Opposition Brief — Bernard Lee Hamilton v. California

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

F No. 88-5746 b) NOV 9 iste

4. “0

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

| \

}

pigs ORIGINAL ar

'S NOT

EDITOR'S E On Petition for Writ of Certiorari

to the Supreme Court of California

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

BRIEF OF RESPONDENT IN OPPOSITION

JOHN K. VAN DE KAMP, Attorney General

of the State of California

STEVE WHITE,

Chief Assistant Attorney General

FREDERICK R. MILLAR, JR.,

Supervising Deputy Attorney General

/PAT ZAHAROPOULOS,

. Supervising Deputy Attorney General

110 West A Street, Suite 700

San Diego, CA 92101

Telephone: (619) 237-7857

Attorneys for Respondent

QUESTIONS PRESENTED

1. In view of the fact that the guilt phase had been

affirmed, did the California Supreme Court’s reconsideration of

the entire case after this Court vacated the judgment and

remanded for further consideration in light of Rose v. Clark

(1986) 478 U.S. 570, prejudice petitioner in any way?

2. Where state law provides for 4 unitary trial in

two phases, did denial of petitioner’s motion to represent

himself at the penalty phase abridge his Sixth Amendment right

of self representatica?

3. After informing the jury that any factor could be

considered in mitigation did instructions and argument stating it

must return a death verdict if the specified factors in

aggravation outweighed all possible factors in mitigation mislead

the jury regarding leniency?

PARTIES

Petitioner, Bernard Lee Hamilton, is a prisoner

incarcerated under judgment of death at the California State

Prison at San Quentin, California. Respondent is the People of

the State of California.

OPINION BELOW

JURISDICTION

CONSTITUTIONAL STATUTES AND PROVISIONS INVOLVED

STATEMENT OF THE CASE

SUMMARY OF RESPONDENT'S ARGUMENT

ARGUMENT

I UPON RECEIPT OF THE VACATED JUDGMENT,

HIM IN A WORSE POSITION

I! IN A UNITARY TRIAL, PETITIOWER’S CONDITIONAL

REQUEST TO REPRESENT HIMSELF AT THE PENALTY

PHASE WAS DENIED WITHOUT ABUSE OF DISCRETION

AS WAS HIS LATER UNEQUIVOCAL REQUEST

III THE INSTRUCTIONS GIVEN PROVIDED GUIDED

DISCRETION IN SETTING THE PENALTY WITHOUT

PREVENTING THE JURY FROM CONSIDERING ANY

MITIGATING EVIDENCE IN THE CASE

Page

Cases

Barclay v. Florida

(1983) 463 U.S. 939 22

Board of isors of Louisiana State University v. Tureaud

(Sth Cir. 1955) 226 F.2d 714 il

Bullington v. Missouri

(1981) 451 U.S. 430 l

California v. Brown

(1987) 479 U.S. 538 is

California v. Hamilton

(1986) 478 U.S. 1017 10

California v. Ramos

(1983) 463 U.S. 992 20

Carlos v. ior Court

(1983) 35 Cal.3d i131 10

Davis v. Morris

(9th Cir. 1981) 657 F.2d 1104 is

Elfbrandt v. Russell

(1965) 364 U.S. 11 11

Paretta v. Californie

(1975) 422 U.S. 806 i3, 15

Franklin v. Lynaugh

(1968) 467 U.S. __, [101 L.8d.2¢ 155) 17, 21

Furman v. Georgie

(1972) 408 U.S. 238 is

v. Georgie

(1976) 428 U.S. 153 20, 22

v. City of Rockhill

(1963) 376 U.S. 776 10

Jerek v. Texas

(1976) 428 U.S. 262 22

Lockett v. Ohio

(1978) 438 U.S. 586 19, 21

Ohio Puel Gas Co. v. City of Mt. Vernon

(1930) 37 Ohio App. 159 11

le v. Brown

(1 ) 40 Cal.34 512 is

v. Hamilton

(i ) 41 Cal.3¢ 408 10, 15

le v. Hamilton

(i ) 45 Cal.3¢ 351 10, 13, 14, 16, 18

le v. Hendricks

(i ) 44 Cal.3¢ 635 22

iii

TABLE OF AUTHORITIES

Page

Cases

le v. Malone

(filed Nov. 3, 1988 in CR 23115) __ Cal.3d 14, 16

le v. Melton

(1988) 44 Cal.3d 713 18

le v. Moore

(Piled Nov. 3, 1988 in CR 23721) _ Cal.3d 13

le v. Myers

(1987) 43 Cal.3d 250 22

le v. Terone

(1979) 23 Cal.3d 103 14

People v. Windham

(1977) 19 Cal.3d 121 13

Proffitt v. Florida

(1976) 428 U.S. 242 20, 22

Stewart v. O'Neal

(1917) 237 F. 897 ll

Zant v. Stephens

(1983) 462 U.S. 862 22

Statutes

California Penal Code

$ 190.3 21

Qther Authorities

Black's Law Dictionary, 4th Ed., p. 1717 ll

CALJIC No. 8.84.1 18

CALJIC No. 8.84.1(k) 21

CALJIC No. 8.84.2 17, 21

Petitioner seeks review of an opinion of the California

Supreme Court affirming his judgment of death. (People v.

Hamilton (1988) 45 Cal.3d 351, as modified at 1034a upon denial

of rehearing; attached in Appendix 1(a).)

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

section 1257(3).

CONSTITUTION, STATUTES AND PROVISIONS INVOLVED

United States Constitution, Sixth, Eighth and Fifteenth

Amendments, and California Penal Code sections 190.3 and 190.4

subdivision (d). These provisions appear in Appendix 2 of the

petition.

STATEMENT OF THE CASE

In an information filed by the District Attorney of San

Diego County on July 11, 1979, petitioner was charged in four

felony counts as follows: count I, vehicular burglary: (Cal. Pen.

Code, { 459); count II, robbery (Cal. Pen. Code, { 211); count

III, kidnapping (Cal. Pen. Code, { 207); and count IV, murder

under special circumstances. Allegations contended petitioner

murdered Eleanor Buchanan during the commission of a robbery,

kidnapping and/or burglary (Cal. Pen. Code, { 190.2). (CT 45-

46.)4/

The information further alleged two prior felony

convictions (a 1972 forgery and a 1973 burglary). (CT 45-46.)

Petitioner was arraigned on July 16, 1979, and denied all

charges, allegations and prior convictions. (CT 87.)

Jury trial began on November 3, 1980. (CT 1457.) On

January 5, 1981, the jury convicted petitioner of burglary,

robbery, kidnapping, and first-degree murder, and found all

special circumstances true. (CT 1204-1210.) Thereafter, the

penalty phase was held and the jury fixed the punishment at

death. (CT 1335.)

Upon automatic appeal to the California Supreme Court,

the judgment of guilt was affirmed, but the special circumstances

and death penalty judgments were reversed. (People v. Hamilton

(1985) 41 Cal.3d 408; Appendix 1(b).)

On May 7, 1986, the People filed a Petition for Writ of

Certiorari. On July 7, 1986, this Court granted the petition,

vacated the judgment and remanded the case to the California

Supreme Court "for further consideration in light of Rose v.

Clark (1986) 478 U.S. __." (California v. Hamilton (1986)

U.S.___ss« [92 L.Ed.2d 734).) Om September 2, 1986, the case was

argued to the California Supreme Court, but no opinion was filed.

On September 9, 1987, the case was re-argued to the California

Supreme Court. On May 19, 1988, the California Supreme Court

affirmed petitioner’s convictions and death penalty. (People v.

Hamilton/In re Hamilton (1988) 45 Cal.3d 351, as modified on July

28, 1988, in 46 Cal.3d 1034a.

Statement of Facts

On the evening of May 30, 1979, 24-year-old Eleanor

Buchanan (the victim) had dinner with her husband and two infant

sons, then left for school in their new van. They had purchased

the van about six weeks earlier and her husband, a dental supply

salesman, used it in his work during the day, carrying literature

and samples. He told his wife there was very little gas in the

van and not to add any because he was taking it to the dealer the

next morning to replace the tank due to a leak.2/ (RT 2079,

2077, 2099-2101, 2151.)

Mrs. Buchanan had given birth three weeks earlier and

was nursing her baby. She cut chunks of diaper, put them over

her nipples to keep milk from leaking on her clothes and left for

school at 6:30 p.m. She was wearing tan Levi's, a striped beige

1. "CT" refers to the clerk’s transcript and "RT" refers

to the reporter’s transcript of the trial.

2. All locks and windows worked and nothing was broken on

the van when Buchanan turned it over to his wife. When respon-

dent was arrested in it on June 8th, the arm rest of the driver’s

chair, the metal rod on the ceiling that holds the curtain

suspended behind the driver and the wind wi on the passenger's

side were all broken. (RT 2086, 2106-2107, 2573, 2577.)

and brown T-shirt, white knee socks, bra, panties and a simulated

leather purse. (RT 2079, 2077, 2099-2101, 2151.)

Buchanan habitually locked the van, which had valuables

in it including dental equipment from her husband's work. (RT

2146, 2150-2151, 2156, 2106, 2083.)

On May 30, 1979, she left her math class early after

obtaining xeroxed class notes from fellow students because an

optional quiz was offered and she had been absent for the birth

of her three-week-old son. Students saw her walking towards the

parking lot about 9:30 p.m. (RT 2160, 2162, 2171-2173,

2181-2183.)

At about 1:52 a.m. on May 31, 1979, petitioner called

Donna Hatch in Terrell, Texas to say he had gotten a van and was

leaving for Texas when he could get gas. (RT 2363-2364,

2444-2445.)

There was a gasoline shortage during this time and fuel

was sold for limited hours. Between 4:30 a.m. and 10:15 a.m. on

May 31, 1979, petitioner purchased gas for the Buchanans’ van on

their Visa card at Roy’s Service Station off Highway 8 in El

Cajon, California. He signed the invoice, “Terry Buchanan”. (RT

2206-2207, 2210-2211.)

About noon on the same day, Eleanor Buchanan’s

headless, handless body was found in the grass near a cul-de-sac

off Pine Valley Road near San Diego. The cul-de-sac was 200

yards off Interstate 8. The body was in full rigor mortis with

the elbow in an upright position, completely off the ground, when

a deputy sheriff arrived at the scene between 1:30 and 2:00 p.m.

Two strings of twine were attached around Buchanan’s ankles and

there were dark blue pieces of lint sticking to her blood. The

body was clothed in a bra, underpants and socks. The head and

hands were never found. (RT 2278-2279, 2289-2290.)

During the autopsy, it was determined that a horizontal

stab wound in the abdomen was inflicted before death. Three

superficial wounds measuring up to five inches on the abdomen

were inflicted after death. The pathologist could not determine

cause of death because of the absence of the head, but ruled out

natural causes. He could not say whether the hands were cut off

while Eleanor Buchanan was alive, but suspected she was dead

because there was not much hemorrhaging. He could not say

whether she was alive when the head was cut and sawed off. (RT

2337, 2333.) Judging from the rigor mortis, death occurred about

16 hours before the autopsy, about midnight on May 30, 1979. (RT

2340-2341.)

Meanwhile, petitioner continued to drive down

Interstate 8 from San Diego to Texas. (RT 2216, 2223, 2258-2259,

2264-2265.) He arrived at Donna Hatch’s home in Terrell, Texas,

on the evening of June 1, 1979. He was alone. The van was

dirty, had a broken arm on the driver’s chair, a broken mirror

and a broken wind wing. (RT 2364-2368.)

Petitioner was on bail pending trial on a robbery

charge. (See RT 3563.) He took Donna with him to get addresses

for his defense in that case. She saw the Buchanans’ credit

cards in the van and petitioner used them for food and gas. (RT

2369-2373, 2376.)

On June 3, 1979, Donna was in the van with petitioner

and her daughter and saw a highway patrolman. When Donna sud-

denly turned, while talking to her little girl, petitioner told

her not to make sudden moves because they could get shot. She

asked why, but he gave no direct answer. Petitioner stopped at a

pay phone to call his brother and his friend, Clifton. (RT

2376-2379.) Donna heard petitioner tell his brother he had flown

to Texas. (RT 2380.)

Cliff Harris and petitioner knew each other all their

lives and were good friends. (RT 2489.) Petitioner told Harris

he drove to Texas in a blue El Dorado. Harris was watching TV 41s

they spoke and saw a report that the headless body had been

found. He told petitioner. (RT 2490-2492; 3594, 3596.)

