Murphy a photographic line up. She identified defendant as the
man she had seen walking out of the Dubses’ apartment the day
they disappeared. Speaker identified defendant in a
photographic line up as well.
ii. Paul Cosner
Paul Cosner lived in San Francisco with his girlfriend,
Marilyn Namba. On November 2, 1984, Cosner called his sister
and made plans to meet with her the next morning. Later that
evening, Namba called Cosner while she was at her work, and
they made plans to watch a movie on television when she got
home. Cosner seemed rushed on the phone. He told Namba that
he was going to deliver a car he was selling. The car was a gold
Honda Prelude and matched the vehicle Lake and defendant
were using when Lake was arrested at the lumber store seven
months later.
Cosner did not come home for his date with Namba. He
also failed to show up the following morning to meet his sister.
Neither Namba nor Cosner’s sister saw or heard from him again.
The following day, Cosner’s sister filed a missing persons
report.3
iii. Clifford Peranteau
Clifford Peranteau worked with defendant at Dennis
Moving Company in San Francisco. They were on the same crew
and worked together on a regular basis. Hector Salcedo also
worked at Dennis Moving Company and was close with
Peranteau. Salcedo and Peranteau often spent time at
3
The jury failed to reach a verdict on the murder charge
against Cosner.
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Peranteau’s house after work. One night in December 1984 or
January 1985, defendant arrived unexpectedly at Peranteau’s
home. At some point, he took out a bag of marijuana and showed
it to Salcedo and Peranteau. He told them he had a friend with
a plantation and if they wanted to help work on the plantation,
they could take some marijuana home for themselves.
One Friday night in January 1985, Salcedo and Peranteau
went out for drinks to celebrate the San Francisco 49ers making
it into the upcoming Super Bowl. Around midnight or 1:00 a.m.
early Saturday morning, Salcedo dropped off Peranteau at his
home and then went home himself. Peranteau did not appear
for work the following day. Salcedo, concerned, tried to reach
Peranteau on the telephone several times, but his friend did not
answer. After work, Salcedo went to Peranteau’s home, but
nobody answered the door. Salcedo returned to Peranteau’s
home several times to try to reach his friend. Around one week
after Peranteau went missing, he noticed that Peranteau’s
motorcycle was missing. The motorcycle had still been there
when Salcedo previously checked the house. Peranteau’s ex-
girlfriend also checked on the house after he was reported
missing. She noticed that “[m]ostly everything” was gone. She
had last been inside the home three to four weeks prior, and
nothing was missing at that time.
After Peranteau disappeared, Dennis Goza, the owner of
Dennis Moving Company, received a letter, purportedly from
Peranteau, explaining his absence. The letter read, “Dennis:
Sorry to leave you on such short notice but a new job, place to
live, and a honey all came together at once. Please send my
check for the last three days I worked and my W-2 to my new
address below. Thanks, Cliff.” The address provided was for a
post office box in Mokelumne Hill, a town about 20 miles from
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Wilseyville. The main body of the letter was typed, but the
signature and address were handwritten. The signature did not
look genuine. Subsequent analysis revealed that the letter had
been typed on a typewriter found at the Wilseyville property. A
police investigator testified that Lake had forged the letter.
In April 1985, about three months after Peranteau
disappeared, Lake sold Peranteau’s motorcycle to a man in
Wilseyville. Lake told the buyer that Peranteau was a friend in
San Francisco who had asked Lake to sell the motorcycle for
him.
In July, while investigating defendant’s hideout in
Calgary, officers found a striped towel that had been taken from
Peranteau’s home. In defendant’s San Francisco apartment,
officers found a pen and pencil set that belonged to Peranteau.
At the Wilseyville property, officers found additional items that
had been taken from Peranteau’s apartment.
iv. Jeffrey Gerald
Jeffrey Gerald also worked on a crew with defendant at
Dennis Moving Company. Gerald lived in an apartment in San
Francisco with his roommate Terry Kailer. Over the course of
six weeks, on 12 occasions, Kailer answered the phone to a caller
who identified himself as Charlie or Charlie Ng.
On the morning of February 24, 1985, Kailer answered
two calls from the same caller. Later that day, Gerald told
Kailer that it had been defendant on the phone and he was going
to meet him at a bus station to do “a side job” for a move. Gerald
told Kailer that he would be home by dinner and would bring
Chinese food. At the bus station, Gerald called his girlfriend,
Sandra Krumbein, and said he was going to help a friend move
for $100. They made plans for Krumbein, who lived in New
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Jersey, to come to San Francisco. Neither Krumbein nor Kailer
ever saw or heard from Gerald again.
Three days later, Kailer came home from work and found
Gerald’s bedroom door ajar. She noticed that some things had
been moved, and several things were missing, including his
clothes, bedding, guitar and amplifier, and pictures. Kailer filed
a missing persons report.
Investigators later found Gerald’s guitar at the Wilseyville
property. They found Gerald’s Social Security card buried on
the property.
v. Michael Carroll and Kathleen Allen
Michael Carroll lived with his foster brother, John
Gouveia, in Milpitas in 1984. Carroll and defendant were
acquainted, and sometime before Carroll disappeared, Gouveia
answered a phone call from someone who identified himself as
Chuck. The caller asked to speak with Carroll. Gouveia asked,
“Is this Charles Ng?” The caller laughed and said, “Yeah. Just
tell Mike I called.”
Kathleen Allen was Carroll’s girlfriend. Allen worked at
a Safeway store in Milpitas. On April 14, 1985, Allen received
a phone call at work. After the call, she told a coworker that
“Mike” had been shot and might be dead. She said that someone
was going to pick her up and take her to Lake Tahoe. That
evening, Allen called her friend James Baio. She told Baio that
Carroll had been gone for two days, and she had received a
phone call from him saying that “he had gotten into some
trouble” and was going to the Lake Tahoe Area. Carroll had told
her that he wanted her to meet him, and he was going to send
someone to pick her up. Telephone records indicate that at
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1:01 p.m. that afternoon, someone at the Wilseyville property
called the Safeway store.
Allen left work between 7:00 p.m. and 7:30 p.m. She
entered a gold Honda Prelude, later identified as Cosner’s car.
Inside the vehicle was a Caucasian male.
Allen spoke with Baio again; he called her at a Milpitas
hotel. She told him that she could not talk at that moment
because somebody else was in the room with her. Allen sounded
like she was in a hurry. She told him the person “was kind of a
weird guy” and that he wanted to take pictures of her. Baio
asked her to call him when she got to her destination, but he
never heard from her again.
The next day, on April 15, Allen called her manager at
Safeway and asked for four weeks off from work. She told her
manager that her boyfriend had found a job, or had a good lead
on a job, near Lake Tahoe and she wanted to go with him. Phone
records indicate that someone at the Wilseyville residence called
the Safeway store on the morning of April 15.
At some point, Lake gained possession of Carroll’s car. On
April 14, the same day that Allen left work to drive to Lake
Tahoe, Lake called George Blank, a friend in San Jose, and
asked for help with a car that had been stranded in Milpitas.
Lake said that the car belonged to some friends, and he would
send a man by the name of Charles to the bus depot with the car
keys. Blank arranged for his daughter, Debra Blank, to receive
the call from Charles.
On April 16, Debra received a call from someone who
identified himself as Charles and said he was a friend of Lake.
Debra went to the bus station to meet Charles, later identified
as defendant, to pick up the car keys. Defendant also gave her
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a letter which contained directions to the car’s location. Debra
gave the keys and letter to her father. Blank followed the
directions and found the car in the parking lot at the Milpitas
Safeway. The car, a Mercury Capri, belonged to Carroll. Blank
drove the car home. On April 26, Lake went to Blank’s house to
inspect the car and remove some items. Lake asked Blank to fix
the car and then try to sell it. On May 8 or 9, Blank received a
letter and paperwork from Lake. The letter told Blank that
after he sold the car and took his share for the repairs, he should
deposit the remaining balance into a specific account using the
enclosed deposit slip. The paperwork included a pink slip for
the Capri, a release of liability, and an insurance policy all
bearing Carroll’s name. Lake also sent a stamped, preaddressed
envelope from the Safeway Federal Credit Union and a bank
deposit slip bearing Allen’s name.
Investigators found a videotape titled “M Ladies, Kathi,
Brenda” buried on the Wilseyville property. The first scene of
the video shows Allen shackled in a chair. Lake and defendant
tell her that if she cooperates with them, 30 days later they will
drug her, blindfold her, and release her somewhere. If she does
not, they will shoot her and bury her in the same place they
buried Carroll. They told her to provide information on Carroll’s
bank accounts and “who we need to write to make things
correct.” Lake tells Allen that she will need to write letters to
explain that Carroll got a job and moved away because “we want
to phase Mike off, just sort of just move him over the horizon,
and, uh, let people know that, yea, Mike moved off to God knows
where, and we never heard from him again. That’s semi-
acceptable.” Lake tells Allen they will keep her busy, and she
must agree to cook, clean, and “fuck” for them. He continues,
“That’s your choice in a nutshell. It’s not much of a choice unless
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you’ve got a death wish.” Lake acknowledges that he and
defendant are being “selfish bastards” and tells Allen that if she
cooperates, they will be “as nice as we can to you within the
limits of keeping you prisoner.” If she did not cooperate, they
would tie her onto the bed, rape her, shoot her, and bury her.
After Allen agrees to cooperate, Lake unshackles her, and the
men force her to strip naked. Defendant tells Lake he wants to
take a shower with Allen, and defendant says it “won’t be the
last time.” When Allen appears nervous, Lake says they do not
want to have to make an example of her and requests that she
cooperate. Allen fully undresses and walks off camera with
defendant.
In the next scene, a nearly naked Allen massages a naked
defendant. In the last scene with Allen, she is lying face down
and shackled to a bed, wearing only shorts. Lake admonishes
Allen that she needs to cooperate with them while also taking
pictures of her. When Allen asks how she has not cooperated,
Lake tells her she tried to beat down the door. Lake tells Allen
he has cyanide pills and if he ever got caught, he would take
them. Lake threatens to hit and whip Allen if she tries to escape
again. Lake tells Allen that he normally does not confess his
“sadistic tendencies” to strangers, but that he could talk to Allen
because she was “going to go away, and I’m never going to have
to deal with you again, unfortunately for you.” Lake makes
Allen put on lingerie and then takes more photographs of her.
He tells her to get dressed because they are going outside.
Investigators found a two-gallon plastic barrel buried at
the Wilseyville property containing several items belonging to
Carroll and Allen. Inside the Wilseyville house, investigators
found books with Carroll’s name printed inside.
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Investigators obtained copies of Allen’s canceled checks
from April and May 1985. One of the checks was dated May 2,
1985, more than two weeks after Allen disappeared. The check
was made out to Randy Jacobson, whose body was found at the
Wilseyville property. A handwriting expert testified that Lake
wrote the “face detail” of the check and probably signed Allen’s
name.
vi. Lonnie Bond, Sr., Brenda O’Connor, Lonnie
Bond, Jr., and Scott Stapley
In January 1985, Lonnie Bond, Sr., rented the house,
known as the Carter house, next door to the Wilseyville
property. The two houses shared a common driveway. Bond
lived there with his fiancée, Brenda O’Connor, and their infant
son, Lonnie Bond, Jr.
Sometime after Bond moved in, the property manager for
the Carter house received a call from Lake. He complained to
the property manager that someone was firing gunshots from
the house and that Bond was failing to lock the gate to their
common driveway.
Stapley lived in San Diego with his girlfriend, Tori Doolin.
In February 1985, Stapley and Doolin visited Bond and
O’Connor in Wilseyville. Doolin met Lake when he came to the
Carter house to talk to Bond and Stapley.
Doolin last saw Stapley on the evening of April 19, 1985,
in San Diego. Stapley had retrieved Bond and O’Connor’s
belongings from a storage locker and loaded the items in his
truck. He was planning to drive O’Connor and the baby from
San Diego back to the Carter house.
A few days later, on April 23, defendant got into a traffic
accident in Kern County while driving Stapley’s truck. The
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following day, defendant and Lake appeared at Doolin’s
apartment in San Diego. Defendant waited in the car while
Lake and Doolin spoke. Lake told Doolin that he had found
Stapley, Bond, O’Connor, and the baby dead in the Carter house.
He said that he had burned their bodies in a type of funeral
ceremony, buried the bodies, and then cleaned the house. Lake
wanted to take Stapley’s belongings back to Wilseyville to make
it appear like Stapley had moved out. Doolin gave Lake his
bicycle, clothing, and other miscellaneous items. Doolin walked
outside with Lake, where defendant was still waiting. Lake
showed Doolin the damage to Stapley’s truck from the accident.
Doolin never saw Stapley again. O’Connor’s mother never
saw or heard from O’Connor or the baby again. In May, Lake
called the property manager for the Carter house and said that
he thought her tenants had left town. He also told her that Bond
had left his car for Lake because he owed Lake money.
O’Connor was also featured in the M Ladies video. The
first scene with O’Connor shows her sitting in the same chair
where Allen sat, with her hands bound. O’Connor is asking
what Lake and defendant did to her family. They tell her they
did not kill Bond or Lonnie, but when she asks if they are going
to let her family go, they respond “probably not.” Lake tells
O’Connor that they hate her, and that the neighborhood hated
her family after they moved into the Carter house. He says that
they were going to give Lonnie to a family in Fresno that did not
have kids. O’Connor repeatedly pleads for her baby. Lake tells
O’Connor she must work, clean, and “fuck” for them or they will
tie her to the bed, rape her, and shoot her. O’Connor agrees to
cooperate.
