Opposition Brief — Daniel Carl Frederickson, Petitioner v. California

No. 20-5760

In the Supreme Court of the United States

DANIEL FREDERICKSON,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JAMES WILLIAM BILDERBACK II

Senior Assistant Attorney General

JOSHUA PATASHNIK

Deputy Solicitor General

HOLLY D. WILKENS

Supervising Deputy Attorney General

RONALD A. JAKOB*

Deputy Attorney General

*Counsel of Record

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9149

Ronald.Jakob@doj.ca.gov

Counsel for Respondent

i

CAPITAL CASE

QUESTION PRESENTED

Petitioner Daniel Frederickson was convicted of first degree murder and

sentenced to death. Before the California Supreme Court, he argued that the

conviction violated his right under the federal Constitution to control his

defense at trial because California Penal Code Section 1018 prevented him, as

a self-represented defendant, from pleading guilty to a capital offense. The

California Supreme Court rejected Frederickson’s “constitutional challenge to

section 1018 on the ground that the trial court never made a ruling under

section 1018, and his claim is therefore forfeited.” Pet. App. A27. The question

Frederickson seeks to present is:

Whether Section 1018 violates the federal Constitution.

ii

DIRECTLY RELATED PROCEEDINGS

California Supreme Court:

People v. Frederickson, No. S067392, judgment entered February 3, 2020

(this case below).

California Superior Court, Orange County:

People v. Frederickson, No. 96CF1713, judgment entered January 9,

1998 (this case below).

iii

TABLE OF CONTENTS

Page

STATEMENT ..................................................................................................1

ARGUMENT ....................................................................................................5

CONCLUSION ..............................................................................................10

iv

TABLE OF AUTHORITIES

Page

CASES

Arkansas Game & Fish Comm’n v. United States

568 U.S. 23 (2012) .......................................................................................... 8

Ford v. Georgia

498 U.S. 411 (1991) ....................................................................................... 7

Foster v. Chatman

136 S. Ct. 1737 (2016) .................................................................................... 6

Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n

426 U.S. 482 (1976) ........................................................................................ 7

In re Van Brunt

242 Cal. App. 2d 96 (1966) ............................................................................. 7

Lockett v. Ohio

438 U.S. 586 (1978) ........................................................................................ 9

Martinez v. Ct. of Appeal of Cal., Fourth Appellate Dist.,

528 U.S. 152 (2000) ........................................................................................ 9

McCoy v. Louisiana

138 S. Ct. 1500 (2018) ...................................................................... 4, 5, 8, 10

Michigan v. Long

463 U.S. 1032 (1983) ...................................................................................... 6

North Carolina v. Alford

400 U.S. 25 (1970) .......................................................................................... 9

People v. Powell

6 Cal. 5th 136 (2018) ...................................................................................... 8

Sochor v. Florida

504 U.S. 527 (1992) ........................................................................................ 6

v

TABLE OF AUTHORITIES

(continued)

Page

STATUTES

Cal. Penal Code

§ 187(a) .......................................................................................................... 3

§ 190.2(a)(17)(A) ............................................................................................ 3

§ 1018 .................................................................................................... passim

§ 1203.06(a) ................................................................................................... 3

§ 12022.5(a) .................................................................................................... 3

CONSTITUTIONAL PROVISIONS

United States Constitution

Eighth Amendment ........................................................................................ 9

1

STATEMENT

1. On June 13, 1996, petitioner Daniel Frederickson entered the

HomeBase store in Santa Ana and fatally shot customer service manager Scott

Wilson in the head in the course of an attempted robbery. Pet. App. A10.

Within two or three hours of the shooting, Frederickson called the HomeBase

store and told a police officer posing as an employee, “I’ve never killed or shot

anyone before,” and “you need to tell your employees that money is not worth

getting killed over.” Id. Frederickson explained that he followed Wilson to the

safe, and became frustrated and shot Wilson when Wilson started counting

money instead of putting it in a bag or box as directed. Id.

