People v. Montiel

MOSK, J.

I dissent.

On retrial of the issue of penalty after we reversed a judgment of death in People v. Montiel (1985) 39 Cal.3d 910 [ 218 Cal.Rptr. 572 , 705 P.2d 1248 ] (hereafter Montiel I), the question whether defendant’s life was to be taken or spared turned largely on the extent of his use of drugs and alcohol around the time of the offenses in question and on the degree of his resulting mental impairment. It was undisputed, as even the prosecutor’s expert witness had to admit, that defendant was then “obviously grossly intoxicated.”

In my view, defense counsel provided defendant with ineffective assistance in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.

To begin with, the trial was tainted by pervasive and serious deficiencies on the part of defense counsel related to pervasive and serious misconduct on the part of the prosecutor.

For example, the prosecutor improperly rested his case for death in part on the financial-gain special circumstance found by the jury at the original trial—which he urged weighed against any impairment on defendant’s part —in spite of the fact that he knew that in Montiel I (39 Cal.3d, supra, at pp. 927-928) we had set that finding aside. The majority concede, as they must, that what they understate as the prosecutor’s “mistake” is “serious and deeply troubling.” (Maj. opn., ante, at p. 926.) Defense counsel, however, failed to object.

The prosecutor proceeded to wrongfully press his case for death by suggesting that life imprisonment without possibility of parole did not mean life imprisonment without possibility of parole, in spite of the fact he knew that in Montiel I (39 Cal.3d, supra, at p. 928) we had reversed as to penalty because the trial court had given the so-called “Briggs Instruction,” which carried such a suggestion. Defense counsel, however, failed to object.

In addition, the prosecutor inexcusably used as substantive evidence Michael Palacio’s inadmissible hearsay relating defendant’s alleged confession, which he presented as weighing against impairment. The majority *948 concede, as they must, that the “confession” is the “only direct evidence that defendant consciously formed a criminal intent before he killed . . . .” (Maj. opn., ante, at p. 921.) Defense counsel, however, failed to object.

Similarly, the prosecutor inexcusably used as substantive evidence inadmissible hearsay by a defense expert witness at the original trial, which he presented as weighing against impairment. Defense counsel, however, failed to object.

Also, the prosecutor falsely insinuated that defendant’s father, mother, and sister recently fabricated their testimony about defendant’s extensive use of drugs and alcohol around the time of the offenses in question and his resulting substantial mental impairment. Defense counsel, however, failed to object.

Moreover, the prosecutor improperly impeached defendant’s former wife with a felony sale-of-heroin conviction, even though he must have known that under People v. Spearman (1979) 25 Cal.3d 107, 116 , footnote 5 [ 157 Cal.Rptr. 883 , 599 P.2d 74 ], which declared the governing, pre-Proposition 8 law, a witness could not be impeached with such a conviction. Defense counsel, however, failed to object.

In addition, the prosecutor wrongfully argued that the absence of mitigation amounted to the presence of aggravation, even though he must have known that in People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ], argument of this kind had been proscribed. Defense counsel, however, failed to object.

The trial was also tainted by pervasive and serious deficiencies by defense counsel unrelated to prosecutorial misconduct.

Most generally, defense counsel egregiously failed to prepare his case for life. This fact is revealed by even the most cursory review of the testimony of Louis G. Nuernberger, M.D., a psychiatrist. Dr. Nuernberger could have been a strong witness. But, because of counsel’s default, on cross-examination his credibility was undermined.

More specifically—to cite but a few instances—in the course of jury selection defense counsel inexplicably failed to peremptorily challenge a woman who was subsequently sworn as a juror, in spite of the fact that she had expressed views on the use of drugs that were unfavorable to defendant’s position. Also, in cross-examining a prosecution witness, counsel unnecessarily suggested that defendant had used a handgun in the Foster *949 Freeze robbery, even though the victim testified that he “thought it was a starter pistol.” Further, during direct examination of a defense witness, counsel, for no reason, elicited the fact that defendant had been in custody one month before the offenses in question. And, in summation, counsel argued, to no purpose and with no evidence, that defendant had almost killed his brother in a knife fight. Contrary to the majority’s assertion, counsel did not simply “fail[ ] to challenge” argument to this effect by the prosecutor. (Maj. opn., ante, at p. 931, fn. 27.) If only he had.

Considered together, defense counsel’s pervasive and serious deficiencies “resulted in a breakdown of the adversarial process at trial; that breakdown establishes a violation of defendant’s federal and state constitutional right to the effective assistance of counsel; and that violation mandates reversal of the judgment even in the absence of a showing of specific prejudice.” (People v. Visciotti (1992) 2 Cal.4th 1, 84 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ] (dis. opn. of Mosk, J.).) “ ‘The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective’ of punishment in accordance with deserts. [Citations.] In other words, ‘The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.’ [Citation.] It follows that the system requires ‘meaningful adversarial testing.’ [Citation.] When [as here] such testing is absent, the process breaks down and hence its result must be deemed unreliable as a matter of law.” (People v. Bloom (1989) 48 Cal.3d 1194, 1236-1237 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ] (conc. & dis. opn. of Mosk, J.).)

For these reasons, I would reverse the judgment of death.

Appellant’s petition for a rehearing was denied October 27, 1993, and the opinion was modified to read as printed above. Mosk, J„ was of the opinion that the petition should be granted.