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Defendant cuts off O’Connor’s T-shirt and bra with a knife
and tells her that she is “totally ours.” He says, “You can cry
and stuff like the rest of them, but it won’t do you no good. We
are pretty, ha, cold-hearted, so to speak.” They ask if she is
ready for a shower. When Lake says she will shower with
defendant, he replies, “Yep. I always do that. It’s luckier.” Lake
says defendant has his heart set on showering with O’Connor,
and he does not want to turn defendant down. O’Connor strips
and repeatedly tells Lake and defendant that she is dizzy, hot,
and does not feel well. They tell her to “suffer” but eventually
get her some water. She tells the men she does not need to take
a shower, but defendant responds that it is a “house rule” that
she be clean before he and Lake “fuck” her. The scene ends with
O’Connor and defendant going to take a shower, and Lake tells
defendant to be careful with her.
When Lake was arrested at the lumber store, he had a gun
registered to Stapley as well as credit cards and a bank card in
Stapley’s name. As mentioned earlier, police discovered Bond’s
and Stapley’s bodies buried near the Wilseyville property.
f. Maurice Laberge
Maurice Laberge met defendant in 1986 while they were
both imprisoned in Canada. 4 They had neighboring cells and
passed items back and forth. They exercised together in the
yard every day between March and June or July 1986.
Laberge kept notes of the conversations he had with
defendant on the exercise yard. Defendant shared cartoons
related to what they discussed in the yard, and he gave them to
4
Laberge died in a car accident before trial. His testimony
from defendant’s extradition hearing was read into evidence.
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Laberge. Laberge sent the cartoons defendant shared, and his
notes, to his lawyer.
During one of Laberge’s conversations with defendant,
defendant seemed “very worried” that the police would watch a
videotape found on the Wilseyville property. He told Laberge
that the videotape featured Kathi Allen and Brenda O’Connor,
two women whom he and Lake had kept in a cell for some time.
Defendant described scenes from the video to Laberge. He also
shared cartoons depicting scenes from the video, some in graphic
detail. They are discussed in more detail below in section II.E.1.
In addition to the cartoons, Laberge testified at the
extradition hearing that defendant admitted his involvement in
several of the murders. Defendant told Laberge that killing
Sean Dubs, the baby, was “not easy, but it was just business, a
part of the operation.” Defendant told him that they took video
equipment from the Dubs residence. Regarding Cosner,
defendant told Laberge that he did not want to kill “that punk,
but Lake wanted his fucking Honda, a cheap fucking Honda.”
He also described the sounds that Cosner made after defendant
shot him. Regarding Peranteau, defendant told Laberge that he
made a mistake in keeping Peranteau’s pen set after killing him.
He believed he could say that Lake gave him the pens as a
defense. He described for Laberge the process of shooting
Peranteau while Peranteau pleaded for his life. Defendant
further said that authorities would not find Peranteau or Gerald
because he burned their bodies after he and Lake killed them.
Defendant told Laberge that he killed Gerald so he could move
up in seniority at the moving company.
Regarding Allen, defendant told Laberge that he killed her
“quicker” because she tried to break out of her cell. He said that
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he put his gun inside her vagina and made her call Safeway to
ask for time off. Finally, he admitted shooting Stapley and Bond
and then burying the bodies.
g. Defendant’s Relationship with Lake
The prosecution introduced evidence of defendant’s
relationship with Lake. Lake’s sister, Fern Ebeling, testified
that in 1984, she acted as an intermediary between defendant
and Lake, receiving mail from Lake and forwarding it to
defendant, and receiving mail from defendant and forwarding it
to Lake. That same year, defendant attended Thanksgiving
dinner at Lake’s mother’s house. He was the only nonfamily
member present. The following month, in December 1984,
defendant introduced Lake to a coworker who needed work done
on his house.
2. Defense Case
a. Leonard Lake
The defense presented evidence of Lake’s involvement in
several uncharged murders, including his brother, Donald, and
his best friend, Charles Gunnar. Several witnesses, including
defendant, testified that Lake frequently went by the name
Charles Gunnar.
The defense presented evidence of Lake’s controlling and
abusive relationships with women. Witnesses also testified
about Lake’s interest in photographing women nude and in
sexually provocative positions, including girls as young as 10
years old. Some women testified about their personal
experiences being photographed by Lake, including one who was
coerced into being photographed and was subsequently raped by
Lake when she was 16 years old.
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Lake carried cyanide in his pocket and told several
witnesses that he would take it if he were ever captured. Lake
also told witnesses about wanting to build a bunker to use in a
nuclear war. Lake had fantasies of keeping women hostage in
the bunker.
While he was posted in Hawaii with the United States
Marine Corps, defendant met a man who was posted there while
serving in the Army. In the summer of 1981, the man told
defendant about Lake and provided defendant with Lake’s
address at the time. During part of 1982, defendant lived with
Lake and Claralyn in Philo, a town in Mendocino County.
Lake’s neighbor, Ernie Pardini, testified that Lake frequently
reprimanded defendant and spoke to him in a degrading and
domineering manner. Pardini believed Lake was verbally
abusive toward defendant. He testified that defendant seemed
very timid around Lake and behaved like he was trying to win
Lake’s approval.
b. Charged Offenses
The defense presented evidence that Lake was the
dominant or sole offender in the charged offenses. A few days
before Cosner disappeared, a neighbor saw him speaking with
Lake in the building’s garage. One of Lake’s neighbors in
Wilseyville testified that the day after Gerald disappeared, he
saw Lake with a bloody sheet wrapped around his body. That
same day, a local doctor treated Lake for a gunshot wound in his
hand.
Lake told another neighbor in Wilseyville that he thought
the Bond family were “pests” and that he believed it was okay
to kill someone if they were bugging you.
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c. Defendant’s Testimony
After the defense rested and the prosecution finished its
closing argument, the defense moved to reopen its case to allow
defendant to testify. The court granted the motion.
Defendant was born in Hong Kong and moved to the
United States when he was 18 years old. He met Lake when he
was 22 or 23 years old. Defendant looked up to Lake and trusted
and respected him. Defendant appreciated that Lake accepted
him as a friend even though he was not a United States citizen,
could not drive, did not have a job, and had a criminal record.
He knew that Lake was a survivalist and was preparing for the
end of the world by building survival shelters and stockpiling
supplies. When defendant was court-martialed, Lake sent him
photos of construction on the bunker. Defendant did not know
that Lake was building a place to keep sex slaves.
Sometimes Lake would stay with defendant in San
Francisco. Lake kept bedding, a change of clothing, tools,
ammunition, and marijuana in defendant’s apartment.
Defendant denied being involved in Gerald’s
disappearance. He never met Gerald at a bus station nor did he
ever call Gerald’s number and ask to meet at a bus station. He
was not in Wilseyville the day that Gerald disappeared because
he was scheduled to work an eight-hour shift at Dennis Moving
Company the following day. He also worked the day that
Gerald’s apartment was burglarized.
Defendant denied being involved in the disappearance of
the Dubs family. Defendant denied being the person that
neighbor Dorice Murphy saw walking out of the Dubses’
apartment the day they disappeared. He admitted being the
person that neighbor Barbara Speaker saw leaving the
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apartment two days later, but asserted he did so after Lake
asked him for help with a “job.” Defendant denied making any
comments to Laberge about his involvement in the Dubs
murders and did not know how the map with their residence
circled ended up in his apartment. He acknowledged that a VCR
without a serial number was found in his apartment but said it
belonged to Lake and he did not know where Lake got the VCR
from.
Defendant testified that he had nothing to do with the
disappearance of Cosner and did not enter into any sort of
agreement with Lake to kill Cosner. Lake had told defendant
that Cosner’s Honda was a “hot car,” and he obtained it from
drug dealers. Defendant denied telling Laberge that Lake killed
Cosner because he wanted the Honda. He also denied telling
Laberge that Cosner was “a hard operation because he wouldn’t
cooperate” and that Cosner made strange noises when
defendant shot him.
Defendant denied having anything to do with Peranteau’s
disappearance. He denied ever visiting Peranteau’s apartment
and testified that he did not know where Peranteau lived. He
claimed he had no involvement in taking Peranteau’s property
to Wilseyville and did not know how it got there. He denied
telling Laberge that he had shot Peranteau in the head and
burned the body.
Defendant testified that the M Ladies video was Lake’s
idea. Allen was the first woman he helped Lake imprison. He
knew that Allen was not there willingly and believed that Lake
was trying to modify Allen’s behavior to turn her into a willing
sex slave. They did not agree nor plan to kill Allen. Defendant
acknowledged his participation in the video but asserted that he
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could not confront Lake or ask not to be involved. He stated that
he did not have sexual intercourse or oral sex with Allen. When
defendant left Wilseyville to go back to San Francisco, Allen was
still alive. Defendant did not know anything about Carroll’s
death. He acknowledged that on the video, Lake told Allen to
cooperate or else they would bury her in the same place that
they buried Carroll. He claimed, however, that he was not
paying attention when Lake said that and he did not actually
help Lake kill or bury Carroll. Defendant denied making any
statements about Allen to Laberge.
Defendant testified that the first time he saw O’Connor
was when they started filming her in the M Ladies video. He
knew that Lake hated O’Connor for several reasons. He assisted
Lake in threatening O’Connor to comply but did not intend to
physically hurt her or kill her. He helped Lake by projecting
solidarity so that O’Connor knew two people were involved and
she would be more likely to comply. Defendant testified that he
was not present when Bond and Stapley were killed. Sometime
after they recorded the video with O’Connor, Lake showed
defendant two bodies under the porch: Bond and Stapley.
Defendant bound Bond’s body, put a gag in his mouth, and put
the body in a sleeping bag. Lake did the same thing to Stapley’s
body. Lake wanted it to appear like they had been killed by rival
drug dealers.
Defendant said he regretted his actions in the M Ladies
video. He said he was “young and adventurous” and did not
exercise independent judgment.
The day that Lake was arrested, defendant thought
someone saw him take the vise and he panicked. He was
worried the police would discover Cosner’s car, the M Ladies
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video, and the buried bodies. He was also worried that he would
be deported back to Hong Kong. He met up with Claralyn and
together they drove back to the lumber store to check on Lake.
Defendant crouched down in the backseat as Claralyn drove by
and saw Lake standing in the lot with police. Later that night,
he bought a one-way plane ticket to Chicago and eventually
made his way into Canada.
B. Penalty Phase
1. Prosecution Case
The prosecution presented evidence that on July 15, 1982,
defendant was convicted by military court for conspiracy to
commit larceny of government property valued at more than
$100; larceny of government property valued at more than $100;
and unlawful entry with intent to commit larceny of government
property. On November 14, 1981, after arrest for the larceny
offenses, defendant escaped from confinement in a military
facility until he was captured on April 29, 1982. Lake and
Claralyn were present in the apartment that officers searched
after defendant’s April arrest.
The prosecution presented evidence of defendant’s arrest
for shoplifting in Canada and the discovery of the lean-to in the
wildlife park, described above.
Several people testified about the victims and the impact
of their deaths. Sharon O’Connor, Brenda O’Connor’s mother,
testified that she was very close with her daughter and loved her
very much. O’Connor’s death was very difficult for her and tore
the family apart. Her grandson, Lonnie, was “the sweetest little
guy.” The absence of remains was very hard for the family
because they could not have a funeral. Sandra Bond testified
that she was O’Connor’s sister and was also married to Bond’s
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brother, so she was “getting it from both sides.” She explained
that her mother was grieving O’Connor while her mother-in-law
was grieving Bond, which was hard on her and her husband.
She “kind of lost [her] identity” after O’Connor died.
Robert McCourt, Clifford Peranteau’s brother, testified
that Peranteau “was a nice guy” who “liked anybody and
everybody.” They had 10 other siblings, and they all had a hard
childhood, but Peranteau tried to keep all the siblings connected
to each other. Their mother had been hospitalized five times
“because of this mess” and refused to accept that Peranteau had
died.
Jeffrey Nourse testified that Deborah Dubs was his
cousin, but they were very close and she was more like a sister
to him. Deborah was very artistic and “always had a zest for life
and [was] just a joy to be around.” Harvey Dubs was a “very
quiet, very loving, very caring human being.” Nourse said that
he thought about Deborah, Harvey, and their son Sean every
day. Their family had still not gotten used to the Dubs family’s
absence at family gatherings, especially holidays like
Thanksgiving.
Roger Gerald, Jeffrey Gerald’s father, testified that his son
was fun-loving, humorous, and nonviolent. He was very close
with his son. Gerald’s death had been very difficult on the
family and left an unexplainable void in their everyday lives. He
continued to ask himself why this had happened but knew he
would never get an answer. Denise Gerald, Gerald’s sister,
testified that her brother “was and still is probably the finest
person I have ever been able to spend time with; funny, passive,
life loving, comical, [and] warm. He was a very wonderful
person.” She testified that Gerald’s death “has taken [my]
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mother from me. She is alive but part of her died with that one
phone call. I lost my father that I knew.”
Diane Allen, Kathleen Allen’s sister, testified that
Kathleen “was a very strong, intelligent person” who always
made her laugh and always had the answer to a problem. Her
sister’s death “destroyed” her family; her mother could not
handle losing her daughter. Diane missed her sister very much,
and she felt it was not fair that Kathleen missed out on so much
in life.
Dwight Stapley, Scott Stapley’s father, testified that
Stapley played a lot of sports growing up and was very active.
While Stapley was in community college, his parents lived in
separate houses due to their jobs and Stapley lived with his dad.
During that time, they “went from being father and son to
roommates, buddies,” and it was “quite a wonderful experience.”
