Petition — Steelman v. All Continent Corp.

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80-6155

IN THE

RECEIVED

FEB 5 1981

OF THE CLERK

ore FC

SUPREME COURT OF THE UNITED STATES

October Term, 1980

EARL LLOYD JACKSON,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

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NO.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPPEME COURT OF CALIFORNIA

JOSEPH SHEMARIA

Attorney at Law

9000 Sunset Boulevard

Suite 1100

Los Angeles, California 90069

(213) 278-2660; 878-2822

Attorney for Petitioner

EARL LLOYD JACKSON

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' TOPECAL INDEX

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

STATUTORY PROVISIONS

A. The 1977 Legislative Enactments Which Are

Applicable to Petitioner's Case

B. The 1977 Initiative Which Subsequently

Changed the Death Penalty in an Effort

to Cure Constitutional Defects.

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

REASONS FOR GRANTING THIS WRIT

I. CALIFORNIA'S 1977 CAPITAL PUNISHMENT LAW

VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT

PROHIBITION AGAINST CRUEL AND UNUSUAL

PUNISHMENT.

A. THE CALIFORNIA LAW FAILS TO ESTABLISH

THE CONSTITUTIONALLY REQUIRED GUIDE-

LINES NECESSARY TO PREVENT THE IMPOS]TION

OF AN ARBITRARY AND CAPRICIOUS SENTENCE

OF DEATH.

1. The Requirement that the Aggravating

Factors Outweigh the Mitigating

Factors.

2. The Requirement that Aggravating

Factors Be Found Beyond a Reasonable

Doubt.

3. The Requirement of a Unanimous

Verdict in Finding Aggravating

Factors. 16

4. The Requirement of Written Findings. 17

B. THE CALIFORNIA LAW FAILS TO PROVIDE FOR

PROPORTIONALITY REVIEW. 18

II. PETITIONER, WHO HAS BEEN SENTENCED TO DEATH,

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WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

CONCLUSION.

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1 TABLE OF AUTHORITIES

® || Cases Page

3|| Anders v. California, 386 U.S. 738 (1967) 24

4 Furman v. Georgia, 408 U.S. 238 ‘/1972) 10,14,24

5 | Gregg v. Georgia, 428 U.S. 153 (1976) 11,17,19,23

6|/ In re Anderson, 69 Cal.2d 613 (1968) : 21

7| in re Lynch, ‘8 Cal. 3d 410 (1972) 21

8 | In re Winship, 397 U.S. 358 (1970) 15

9]| Jurek v. Texas, 428 U.S. 262 (1976) 11,16,19,24

10} Lockett v. Ohio, 438 U.S. 586 (1978) 24

11 || McMann v. Richardson, 397 U.S. 759 (1970) 24

12 People v. Carlson, 404 N.E. 2d 233 (111.1980) | 20

People v. Frierson, 25 Cal.3d 142 (1979) 21

People v. Howk, 56 Cal.2d 687 (1961) 21

People v. Jackson, 28 Cal.3d 264 (1980) 1,24

People v. Lookadoo, 66 Cal.2d 307 (1967) 21

People v. Merriam, 66 Cal. 2d 390 (1967) 21

People v. Mooney, 176 Cal. 105 (1917) 20

Powell v. Alabama, 278 U.S. 45 (1932) 24

Proffitt v. Florida, 428 U.S. 242 (1976) 11,16,18,19

Roberts v. Louisiana, 428 U.S. 335 (1976) 18,23

Rockwell v. Superior Court, 18 Cal.3d 420 (1976) 10

Rummel v. Estelle, 63 L.Ed.2d 384 (1980) 21

State v. Dixon, 283 So.2d 1 (Fla. 1976) 20

Weems v. United States, 217 U.S. 349 (1910) 21

Woodson v. North Carolina, 428 U.S. 280 (1976) 10,19,23

Constitution

United States Constitution, Pifth Amendment 16

Sixth Amendment 2,24

Eighth Amendment 2,9,16,21,25

Fourteenth Amendment 2,9

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Statutes

California Penal Code, §187

§190.2

§190.3

§459

§1259

Miscellaneous

California Voter's Pamphlet, General Election

November 7, 1978 (re Proposition 7)

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SFSSSSRSSRERESERREHRHEHRE ES

JOSEPH SHEMARIA

Attorney at Law

9000 Sunset Boulevard, Suite 1100

Los Angeles, California 90069

(213) 278-2660; 878-2822

Attorney for Petitioner

EARL LLOYD JACKSON

IN THE

SUPREME COURT OF THE UNITED STATES

EARL LLOYD JACKSON, NO.

PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

TO: THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES

OF THE SUPREME COURT OF THE UNITED STATES

The Petitioner, EARL LLOYD JACKSON, prays that a Writ of

Certiorari issue to review the judgment of the Supreme Court of

California, dated Cctober 23, 1980, affirming his conviction and

sentence of death.

OPINIONS BELOW

The Opinion of the Supreme Court of California is reported

at 28 Cal. 3d 264 (1980) and is attached as Exhibjt "A" to this

Petition. The Order denying the Petition for Rehearing in the

California Supreme Court is attached as Exhibit "B" to this

Petition. The date upon which the Petition for Rehearing was

denied by the California Supreme Court is December 10, 1980.

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JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C., Section 1254 and Rule 17 of the Rules of the Supreme

Court.

QUESTIONS PRESENTED

1. Whether the 1977 California death penalty statute

violates the Eighth and Fourteenth Amendment prohibition against

cruel and unusual punishment?

2. Whether the Petitioner, who has been sentenced to

death, was denied his Sixth and Fourteenth Amendment right to

the effective assistance of counsel at the penalty phase of his

trial?

CONSTITUTIONAL PROVISIONS

The Sixth Amendment provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously as-

certained by law, and to be informed of the

nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesggs in

his favor, and to have the Assistance of Counsel

for his defence.

The Eighth Amendment provides:

Excessive bail shall not be required, ner

excessive fines imposed, nor cruel and unusual

punishments inflicted.

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The Fourteenth Amendment provides:

Section 1. All persons born or naturalized

in the United States, and subject to the juris-

diction thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or erforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATUTORY PROVISIONS

The 1977 Legislative Enactments Which Are

Applicable to Petitioner's Case.

Penal Code, Section 190.2 provides:

The penalty for a defendant found guilty

of murder in the first degree shall be death or

confinement in the state prison for life without

possibility of parole in any case in which one

or more of the following special circumstances

has been charged and specially found, in a pro-

ceeding under Section 190.4, to be true.

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(e) The defendant was personally present

during the commission of the act or acts causing

death, and with intent to cause death physically

aided or committed such act or acts caugjng death

and any of the following additional cirgymstances

exists.

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(3) The murder was willful, deliberate,

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and premeditated and was committed during the

commission or attempted commission of any of

the following crimes:

* + *

(v) Burglary in violation of sub-

division (1) of Section 460 of an

inhabited dwelling house with an intent

to commit grand or petit larceny or rape.

* * *

(5) The defendant has in this proceeding

been convicted of more than one offense of murder

of the first or second degree, or has been con-

victed in a prior proceeding of the offense of

mapaer of the first or second degree. For the

purpose of this paragraph an offense committed

in another jurisdiction which if committed in

California would be punishable as first or second

degree murder shall be deemed to be murder in the

first or second degree.

Penal Code, Section 190.3 provides:

If the defendant has been found guilty of

murder in the first degree, and a special circum-

stance has been charged and found to be ge tibisia

the trier of fact shall determine whether the

penalty shall be death or life imprisonment without

possibility of parole. In the proceedings on the

question of penalty, evidence may be pregented by

both the people and the defendant as to any matter

relevant to aggravation, mitigation, and sentence,

including, but not limited to, the nature and

circumstances of the present offense, the presence

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or absence of other criminal activity by the

defendant which involved the use or attempted use

of force or violence or which involved the ex-

pressed or implied threat to use force of violence,

and the defendant's character, background, history,

mental candition and physical condition.

* * +

In determining the penalty, the trier of fact

shall take into account any of tie following

factors if relevant:

(a) The circumstances of the crimes of

which the defendant was convicted in the present

proceeding and the existence of ails special

circumstances found to be true pursuant to

Section 190.1.

(b) The presence or absence of criminal

activity by the defendant which involved the use

or attempted use of force or violence or the

expressed or implied theat to use force or

violence.

while tie defendant was under the influence of

extreme mental or emotional disturbance.

(ad) Whether or not the victim was a

participant in the defendant's homicidal conduct

or consented to the homicidal act.

(e) Whether or not the offense was

committed under circumstances which the defendant

reasonably believed to be a moral justjfication

or extenuation for his conduct.

(f) Whether or not the defendant acted

under extreme duress or under the substantial

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domination of another person.

(g) Whether or not at the time of the offense

_ the capacity of the defendant to appreciate the

criminality of his conduct or to conform his

conduct to the requirements of law was impaired

as a result of mental disease or the affects of

intoxication.

(h) The age of the defendant at the time

of the crime.

(i) Whether or not the defendant was an

accomplice to the offense and his participation

in the commission of the offense was relatively

minor.

(j) Any other ciccumstance which extenuates

the gravity of the crime even though it is not a

legal excuse for the crime.

After having heard and received all of the evidence,

the trier of fact shall consider, take into account

and be guided by the aggravating and mitigating

circumstances referred to in this section, and

shall determine whether the penalty shall be death

‘or life imprisonment without the possibility of

parole.

The 1978 Initiative Which Subsequently Changed

the Death Penalty in an Effort to Cure

Constitutional Defects.

Penal Code, Section 190.3 provides:

In determining the penalty, the trier of fact

shall take into account any of the following factors

if relevant:

(a) The circumstances of the crime of which

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the defendant was convicted in the present pro-

ceedings and the existence of any special circumstances

found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal

activity by the defendant which involved the

use or attempted use of force or violence. or the

express or implied threat to use force or violence.

felony conviction.

(d) Whether or not the offense was committed

while the defendant was under the influence of

extreme mental or emotional disturbance.

(e) Whether or not the victim was a

Participant in the defendant's homicidal conduct

or consented to the homicidal act.

(f) Whether or not the offense was

committed under circumstances which the defendant

reasonably believed to be a moral justification

or extenuation for his conduct.

(g) Whether or not defendant acted under

extreme duress or under the substantial domination

of another person,

(h) Whether or not at the time of the offense

the capacity of the defendant to appreciate the

criminality of his conduct or to conform his con-

duct to the requirements of law was impaired as a

result of mental disease or defect, or the affects

of intoxication.

(i) The age of the defendant at the time

of the crime.

(j) Whether or not the defendant was an

accomplice to the offense and his particjpation

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murder (California Penal Code, Section 190.2(c) (5)).

in the commission of the offense was relatively

minor.

(k) Any other circumstance which extenuates

the gravity of the crime even though it is not 4

legal excuse for the crime.

After having heard and received all of the ~

evidence, and after having heard and considered

the arguments of counsel, the trier of fact shall

consider, take into account and be guided by the

aggravating and mitigating circumstances referred

to in this section, and shall impose a sentence of

death if the trier of fact concludes that the

aggravating circumstances outweigh the mitigating

circumstances. If the trier of fact determines

that the mitigating circumsta:ces outweigh the

aggravating circumstances the trier of fact shall

impose a sentence of confinement in state prison

for a term of life without the possibility of

parole.

STATEMENT OF THE CASE

The Petitioner, EARL LLOYD JACKSON, was convicted after

a jury trial of two counts of first degree murder (California

Penal Code, Section 187) and two counts of burglary (California

Penal Code, Section 459). The jury found to be true two special

circumstances which allowed for imposition of the death penalty

under California law. The special circumstances were (1) the

commission of a wilful, deliberate and premeditated murder during

the course of a burglary (California Penal Code, Section

190(c) (3) (v)) and (2) the commission of a second act of

At the conclusion of a penalty trial, the jury

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returned a verdict of death. A sentence of death was thereafter

impused upon the, Petitioner by the trial judge. The judgment and

sentence were automatically appealed to the California Supreme

Court and the judqment and sentence were affirmed.

STATEMENT OF THE FACTS

Petitioner adopts the Statement of the Facts

contained in the Opinion of the Supreme Court of California,

which is attached hereto as Exhibit ie! ale

‘REASONS FOR GRANTING THIS WRIT

CALIFORNIA'S 1977 CAPITAL PUNISHMENT

LAW VIOLATES THE EIGHTH AND FOURTEENTH

AMENDMENT PROHIBITION AGAINST CRUEL

AND UNUSUAL PUNISHMENT

A. THE CALIFORNIA LAW FAILS TO ESTABLISH

THE CONSTITUTIONALLY REQUIRED GUIDELINES

NECESSARY TO PREVENT THE IMPOSITION OF

AN ARBITRARY AND CAPRICIOUS SENTENCE

OF DEATH.

California's 1977 capital punishment law! / violates the

constitutional prohibition against cruel and unusual punishment

because it fails to establish adequate guidelineg necessary to

Prevent the sentencing authority?/ from imposing an arbitrary

and capricious sentence of death. Four major deficiencies exist

in the statute.

l/ California Penal Code, Sections 190.2 and 190.3. See

Statutory Provisions, Supra,

2/ In California, the sentencing authority is the jury.

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aaa Of this Court. In Furman y,. Georgia, 408 U.S. 238

(

1972), the Court held unconstitutional Statutes which grant a

Priciously, Such death penalty statutes are "pregnant with dis-

crimination" (408 U.S. at 257) (Douglas Fox concurring) because

"there is no meaningful basis for distinguishing the few cases in

which it is imposed from the many cases in which it is not" (408

U.S. at 312-313) (White, J., concurring). They allow the death

penalty to be applicd “wantonly” and "freakishly" to a “capriciously

selected random handful." (408 U.S, at 309-310) (Stewart J.,

concurring)

discretionary Powers from the sentencing authorities. See,

Woodson y, North Carolina, 428 U.S. 280 (1976); Rockwell y,

EN Carolina eee Ve

Superior Court, 18 Cal. 3d 420 (1976). ‘these Statutes were

likewise held to be unconstitutional because the Eighth Amendment

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constitutionally indispensible part of the process of inflicting

the penalty of death." (Woodson V- North Carolina, supra, at

304)

In upholding the death penalty statutes in Georgia,

Florida and Texas, the Court was reviewing statutes that required

the sentencing authority to consider aggravating and mitigating

circumstances at 4 separate sentencing proceeding. Gregg _ V-

Georgia, 428 U.S. 153 (1976) ; Proffitt v. Florida, 428 U.S. 242

(1976); Jurek v- Texas, 428 U.S. 262 (1976). Where discretion is

afforded a sentencing body on the question of life or death,

“that discretion must be suitably directed and limited so as to

minimize the risk of wholly arbitrary and capricious action."

Gregg V.- Georgia, supra, at 189. Stated another way, “the

requirements of Furman are satisfied when the sentencing authority’

discretion is guided and channeled by requiring examination of

specific factors that argue in favor of or against imposition of

the death penalty, thus eliminating total arbitrariness and

capriciousness in its imposition." Proffitt v. Floricaa, supra,

at 258.

1. The Requirement that the Aggravating

Factors Outweigh the Mitigating Factors.

By far the most significant deficiency in California's

death penalty statute is the failure of the law to require that

the aggravating factors outweigh the mitigating factors before

the jury may return a verdict of death. By contrast, under

Georgia's law "The jury is not required to find any mitigating

circumstance in order to make a recommendation of mercy that is

binding on the trial court [citation omitted] , but is must find 4

statutory aggravating circumstance before recommending 4 sentence

of death." Gregg V- Georgia, supra at 197. Under Florida law,

the Supreme Court noted that, “Under the State law that decision

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turned on whether certain statutory aggravating circumstances

surrounding the crime outweighed any statutory mitigating

circumstances found to exist." Proffitt v. Florida, supra, at 246.

Under Texas law, this Court found that "Texas law essentially

requires that one of five aggravating circumstances be found

before a defendant can be found guilty of capital murder, and

that in considering whether to impose a death sentence the jury

may be asked to consider whatever evidence of mitigating circum-

stances the defense can bring before it. It thus appears that,as in

Georgia and Florida, the Texas capital sentencing procedure guides

and focuses the jury's objective consideration of the particularized

circumstances of the individual offense and the individual offender

before it can impose a sentence of death." Jurek v. Texas, supra,

at 273-274.

Although California law does establish statutory

aggravating and mitigating circumstances, the jury is given no

further guidance beyond two sets of lists. Penal Code, Section

190.3(j) simply states that "After having heard and received all

of the evidence, the trier of fact shall consider, take into account

and be guided by the aggravating and mitigating circumstances

referred to in this section, and shall determine whether the

penalty shall be death or life imprisonment without possibility

of parole."