Petitioner had changed when he returned to the van

after talking to Clifton Harris. (RT 2380.) Donna asked what

was wrong. Petitioner said he thought he killed a man. When

they returned to her home, petitioner said he would let the van

sit a while to see if anyone paid attention to it and that he

needed Texas license plates. He asked her to go to a car lot

with him to get the plates, but she refused. (RT 2380-2381.)

The next day, Donna broke up with petitioner.

Petitioner said if she had changed her mind because he had lied

about his wife being dead, he would kill the ex-wife. (RT 2382.)

Petitioner called Donna on Wednesday, June 6, 1979, to

discuss bringing her back to California to testify in his robbery

case. (RT 2470-2471.) At one point, a friend of Donna’s also

got on the phone. Petitioner said, “I’m going to kill you and

your friend, too. And you won’t know when I’1ll be around because

I don’t have to be driving this van, I can be in another

vehicle.” (RT 2474.) Donna never saw petitioner after that phone

call. (RT 2471-2472, 2382-2384, 2475.)

Petitioner continued to use the Buchanans’ credit card.

It was stipulated he charged a saw, screwdriver and set of

wrenches at Babcock Auto Supply in Terrell, Texas, on June 6,

1979, (2518-2519), and a butcher knife and two hanks of twine at

Moses five and ten cent store on June 7, 1979. (RT 2519-2520.)

At about 6:30 a.m. on June 8, 1979, petitioner entered

Stuckey’s restaurant in Marietta, Oklahoma. He charged food on

Buchanans’ Visa, picked up part of his food order and ran out as

the manager was calling for authorization on the purchase. The

manager called law enforcement authorities and described

petitioner and the van. (RT 2746-2747, 2755-2757.)

That afternoon, petitioner was stopped by Oklahoma

officers and they ran a VIN number check. They learned the van

belonged to a homicide victim. The officers arrested petitioner

on the local charges. (RT 2598-2599.)

On the way to jail, petitioner passed a poster offering

a $500.00 reward for David L. Wall, alias “Spider”. (RT 2578,

2581.)

On June 9, 1979, San Diego police officers questioned

petitioner in Oklahoma after reading him his Miranda rights.

petitioner said he got the van from Fran, a white woman who had

left her husband for “Spider*, and that he knew “Spider” for six

years.2/ Fran and Spider were in Shreveport. They gave him the

van and her charge cards to use for food and gasoline. (CT

2846-2848, 2854, 2862.)

Petitioner said he saw no blood in the van and the

blood on his shoe was his own. (RT 2945-2946, 2904.) A crimi-

nalist testified at trial that the blood on petitioner’s shoe

was type 0, like Eleanor Buchanan’s. (RT 2127.) Petitioner was

type A. (RT 3112, 3110, 3114.) The criminalist further

testified the blood could not have come from the van’s carpeting,

but went on wet. It had no blue fibers in it. (RT 2127,

4017-4018.)

The police showed petitioner a photograph of Eleanor

Buchanan during questioning and asked if that were Fran. He said

it looked like her but Fran was 4 little skinnier. Asked what

Fran was wearing when she and Spider picked him up to leave San

Diego, petitioner said the only time he saw her, she wore light

jeans and a beige non-leather purse. (RT 2873-2875.)

En route to San Diego petitioner was disturbed about

the arrest for murder and kept saying it was not going to stick

because all the police had was a body they could not identify and

@ run-away wife. (RT 2950.)

Shortly after petitioner’s return to San Diego, Terry

Buchanan received a letter with petitioner’s return address in

county jail. It said, “You are probably full of grief when you

should be highly piseed-off .. .* because Fran was not dead but

had left with Spider and was smoking Sherman sticks. Buchanan

turned the letter over to the District Attorney’s Office. (RT

2140-2145. }

3. Neither pepeteenenns parents (RT 2048, 2078), nor

friends (RT 2489-2734) ever heard of “Spider”. “Fran” was

Eleanor Buchanan’s nickname. It was written on the school papers

she was carrying on the night she di and also in an

unmailed birth announcement she had in purse. (RT

2116-2117.)

Petitioner hinted to a local girlfriend in letters and

during a jail visit that she should call Terry Buchanan and the

press, posing as Eleanor Buchanan, and tell them she was alive.

(RT 3618-3621.)

On January 24, 1980, petitioner was talking about his

case to another prisoner. The prisoner said, “Who are you trying

to convince, Hamilton, me or yourself?" Hamilton replied, “Well,

I did it, but they'll never prove it." (RT 3023, 3030.) The

prisoner reported the conversation to a guard. (RT 3032.)

While transporting petitioner between the jail and

courtroom for trial, a deputy sheriff was tightening petitioner's

security chains. Petitioner said, “You go ahead and have your

fun, I’1ll have mine later." The guard responded, “I thought you

already had your fun?" Petitioner replied, "Yeah, and I'll kill

you and a lot more, too, and you may be first on my list." (RT

3327-3329.)

Defense

Petitioner testified that he saw the Buchanans’ van

parked on the street with Eleanor’s purse on the passenger seat

just after midnight on May 31, 1979, and took it. (RT 3608,

3439.) He never saw the victim dead or alive. (RT 3438. )4/

Petitioner believed she was killed by Harry Piper, who dumped the

body then pretended to find it. (RT 2428.)

Rebuttal

Harry Piper had two crushed vertebrae and could not

lift anything at the time he found the body. (RT 3981.)

Purthermore, his car was parked over the drag mark, so the body

was there when he drove up. (Trial Exh. T and RT 3718, 3879.)

Penalty Phase

Petitioner had five prior felony convictions for

forgery, burglary, and auto theft. (RT 4478-4479.)

On November 7, 1976, he robbed and beat Ruth Story, an

elderly woman who was walking down a Linda Vista Street with a

cane. (RT 4448-4452, 4552.) She was hospitalized and had

reconstructive plestic surgery on her face. Five years later,

she was still in pain and unable to chew even hamburger. (RT

4455, 4471-4472.) In a letter to the victim dated November 17,

1978, petitioner stated he did not know her personally. (RT

4527-4528, 4530.) Eleven days later, the district attorney

received a letter from petitioner claiming the victim used to pay

him for sexual services from 1967-1969, when he was a minor. (RT

4541.)

In February, 1979, after spending the night in a motel

with Rosie Blackman, whom petitioner had seen frequently for

three months, he punched and kicked her all over her body. She

made no attempt to strike back. (RT 4429, 4434-4437.) A few

weeks later, he came up to her at work as she was cleaning her

taxi cab and repeatedly kicked her head and body. Her supervisor

called the police. (RT 4435-4436.)

While in custody on October 8, 1980, petitioner refused

to go to court and assumed a fighting stance when deputies

entered his cell. He had to be physically carried down the

corridor. He yelled obscenities, threatened to fight the

deputies and spit in the face of one of the officers. (RT

4400-4422.)

Penalty Defense

Petitioner is 29 years old and essentially had a good

home life as the sixth of eight children. His father is a

Baptist minister. (RT 4587.) He has eight and nine year old

sons who live in Los Angeles with his ex-wife. (RT 4606-4608.)

Relatives and family friends asked the jury to spare his life.

(See also, People v. Hamilton, supra, 45 Cal.3d at 357-362, guilt

phase facts; 364-366, penalty phese facts.)

SUMMARY OF RESPONDENT'S ARGUMENT

Any error in reconsidering petitioner's affirmed guilt

phase after the judgment was vacated by this Court could only

have benefited him. This would be the wrong case to further

define state courts’ ability to reconsider issues on remand,

because the reconsideration resulted in no change.

The death penalty is defined in California in a two-

phase unitary trial. Thus, petitioner’s motion for self-

representation made five days before starting the penalty phase

was in essence a request to change attorneys mid-trial and was

addressed to the discretion of the trial court. Denial of the

motion was not error, in view of the outstanding performance of

attorneys representing petitioner, the fact his complaints about

them were without merit and there was fear of obstructionist and

disruptive conduct due to petitioner's violent confrontations

with covrt personnel in the jail.

Instructing the jury it “shall” impose the death

penalty if aggravating circumstances outweighed mitigating

circumstances and “shall” impose life without possibility of

parole if mitigating circumstances outweighed aggravating

circumstances, did not prevent the jury from considering any

relevant mitigation.

For those reasons, the petition should be denied.

Petitioner contends this Court “should not permit a

state court to re-open issues otherwise foreclosed to it in

violation of this Court’s remand order." (Pet., p. 9.) The

California Supreme Court felt free to reconsider the guilt phase

issues because this Court’s order “vacated” the judgment. In

view of the fact that all guilt phase issues had been affirmed as

to petitioner, reconsideration could not have enhanced the

state’s position. Thus, petitioner got another bite at the

apple and should not be heard further.

The California Supreme Court initially affirmed

petitioner’s convictions, but reversed the jury’s special

circumstance findings, which had rendered him death eligible,

because the jury had not been instructed to find petitioner

intended to kill. (People v. Hamilton (1985) 41 Cal.3d 408,

citing Carlos v. Superior Court (1983) 35 Cal.3d 131.) On July

7, 1986, this Court ordered “the judgment is vacated and the case

is remanded to the Supreme Court of California for further

conbideration in light of Rose v. Clark, 478 U.S. ss (1986)."

(California v. Hamilton (1986) 478 U.S. 1017.)

On May 19, 1988, the California Supreme Court issued

the instant opinion. (People v. Hamilton (1988) 45 Cal.3d 351

(Hamilton I1).) Contrary to the assumption of the parties’, the

California Supreme Court concluded “the cause in its entirety is

properly before us. This is so because the United States Supreme

Court vacated the judgment in Hamilton I and rendered the

decision a nullity." (id., at p. 363.)2/

5. To the extent petitioner complains * was

based upon a case decided that court after - ‘s remand

order” (Ptn., p. 4), the California Supreme Court approached the

harmless error issue remanded to it by deciding there was no

error. We see no error.

When it grants certiorari, vacates a judgment and

remands for further consideration, this Court does not make a4

final determination on the merits. (Henry v. City of Rockhill)

(1963) 376 U.S. 776, 777.) Such action means that thie Court is

"not certain that the case was free from all obstacles to

reversal on an intervening precedent .. .* (jdg., at p. 776.)8/

Should the court wish to give further definition to the term

“vacated” judgments, this would not be the proper case.

Here, as in Elfbrandt v. Russel) (1965) 384 U.S. 11,

12, the State Supreme Court on reconsideration reinstated the

original judgment. It had both the right and power to do that

under this Court’s order. Furthermore, in view of the fact that

the guilt phase had been completely affirmed by Hamilton J,

petitioner could suffer no prejudice by the reconsideration.

Should the court wish to give further definition to the effect of

“vacated” judgments, this would not be the proper case.

The reconsideration resulted in no change. Any error

in considering the guilt phase again was potentially beneficial

to petitioner. Consequently, no right of his was infringed in

that he got a free second review of his convictions.

IN A UNITARY TRIAL, PETITIONER'S CONDITIONAL

AS WAS HIS LATER UNEQUIVOCAL REQUEST

Petitioner contends he filed a motion to represent

himself in the penalty phase on the day the jury found him guilty

of first-degree murder and special circumstances. That being

the moment the need for penalty proceedings first becomes

apparent, he argues the motion was timely and should have been

granted as a matter of right. (Ptn., pp. 10-15.) Under state

lew, the death penalty trial is a unitary one with two phases, so

that @ motion at the close of the guilt phase is addressed to the

discretion of the trial court. Furthermore, petitioner’s request

was conditional. The unequivocal request for self-representation

on January 15, 1981, came after a history of equivocal,

conditional requests, obstreperous behavior and violent attacks

on people involved in the court process. Both requests were

denied without abuse of discretion.

Guilty verdicts were filed on January 6, 1981. (CT

1204-1210.) On the same day, petitioner moved the trial court to

relieve counsel or alternatively to allow him to represent

himself because counsel had refused to include in final argument

petitioner’s belief that the perpetrator of the crime planned it

and entered the vehicle with specific intent to kidnap or kill

the victim, had knowledge of her activities and a personal grudge

against her. The motion was summarily denied. (CT 1202-1203.)

On January 15, 1981, @ hearing was held on petitioner's

petition for writ of habeas corpus. Petitioner had subpoensed 12

people for the hearing but had used the case number of the

robbery case which was trailing the death penalty trial.

Consequently, when the witnesses contacted defense counsel, they

were told the robbery would not be heard that day. (66RT 4318,

4285-4286.) As it turned out, petitioner merely wanted to

interview these people to see if they had done certain things he

hed requested. Specifically, he had heard there was a confession

to the murder by « Mesa College student. (66RT 4291-4292.)