His wife learned of their son’s death when a news anchor phoned
their home and left a message asking to talk. The way they
learned of his death was difficult for the family. Dwight
explained that he and his wife carefully followed defendant’s
case and went to court proceedings in Canada, Calaveras
County, and Orange County. They had spent their life savings
traveling to court hearings. Their other children were just
starting to deal with the impact of losing their brother. Lola
Stapley, Stapley’s mother, testified that her son was “a great big
overgrown teddy bear. Everybody loved him.” His death left her
“absolutely devasted.” Stapley’s sister was pregnant when
Stapley was murdered and named her son after her brother.
The family keeps an empty chair at the table when they get
together for dinners to signify that Stapley was with them
spiritually.
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2. Defense Case
Several of defendant’s family members testified on his
behalf. Alice Shum, defendant’s aunt, testified that she lived
with defendant’s family during part of his childhood in Hong
Kong. Shum saw defendant’s father beat him with a stick for
getting poor grades in school or failing to complete his
homework. Defendant was a quiet child and did not talk to other
people very often. Shum moved to the United States in 1973;
defendant moved to the United States in 1979 to attend college.
Defendant visited Shum and played with her young sons.
Defendant sent Shum Mother’s Day cards and holiday cards
while he was in prison. Shum’s son, Hubert, testified that he
was eight years old when he last saw defendant and was 23
years old at the time of trial. He talked to defendant
occasionally when defendant called Shum. Hubert said that
defendant means a lot to him, and he thought that they would
have been close if not for this case.
Defendant’s sisters, Alice and Betty, did not testify but
their statements made to a psychologist were introduced by way
of stipulation. Alice explained that they had a sheltered and
protective upbringing, and she believed the three siblings
tended to be naïve, easily influenced, gullible, and overly
trusting of others. She described defendant as “curious and
naughty” and said he liked to play pranks on other people. Alice
related that their father punished defendant for his
transgressions by hitting him with a feather duster cane. Betty
explained that during his teenage years, defendant appeared
sad most of the time, would sleep in the afternoon after coming
home from school, appeared withdrawn and lonely, and did not
speak to other family members very much. She opined that
their protective upbringing resulted in her, Alice, and defendant
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being dependent on others to make decisions for them. Betty
believed defendant was kind at heart.
Defendant’s father, Kenneth Ng, testified. Education was
very important to Ng, and he worked hard to have his children
accepted into private schools. He admitted punishing defendant
for not doing his homework or for not getting good grades. He
would beat defendant “very hard” with a stick. Ng
acknowledged that, looking back, there might have been a better
way to discipline and teach his children. Defendant’s mom, Oi
Ping Ng, also testified. She explained that defendant was very
shy as a child and did not talk much. She knew that Ng beat
defendant, but she was unable to stop him.
Several witnesses testified about defendant’s time in the
Marines. Ray Guzman explained that he and defendant would
go to dinner or to the movies. They would sometimes stop at a
martial arts school and watch students practicing. He never
saw defendant involved in a fight with anyone. Hugh Daugherty
explained that defendant always followed orders and did
everything Daugherty asked him to do. Defendant was very
quiet and “did his own thing.” He had observed defendant
practicing martial arts. David Burns testified that he was
surprised to learn of defendant’s involvement with the armory
theft and said it was out of character. He occasionally observed
defendant practicing martial arts but never saw him fighting
with anyone. Bradley Chapline testified that defendant was
quiet, well spoken, and appeared to be well educated.
The defense presented expert testimony regarding
defendant’s character and mental state. Psychologist Abraham
Nievod conducted psychological testing on defendant in 1993,
1996, and 1998. Dr. Nievod also reviewed the reports from two
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court appointed experts who had also evaluated defendant. Dr.
Nievod explained that defendant scored very high on schizoid,
avoidant, and dependent personality disorders. Schizoid people
do not relate well with other people or know how to have long-
term relationships, which Dr. Nievod explained was consistent
with defendant’s history as a “loner.” People with avoidant
personality disorder avoid groups of people and forming close
relationships with people because they are afraid of being
rejected or failing. If they find one person they can trust, they
will model behavior after that person and will do almost
anything to maintain that relationship. Dr. Nievod opined that
defendant latched onto Lake as a sort of caregiver and as
someone who would teach him how to operate in the world.
Psychiatrist Stuart Grassian testified that in the previous
12 to 13 years, defendant had spent 10 years in solitary
confinement. After meeting with defendant, he observed
“terribly, very profound, very pronounced obsessional thinking.”
Dr. Grassian said that defendant was preoccupied with constant
hunger and smells, and “the enormous overriding preoccupation
with his desperate need to have Michael Burt reassigned to his
case.” Dr. Grassian testified that solitary confinement can affect
a person’s ability to think, concentrate, remember, and to
cooperate in their own defense. He described defendant as a
docile, passive, and compliant person. Dr. Grassian reviewed
Dr. Nievod’s reports and agreed that defendant suffered from
dependent personality disorder.
Psychiatrist Paul Leung specialized in Asian family
structure and culture. He explained that in a traditional Hong
Kong family at the time defendant grew up, the father is an
authoritative figure in the family, and children are expected to
do what their parents tell them to do. The father is sometimes
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viewed as a person for children to fear and the disciplinarian of
the family. Beating one’s children was not uncommon, but
defendant’s father was “a bit more harsh” than fathers in the
typical family. Parents generally have high expectations for
their sons, especially when there is only one son in the family.
Dr. Leung explained that defendant’s father had very high
expectations for him and disciplined him more because of those
expectations.
II. GUILT PHASE ISSUES
A. Right to Representation
Defendant raises several contentions regarding his right
to representation. First, he asserts the trial court deprived him
of his constitutional rights when it appointed the Orange
County Public Defender as standby counsel while he
represented himself. Second, defendant contends the trial court
erroneously revoked his right to represent himself without
justification. Third, he asserts the trial court abused its
discretion when it denied one of his motions to substitute
counsel, made during jury selection. Finally, defendant
contends the trial court abused its discretion when it declined to
appoint his preferred attorney as counsel.
1. Factual Background
Defendant’s representation in this case involved several
attorneys, 37 Marsden motions, and a brief period of
representing himself.
Proceedings began on June 8, 1985, when the Calaveras
County Justice Court issued a warrant for defendant’s arrest.
On July 15, 1985, the court appointed the Calaveras County
Public Defender to represent defendant, who at the time was in
custody in Canada. On December 10, 1985, the court appointed
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Garrick Lew, who had previous experience working with
defendant, to represent him. On January 14, 1987, the court
appointed Michael Burt as second counsel. Burt represented
defendant in San Francisco and worked for the San Francisco
Public Defender (SFPD), but the court appointed him as an
independent contractor. Shortly after, the United States asked
Canada to extradite defendant. On September 20, 1988, while
defendant was still in Canada, the court ruled that it lacked
jurisdiction to appoint counsel and removed Burt and Lew from
the case.
Defendant made his first appearance in Calaveras County
for arraignment on September 27, 1991. On October 4, 1991,
Burt and Lew filed a motion requesting appointment as counsel.
The motion included a declaration from defendant stating a
desire for Burt and Lew to represent him and to appoint the
entire SFPD’s office. At a hearing on the matter, Burt explained
that his current caseload included preparing two other capital
cases for trial. If SFPD were appointed to defendant’s case, a
second lawyer would get caught up on the case while Burt would
supervise the new attorney and Lew. He acknowledged that it
was possible sometime in the future he would have a scheduling
conflict, but if that were to happen, the second lawyer would be
able to handle the matter.
When the court asked Burt if he could give “adequate
representation to all three of these cases,” Burt admitted that
SFPD was “not excluding the possibility” of having a third
lawyer work on the case as well. Burt requested the court
appoint SFPD generally, rather than him personally, to the
case, because he did not believe he could adequately represent
defendant alone while also working on the other two cases. The
prosecutor argued that if Burt was not personally representing
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Opinion of the Court by Groban, J.
defendant, “it takes him outside the grounds for Harris, where
a client imposes a certain trust and confidence in a particular
attorney, and that particular attorney has a superior
understanding of the facts of the case.”5 He further expressed
concern that if Burt’s other cases took too much time, the
defense would request further continuances on defendant’s case.
The court noted that in a declaration submitted by Lew,
Lew stated that his practice would be in “jeopardy of financial
ruin” if he were appointed counsel in defendant’s case. Lew said
he had been with defendant for seven years and that “was not
something that you walk away from over money,” but he would
need “sufficient time” to tend to other clients and cases. Lew
stated that his estimates on how long it would take to prepare
the case for trial were dependent on whether Burt and SFPD
were also appointed.
The court denied defendant’s motion to have Lew and Burt
appointed based on concerns over Burt’s availability. The court
appointed Thomas Marovich and James Webster, both of whom
had capital case experience.
Defendant made his first appearance with Webster and
Marovich on November 1, 1991. Defendant filed a Marsden
motion and stated it was “imperative” that Burt and Lew
represent him. The court denied the motion. Three weeks later,
defendant filed a second Marsden motion again requesting Burt
and Lew as counsel. The court denied the motion. Between
January 10, 1992, and October 2, 1992, defendant filed nine
5
Harris v. Superior Court (1977) 19 Cal.3d 786 (Harris). In
Harris, we held that a trial court has the discretion to appoint
an indigent defendant’s counsel of choice in certain
circumstances. (Id. at p. 799.)
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more Marsden motions, again requesting appointment of Burt
and Lew, all of which the court denied. At each hearing, the
trial court addressed defendant’s concerns and allowed counsel
an opportunity to respond.
The preliminary hearing began on October 6, 1992, and
ended on November 12, 1992. Between October 6 and October
16, defendant filed five Marsden motions again requesting
appointment of Burt and Lew; the court denied each one on the
day each motion was filed.
On October 28, Webster and Marovich informed the court
that defendant was suing them for malpractice. Counsel argued
that the lawsuit created a conflict and continuing with the
preliminary hearing would violate State Bar rules. After
holding a recess to review relevant materials, the court declined
to continue the preliminary hearing or find that the lawsuit
created a conflict. The court noted that with two exceptions, the
lawsuit contained allegations previously addressed in Marsden
motions. The court stated that if it allowed the lawsuit to create
a conflict, then anytime a defendant was denied a Marsden
motion, the defendant would simply need to file a lawsuit
against counsel. Defendant filed three more Marsden motions
on November 3, 5, and 12, respectively.
On November 20, 1992, the Calaveras County District
Attorney filed an information charging defendant with the
current offenses, and the case moved from the Calaveras County
Justice Court to the Calaveras County Superior Court. On
December 2, 1992, the court temporarily reappointed Webster
and Marovich. The attorneys objected, arguing that defendant’s
lawsuit created a conflict of interest. The court declined to
dismiss them.
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On January 12, 1993, Marovich and Webster filed a
motion to set aside their appointment. They also asked the court
to designate separate counsel to prepare a motion seeking
appointment of defendant’s preferred counsel pursuant to
Harris. The court appointed Ephraim Margolin and Eric
Multhaup to prepare the Harris motion. The court denied
defendant’s 21st Marsden motion on June 9, 1993.
On July 26, 1993, Margolin and Multhaup filed a
combined Marsden and Harris motion requesting the court
discharge Webster and Marovich and appoint Burt and Lew. On
September 1, Webster and Marovich filed a motion to withdraw.
On December 8, 1993, the judge who had been handling
the case recused himself. The Judicial Council appointed
Donald McCartin, a retired judge from Orange County, to the
case. McCartin took the bench for the first time on January 21,
1994. He believed it was appropriate to grant the Marsden
motion but stated the venue change should precede
appointment of counsel. McCartin conditionally relieved
Marovich and Webster pending the appointment of new counsel
after the venue change.
The parties made their first appearance in Orange County
on September 30, 1994. The court noted that Burt and the SFPD
consented to appointment conditionally but certain of those
conditions could not be met, most notably trying the case in San
Francisco. The court further noted that even if it appointed
SFPD, according to its paperwork, the San Francisco Board of
Supervisors and the San Francisco Mayor could abrogate the
appointment. The court stated the case had already faced
significant delay and a review by the board of supervisors could
take years. The court denied defendant’s motion to appoint
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SFPD as counsel and instead appointed the Orange County
Public Defender (OCPD).
On July 29, 1996, defendant made his 23d Marsden
motion. The court granted the motion, relieved OCPD, and
appointed two attorneys from the court’s list of available capital
case counsel, Gary Pohlson and George Peters as counsel. On
August 9, defendant filed another Marsden motion seeking to
relieve Pohlson and Peters and reappoint OCPD. The court
denied the motion. Defendant filed a petition for writ of
mandate challenging the court’s decision, and on February 14,
1997, the Court of Appeal granted the petition. The appellate
court held that the trial court abused its discretion in relieving
OCPD and therefore erred in denying defendant’s subsequent
request to have OCPD reinstated. (Ng v. Superior Court (1997)
52 Cal.App.4th 1010, 1023–1024 (Ng).) The appellate court
ordered the trial court to reinstate OCPD and reassign the case
to a different judge. (Id. at p. 1024.) The case was reassigned
on February 24.
Defendant filed his 25th Marsden motion on May 27, 1997.
The trial court denied his request for separate counsel to handle
the Marsden claim and denied the motion. Defendant filed
another Marsden motion requesting Burt be appointed on
August 13, 1997, and again asked the court to appoint counsel
to assist him with the motion. On September 12, the court heard
argument on appointing Burt as counsel. Burt stated that his
office was available to accept appointment “depending upon the
circumstances of appointment and specifically issues of where
the case gets tried and when it gets tried and issues such as
funding.” On October 10, the court agreed to appoint Burt as
cocounsel if Burt and the presiding judge could agree on Burt’s
compensation. Defendant withdrew his pending Marsden and
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Harris motions. To accommodate Burt’s schedule, the parties
agreed to a trial date of September 1, 1998.