In the jury instructions given in the Petitioner's case,

the jury was simply told that "You must now determine which of

the said penalties shall be imposed on defendant" -- death or

confinement in the state prison for life without possibility of

parole. (C.T. 312) The jury is further instructed as follows:

In determining which penalty is to be imposed

on defendant, you shall consider all of the evidence

which has been received during any part of the

trial of this case. You shall consider, take

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into account, and be ,guided by the following

factors, if applicable... (C.T. 313-315)

Nothing more than a list of aggravating and mitigating

circumstances is given. The California death statute does not

require the jury to find the existence of any aggravating factor

before it returns a verdict of death. Nor does California law

require that the jury weigh the aggravating circumstances sur-

rounding the crime with any statutory mitigating circumstances

found to exist as required by Florida law. Before death can be

constitutionally viewed as the appropriate punishment in any case,

the jury should be required to find that at least one aggravating

circumstance exists and that the aggravating circumstance(s)

outweighs the mitigating circumstance(s).

In 1978, this constitutional deficiency in California's

death penalty statute was recognized, and efforts were made to

change the law by way of the initiative ‘process. The 1978

amendment to Penal Code, Section 190.3 now provides, in

subdivision (k):

After having heard and received all of the

evidence, and after having heard and considered

the arguments of counsel, the trier of fact

shall consicer, take into account and be gyided

by the aggravating and mitigating circumstances

referred to in this section, and shall impgse a

sentence of death if the trier of fact concludes

that the aggravating circumstances outweigh the

mitigating circumstances. If the trier of fact

determines that the mitigating circumstances

outweigh the aggravating circumstances the trier

of fact shall impose a sentence of confinement

in state prison for a term of life without the

possibility of parole.

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These changes in the death penalty were clearly

designed to remedy constitutional defects in the 1977 death

penalty law. In the voter's pamphlet, the proponents of

Proposition 7 who placed the new statute on the ballot stated:

"The opposition can't understand why we

included the aggravating vs. mitigating cir-

cumstances provision in Proposition 7. Well,

{[any] first-year law student could have told

them this provision is required by the U.S.

Supreme Court. The old law does not meet this

requirement and might be declared unconstitutional,

leaving us with no death penalty at all!" (Calif.

Voters Pamp., Gen.Elec. (Nov.7, 1978), rebuttal

to argument against Prop. 7, p35)

The failure of the 1977 law to require this balancing

process means that the statute does not properly guide the

jury in their deliberations concerning who shall live and who

shall die. Death may even be imposed where the mitigating

circumstances far outweigh the aggravating circumstances.

California's 1977 death penalty law has not channeled jury

discretion in an effort to eliminate arbitrary and capricious

death sentences. The jury in Petitioner's case received no

greater guidance than did the jury in Furman v. Georgia, 408 U.S.

238 (1972) and therefore California's law is unconstitutional.

2. The Requirement that Aggravating Factors

Be Found Beyond a Reasonable Doubt.

The California death penalty statute does not require

the jury to find bey amd a reasonable doubt the existence of at

least one statutory aggravating factor. It further does not

require the jury to utilize the reasonable doubt standard in any

way during the penalty trial.

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This clearly conflicts with this Court's earlier

cases. In the case of In re Winship, 397 U.S. 358 (1970), it

was stated:

Less there remain any doubt about the

constitutional stature of the reasonable-doubt

standerd, we explicitly hold that the Due

Process Clause protects the accused against

conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the

crime with which he is charged. (Id., at 364)

The Georgia death penalty statute mandates that be fore

a death sentence may be returned, the sentencing authority must

find that at least one of ten statutorily-enumerated aggravating

factors exists and must "designate in writing...the aggravating

circumstance or circumstances which it found beyond a reasonable

doubt." (Gregg, supra, 428 U.S. at 166, fn.9) (emphasis added)

In Texas, the procedure requires, at the penalty phase,

\special findings in regard to statutorily specified aggravating

factors. The sentencing authority is required to answer certain

the probability of his future dangerousness, and the reasonable-

ness of his response to any provocation by the deceased. (Jurek,

supra, 428 U.S. at p.269) Only if the sentencing authority finds

beyond a reasonable doubt against the defendant on all relevant

factors shall a death sentence be imposed.

In California, in contrast to the Texas and Georgia

procedures, there is no requirement in the penalty trial that the

jury find any statutory aggravating factor beyond a reasonable

doubt. Indeed, the jury is not even told that in order to return

a death verdict, they must find beyond a reasonable doubt that

death is the appropriate verdict. Such inadequacjes in the

California law must render the law unconstitutiogal, not only

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questions concerning the deliberateness of the defendant's actions,

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under the Eighth Amendment, but also under wes 3 Due Process Clause

of the Fifth Amendment.

3. The Requirement of a Unanimous Verdict

in Finding Aggravating Factors.

Petitioner next contends that the California death penalty

statute as applied in the instant case violates the Due Process

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Clause of the Constitution and constitutes cruel and unusual

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punishment because there is no requirement for a unanimous finding

on one or more of the aggravating circumstances nor is there a

requirement for a unanimous finding that none of the mitigating

factors have been proven. In Proffitt, the Florida statute

withstood constitutional attack, on at least one ground, due to

the fact that the Florida statute provided that the jury determine

whether the mitigating circumstances which existed outweighed the

aggravating circumstances found to exist and required the jury's

verdict to be determined by a majority vote. (428 U.S., at 248-

249). The Texas statute required that the jury find that the

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state has proven beyond a reasonable doubt the exjstence of all

three aforementioned questions before the death penalty could be

imposed. "If the jury finds that the answer to any question is

no, then a sentence of life imprisonment results," (Jurek v.

Texas, supra, at 269)

2»

Petitioner submits that the United States Supreme Court

has impliedly condemned the procedures under which a death verdict

is returned under California law inasmuch as there is absolutely

no guidance for the jury on how to apply the “mitigating” and

“aggravating"circumstances. As the Supreme Court noted in

Jurek: ;

Thus, in essence, the Texas statute requires

that the jury find the existence of a statutory

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‘aggravating circumstance before the death penalty

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may be imposed. So far as consideration of ag-

gravating circumstances is concerned, therefore,

the principle difference between Texas and the

other two States is that the death penalty is an

available sentencing option--even potentially--

for a smaller class of murderers in Texas.

Otherwise the statutes are similar. Each

requires the sentencing authority to focus

on the particularized nature of the crime.

Jurek v. Texas, supra, at 270-271.

Petitioner submits that the lack of a requirement of a

unanimous finding on one or more of the aggravating circumstances

combined with the lack of any requirement of a unanimous finding,

or even a majority finding for that matter, of any"mitigating”

factors renders the California death penalty statute highly

susceptible to arbitrary and capricious application in violation

of Furman.

4. The Requirement of Written Findings.

Petitioner next contends that the California statute is

constitutionally defective under the trilogy of United States

Supreme Court cases in that there is no requifement that the

jury return written findings as to what factors of aggravation

they found to be true and/or what factors of mitigation they found

not to be true in arriving at their verdict. In Gregg, the

Supreme Court noted that “Where the sentencing authority is

required to specify the factors it relied upon in reaching its

decision, the further safeguard of meaningful appellate review is

available to insure that death sentences are not imposed

capriciously or in a freakish manner." (428 U.S., at 195). Quite

clearly, the Georgia death penalty statute requires "specific

~1 To

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jury findings as to the circumstances of the crime or the

character of the defendant" prior to imposition of the death

penalty. (428 U.S., at 198)

In Florida, the sentencing authority is a judge and the

jury, through its majority vote, only renders an advisory verdict.

Shea “eaten at 248-249) As noted by this Court, the “trial

judge is also directed to weigh the statutory aggravating and

mitigating circumstances when he determines the sentence to be

imposed on a defendant. The statute requires that if the trial

court imposes a sentence of death, ‘it shall set forth in writing

its findings upon which the sentence of death is based as to the

facts: (a) [that sufficient [statutory]] aggravating circumstances

exist...and (b) [t]hat there are insufficient [statutory]

mitigating circumstances...to outweigh the aggravating cir-

cumstances.'" (Proffitt v. Florida, supra, at 250)

Since California fails to provide a similar requirement

in its death penalty statute, Petitioner urges that the statute

be declared unconstitutional.

B. THE CALIFORNIA LAW FAILS TO PROVIDE FOR

PROPORTIONALITY REVIEW.

The California death penalty statute is also uncon-

titutional because of its failure to provide for proportionality

eview. "“Proportionality review" provides assurance that the

mposition of the death penalty in any given case is not dis-

roportionate to sentences handed down in other cases involving

imilar circumstances. See, Proffitt v. Florida, 428 U.S. 242,

50-251 (1976). In striking down the death penalty statutes in

rth Carolina and Louisiana, the Court noted that neither state's

aw provided for a meaningful appellate review that would limit

e arbitrary and capricious imposition of death. Woodson v.

orth Carolina, 428 U.S. 280, 302-303 (1976); Roberts v. Louisiana,

o}) §<

oon ane awn F

428 U.S. 335-336 (1976). The reasoning in Woodson and Roberts

coupled with an analysis of the statutes in Gregg, Proffitt and

Jurek strongly supports the argument that a capital punishment

law that fails to provide for appellate review which insures

proportionality of sentencing is unconstitutional because it aay

allow arbitrary and capricious sentences of death to be imposed.

In Gregg v. Georgia, 428 U.S. 153, 206 (1976) this Court

noted that proportionality review “substantially eliminates the

possibility that a person will be sentenced to die by the action

of an aberrant jury.” In upholding the Georgia death penalty

statute, the Court observed that the Georgia statute requires

"that the State Supreme Court review every death sentence to

determine whether it was imposed under the influence of passion,

prejudice, or any other arbitrary factor, whether the evidence

supports a finding of a statutory aggravating circumstance, and

"‘{w]hether the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, considering both the

crime and the defendant.'" (Gregg v. Georgia, supra, at 204)

Thus, under Georgia law, the State Supreme Court will not affirm

a death sentence "if the death penalty is only rarely imposed

for an act or it is substantially out of line with the sentences

imposed for other acts..." (Id., at 205)

The Florida and Texas statutes were similarly

analyzed for proportionality review. In Proffitt v. Florida,

428 U.S. 242, 251 (1976), it was noted that the Florida law

requires the State Supreme Court to review a sentence of death

"in light of...other decisions and determine whether or not

the punishment is too great." In Jurek v. Texas, 428 U.S.

262, 270 (1976), it was determined that Texas law insures that

a sentence of death “will only be imposed for the same type of

-19-

co ew eo ae wD Pe

0 3/

offenses which occur under the same type of circumstances.

In contrast with Texas, Florida and Georgia, California's

1977 death penalty statute does net provide for proportionality

review. The only review afforded by law in criminal appeals

is review of questions of law. See, People v. Mooney, 176 Cal.

105, 107 (1917) .47 Time and again, the California State Supreme

3/ The Supreme Courts of Texas and Florida have construed their

appellate review powers broadly to include the power to modify a

trial court's sentence whenever it is excessive and disproportionate}

State v. Dixon, 283 So.2d l, 10 (Fla. 1976); Jurek Vv. Texas, 522

S.W. 24 934, 939 (Tex. 1975). See also, People v. Carlson, 404

N.E. 2d 233, 244-245 (Ill. 1980) (sentence of death for the murder

of 2 police officer held not appropriate) .

4/ Penal Code, Section 1259 limits appellate review by stating:

Upon an appeal taken by tlhe defendant, the appellate

court may, without exception having been taken in the

trial court, review any question of law involved in

any ruling, order, instruction, OF thing whatsoever

said or done at the trial or prior to or after

judgment, which thing was said or done after objection

made in and considered by the lower court, and which

affected the substantial rights of the defendant.

The appellate court may also review any instruction

given, refused or modified, even though no objection

was made thereto in the lower court, if the substantial

rights of the defendant were affected thereby.

-20-

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Court has stated that it lacks the power to substitute its.

judgment concerning the penalty for that of the trier of fact.

In re Anderson, 69 Cal. 24 613, 623 (1968); People v. Lookadoo,

66 Cal. 2d 307, 327 (1967); People v. Howk, 56 Cal. 2d 687,

699-701 (1961). Furthermore, review on appeal is limited to a

consideraticn of matters contained in the record of the trial court

proceedings. People v. Merriam, 66 Cal. 2d 390, 397 (1967).

Thus, the ability of the court to compare a sentence of death

imposed in a particular case with sentences meted out in other

cases is severely limited.

In finding proportionality review, the California Supreme

Court in Petitioner's case referred to the earlier case of

People v. Frierson, 25 Cal. 3d 142 (1979). (Slip Opinion 67-68)

In Frierson, the Court held that proportionality review was

already a part of California law by virtuc of a series of non-

death penalty cases involving the Eighth Amendment. See, In re

Lynch, 8 Cal. 3d 410 (1972); Weems v. United States, 217 U.S.

349 (1910) :

However, this Court's recent opinion in Rummel v. Estelle,

ae ee 63 L.Ed. 2d 283 (1980) clearly indicates that the

Eighth Amendment standard in non-death penalty cases is not the

same that exists in death penalty cases. In Rummel, this Court

stated:

"The penalty of death differs from all other

forms of criminal punishment, not in degree but in

kind. It is unique in its total irrevocability.

It is unique in its rejection of rehabilitation

of the convict as a basic purpose of criminal]

justice. And it is unique, finally, in its absolute

renunciation of all that is embodied in our concept

of humanity.” [citation omitted]

This theme, the unique nature of the death penalty

2ile

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for purposes of Eighth-Amendment analysis, has

been repeated time and time again in our opinions.

[citation omitted] Because a sentence of death

differs in kind from any sentence of imprisonment,

no matter how long, our decisions applying the

prohibition of cruel and unusual punishments to

capital cases are of limited assistance in

deciding the constitutionality of the punishment

meted out to Rummel.

Outside the context of capital punishment,

successful challenges to the proportionality of

particular sentences have been exceedingly rare.

(63 L.Ed. 2d at 389-390) (emphasis added)

By equating the two standards, the California courts are

failing to provide a capital defendant with the constitutional ly-

required safeguard to prevent the imposition of an arbitrary

death sentence. But the central problem in California is the

absence of proportionality review within the statutory scheme.

ince California state appellate courts have never in the past

reviewed the sentences in capital cases for proportionality,

any change which occurs now in California law must come from the

legislature in order to insure uniformity and in order to create

ascertainable standards. The failure of the 1977 death penalty

Statute to provide those standards and adequate guidance to the

courts for proportionality review, requires the statute to be

declared unconstitutional.

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PETITIONER, WHO HAS BEEN SENTENCED TO

DEATH, WAS DEPRIVED OF HIS CONSTITUTIONAL

RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL.

In Gregg v. Georgia, 428 U.S. 153 (1976), and the

companion cases decided the same day, this Court held that

State death penalty statutes may neither make the penalty

mandatory nor give the jury or judge charged with determining

the penalty absolute discretion in the choice of life or death,

but must provide standards so that the sentencing authority

will “focus on the particularized circumstances of the crime

and the defendant." (Id., at 199) Mandatory death penalty

statutes which do not provide for “mearingful opportunity for

consideration of mitigating factors presented by circumstances

of the particular crime and by the attributes of the individual

offender" (Roberts v. Louisiana, 428 U.S. 325, 333 (1976)),

permits the imposition of capital punishment in violation of the

Eighth Amendment's prohibition of cruel and unusual punishment.

See also, Woodson v. North Carolina, 428 U.S. 280, 305 (1926).

"(I]n capital cases the fundamental respect for humanity underlying

the Eighth Amendment...requires consideration of the character

and record of the individual offender and the circumstances of

the particular offense as a.constitutionally indispensible part

of the process of inflicting the penalty of death." Woodson,

Supra, at 304.

Furthermore, the Eighth Amendment requires that the

sentencing authority in a capital case “not be precluded from

ebneteering as a mitigating factor, any aspect of the defendant's

character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than

=23<

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death." (Lockett v. Ohio, 438 U.S. 586, 605 (1978)) The reason

for this is that “the penalty of death is qualitatively different

from a sentence of imprisonment, however long. Death, in its

finality, differs more from life imprisonment than a 100 year

prison term differs from one of only a year or two. Because of

that qualitative difference, there is a corresponding difference

in the need for reliability in the determination that death is the

appropriate punishment in a specific case." (Furman v. Georgia,

402 U.S. 238, 306 (1972) )

In a capital case, the accused’ is not only entitled to the

right to counsel (Powell v. Alabama, 278 U.S. 45, 71-72 (1932)),

he is also entitled to the "right to the effective assistance cf

4 ‘

counsel." (McMann v. Richardson, 397 U.S. 759, 771 (1970)). The

right to the effective assistance of counsel places a duty upon

defense counsel to act as "an active advocate in behalf of his

client." (Anders v. California, 386 U.S. 738, 744 (1967))

Petitioner submits that an indigent defendant condemned by

a state to die has been denied his constitutional right to counsel

where his state-appointed counsel summons not a single witness,

presents no evidence of defendant's background and, in essence,

asks the jury to spare his client's life because murder "isn't going

to stop with Earl Jackson and you have to recognize that."