Counsel said the matter hed been investigated thoroughly. (66RT

4319-4320.) During these discussions, petitioner did say

uneguivocelly thet he did not want to be represented by counsel.

(66RT 4316.) This motion, five days before the penalty phase

opened, was denied. (Hamilton I]. supra, 45 Cal.3d at p. 367.)

Faretta v. California (1975) 422 U.S. 806, established

a defendant's Federal constitutional right to represent himself

without counsel upon voluntary and intelligent election. In

order to invoke the constitutionally mandated right of self-

representation, « defendant in « criminal trial should make an

uneguivocel assertion of that right within a reasonable time

before commencement of trial. (Beople v. Windham (1977) 19

Cal.3¢ 121, 128.) However, once « defendant has chosen to

proceed to trial represented by counsel, his demands to

discharge the attorney and proceed pro se are eddressed to the

sound discretion of the court. Among the factors a trial court

should consider when exercising that discretion are the quality

of counsel's representation of the defendant, defendant's prior

proclivity to substitute counsel, the reasons for the request,

the length and stage of the proceedings and the disruption or

delay which might reasonably be expected to flow from the

granting of such «a motion. (jg., at pp. 128-129.)

Here, petitioner’s January 15, 1981, request to

represent himself wes five days before the opening of the penalty

phese, the second stege of « unitary capital trial. Thus, the

motion was eddressed to the discretion of the trial court. (See,

People v. Hoore (Filed Mov. 3, 1988 in CR 23721) _—Cal.3@

upholding « finding of untimeliness regarding « motion made three

Gays before the penalty trial begen. (Slip. opn., pp. 14-20).)

The denial wes not an abuse of discretion. The trial

judge observed that the defense team had done an outstanding job

in representation of the defendant, petitioner's complaints were

“totally and completely without merit" (66RT 4320), and

petitioner had hed violent confrontations with deputies in the

jail as well as violent confrontations with other persons. (66RT

4320-4322; Hamilton II, supra, 45 Cal.3d at pp. 367-368.)

The trial court’s denial of the motion in question was

neither erroneous nor an abuse of discretion. The California

Supreme Court ruled the right of self-representation applies to

the guilt phase of death penalty cases. (People v. Terone (1979)

23 Cal.3d 103, 113.) However, petitioner failed to make a motion

to represent himself pre-trial. His motion came five days before

the second phase of a unitary trial was to begin. As such, the

right of self representation was no longer a matter of right, but

a matter of court discretion.

Petitioner argues the penalty phase is “itself a trial

on the issue of punishment... =," citing Bullington v.

Missouri (1981) 451 U.S. 430, 437, and a dissenting opinion

applying Bullington to the right of counsel and self-

representation, Petition, pages 12-13.

The timeliness of a motion for self-representation in

the penalty phase is properly left to state law. The California

Supreme Court recently refused to equate the separate phases of

trial to separate “proceedings,” so as to require a witness to

invoke the Fifth Amendment privilege at each. (People v. Malone

(filed Nov. 3, 1988 in CR 23115) _ Cal.3d __, slip opn., p.

45.)

Even if this Court wished to speak to the issue of a

unitary two phase capital trial, this is not the proper case in

view of the petitioner’s proclivity toward changing attorneys,

by his attempts to use motions for self-representation as

tactical maneuvers to get his way and his penchant for violence

outside the courtroom towards people involved in the court

process.

Due to incompatibility, Patrick O’Connor was relieved

as petitioner’s attorney on September 25, 1979, (CT 305-308),

Jerry Wallingford was relieved two months later (CT 369), and

five months after that petitioner moved to relieve Thomas Ryan

and Vivian Camberg, his third and fourth attorneys. (17RT 5.)

Upon denial of his motion, petitioner said, “I request to

represent myself then. I might as well." (17RT 30.) Petitioner

was told the matter was not before the court, but he could “make

that motion properly if he would desire to do so." (RT 30-31.)

(See Hamilton II, supra, 45 Cal.3d at p. 366.)

On May 1, 1980, petitioner filed a motion to relieve

counsel and represent himself. (CT 667.6, 70.) Apparently, he

withdrew that motion before the court had an opportunity to rule

on it when he was granted the status of co-counsel with the

understanding that Thomas Ryan would be the lead attorney and

decide tactics. (Representations of counsel at 19RT 28-29;

Hamilton Il, supra, 45 Cal.3d at p. 366.)

Petitioner had disagreements with counsel and often

requested their replacement. At times the requests were

conditional or were withdrawn without ruling. (See Hamilton I,

41 Cal.3d 408, 420-421.)

Furthermore, petitioner had a proclivity for long

narrative complaints about factual disputes that refuted his

version of the facts (see 72RT 58-63), and was willing to boldly

state his questions were not being answered when a three-person

defense team was in constant contact with him. (72RT 70-71; 19RT

446.) He had attacked people involved in the court process at

the jail and threatened to disrupt the court proceedings by

attacking his attorneys or even the judge. (72RT 32.)

The right of self-representation can be denied if the

there is reason to fear obstructionist or unruly conduct. (Davis

v. Morris (9th Cir. 1981) 657 F.2d 1104, 1106, citing other

authorities.) The Faretta decision states that serious and

disruptive conduct is ground for terminating self-

representation. (Faretta v. California, supra, 422 U.S. 806,

834.)

In these circumstances, the court did not abuse its

discretion by denying petitioner’s motion for self-representation

at the penalty phase. This was in essence a motion to change

attorneys because under California law capital cases consist of a

unitary trial. (See, People v. Hamilton IJ], supra, 45 Cal.3d at

Pp. 369; People v. Malone, supra, slip opn., at p. 45.)

Furthermore, petitioner had changed counsel twice and had made

requests for self-representation as a tactic to get other things

he wanted. He was also violent outside the courtroom and had

threatened to attack court personnel or the judge, which

presented a potential for disruptive conduct in court. In these

circumstances, the trial court properly denied the motion.

Furthermore, for the reasons stated, this would not be the proper

case for this Court to decide the timeliness of self-

representation requests in unitary trials.

Ill

THE INSTRUCTIONS GIVEN PROVIDED GUIDED

DISCRETION IN SETTING THE PENALTY WITHOUT

PREVENTING THE JURY FROM CONSIDERING ANY

MITIGATING EVIDENCE IN THE CASE

Petitioner objects to the language in CALJIC No. 8.84.2

stating the jury “shall” impose the death penalty if it finds the

aggravating factors outweigh the mitigating factors.

Petitioner’s jury was instructed not only that it could consider

the statutory factors in aggravation but that it could consider

anything in mitigation. Thus, it was not possible for the jury

to conclude the aggravating circumstances technically outweighed

the mitigating yet it must return «4 death verdict even if it

believed the lesser sentence was appropriate.

First, we observe the instruction told the jury to

weigh, not add, circumstances and to impose death “(i)jf you

conclude that the aggravating circumstances outweigh the

mitigating circumstances...” (RT 4669, emphasis added.) The

jury was left free to judge the quality of each factor and to

assign it whatever weight it felt appropriate. This Court has

held a death penalty based on affirmative answers to two

questions (deliberate acts and future dangerousness) by the jury

does not violate the Eighth Amendment, because it does not

prevent the jury from considering any relevant mitigating

evidence in the case in view of an instruction that the jury

arrive at its verdict based on all the evidence. (Franklin v.

Lynaugh (1988) 487 U.S. __, [101 L.Bd.2d 155, 159-160).)

Pursuant to California Penal Code section 190.3, petitioner's

jury was expressly invited to consider other extenuating

circumstances.

The Cal. ’‘ornia Supreme Court, after reviewing the

record of the penalt, phase in its entirety, concluded for three

reasons that the jurors were not misled by the language

challenged by petitioner. First, although the prosecutor

referred briefly to the instruction’s mandatory sentencing

language in closing argument, he clearly acknowledged the jurors

were to make the decision. Second, the prosecutor emphasized the

jurors alone were to determine whether the death penalty was

appropriate. Third, the court instructed the jurors pursuant to

Hamilton’s request that “in weighing the aggravating and

mitigating factors, you are not to merely count numbers on either

side. You are instructed rather to weigh and consider the

factors on each side as a whole;” and, “in order to impose a

death sentence, you must be convinced beyond a reasoneble doubt

that the totality of the aggravating circumstances outweigh(s)

the totality of the mitigating circumstances." (People v.

Hamilton, supra, 45 Cal.3d at p. 371.)

The California Supreme Court acknowledged the phrase

“shall impose a sentence of death” might “leave room for some

confusion as to the jury’s role,” but has rejected the claim that

the 1978 statute unconstitutionally authorized a mandatory death

penalty. (People v. Brown (1985) 40 Cal.3d 512, 545; reversed on

other grounds in California v. Brown (1987) 479 U.S. 538.) The

California Supreme Court has further held that a death judgment

is invalid under the Eighth Amendment if imposed by 4 sentencer

that believed it lacked ultimate moral responsibility to

determine what penalty is appropriate under all the

circumstances of the case. (People v. Melton (1988) 44 Cal.3<

713, 761.) At the same time, jurors are not to receive such

unbridled discretion that arbitrary decisions are likely.

(Furman v. Georgia (1972) 408 U.S. 238.)

Here, the jury was told pursuant to CALJIC No. 8.84.1

(penalty trial -- factors for consideration y2/ To consider any

7. CALJIC No. 8.84.1, as given in the instant case,

provided:

"In determining which penalty is to be imposed on

the 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 into account and

be guided by the following factors, if applicable:

"(a) The circumstances of the crime of which the

defendant was convicted in the present proceeding and

the existence of any special circumstances found to be

true.

"(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

circumstances which extenuated the gravity of the crime even

though it was not a legal excuse for the crime. (RT 4662-4664.)

Consideration of compassion as a mitigating factor was,

therefore, expressly allowed. A review of Lockett v. Ohio (1978)

438 U.S. 586, demonstrates why this instruction was

constitutionally appropriate.

Leckett v- Qhico, supra, in a plurality opinion held

that the Ohio death penalty statute was unconstitutional under

the Eighth and Fourteenth Amendments of the United States

Constitution because the statute required the death penalty where

one or more factors in aggravation were proven unless outweighed

by evidence in mitigation, which had to fit within one of three

threat to use force or violence.

“(c) The presence or absence of any prior 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 expectation for

his conduct.

mental disease or defect or the affects of

intoxication.

“(i) The age of the defendant at the time of the

crime.

“(3) Whether or not the defendant was an

accomplice to the offense and his participation in the

commission of the offense was relatively minor.

“(k) Any other circumstance which extenuates the

gravity of the crime even it is not a legal

excuse for the crime.” (See, l. Pen. Code, § 190.3.)

Pursuant to CALJIC No. 8.84.2, the jury was also told

it “shall* impose death if aggrave circumstances outweighed

mitigating circumstances and ‘shall’ life without

possibility of parole if = + circumstances outwei

aggravating circumstances. ( , Cal. Pen. Code, § 190.3.)

specific categories. Lockett compared the Ohio statute with

those upheld in Gregg v. Georgia (1976) 428 U.S. 153, and

Proffitt v. Florida (1976) 428 U.S. 242, and found that the Ohio

Statute, in contrast to those in Gregg and Proffitt, violated the

Eighth and Fourteenth Amendments since it precluded the

consideration as a mitigating factor of any relevant aspect of

the defendant’s character or record or any of the circumstances

of the offense. (Lockett v. Qhic. supra, at pp. 604-607.)

In contrast to the instruction in Lockett v. Qhio.

Supra, the jury instruction in the instant case, CALJIC No.

8.84.1, meets the constitutional standards set forth in Lockett.

Supra. The Ohio statute in Lockett contained eight fewer

categories and completely lacked the kind of catchall category

contained in section (k). Im its first sentence, CALJIC No.

8.84.1 instructs the jury that the mitigating factors are

essentially unlimited since they can be derived from “al]) of the

evidence which has been received during any part of the trial of

this case. ...”* (Emphasis added.) In addition, the eleventh

of the special categories given to the jury (section (k)) is «4

broad catchall category providing that the jury can consider “any

other circumstance which extenuates the gravity of the crime even

though it is not a legal excuse for the crime.“ (Smphasis

added.) These factors necessarily include the offender and

compassion.

Purthermore, Californias v. Ramos (1983) 463 U.S. 992,

found no constitutional infirmity in California Penal Code

section 190.3. Since the wording of that code section is

identical to the wording of CALJIC No. 8.84.1(k), the instructior

does not violate Lockett. The language of the instruction

necessarily allows the jury to consider the offeader and

compassion since the jury sets the penalty after considering

mitigating factors drawn from all evidence and “any other

circumstance” extenuating the gravity of the crime.