On January 16, 1998, defendant filed his 27th Marsden
motion and said he was reviving all related motions.
Additionally, Burt announced he could not accept the
appointment because he was not satisfied with the
compensation offered by the court. The court denied the
Marsden motion on February 6. Defendant filed his 28th
Marsden motion less than two weeks later, which the court
denied on March 20.
On March 31, 1998, defendant filed a motion to represent
himself, and on April 17, he filed his 29th Marsden motion. The
court denied the Marsden motion and deferred ruling on the
Faretta motion until the conclusion of defendant’s competency
hearing. After finding defendant mentally competent on April
20, the court denied the Faretta motion. The court ruled that
defendant did not want to represent himself, and his real
purpose was to obstruct justice and delay proceedings.
On May 8, 1998, defendant filed another Faretta motion.
At a hearing on the matter, he requested advisory counsel and
an investigative team not associated with OCPD. The court
again found the motion was made to obstruct justice and denied
defendant’s request. One week later, on May 15, defendant filed
another Faretta motion and stated he was willing to accept
anyone as his advisory counsel. The court granted the motion
and appointed OCPD as advisory and standby counsel.
On May 26, 1998, OCPD filed a motion to withdraw as
advisory and standby counsel. The court denied the motion. In
written comments on the motion, the court noted that it did its
best to try to have Burt appointed as counsel per defendant’s
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wishes. A few days later, defendant filed a motion to discharge
the OCPD as advisory and standby counsel. The court denied
the motion.
On August 5, 1998, defendant filed a motion to continue
the trial six months, to March 1, 1999. At a hearing on the
motion, the court reminded defendant that he had stated that
he would be ready to proceed on the scheduled trial date. The
court asked defendant if he wanted to continue representing
himself; defendant confirmed that he did. The court then asked
defendant why he specifically asked for six months. Defendant
said that if he was not ready to proceed in six months, then
counsel would take over to not cause any further delay. The
court stated that it was considering revoking defendant’s pro se
status and if, at the time trial started, he was ready to represent
himself, the court would reconsider a renewed Faretta motion.
The court ruled that defendant was not willing to cooperate with
OCPD in preparation for trial, was not actively preparing for
trial, and was “doing everything to avoid trial in the near
future.” The court revoked defendant’s pro se status and stated
that if he was able to comply with the rules of the court, it would
revisit the issue. The court reappointed OCPD and agreed with
OCPD’s assessment that the continuance motion was now moot.
On August 26, the defense moved for a six-month
continuance. The court denied the motion and instead granted
a two-week continuance. Defendant filed his 30th Marsden
motion on August 28, 1998, which the court denied.
Jury selection began on September 14, 1998. Defendant
filed his 31st Marsden motion the following day. The court
found that defendant was attempting to manufacture a conflict
and create a delay and denied the motion.
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Defendant filed two more Marsden motions during the
remainder of jury selection, both of which the court denied.
Defendant filed his 34th Marsden motion during the
prosecution’s case-in-chief, and his 35th motion during the
defense case. The court denied both motions. Defendant filed
his 36th Marsden motion after the prosecution finished its
closing argument; the court denied the motion.
After the jury returned its guilty verdicts, the court
learned that defendant had filed a malpractice lawsuit against
the OCPD. The lawsuit named defendant’s lead attorney and
one other deputy public defender as codefendants.
On June 3, 1999, after the conclusion of the penalty phase,
defendant filed his 37th Marsden motion. The court denied the
motion on June 30.
2. Public Defender’s Role
After granting defendant’s motion to represent himself,
the trial court appointed OCPD as standby counsel and
instructed OCPD to continue preparing for trial. Defendant now
contends the manner in which OCPD prepared for trial
conflicted with his own trial strategies. This conflict, he asserts,
interfered with his right to represent himself and thus violated
his rights pursuant to Faretta. Defendant specifically argues
that the instructions provided to a mental health expert by
OCPD conflicted with his own instructions, which caused the
expert to resign. He does not, however, explain what conflicting
instructions were provided to the expert and, as discussed
below, the record does not support his contention.
As previously noted, the trial court granted defendant’s
Faretta motion on May 15, 1998. The court appointed OCPD as
advisory and standby counsel. Counsel William Kelley opined
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that this put OCPD in conflicting positions. He said, “The
advisory counsel role, that we do just that, we advise Mr. Ng.
He is making the decisions on the case. We may say we think
that is a bad decision, but he can say, ‘Too bad. That is what we
are going to do,’ and then he is going to do what he is going to
do. Whereas, my role or our role as standby counsel would be to
go ahead and independently proceed and prepare as if we are
still the attorney of record, and that is that. My question to you
is what happens when those two roles clash? We say as attorney
of record in a standby role we think we need to go down this road
and as an advisory counsel we are advising Mr. Ng we have to
go down this road. He goes, ‘Nope. I am the attorney of record
on this case. We go down that road.’ ” The court replied, “Go
down both roads.” The court acknowledged the possibility of
problems but told Kelley, “I want you to do exactly what you
have been doing, and that is putting all your resources towards
trying this case in Mr. Ng’s best interest, and you are going to
do that as standby counsel. As advisory counsel, you are there
to advise Mr. Ng.” The court clarified that the government had
invested a lot of money in OCPD to represent defendant, and the
office had put in significant time and effort into preparing his
defense. The court explained it “is not a willy-nilly thing that I
am appointing your office over your objection to assist”
defendant as advisory counsel. The court warned that if
defendant made any attempt to disrupt proceedings or delay
trial, OCPD would be reinstated as counsel.
Just two weeks later, on May 26, 1998, OCPD filed a
motion to withdraw as advisory and standby counsel. Carl
Holmes, the Orange County Public Defender, explained that he
brought the motion “with great reluctance,” but his office
reached a point where acting as advisory and standby counsel to
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defendant would “compromise [their] ethical duty” to provide a
meaningful defense. Holmes continued that he could not,
without divulging confidence of defendant, reveal “how deep and
serious his mistrust of the Public Defender’s Office is.” The
court opined that defendant did not simply mistrust OCPD; he
mistrusted anyone who was not Burt. Holmes agreed with the
court’s assessment. The court stated that it had recently asked
defendant for an example of a true conflict between himself and
Kelley, and defendant could not provide one. The court
continued, “Appointing a different . . . advisory counsel will not
help at all. We will hear exactly the same thing we have been
hearing since day one. And that is why I asked you for examples
in camera, and those are the same problems you are going to
have with any attorney.” The court also stated that defendant
created a breakdown in his relationship with counsel, rather
than counsel’s actions or inactions causing a breakdown, and his
distrust of OCPD was because he did not want to trust OCPD.
The court denied the motion, finding no conflict, but stated that
if a true conflict arose the court would address it.
On June 8, defendant filed his own motion to discharge
OCPD as standby counsel. The court denied the motion,
reminding defendant that he had been willing to accept OCPD
as standby counsel when he filed his Faretta motion a few weeks
prior.
On July 21, both OCPD and defendant were directed by
the judge assigned to handle section 987.9 matters 6 to share
6
Section 987.9 authorizes a capital defendant to “request
the court for funds for the specific payment of investigators,
experts, and others for the preparation or presentation of the
defense.” (Id., subd. (a).)
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previously retained experts and separately apply for their own
funding for each expert, in lieu of requiring defendant to locate
and retain his own experts now that he represented himself.
The court explained that the experts had been in place for quite
a while, and it would be impossible for defendant to find new
qualified experts, get them caught up on his case, and conduct
testing and interviews by the September 1 trial date. The court
further explained that the defense had already retained top
caliber experts, and requiring defendant to select new experts
would, in essence, punish him by excluding those experts from
his defense. The court acknowledged the plan was not perfect
but believed that using the existing defense experts would best
facilitate defendant’s preparations for trial.
Kelley noted that using the same experts would require
him to know what the experts were working on for defendant,
but defendant told the experts not to disclose that information
to Kelley. He explained that this put him in a difficult position
and that the experts were “still giving [him] some general ideas
because they are uncomfortable with their role. Four experts
have called me up independently and said so.” Kelley agreed,
however, with the court’s statement that it would be a “real
gross violation” of defendant’s due process rights, given all of the
experts the defense had lined up, to suddenly require he find his
own experts. He argued that nonetheless, the experts were
“having difficulty with the position this puts them in.” The court
again acknowledged that “it’s not a perfect world” and that
Kelley was in an unusual position, and said that defendant could
get separate funding for his use of the experts without Kelley’s
assistance to avoid defendant needing to tell Kelley what he
uses the experts for. When the court asked defendant if he had
any concerns with the arrangement, he said not at that time.
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Approximately one month later, the court revoked defendant’s
pro se status and reappointed OCPD as counsel.
On August 25, after Kelly was reinstated as counsel, he
filed a motion to continue. He explained that a key expert
witness had resigned as a result of the different directives she
received from him and from defendant, and she could not
perform antithetical tasks. Kelley explained to the trial court,
“When [defendant] was given his pro. per. status, she was
having problems because, you know, I would want her — I am
interested in her developing information that I believe to be
pertinent to the defense of the substantive case, and [defendant]
was having her go in a different direction, and she was in a bit
of a dilemma because the direction he was having her go in was
going to put her in direct conflict with me. And she called me
up one day very disturbed and distraught about it and couldn’t
deal with it and felt she had a conflict of interest and told me
she had to resign from the case.”
Defendant now argues that there was significant conflict
between himself and OCPD regarding the strategy for
developing evidence. He asserts that the trial court’s insistence
that OCPD continue preparing for trial with strategies that
conflicted with his own violated his Faretta rights. But he points
to nothing specific in the record except for one example:
defendant asserts that his and OCPD’s conflicting instructions
to mental health expert Dr. Kaser-Boyd, and her subsequent
resignation interfered with his ability to represent himself.
Aside from vaguely asserting that he and OCPD instructed her
to prepare for trial in a “conflicted manner,” defendant does not
provide any additional information regarding how they each
provided conflicting instructions.
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The Attorney General asserts that defendant abandoned
his right to self-representation by failing to renew his request to
represent himself and thus acquiesced in subsequent
representation. Because defendant waived his Sixth
Amendment claim by failing to renew his request, the Attorney
General argues, defendant cannot claim on appeal that the trial
court violated his rights pursuant to Faretta by appointing
OCPD as standby counsel. After the trial court revoked
defendant’s pro se status, the court stated that if, at the time
trial started, he was ready to represent himself, the court would
reconsider a renewed Faretta motion. (See People v. Dunkle
(2005) 36 Cal.4th 861, 909 [the 6th Amend. self-representation
right may be waived or abandoned when a defendant prior to or
during trial acquiesces in the assignment or participation of
counsel in the defense].) Defendant counters that renewing his
request would have been futile because self-representation
would have been accompanied by the same allegedly
unconstitutional conditions the trial court had previously
imposed, namely requiring OCPD to remain as standby counsel.
We need not decide whether defendant waived his claim,
because there was no Sixth Amendment violation regardless.
The United States Supreme Court examined the role of
standby counsel in McKaskle v. Wiggins (1984) 465 U.S. 168. “In
determining whether a defendant’s Faretta rights have been
respected, the primary focus must be on whether the defendant
had a fair chance to present his case in his own
way. Faretta itself dealt with the defendant’s affirmative right
to participate, not with the limits on standby counsel’s
additional involvement.” (Id. at p. 177.) Standby counsel
unconstitutionally violates a defendant’s Faretta right if
counsel’s “participation over the defendant’s objection
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effectively allows counsel to make or substantially interfere with
any significant tactical decisions, or to control the questioning
of witnesses, or to speak instead of the defendant on any matter
of importance.” (Id. at p. 178.) Counsel also violates a
defendant’s right if, without the defendant’s consent, counsel
destroys the jury’s perception that the defendant is representing
himself. (Ibid.)
Because defendant did not represent himself by the time
voir dire began, we assess whether his Faretta rights were
vindicated with regard to proceedings occurring outside the
presence of the jury only. “Faretta rights are adequately
vindicated in proceedings outside the presence of the jury if
the pro se defendant is allowed to address the court freely on his
own behalf and if disagreements between counsel and the pro
se defendant are resolved in the defendant’s favor whenever the
matter is one that would normally be left to the discretion of
counsel.” (McKaskle v. Wiggins, supra, 465 U.S. at p. 179.)
Defendant contends the court’s insistence that he and
OCPD continue trial preparations irrespective of any conflict
“virtually guaranteed” that OCPD would substantially interfere
with his ability to make tactical decisions, but he cites only the
resignation of Dr. Kaser-Boyd as an example of how OCPD
allegedly interfered with his ability to prepare his defense.
Defendant contends he lost Dr. Kaser-Boyd as an expert witness
because she found it untenable to work for him and OCPD at the
same time, due to receiving conflicting instructions on how to
prepare for trial. Defendant, however, misapprehends the
reason Dr. Kaser-Boyd resigned from his case. Importantly, Dr.
Kaser-Boyd initially expressed concern about assisting
defendant before the court ruled that he and OCPD must share
experts. Dr. Kaser-Boyd wrote two letters to defendant. The
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first letter was written on July 15, 1998, two weeks before the
court ordered defendant and OCPD to share experts. The
second letter was written on July 30, shortly after the court’s
order. Together, these letters support a finding that, even before
the court issued the order that defendant claims resulted in Dr.