(People v. Jackson, supra, fn.14, at p.335, dissenting opinion by

Mosk, J.) In order to assure that the sentencing juries' attention

is properly focused on "...objective consideration of the

particularized circumstances of the individual offense and the

individual offender..." (Jurek v. Texas, supra, at 273-274), this

Court must insist upon counsel (in capital cases) carrying out the

mandate of this Court that the circumstances of the individual

offender are brought forth to the jury, unless compelling reasons

exist in the record for not so doing.

In Petitioner's case, the right to have the jury

. @24<

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consider the character and record of the individual offender

during the penalty phase of the trial was not afforded the

accused because his trial counsel neglected to present any evidence

of mitigation. Because of this unexplained failure on the part

of trial counsel, Petitioner's Sixth Amendment right to counsel was

violated and any death sentence imposed at the conclusion of such

proceedings would necessarily be in violation of the Eighth

Amendment. A more complete discussion of the facts of Petitioner's

case is contained in the dissenting opinion of Justice Mosk.

(People v. Jackson, 28 Cal. 3d 264, 319-336 (1980)) Briefly

summarized, Petitioner's trial counsel failed to produce any

evidence of mitigation at the penalty phase of the trial despite

the fact that a subsequent probation report was prepared by the

probation department containing a substantial amount of information

about the background of Petitioner which should have been presented

to the jury in mitigation of the penalty.

CONCLUSION

Based upon the foregoing, Petitioner urges that the

Petition for Writ of Certiorari be granted in his case.

Respectfully submitted,

JOSEP HEMARIA

Attorney for Petitioner

=25e

PEOPLE v. JACKSON

Crim. 20910

In re EARL LLOYD JACKSON

on Habeas Corpus

Crim. 21285

COUNSEL FOR PARTIES:

For Respondent:

For Appellant:

SUT.IME COUAT ;

FILED

OCT 2 3 1980

LAURENCE P. GILL, Cicrk

Deputy

Howard J. Schwab

Attorney General

3580 Wilshire Blvd.

Los Angeles, CA 90010

213-736-2212

Joseph Shemaria

9000 Sunset Blvd.

West Hollywood, CA 90069

213-278-2660

1nN

I'0

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and )

Respondent, ) Crim. 20910

) (Super. Ct. No.

Vv. ) AO18145)

)

EARL LLOYD JACKSON, )

)

Defendant and )

Appellant. )

)

In re EARL LLOYD JACKSON )

) Crim. 21285

on Habeas Corpus. )

)

Defendant Earl Lloyd Jackson appeals from a

judgment imposing the death penalty following his

conviction of two counts of first degree murder and two s

counts of burglary. He also seeks a writ of habeas corpus

based on his claim that he was ineffectively represented

by his trial counsel. AS will appear, we will affirm the

judgment, and deny the petition for habeas corpus relief,

In October 1977, defendant was charged with the

murders of Gladys Ott and Vernita Curtis, By a subsequent

amended information, he was charged additionally with

~~ SEE CONCURRING AND DISSENTING OPINIONS --

burglary of the residences of these two victims. AS

special circumstances authorizing imposition of the death

penalty under the 1977 law applicable to this case (former

Pen. Code, § 190 et seq.; all further statutory references

are to that code unless otherwise cited), the amended

information further alleged that (1) the Ott murder was

wilful, deliberate and premeditated and was committed

during the course of a burglary (id-, § 190.2, subd.

of first degree murder by killing Mrs. Curtis (id-, subd.

Initially a public defender was appointed to

represent defendant who then pleaded not guilty and denied

the special circumstances allegation. Thereafter, the

public defender's office declared that there existed a

conflict of interest and Attorney Veganes was appointed to

represent defendant. Numerous pretrial motions were made

on defendant's behalf by Mr. VeganeS, and denied by the

court, including motions to: (1) suppress defendant's

tape-recorded statement to police officers; (2) limit voir

dire examination cooneeine the prospective jurors’ beliefs

concerning the death penalty; (3) conduct the voir dire

examination of individual prospective jurors outside the

presence of the other veniremen; (4) exclude the public

audience during voir dire; (5) appoint an additional

counsel to assist during the penalty phase; (6) permit a

separate jury panel for the guilt and penalty phases; (7)

disclose the prosecutor's "jury book,” and (8) exclude as

unduly prejudicial certain photographs of the victims.

Voir dire examination of the prospective jurors

commenced on December 8, 1978, and was concluded on

December 19. The guilt phase of the trial thereupon

commenced and continued to January 8, 1979. Although

defense counsel cross-examined prosecution witnesses

extensively and presented a lengthy closing argument, he

offered no affirmative evidence on defendant's behalf and

defendant did not take the stand. The jury found

defendant guilty of two counts of first degree murder and

two counts of burglary in the first degree, as charged.

The jury also found to be true both of the special

circumstances which were alleged in the information.

The penalty phase commenced on January 9. The

People called two witnesses and rested; defendant

presented no mitigating evidence. Following extended

arguments by opposing counsel, the jury was instructed and

commenced deliberations. On January 12, the jury fixed

the penalty at death. Following denial of his motions for

new trial, for arrest of judgment, and for modification of

the verdict, defendant was sentenced to death for the Ott

murder and to state prison as prescribed by law for the

Curtis murder and the burglaries. The present appeal is

automatic. (§ 1239.)

We summarize the factual background underlying

defendant's offenses as gleaned from the trial record: On

August 29, 1977, her neighbors found Vernita Curtis, an

8l-year-old widow, lying unconscious on the bedroom floor

of her apartment in Long Beach. Her television set,

toaster and other items were missing. Mrs. Curtis lived

alone. Paramedics called to the scene observed that she

bore severe facial bruises and swelling, and subsequent

examination disclosed multiple injuries to her head, neck

and chest. After four days of hospitalization Mrs. Curtis

died of her injuries. ,

A neighbor lady, Ilena Gaines, testified at trial

that while Mrs. Curtis was being removed on a stretcher

from the Curtis apartment, defendant, an acquaintance of

Gaines, smiled and laughed and stated to Gaines, in the

words of the witness, that "He was the one who did that.

He said that he did that." On cross-examination Gaines

further testified that she had been living with Elton Boyd

who, in a separate trial, had been convicted of murdering

Mrs. Curtis. Other evidence adduced at trial disclosed

that Boyd was defendant's accomplice during commission of

the Curtis murder.

The preliminary hearing testimony of another

witness, Debria Lewis, was read into the trial record.

She described a conversation with defendant on September

11, 1977, during which defendant pointed to a newspaper

article reporting the Curtis murder and declared to Lewis,

"This is what I done." When Lewis asked defendant why he

had so acted, he replied "If she had just been still--had

been still and given him the money, that she woul have

been walking around today."

On September 7, 1977, Toni McDowell discovered

the body of her mother, Gladys Ott, a 90-year-old widow,

lying on a bed in Mrs. Ott's apartment which was directly

across a hallway from the lower floor apartment of Mrs.

Curtis who was both a friend and neighbor of Mrs. Ott.

According to the witness McDowell, the Ott apartment was a

"shambles" and a television set and toaster were missing.

Mrs. Ott's face was badly bruised and she appeared to have

been beaten to death. An autopsy disclosed numerous

injuries, including massive facial and neck bruises,

fractured ribs, and an extensive vaginal laceration

apparently caused by insertion of a foreign object.

Defendant's fingerprints were found on a closet doorjamb

and on other objects in Mrs. Ott's apartment. According

to the witness Lewis, defendant in his September 11, 1977,

conversation with her described both ladies, Mrs. Curtis

and Mrs. Ott, as “two old hags [who] were a nujsance and

» « « got what they deserved.”

A further witness, Debra Hall, defendant's

cousin, testified that defendant, in referring to a news

article concerning both the Curtis and Ott murders,

acknowledged "This is what I did, that it was because I

needed some money."

On learning that the police were seeking him,

defendant surrendered to the officers and agreed to make a

tape-recorded statement. In this Statement, after

initially denying any participation in the crimes,

defendant ultimately admitted that he and others had

burglarized both the Ott and Curtis apartments. Defendant

also admitted that during these burglaries he hit Mrs. Ott

once and held Mrs. Curtis while his accomplices were

Striking her.

Defendant's cellmates in the county jail, Mark

Mikles and Ronald McFarland, testified at trial that

defendant had admitted to them that he had killed both

women. According to these witnesses, defendant boasted

that he had repeatedly struck Mrs. Ott in the face, and

had used a wine bottle to attack Mrs. Ott sexually.

At the penalty phase of the trial the prosecution

introduced evidence regarding the aggravated nature of the

Ott slaying, including further evidence confirming

defendant's sexual mistreatment of Mrs. Ott during the

burglary. Defendant's counsel cross-examined prosecution

witnesses and made a lenythy closing argument but declined

to introduce any evidence on defendant's own behalf.

On appeal, defendant makes numerous arguments.

We consider each contention separately and, because of the

nature of the case, our analysis is somewhat extended. We

conclude that none of the contentions has merit and that

no miscarriage of justice has occurred in this case (Cal.

Const., art. VI, § 13).

1. Request for Appointment of Additional Counsel

Defendant asserts that the trial court erred in

denying his trial counsel's pretrial motion for the

appointment of an additional attorney to assist in arguing

the case. As previously indicated, prior to trial defense

counsel made a series of motions concerning the procedure

to be followed at trial, including a motion under section

1095 for the appointment of additional counsel to argue

the case. In support of the motion, counsel asserted that

“in view of the circumstances surrounding the case...

without going into detail, I submit to this Court that

such an appointment at this particular stage of an

assistant to argue the death penalty phase of this

particular case ... would tend to follow the meaning

and intent of the Legislature, pursuant to that section

[1095], in a case such as this." Without submitting

further argument in support of the motion, defense counsel

urged that such additional counsel be appointed to sit

during the entire trial, in order to become familiar with

the case. The court denied the motion.

Defendant now contends that (1) section 1095

imposes upon the court a mandatory duty to appoint, on

demand, additional counsel to argue the issues of a

capital case, and (2) even if section 1095 is deemed

discretionary rather than mandatory, the trial court under

“the circumstances here abused its discretion in denying

defendant's motion. Neither contention has merit.

Section 1095, enacted in 1872, provides that "If

the offense charged is punishable with death, two counsel

on each side may argue the cause. In any other case, the

court may, in its discretion, restrict the argument to one

counsel on each side." It is readily apparent from the

language of the section that it does not purport to

authorize or mandate the appointment of additional counsel

at public expense, but only to permit the argument of the

case by two counsel. In referring to section 1095 the

appellate court in People v. Natale (1962) 199 Cal.App.2d

153, 157, observed, “The right guaranteed by this section

is applicable only to a defendant who has retained more

than one attorney as counsel in the case. It does not

give the defendant in a capital case the right to have

more than one counsel appointed to represent him, but

merely allows a defendant who has retained multiple

counsel the right to have at least two of them argue the

case."

The correctness of the Natale holding is further

confirmed by the fact that the subject of appointment of

counsel appears in a separate title of the Penal Code,

entitled "Pleadings and Proceedings Before Trial.”

(Italics added.) These sections (§§ 987-987.9) explain in

detail the nature and extent of a defendant's right to

appointed counsel, investigators and experts at public

expense. It is significant that section 1095, on the

other hand, is included within a subsequent title of the

code denominated "Proceedings After the Commencement of

the Trial and Before Judgment” (italics added) under a

chapter designated "The Trial," which title deals with

such matters as challenges to the jury (§ 1055 et seq.),

the order of trial and instructions (§ 1093 et seq.) and

similar procedural matters.

Defendant contends, however, that regardless of

legislative intent, equal protection principles compel an

interpretation of section 1095 which will assure to every

indigent defendant the absolute right to the appointment

of an additional attorney to argue on his behalf at the

penalty phase of a capital case. Underlying defendant's

argument is the unsupported assumption that any advantage

which is available to the wealthy defendant must, of

constitutional necessity, be extended to an impecunious

one, thus assuring equality of treatment. Equal

protection principles, however, do not denand such

practical parity. As we noted in In re Antazo (1970) 3

Cal.3d 100, “the equal protection clause does not require

‘Absolute equality’ [citation], is not ‘a demand that a

statute necessarily apply equally to all persons’

[citation] and permits a state to ‘provide for differences

so long as the result does not amount to .. . an

“invidious discrimination."" [Citation.]" (P. 110.) The

assistance of additional legal representation at the

penalty phase argument is not a fundamental procedural

right akin to the basic right to counsel (see Gideon v.

Wainwright (1963) 372 U.S. 335, 340) or the right to a

trial transcript (see Griffin v. Illinois (1956) 351 U.S.

12, 19). Accordingly, equal protection demands are

satisfied by permitting the trial court, in its

discretion, to appoint additional counsel at public

expense if the circumstaces in a particular case appear to

require such an appointment. (See § 987.9, authorizing

payment for “investigators, experts, and others for the

preparation or presentation of the defense.)

Defendant alternatively contends, however, that

the trial court abused its discretion in summarily denying

his motion for additional counsel. He suggests that the

trial court should have held a further hearing to

determine whether or not the appointment of additional

counsel would have been appropriate to assure defendant a

fair trial. We cannot agree.

Defendant had ample opportunity to explain to the

court any additional factors which supported his motion,

but he failed to furnish any specific, compelling reasons

in that regard. AS explained above, counsel, “without

going into any detail,” merely relied upon "the

circumstances surrounding the case." In an analogous

situation involving 4 defendant's request to participate

personally in arguments to the jury, we held that a4

defendant is required to make a “substantial showing"

that, among other things, "the cause of justice will

thereby be served." (People v. Hill (1969) 70 Cal.2d 678,

692-693; see also People v. Marsden (1970) 2 Cal.3d 118,

123 [right to discharge counsel is not absolute but

requires “a sufficient showing” of substantial impairment

of the right to counsel].) Because defense counsel made

no factual assertions which might have called for an

additional hearing, the trial court was fully authorized

to rule on the question based on counsel's argument

alone. The case is thus distinguished from Marsden,

wherein the trial court failed to afford defendant a fair

opportunity to explain the factual basis for his claim of

inadequate representation. (See also People v. Lewis

(1978) 20 Cal.3d 496; cf., Pierce v. United States

(D.C.Cir. 1979) 402 A.2d 1237.)

Pierce, supra, relied on by defendant, is

similarly inapposite for in that case defense counsel

candidly. admitted that his lack of prior litigation

experience might render his services inadequate and might

necessitate additional legal assistance. In the present

case, not only was no such admission made, but the trial

court had full opportunity to observe counsel in the

course of extensive argument on pretrial matters prior to

its ruling upon the present motion, and accordingly was

well positioned to evalute counsel's ability.

It should be noted that neither the facts nor the

legal issues underlying the present case appear to have

been so complex as to require the assistance of additional

counsel as a matter of law. We conclude, accordingly,

that the trial court acted properly and within its sound

discretion in denying defendant's motion under section

1095.

2. Adequacy of Trial Counsel

Defendant's contention of ineffective trial

representation is pointed at both the guilt and penalty

phases of his trial. Defendant also has filed a habeas

corpus petition alleging facts outside of the record

which, assertedly, demonstrate such inadequacy. (See

People v. Frierson (1979) 25 Cal.3d 142, 157-158.) The

People, having filed a return and a supplemental return to

the order to snow cause, and the parties having stipulated

that the habeas corpus petition may be treated as a

traverse, the issue is thus properly drawn. (See In re

Lawler (1979) 23 Cal.3d 190, 194.)

a.) The Guilt Phase. Defendant argues that his

trial counsel failed to: (1) investigate the case in a

proper and timely manner; (2) present a diminished

capacity defense at trial; (3) object to certain adverse

evidence; and (4) deny defendant's guilt during closing

argument to the jury. We examine each contention.