The following day, police officers arrested Frederickson, searched his

residence, and found a .32-caliber revolver loaded with five live rounds and one

spent round of ammunition. Pet. App. A10. After police advised Fredrickson

of his rights to silence and counsel and he waived those rights, he told

investigators that he entered the HomeBase with “a game plan,” waited until

Wilson retrieved change for a customer, followed Wilson to the safe, and asked

Wilson to place the money from the safe in a box. Id. Wilson started counting

five-dollar bills instead of handing over the money, which made Frederickson

feel Wilson was ignoring him. Id. Surprised and “pissed off ” by Wilson’s

actions, Frederickson pointed the gun at Wilson’s head, fired the gun, ran out

of the store to his van, and drove away. Id.

2. In June 1996, at Frederickson’s arraignment in municipal court, in

accordance with Frederickson’s request, the Court appointed the public

2

defender to represent him. Pet. App. A15. Four months later, Frederickson

moved to represent himself. Id. The municipal court granted that motion and,

with Frederickson’s consent, appointed advisory counsel. Id. Under thengoverning California law, the case remained in municipal court until a

preliminary hearing had been held, at which point it would be transferred to

superior court. Id. at A23, A27.

On January 23, 1997, the superior court held a hearing to address

Frederickson’s request to replace his investigator. Pet. App. A16.1 At that

superior court hearing, Frederickson announced that he wanted to plead

guilty.

Id. at A17.

The Court acknowledged that request but informed

Frederickson that it could not accept his plea because “the issue as to whether

or not you’re going to plead guilty or waive a preliminary hearing is really not

before me today.” Id. The Court informed Frederickson that it would attempt

to assist in scheduling a hearing at which he could seek to waive his

preliminary hearing and plead guilty. Id.

Four days later, on January 27, Frederickson appeared at a hearing in

municipal court, where he renewed his request to plead guilty. Pet. App. A18.

The Court informed Frederickson that his request to plead guilty was

premature, that his preliminary hearing would be held on February 5, and that

he could seek to waive the hearing on that date. Id.; see id. at A26. The Court

1 Although

the case remained in municipal court because the preliminary

hearing had not yet occurred, the superior court was responsible for disbursing

investigative funds. Pet. App. A16.

3

explained to Frederickson that, by that time, “[y]ou will have had another nine

days to think about this and decide whether or not you truly want to waive the

preliminary hearing or not.” Id. at A18 (alteration omitted). Frederickson

agreed with that approach. Id.

The preliminary hearing occurred as scheduled on February 5. Pet. App.

A19.

Frederickson did not seek to waive the hearing, and the hearing

proceeded. Id. On February 24, Frederickson appeared in superior court with

his advisory counsel and entered pleas of not guilty and not guilty by reason of

insanity. Id. Frederickson represented himself at trial with the assistance of

advisory counsel. Id. at A10.

The jury convicted Frederickson of first degree murder. Pet. App. A9. It

found true a special circumstance that Frederickson committed the murder

while engaged in the commission of an attempted robbery as well as an

allegation that he personally used a firearm in committing the crime. Id.; see

Cal. Penal Code §§ 187(a), 190.2(a)(17)(A), 1203.06(a), 12022.5(a). In a sanity

trial during which Frederickson was assisted by advisory counsel, the jury

found Frederickson was sane at the time of the murder. Pet. App. A9, A12.

After a penalty-phase trial, during which the prosecution and defense

presented evidence of aggravating and mitigating circumstances, the jury

returned a verdict of death. Pet. App. A9.

The trial court imposed that

sentence. Id.

3. In

his automatic

appeal

to the California Supreme

Court,

4

Frederickson asserted that he had tried to plead guilty prior to trial but was

prevented from doing so by California Penal Code Section 1018, which requires

the consent of counsel for a plea of guilty to a capital offense, and Frederickson

was representing himself.

Pet. App. A21.

Frederickson argued he was

therefore denied his right to control his defense under McCoy v. Louisiana, 138

S. Ct. 1500 (2018). Pet. App. A21-23.

The California Supreme Court rejected this claim on the ground that it

was forfeited; the Court did not reach the merits. Pet. App. A23-27. It held

that if Frederickson “wanted to challenge the constitutionality of section 1018,

. . . he needed to request to plead guilty in the superior court and ask that court

to make a ruling based on section 1018, thus preserving the issue for appeal.