Kaser-Boyd’s resignation, she informed defendant of her desire
to resign for two different reasons: (1) she sought to resign
because of defendant’s desire to have her assist him in having
OCPD removed as advisory counsel, and (2) she sought to resign
due to defendant’s generalized distrust of her and OCPD.
In her first letter, Dr. Kaser-Boyd explained that
defendant’s request that she actively assist him in having OCPD
removed as advisory counsel likely created a conflict of interest.
She explained that because she was working with OCPD on
other matters, she could not also litigate against OCPD. Thus,
the dispute Dr. Kaser-Boyd described was not about receiving
conflicting tactical instructions from OCPD and defendant with
respect to her anticipated trial testimony. Instead, the issue
was that because she was working with OCPD on other matters,
she could not also assist defendant in litigating against OCPD.
This issue was not occasioned by the sharing of experts but,
instead, was created by the fact that, as Dr. Kaser-Boyd
explained in the letter, she “believe[d] that it likely would be a
conflict of interest for me to carry several open cases with
[OCPD] at the same time that I support your motion to have
[OCPD] removed as legal advisor for you.”
Dr. Kaser-Boyd also expressed concern in her first letter
that defendant “will never be sure that I am in your camp and
therefore supporting your best interests, and that this will
seriously undermine your trust of me.” She continued, “The
relationships are further contaminated by the fact that I was
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Opinion of the Court by Groban, J.
originally retained by [Kelley], against whom you now struggle.”
Dr. Kaser-Boyd concluded it would be better for defendant to
retain an expert that did not have any ongoing work with OCPD
and offered to help him find one. Thus, the record does not
compel defendant’s interpretation that he lost Dr. Kaser-Boyd
as an expert because he and OCPD were giving her conflicting
instructions.
Dr. Kaser-Boyd emphasized these same two reasons for
wanting to end the retention in a second letter on July 30, 1998.
She again explained that “after careful deliberation and
consultation with psychology and legal experts,” it would create
a conflict of interest for her to help defendant litigate to have
OCPD removed and also work with OCPD on other matters. She
again referenced defendant’s profound distrust of her and
OCPD. (“I regret that you feel that failing to help you on this
issue would mean that you would not speak to me on the main
issues of your case for which [Kelley] hired me”; see also the July
15, 1998 letter stating, “[You] will never be sure that I am in
your camp and therefore supporting your best interests, and
that this will seriously undermine your trust of me.”) Defendant
highlights the fact that Dr. Kaser-Boyd’s second letter also
referenced that the court’s recent ruling on sharing experts put
her in an “untenable position,” and she could not “serve two
masters.” It is clear from the letters, however, that Dr. Kaser-
Boyd expressed a desire to resign before the court issued its
ruling. Although she does indicate in her second letter that the
court’s ruling was another “reason” for her decision to resign,
she had already articulated in her first letter that she needed to
withdraw because defendant simply did not trust her or OCPD.
As the court explained to the public defender, “It is not his
mistrust of your office. It is his mistrust of anybody except
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Opinion of the Court by Groban, J.
Michael Burt.” During the hearing on OCPD’s motion to
withdraw as advisory counsel, the trial court further
underscored defendant’s distrust, stating, “It doesn’t matter
who is here [as advisory counsel], we are still going to have this
conflict because [defendant] is going to say, ‘Unless it comes
from Mr. Michael Burt, I disagree.’ That is what is going to
happen.” The record thus supports the finding that Dr. Kaser-
Boyd had decided to withdraw before the court issued its ruling
for reasons completely independent of that ruling.
Finally, even if Dr. Kaser-Boyd did ultimately resign in
part because of the directive to work on different tasks for
defendant and for OCPD, defendant has not shown that the trial
court’s order to share experts violated his constitutional rights
by preventing him from presenting his defense in his own way.
Specifically, defendant does not show that even if the defense
intended to call her as a witness and could not, the defense was
unable to introduce similar testimony from another expert. In
her July 15 letter, Dr. Kaser-Boyd opined that Dr. Nievod would
be a suitable alternate expert. Indeed, Dr. Nievod, who had
initially been appointed by OCPD, continued working with
defendant while defendant represented himself, including
evaluating defendant one day after the court’s order to share
experts and writing a declaration on defendant’s behalf nearly
two weeks later. The declaration, submitted along with
defendant’s motion for a renewed competency hearing, suggests
that Dr. Nievod planned to continue working with him despite
the court’s order to share experts, had the court granted
defendant’s motion for a competency hearing. Dr. Nievod
continued working with the defense once OCPD was reinstated
as counsel; the defense introduced his testimony on defendant’s
mental health during the penalty phase.
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In addition to arguing that OCPD’s interference with
experts led to defendant’s inability to represent himself,
defendant further argues that OCPD interfered with his rights
by interviewing witnesses on topics that were unlike those that
he sought to develop. Defendant does not cite anything in the
record to support his contentions. He does not identify specific
witnesses OCPD interviewed, and he does not identify on which
topics they were interviewed. Further, he does not identify how
OCPD possibly doing these things affected his ability to
represent himself or develop a defense.
In McKaskle v. Wiggins, supra, 465 U.S. 168, as in this
case, most of the incidents the defendant complained of occurred
outside of the presence of the jury. The high court noted that on
several occasions, the defendant adopted standby counsel’s
initiatives, and on several other occasions the defendant
opposed counsel’s initiatives. (Id. at p. 180.) The high court
found that standby counsel’s actions did not violate the
defendant’s Faretta rights because the defendant “was given
ample opportunity to present his own position to the court on
every matter discussed. He was given time to think matters
over, to explain his problems and concerns informally, and to
speak to the judge off the record. Standby counsel participated
actively, but for the most part in an orderly manner.” (Id. at
p. 181.) Importantly, at no point did the trial court adopt
standby counsel’s position over the defendant’s “on a matter that
would normally be left to the defense’s discretion.” (Ibid.)
Like in McKaskle v. Wiggins, supra, 465 U.S. 168, the trial
court here gave defendant ample opportunity to present his
positions on every matter discussed. Moreover, at no point here
did the trial court resolve a disagreement in OCPD’s favor,
rather than defendant’s favor. Although defendant opposed the
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order to share retained witnesses, OCPD strongly opposed the
court’s order as well. Defendant remained free to pursue his
defense in his own way and to address the court freely. Because
OCPD acting as standby counsel did not violate defendant’s
Sixth Amendment rights, the trial court did not err in
appointing OCPD and ordering counsel to continue to prepare
for trial.
3. Revocation of Self-Representation
Defendant contends the trial court erroneously revoked
his right to represent himself without justification.
As previously noted, the trial court granted defendant’s
Faretta motion on May 15, 1998. When the court asked
defendant if he would be ready for the scheduled trial date of
September 1, defendant replied that he would try his best. On
August 5, less than one month before the scheduled trial date,
defendant filed his motion to continue the trial for six months.
Two weeks later, on August 19, defendant filed a motion
for a new competency trial under section 1368. The court held
a hearing on the motion two days later. Defendant argued he
was not competent to proceed and requested the court call Dr.
Nievod to the stand. When the court asked what Dr. Nievod
would testify about, defendant said he did not sleep well the
previous night, was “real tired and confused,” and was unable to
concentrate on the hearings scheduled for that day. The
prosecution questioned whether the issue was competency or
whether defendant was fatigued that day; the court did not
know, either. When the court again asked defendant what Dr.
Nievod would testify to, defendant responded that he did not
know exactly and just wanted to establish for the court that he
had been up late the previous night and was tired. The
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prosecution argued that defendant was trying to delay and
manipulate proceedings. She 7 pointed out that the court had
four hearings scheduled for that day, and they had witnesses
who traveled great distances to be present. When the court
asked defendant if he wished to be heard on anything else,
defendant continued questioning the court’s decision to not have
Dr. Nievod testify and did not present any additional
information. The court stated that it had been watching and
listening to defendant, and there was nothing wrong with his
mental ability. The court found that defendant’s competency
motion was related to his motion to continue, that he was not
preparing for trial, and he was instead spending time and money
trying to delay trial. The court denied defendant’s competency
motion.
The court then turned to the continuance motion. The
court repeatedly asked defendant if he wanted to continue to
represent himself; he did not answer. The court asked
defendant when he expected to finish writing and filing his
pretrial motions, but he could not give an estimate. The court
asked defendant if he could estimate how long trial would take,
and he replied that he was “not thinking clearly right now” and
was “emotionally upset.” The court ordered a recess to allow
defendant a chance to gather his thoughts and present an
argument.
When proceedings resumed, the court again asked
defendant if he wanted to continue representing himself, and he
said that he did. The court asked defendant when he would be
7
The prosecution team consisted of one female prosecutor
and one male prosecutor. “She” and “he” are therefore both used
when referencing the prosecution.
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Opinion of the Court by Groban, J.
ready to go to trial, and he replied that he would be ready in six
months, as his motion for continuance indicated. Defendant
said that if he were not ready within that time frame, OCPD
would take over as counsel. The court again asked defendant
how long it would take to complete pretrial motions. When
defendant said he did not know, the court reminded defendant
that trial was scheduled to begin only 10 days later.
The court said that it was considering revoking
defendant’s pro se status, but if he was ready to represent
himself at the start of jury selection, the court would reconsider.
The court opined that defendant had not put any thought or
effort into getting ready for trial. The court commented that
defendant engaged in “games within games within games.” The
court found that defendant had not been sincere at his Faretta
hearing and was not willing to cooperate with OCPD in the
preparation of his trial. The court noted that defendant made
“unfavorable comments” every time a ruling was not in his favor,
and while it could not revoke defendant’s status because he
refused to prepare for trial, it could when defendant was
unwilling to abide by the rules of procedure and courtroom
protocol. The court noted that they were on the eve of trial, and
defendant was trying to obstruct and delay proceedings.
The court revoked defendant’s pro se status. The court
ordered the sheriff to permit defendant to retain his pro se
materials at the county jail, noting that it gave defendant the
option to make a renewed Faretta motion at or after the
beginning of his trial if he could do so in good faith and was
ready to proceed immediately.
A defendant’s Faretta right is subject to termination
whenever he engages in “ ‘deliberate dilatory or obstructive
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behavior’ [that] threatens to subvert ‘the core concept of a
trial.’ ” (People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
“When determining whether termination is necessary and
appropriate, the trial court should consider several factors in
addition to the nature of the misconduct and its impact on the
trial proceedings,” including: (1) “the availability and suitability
of alternative sanctions,” (2) “whether the defendant has been
warned that particular misconduct will result in termination of
in propria persona status,” and (3) “whether the defendant has
‘intentionally sought to disrupt and delay his trial.’ ” (Ibid.) The
intention to disrupt and delay trial is, in many instances,
sufficient to order termination. (Ibid.)
The trial court must make a thorough record establishing
the basis for termination. The record must include “the precise
misconduct on which the trial court based the decision to
terminate. [Citation.] The court should also explain how the
misconduct threatened to impair the core integrity of the trial.
Did the court also rely on antecedent misconduct and, if so, what
and why? Did any of the misconduct occur while the defendant
was represented by counsel? If so, what is the relation to
the defendant’s self-representation? Additionally, was the
defendant warned such misconduct might forfeit his
Faretta rights? Were other sanctions available? If so, why were
they inadequate? In most cases, no one consideration will be
dispositive; rather, the totality of the circumstances should
inform the court’s exercise of its discretion.” (Carson, supra,
35 Cal.4th at pp. 11–12, fn. omitted.) The trial court has
considerable discretion in determining whether termination of
Faretta rights is necessary to maintain the integrity and
fairness of proceedings. (People v. Becerra (2016) 63 Cal.4th 511,
518.) A court’s decision will not be disturbed absent a strong
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showing of clear abuse. (Ibid.; see People v. Welch (1999) 20
Cal.4th 701, 735.)
Defendant contends the trial court revoked his pro se
status on two grounds — he engaged in dilatory tactics and he
failed to abide by courtroom protocol — and that neither are
supported by the record. Defendant is mistaken. Substantial
evidence in the record supports the trial court’s decision that
defendant was engaging in dilatory tactics with the intent to
delay trial. After his extradition in 1991, defendant’s dozens of
motions continued proceedings until trial finally began in 1998.
Defendant filed a total of 37 Marsden motions, several of which
contained allegations that suggest the motions were not made
in good faith: counsel forgot information due to their old age and
“possibly their alcohol and drug use”; counsel were allied with
the prosecution; and counsel were participating in a conspiracy
to deprive him of his constitutional rights.
After the trial court granted his 23d Marsden hearing and
relieved OCPD as counsel, the prosecution filed a motion asking
the court to reconsider. The motion included a declaration from
Deputy Sheriff Dean Weckerle. Weckerle heard defendant tell
another inmate that when his case got close to trial date, the
inmate could file a Marsden motion so that his case would have
to start all over again. Defendant told the inmate that this
would stretch his trial into the following year, at which time the
inmate could make another Marsden motion and start the
process again with new lawyers. The court acknowledged that
it “had not fully appreciated all the things that have gone on
before” but denied the prosecution’s motion to reconsider.
One week after the court granted the Marsden motion,
defendant filed a motion requesting the court reinstate OCPD.
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The court denied the motion, and the subsequent litigation led
to a nearly six-month delay. Three months after the Court of
Appeal ordered the trial court to reinstate OCPD, defendant
filed yet another Marsden motion.
When counsel filed a motion declaring a doubt as to
defendant’s competency, defendant argued they were doing so
over his objection. After the court granted his request to
represent himself, he filed a motion arguing he was not
competent after all and requested a renewed competency
hearing along with his motion to continue.