Defendant complains that his counsel improperly

delayed until the trial had already commenced before

obtaining an investigator. Yet neither the record on

appeal nor the habeas corpus petition affirmatively

discloses either the need for such assistance or the

precise extent of counsel's own pretrial investigative

efforts. Thus we have no basis whatever for concluding

that counsel failed to investigate either the facts or the

law in the manner required of a reasonably competent,

diligent and conscientious advocate. (Frierson, supra, at

p- 161; see People v. Pope (1979) 23 Cal.3d 412, 427.) As

appellate counsel readily concedes, "Appellant does not

know if Mr. Veganes [trial counsel) did any investigation

on his own." Appellate counsel speculates that trial

counsel "probably did not interview any witnesses

+ + « «" (Italics added.) An assertion so speculative

and conjectural cannot form the basis for a finding of

counsel's incompetence on the ground of lack of

investigation. Moreover, defendant's speculation is

refuted by the record, which contains a form used by

counsel in supporting his request for attorney's fees in

which he stated that he had personally interviewed

defendant, his relatives, several psychiatrists, the

District Attorney, other defense attorneys and experts,

and a trial judge familiar with death penalty procedures.

Of more significance is the fact that, with one

exception hereinafter discussed, defendant fails to

specify what favorable evidence, if any, could have been

obtained from any available witnesses. We have never

required counsel to investigate all prospective witnesses

(People v. Floyd (1970) 1 Cal.3d 694, 710) and we cannot

presume prejudice from the mere fact of counsel's alleged

inaction. As we recently observed, in order to establish

a successful claim of inadequate trial representation,

defendant must prove “that counsel's acts or omissions

resulted in the withdrawal of a potentially meritorious

defense." (People v. Pope, supra, 23 Cal.3d 412, 425.)

Further, defendant must “affirmatively show that the

omissions of defense counsel involved a crucial issue, and

that the omissions cannot be explained on the basis of any

knowledgeable choice of tactics." (Floyd, supra, at p.

709.)

In an effort to meet the foregoing Pope

criterion, defendant has alleged in his habeas corpus

petition that trial counsel failed specifically to

investigate and present a potential diminished capacity

defense based, in combination, upon defendant's supposedly

low I.Q. and his use of marijuana on the day on which one

of the burglary/murders occurred. Reduced to its

essentials, the petition alleges in this regard that (1)

defendant had told defense psychiatrists, prior to trial,

that he had “smoked some grass" on the morning of the Ott

burglary, (2) defendant's former counsel had suspected,

prior to trial, that defendant lacked average

intelligence, and counsel had planned to investigate the

matter, and (3) according to a psychia'rist's recent

opinion, persons of “lowered intelligence” may be more

sensitive to the ingestion of marijuana from the

standpoint of their “judgment and behavioral controls"

than persons of normal intelligence.

Our examination of the petition, however, fails

to ceveal sufficient facts to establish even 4 prima facie

case under the Pope standard. The petition does not

affirmatively, allege that in fact defendant has a low

1.Q., or that he actually consumed marijuana on the day in

question, or that the amount that he allegedly consumed |

was sufficient to affect, oF did in fact affect, his

mental capacity in some relevant manner. In short,

defendant fails to state any facts from which we might

determine whether or not a diminished capacity defense was

indeed pertinent to his case, i.@., constituted a

“potentially meritorious” defense. (See, @-Ge-r People v.

Carr (1972) 8 Cal.3d 287, 294-295 [failure to prove amount

of marijuana smoked or its effect on defendant]).) In this

regard, the present case differs markedly from the

situation presented in Frierson, supra. There, defendant

on appeal presented a similar claim of diminished

capacity, based on trial testimony that defendant had

taken “angel dust" and appeared "spaced out." The

Frierson habeas corpus petition supplemented the appeal by

describing in considerable detail both the facts

underlying the defense and trial counsel's total failure

to investigate or present it.

We have noted in the record a countesdeclaration

by defendant's trial counsel asserting that his failure to

pursue a diminished capacity defense was the result of a

knowledgeable, tactical decision. According to counsel,

defendant was examined by three psychiatrists, each of

whom concluded that defendant's mental capacity was not

diminished as a result of alcohol or drugs. Moreover, the

psychiatric reports contained other unfavorable material,

including "damaging" statements by defendant himself.

Finally, trial counsel concluded that presentation of a

diminished capacity defense based primarily upon the

voluntary consumption of marijuana would have (1) required

testimony from defendant personally, exposing him to

intense and perhaps damaging cross-examination, and (2)

provoked a "negative" reaction from the jurors.

Significantly, the factual assertions in the foregoing

declaration stand essentially uncontradicted by defendant.

Unlike Frierson, where counsel actually presented

to the jury an “incomplete, undeveloped diminished

capacity defense" (p. 164), in the present case, trial

counsel elected for tactical reasons to forego such a

course. We cannot say that counsel's strategy under such

circumstances was unreasonable. Defendant has failed to

allege opposing facts which demonstrate affirmatively that

counsel's decision was not merely tactical but, rather,

resulted from incompetence or a failure reasonably to

research the law or investigate the facts of the case.

Accordingly, we are unable on this ground to conclude that

trial counsel rendered inadequate representation. (Floyd,

supra, at p. 709.)

In addition, defendant argues that trial counsel

failed vigorously to pursue formal pretrial discovery

procedures which might have assisted defense efforts.

Once again, neither the record nor the habeas petition

supports a finding that, in this aspect of the case,

counsel failed to act in a reasonably competent manner.

Indeed, the record shows that trial counsel relied upon an

“informal” discovery arrangement with the prosecutor which

was approved by the trial court. Further, the record

fails to disclose that the lack of any formal discovery

procedures prejudiced defendant. The uncontradicted

declaration by the prosecutor reveals that he gave to

defense counsel copies of every document in his files

months before trial. The prosecuting attorney

supplemented this disclosure by delivering to defense

counsel additional materials which thereafter surfaced.

The declaration of defendant's trial counsel confirms that

the prosecutor “fully complied" with the informal

discovery arrangement. The only instance of possible

delay in revealing evidence to defense counsel involved

the statements of the witnesses Mikles and McFarland,

defendant's cellmates. Although, as discussed below, the

record indicates some delay in disclosing these

statements, we conclude that defendant's interests could

not have been adversely affected thereby. In response to

defendant's claims of surprise, the trial court

immediately granted him his requested continuance.

Further, it promptly appointed an investigator to assist

defense counsel in analyzing and impeaching the probable

testimony of these witnesses. Finally, there is no

suggestion of the manner in which the asserted failure of

defendant's trial counsel to pursue formal pretrial

discovery procedures resulted in the loss of any evidence

which might have assisted in his defense.

Appellate counsel challenges the failure of

defendant's trial counsel to object to the admission of

certain evidence, including defendant's own tape-recorded

statement to police officers, the testimony of the

witnesses Mikles and McFarland, the testimony of Dr.

Breton regarding the nature and extent of victim Ott's

wounds, and the preliminary hearing testimony of the

witnesses Rushing and Lewis. Contrary to this assertion,

however, the record indicates that trial counsel did raise

timely objection to much of the foregoing evidence.

Furthermore, and of equal importance, as set forth in

subsequent sections of this opinion, all of the evidence

complained of was Properly admissible at trial and

objections would have been unavailing in any event. Any

failure to object could not have amounted to that

withdrawal of a potentially meritorious defense required

to establish the inadequacy of counsel under our Pope

standards. In addition, as we have frequently observed,

the failure to object to particular items of evidence is a

matter which usually involves tactical decisions on

counsel's part and seldom establishes counsel's

incompetence, (People v. Frierson, Supra, 25 Cal.3d 142,

158, and cases therein cited.) It has been aptly noted

that "The indiscriminate use of objections, solely because

they are available, aids neither the client nor the cause

of justice... ," (People v. Thomas (1974) 43

Cal.App.3d 862, 869.) We cannot Speculate on any tactical

advantage that would have been gained by repeated and

futile objections to the proffer of admissible evidence.

Appellate counsel criticizes trial counsel for

alleged incompetence in failing to renew an earlier

motion, Subsequently withdrawn, to strike the special

circumstances allegation based upon asserted arbitrary

prosecutorial selection practices. yet appellate counsel

fails to discuss either the probable merits of the motion,

Or the chances of its success. Presumably the basis of

the motion would have been the prosecutor's decigion not

to seek the death penalty for Elton Boyd, an accomplice of

defendant during commission of the Curtis murder. Had

such been its Premise, the motion would have lacked merit,

for defendant's multiple murders of two victims, both

Curtis and Ott, would have constituted a reasonable basis

under the circumstances for different Prosecutorial

treatment of defendant and Boyd. Indeed, defendant's

conviction by a jury of those very multiple murders

constituted a "special circumstance" permitting imposition

of the death Penalty in the present case. (Former

§ 190.2, subd. (c) (5).)

AS another basis of claimed inadequacy it is

urged that, by conceding defendant's complicity in the

murders, trial counsel argued against his client during

the closing argument portion of the guilt phase. We have

reviewed the lengthy closing arguments, however, and find

nothing improper or incompetent in counsel's argument. It

must be recalled that defendant himself had admitted his

involvement in both murders in conversations with various

witnesses and that he introduced no evidence whatever

which might have exonerated him. Nor does he attempt at

this time to Suggest what testimony from what witnesses

might have been Presented to aid him. Accordingly, it is

entirely understandable that trial counsel, Given the

weight of incriminating evidence, made no Sweeping

a |

declarations of his client's innocence but instead adopted

a more realistic approach, namely, that although defendant

and others may have committed both burglaries, and may

have aided and abetted the acts of violence which caused

the victims' deaths, nonetheless any such acts were

unpremeditated and lacked the requisite deliberation or

intent to kill. As stated in a recent case, "good trial

tactics demanded complete candor” with the jury. (People

v. Powell (1974) 40 Cal.App.3d 107, 167.) Under the

circumstances we cannot equate such candor with

incompetence.

Thus, defense counsel in closing argument

reviewed some of the evidence against his client, and

emphasized various defects and gaps in the evidence and in

the prosecutor's theory of deliberate, premeditated

murder. He strongly urged the jurors to decline to find

any special circumstances which would have permitted

imposition of the death penalty. Defense counsel stressed

such matters as the monetary notive for the entries; the

lack of fingerprints on the wine bottle assertedly used on

the victim Ott; the general unreliability of the testimony

of the various prosecution witnesses; defendant's

constitutonal right to decline to testify on his own

behalf; and his cooperation in surrendering to the

officers when he learned they were seeking him. The

defense argument comprises 48 pages of transcript. In

contending that trial counsel's presentation prejudiced

defendant, his appellate counsel focuses upon only a few

brief passages. We conclude that counsel's argument was

reasonably Seiabationt considered in the light of the

overwhelming evidence of defendant's guilt.

b.) The Penalty Phase. Defendant's primary

contention regarding trial counsel's inadequacy at the

penalty phase is that counsel failed to present any

mitigating evidence which might have led the jury to

coneluée that the death penalty should not be imposed.

Yet, unlike People v. Frierson, supra, 25 Cal.3d 142,

164-166, wherein a similar theme was successfully

advanced, defendant has failed to demonstrate (by his

petition for habeas corpus or otherwise) what mitigating

evidence, if any, beyond his youth and voluntary

surrender, was available to counsel. As explained below,

trial counsel argued at length in an attempt to persuade

the jury to render a more lenient verdict, making frequent

references to the evidence adduced during the guilt phase

and to possibly mitigating factors such as defendant's age

and his cooperation with the police. Under the

circumstances, we find no basis for concluding that trial

counsel afforded defendant inadequate representation at

the penalty phase.

In Frierson, supra, we observed that defe

had submitted declarations from various witnesses,

including friends, relatives and acquaintances of

defendant “containing material which conceivably might

have mitigated his conduct.” (P. 165.) Although we

recognized the risk of "second-guessing” trial counsel

after the event, we further noted that trial counsel's

exercise of discretion in the area of trial tactics “mus

be a reasonable and informed one in the light of the fa

and options reasonably apparent to counsel at the iar ,

trial, and founded upon reasonable investigation and .

preparation." (P. 166.) ahi

We concluded in Frierson that counsel afforded

inadequate representation at both the guilt and penalty

phases. We distinguished People v. Durham (1969) 70

Cal.2da 171, 191-192, an opinion which contains principles

of particulr application to the case before us. In

Durham, speaking through Justice Sullivan, we rejected the

contention that defense counsel was incompetent in failing

to call any witnesses at the penalty phase of a capital

case, reasoning as follows: “It is suggested that there

must have been some available evidence in mitigation of

penalty which might have been produced in his behalf, and

that the failure to produce any such evidence resulted in

constitutional infirmity. [Italics in original.)

"We do not accept this.suggem

i) ety

of representation so inadequate.as to aban

constitutional defect must he SUPPOF 4 ira?

speculative arguments. [Citation.].

C aie

to no specific evidence in mitigation @hich migh

bit

- x x ;

been presented in his behalf; he has faked no witnesses ~

alk’ iy 4 a*

who, ‘if called in his behalf, would have testif ey.

’ ’ - fied .*

t. 4

favorably to him on penalty issues. Og the other hand, 4

> .

appears that counsel presented to the penalty jury a.

well-reasoned argument in defendant's béhalf .. . and).

generally appealed to the mercy of the Sury ina :

persuasive manner. It further appears ... that counsel beg:

- « « decided against [calling defendant to testify] . 7 ="

after a careful consideration as to the scope of eas

cross-examination .... . Finally, counsel subjected each, Ha

to cross-examination. In view of the Sl of

witness presented by the prosecution at the penalty phas sis

-~e

circumstances we cannot conclude that representation

? =

afforded defendant at the penalty prasttiercein resvlted | J

a denial of his right to the effective ‘atd of counsel ;

oe ame

see also Peopl

“4

that proceeding.” (PF. 192, italics adi

v. Hill, supra, 70 Cal.2d 678, 690-691 ° establish

ba Oh } ity whieh,” E |

establish the.

4 bs

inadequacy of counsel, defendant must

witnesses counsel failed to call and m

materiality of their testimony] .)

The present case is indistinguishable from

Durham. As in Durham, defendant herein has pointed to no

vitinaéee who might have offered mitigating testimony.

Justice Mosk's dissenting opinion suggests that defense

counsel should have called defendant's grandmother, Mattie

Jackson, to the witness stand, and that he was incompetent

in failing to do so. The record, however, indicates that

Mrs. Jackson was nearly 90 years old and, in defense

counsel's opinion, was “senile.” Counsel, realizing that

he had found no effective witnesses to appear on

defendant's behalf at the penalty phase, carefully

explored the possibility of calling Mrs. Jackson but,

after weighing the pros and cons, ultimately decidea

against dc .ng so. His decision, literally and inherently

teeming with tactical considerations, is one which any

reasonable, competent, and diligent counsel might have

‘made. Under the circumstances of this case, that decision

required a careful balancing by counsel of numerous

factors, including (1) the ability of the witness to

express herself in coherent fashion, (2) the content of

her testimony, and (4) the probable effect and impact of |

her testimony upon the jury. Counsel might very well have

determined that Mrs. Jackson, »y reason of advanced age

and demonstrated inability to communicate in a rational

manner (and her unshaken belief that defendant was

innocent despite the overwhelming case against him) would

not assist defendant at the penalty phase, and that the

jurors indeed might react negatively to her testimony.

With due respect to our dissenting colleagues, under the

Durham rationale "[I]n view of the totality of

circumstances we: cannot conclude that the representation

afforded defendant at the penalty phase herein resulted in

a denial of his right to the effective aid of counsel in

that proceeding.” (P. 192.)

In addition, as in Durham, trial counsel herein

presented to the penalty jury a reasonable closing

argument based primarily upon a theme which stressed the

following factors: defendant's age (he was 19 years old

when he committed the offenses), his cooperation with the

police, the value of all human life, the responsibility of

our capitalistic society for "creating" persons such as

defendant, and the need for the exercise of mercy in order

to alleviate both social and racial tensions.

Furthermore, as in Durham, trial counsel] in

advancing his client's interests at the penalty phase,

took reasonable additional measures such as

cross-examination of prosecution witnesses, objection to

prosecution evidence and proposed instructions, and

submission of favorable "special circumstances"

instructions. Finally, following the jury's verdict,

counsel continued his defense efforts, filing motions for

new trial, for arrest of judgment, and for modification of

verdict, based on a wide variety of grounds.

Trial counsel's declaration on file herein

discloses that he has had 13 years prior experience in the

practice of criminal law, including murder trial

participations, and that he frequently consulted with

judges and other lawyers regarding the trial of a capital

case and took educational courses on that subject. As

recently expressed, “Defendants have an arsenal of weapons

available to them before and during trial for a meaningful

defense. ([Citation.] Mental straitjackets should not be

placed on thoughtful defense counsel who wish to

selectively choose which weapon is best for a defendant or

which type of advocacy .. . is best designed to reach

what they believe is a satisfactory result for their

client." (People v. Espinoza (1979) 99 Cal.App.3d 44, 48.)