He never did so.” Id. at A23. The Court explained that under then-governing

California law, “[t]he municipal court had no jurisdiction in felony cases,” and

thus “could not convict a defendant on a plea of guilty, because it was not

authorized to render a felony judgment.” Id. “The most the municipal court

could do . . . was accept a stipulated waiver of the preliminary hearing and

then send the case to the superior court” for the entry of a guilty plea. Id. at

A27. But “when the day of the preliminary hearing arrived, [Frederickson] did

not renew his request to plead guilty.” Id. “Nor did he renew it in the superior

court after he was held to answer.” Id.

The Court noted that Frederickson “was apparently persuaded” by advice

he had received from the prosecutor “that he could not plead guilty.” Pet. App.

5

A26. Nevertheless, Frederickson “still needed to obtain a ruling and thus

preserve the issue.”

Id.

The Court reasoned that “[s]elf-represented

defendants are ‘held to the same standard of knowledge of law and procedure

as is an attorney,’ and that point remains valid even in capital cases.” Id.2

Justice Liu concurred in the judgment with respect to the challenge to

Penal Code Section 1018.

He would have held that Frederickson had

adequately preserved his claim that Section 1018 is unconstitutional in light

of McCoy, but would have rejected the claim on the merits. Pet. App. A43.

ARGUMENT

This Court lacks jurisdiction to review Frederickson’s constitutional

challenge to Section 1018 because the California Supreme Court’s judgment

rested on its forfeiture holding, which is an adequate and independent state

law ground. Even if that were not so, this would be an exceptionally poor

vehicle for reviewing Frederickson’s claim that he should have been allowed to

plead guilty, because this Court would be reviewing the merits of that claim in

the first instance.

In any event, as Justice Liu explained in his opinion

concurring in the judgment, the claim is meritless.

1. “This Court lacks jurisdiction to entertain a federal claim on review of

a state court judgment if that judgment rests on a state law ground that is both

independent of the merits of the federal claim and an adequate basis for the

2 The

Court struck an improperly imposed restitution fine, affirmed the

judgment in all other respects, and denied Frederickson’s petition for

rehearing. Pet. App. A9, A42, B1.

6

Court’s decision.” Foster v. Chatman, 136 S. Ct. 1737, 1745 (2016); see also

Michigan v. Long, 463 U.S. 1032, 1037-1042 (1983). That principle precludes

this Court’s review of judgments resting on state law rules regarding forfeiture

and preservation of issues for appeal. For instance, in Sochor v. Florida, 504

U.S. 527 (1992), the Court held that it lacked jurisdiction to review the

petitioner’s claim that a jury instruction given by the trial court was

unconstitutional. Id. at 533-534. The Court explained that the opinion of the

Florida Supreme Court “indicates with requisite clarity that the rejection of

Sochor’s claim was based on the alternative state ground that the claim was

‘not preserved for appeal[.]’” Id. at 534.

The California Supreme Court’s opinion here likewise rested squarely on

its forfeiture holding. The Court reasoned:

If defendant wanted to challenge the constitutionality of section

1018, . . . he needed to request to plead guilty in the superior court

and ask that court to make a ruling based on section 1018, thus

preserving the issue on appeal. He never did so. The claim is

therefore forfeited.

Pet. App. A23; see also id. at A27 (“We . . . reject defendant’s constitutional

challenge to section 1018 on the ground that the trial court never made a ruling

under section 1018, and his claim is therefore forfeited.”). This Court thus

lacks jurisdiction to review Frederickson’s federal claim.

Frederickson contends that the California Supreme Court misapplied

state law in reaching its forfeiture holding. Pet. 26-35. For example, he

maintains that “at the time of [his] case, although a defendant was allowed to

7

plead guilty in a capital case in a municipal court, . . . that plea could not be

accepted.

There was no statute governing what should be done in these

circumstances.” Id. at 29. Even if Frederickson’s analysis of state law were

correct (which it is not), a state court’s misapplication of state law is not a basis

for this Court to grant certiorari.

This Court is “bound to accept the

interpretation of [a State’s] law by the highest court of the State.” Hortonville

Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488 (1976).