Before the court granted defendant’s Faretta motion,
defendant assured the court he would accept OCPD as advisory
counsel. Just three weeks later, he moved to discharge OCPD
as advisory counsel, ostensibly as a dilatory tactic, knowing that
it would take new counsel several months to get caught up on
his case. The length of time needed for any attorney other than
OCPD to review the case was well known to the parties and
defendant; when the court granted the Faretta motion and
contemplated the appointment of advisory counsel, it opined
that it would take at least six months for an attorney to simply
review the case to determine if they could advise him. The
prosecution opined it could take an attorney up to one year.
Defendant’s request for a renewed competency hearing
further supports a finding that he engaged in dilatory tactics.
When OCPD filed a competency motion in early 1998, defendant
made clear that counsel was doing so over his objection. Indeed,
he accused counsel of using the competency proceedings to
“discredit [his] colorable claims against them and to falsely
project the possibility of reconciliation.” Two weeks after
defendant began to represent himself, in mid-May, he requested
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funding to employ a psychologist to evaluate his mental state
and subsequently filed a motion for a new competency trial.
Defendant argued he had a substantial change in circumstances
to warrant a new hearing, without providing evidentiary
support for his position. The court concluded defendant was
trying to delay proceedings when it denied his request, and the
record supports the court’s finding.
Defendant asserts that he worked diligently in the jail to
prepare and that jail personnel could attest to his hard work.
Although that may be true, the trial court acted well within its
discretion when it found, based on the record before it, that
defendant was using his pro se status to disrupt and delay trial.
The court did not abuse its discretion when it revoked his self-
representation on that ground.
Defendant further contends the trial court erroneously
revoked his pro se status because he was unable to abide by
courtroom protocol. The record, however, does not suggest the
trial court relied on this basis for terminating defendant’s
status. The trial court talked at length regarding defendant’s
many Marsden motions and the long delay preceding trial. The
court reminded defendant that when he refused to cooperate
with OCPD and had counsel relieved, he then requested OCPD
and Kelley be reappointed “after another tremendous amount of
time and money.” After defendant began to represent himself,
he again refused to cooperate with OCPD as standby counsel,
was not preparing for trial, and was “doing everything to avoid
trial in the near future.” The court further stated that the case
was “at the eve of trial,” and that defendant was “just trying to
obstruct” and “just trying to delay. And that is not allowed.”
Although the trial court also noted that defendant made
inappropriate remarks when a ruling was made not in his favor,
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as described above, it does not appear that the court relied on
that as a basis for revoking his status. Defendant argues
nonetheless that the trial court failed to warn him that his pro
se status could be revoked. The record does not support this
assertion. When the trial court granted his Faretta motion, it
warned defendant that if he attempted to delay or disrupt trial,
OCPD would be reinstated as counsel. On the day the court
terminated his pro se status, the court explained it was
considering revoking defendant’s status and ordered a break to
allow defendant to gather his thoughts and make an argument.
Finally, defendant contends the court failed to consider
alternative sanctions. Defendant points to his own suggested
sanction — that if he was not ready to proceed with trial in six
months, after his continuance, he would relinquish his pro se
status and proceed with OCPD as counsel. Based on defendant’s
frequent change of position regarding representation, however,
the record supports the trial court doubting defendant’s
assertion that he would step aside after six months and allow
OCPD to represent him. As previously noted, two weeks after
the trial court granted a Marsden motion to relieve OCPD in
1996, defendant sought to have OCPD reappointed. A few
months after OCPD’s reappointment, he filed another motion to
have them relieved. Defendant promised the trial court he
would accept OCPD as advisory counsel, and the court granted
his Faretta motion; just 12 days later, defendant filed a motion
to discharge OCPD as counsel. It was reasonable for the trial
court to believe that defendant would refuse to have OCPD
appointed six months later and demand new attorneys, further
delaying his trial.
Moreover, the trial court was not required to consider any
alternative sanctions. In Carson, we explained that when
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determining whether termination is necessary, the trial court
should consider, among several factors, the “availability and
suitability of alternative sanctions.” (Carson, supra, 35 Cal.4th
at p. 10.) Unlike in defendant’s case, the trial court in Carson
terminated the defendant’s self-representation because of out-
of-court conduct. When misconduct “is more removed from the
trial proceedings” or “otherwise less likely to affect the fairness
of the trial,” a complete termination of the defendant’s pro se
status may not be justified. (Ibid.) Out -of -court misconduct,
such as that in custody, for example, may not warrant revoking
a defendant’s status. (People v. Butler (2009) 47 Cal.4th 814,
826.) Here, defendant’s misconduct was not removed from the
proceedings; rather, his disruptions and attempt to delay were
central to them. We stated in Carson that intentionally
disrupting or delaying trial would often suffice as a reason to
terminate a defendant’s self-representation. (Carson, at p. 10.)
Thus, the trial court did not abuse its discretion under Carson
when it revoked defendant’s self-representation.
4. Denial of Marsden Motion
Defendant contends the trial court deprived him of his
constitutional rights when it denied his 31st Marsden motion,
made just after jury selection began. 8 He specifically contends
the court erroneously denied his request to call witnesses to
testify at the Marsden hearing, and the court should have
ordered OCPD to dismiss Kelley as his lead attorney.
8
Defendant claims the denial of some of his earlier Marsden
motions may have been error but notes that any error was likely
purged by the court’s grant of his Faretta motion in May 1998.
He is challenging the denial of his Marsden motion brought after
the court revoked his pro se status.
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Defendant filed his 31st Marsden motion on September
15, 1998, the day after jury selection began. In his motion, he
asked to call one of his attorneys, Deputy Public Defender Lewis
Clapp, as a witness at the Marsden hearing. In defendant’s offer
of proof, he explained that Clapp would testify that he tried to
cooperate with Kelley, he was not using his Marsden motions to
delay proceedings, he could trust other members of the defense
team but not if they worked under Kelley, and substantial
impairments to his representation had already occurred.
A few days later, on September 21, defendant filed a
request to also call Allyn Jaffrey, a deputy public defender with
OCPD, and Dr. Nievod to testify as witnesses at the Marsden
hearing. In his offer of proof, defendant explained that Jaffrey
observed his interactions with Kelley and personally witnessed
Kelley mistreating and provoking him, as well as undermining
his confidence. He stated that Jaffrey was willing to testify in
support of his motion to dismiss OCPD as counsel. In his offer
of proof regarding Dr. Nievod, defendant explained that the
psychologist would testify that his breakdown with Kelley
resulted from his mental state and that Kelley contacted Dr.
Nievod to dissuade him from testifying, threatening to rescind
his expert witness retainer.
The court held a hearing on September 21. Defendant told
the court that the witnesses would testify that there was an
irremediable breakdown between Kelley and himself, “and the
breakdown has permeated the rest of the defense case. And the
cause of the breakdown is not Michael Burt, but it is Mr. Kelley.”
Defendant complained that he was unfairly viewed as an escape
risk, and his attorneys did little to fight that assumption. Kelley
explained that he was struggling to find penalty phase evidence
to evoke sympathy and noted that defendant’s family was not
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cooperating. Because defendant’s family lived in Canada and
Hong Kong, Kelley could not subpoena them. Defendant argued
that Kelley was trying to place blame by insinuating that his
family was choosing not to cooperate, but rather they too just
did not trust Kelley. He told the court that Kelley was engaging
in “deception” because he did not want to relinquish control of
the case. Kelley responded that defendant “speaks very
generally” which makes it hard for him to respond and that
defendant could not cite to anything specific he had done that
suggested he was not working toward preparing the case.
The court asked defendant if he believed Kelley could “just
step down” from the case. Defendant opined that Kelley could
step down. The court asked defendant if he believed Carl
Holmes, the public defender, could override the court’s decision.
Defendant said no, but he thought Holmes could be more
truthful about the situation rather than “acting like there is no
conflict.” The court reminded defendant that Holmes never
denied a conflict existed between defendant and OCPD.
The court denied defendant’s request to call Dr. Nievod,
Clapp, or Jaffrey to the stand. The court stated that most of
what defendant wanted Clapp to testify about “are opinions that
he cannot make.” The court also noted that it was already aware
of most of the information contained in Jaffrey’s offer of proof.
The court further stated that it was “not going to take part in
creating a conflict between attorneys representing you,” which
it opined was what defendant was trying to do. The court later
continued, “I just think it is poor policy for the court to say,
‘Okay. You have three attorneys on your team. We are going to
divide them up. Put one on after another to see what they have
to say about your relationship with one of them.’ I am not going
to do that. In other words, Mr. Ng, I am willing to agree that
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there is a problem between you and Mr. Kelley, and you don’t
need Mr. Clapp or Miss Allyn Jaffrey to corroborate that.”
The court found that defendant was attempting to
manufacture a conflict and create a delay. The court denied the
Marsden motion.
“When a defendant seeks substitution of appointed
counsel pursuant to People v. Marsden [(1970)] 2 Cal.3d
118, ‘the trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of
inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.’ ” (People v. Taylor
(2010) 48 Cal.4th 574, 599.) We review a trial court’s denial of
a Marsden motion for abuse of discretion. (Ibid.) “Denial is not
an abuse of discretion ‘unless the defendant has shown that a
failure to replace counsel would substantially impair the
defendant’s right to assistance of counsel.’ ” (Ibid.)
Defendant first contends the trial court erred when it
denied his request to have Clapp, Jaffrey, and Dr. Nievod testify
at the Marsden hearing. The trial court, however, was not
required to call witnesses to adequately evaluate defendant’s
Marsden motion. Defendant cites several cases arguing
otherwise, but we do not understand these cases to stand for the
proposition, as he suggests, that a defendant must be permitted
to call live witnesses in a Marsden hearing. Rather, we read
these cases only to require that a trial court make an adequate
inquiry into the defendant’s motion, which in some instances
may include the calling of witnesses. (See U. S. v. Nguyen (9th
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Cir. 2001) 262 F.3d 998, 1005, 1003 [trial court did not conduct
a hearing, did not hear from available witnesses, and asked
“only a few cursory questions” before denying motion for new
counsel “without explanation”]; Schell v. Witek (9th Cir. 2000)
218 F.3d 1017 [court failed to hold a hearing or rule on the
defendant’s motion]; U. S. v. Gonzalez (9th Cir. 1997) 113 F.3d
1026 [court refused to hold a hearing after the defendant
accused his attorney of physically intimidating and coercing him
into accepting a plea deal; Ninth Circuit held the trial court
abused its discretion by not holding an evidentiary hearing
because a witness had allegedly seen the altercation between
the defendant and his attorney]; People v. Stankewitz (1982) 32
Cal.3d 80 [court acknowledged that the defendant could not
cooperate in a rational manner with his attorney but refused to
hold a competency hearing or grant a request to substitute
counsel].) The cases on which defendant relies, particularly
Nguyen and Gonzalez, are very different from the facts here.
Importantly, the trial courts in those cases failed to conduct a
hearing to determine the bases for the defendants’ motions.
Here, the trial court held a hearing on defendant’s motion and
inquired into the nature of the witnesses’ proffered testimony
before denying defendant’s request to call them. Additionally,
the trial court was well-versed in the conflict between defendant
and OCPD, and the proffered witnesses’ testimony offered no
information that the court did not already know.
The trial court had substantial information before it on
which to rule on the motion without needing to hear from
additional witnesses. This was defendant’s 31st Marsden
motion in which he largely repeated previous allegations. The
hearing on the motion lasted nearly three hours, during which
defendant detailed his complaints against counsel, and Kelley
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gave extensive responses. More importantly, defendant points
to no information that Clapp, Jaffrey, or Dr. Nievod would have
provided as witnesses that the court did not already have in
other forms.
Defendant also asserts the trial court erroneously failed to
direct OCPD to remove Kelley from the case and appoint
alternative trial counsel. Defendant argues that OCPD
reassigning a different deputy public defender to the case
“would have conserved much if not all of the prior work that the
[previous attorneys] had put into the case.” Defendant ignores
the fact that it would still take a new attorney a significant
amount of time to get caught up on the case and be ready to
proceed with trial. The trial court denied defendant’s motion
because it found he was attempting to create a delay; appointing
new counsel, even within OCPD, would have created a delay
regardless. (See People v. Smith (2003) 30 Cal.4th 581, 607 [“ ‘It
is within the trial court’s discretion to deny a motion to
substitute made on the eve of trial where substitution would
require a continuance’ ”].) Furthermore, based on the
proceedings before it, the trial court had reason to believe
defendant would refuse to cooperate with any counsel, and thus,
replacing Kelley would be fruitless.
The trial court did not abuse its discretion when it denied
defendant’s Marsden motion.
5. Refusal To Appoint Counsel
Defendant contends the trial court abused its discretion
when it declined to appoint the SFPD and Michael Burt to
represent him in 1994 and again in 1998.
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a. 1994 Request
As previously discussed, Burt and Lew were appointed to
represent defendant prior to his extradition from Canada and
then subsequently removed when the Calaveras County Justice
Court determined it lacked jurisdiction to appoint counsel.
Defendant made his first appearance in Calaveras County for
arraignment on September 27, 1991. On October 4, 1991, Burt
and Lew filed a motion requesting appointment as counsel. The
court denied the request due to concerns regarding Burt’s
availability and appointed attorneys Webster and Marovich.
Defendant subsequently spent several years attempting to get
Burt reappointed as counsel.
On January 21, 1994, the Calaveras County Superior
Court conditionally relieved Marovich and Webster pending the
appointment of new counsel after the venue transfer. After the
transfer to Orange County, on September 19, 1994, defendant
and the SFPD jointly filed a notice of conditional intent to
represent defendant and requested a hearing for “confirmation
of representation.” The pleading noted that seven of the charges
had vicinage in San Francisco, and it was “highly likely” that all
counts would ultimately be transferred to San Francisco. The
pleading included a declaration from Holmes, the Chief Deputy
Public Defender for Orange County. Holmes agreed that SFPD
should be appointed as counsel.