Defendant's final challenge to his trial

counsel's competence is based on counsel's failure to

present to the jury as a mitigating circumstance the fact

(if indeed it was a fact) that defendant had consumed some

marijuana on the day of the Ott burglary/murder. (See

former § 190.3, subds. (d), (h), (k).) As we have

' previously noted, neither the record on appeal nor the

habeas corpus petition filed by defendant herein contains

sufficient factual support for this theory... Moreover, as

indicated above, defendant has failed to establish

affirmatively that his counsel's omission “cannot be

explained on the basis of any knowledgeable choice of

tactics." (People v. Floyd, supra, l Cal.3d 694, 709.)

Trial counsel's declaration discloses that, as in Durham,

he determined to withhold from the jurors any defense or

theory of mitigation based on voluntary consumption of

marijuana, because such a defense would have required

defendant to testify and to face cross-examination with

probable damaging consequences. (According to counsel, in

his declaration, the prosecution possessed rebuttal

evidence disclosing "vicious attacks" by defendant upon

other persons.) Counsel further hoped that the jury would

decline to impose the death penalty in view of its

"limited knowledge" of defendant and his particular role

in the offenses.

Based on the totality of circumstances, we

conclude that counsel's representation of defendant at the

penalty phase did not result in a denial of defendant's

right to the effective aid of counsel. We further

conclude that defendant's petit/on for habeas corpus must

be denied for failing to allege sufficient additional

facts which either would demonstrate counsel's

incompetence or warrant an evidentiary hearing in the

matter.

3. Admissibility of Defendant's Statement to Police

Officers

At trial the People were permitted, over

defendant's objection, to introduce a tape-recorded

Statement given by defendant to police officers during a

custodial interrogation. In the statement, defendant

admitted his complicity in the Curtis and Ott murders.

Defendant contends that the statement was inadmissible

because (1) the officers represented to defendant that the

statement would not be used for court purposes; (2) the

officers promised defendant leniency in order to induce

him to confess; and (3) the officers continued their

interrogation after defendant had invoked his right to

remain silent. None of these contentions has merit.

a.) Alleged Deceit. The tape-recorded statement

contains some preliminary discussion between Officers

Bohnlein and Kavenaugh regarding the future use of the

statement. Contrary to defendant's present assertion,

however, the record fails to suggest any deception

whatever by these officers. Thus, according to the

record, after the officers had recited the date and time

of the interrogation, the following conversation ensued:

“BOHNLEIN: Are you gonna use that?

KAVENAUGH: Yeah, that's all.

BOHNLEIN: Then are we gonna use it from, for

court purposes?

KAVENAUGH: I don't know.

BOHNLEIN: Then we just...

KAVENAUGH: Just so we don't forget anything.

BOHNLEIN: Do you mind if these statements are

taped?

JACKSON: Uh, no."

Officer Kavenaugh testified regarding the

foregoing conversation in the course of a pretrial hearing

conducted for the purpose of establishing the

voluntariness of defendant's statement. According to

Kavenaugh, the interrogating officers frequently use a

tape recorder to assure that none of the contents of an

interrogation is lost or forgotten. The discussion

recited above related to "whether we were going to use the

tape for court, or whether we were going to use it to

refresh our memories when we dictate our reports." The

quoted excerpt indicates that the officers discussed

possible uses of the recording. They made no statement or

assurance to the effect that the recording would not be

used for court purposes.

We think it significant that, although defendant

himself testified at the pretrial hearing regarding the

circumstances Surrounding the recording of his statement,

he did not assert that he was deceived or misled regarding

the court use thereof. Indeed, prior to the conversation

at issue, the officers had carefully advised defendant,

among other things, that anything he told them "could be

used against him in court.”

The present case, therefore, is clearly

distinguishable from People v. Braeseke (1979) 25 Cal.3d

691, 702-703, wherein the officers elicited defendant's

confession after apparently acceding to defendant's

request for an “off the record" interview. Here, the

record affords no basis whatever to support defendant's

present contention that the officers made "false and

misleading statements" regarding the ultimate use of

defendant's statement. Nor does the record disclose any

“clever softening-up" conversations of the type which we

condemned in People v. Honeycutt (1977) 20 Cal.3d 150,

160. We conclude, accordingly, that defendant's statement

was not rendered either involuntary or inadmissible by

reason of the interrogating officers' brief reference to

the possible future uses of that statement.

b.) Alleged Promise of Leniency. The transcript

ot defendant's statement discloses that at one point

during the interrogation, following defendant's assertion

that he “didn't do it" (referring to the burglary and

murder of Mrs. Curtis), Officer Kavenaugh stated "If you

did, you are going to feel better if you tell us." Later

in the interrogation, Officer Wren asked defendant if he

could point out the house where some of the stolen

property was taken and Officer Collette stated "We

wouldn't let anybody see you. You are cooperating with

us. You are helping yourself and you are helping us to

get this . . . cleared up. If we take you out there at

night, hide you so nobody could see, you could point it

out and get all the stuff back that was taken out of the

place."

Defendant contends that the foregoing remarks

constituted improper promises of leniency or other

benefits which rendered his statement involuntary. (See,

e.g., People v. Jiminez (1978) 21 Cal.3d 595, 611; People

v. MeClary (1977) 20 Cal.3d 218, 228-229.) We do not

agree.

As we explained in McClary, “In Hill [People v.

Hill (1967) 66 Cal.2d 536), we observed a line between

mere police exhortation urging the suspect to talk to

them, on the one hand, and express or implied offers of

leniency, on the other; we explained that the distinction

‘does not depend upon the bare language of inducement but

rather upon the nature of the benefit to be derived by a

defendant if he speaks the truth, as represented by the

police.' (P. 549.) We noted that ‘When the benefit

Pointed out by the police to a suspect is merely that

which flows naturally from a truthful and honest course of

conduct,' the subsequent statement will not be considered

involuntarily made. (Ibid.) On the other hand, 'if .. °

the defendant is given to understand that he might

reasonably expect benefits in the nature of more lenient

treatment at the hands of the police, prosecution or court

in consideration of making a statement, even a truthful

one, such motivation is deemed to render the statement

involuntary and inadmissible. The offer Or promise of

Such benefit need not be expressed, but may be implied

from equivocal language not otherwise made clear.

[Citations,.]' (Ibid.; see also People v. Nelson (1964)

224 Cal.App.2d 238, 250-251 (36 Cal.Rptr. 385}).)" (20

Cal.3d at p,. 228.)

In the present case, it cannot reasonably be said

that Officer Kavenaugh's statement that defendant would

“feel better" if he confessed constituted any promise of

benefit other than the Psychological benefit which "flows

naturally from a truthful and honest course of conduct"

(Hill, supra, at P- 349). It is also noteworthy that

defendant himself expressly acknowledged at the conclusion

of his statement that no tangible or official benefits

were promised him.

Similarly, Officer Collette's statement that

defendant would be helping himself by cooperating with the

officers was not made to induce any statement or

confession, but occurred in the context of a request that

defendant escort the officers to the location of the

stolen property. Significantly, this request was made

after defendant had already admitted his complicity in the

Ott burglary and murder.

Furthermore, our previous holdings support the

conclusion that the foregoing remark would not have

constituted an improper promise or inducement even had it

been made for the purpose of eliciting a statement. As we

noted in People v. Ditson (1962) 57 Cal.2d 415, 433, "we

find no suggestion of threats or promises. we do find

searching questions and exhortations to help himself by

revealing the acts of others. But absent something other

than mere questions, or exhortations to tell the truth or

clear his conscience or help himself by revealing facts

. « « » there appears to be nothing on the face of the

record which would support a finding of overreaching or

coercion." (P. 433, italics added; accord, People v.

Hill, supra, 66 Cal.2d 536, 548-549 [officers urged

defendant to “help himself"].) In similar fashion, we

conclude that the officers' remarks to defendant did not

render his statement involuntary.

c.) Alleged Miranda Violation. Defendant next

argues that the officers improperly interrogated him

despite the invocation of his constitutional right to

remain silent and to consult an attorney. The record

discloses that, prior to interrogating defendant, Officer

Bohnlein carefully explained to defendant his various

rights under Miranda v. Arizona (1966) 384 U.S. 436, and

then inquired "Having those rights in mind, do you want to

talk to us regarding these allegations"? According to the

transcript of the tape recording, defendant replied "No.

I want to talk to--yes-- (Inaudible)." Thereupon, the

interrogation proceeded without further objection by

defendant.

Defendant argues that his response to Officer

Bohnlein was an assertion of his right to remain silent,

thereby rendering all subsequent statements inadmissible.

It is well settled that once a suspect indicates his

refusal to waive his constitutional rights, all further

interrogation must cease. (People v. Braeseke, supra, 25

Cal.3d 691, 702; People v. Pettingill (1978) 21 Cal.3d

231, 237-241; People v. McClary, supra, 20 Cal.3d 218,

226.) Further, the record must contain evidence from

which the trial court could have found beyond a reasonable

doubt that the statement at issue was the product of a

knowing and intelligent waiver of defendant's Miranda

rights. (People v. Braeseke, supra, p. 701; see People v.

Jiminez, supra, 21 Cal.3d 595, 608.) On the other hand,

as a reviewing court, we must examine the uncontradicted

facts in the record to determine independently whether the

trial court's finding of intelligent waiver was properly

made. As to conflicting testimony, we must accept that

version of events which is most favorable to the People,

to the extent that it is supported by the record. (See

People v. Jiminez, supra, at p. 609.)

Defendant unsuccessfully litigated the question

of his waiver of constitutional rights at two separate

stages of these proceedings. First, at a pretrial hearing

on defendant's motion to exclude his statement (Evid.

Code, § 402), the interrogating officers testified that

defendant had responded affirmatively to their request to

talk with him. According to Officer Kavenaugh, “he wanted

to talk to us, it [defendant's response] was not a 'no.'"

Further, Kavenaugh testified that defendant said nothing

to indicate he wanted to talk to an attorney. Officer

Bohnlein confirmed that defendant never requested to talk

to an attorney. Defendant was called to testify on the

matter, and he claimed that he told the officers that "I

wanted to talk to a lawyer," and that Officer Kavenaugh

agreed to obtain a lawyer for defendant.

To assist in resolving the foregoing conflicting

testimony, a police sound-laboratory expert examined the

tape recording and testified that in his opinion the

transcription was accurate and that defendant's response

had been “No, I want to talk to--yes,” without more than a4

second's pause between the word "yes" and the rest of the

sentence. The witness concluded that defendant's response

could not have included a request for an attorney because

“There is not enough time betwen the words ‘to' and 'yes.*”

Based upon its evaluation of all of the foregoing

testimony, the trial court denied defendant's motion,

stating that "I am satisfied beyond a reasonable doubt and

the mechanics of the production of this tape eliminated

any possibility of, after the word ‘to,’ the defendant

saying lawyer, attorney, P.D. OF anything else."

Thereafter, at trial, defendant renewed his

objection to the tape recording, and additional testimony

was.elicited outside the presence of the jury. officer

Bohnlein stated that when defendant was asked if he wished

to talk to the officers, he initially stated “No,” but

then agreed to discuss the matter. At no time, according

to Bohnlein, did defendant ask to talk to an attorney.

Defendant, on the other hand, testified that his response

to Bohnlein's inquiry was “No, I want to talk to a--to

a--to a Public Defender." Subsequently, defendant changed

that testimony, stating that although he attempted to

request an attorney, “rt never did finish my sentence,

whatever I sad."

At the conclusion of the foregoing hearing, the

trial court expressly found "beyond a reasonable doubt"

that defendant was advised of his constitutional rights

and that he made a knowing and intelligent waiver of those

rights.

As indicated by the summarized testimony, there

was ample evidence to support the trial court's ruling.

Defendant's initial assertion that he had requested an

attorney was contradicted by the interrogating officers

and the police sound technician. The plain inference from

the record is that defendant declined to talk with the

officers and then, in the same breath, changed his mind

and agreed to do so. Although defendant now contends that

all interrogation should have ceased once defendant

invoked his rights by stating “No” in response to the

officer's inquiry, it is well settled that ""A suspect who

has asserted his rights and prevented further lawful

interrogation nonetheless retains the option, thereafter,

voluntarily to initiate a confession.' ([Citations.]"

(People v. McClary, supra, 20 Cal.3d at p. 226, italics in

original.) In the present case, although defendant may

have fleetingly invoked his Miranda rights, he immediately

agreed to waive those rights without the intervention of

any urging or interrogation by the officers. The record

discloses no cajoling or badgering by the police. Rather,

the decision to talk appears to have been the free,

voluntary decision of defendant. Accordingly, we conclude

that the trial court did not err in admitting defendant's

Statement into evidence.

4. Admissibility of Photograph of Victim Curtis

Defendant urges that the trial court, during the

guilt phase, erred in admitting a color photograph of the

face of Mrs. Curtis, disclosing multiple bruises. We have

said recently that "Evidence Code section 352 vests the

court with broad discretion to weigh the prejudicial

effect of proffered evidence against its probative value.

{[(Citation.}] No abuse of that discretion appears: the

photograph was not cumulative, and was highly relevant

evidence on the issue of malice .... '{MJurder is

seldom pretty, and pictures, testimony and physical

evidence in such a case are always unpleasant, ...'"

(People v. Pierce (1979) 24 Cal.3d 199, 211, italics

added; see People v. Cruz (1980) 26 Cal.3d 233; People v.

Frierson, supra, 25 Cal.3d at p. 171.)

Defendant had been charged with first degree

murder of Mrs. Curtis with malice aforethought; the jury

was instructed on the alternative theories of premeditated

murder and felony murder. Accordingly, as in Pierce, the

photograph in questiofmbore on the issue of defendant's

requisite state of mind toward Mrs. Curtis, i.e., did he

possess malice? This fact distinguishes People v. Boyd

(1979) 95 Cal.App.3d 577, 589-590, a case which also

involved the Curtis murder. In Boyd, the accomplice of

defendant was tried under a felony-murder theory only; two

color photographs f the victim were introduced. The

Court of Appeal held that the trial court erred in

admitting these photographs because "It cannot be said

+ + » that the photographs had any degree of relevancy on

issues such as intent, malice or the degree of the offense

since, under the prosecution's theory, defendant was

guilty of first degree murder by virtue of the

felony-murder doctrine." (P. 589.)

Although the photograph which was admitted is

unpleasant to view, we conclude that the trial court did

not err in admitting it. In addition, it is noteworthy

that the Boyd court held that any error in admitting the

foregoing photographs was harmless in view of the

“overwhelming” evidence of Boyd's guilt. In our view the

evidence of defendant's guilt in the matter before us may

be similarly characterized.

5. Admissibility of Evidence of victim Ott's

Injuries

At the guilt phase, the prosecution, outside the

presence of the jury, offered to prove that the

investigating officers had discovered a single human hair

(possibly a pubic hair) on the neck of a wine bottle found

on the floor near victim Ott's body. The prosecution

further offered to prove that the officers also observed

an injury or abrasion near the victim's private parts.

Defendant objected to the Proposed testimony as unduly

Prejudicial (see Evid. Code, § 352) and the trial court

sustained the objection. (The evidence was subsequently

introduced at the penalty phase.)

Thereafter, Doctor Breton, the autopsy surgeon,

testified that in addition to Mrs. Ott's various injuries

and bruises, her vagina had been torn or lacerated, and

that in his opinion the injury could have been caused by a

‘foreign object such as a bottle. Furthermore, the

Prosecution elicited from defendant's jail cellmates,

Mikles and McFarland, that ad: fendant had boasted of his

sexual assault with a bottle on one of the victims.

Defendant contends that the admission of the

foregoing testimony was improper because of its

“overwhelming prejudicial nature." To the contrary, the

trial court acted well within its discretion under

Evidence Code section 352. The court properly rejected

evidence of the hair on the bottle as unduly prejudicial

in the light of its speculative nature. Trial courts,

vested with broad discretion under this section,

frequently sustain many objections to real or

demonstrative evidence on the ground that ts gruesome or

shocking nature nay unduly prejudice a defendant in the

eyes of the jury. (E.g., People v. Love (1960) 53 Cal.2d

_ 843, 856-857; People v. Cavanaugh (1955) 44 Cal.2d 252,

267-268.) On the other hand, expert testimony regarding

the extent of a victim's injuries and the means used to

inflict such injuries, is generally held admissible.