Thus, unlike the situation in Lockett, in California

the jury can consider any of the evidence presented at eny phase

of the trial and any extenuating circumstance as factors in

mitigation. Certainly, compassion and the individual worth of

the defendant fall within this catchall category of section (k).

The instruction allowed the jury to treat petitioner a6 an

individual. (See, Lectett v. Qhio, supra, 438 U.S. at p. 605.)

It did not prevent the jury from considering any relevant,

mitigating evidence in che case. (See, Franklin v- Lynaugh,

gupre, 101 L.8d.2d at p. 160.) Thus, there was no risk the death

penalty would be imposed in spite of the hypothetical existence

of factors allegedly calling for « less severe penalty.

Petitioner objects to use of the word “shall” in CALJIC

No. 8.84.2, claiming that word somehow creates a duty to return «4

verdict of death. However, “shall* is also used in the portion

of the instruction dealing with life confinement. (RT 4703.)

Use of “shall* equally to describe both options could not

possibly be misconstrued by 4 reasonable juror to mean one option

should be chosen over the other. Moreover, use of “shall” merely

mirrors the language of Penal Code section 190.3, which states

the trier of fact shal) take into account various releva:.t

factors. Petitioner’s contention such language may create «4

situation where the jury is obligated to impose the death penalty

when it finds the aggrevating circumstances outweigh the

mitigating circumstances, even though it does not believe the

aggravation is sufficient to justify death, makes no sense.

Initially, it wowld be factually impossible for a jury to

conclude the aggravating circumstances outweighed the mitigating

circumstances and yet subjectively feel the death penalty was not

werrented. Under CALJIC No. 8.64.1(k) the jury could consider

any fact it wished to mitigate the crime and not impose the

judgment of death. Given this fact, it is absurd to suggest that

in spite of subsection (k), the jury would find the aggravating

circumstances outweighed the mitigating circumstances and then

still decide the death penalty was inappropriate.

Moreover, any modification to the instruction here

would probably violate the federal constitution. The whole point

of this Court’s decisions in Gregg, Proffitt, and Jurek (Gregg v.

Georgie, supra, 428 U.S. 153; Proffitt v. Elozida, supra, 428

U.S. 242; Jurek v. Texas (1976) 428 U.S. 262), is that the

decision to impose death must be guided in a specific way and

cannot be arbitrary and capricious. (See, Barclay v. Florida

(1983) 463 U.S. 939.) However, petitioner’s suggestion that the

jury be allowed free reign to decide what penalty is appropriate

after it finds the aggravating circumstances outweigh the

mitigating circumstances would result in arbitrary and capricious

decision making. This is improper.

Consequently, it is perfectly proper to give the jury

consideration of a broad scope of evidence, give it various

categories of aggravating and mitigating circumstances, and then

advise it that if it finds the aggravating circumstances outweigh

the mitigating circumstances it shall impose the death penalty.

(ig-)

“*. . . [D)iseretion must be suitably directed and

limited so as to minimize the risk of wholly arbitrary

and capricious ction.’ Gregg v. Georgia, 428 U.S.

153, 189 (1976) ... ." (emt v. Stephens (1983) 462

U.S. 862, 874.)

The lenguage in CALJIC No. 8.84.2,

". « »« wes directly taken from the 1978 death

“ penalty lew and accurately describes the jury's

function under that law: to weigh the applicable

eggrevating and mitigating factors and, o that besis.

and that basis alene, to determine whether death is an

appropriate remedy." (People v. Hendricks (1986) 44

Cal.3d 635, 654, emphasis in original.)

Thus, the court conceded that in People v. Myers (1987) 43 Cal.3¢

250, it was perhaps unduly critical of the prosecutor's reliance

upon the mandatory language of these standard instructions.

(People v. Hendricks, supra.) Where the record demonstrates thet

the jury fully understood that it could assign whatever weight it

thought appropriate to the factors in aggravation and mitigation

and that it should base its penalty determination on all of the

evidence in the case, use of the word “shall” in the instructions

and argument does not compel a finding that the jury was misled

“from an otherwise assumed proper understanding of its duty to

determine appropriateness of death through the weighing process.*

(id., at p. 655.)

Thus, petitioner’s contention in this regard is

meritless. (See, People v. Harris (1981) 28 Cal.3d 935, 963-

964.)

In sum, the penalty phase instructions invite

consideration of compassion, are equally weighted in sentencing

alternatives, adequately define terms, and provide guidelines

which promote sentencing reliability.

PZ:ab

11/3/88

SD8BxU0004

CONCLUSION

Respondent respectfully requests that the Petition for

Writ of Certiorari be denied.

Respectfully submitted,

JOHN K. VAN DE KAMP, Attorney Genere!

of the State of California

AFFIDAVIT OF SERVICE BY MAIL

Attorney: No: 88-5746

October Term, 1988

JOHN K. VAN DE KAMP BERNARD LEE HAMILTON

Attorney General of

the State of California Petitioner,

PAT ZAHAROPOULOS

Supervising Deputy v

110 Weet A Street, Suite 700

San Diego, California 92101 THE STATE OF CALIFORNIA

Respondent .

I, THE UNDERSIGNED, say: I am 4 citizen of the United tes,

18 years of age or over, employed in the County of San Diego i

pay y ~ Ad A, tb

to the sub cause, business —— ©

as follows: To Joseph F. 1, Clerk, Court of the

United States, Washington, D.C. 20543, an or l and nine (9)

copies, of which a true and correct copy of document filed

in this cause is hereunto affixed; AND, by p) cing one copy in «

2a a oe on ee a =

ollows:

580 Grand Ave.

Oakland, CA 94610

Each envelope was then sealed and with the postage prepaid

= = So States mail by me at San Diego,

Calif » On the day of November, 1988.

There is a delivery service by United States Mail S ae gate

so addressed or regular communication United States Mai

between the plece of mailing and each eo addressed.

I declare under penalty of perjury that the foregoing is true and

correct.

Dated at San Diego, California, November, SP i9ee.

APPENDIX i-a

- we co

ee ee ee

Peor.s « Mase Tor b 3

“clu we —~ Cole ~ rh — ee 8

-. =. |... & -£.. |

THE PEOPLE. Pies and Respoedent +

BERNARD LEE HAMILTON Defendant and Appeilan:

- eS Le

ln re BERNARD LEE HAMILTON op Mabess Corpes

Defendant was commcted of rw Gegree merge: (Pen Cade § 187) kc

aapping (Pen Cade § 207) robmery (Pen Code § 2! !) and Durgiary (Peo

Cade §4°° He was found to beve commuted the murée @ Ue coure

robbery (Pen Code § 190.2 cubed (oh!) 7¥ wdnaperng § Hl swt

(aX! Mu). and burglary (§ 192. subd (eh! 7 wu)) Me was sentenced

@eath (Superer Cour of San Deego County No 4728) Frankae B

Orbeic judge

Ow remand for Ube _ amet Suess Sepreme Coun follce wg GS vrecein

of Lbe previous wcigmen ety > hed revervad ibe Genct pama™) (or fadurr ©

Ube Ne coer oe mst the tem we LL es or ame oa oe fem

@Wurde wee arcumsiances Ue Supreme Coun afi met be wageer

/@ @Pore) and Gemed "ec peuboms for hetems corpus The coun Bex

aux © © @ore) ww prope’) before « and stops & per Gee

ernnng TU pe ee & © ae © Ge proemag 6 ET ee

oe cour Ot not em & fading © mete Ge wry the wee we ow

e@emer of Ue for, @Muarde spena orcumsiasce a Dawe So Oo

be ace he suteer of Ue Lamed Scaces Supreme Cour) “amacd aoe

whee + were © me oe meen wes sete © here eTo ane

we The coer beet he Ge we coer Go ot steer & Gecremoe & Geer,

totem tar | Ome Co epremer fumec! etx? ee mad & Ge ate

me pe pase Geotersccams | am bec ke ance Ge Grcummtances

ee case amc @ oe of Ue oe cord Gefemdas ee a preedae

oe) Maending MsI“ErDoRs pe ming & Ue er) eepemang

sponse) anc G@arence The coer bet the although De Te a

ow © prim + mca Bogp estcecuce mong © Oe ee

OOF Sle Dor and parGoe Powe We ero wes oo prepece © re be

352 Peorte « HamiTow

45 Cal 3d 351; — Cal Roe. —, — F.2d — Pay 1988)

trial court's subsequent imstructons and admonitions not to make any use

of the instruchon wm determuming the penalty to be umposed on defendan'

On the habeas corpus petrpons, the court heid defendan! failed to show he

was demed effective representanon of counsel, and also rejected hus claim

the prosecuton mterfered with his attemp! to obtain evidence (Opumion by

Mosk, J., with Lucas, C. J. Panelli, Arguelies, Eagleson, and Kaufman. J)

concurnng Separate concurnng and dissenting opumon by Broussard | )

HEADNOTES

Classified to California Digest of Oficial Reports, 3d Series

()) Coarts § 33—Decisions and Orders—Law of the Case—Supreme

Court Vacation of Judgment Remand — Where m # death pena'y

case, the United States Supreme Court granted the Califorma Artor-

ney General's petition for ceruoran on s parncular msuc, vacated (be

judgment, and remanded to the Californus Supreme Cour for further

proceedings. the decamon was rendered « nullity and as such hac no

banding force The cause m its entirety was then before the California

Supreme Court. Accordingly, the doctrine of law of the case did not

tar reconsideration of any point decided wm the first case The doctrine

Peor.te » HAMILTON

—, — Pld — [May 1988)

jons not to make any use

x umposed on defendant

fendant failed to show he

od also rejected hus claim

ain evidence. (Opinion by

gieson, and Kaufman. JJ

ypumon by Broussard, J.)

é Sena

of the Case—Supreme

bere, in a death penalty

ted the Califorma Atftor-

rucular msuc, vacated the

upreme Court for further

ity and as such had no

ben before the Calforna

i law of the case did not

be Girst case. The doctrine

at the prior decision had

Dements of Offense—lin-

ty Murder —lIn a capital

‘T m faaling to imstruct the

be feiony-murder speaa!

wd that defendant eather

< wm the crime at all, and

ad abetter Ap imstrucuion

8 evidence from which the

er and abetter rather than

o— Aad of Counse}—Sei!

witel Case —In 0 death

nt bimeelf, fled in the

, Was not timely for pur-

presentation. The penalty

tria! for purposes of the

¢ formal existence but is

Peorte « Hasmi.Tow 353

45 Cal 34 351; — CalRgo. — — P26 — [May 1988)

qearely © singe in © unitary capital trial. Moreover, the connection

between the phases of s capital trial is substantial and not merely

petal case did not abuse its discreton in denying defendant's untimely

monon to represent himself, where, although the court considered

;

| i

iti

Paorte « Hamm Ton

45 Call 351; — Calpe. — — F.2d — [May 1988)

°)

(10)

sbould sot mut the conmderatvion of mihgating carcumstances to the

@pecific statutory factors, but should commder any other carcumstances

Presented as reasons for not imposing the death sentence

evidence in aggrevation m a capital case, no reversible error occurred.

mm view of the overwhelming evidence in aggrevabon and the minima!

§ 1385, authorizes the tial court to dismuss “in furtherance of justice”

im any Giroumstance im which the body has not clearly

manifested « contrary intent. Thus, under the 1978 death penalty lew.

the trial court im « capital case had the authority to strike the special -

a ee ee oe rept. he

Peorte » HamiLTON 355

45 Cal 34 351; — CalRpe. —, — F.2d — Daay 1988)

a3) Criminal Law § 104—Rights of Accused—Competence of

Hill

;

(4) Criminal Law § 233—Trial—Power and Conduct of Judge—Bias.—

a5) Criminal Law § 48—Rights of Accused—Fair Triab—Presence #'

ad Criminal Law § 45—Rights of Accused—Fair Triah—Distortios or

Peor.e » HamiLTON

45 Cal3é 351; — Cal Rg. — — P26 — [May 1988)

Hamilwon | we sow conchude tha! the special circumstance findings mus'

be upheld: under People v. Anderson (1987) 43 Cal. 3d 1104, 1147 [240

Peorite « Has Tow

Ror — — Pd — Day 1988)

Steve White, Chief Assistant

fore us op remand from the

> on sutomatc appeal from a

subd (aX! 7i)), Eadnapping

& (aX17vil)). He admitted

¢ forgery (., § 470) and for

. sentenced to death

: beid there was no reversible

t under the general rule of

36 Cal.3¢ 539 [205 Cal Roper

act ww accordance with Carios

Cal Rpt. 79, 672 P24 862),

lony-murde special corcum-

& arcumstance findings and

People v. Hamilton (1985) 41

81) (Hemilton 7).)

m success. the Attorney Gen-

rt for a writ of certiorari. The

Den! vacated and remanded

amon im Rose v. Clark (1986)

101)

filed two pennons for wrn of

We comsobdate the cause m

103 and S001 870 for purposes

wactuded wm Hamilton | that

rary to ow determunafhon m

/ arcumstance findings mus!