On September 20, SFPD sent the court a letter
enumerating its conditions for accepting appointment. SFPD
required an advanced approval of sufficient funding, a
“guarantee of the full amount of time which we will require” to
effectively represent defendant, and a “forum convenient to this
office trying the case.” SFPD suggested San Francisco as the
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appropriate forum. SFPD further explained that any tentative
agreement required approval by the SFPD, the San Francisco
Board of Supervisors, and the Mayor of the City and County of
San Francisco.
On September 28, SFPD filed a status report, noting that
they had been “making every effort to resolve administrative
and logistical issues affecting their ability to provide effective
representation” on the charges. SFPD identified three issues
that required resolution prior to appointment: the procedure for
providing compensation, the procedure for providing ancillary
defense funds pursuant to section 987.9, and an “assurance” of
at least two years to prepare for trial. SFPD requested the trial
court continue the hearing regarding representation for 30 days
to allow time to finalize the necessary arrangements.
The parties made their first appearance in Orange County
on September 30, 1994. The prosecution objected to the
continuance and requested the court appoint counsel at the
hearing. The court stated that counsel’s monthly bills had been
reviewed and paid until that point, and it did not understand
why SFPD needed another 30 days to determine payment on
ancillary funds. The court noted SFPD’s estimate that it would
need two years to prepare for trial and that new counsel would
need three years, along with SFPD’s request for a guarantee
that trial would not start for at least two years. The court found
it “absolutely unbelievable” that it would take Burt “or any other
competent defense death penalty counsel” two years to begin the
case. The court stated that “thirty days won’t help resolve these
issues” and denied the motion to continue.
The court moved on to the issue of representation.
Defense Counsel Multhaup explained that under section 987.05,
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both the defense and the prosecution had the right to present
evidence regarding the time necessary to prepare for trial, and
the court should then appoint counsel based on the ability of the
prospective defense attorneys to meet that reasonable date. The
prosecution responded that the Calaveras County court had
given Burt “a considerable amount of time” to make a reasonable
estimate of when he could be ready for the preliminary hearing,
that the defense had provided no documentation justifying why
it needed the time requested, and that new counsel would need
eight months to prepare. Multhaup requested a hearing to
determine the time required to prepare.
The court acknowledged that defendant had developed a
rapport with Burt but noted that Burt had only appeared for
defendant at one evidentiary hearing in 1991. The court stated
that the “interests of justice just can’t handle another delay of
two or more years which is required” and opined that any
competent attorney should be prepared to try the case in a
significantly shorter time. The court noted that regardless of
the amount of time required, SFPD has not consented to
appointment; consent was conditional, and the condition of
requiring a forum convenient to SFPD could not be met. The
court acknowledged that SFPD had “good reasons” for wanting
the case to be tried in San Francisco, but “that decision has been
decided adversely to their position.”
The court further noted that even if SFPD and Burt
consented to the appointment, it could be abrogated by the San
Francisco Board of Supervisors and the mayor, “so literally the
decision to accept is out of their control.” The court stated that
“it would be reasonable to assume that a political governing
body would have to take a close look at lending one of their most
experienced attorneys to another county for two to three or more
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years. They would have to look at it. There has been far too
much delay in this case, it’s time to get it moving.” The court
denied the motion and appointed OCPD.
Defendant asserts the trial court erred in several ways
when it declined to appoint Burt and SFPD as counsel: (1) the
court misinterpreted SFPD’s request to try the case in San
Francisco and abused its discretion in determining that SFPD
had not consented within the meaning of section 987.2,
subdivision (g); (2) the court ignored the requirements of section
987.05 when it appointed OCPD without conducting a hearing
as to readiness; and (3) the court failed to properly apply the
factors provided in Harris, supra, 19 Cal.3d 786. We conclude
none of these arguments are meritorious.
Section 987.2, subdivision (g), states that when an
indigent defendant is charged in one county and establishes a
relationship with the public defender and is subsequently
charged in a second county, the trial court in the second county
may appoint the public defender from the first county to
represent the defendant in both counties as long as three
conditions are met: (1) the offense charged in the second county
could be joined for trial with the offense charged in the first
county if it took place in the same county or involves evidence
which would be cross-admissible; (2) the trial court finds that
the interests of justice and economy will be best served by
unitary representation; and (3) counsel appointed in the first
county consents to the appointment.
“The appointment of counsel for indigent defendants
under section 987.2 rests within the sound discretion of the trial
court.” (People v. Horton (1995) 11 Cal.4th 1068, 1098; see
Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934–935.) “An
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abuse of discretion is not demonstrated, however, simply by the
failure of a trial court to appoint a particular counsel whom the
defendant has requested and who is willing to undertake the
appointment.” (Horton, at p. 1098.)
Section 987.05 states that a trial court shall appoint an
attorney who represents, on the record, that he or she will be
ready to proceed with the preliminary hearing or trial within the
statutory time or, in unusual circumstances, by a reasonable
time as determined by the court.
Taking each of defendant’s arguments in turn, first, the
trial court did not misinterpret SFPD’s request to try the case
in San Francisco. SFPD clearly informed the trial court that it
had three terms which the office “required” prior to accepting
appointment. One of those terms was a “forum convenient to
this office trying the case.” Defendant asserts that SFPD did
not demand the trial be held in San Francisco; they merely noted
it would be most convenient, and therefore SFPD did consent to
appointment. The trial court, however, did not abuse its
discretion when it determined that SFPD was requesting a
different forum. If SFPD considered Orange County a
convenient forum to try the case, they would not have had a
reason to include that as a condition of appointment. And as the
trial court noted, the venue for the case had already been
decided and there was no expectation that it would be
transferred again.
Second, defendant cannot establish prejudice from the
trial court’s refusal to conduct a readiness hearing pursuant to
section 987.05 regarding SFPD’s request for at least two years
to prepare for trial. Defendant argues that if the court had held
a readiness hearing prior to appointing OCPD as counsel, OCPD
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would “presumably” have presented evidence in support of a
trial two years more in advance of the date of appointment, after
which the trial court “would have been forced to reconsider its
refusal to appoint [SFPD] on that basis.” Defendant’s multiple
presumptions — that OCPD would have required at least two
years to prepare for trial and that the trial court would have
thus reconsidered its ruling regarding SFPD — are simply too
speculative to establish that he was prejudiced by the court’s
denial of his request to hold a hearing.
Third, the trial court did not fail to properly apply the
factors provided in Harris, supra, 19 Cal.3d 786. In Harris, we
held the trial court abused its discretion when it refused to
appoint requested counsel for two indigent defendants. A
complaint was initially filed in the municipal court, and after
the public defender declared a conflict, the municipal court
appointed counsel requested by the defendants. (Id. at p. 789.)
After an indictment was filed in the superior court on the same
matter, the People moved to dismiss the complaint in the
municipal court. The defendants requested the same attorneys
be appointed in the superior court, but the court denied the
request and appointed alternate counsel. (Id. at p. 790.) The
appointed attorneys joined with the defendants and the original
attorneys in a request to have the original attorneys represent
them. The court declined the request, stating that it had
considered the reputations of the appointed counsel among the
local bench and bar, their experience in proceedings of similarly
serious cases, and their certifications as criminal law specialists.
On appeal, we held the trial court’s refusal to appoint the
original attorneys was an abuse of discretion. (Harris, supra, 19
Cal.3d at p. 799.) We found significant that the requested
counsel had previously represented the defendants in related
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matters, during which the attorneys had established a close
working relationship with the defendants. (Id. at pp. 797–798.)
We further held that this relationship provided counsel with an
extensive background in factual and legal matters that might
become relevant in the current proceedings. The newly
appointed attorneys had acknowledged to the trial court that it
would take substantial amounts of effort and time to attain the
necessary background already possessed by the original
attorneys. (Id. at p. 798.) We also found significant that the
appointed attorneys vigorously supported the defendants’
requests for the original attorneys to be appointed, emphasizing
their unfamiliarity with the facts and legal issues involved. (Id.
at pp. 798–799.)
In People v. Daniels (1991) 52 Cal.3d 815, “we
acknowledged that uncertainty existed on the question
whether Harris, which permits discretionary appointment of
counsel for indigent criminal defendants, was applicable to
situations where the public defender was available for
appointment. Ultimately, however, we declined to address the
question because the facts presented in Daniels were factually
distinguishable both from Harris and from the situation where
a defendant is unable to cooperate with the available public
defender.” (People v. Cole (2004) 33 Cal.4th 1158, 1186.) We
again declined to address this question in Cole, noting that the
record in that case did not demonstrate that the relationship
between the defendant and the requested counsel ever
approached the depth of the relationship between the attorneys
and defendants in Harris. (Id. at p. 1187.) We further noted
that in Cole, unlike in Harris, the appointed attorney did not
seek to withdraw or actively support the other attorney’s
appointment.
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We need not now determine whether Harris applies when
the public defender is available because regardless, the trial
court did not abuse its discretion here. Like in Cole, the record
here does not suggest that defendant and Burt had formed the
relationship that existed between the attorneys and defendants
in Harris. The defendants in Harris, a husband and wife,
requested the appointment of Leonard Weinglass and Susan
Jordan, respectively, for the proceedings in 1976. Prior to that,
Weinglass had represented Mrs. Harris between October 1975
and August 1976 in proceedings brought on by an 11-count
indictment, including numerous pretrial motions and a six-week
trial. At the time of the Harris proceedings, he represented both
defendants on appeal from the prior judgment. (Harris, supra,
19 Cal.3d at p. 757, fn. 10.) In connection with that defense, he
coordinated facts and trial strategies with eight other people
also subject to criminal proceedings for activities in connection
with the so-called Symbionese Liberation Army; representation
in the current proceedings would require familiarity with
hundreds of pages of overlapping materials and many common
witnesses. Jordan had represented Mrs. Harris in federal
proceedings and consulted with her during the previous
proceedings with Weinglass.
In the present case, Burt had represented defendant on
September 27, 1991, at defendant’s first appearance after being
extradited from Canada. His prior representation had been
terminated in 1988 when the Calaveras County Justice Court
determined it lacked jurisdiction over defendant while awaiting
extradition. There is nothing in the record to support a finding
that Burt had devised defense strategies, researched legal
issues, or interviewed witnesses. Quite the opposite, in a
declaration to the court dated October 23, 1991, Burt
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acknowledged that he had conducted only a preliminary review
of minimal discovery materials and had yet to meet with
defendant since his return to California.
It is true that here, unlike in Cole, OCPD agreed to
withdraw from representation and supported defendant’s
motion to appoint Burt and SFPD. However, we find the lack of
depth in the relationship between SFPD and defendant to be
more significant here, and notably, unlike in Harris and in Cole,
SFPD did not fully consent to appointment. SFPD conditioned
its acceptance as counsel on specific terms that the trial court
could not meet; neither counsel in Harris, nor in Cole, presented
conditions to the court when requesting appointment.
The trial court did not abuse its discretion when it denied
defendant’s request to appoint SFPD in 1994.
b. 1998 Request
Following defendant’s 26th Marsden motion in August
1997, Burt told the trial court that his office was available to
accept appointment “depending upon the circumstances of
appointment and specifically issues of where the case gets tried
and when it gets tried and issues such as funding.” On October
10, the court agreed to appoint Burt as cocounsel if Burt and the
presiding judge could agree on Burt’s compensation. To
accommodate Burt’s schedule, the court set a trial date of
September 1, 1998. On January 16, 1998, Burt told the trial
court that “there has been discussion, various proposals, counter
proposals . . . we are at a point where I don’t think there is going
to be a resolution of this issue. I believe I have made my best
proposal. That has been rejected, and I don’t think there is any
further room to move at this point.” The court had offered to
pay Burt a salary, but he insisted on hourly compensation.
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On March 20, 1998, Burt told the trial court that he was
willing to pursue the option of replacing Kelley as lead counsel.
The court pointed out that it had previously been willing to
appoint Burt but that the financial arrangement did not work
out. Burt told the court that when they had previously discussed
his appointment, the plan was for him to join the existing team
with Kelley as lead counsel, and he would assist defendant and
Kelley in resolving their problems. When he previously told the
court that the financial arrangement did not work out, he also
believed “that the larger problem” was joining an existing team,
and he wanted to be lead counsel with a new team. Burt
explained that he was now willing to replace Kelley and keep
the rest of the OCPD team in place.
Burt noted that such an appointment would require
additional conversations with another judge about
compensation. Burt further stated that if he replaced Kelley, he
did not believe he would be ready by the trial date of September
1. He asked for the opportunity to take some time and then
report back to the court if he could be ready by September 1.
The prosecution did not oppose the appointment of Burt
but opposed a further delay in trial. She acknowledged that
defendant’s lack of cooperation made preparation difficult for
his attorneys but opined that the prosecution “should not be
penalized by delay of the trial.” In response, Burt explained that
he had not been connected to the case since 1991, and he needed
to review more than 100,000 pages of discovery. The court told
Burt that it was “not going to play that game,” and Burt should
not accept appointment unless he could be ready by September.
Burt replied that he could not commit to the September 1 trial
date without taking additional time to consider its feasibility.
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The court noted that Burt was still representing defendant
on separate San Francisco charges, which “has to include every
bit of what is going on” in Orange County. The court was,
therefore, surprised that Burt said he had not been involved in
the case since 1991. The court continued, “If you can make a
good faith representation that you could be ready, again
understanding that things do change, but a good faith
representation that you could be ready by September 1, fine;
come aboard. But just to get another delay, that won’t work.”