(People v. Jackson (1971) 18 Cal.App.3d 504, 507; People >

v. Sampo (1911) 17 Cal.App. 135, 150; see 1 Wharton,

Criminal Evidence (13th ed. 1972) § 183, pp. 344-347.)

Such evidence is often relevant on the issues of malice

and intent. (See People v. Pierce, supra, 24 Cal.3d 199,

211.)

Furthermore, the testimony of defendant's

cellmates regarding defendant's admission was rekevelt to

establish that it was defendant, not his accomp} ice Boyd,

who committed the sexual assault on victim Ott, We

conclude that the trial court did not err in admitting the

foregoing evidence.

6. Prosecutorial Misconduct

Defendant next contends that the prosecutor

improperly commented upon defendant's refusal to testify

in his own behalf. (See Griffin v. California (1965) 380

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U.S. 609.) The record reveals that during the guilt phase

of the trial, defense counsel asked the prosecutor to

stipulate that defendant was 19 years old at the time of

his arrest. The prosecutor refused, stating in the

presence of the jury "TJ will not [so stipulate). I have

no information of that [defendant's age) unless the

defendant takes che stand and wishes to so testify." The

trial court thereafter stated "All right. There is no

stipulation forthcoming,” and the matter was dropped.

Griffin forbids either direct or indirect comment

upon the failure of the defendant to take the witness

stand. The rule, however, does not extend to comments on

the state of the evidence or on the failure of the defense

to introduce material evidence or to call logical

witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475.-)

We need not decide whether the prosecutor's statement

falls within the foregoing exception, OF, alternatively,

is an indirect reference to the fact that defendant had

not previously testified, and thus is comparable to

observing that defendant has not personally denied or

refuted certain evidence, OF that defendant is in the

“best position” to explain certain facts, all of which

have been held to be Griffin error. (See id., at p- 476

and cases cited.)

The controlling fact is, as we made explicit in

Vargas, that such indirect, brief and mild references to

defendant's failure to testify, without any suggestion

whatever that an inference of guilt should be drawn

therefrom, are uniformly held to constitute harmless

error. (Id., at PP, 478-481.) We accordingly conclude

that, on the basis of the record before us, the remark at

issue could have had no significant impact upon the jury

and was harmless beyond a reasonable doubt.

7. Necessity for Manslaughter Instructions

Defendant argues that the trial court erred in

refusing to instruct the jury on the principles of

voluntary manslaughter (§ 192). Our review of the record

herein discloses, however, that there was no substantial

evidence deserving of consideration which might have led

reasonable jurors to reach a verdict of voluntary

manslaughter. (See People v. Plannel (1979) 25 Cal.3d

668, 684.)

Voluntary manslaughter is statutorily defined as

the unlawful killing of a human being without malice upon

a sudden quarrel or heat of passion. (§ 192, subd. 1.)

As we recently observed, "rf a killing, even though

intentional, is shown to have been committed in a heat of

passion upon sufficient provocation the absence of malice

is presumed. ([Citation.) ..- - {¥] Because the

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existence of malice is presumed when the circumstances of

a killing suggest an intent to kill . . . provocation and

heat of passion must be affirmatively demonstrated.

[Citations.]" (People v. Sedeno (1974) 10 Cal.3d 703,

719, italics in orjginal.)

"Heat of passion" has been defined as "'such a

passion as would naturally be aroused in the mind of an

ordinarily reasonable person under the given facts and

circumstances ... .'" (People v. Berry (1976) 18 Cal.3d

509, 515, quoting from an earlier case.) As for the

element of provocation, “there is no specific type of

provocation required by section 192 and... .- verbal

provocation may be sufficient. [Citation.)" (Ibid.) In

Berry, for example, we held that the provocative conduct

by defendant's wife which could ouse a passion of

jealousy, pain and sexual rage in "a man of average

disposition" was sufficient to require instructions on

voluntary manslaughter.

In the present case, the record indicates that

defendant may have become enraged and brutally attacked

and killed one of his elderly victims because she awakened

during the burglary and began to scream. No case has ever

suggested, however, that such predictable conduct by a

resisting victim would constitute the kind of provocation

sufficient to reduce a murder charge to voluntary

manslaughter. (See, e.g., People v. Morse (1969) 70

Cal.2d 711, 734-735.) We noted in People v. Flannel,

Supra, that if the evidence which supports a manslaughter

theory is “minimal and insubstantial," the trial court

need not instruct on that theory. (25 Cal.3d at pp.

684-685.)

We conclude that defendant presented no

substantial evidence that he killed either of his victims

in a heat of passion on sufficient Provocation. Because

of this conclusion, we need not resolve the further

question whether the failure to give a manslaughter

instruction was harmless error under the test announced in

People v. Sedeno, supra, 10 Cal.3d 703, 721.

8. Admissibility of Accomplice's Statement

Defendant urges that the trial court erred in

permitting the witness Gaines to testify concerning

remarks made to her by the accomplice Boyd which

assertedly implicated defendant. Gaines testified in

effect that Boyd had denied complicity in the Curtis

murder and had asked Gaines to inquire of defendant why

defendant had "involved" Boyd in the murder. Gaines also

testified that Boyd told her he knew the person who had

killed Curtis. The court at this point terminated any

further inquiry on the subject.

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Under defendant's theory, because Boyd was not

present at trial as a witness and was therefore

unavailable for cross-examination, the admission of his

remarks violated defendant's right to confront adverse

‘witnesses. (See Bruton v. United States (1968) 391 U.S. .

123; People v. Aranda (1965) 63 Cal.2d 518, 530-531.) The

Bruton and Aranda, rules concern the admissibility of a

codefendant's statements during the conduct of a joint

trial. In the present case, defendant was tried

separately from Boyd. Accordingly, a more applicable

legal principle is the hearsay rule, which (in the absence

of an exception to the rule) renders inadmissible a

statement “made other than by a witness while testifying

at the hearing and that is offered to prove the truth of

the matter stated.” (Evid. Code, § 1200; see People v.

Preston (1973) 9 Cal.3d 308, 313-316; People v. Simmons

(1946) 28 Cal.2d 699, 712.)

We find it unnecessary, however, to determine

whether the testimony of the witness Gaines was admissible

under some exception to the hearsay rule for, closely

examined, her testimony regarding Boyd's statements was

innocuous and did not implicate defendant.

The evidence of defendant's involvement in the

Curtis murder was overwhelming. It included defendant's

own admissions to Gaines, Debria Lewis, Debra Hell,

cellmates Mikles and McFarland, and the interrogating

ottiéars. Under the circumstances, it is not reasonably

probable that the jury would have reached a more favorable

verdict but for the admission of the foregoing testimony

from the witness Gaines. Accordingly, any error in

admitting it was clearly harmless. (People v. Watson

(1956) 46 Cal.2d 818, 836-837; see also Parker v. Randolph

(1979) _ U.S. __ [99 S.Ct. 2132) [opns. of Renquist and

Blackmun, JJ.).-)

9. Delay in Disclosing Prosecution Witness

Defendant asserts that the prosecutor unduly

delayed the delivery to defense counsel of information

regarding the probable testimony of defendant's cellmate

Mark Mikles concerning defendant's admissions to him. The

record reflects that Mikles' name was added to the

prosecutor's witness list shortly before trial commenced.

When defense counsel learned that Mikles would be called,

he complained to the trial court that he had been given

insufficient notice that the witness would be called. In

response the trial court granted a brief continuance and

appointed an investigator to assist defense counsel in

preparing his defense to Mikles' testimony. In addition,

the prosecutor offered to permit counsel to interview

Mikles. Finally, defense counsel obtained a full preview

—-—— -_—

of Mikles' testimony during a special foundational hearing

(Evid. Code, § 402) conducted prior to Mikles' appearance

on the witness stand. .

-The grant or denial of continuances for discovery

purposes is a matter peculiarly within the discretion of

the trial court (People v. Duck Wong (1976) 18 Cal.3d 178,

188-189) and defendant must demonstrate some resulting

prejudice from the denial of a continuance (People v.

Laursen (1972) 8 Cal.3d 192, 204). In the present case, &

continuance was granted, and defendant fails to indicate

in what manner the relief obtained by him was insufficient

to protect his interests as it related to Mikles'

testimony.

Defendant suggests that the prosecutor acted

improperly in failing to furnish to defense counsel, prior

to trial, copies of all documents or reports summarizing

the evidence to be offered at trial. Although we have

held that the People must furnish, sua sponte, any

evidence favorable to defendant (see People v. Nation

(1980) 26 Cal.3d 169, 175; People v. Ruthford (1975) 14

Cal.3d 399, 406; In re Ferguson (1971) 5 Cal.3d 525, 533),

we have never required pretrial disclosure of unfavorable

evidence, at least in the absence of a proper request

therefor. We accordingly conclude that, no prejudice

being shown, defendant's present contention of untimely or

inadequate evidentiary disclosure is untenable,

Pa ere eo ee ee

: =. .

10. Defendant's Absence from Mistrial Hearing

Defendant contends that he was improperly

deprived of his constitutional and statutory right to be

present personally at all trial proceedings. (See Cal.

Const., art. I, § 15; Pen. Code, §§ 977, 1043.) He

focuses, in this connection, on 4 proceeding during trial

when, after the admission of cellmate Mikles' testimony,

defense counsel moved for a mistrial because of the

prosecutor's delay in disclosing the nature of Mikles'

testimony as it pertained to defendant's involvement in

the murders. Also at issue at this point was the question

whether the prosecutor had suppressed or destroyed a tape

recording of Mikles' statement.

The motion for mistrial was made in the court's

chambers outside the presence of the jucy. The court

noted for the record that defendant was not personally

present and defense counsel expressly waived his client's

attendance at the hearing. Thereupon, the prosecutor

explained that the Mikles tape recording evidently had

been inadvertently misplaced, and he described the

circumstances underlying that matter. Defense counsel,

acknowledging the prosecutor's prior “honesty and

credibility,” accepted the prosecutor's explanation, but

argued that in the absence of sufficient prior notice of

Mikles' probable testimony, he had been unable competently

to impeach Mikles.

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The prosecutor responded by pointing out that he

had included Mikles' name on a witness list furnished to

defense counel shortly before trial, and that it was

defense counsel's own responsibility to ascertain the

witness' probable testimony and to prepare to impeach it.

The prosecutor also observed that Mikles' prior criminal

record adequately served to impeach that witness. In

addition, both of the officers who originally interviewed

Mikles had been available for interview by defense counsel.

The trial court, in denying defendant's motion

for mistrial, ruled that because defense-counsel had

notice “early on in the trial” of the likelihood that

Mikles would testify, it was counsel's responsibility to

perform any investigative work necessary for impeaching

that witness. The court further accepted the prosecutor's

explanation regarding the missing tape recording.

Defendant now contends that it was reversible

error to hold the mistrial hearing outside his presence.

The point lacks merit. Section 977, subdivision (b),

provides in pertinent part that in felony cases "the

accused must be present at the arraignment, at the time of

plea, during the preliminary hearing, during those

portions of the trial when evidence is taken before the

trier of fact, and at the time of the imposition of

sentence. The accused shall be personally present at all

other proceedings unless he shall, with leave of court,

execute in open court, a written waiver... ."

Furthermore, section 1043, subdivision (a), recites in

part that “Except as otherwise provided in this section,

the defendant in a felony case shall be personally present

at the trial."

The cases which have interpreted the foregoing

sections uniformly have held that the accused is not

entitled to be personally present either in chambers or at

bench discussions which occur outside of the jury's

presence on questions of law or other matters in which

defendant's presence does not bear a "*reasonably

substantial relation to the fullness of his opportunity to

defend against the charge.'" (In re Lessard (1965) 62

Cal.2d 497, 506; accord In re Dennis (1959) 51 Cal.2d 666,

672; People v. Abbott (1956) 47 Cal.2d 362, 372; People v.

Isby (1947) 30 Cal.2d 879, 894; see People v. House (1970)

12 Cal.App.3d 756, 766-767; People v. Boehm (1969) 270

Cal.App.2d 13, 19-20; People v. Teitelbaum (1958) 163

Cal.App.2d 184, 207; see 3 Wharton, Criminal Procedure

{12th ed. 1975) § 483, pp. 342-345.) Stated in another

way, “When the presence of the defendant will be useful,

or of benefit to him and his counsel, the lack of his

presence becomes a denial of due process of law."

(Dennis, supra, 51 Cal.2d at p. 673; see Boehm, supra, at

pp. 19-20; Teitelbaum, supra, at P- 207.) The burden is

upon defendant to demonstrate that his absence prejudiced

his case or denied him a fair and impartial trial. (In re

Lessard, supra, at pp. 506-507; House, supra, at p. 767;

People v. Williams (}970) 10 Cal.App.3d 745, 752; Boehm,

supra, at p. 20.)

Both Boehm, supra, and Teitelbaum, supra,

illustrate the application of the foregoing principles.

The Boehm court held that defendant's presence was not

required at an in-chambers discussion culminating in the

grant of immunity and dismissal of charges against a

codefendant; in Teitelbaum, the court ruled that defendant

was not entitled to be personally present at any of 34

separate chambers or bench discussions held outside the

jury's presence. The Teitelbaum court observed that “In

none of the instances of conferences at the bench or in

chambers, were any matters presented to the court as to

which appellant could have been of any aid to his

counsel. Each of them concerned questions of law as to

‘the admissibility of evidence and any knowledge appellant

may have had of the facts which his counsel did not have,

would have been of no aid to his counsel in the

presentation of these questions of law." (P. 207, italics

added.)

In the present case, as in Teitelbaum, the

hearing at. issue concerned a question of law regarding the

admission of evidence, specifically, the necessity of

Ordering a mistrial by reason of the admission of Mikles'

testimony. Because the testimony at issue had already

been placed in evidence in defendant's presence, it is

difficult to conceive of any substantial reason why

defendant's continued Presence would have been of any aid

to his counsel in Presenting the mistrial motion.

Appellate counsel now speculates that had defendant been

Present at the hearing, he might have moved to discharge

his counsel for incompetence in handling the matter. As

we have hereinabove observed, however, counsel acted with

reasonable competence in investigating and presenting

defendant's case. :

We conclude that defendant's Presence at the

mistrial hearing was not required in order to protect

defendant's interests, to assure him a fair and impartial

trial, or to assist counsel in the defense of the case,

Accordingly, the court did not err in conducting the

hearing in defendant's absence,

> Admissibility of Witness' Prior Federal

Conviction

Defendant contends that the trial court erred in

excluding for impeachment purposes a prior 1975 robbery

conviction of Mikles in a federal youthful offender

proceeding. The basis for the trial court's ruling was

that under California law a juvenile court adjudication is

not considered an impeaching conviction. (Welf,. & Inst.

Code, § 203; see In re Rickey B. (1978) 82 Cal.App.3d 106,

114.)

‘Defendant urges that under federal law, a prior

juvenile adjudication may be admissible for purposes of

attacking a witness’ credibility if a conviction of that

offense by an adult would be similarly admissible and the

court is satisfied that admission thereof "is necessary

for a fair determination of the issue of guilt or

innocence.” (Fed. Rules Evid., rule 609(d).)

We need not determine, however, the applicability

of the federal rule to a state court proceeding, for it is

readily apparent from the record that defendant was not

substantially impeded in his impeachment efforts by the

challenged trial court ruling. Defendant was permitted to

disclose to the jury the fact that Mikles had suffered a

1977 robbery conviction in state court, and further that

he had been convicted of, and was awaiting sentence on,

four additional robbery counts. Quite clearly, proof of

the federal adjudication would have added nothing

significant to the force of the impeschment evidence

against Mikles which already had been adduced by defendant.

12. Admissibility of Witnesses’ Former Testimony

Defendant argues that the trial court erred in

admitting the preliminary hearing testimony of two

witnesses (Larry Rushing and Debria Lewis) who were

unavailable at trial. According to defendant, the

prosecutor failed to exercise reasonable diligence in

procuring the trial attendance of these witnesses.

Under California law, prior testimony may be

introduced if, among other things, the declarant is

unavailable as 4 witness. (Evid. Code, § 1291.)