4) Called 1104, 1147 DO

voter adh a

Peoris « Has Tow 3s-

45 Cade 351, — Cal Rp — — Pc — [eiey 1988)

Cal Rptr. $85, 742 P.2d 1306), the court was not obligated to instruct on

mtent to kal) with regard to the specs’ carcumstances bere and defendan:

L Dmecr Arreat (Cams 21958)

A The Fon

The facts of this case. which appear in Hamilton / at pages 413 two 419 of

4) Cal 34 are relevant to our Gecamon and are scoording)y quoted wm exten

80 below

The evidence presented m the prosecunon's case-m-<chue! tells the folios

arrived at the scene between 1:30 and 2 p.m. Two strings of white cord were

;

rt.

‘te

Peorte « Hass Tox

surmng tum on May 30. 1979 That dey Mr Buchanan lef the house abou:

6:30 p.m. t go to « math class at Mesa College from 7 tw 10 p.m She was

weartng tan lewis, « beage and brown T-chert, and was carrying « brown

“Mri Buchanan was last seen alve walking toward the parking bot from

ber math class about § 3) pm Fellow studensu hac pven ber copess of class

motes for Ube classes abe hac mused because of the berth of ber baby Mo

Buchanan had lef class a brtle carty because ap Opmonal quiz was given a!

9.30 pm

“At 1:52 am. (Californie time) co May 31, 1979, defendant called bic

g@rifmend. Domes Match w Terrell Teas from bs pares: bome @ San

Drego He wid Donna that be bad « van and wes planning tw leave for

Teaas as sooe as the gas saboms opened » Ube mornmg

“There was « gusoline shortage at the Gime. and ges stations were only

open for limited hours. Berween 445 a.m and 10:15am op May 3), 1979

defendant used Terry and Ejeanore Buchanan's VY a8 card w buy gas wm E.

Cajon. Califorma The card was sed two more ames that Gay t buy ges

for the @ B Cesero, Califorum of « gabon that was open

berween 6 am end 10 am. and ooce & Teceon, Arizome

at Donne Match’s bome @ Terrell. Texas on

. the wan was Girty, bed « Grokes arm om the

and s broken wing wundoe om ihe passenger”

wb bum on errands m tk van op June t

“Oe Jume 3} whike Domne was @ the van with defendant! and be Gaugh

. « ughwey pecrotman When Domne ture! beck w milk w be”

Gauge éefendan' wit be aot w make any Wetter Mowss Deceuse LD)

could gp shot Later defendant mopped ss pay phone w call bs browbe:

aed ws freed Chford Domns beard defendant wil bus broube be had Boe

w Texas Cifcrd cestibed that when defendant! called bum be was watching

® report on TY thar the body of « white woman with ber bead and bands

Peor.e + Hamil Tor

io — — Pld — Dey 1988)

Buchanan ief! the house abou!

gt from 7 tw 10 p.m. She was

. and was carrying # brown

¢ Ube family + only velucie—e

ue tank because Buchanan

ay Sance Buchanan used the

des work. (he van contemed

od tus wile was very security

¢ also sascd thal everythung wo

{ wward the parting lot from

s had pver ber copes of class

of ube berth of ber baby Mrs

af ophoma quiz was gen e

1979. defendant called his

om bus parents’ bome im San

¢ was planning to leave for

o Ube morning

* and gas @avons were only

10 15am om May 31, 1979

s Vee card to buy gus i EB)

we Umpes Une! Gay to buy gas

| © Seen hel wes open

Tucson Anzona

+ home & Terrell, Teco co

ty. bad « broken arm om the

ming Sindo® on Lhe passenger’

ands @ the wan cw June |, 2

= Ge came o@ Terry and

or Une wees Defendan usec

Deane wes oth bin

"Ub Gefendan' amd ber daug>

uma turned back to talk Wo her

' SudGer Mowe: Decause ibe,

pay phone wo cal) hus brotbe:

‘el tus brother be had Bown

cavec tum be was weiching

ar eh bey bend and hands

Peorme « Hamm Tor

6 Coils 1). ~ Co Roe — — P2e — Dey 108

cut of had beer found be told Gefendan' show n Defendan' seemed

nervous when be returned from talking to Cuord He wid Domne tha: be

thought be had killed « man bul be dod sot want wo tell ber any dria’

because she migh! no! wan! to heve apythang wo do wrth hum of he Wid be”

Defendant easd be would jet the van ot 6 while wo oe &f amybod) pad

stiennorn to n Me eiso sas be sended some Texas boense plates He ashe’

Doane © go with bie to o cor bot, bet che refered

“Donna broke up with Gefemdan' Ube ex! Gay Defendant smd tha

Donna were epee shou! the fect that be bad bed

dead. be would bill bis ex-wife On June 6 Gefendent called Donne

Qrecuss bringng be beck u Canforms & wasnfy for Rum m@ 6 pemdang con

A one poan & frend of Donnas 5 got on the phame Defendan' wid Donne

"1 m goang to bull you and your frend wo Aad you won| know wher | |

be around because | Gon’! heve to be Griving this wan, | can be & another

vetecie’ Donna never sew or talked wo éefendant after that phone ca!)

“Defendan! comunued using the Buchanans cred! cards to buy gas food

and other nems |! was stypuisted the! on June © defendan' charged s s+

screwdanver and set of wrenches at 0 local more, and on June 7, be bough +

buscher knife and two shanks of twine @f 6 verety More

“While Griving the van @ Obishome on June § 1979. defendant wes

slopped by « depuly shenf The Gepety ran « check of Ge van's VIN

pumber and learned thai belonged w the bomucsde cum Defendan' +a:

arrested and taken to jasl On the way wo the pul be passed s poster Bering

« reward for Dewid L. Wall, ales “Speer

to stay » Lowmans Defendan:

wh ber baby Me amd 0 inoked Bhs Fran bur Free wes 6 briie shanror’

A ee pee ee emeee none “Pree war Ehemmere Became) aickenme ff wae or

chew pager: the hed Meer cerryng and oe oe eumeniet Er eomcememmer ee Bee me

= be pore * !) Col Mee p 06 & 2)

Paoris « Ham Tow

“Cais ~~ Gite — — Fe — Dey O98

Detemdami wx Une only ame | eeen ber Fran wes wearing hgh! cotored

reture eddress |: seed “Yow are probe

bayghly pameed of * beceeee Fran was

bly full of grief ™

mo dead bul had if wb oad wes emoting Sherman Soxcas BL

Chanan tareed Ube etter ove: @ the Gestrc’ efiorecy: affice

“Seewen Thomas of mmate of the Sen Deeg: (curry mil emmbed Une or

January 24 |980 be bed « copversenon wrth éefendan! show hus case H+

asked defendan' “Who art you wymg © cop~nce Hamilion me oF you

eclf” Defendant replied. “Well, | Gd @ but they'll sewer prowe & |) Thomas

reported the comversenon to the guard Thomas had been comvicted of

@urder robeery forgery burglary and ecape |bomaes eerie be wes ©

Ube federa) witness protechon program against organized crime bw! had 5”

receved any money from the Unned States @rlh respect w the! progra>

“While wransporung éefendan'! berween Ube a. and courtroom of Aug.

verwoces of the eectmm Sewers: Beer) found @ Ube carpe mau coma be ~~

been ber Armstrong elec caemuned thor’ found of Gefendan’ ) sh anc

conchuded Une "| bad been smeared on when oer The dbiocd’ of defendar 5

shoe wes type O-—the viet’) Cppe” Defendants type was A

- Qumenoon! Gocuments eiper werihex! (he Gefemdan| wer De pee

who hed agned Terry Buchanan’) seme w the cred! card weve (4)

Cal é at pp 413-417)

ee Eee “Tes wad) om © Ge Guy Gemahes & s camer of

—_ ee ef omg eee ee ee ee ter

—— et ee ee ee een eee ee

Peorist « Ham Tor

~- Pid — Oley 1908

wes wearing gh! colored

reed about bee arrest for

because al Ube poboe had

“wey oe”?

Terry Buchanan rece ved

» bt eid, “You are probe

od because Fran was

ung Sherman Sucks Bu

torecy + ofiie

manly a tested tha! or

dan! ebou!t bu case He

¢, Hamilton, @e or your

never prove i.’ Thomas

+ hed been comvieted of

bomaes testified be was uv

emuzed crume bul had ac

respect to the! program

nd courtroom of Augus

mg Gefendan' s+ security

fen IU Bewe mune later

vour fun Defendani re

may be Gret on my bet

| Ube Dive Sbers the hed

¢ fom the carpn im the

ned Ube type and chara.

carpe’ Sans could have

= Qefendan’ ) thew anc

he bioad on defendan’ »

's pe wee A

clendan' wes (he perwor

roan card ewotess.” (4!

2 eee me

. — gemeeeem, ant be

- be he Cee oe Geter

“ee = ee” &

~—2 ere

et ll nn NN me ome te @

Peor.s « Haan Tow .

“Gi Mh ~ Gitee ~ — Pad — Deep 1088)

The @efense case wes os fotiows “Defendan's mother testified tna be

wae ot ber boeee betweee 6 ced § pe ce May 3, 1979. Bho cold hee

ait hough she testibed 0: the prefmunary bearing (he! she did aot rememitn

eoring Gefendam' on Ube evening of May 1 1979 she inter spoke to defen

an) ee refreshed her recodiecbon by remunding ber of some Uhings (he he

happened Ute! evening ™

“Mary Brewer « reietive of Gefendants who bved w Otliaboms Ory

testified thet defendant had vuned ber m the carty part of June 1979 He

gee ber 0 ride m Ube van and she God sot remember: sewing an) Dio w

“Defendan' vestified tha be had sever seen the vice alive oF dead He

sand be wen! to hus aster w iee's house after he lef hus paren! § house abou

Spm oo May 1. 1979. He eew the Buchenees ver perked oo 6 erect

berween 12:45 and | am ce May 31, 1979, while walking home from « 7

Biever store after talking © Butch Mcintyre ™ The keys were m the gr

Gon Ube wing window wes broken and s puree wes on (he pemenge sm

Defendan' drove the van home calied Domne Hatch pu! bu ciothe w ©

and left for Texas ehcrtly before cumrise Defendant cold be broke the

armres! op Ube @rnvers seat when be was moving from the passenge’ see:

the driver's eet (The eeete were ewivel chaise oth ermreeu )

~Defendan' capiasmed (ha! be hed toid the offoers wm Otiabouns the be

bad @river ecrom the country with Spader and Fran becouse be Git oy

wen get stuck wub an amto thef charge

“Defendan' dened heaving hrestened to bil) Downs Mauch Me sand be

bough! Ube see and other tems ap June 6 before be spoke to Domne Hau b

He planned to use them to burglaries 6 more w Terrel) Defendan| sax! be

wes eriempung to dastrec’ (homns when be oid ber be Unough be bad bie

wmmerme abe wes angy) 0) hem becouse she bed pas! found i be het oe

ow ee ee wile beeng Gem

“Dewd Feulkner en entomotoges: testified show! an experumen be hee

comune we an eamp wo Qmermune when Ube ewcum 6 ext) hed been et

a: the cub-deeee Pealkner woot s rabte with mm bend and forepews &

oe and ow mmetmigh) pe 0 eters (he wet bed bee femme Te per

we Geer meme (he amour af meer acter) the: womb! cocw Feather

ne oe te gem omen T net ee ee ee ee me

een) eg egg et te ete eee

heat be () Col Mae pe 6). & 8)

5 ht ee epee eee The herve mete fe ee Gatemtime: afer ome Mammy

ey gy | Ae Teer? tae eee meee game cme he MT Nees ae ee me

ae wr” 6) Col wae» 68 & &)

M) Peorus Masel tox

“cM —~ Clik ~ — Poe — toy 18

sestified thet wither ¢ fee bow of emmrwe there were 6 be of Bees eon

the rebte Based on ths experument and be knowledge of (be tempers’) ©

om the morumg of May)! 1979 Pentkner comchaded the: the caries (he

text) would hewe beer pul there woukd hove Deen Fam Feulkne atm ie

however thet there © 0 greet Gen! of vareuoe © the degree to wher h mee)

ert etree’ © @iferen: bummer Pox

“Parter Bell s crwmunein: weutihed the: Ube thors! om defender | oh ~

wes 6 emeer a opposed wo 6 Gropiet or apiemer He though) (he Doo

coukd heave comme from (he carpet bel be echmowtmiged the: bere wer +

bhue Ghers @ the bhood (The biue carpe: shed badly |) Or cram cxamens

pon bowever Bel) admitted « wes possrbic (he (he Dior! cowk! have Der

umeared on éefendan' ) shoe by hewwng Cummped ame of Ube cect | Dee

cum

“De AR Hemel, Chee’ Medics! Beemeer of Ge See of Detewore

body was plnced st the cul-de-aac end thet the body cowk! hewe Deer pe

there oo carter than 4 om oe May }!