Frederickson also argues that this Court has jurisdiction to review his

federal claim because the forfeiture rule invoked below is not “firmly

established, regularly followed, and consistently applied.” Pet. 33 (citing Ford

v. Georgia, 498 U.S. 411, 423-424 (1991)). That is so, he asserts, because the

California Supreme Court’s analysis of the procedure required for the entry of

a guilty plea in his circumstances relied “sole[ly]” on “a 54-year-old, noncapital,

court of appeal case where the defendants waived the preliminary hearing in

order to plead guilty in superior court.” Id.; see Pet. App. A24 (citing In re Van

Brunt, 242 Cal. App. 2d 96, 101-102 (1966)).3

But that argument erroneously conflates the state law ground on which

the judgment below rests—forfeiture of an issue not preserved in the trial

court—with California law governing entry of guilty pleas in municipal court.

California courts, like other courts, routinely hold arguments forfeited when

3 That assertion is incorrect.

In fact, the California Supreme Court cited and

discussed numerous statutes and cases on this issue. See Pet. App. A23.

8

they are asserted for the first time on appeal. See, e.g., People v. Powell, 6 Cal.

5th 136, 159 (2018). That is the ground on which the California Supreme Court

rejected as forfeited Frederickson’s claim that Penal Code section 1018 is

unconstitutional—that Frederickson failed to secure a trial court ruling that

section 1018 barred him, as a self-represented capital defendant, from pleading

guilty. Pet. App. A27; see also id. at A23. Even if Frederickson were correct

that he should have been able to enter a guilty plea in municipal court under

a correct interpretation of then-governing state law, that would not undermine

the California Supreme Court’s forfeiture holding.

Frederickson contends that “the record shows that section 1018 precluded

petitioner from pleading guilty,” Pet. 29 (capitalization omitted). He cites

Justice Liu’s opinion concurring in the judgment, which would have held that

Frederickson had preserved his McCoy claim. Id. at 30; see Pet. App. A43-45.

That argument seeks to re-litigate the state court’s interpretation of the trial

court record in light of state procedural law. This Court lacks jurisdiction to

entertain that argument, and review for that purpose would be unwarranted

in any event.

2. Even if this Court had jurisdiction to consider Frederickson’s claim

that Section 1018 is unconstitutional in light of McCoy, review would still be

unwarranted. This Court is “a court of review, not of first view.” Arkansas

Game & Fish Comm’n v. United States, 568 U.S. 23, 37 (2012). As this case

presents itself, however, the Court would be reviewing Frederickson’s

9

constitutional claim in the first instance. It was never considered by the trial

court, because Frederickson raised no objection to Section 1018 there. And it

was not addressed by the California Supreme Court majority in light of that

court’s forfeiture holding. Pet. App. 23, 27. Nor does the petition indicate that

any other court has reached the merits of the question Frederickson seeks to

present.

In any event, as Justice Liu explained in his opinion concurring in the

judgment (Pet. App. A45-48), Frederickson’s claim lacks merit. “‘[T]he right to

self-representation is not absolute,’ particularly in capital cases where there

are competing constitutional concerns.” Id. at A45 (quoting Martinez v. Ct. of

Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161 (2000)). Among those

concerns is the necessity, rooted in the Eighth Amendment, for “‘a greater

degree of reliability when the death sentence is imposed’ because of the

‘qualitative difference between death and other penalties.’”

Id. (quoting

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). And there is no

federal constitutional right to enter a guilty plea in the first place. See North

Carolina v. Alford, 400 U.S. 25, 39 (1970). In light of those considerations,

Section 1018 reflects a permissible attempt by the State to reconcile a

defendant’s right to self-representation with the need to ensure that every

death sentence meets a heightened standard of reliability.

Nothing in

McCoy—which involved a defendant’s right to insist on his factual innocence

10

in a capital case, not to acquiesce in a death sentence, 138 S. Ct. at 1508—

undermines that conclusion.

CONCLUSION

The petition for writ of certiorari should be denied.

Dated:

October 13, 2020

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JAMES WILLIAM BILDERBACK II

Senior Assistant Attorney General

JOSHUA PATASHNIK

Deputy Solicitor General

HOLLY D. WILKENS

Supervising Deputy Attorney General

RONALD A. JAKOB

Deputy Attorney General