Unavailability may be established by showing that the

declarant is "Absent from the hearing and the proponent of

his statement has exercised reasonable diligence but has

been unable to procure his attendance by the court's

process." (Id., § 240, subd. (a) (5)-)

. It has been stated that the requirement of due

diligence "is a stringent one for the prosecution, It is

not sufficient that reasonable diligence has been

exercised in an effort to procure a defendant's attendance

“by the court's process.’ A criminal defendant's

witness-confrontation right is deemed to require that the

prosecution make the additional showing of @ good faith

effort and reasonable diligence to procure the witness’

voluntary attendance.” (People vV- Salas (1976) 58

Cal.App.3d 460, 469-470, italics in original; see People

y. Johnson (1974) 39 Cal.App- 34 749, 755-)

In a recent review of the issue (People v-

Enriquez (1977) 19 Cal.3d 221, 235), for example, we

observed that a prosecutor's sole effort to procure the

attendance of a witness "was to request issuance of a

bench warrant and, at some undisclosed time, to ask the

absent witness’ mother where he might be located." (19

Cal.3d at p- 236.) No attempt was made in Enriquez to

serve the warrant or to locate the witness based on

information available to the prosecutor. We concluded

that the record disclosed "only casual indifference, not

diligence, in attempting to serve the warrant on (witness)

Prieto.” (Id., at PP» 236-237.)

In the present case, in contrast, there is ample

evidence in the record supporting the trial court's

finding of the prosecution's due diligence. The police

officers and their investigators actively sought these two

witnesses by interviewing friends and relatives, checking

with jails, hospitals and probation officers, and leaving

appropriate messages. The trial court heard extensive

testimony on the issue and expressly found that given the

“lifestyle” of these witnesses (Rushing was characterized

as a “fugitive from justice,” Lewis was assertedly a

prostitute), and the evident difficulties incurred in

trying to find them, the prosecutor exercised due

diligence under the circumstances,

As we recently noted in Enriquez, due diligence

is a factual question to be determined by the trial court

according to the circumstances in each case; under

familiar rules the trial court's ruling will not be

disturbed unless an abuse of discretion appears, (19

Cal.3d at Pp, 235; see also People v. Williams (1973)

9 Cal,3d 24, 35.) No such abuse appears herein,

Moreover, even were we to hold that the

prosecutor failed to exercise due diligence, any error in

admitting the former testimony of witnesses Rushing and

Lewis would be harmless beyond a reasonable doubt (see

Chapman vV- California (1967) 386 U.S. 18, 24; In Fe

Montgomery (1970) 2 Cal.3d 863, 868), because neither

witness provided significant, noncumulative testimony.

Rushing testified merely that defendant had admitted

hitting an elderly lady during the course of a burglary?

Lewis was one of several witnesses (Gaines, Hall, Mikles,

McFarland) in whom defendant confided regarding his role

in the murders, Indeed, as we have noted, defendant's own

tape-recorded statement firmly esteblished his complicity

in these crimes,

13. Exclusion of Prospective Jurors

During the voir dire examination of the jury the

trial court excused four prospective jurors who had stated

that they would automatically vote against the imposition

of the death penalty without regard to the evidence in the

case. (See Witherspoon v. Illinois (1968) 391 U.S. 510,

(522, fn, 21.) One of these prospective jurors

affirmatively stated that his feelings regarding the death

penalty would not affect his ability to determine

defendant's guilt or innocence. Defendant evidently

asknewledees freely that the views of these prospective

jurors regarding the death penalty disqualified them from

determining the issue of penalty under the Witherspoon

rule, and our independent examination of the voir dire

proceedings discloses that indeed each of these persons

was properly excluded under Witherspoon, Defendant does

contend, however, that exclusion of these jurors resulted

in a jury adjudicating guilt which was unrepresentative of

the community and unduly biased in favor of conviction,

Identical contentions were raised and rejected by us very

recently in Hovey v. Superior Court (1980) __ Cal.3d

(S.F, 24093], and accordingly need not be reexamined here,

14, Waiver of Right to Present Mitigating Evidence

Defendant asserts that the judgment of death must

be set aside by reason of the failure of the trial court

to obtain his personal waiver of the right to present

mitigating evidence at the penalty phase of the trial.

A ee eer

Defendant takes the position that his trial counsel's

submission of the penalty question to the jury without

offering any mitigating evidence was tantamount to a

concession that death was the proper penalty in this

case, Defendant relies, by analogy, on cases which

require specific and personal waiver by defendant of his

various trial rights on entry of a guilty plea or

submission of a case on a transcript which would preclude

acquittal, (See Boykin v. Alabama (1969) 395 U.S. 238;

People v,. Levey (1973) 6 Cal.3d 648; In re Tahl (1969)

1 Cal.3d 122.)

The contention lacks merit. There is no

Statutory or decisional authority requiring an

on-the-record waiver of the right to present evidence at

the penalty phase of a trial. We rejected a nearly

identical argument in People v. Murphy (1972) 8 Cal.3d

349, 365-366, where defendant contended that the paucity

of witnesses called in his defense at both guilt and

penalty phases constituted no defense at all, and was

tantamount to a guilty plea requiring the court to obtain

a waiver under Boykin-Tahl. As we noted in Murphy,

on-the-record waiver principles have no application in

trial situations where defense counsel may be expected to

advise a defendant of his rights to testify and call

witnesses,

We have previously discussed and rejected

defendant's related contention that his trial counsel was

inadequate and incompetent in failing to present

mitigating evidence at the penalty phase. For purposes of

the present contention, it seems clear that counsel's

submission of the case without offering mitigating

evidence on the penalty question cannot be viewed as

tantamount to any concession that the death penalty was

proper. Trial counsel in argument attempted at length to

dissuade the jury from imposition of the death penalty.

Counsel's lack of success does not alter our conclusion

that the effort was vigorous in application and reasonable

in concept. Moreover, nothing in the pertinent statutory

provisions or in the jury instructions which were given

here suggests that a death penalty was required in the

event defendant failed to offer any mitigating evidence.

(See tormer § 190.3.) Accordingly, the foregoing

authorities relied on by defendant are neither analogous

nor controlling.

Defense counsel is generally authorized to make

tactical decisions regarding the introduction of evidence

and to control court proceedings, without the necessity of

first obtaining a personal waiver from the client. (See

Linsk v. Linsk (1969) 70 Cal.2d 272, 276-278; People v.

Hill (1967) 67 Cal.2d 105, 114-115.) It is noteworthy

that defendant personally raised no objection whatever to

counsel's submission of the case without introducing

mitigating evidence, and further that defendant presently

does not call our attention to any specific mitigating

evidence which was withheld from the jury's

consideration. We conclude that defendant's personal

waiver was not required under the circumstances in this

case.

15. Constitutionality of 1977 Death Penalty Legislation

Defendant asserts that the 1977 death penalty law

under which he was sentenced is unconstitutional. Most of

the arguments advanced by defendant were discussed at

considerable length in People v. Frierson, supra, 25

Cal.3d 142, 172-188, 191-195, and we do not repeat them

here. The bases for the claimed invalidity include: (1)

the breadth of the jury's discretion to fix the

appropriate penalty; (2) the absence of a requirement that

the jury render findings explaining its decision; and (3)

the absence of any express statutory provisions requiring

proportionality review on appeal.

In addition, defendant contends that the 1977 law

is constitutionally inadequate in failing to require the

existence of at least one aggravating circumstance in

order to justify a verdict of death. As explained in

Frierson, however, the 1977 law requires the presence of

at least one "special circumstance" which is an

aggravating feature setting the case apart from an

“ordinary” murder case. (See id., at pp. 175-179.)

Further, the jury ig instructed to consider and to be

guided by a list of specific aggravating and mitigating

circumstances in reaching its decision, a provision

equivalent to a requirement that the jury weigh those

factors (id., at p. 180). Thus, the aggravated nature of

the offense is considered and weighed by the jury in

making its determination.

In any event, the record in the present case

discloses several aggravating circumstances connected with

the two savage murders, including the use of lethal and

unusually brutal force against two helpless and elderly

ladies, and the vicious sexual abuse of one of them. We

observe that defendant has not contended that imposition

of the death penalty would constitute “disproportionate”

punishment under the facts of this case. (See id., at pp.

180-184.) Indeed, given the aggravating circumstances

referred to above, such a contention would have been

frivolous.

The dissents of Chief Justice Bird and Justice

Mosk would hold the 1977 law unconstitutional on various

grounds, most of which were discussed in Frierson, but we

a eran ee

-—

respond briefly. The dissents suggest that the 1977 law

fails to provide adequate standards to guide the

sentencing discretion of the trier of fact. This issue

was treated at pages 176-178 of Frierson, where we focused

upon the close resemblance of the California statute to

the Georgia and Florida laws which were upheld by the

United States Supreme Court in Gregg v. Georgia (1976) 428

U.S. 153, and Proffitt v. Florida (°976) 428 U.S. 242.

It is suggested that section 190.3 of the Penal

Code, specifying the various aggravating and mitigating

factors to be considered by the trier of fact, is invalid

in its failure to state expressly which factors are

aggravating, and which are mitigating ones. Yet the

factors involved (such as the nature of the crime,

defendant's prior criminal conduct, the victim's consent

or participation, defendant's age or mental capacity)

properly require the jury to concentrate upon the

circumstances surrounding both the offense and the

offender, rather than upon extraneous factors having no

rational bearing on the appropriateness of the penalty.

We believe that the acgravating or mitigating nature of

these various factors should be self-evident to any

reasonable person within the context of each particular

case.

The Bird dissent further questions whether

defendant's diminished capacity due to mental disease or

intoxication (§ 190.3, subd. (g)) is a mitigating or

aggravating factor. We think it quite obvious that

diminished capacity of this type is a mitigating factor.

Indeed, this factor is specifically listed as a mitigating

factor by the drafters of the Model Penal Code provision

on sentencing standards; significantly, the California act

seems to have incorporated most of the factors set forth

in the Model Penal Code provision, which was referred to *

with obvious approval by the high court. (See Gregg v.

Georgia, supra, 428 U.S. 153, 193-194, fn. 44.)

The dissents complain of the absence in the

California act of any requirement that the jury file

written findings disclcsing which aggravating factors, if

any, were relied upon in imposing the death penalty. As

was fully explained in Frierson at pages 178-180, (1) the

Gregg v. Georgia et al. decisions impose no such rigid

Standards regarding the necessity of findings; (2) in any

event, the California system bears sufficient similarity

to Florida's advisory jury system upheld in Proffitt to

pass constitutional muster. Surely, if Florida's system

is valid (wherein an advisory jury makes recommendations,

without findings, to the trial judge), Californja's

system, which imposes the additional safeguard gf a jury

independently determining the penalty, must likewise be

PE a ee

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valid. Moreover. unlike the Florida system, California

imposes the additional requirement that the trier of fact

make a written finding of the existence of "special"

circumstances (which are "aggravating" circumstances)

befcre the death penalty may be imposed. (S§ 190.4, subd.

(a)-)

The issue of proportionality review was treated

in detail at pages 180-184 of Frierson. The Bird dissent

revives the argument that because the California

Legislature rejected proposed legislation to add

proportionality review to the 1977 law, we should not

“read into" that law similar provisions in order to

preserve its constitutionality- But as Frierson explains

(pP- 183-184), the Legislature may well have rejected such

proposals as wholly unnecessary in light of the decisions

in Proffitt and Jurek V- Texas (1976) 428 U.S. 262, which

preceded the 1977 law and which had upheld Florida and

Texas statutes containing no express provision whatever

for proportionality review.

It is also suggested that the form of

proportionality review which Frierson assures will be

available (based upon the three-pronged test of In re

Lynch (1972) 8 Cal.3d 410, 424-427) is too narrow because

it fails to determine whether the penalty is proportional

to other sentences imposed for similar crimes- This

bit aaa iE ae es Bld £ ronan Yd ei ndeeh NS)

statement, however, appears to ignore Frierson's express

reference to the second and third prongs of the Lynch

test, under which a comparable inquiry is to be made.

(See People v. Frierson, supra, 25 Cal.3d 142, 183.) In

any event, as indicated in Frierson (pp. 183-184), we

stand fully prepared to afford whatever kind of

proportionality review may be held constitutionally

mandated by the high court.

The 1977 death penalty law, as with all

legislation, is presumed to be constitutional (In re

Anderson (1968) 69 Cal.2d 613, 628), and it does not

“clearly, positively and unmistakably” appear to violate

the Eighth and Fourteenth Amendments as construed Ly the

federal cases (see In re Dennis M. (1969) 70 Cal.2d 444,

453).

CONCLUSION

Defendant has raised numerous contentions

regarding asserted trial court errors and trial counsel

inadequacies. However, our review of ele: senhen convinces

us that no more f>vorable verdict would have regulted had

such asserted errors or inadequacies not occursed.

Defendant received a fair trial. Mindful as we are of the

extreme gravity of the crimes for which defendant stands

convicted and of the ultimate punishment which has been

imposed, and in view of the overwhelming and

uncontradicted evidence of defendant's guilt of each of

the offenses charged, and of the presence of special .

circumstances which permit the imposition of the death

penalty, we conclude that no “miscarriage of justice" has

occurred within the meaning of article VI, section 13, of

the California Constitution.

The judgment is affirmed, and the petition for

habeas corpus relief is denied.

RICHARDSON, J.

WE CONCUR:

CLARK, J.

MANUEL, J.

cOoOPY

PEOPLE v. JACKSON

Crim. 20910

In re EARL LLOYD JACKSON on Habeas Corpus

Crim. 21285

CONCURRING OPINION BY NEWMAN, J.

More than a year ago I joined in Justice Mosk's

Frierson opinion. (25 Cal.3d 142, 188-196.) Yet in the case

now before us I am persuaded by neither Parts II to 1V nor Part

v of his dissent. Instead I concur with my colleagues who hold

that the statute is constitutional and that the judgment of

death therefore must be affirmed.

Very briefly I will explain why 1 do not subscribe

fully to any colleague's views. The lead opinion, I believe,

answers credibly (1) the questions on adequacy of counsel thet

have been specified by the Chief Justice and Justice Mosk, and

(2) the Chief Justice's objections concerning constitutionality

and proportionality. As to the death penalty in general, 1

still share views expressed by Justice Mosk in Frierson. I do

not, however, agree with his conclusion that four defects

require us to hold the statute unconstitutional.

How much shquld we cemand of the individuals who draft

death-penalty statutes? A reasonable and conscientious response ,

to the United States Supreme Court rulings is enough, I think.

Since I am persuaded that the California Legislature did so

respond, I vote to uphold the statute. There may well be

revision of those rulings (see Frierson, supra, 25°Cal.3d at pp.

190-195), but “a state court would be rash indeed to predict how

and when the United States Supreme Court will ultimately solve

the problem it created in Furman." (Id., at p. 195.)

If the Supreme Court does decide to prescribe certain

procedures, how might our approach to cases like this be

affected? Should we pronounce that legislative acknowledgment

of the new prescriptions is essential and (as Justice Mosk

seems to suggest) that all “elementary requirements" must be

articulated in a re-written statute? As recently as last month

we stated: "If feasible within bounds set by theif words and

purpose, statutes shculd be construed to preserve their consti-

tutionality. [Citations.]" (Conservatorship of Hof ferber

(1980) 28 Cal.3d 161 at p. 175.)

California courts and federal courts are not timid in

reading into legislation various procedural and other rules

a ; ; deemed constitutionally required that the draftsmen may have

ro overlooked or rejected. That is demonstrably true as to count-

less requirements on matters such as unanimous verdict, proof

es beyond a reasonable doubt, and jury or judge findings. Whether

a | there be four such matters or forty (cf. Hofferber, supra, at

Se tae ee Ca

ae pp. 178-179; Frierson, supra, at p. 193, fn. 8) we should not i

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ne : - insist, even in death-penalty cases, that each requirement be <

a first written out and then enacted by the Legislature.

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PEOPLE v. JACKSON

Crim. 20910

In re EARL LLOYD JACKSON on Habeas Corpus

Crim. 21285

DISSENTING OPINION BY MOSK, J.

In my view a fair reading of the record demonstrates

that defendant was denied constitutionally adequate assistance

of counsel at the penalty phase of his trial, and hence that

_ the judgment of death imposed on him cannot stand.

It is now settled that the constitutional right of

a criminal defendant to the “assistance of counsel" (U.S. Const...

6th Amend.; Cal. Const., art. I, § 15) requires that he be

afforded reasonably competent representation by an attorney

acting as his diligent, conscientious advocate. (People v.

Pope (1979) 23 Cal.3d 412, 423 (maj. opn.), 438 (dis. opn. of

Mosk, J.); accord, People v. Frierson (1979) 25 Cal.3da 142,

160 (opn. of Richardson, J., Clark, J., and Manuel, J.);

People v. Cooper (1979) 94 Cal.App.3d 672, 681; People v.

Farley (1979) 90 Cal.App.3d 851, 859.) “Reviewing courts

should avoid second-guessing counsel's informed choice among

tactical alternatives, but a defense attorney's freedom

to make such decisions is not without limits. Every person

accused ota criminal offense is entitled to constitutionally

adequate legal assistance. [Citation.] That right is denied

if trial counsel makes a critical tactical decision which

would not be made by diligent, ordinarily prudent lawyers

in criminal cases. This is true even if the decision were

not made from ignorance of the law or a fact." (Pope, at

p. 424.)