“Alien Biggs testiied that be bad been of the cubdeaee show! 1S Em OF

Mew D1. 1979 Be bed eeee Mir Piper's cer Get ce bety Depety Sher

Creeford waned the Gre wecks of the mene @ the cule Gt Om

match the Gre Gacks of the eect’) wen ©” (¢) Col be of pp #)° 4)”

& emir /

le Memiton | we conmdered (he Geum goung | gual ramed by defernden

end comchuded the! seme req™ured rewersal (4) Cai i ot pp 4)% 4) We

aio comchaded thei @ motenoe of cur Gecmmee @ Carte + Saperew oom”

mpre, 35 Cal i 13) ee comer) tether co meetreet Ge mery ee eer

wes an chemen: of the felony @arde: epee! areumstancm (4 (2 & *

hee ell) Oe Geter meme only (he wm calted Conmel) Therm rr

wes potentially svasiadie (Peape » Caneel (1979) & Cal be 672 (10°

Cal Roper 792, Se Fae 1086) Age © Perma (197) 1) Col be 8

(104 Cal Rper 467. 92) P 2d 267]>—ete. Get Geet wo bel wee eeieher

es 8 matic: of lee and there wes Go commrery evudemce worth) of com Hor

. oo & eee oe Crews tas eemutbes Ge Ge renmreres ons te

ee pene the owes Greg ete ee ee wey we tere eee ee

Tie Grug arts aopeered @ Ger oe Ge sewer «(6 Cal lt & 9 is

PROFLE « Makeli tow

Rp Pie (hte, (088)

bere were @ hor of fees around

knoe lexige of the tempererure

on uded Una: the earbes: the

cor Pam Feulkner edmined

he degree to @hech msects

be bom on égefendani + shor

latter Me thought the blood

o* ledge thet there were no

< bed!) ) On cross-caamune

@' Ube Dian could have beer

ed one of the ~ectam 6 bloady

of the Seate of Deleware

oween 9) and lL] om op

ports @as presen’ @hen the

« body could have beer pul

lo qui)! reseed by éefendan

s +6 of pp 4/194) a

@ Lert + Seaperwe ( oe

* he pery thet meen w bil!

weumstanee: (4) Cal ld «

fel, evthen the scope of thx

+ Gore mpre, Cal be

weeceied wm the apn

wt Centre!) Thernsee excep

ween (1976) 11 Cole The

wen to kell was established

wWence worth, of conside:

‘o he prema wie end had ate:

where he bet, mee Bere fend

"Nese e® *

Aten os Oe

te lll Al ow

‘

Peorte « Maan ror te

“Ginsu ) ~ Gitee — — Pe — Dey 1088)

ence We then determined’ the! Ube ewndemce adduced 6 (re shower +

the exoepooe wes @ faci oot eveiiedie bere According!) we receted (h<

epee) Grcumstasee fedings and reversed the padgmen' a & pene

Thereupoe the Artioreey Gemere) fied bes peunon fore ern af cerbors—

on Uhe weve whether Ube fanure to instruct on mteni to kal) eb regard & +

fete) @urde epee aroumsian« = subp’ © hermiamerro amelye)

The magh cowr grasted ibe pewvoon veceted the pxigmen: @ Nemec |

end remanded (he couse to (he coun for furthe commdersooe mw hgh +

decision i» Rose + Clerk. mpra 478 US 570 [92 L.Ed de 460, 106 5

5101)

c The Couse on Remend

At the Ghreshold. we quest Gelieeete Ge oope of reviee Ge nomen

()) Comerery @ the perves eesumpticon. the couse & % G@ureTy &

property before ws The « so becouse the Vaned State Supreme Coun

Also comtrary t© the parves assumpnon the doctrume of ine of Ube cae:

does no. be resonmdersoor of any pean decrdead w Nemiinon | The do»

inne may be apphed only wher and w the exten! the prior decmor he

force (Gee City of Gekiend » Gebiond © Bx Co (1912) 162 Ce

675, 677.678 [124 PF 251) iprier Gecumoe tending Ge pote concurred m by

Ube requiste sumbe of paige oo tandang of cubers | Because Ube pig

men w Nem /ron | wes veceied the! Gecamon of course @ 6 gullity amc &

such has no banding force

|. ot ae

Purvuan! to Ue mandate of the ened State Sapreme Gamer ceferne

above we howe remnamuned’ (he! per of ow farmer apensce G@eling #1) > -

teeues relating to guilt (Hemiiter | mpre 4! Cal Mt ot pp 4194)! ) Ina

much as @e Germ unnewessery to alter oF amend ow pron Geewon in he

regard &e adopt 6 a cw Gecmmon @ the procending

L 0 Specs Cirewmamence /aewes

(2 Renewing Ube pon be meade @ Nem (ton Gefendan| comet > -

cour erred by fashag wo mstrwct the pery the: mtem! to bal) wes an cterme”

of the felony murder apeca) circumstance The claum mus! be repo.

ln People + Anderson, mupre, 4) Cal bo ot page 114). we beled ther the

xr mus mstrect ae mien wher there a evudence fram ethan) (he. |

he Peoris © Manet TO.

“cus ©) — Code ~~ = ee. OOF

cowkd fed thet the Gefendant wer oe ater end cheer cotber Ger Or

rem kalker be the case of comree afl the ewwtemee showed (he Sefente”

ibe: actualy tilled Bechanes © we eo @watwed @ (Be crue & O there

wes me ewwhemee the: Be wes or ante am! omer Teen Ge coer Go oo

Sence we howe comcteded the Ge coer oe ot ethgeeet © Se

meee. we are aot required wo ranch Ge Geer we whet Ge gh coer:

45 Cab3é 351, ~ CotRge por —~Spdly ny

ou oes — Daay

Wty agit et iii, ities

‘ii ii He it

iif i : eH dant

Hi | Hal He late!

ali neal il lagi HE i

- st fF

Hil: Hak init i Ty dy

Haat Glades gh unlit

i Gt Hil ot el iil

DG iis is isa Hy

My ile tte hii

AT Ht tigege. ali Pint HH

AL a

ii 2 sie tn tH

Ae itis Beas be HF

EH ee i HH li

yr CT

Ta Ht it rd 1

ie Gill te iat il

vit it ele UH Hl i

Peorte » Has Tow

oo — — Pad — Paay 1988)

to portray defendant as «

ase mercy Lp substance the

y of family members and

lant’s life These witnesses

ce of bis buman aide, and

sb of bas younger brother

Farena ¥. California (1975)

Specifically be claums the

amber 27, 1980, m which be

¢ alternative perms! defend.

a ell

—_——~—

At « bearing on January 15, 198 |—@ve days before the penalty phase

renewed bis mouon Again. the cour demed his re

6o—

. \- bee

——_ _

- 7

aw ee BE

pvr) Peorus * Haskifow

4s Cale 351, — CubRge. — — 9.24 — Deer 1998)

“I don't ose thet there i» say canes 1 don’t feel

whatever m my feehng reiauve © Hamilton represenung

certainly can‘! represent himectf, being chains

Pore * | Hashifow

eo t feel there is any change

hon roresentung humeself He

+nains

| posinon to be sttempung to

in the condition he is im, and |

ec shackles during the balance

done many things that be

trial. He has seemed to, as I

path of his attorneys He has

costerous eas far as trial tactics

cucs, it would have been even,

dy dasastrous from his stand

resenting himself uw this final

100 of the tra! which ss going

mprisonment or whether be s

real travesty if I were to do

21 (137 Cal Rpw. 8, 560 P.2d

a lle

Peor.e » -Hasa Tow

45 Called 351, — Gal Bge — — Pad — Peay 1968)

supre, 422 US 806. (Hamilton | mpra, 4) Cai 3d at p 42! (motion made

after jury selecton bul before opening statements beid untimely) ) Accord

ingly, & wes within the court's Giscretion & grant the request or

not. ©) On review we cannot conclude that the court sbused its discre-

Bon m denying the monon having commdered the Windham factors the

court made the reasonable determination that defendan: should noi be

permitted to represent humeeif st the penalty phase The fact tha! the cour

conmdered such irrelevant factor

(@) Defendant claims thai hus Fereme mowon was indeed umely and

hence effectively invoked an uncondinonal ngh of self-representanon He

argues that the penalty phase of « capital trial amounts im actuality to «

separate trial, and that be made his momon within 8 reasonable ume prior to

subdivision (c), provides thai as e general matter “If the tner of fact which

convicted Ube defendan' of « crume for whach be may be subject Wo Ube death

penalty wes « jury, the same jury shall consider any ples of aot guilty by

reason of insanity pursuant to [Penal Code) Section 1026. the truth of any

«d si any prior phase of the trial imchuding any proceeding under « pies of

mot guilty by reasoe of maanity pursuant to Section |(12¢6 shal) be considered

#1 any subsequent phase of the trial. if the tner of fact of the pror phase is

the same trier of fact ot the subsequent phase”

Thus. we conclude that defendant was not dened 8 const tional ngh! of

self represeniavoe

Peorte « Ham Tor

- 45 Cade 15%, — Cogn. — — P26 — Daay 1988

» Constirutionality of the Sentencing Formule of Penal Cade

Section 190.3

fact concludes that the aggravating circumstances outweigh the mungetns

ciroumstances.” The point defendant makes here, however, wae releases

People » Brown (1985) 40 Cal. 34 512, $38-544 [220 Cal Rper 6) ae

440), veversed on other grounds sub nomine Californie © Brows (1

US. 598 (93 L.Ed2e 9s. 107 $C. 897)

ing responsibility and discretion in violstion of the constitutions! principles

therean Was Bot UNCON

In Brown we held that section 190.3, as construce

sutuponal (40 Cal. 34 at pp. 538-544.) Ip conformity with settled constr

deleted ae

}ends™*™ more) eseeement « {the} facn

and thereby decide “which penalty is appropriate in the paruicular case (ud

a p 31)

the constitutionslity of section 190.3, we

Alheagh Brow we wena © ~~ Ge prow

wer factors on each wie of ar

“os mechansce counnng on

easieory ‘wanle’™ at p. 341) We also believed that « furor aught res

sonabiy understand the language to require him to wore for death if he Binds

chat the evidence in aggravation outweighs the evidence i» swugebon ort

he Gevermines thet Genth & mot the appropriate penalty uncer

0 Cal Rpt. 637, 709 Pld

whie v. Brown (1987) 479

that former CALJIC No

anguage of secvon 190 5

be scope of thew sentenc

constitunonal pnncipies

et pages 538-544

¢ Uberean. @as not uncon

uty wrth setued constitu

fuage to require purors to

he basis of the character

oe” Od. at p 340, Ralics

} facts “"" Gad

® the particular case” (a

wity of section 190.), we

ww mstruction the prov

ac jurors as to the scope

emma) emdersiand (hs

amply e Gnding of facts”

actors on each ade of an

6 thet & juror aught ree

vote for death if be finds

ence mH mitigahon—even

¢ penalty under al) Une

dnt thn ehh Re

Hit

fli fi!

Tih

itt

Nps

ily

? Defendani may be understood to comtend that the preasicy (Pro

ple ©. Basiey (1903) 4 Cal.dd 858 [196 Cal Riper 309, 67! P26 819)

CALJIC No. 8.84 | (k) instruction (herenfter former factor (k)), wtuch was

gren im this case, may hove mised the juror as to the scope of thew

eentencang respons tr) and dmcrevon to éefendas' +) prewdice

ln People + Basiey mpre 4 Cai bd 858. we conchuded that the language

of former factor (k) aught musiend the jurors sbow! the scope of thew

Giscrenoe aad responstebr under the faders: Camsnrubor as comsinves —

Locker: +. Ohio (1978) 438 US. $86, 404 (5S? L_Ba Je 973, 989-990, 98 S.C

2954), and Eddings +. Okinhome (1962) 455 US 104, 110 [7) L- Bade |.