The court pointed out that it had “tried very hard” to have Burt
join defendant’s team, and it had previously set a trial date of
September 1 per Burt’s request. Burt declined to meet with the
presiding judge to discuss compensation, and the case proceeded
with Kelley as lead counsel.
Defendant contends the trial court’s refusal to appoint
Burt was “arbitrary on its face, and contrary to the spirit of
Penal Code section 987.05.” Defendant does not assert the trial
court actually committed legal error when it declined to appoint
Burt as counsel. To the extent we construe defendant’s claim as
one asserting error, we conclude the trial court did not abuse its
discretion. Burt had been seriously considering appointment for
several months prior to March 1998, and thus had ample time
to determine if he could be ready by September 1. When he
requested more time to decide, he did not provide the trial court
with a set date for when he would know if he could proceed, nor
did he provide the court with an estimate for how long a review
of the case would take. The trial court was not obligated to
provide Burt with more time, and defendant does not cite any
law suggesting otherwise. As the court explained at length on
the record, the court did not want to delay the case any further
and did not understand why Burt did not have enough
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information about the case to make a determination regarding
timing; when the court expressed confusion on this, Burt did not
offer an explanation. Additionally, Burt would not consent to
appointment on the date of the hearing. The trial court did not
abuse its discretion in refusing to appoint him as counsel.
B. Venue Change Proceedings
Proceedings in this case began in Calaveras County before
they were moved to Orange County, following a venue change
motion. Defendant contends the trial court made multiple
erroneous rulings and engaged in misconduct during venue-
related proceedings in both counties. He further contends the
trial court erroneously failed to transfer six counts from Orange
County to the City and County of San Francisco.
1. Procedural History
On April 24, 1991, while the case was still in the Calaveras
County Justice Court, defendant filed a motion to exclude the
public from the preliminary hearing. At a hearing on the
motion, defendant presented evidence that an “unusually high”
percentage of the public in Calaveras and Contra Costa
Counties had already prejudged defendant, as compared to
other high-profile cases.
In July 1993, defendant filed a motion to dismiss the
information pursuant to section 995, in which he argued that
Calaveras County lacked territorial jurisdiction over counts 2
through 7 — the Dubses, Cosner, Peranteau, and Gerald
murders — and instead, San Francisco was the proper venue.
Defendant further argued that trying those charges in
Calaveras County would violate his right to a jury drawn from
the vicinage where the crimes occurred, but a trial in San
Francisco would satisfy that requirement. The prosecution
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argued that Calaveras County did have territorial jurisdiction
and that the vicinage issue was unripe because defendant had
indicated he would waive vicinage by moving for a venue
change.
On December 8, 1993, the Calaveras County Superior
Court judge who had been overseeing proceedings recused
himself from the case. The presiding judge of the Calaveras
County Superior Court, who had previously been disqualified
from the case, asked the Judicial Council to assign a new judge.
In a letter to the Judicial Council, the prosecution stated that
all parties assumed venue would be transferred to another
county. The prosecution expressed a preference for Southern
California because of a reduced amount of publicity surrounding
the case. On December 30, 1993, the Judicial Council assigned
Judge Donald McCartin, a retired judge from Orange County, to
the case.
Judge McCartin held a status conference on January 21,
1994. Several issues were pending at the time, including
defendant’s motion to discharge Webster and Marovich, his
court-appointed attorneys, and replace them with Burt and
Lew. Webster and Marovich had also filed a motion to withdraw
from the case. At the hearing, defense counsel explained that
both parties stipulated that venue would be transferred out of
Calaveras County and that a change of venue was “a necessity.”
The prosecution agreed that a change of venue was needed but
did not believe that the City and County of San Francisco “has
any more right to the case than any other county in the state.”
The prosecution also noted that when the defense moved to close
the preliminary hearing, they presented opinion surveys done in
Contra Costa County, and defense experts testified that
defendant could not receive a fair trial in Contra Costa County.
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The prosecutor argued that San Francisco received the same
media as Contra Costa.
Judge McCartin stated that he wanted to take care of the
Marsden matter first. He indicated that it was appropriate to
grant the Marsden motion but wanted to wait to appoint new
counsel until the new venue had been selected. He opined that
wherever the case was assigned, it would be in a county large
enough to have qualified death penalty attorneys to handle the
case.
Defense counsel asked the court to address the vicinage
issue before venue, because if vicinage belonged in San
Francisco, it could affect the decision regarding venue. The
prosecution asked the court to rule on venue first. Judge
McCartin suggested the parties first stipulate to a venue
change, then refer the matter to the Judicial Council to select a
venue, and then raise any vicinage concerns after the case had
been transferred. He noted that publicity might be a concern in
San Francisco, but he had not read anything about the case in
Los Angeles or Orange Counties. Defense counsel agreed to
transfer the matter to the Judicial Council for a venue change
but stressed that any stipulation to a venue transfer would not
waive the vicinage issue. Judge McCartin told the parties to
submit documents for the court to forward to the Judicial
Council. Judge McCartin conditionally relieved defense counsel
pending the appointment of new counsel after the venue
transfer.
The parties stipulated to having the change of venue
matter referred to the Judicial Council. Defense counsel again
clarified that defendant reserved the right to challenge vicinage
for counts 2 through 7. Judge McCartin told the parties that
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they could submit additional materials to the court to be
forwarded to the Judicial Council for consideration.
Six days later, on January 27, Judge McCartin issued a
supplemental minute order informing the parties that he had
been mistaken about the procedure for changing the venue. He
explained that the Judicial Council would identify which
counties would accept the case, after which the court would
conduct an evidentiary hearing pursuant to McGown v. Superior
Court (1977) 75 Cal.App.3d 648 (McGown) to select a new
venue.9 Judge McCartin reappointed defense counsel to
represent defendant at the McGown hearing.
Both parties submitted letters to the court, to forward to
the Judicial Council, explaining their positions on venue and
vicinage. On February 1, 1994, the court forwarded to the
Judicial Council a set of relevant documents, including the
letters submitted by the parties.
On March 3, 1994, the Judicial Council informed the court
that Orange County and Sacramento County were willing to
accept the case. John Toker, an attorney for the Judicial
Council, explained that he had contacted the San Francisco
Superior Court, and they were not willing to accept the case. A
few days later, Toker sent a letter to the court stating that his
office received the documents sent by the parties in early
February, but they had been misplaced and he did not receive
9
McGown, supra, 75 Cal.App.3d 648 held that after a
motion to change venue is granted, the court must hold an
evidentiary hearing before determining where the case should
be transferred. (Id at p. 652.) Especially when the parties
disagree as to where the case should be transferred, a hearing
allows the court to resolve any factual issues contested by the
parties. (Ibid.)
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them until March 4. Toker explained, however, that the Judicial
Council’s role in the venue change matter was “ministerial,” and
it would not review any papers submitted “for legal or judicial
purposes.” Rather, the Judicial Council would rely on
information from the court based on its own review of any
pertinent evidence.
The court set a McGown hearing for April 8, 1994.
Because Judge McCartin was from Orange County, one of the
possible trial sites, the Judicial Council assigned a retired judge
from Siskiyou County to preside over the McGown hearing.
On March 14, 1994, defendant filed a motion requesting
the appointment of the SFPD — specifically, Burt — for the
limited purpose of the McGown hearing. The court denied the
motion, stating that Burt could seek appointment as counsel
after the selection of a new venue and transfer of the case. The
court acknowledged Toker’s note that the Judicial Council
would not consider the parties’ letters and explained that it had
“specifically advised” Toker that defendant requested San
Francisco while the prosecution preferred Southern California.
The court said that it had spoken with Toker, who had indicated
he was having difficulty finding counties that would accept the
case and that “San Francisco County specifically refused and
stated it cannot handle this particular case under any
circumstances.” The court concluded that it “has been obvious
from the beginning, and both parties have repeatedly stated,
that trial cannot be conducted in Calaveras County, and the
defendant’s statement that he cannot accept a choice of counties
that does not include San Francisco as a possible trial site is
beyond the power of this court to attempt to remedy.”
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On April 5, 1994, defendant filed a motion attempting to
revoke his agreement to have counts 2 through 7 transferred to
an alternate county unless that county was San Francisco. He
argued that those counts had vicinage in San Francisco and
must be tried there under the federal Constitution, and the
remaining counts should be tried in San Francisco as well to
further the interests of justice. He acknowledged that he had
previously agreed to have all the counts transferred to the
Judicial Council for assignment but asserted this was only on
the condition that he could submit materials for the Judicial
Council to consider.
That same day, defense counsel filed a motion for a
hearing “to correct miscommunications” regarding San
Francisco’s availability and to continue the McGown hearing.
Submitted with the motion was a declaration from Defense
Counsel Margolin, in which he described a conversation he had
with Judge Raymond Arata, the presiding judge of the San
Francisco Superior Court. Judge Arata confirmed that he had
spoken with the Judicial Council regarding defendant’s case but
had not been told that there was a related pending case against
defendant in San Francisco, had not been informed that
defendant had asserted vicinage rights in San Francisco on six
counts, had not been informed that a substantial number of
witnesses were located in San Francisco, had not been told about
defendant’s desire to be represented by SFPD, and had not been
informed that the parties estimated that trial would still be two
or three years away from that date. Judge Arata further stated
that he had not categorically refused for the San Francisco
Superior Court to take on the case under any circumstance.
Two days later, Webster and Marovich filed a motion to
suspend all venue-related proceedings. They asserted that
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defense counsel never stipulated to a change of venue for counts
2 through 7 and that the January 21, 1994, minute order
incorrectly reflected that defendant had agreed to do so. They
requested the minute order be corrected and that all venue
change proceedings be suspended because no stipulation had
taken place.
The parties met again on April 8 for the McGown hearing.
Before turning to the hearing, the court addressed the venue
change agreement and asked for the prosecution’s position on
the defense motion to suspend proceedings. The prosecution
opined that the defense motion operated as a severance motion
and suggested the court exercise its discretion and sever counts
2 through 7 for the remainder of the case. The court stated that
it had reviewed all of the materials submitted and most of the
record thus far and thought the parties all did “an outstanding
job” briefing the vicinage issue, and it was prepared to rule on
the vicinage issue if the parties wanted a ruling at that time.
Defense counsel again emphasized that defendant was not
waiving any rights regarding vicinage or the ability to challenge
vicinage at any time in proceedings. After pausing the venue
discussion to address press coverage, proceedings resumed at
which time defense counsel argued their motion that Burt be
appointed for purposes of the McGown hearing. The court
reiterated that counsel would be appointed after the case was
transferred to a new venue.
Defense counsel argued that the court could send counts 2
through 7 to San Francisco based on vicinage. He asserted that
San Francisco would have to take those counts, and the SFPD
and Burt would then be appointed. Then, he argued, the county
would likely have the rest of the counts transferred to San
Francisco as well. Counsel asserted that this was their “package
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solution, which seems to cut through the heart of the matter.”
Counsel explained that Burt recently had a “once-in-a-lifetime
leave of absence” to work on a high-profile murder trial in Los
Angeles, and he would not be able to travel to Southern
California “and make a Harris pitch” on defendant’s behalf.
Webster acknowledged that defendant had four attorneys
representing him in Calaveras County and Burt present in the
courtroom, but no one was prepared to move forward with the
McGown hearing and although he and Marovich were most
familiar with the case, they did not have defendant’s
cooperation. He asked the court to appoint Burt for the limited
purpose of advising defendant on the venue change matter and
the McGown hearing. The court addressed that request,
explaining it was inclined to deny it because defendant had four
competent attorneys present for the previous venue discussions
and the case needed to move forward. The court opined that “all
the hue and cry has arisen because San Francisco didn’t end up
as one of the trial sites.”
As to the Judicial Council’s selection of counties available
to hear the case, the court explained that, according to Toker,
the Judicial Council’s sole job was to determine which counties
would not be unduly burdened by the trial. The Judicial Council
did not consider vicinage “and all these other factors,” and it was
the trial court’s responsibility to hold an evidentiary hearing to
best serve the interests of justice. The court denied defendant’s
motion to refer the matter back to the Judicial Council, noting
that the council would not consider any additional information
regardless.
The court turned to the motion to continue the McGown
hearing. When Judge McCartin asked the defense why it
needed 60 to 90 days, counsel responded that they wanted to
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determine the levels of publicity in Sacramento and Orange
Counties and wanted to determine the racial compositions of the
potential jury pool in each county. The court stated it did not
know what the publicity was like in Northern California, but in
Southern California, the publicity was “nil.” The court denied
defendant’s motion to continue the McGown hearing, subject to
reconsideration by the judge presiding over the McGown
hearing. Judge McCartin noted that the parties could submit
additional materials within 30 days of the hearing if new data
warranted submission.
The court also ruled that it was clear from the record that
defendant did not waive any vicinage claims regarding counts 2
through 7, and the prosecution was estopped from raising any
waiver arguments on those counts resulting from defendant’s
stipulation to a venue change.
Lastly, the court denied the defense’s motion to correct the
“miscommunication” regarding San Francisco’s availability.
When Judge Kleaver took the bench later that same day
for the McGown hearing, he stated that the court would not
review any decisions made by Judge McCartin that morning.
Judge Kleaver noted that all parties agreed a venue change was
necessary due to pretrial publicity in Calaveras County. Judge
Kleaver stated that under McGown, and pursuant to California
Rule of Court, former rule 842 (rule 842), he did not have the
authority to order the venue be transferred to an undesignated
county and was limited to the two options that the Judicial
Council h
This text is long and has been trimmed here. Open the source document for the complete record.