Among the “basic duties" counsel must perform in

order to provide reasonably competent assistance are diligent

preparation of the client's case and a careful investigation

of all defenses of fact and law that may be available. (Id.

‘at pp. 424-425.) If counsel's failure to discharge these

duties results in the withdrawal of a crucial or potentially

meritorious defense, the defendant has been denied his con-

stitutional right. (Id. at p. 425.) Absolute certainly,

however, is not required: “A crucial defense is not neces-~

sarily one which, if presented, ‘would result inexorably in

a defendant's acquittal.'" (Id. at p. 425, fn. 15.)

In applying this rule to the penalty phase of a

murder trial, of course, it is inappropriate to speak of

\ ’ "defenses" in the sense in which the word is useq in the

guilt phase: once it is found that the defendant committed

the crime, there is no longer a “charge” pending against

him to which he may interpose a “defense.” Rather, the

TOT Ry re bi Lae haat Se none ti e —

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penalty phase is in essence a sentencing hearing at which

additional! information about the defendant is adduced in

order to permit a rational decision concerning the proper

punishment to be imposed. To this end, the statute govern-

ing the trial herein provided that "In the proceedings on

the question of penalty, evidence may be presented by both

the people and the defendant as to any matter relevant to

aggravation, mitigation, and sentence," including, but not

limited to, such facts as the nature and circumstances of the

offense, the existence or lack of prior criminal activity by

the defendant involving the use or threat of force, and "the

defendant's character, background, history, mental condition

and physical condition." (Italics added.) (Former Pen. Code,

§ 190.3, lst par., added by Stats. 1977, ch. 316, § ll, p.

1258.) The broad scope of the defendant's right to intro-

duce evidence in mitigation is underscored by the further

provision that in reaching its decision the jury shall take

into account not only certain listed factors (e.g., the defen-

dant's age, mental state, and degree of participation in the

offense) but also "Any other circumstance which extenuates

the gravity of the crime even though it is not a legal excuse

for the crime." (Id., 5th par., subd. (3).)

The crucial importance of such mitigating evidence

is demonstrated by the fact that the statutory provisions for

its introduction are not merely matters of legislative policy --

they are constitutionally compelled: the Eighth and Fourteenth

aes ee

Amendments require that the sentencer “not be precluded from ,

considering as a nitigating factor, any aspect of a defen- |

dant's character or record and any of the circumstances of

the offense that the defendant proffers as 4 basis for a

sentence less than death." (Fn. omitted.) (Lockett oo:

Ohio (1978) 438 U.S. 586, 604 (plur. opn. of Burger, C.J.).-)

‘(here are two reasons for this rule. First, because of the

- @rastic nature of the penalty it is critical that the sen-

tencing authority have full, accurate, and reliable informa-

tion about the person to be punished: “the penalty of death

is qualitatively different from a sentence of imprisonment,

however long. Death, in its finality, differs more from

life imprisonment than a 100-year prison term differs from

one of only a year or two. Because of that qualitative

difference, there is a corresponding difference in the need

for reliability in the determination that death is the appro-

priate punishment in a specific case." (Fn. omitted.)

(Woodson v. North Carolina (1976) 428 U.S. 280, 305 (plur.

opn. of Stewart, J., Powell, J., and Stevens, J.).) (Ina

noncapital case “where sentencing discretion is granted, it

generally has been agreed that *ae sentencing judge's ‘posses~-

sion of the fullest information possible concerning the defen-

dant's life and characteristics’ is *{h)ighly releyant -~-

if not essential -- [to the] selection of an appropriate

sentence. ...'" (Lockett, at pp- 602-603.) Yet “If an

experienced trial judge, who daily faces the diffjcult task

of imposing sentences, has a vital need for accurate informa-

tion about a defendant and the crime he committed in order to

be able to impose a rational sentence in the typical eriminal

case, then accurate sentencing information is an indispensable

prerequisite to a reasoned determination of whether a defen-

dant shall live or die by a jury of people who may never before

have made a sentencing decision.” (Italics added.) (Gregg v.

Georgia (1976) 428 U.S. 153, 190 (plur. opn. of Stewart, J.,

Powell, J., and Stevens, J.).)

Secondly, and even more fundamentally, "The basic

concept underlying the Eighth Amendment is nothing less than

the dignity of man." (Trop v. Dulles (1958) 356 U.S. 86,

100 (plur. opn. of Warren, C.J.) accord, People v. Anderson

(1972) 6 Cal.3d 628, 650.) To impose a sentence of death in

ignorance of “the defendant's diitietee , background, [and]

history” is to deny that dignity and treat the defendant as

something less than a human being: "A process that accords

no significance to relevant facets of the character and

record of the individual offender or the circumstances of

the particular offense excludes from consideration in fixing

the ultimate punishmert of death the possibility of compas-

sionate or mitigating factors stemming from the diverse

frailties of humankind. It treats all persons convicted of

a designated offense not as uniquely individual human beings,

but as members of a faceless, undifferentiated mass to be

subjected to the blind infliction of the penalty of death."

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(Woodson, at p. 304.) It follows that "in capital cases the

. fundamental respect for humanity underlying the Eighth Amend-

ment, [citation], requires consideration of the character and

record of the individual offender and the circumstances of

the particular offense as a constitutionally indispensable

part of the process of inflicting the penalty of death."

(Italics added; ibid.) (Accord, Lockett, at p. 605; Rockwell

v. Superior Court (1976) 18 Cal.3d 420, 428.)

It is self-evident that in most trials the jury

will be unable to give any "consideration" whatever to such

mitigating factors without the assistance of defense counsel.

Unless counsel undertakes a timely investigation to develop

this evidence, marshals the witnesses or documents needed

to present it, and introduces it at the penalty phase, the

jury risks condemning the defendant without the individualized

treatment contemplated by the statute and, under Gregg and

its progeny, mandated by the Constitution. For this reason,

defense counsel's basic duty to diligently prepare his client's

case and carefully investigate all defenses that may be avail-

able (Pope, at pp. 424-425 of 23 Cal.3d) includes, in capital

cases, the foregoing additional responsibilities. If he fails

to so act, and if the failure results in withholding crucial

extenuating evidence from the jury, the defendant has not had

the representation to which he is constitutionally entitled

under the Pope rule. As in Pope, of course, the defendant

need not prove that the evidence in question would "inexorably"

SIR PR Oe ae

~ i

have produced a sentence less than death. (Id. at p. 425, fn.

15.)

Applying this rule to the case at bar I find that

the record, when fairly read, supports the defendant's conten-

tion that he was denied constitutionally adequate representa-

tion at the penalty phase.

To begin with, it is beyond dispute that counsel had.

more than ample time to prepare for that phase of the proceed-

ings. Despite the strong public policy in favor of a speedy

trial in all criminal cases (U.S. Const., 6th Amend.; Cal.

Const., art. I, § 15; Pen. Code, §§ 686, 1050; People v.

Sabine (1980) 26 Cal.3d 557, 562-563), and the implementing

statutory mandate that in the absence of good cause or con-

sent a defendant charged with felony must be brought to trial

within 60 days after the filing of the information (Pen. Code,

§ 1382, subd. 2), in the case at bar the trial did not begin r

until 415 days after the first information was filed. During :

all that time defendant was held in the local jail, and for

the last 365 days of the period he was represented by the

attorney of whom he now ‘ieebkeohina.

1/ The crimes were committed on August 29 and September 7,

1977. On September 17 defendant surrendered to the police and

was immediately jailed. On October 19 the first information

was filed, charging him w.th both murders. After obtaining 12

continuances, the public defender declared a conflict and a

private attorney was appointed as defendant's counsel on

oe sa. | ee

After seven days of jury selection, the People put

on a substantial case in chief at the guilt phase: the

prosecution called twenty-nine witnesses, and their testi-

mony consumed some eight days of trial. By contrast,

defense counsel offered no evidence whatever on defendant's

behalf.

Ine greater contrast was the testimonial portion

of the penalty p » held on January 9, 1979. While the

corresponding’ f portion of the guilt phase lasted more than a

week, the entire hearing of testimony on the issue of penalty

took less than 45 minutes: ‘tWO prosecution witnesses were ques-

tioned briefly about the location and appearance of the bottle

apparently used to sexually assault the victim Ott; defense

counsel cross-examined one but not the other; and counsel

again declined to offer any evidence whatever on defendant's

behalf.

Counsel's failure to present any extenuating evidence, ?

morevver, was repeatedly called to the jury's attention in

oral argument. First, the prosecutor structured his presenta-

tion on the list of aggravating and mitigating factors that

December 8, 1977. ‘After at least 20 more continuances -- one

lasting 3-1/2 months and most ordered at,the second defense

attorney's request -- jury selection finally began exactly one

year later on December 8. 1978. Indeed, between the arrest and

the judgment (ifar. 19, 1979) defendant was held in jail for

a total of one and one-half years.

' nik, The prosecution made its opening statement on

Dece r 19, 1978, and its witnesses testified on December 20,

21, 26, 27, 28, and 29, 1978, and January 2 and 3, 1979.

the st< ute directed the jury to take into account in fixing

the penalty. (Former Pen. Code, § 190.3.) Reviewing each

of those factors, he found none favorable to defendant ex- |

cept his age at the time of the crime; all the others, he

urged, constituted circumstances in aggravation. He then

asked the jury, “Is there anything that you have heard during

the days of testimony and the offering of evidence to you that

in an, way diminished the gravity of the crime, the beating

of Mrs. Ott? Anything? Obviously not." Again paraphrasing

the statutory language, the prosecutor next told the jury:

“Then we come down to the last [factor], and that is the

defendant's character, his background, his history, his mental

and physical condition. Well, we don't know too much of the

defendant, do we? But what we do know, I would submit to you,

is sufficient for you to make a determination of the character

of this man, Mr. Jackson." (Italics added.) The prosecutor

addressed two of those factors, stressing defendant's evi-

dent physical strength and arguing that the circumstances of

the crime showed his "mental condition" to be that of a cool,

vicious, and pitiless killer. Summing up the point, the

prosecutor then emphasized, “So what about the defendant's

character, his background, his history, his mental and physical

condition? Any factors of mitigation in that regards? Obviously

none."

3 Because of the wide disparity in age between defendant

and the’ victim Ott, the prosecutor eventually argued that even

defendant's youth was an aggravating circumstance. !

In turn, defensw counsel's argument was wholly

inconsistent on this topic. Although he made frequent

appeals to the jury to consider "where this young man is

coming from," he apparently realized that except as to age

he had not produced any affirmative evidence of defendant's

character, background or history -- and like the prosecutor,

he persisted in reminding the jury of that omission. Thus

he admitted, "you never really got a chance to know [defen-

dant) or see him or talk to him," and could only argue nega-

tively that during the trial "we heard nothing about the things

‘that * + + I was used to when I was his age . . . like some

type of security." Again, defense counsel urged that "to

be fair . . . we must look into the background of the individual.

Now, you say, Well, I don't know much about him. I don't know

much about him. All I see is this black -- black man over here.

He looks young." (Italics added.) Indeed, defense counsel

‘doggedly adhered to this technique even in arguing his auto-

matic motion for modification of the verdict (former Pen.

Code, § 190.4, subd. (e)): while pressing the court to con-

sider “where he is coming from," counsel acknowledged the

prosecution's adverse evidence on defendant's character and

could only remark “lliptically that "the Court will never

know this individual as, say, I know the individual . . cio

4/ Taking defense counsel at his word, the court found no

additional extenuating circumstances and denied the motion. The

court noted that in weighing the matter it "considered and evalu-

ated only such evidence as was presented to the jury,” and con-

cluded "There is on this record but one mitigating factor, and

that is the defendant's age."

10,

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“

The ignorance of the court and jury on these

matters was of counsel's own making. For the reasons explained

above (Part I, ante) it was counsel's duty to present his evi-

dence on the issue of defendant's background and history,

rather than asking the court and jury to blindly rely on his

unexplained allusions as to "where this young man is coming

from." Nor are we required to speculate on what such evidence

might have included: the record contains significant material

on this issue that counsel could have put before the jury by

epproecibte witnesses.

The most obvious is the factual information appearing

in the probation report -- information elicited by the proba-

tion officer from sources that were equally accessible to

counsel. According to that report, defendant was born in 1957

in Arkansas, the only child of Alfred Jackson and Hollie Walker.

When he was four years old his parents separated and his mother

took him to California. She subsequently began living with a

Mr. Hackworth and had a child by him, now residing with her

at an unknown location. Defendant was raised primarily by his

paternal grandmother, Mattie Jackson, staying with her in the

Long Beach area until he was 17. He was then sent to Oakland

to live with his father, who was unemployed and subsisted on

welfare and disability payments.

At least one relevant picture of defendant's back-

ground and history appeared when the probation officer inter-

viewed defendant's grandmother, Mrs. Jackson. Acgording to

}

ll.

the probation report, the latter "states that she raised

jdefendant because his mother did not want him. When defen-

dant was nine he lived with his mother and stepfather for

a while and the latter beat him when defendant did not do

what he was supposed to do and beat him when he did what he

was not supposed to do. Mrs. Jackson also believes that

witnesses lied about defendant's part in the crimes, particu-

larly her granddaughter, Debra Hall. Mrs. Jackson describes

defendant as being a good kid who came down here in 1977 to

care for her when she was sick." Summing up, the probation

officer states in his own evaluation of the case that "Defen-

dant was reared in a home where there was no adult male

supervision until he was nine years of age. He was rejected

by both parents and then subjected to indiscriminate physical

punishment by a stepfather whom he scarcely knew."

None of this information, however, was communicated

to the jury. Yet defense counsel well knew of Mrs. Jackson

and her support of defendant throughout the trial. First,

during the voir dire proceedings on the guilt phase,

the judge, defense counsel, and prosecutor held a brief

discussion in chambers regarding the latter's complaint

that Mrs. Jackson, who was sitting in the courtroom, spoke

to the jurors when they passed her on the aisle. The

prosecutor expressed concern about the propriety of such

contacts, particularly if defense counsel intended to call

her as a witness in the penalty phase. Defenge counsel

12.

“Tt oe

i _

: 2

stated that Mrs. Jackson was about 90 years old and in his

opinion was "very senile"; nevertheless he offered to

warn her against talking with jurors. The prosecutor

responded, “I would agree that she is elderly. Whether

she is senile or not -- I don't get that impression, but

be that as it may, does counsel intend to call her as

a witness in any phase of the trial?" Counsel replied

that he did not know yet, but that he might call her

"“'cause I don't have much going for me and I have to use

everything I have got." The judge agreed that he was

very reluctant to exclude Mrs. Jackson from the courtroom,

adding the poignant remark that “in the strange world in

which the defendant now finds himself, his only ally is

his lawyer, who is white, and his grandmoiher, who is

black, . - -”

The prosecutor then explained that Mrs. Jackson

told him she was just saying hello to the jurors, and that

she seemed to answer his questions responsively; it was

for this reason that he believed she was not senile.

Defense counsel subsequently moderated his view and said,

"I have talked to her a little bit. I think she is a

little senile." He readily admitted, however, that she

had personal knowledge of defendant's background and

history: "She raised the boy and. . . he really doesn't

have anybody -- I checked that out -- other than her, .. -

And counsel acknowledged that Mrs. Jackson strong}y sup-

13.

ported her grandson: commenting that "you can't reason

with her" on the question of defendant's guilt, he con-

cluded: "She doesn't want anything to happen to the boy

and she knows it is the death penalty and she thinks the

boy is innocent, ., ."

Again, at the end of the trial and in the course

of his argument for modification of the verdict, counsel

told the court that "At no time have I ever heard from"

either defendant's mother or vithae and “the only one

that I have ever heard from or has ever given any interest

is his grandmother on his father's side, who has faithfully

always been in court" during the trial proceedings. (Italics

added.) This observation was corroborated by the prosecution

witness Johnson; who pointed out Mrs. Jackson sitting in the

courtroom during his cross-examination. Indeed, Mr. Johnson's

own testimony suggests that he too was a potential witness

for the defendant at the penalty phase. He testified that’

he had known defendant for at least four or five years,

during which time he saw him about once a week when defen-

dant visited the teenage boys of the woman with whom Johnson

was living; that defendant was “welcomed” in the woman's

5 The implication that defense counsel had simply

waited for defendant's parents to come forward of their own

accord is not rebutted, for example, by any indication in

the r

This text is long and has been trimmed here. Open the source document for the complete record.

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