102 SCA 869) m whach the Unsed Seas Supreme Cour beid tha! *

an) aspect of the éefendan's charecte: or rece ¢ tha! Ube Getendar

profiers as « basis for s sentence lew then Geach ~ (bes & orgs )

wugscor act only factor (k) wi also “any other Uspert of [Ube deters

ani + charecte; or record Che the Getemdani profes as 6 bees for +

sentence es than Geath”” (4 Cold ot p O78 & 10)

le People + Brown, mpre @© Cal bd 511 we amecumced thet with respec

to cases euch as the preaco! am whach he jury bed Seer mstructed put.

ments made to the purty ” (People + Rodrigue: (1986) 42 Cal Se 780

conmde: te) be arcumstances presenied a ~waaoas for mo UN”

éa eee”

Then ce Gh cocord we Ged co Beet “heer GO) oro

ee Rema Ew

@ Defender: comtends the! the cour commumned reverwbie erro) unde

People + Ramas (1984) 3) Cal be 136 (207 Cal Roper S00, 68° P de 430) Ie

accordance wih the socalled Brigg laswwewce (forme CALC No

Peorte « HAMILTON

iRou. —, — P.2d — [May 1988]

J Constitution as construed in

L.Ed.2d 973, 989-990, 98 S.Ct.

U.S. 104, 110 [7} L.Ed.2d 1, 8,

; Supreme Court held that a

udering as @ mitigating factor.

ecord that the defendant

death” (Italics in original.)

wguage of the instruction, we

jury that they may consider in

other ‘aspect of [the) defend-

idant proffers as a basis for a

». 878, fn. -10.)

¢ announced that with respect

uy had been instructed pursu-

nine each such appeal! on its

ve been misled to the defend-

ducting such an examination,

wuctions given and the argu-

driguez (1986) 42 Cal.3d 730,

wing the record of the penalty

at the jurors may have been

factor (k) instruction. Indeed,

fact adequately informed that

d evidence. After the defense

2 evidence, the court instruct-

umstances which I have read

ly as examples of some of the

yns for deciding not to unpose

vecific factors. You may also

, reasons for not imposing the

“factor (k)” error

umitted reversible error under

1.Rptr. 800, 689 P.2d 430! In

ston (former CALJIC No

;

eee Pere ewe re rere | Y ee ee ete, ee

Peor.e « HAMILTON 373

45 Cal¥é 351; — Cal Row. — — P26 — [May 1988)

8.84.2 (1979)) the court delivered the following charge “You are instructed

that under the state Constitution, s governor is empowered to grant

reprieve, pardon or commutation after sentence following conviction of s

crime. Under this power a governor may in the future commute or modify s

sentence of life imprisonment without possibility of parole to a lesser sen-

tence that would include the possibility of parole.”

In People v. Ramos, supra, 37 Cal.3d at page 153, we beld that “the

fairness’ (established in the due process clauses of our Constitution (Cal

Const., art. I, §§ 7, 15)} both because it is seriously and prejudicially

misleading and because it invites the jury to be influenced by speculative

and improper considerations.”

As to the misleading character of the instruction, we stated as follows

“Under the California Constitution, the Governor's power of commutation

ur pardon extends equally to a sentence of death and to s sentence of life

without possibility of parole. [Citation.] The Briggs Instruction, however,

informs the jury only that 2 sentence of life without possibility of parole

may be commuted. Although the instruction is literally accurate as far as 1\

goes, it is a classic example of a misleading “balf-truth.’ Since the instruction

is only given in a penalty trial—when the jury's attention is narrowly fo-

cused on two alternative punishments—the instruction would reasonably be

understood by the average juror to mean, by negative implcation, that

while a sentence of life without possibility of parole may be commuted, s

sentence of death may not. Viewed realistically and in context, the instruc-

tion provides the jury with seriously misieading information.“ (37 Cal 3d a!

p. 153, fm. omitted.)

Further, we explained that “there are « variety of reasons why

consideration [of the commutation power] is improper. The first and per-

haps most obvious problem is the speculative nature of the inquiry that the

instruction invites. . . - [{] . . . Here, the jury must attempt to determine

not only what « particular defendant will be like in the future but also what

some presently unknown person—e future Governor—will do in response

to the defendant's then condition. . . . [{] Furthermore, . . . any mstruc-

Ud. at pp. 156-157.) “Second, . . _ gn imstruction on the possibility of com-

mutation invites the jury to go beyond its proper role and attempt to

‘preempt’ the Governor's constitutional authority by imposing # sentence

ep ow tend

374 PEOPLE » HAMILTON

45 Cal3d 351; — CalRpe. —, — P.2d — [May 1988)

that will at least minimize the opportunity for such a commutation.” (Ud. at

p- 158.)

Under Ramos, we conclude that the court erred by charging the jury in

accordance with the Briggs Instruction: the language of the mstruction 's

misleading and invites speculation on irrelevant and improper matters

imposed on Mr. Hamilton.

“You are instructed that under the state Constitution, # governor 1s

empowered to grant a reprieve, pardon or commutation after sentence fol-

lowing conviction of a crime. Under this power # governor may in the

future commute or modify a sentence of life umprisonment without possibil-

ity of parole to a lesser sentence that would include the possibility of parole

This is subject to the requirement that, in the case of any person twice

convicted of a felony, a commutation or modification may not be granted

absent the written recommendation of at least four justices of the California

Supreme Court. Further, a life sentence requires a minimum imcarceraton

of 25 years less one third off for good time credits before parole may be

considered by the proper authorities.

jurors if you were to fix the penalty at death because of s doubt that the

governor and other officials will properly carry out their responsibilities

* eat

PEeor_e «= HAMILTON

Cal Row. —. — P.2d — [May 1988)

for such a commutation.” Ud. at

rt erred by charging the jury in

e language of the instruction is

elevant and improper matters

ce that a supplementary charge,

e Briggs Instruction, made that

onprejudicial. As relevant here,

ws ae ¢

» of the two penalties, death or

wut possibility of parole, shal! be

ite Constitution, a governor

commutation after sentence fol-

power a governor may in the

iumpnsonment without possibil-

include the possibility of parole

1 the case of any person twice

odificanon may not be granted

st four justices of the California

juires a minimum incarceration

¢ credits before parole may be

be matter of a possible commu-

be considered by you in deter-

You must not speculate as to

would ever occur. It is not your

l) be suitable for parole at some

\ are to decide only whether this

ether be shall be permitted to

8 the proper sentence, you must

urt, and those officials charged

perform their duty in a correct

Wton will not be paroled unless

id be a violation of your duty as

ith because of a doubt that the

arry out their responsibilities.”

PEOPLE » HAMILTON 375

45 Cal3d 351; — CalRpe. —, — Pld — [May 1988)

Having considered the matter closely, we cannot agree that the suppie-

mentary charge somehow rendered the Briggs Instruction free of error: that

charge does not alter the objectionable language, which continues to mis-

lead and to invite speculation on irrelevant and improper matters.

We do agree, however, that on this record the error was nonprejudicial

As stated above, the court instructed the jurors “nor to consider[]" “the

matter of a possible commutation or modification of sentence. . . in deter-

mining the punishment for Mr. Hamilton,” “not (to) speculate as to wheth-

er such commutation or modification would ever occur,” and “nor. . . to

decide now whether this man will be suitable for parole at some future

date.” Defendant argues that the supplementary charge did not cure the

harm of the Briggs Instruction, but rather led the jurors to indulge in

irrelevant and umproper speculation. The clear meaning of the plain words

of the admonition, however, refutes this argument.

The court also delivered the following charge. “I have previously read to

you the list of aggravating circumstances which the law permits you to

consider if you find that any of them is established by the evidence. These

are the only aggravating circumstances that you may consider. You are not

allowed to take account of any other facts or circumstances as the basis for

deciding that the death penalty would be an appropriate punishment in this

Through these instructions, the court directed the jurors not to make any

use of the Briggs Instruction in determining the penalty to be imposed on

defendant. Jurors are, of course, to follow the instructions given

by the court. (E.g., Delli Paoli v. United States (1957) 352 U.S. 232, 242 [1

L.Ed.2d 278, 285-286, 77 S.Ct. 294].) In this case we find no reason to

believe that the jurors failed to discharge thar duty

Defendant argues in substance that the prosecutor exploited the Briggs

Instruction in closing argument and made the harm threatened by

the instruction incurable. The comment plained of is as follows: “Now,

[defense counsel will) say, ‘If you give him life in prison, be will have to

spend the rest of his days thinking sbout his crimes and thinking about the

victims.’ No way. . . . This defendant wouldn't spend all his time in prison

thinking about his horrible crime. He’s be conniving and devising ways to

manipulate the system and get out. Look at his letters [to Officer Birse,

Ruth Story and the San Diego District Attorney's office) now, how he

operates.”

We do not believe that the prosecutor intended this comment to refer to

the Briggs Instruction. Had he desired to anticipate that charge, he would

*“7e

376 PEor.e =: HAMILTON

" 45 Cal 34 351; — Cal Ager. —, — P24 — [May 1988)

evidently have touched on the Governor's commutation expressly or

‘ Hence, we conclude that on the facts this case the giving of the Briggs

Instruction did not amount to rev error

g. Failure t0 Exercise Discretion to Strike the Special Circumstance

Findings

Defendant contends in substance that at the automatic penalty-mo ;

dification hearing conducted pursuant to Penal Code section 190.4, subdivi-

sion (e), the court had the authority, under Penal Code section 1385 (here-

efter section 1385), to strike the special circumstance findings “in further-

ance of justice” in order that be might be eligible for parole He further

contends that the court failed to consider whether it should exercise that

0) We agree that under the 1978 death penalty law the court had the

authority to strike the special circumstance findings pursuant 10 sechou

385. Indeed, we 80 held in People v. Williams (1981) 30 Cal.3¢ 470 [179

ider whether it

We cannot agree, however, that the court failed to cons

should exercise this sutbority. On our reading of the record. the court

appears to have impliedly determined that there was no basis for sinking

a : Prom 2 Hasan Tor a7

— — Pld — (May 1988) & 45 CaL34 351; — CalRger. —, — P24 — Daday 1988)

ation power expressly or , — , , a

0 anes Gan ba fon & eqpeain & euvtdats af & ten ee”

wat the jury would have

yn: the remark does not

t, the comment was brief

r im this case incurable.

| |

“were = arenwt

378 Peorte » Has

45 Cal3é 351; — CalRger. —, — P26 — Day 1988)

tn mn ll le tt ee

sbecnce of counsel's failings » more favorable outcome was reasonably ,

probable. (Beople v. Ladesma (1987) 43 Cal.3d 171, 216-218 [233 CalRpt.

404, 729 P24 839].) As we shall explain, defendant fails to make # prune

facie case of entitlement to relief.

a3) Defendant alleges broadly that trial counsel made various exrors in

strategy and tactics and, more specifically, that they feared him and treated

him with distrust Such asserbons do not effectively allege either éeficen'

.——— ae

os ae

Defendant argues in substance that the court may nevertheless have

extertained the erroneous belief that it was without authority to strike the

special circumstance findings, and that it should be directed to determine

qwhether or not there was « basis to strike those Sindings. We are not per-

_ guaded. The record contains no evidence suggesting that the court believed

ee.

the giving of the Briggs

rlary Special ; ° ‘unwilling to assume that the court may have entertained an erroneous belie!

| ) counse] refused to that facial expresmons

aa ance of justice” in any circumstance in which the legislative body has not He also alleges appellate Oe oe ectentian guajatiest

ee Suan clearly manifested a contrary intent. (People v. Superior Court (Howard) ant gee ons ——_~y By ante ely wage citer Gxfciant

te oie 968) 69 Cal.2d 491, 503-505 [72 Cal Rptr. 330, 446 P.2d 138) [dismissing the

‘ehdunementl . entire actioa).) We sleo presume the court read the death penalty len, ba Xt performance or prejudice. a .

found —* gubeequently did in People v Williams, supro, 30 at pages 484-485, due because the

cs reversal. We cannot 4 as not intended to limit the court’s authority in the circumstances relevant Defendant next claims that he was denied

ng was invalid, we are

| not been instructed to

‘ould have returned a

ion—even without the

auon was minima!

jodge was biased. In support of his point, be cites the following meidents

(11) Finally, we are of the opinion that in view of the theories presented

Special Circumstance and the evidence introduced, the jury’s guilt phase verdicts imply s finding

’ the evidence—<does no!

that defendant was the actual killer (Eamund v. Florida (1982) 458 US. each of which is more than adequately supported by

utomatic penalty-mo- \ 4 : ; noid

section 190.4, subdivi- supported by the evidence and adopt it as our own. Accordingly, we

de section 1385 (here-

e findings “in further-

or parole. He further

( should exercise that

ection, t does mot amount to... prejudice... .'” (People v. Yeager

(1961) 55 Cal2d 374, 391 {10 Cal Rptr. £29, 359 P.2d 261))

Defendant's final “claim” is in substance as follows: he states that at the

pew trial that might have followed our decamon in Hamilton I the court

would again deny his request to represent hinnself. Whether or sot the court

ouild eo rule in the future raises mo issue cognizable on habens corpus. In

4 L.Ed.2d 704, 716, 106 S.Ct 689, 697).

IL Haseas Coarus (Came 25303)

law the court had the In his petition for a writ of habeas corpus in Crim. 25303, defendant an , we affirm the jud + in its entirety there will be no

+ pursuant to section bases his claim to relief on three grounds. He Grst asserts be was not a ak

\) 30 Cal34 470 [179 provided with effective asmstance by tnal and appellate counse! az To

1 46 Haseas Coarus (9001870)

in his petition for s writ of habens corpus in 8001870, defendant bases his

- Gdaim to relief on what are in substance four grounds. He first asserts be was

‘not provided with effective assistance by trial and appellate counsel. As will

appear, be fails to make « prime facie case “

; sernously doubt defendant has sdequaicty alleged

sear etormance on the part of counsel His first complaint is that

> consider whether it~” feasiona] norms, and thereby (2) subjected the defense to prejudice, ie. in

be record, the court ‘After oral argument defendant subemtiad » sumsber of motions @ propre perscms sskins

bo basis for striking that apported appeilaie commer! be rebeved and other spacthed counsel be substituted = b=

sly found, “the piace Because each of these aflorney: hes Gechaed to state be = svailabie or hes Gectared be

; = eeeveiedee wr Gen) Ge oboe

PEOPLE ® TON

pr —, — Pld — Pay 1988)

pie outcome was reasonably

171, 216-218 (233 Cal Rptr.

sdant fails to make a prima

ference, the padge told him.

», 359 P24 261))

follows: be states that at the .

on in Hamilton I the court

ef. Whether or not the court

aizabie on habeas corpus Ip

its entirety there wil] be no

$001870)

9001870, defendant bases his ”

ounds. He first asserts be was

nd appellate counsel. As will ©

jar has edequate:y alleged

. He first complaint is that

;

« Riesitetiet s ond nd ’

a ae ee lt et, tl

Paor.e » HamiLTow 379

45 Cal3¢ 351; — CalRpe. —, — P2d — Pay 1988)

counse! failed to communicate with him or to allow him to participate in

imvestigate the facts of the case This charge runs im substance as follows

clares—may have been the killer, counse! knew that Buchanan had left class

before the quiz was given, and knew that « copy of the quiz was found in the

We doubt, however, that counsel's performance can be called deficent

There was simply nothing more than the merest speculation that an un-

known classmate may have gone to the van and may have killed Buchanan

Without something more, it s difficult to conclude that counsel was obliga'-

ed to mvestigate further.

Defendant next claims that the prosecution imtroduced “False evidence

. . , Sabetantially material or probative on the issue of guilt™ (Pen. Code,

§ 1473, subd. (61). His complaint is im eosence a follows: the optional

quiz must have been brought mto the van by one of Buchanan's classmates

the prosecution was sware of this fact, but presented its case as though

Buchanan brought the quiz to the van herself The premise ws unsound the

taken the quiz, probably obtained a copy from one of them, and therefore

may have brought it to the van herself Hence, defendant fails to make «

prima facie case.

(5) Defendant also claims that be had « right to be present at « pretrial

hearing conducted on July 6, 1981. At (hat bearing the court m essence

established a schedule under which a defese crummologsst could examine

It is the rule that “the accused is not entitled to be personally present...

fon) matters im which defendant's presence does not bear 2 * “reasonably

substanhal relanor to the fullness of his opportumity to defend agains! the

charge.” "™ (People v. Jackson (1980) 28 Cal 3d 264, 309 [168 Cal Rpt

“sy «2 nad

sa Peorce « HAMILTON

; 45 Cal 34 351; — CalRper. —, — P.2d — [May 1988)

603, 618 P.2d 149], citing cases (plur. opn.).) Under this rule, defendant did

not have a right to be present at the hearing: his attendance at what was

essentially # scheduling hearing would not have been useful or of benefit to

it to imspection tests. It is of course the rule that “in no event can duly

. : am ** : . .

The judgment is affirmed. The petition for writ of habeas corpus in Crim

25303 is denied. The petition for writ of habeas corpus in S001870 is denied

Lucas, C. J., Panelli, J., Arguelles, J., Eagleson, J., and Kaufman, J.,

t “2 ye7099

PEOPLE » HAMILTON

al Ropu. —, — Pld — [May 1988)

) Under this rule, defendant did

ig: his attendance at what was

wave been useful or of benefit to

vith efforts on the part of an

( denying him due process of

(2 (24 Cal Rptr. 833, 374 P.2d

].) The petition, however, fails _

acted without undue delay or

: to the prosecution.

writ of habeas corpus in Crim.

is COrpus in S001870 is denied.

igieson, J., and Kaufman, J.,

senting—I concur in the

ial circumstances and in the

corpus. I dissent from the

trial court erred im giving an

1 Briggs Instruction (former

rs power to commute a sen-

tude that subsequent imstruc-

2's power to commute elimi-

Ot agree that the later instruc-

bell, the subsequent instruc-

be jury again and again of the

' the prosecutor exploited the

t, when the cacophony was

»!

dei bbb sa'A sir ihe? 4

—

PEOPLE » HAMILTON

381

45 Cal.36 351;'— Cal Rptr. —, — P.2d — [May 1988)

complete and overwhelming, there was no prejudice is to turn a deaf car to

The Briggs Instruction has been uniformly beid to be prejudicial error in

@ penalty trial because it is so misleading as to constitute a denial of duc

process, improperly tilting the jury in favor of the death penalty. (People v

Anderson (1987) 43 Cal.3d 1104, 1150-1151 [240 Cal. Rptr. 585, 742 P.2d

1306); People v. Myers (1987) 43 Cal.34 250, 272-273 [233 Cal. Rptr. 264,

729 P.2d 698); People v. Monteil (1985) 39 Cal.34 910, 928 (218 Cal. Rptr.

572, 705 P.2d 1248); People v. Haskett (1982) 30 Cal.3d 841, 861-863 [180

Cal. Rptr. 640, 640 P.2d 776].) In Anderson, it is stated that the Briggs

Instruction “necessarily subjects the defendant to prejudice.” (43 Cal.3d at

p. 1151.) As pointed out in Myers: “The Attorney General. . . has cited no

instance, and we are aware of pone, in which this type of instructional error

bas been found nonprejudicial in a death penalty case, and in view of the

very serious potential for prejudice emphasized in Ramos, we strongly

doubt whether we could ever confidently conclude that there was no reason-

able possibility that this instruction improperly tainted the jury's decision-

making process.” (43 Cal.3d at p. 272.)

In Myers, the defendant imtroduced evidence of the past practices of

California governors to show that it was extremely unlikely that be ever

would be released if sentenced to life without possibility of parole. The court

concluded that far from neutralizing the improper instruction “in reality

the additional focus on commutation in this case had the inevitable and

unfortunate effect of highlighting the ostensible importance of the commu-

tation question.” (43 Cal.3d at pp. 272-273.) :

In this case the trial court's instruction to the jury that it was their duty

to determine whether death or confinement in state prison without possibili-

ty of parole should be imposed on defendant was followed immediately by

its instruction on the Governor’s commutation power. The court thereby

emphasized the importance of the instructions on the Governor's powers,

suggesting that they are the first and most important step in the process of

determining the penalty!

'“It is sow your duty to determine which of the two penalties, death or confinement in the

state prison for life without possibilty of parole, shal) be imposed on Mr. Hamilton

“You are instructed that under the state Constitution, 8 governor is empowered to gran! »

repneve. pardon or commutation after sentence following comvicuon of s cnme Under this

power 8 governor may in the future commute or modify a sentence of life imprsonment #11)

Out possibibty of parole to « lesser sentence that would include the possibility of paroic

‘“This is subject to the requirement that, in the case of any person twice convicted of a felo

By, # Commutation or modification may not be granted absent the written recommendation

Peor.e « HamiLTow

-” 45 Cal3é 351; — CalRge —, — P.2c — [May 1983)

be-

portance of the Governor's powers was further emphasized

caune of their length; the instractions went beyond those contemplated by

Penal Code ‘section 190.3, the Briggs Instruction

The first instruction was not limited to the Governor's power to commute

tailin While the

i matters which could only serve to toll the bell repeatedly ;

majority concede that error occurred (maj. ope... p 374), they do not recog

nize the full scope of the error.

further take the non that subsequent mstructions anid

oom au the vert rh mesa that we must presume the ery

followed the later instructions and that they eliminated the prejudice dus t

the erroneous instructions on the Governor's powers. (Maj. opn.. ene. P

375.)

instruction could eliminate the prejudice flowing

, doubt whether any . , u-

tram the improper and detailed emphasis placed on the Governor's comm

- : : im the instant case were in themselves erroneous.

nonfusing and contradictory and, when all was said and done. 5 vn

the jury with the view that it should consider the Governors pews’: US ON

+ assumed that the powers would be properly exercised of

de do not eliminate the prejudice Sowing from the mmproper mention

bee sentence reguirss a

of the Califoraia Supreme Court Further. s ,

CO ES oe —~— > — ao

conndered proper suthonbes ~

“7 mre ow wnetracted, however, that ibe mamer of « possible commetstion of wo

oe of _ montagne hae nec a ere

Hamilton. You not speculate as to whether such commutsuce

Peorte « HAMILTON

iper —, — Pad — [May 1988)

was further emphasized be-

yond those contemplated by

“on

2vernor’s power to commute

ibility of parole. Rather it

sequent instructions told the

ntence of life imprisonment

¢ imprisonment with parole,

nmutation. The instructions

by Penal Code section 190.3

zed the Governor's power

ald reference to the Gover-

ction 190.3 but included in

entence and instructions de-

»¢ bell repeatedly. While the

. p. 374), they do not recog-

subsequent instructions told

t we must presume the jury

munated the prejudice due to

ywers. (Maj. opn., ante, at p.

unate the prejudice flowing

i on the Governor's commu-

umportance and emphasis to

udice. Furthermore the sub-

ere mm themseivgs erroneous,

said and done, probably left

¢ Governor's powers so long

srly exercised. Such instruc-

om the improper mention of

prejudice ?

Further, s life sentence requires s

Dod ume credits before parole may

of & possible commutation or mo-

termining the punishment for Mr

wmmMutauon or modificauon would

be wid teat an thew

ee eee suey ttgetg aaa dtaomadlliy, Ate.

?eorit ¥V Hantrow 383

‘43 Cal.3d 351; — CalRptr. —, — P.2d — [May 1988)

Like the evidence of past Governor practices in People v. Myers, supra, 43

Cal.3d 250, 272-273, the instructions relied upon by the majority in the

instant case, far from neutralizing the improper imstructions on the commu-

tation power, served to emphasize the commutation question. The jury was

initially told not to consider a possible commutation or to speculate whether

there would be a commutation, and it was not its function to determine

whether defendant would be suitable for parole at a later date. But telling

the jury not to consider a possible commutation, to speculate, or to decide

whether this man will be suitable for parole at some later date simply

emphasizes the commutation question in the juror’s mind.

Moreover, the jury was not told to ignore the Governor's power but was

told that the Governor, the Supreme Court and the parole officials would

properly perform their duties. In Ramos, after concluding that fundamental

fairness precluded telling the jury of the commutation power, the court

addressed the question whether the jury should be told nor to consider the

Governor’s commutation power. While we recognized that in some circum-

stances not relevant here the jury might be told to disregard the power, w-

concluded that the jury should not be so instructed because the instruction

“is simply more likely to bring the matter to the jury's attention and, as a

practical matter, be difficult to follow.” (37 Cal.3d at p. 159, fm. 12.) Ac-

cordingly, even if no commutation instruction had been given, it would

have been error in the instant case to give the supple.oentary instructions

because they called the jury's attention to the commutation issue. T¢ con-

clude, as the majority do, that an instruction which is erroneous because it

may call the jury's attention to a prejudicial matter somehow eliminates the

prejudice in other instructions which call the jury's attention to the very

same prejudicia] matter involves a mental exercise incomprehensible to me

But even if we accept the majority's thesis that somehow instructions

which are error because of their prejudicial effect can somehow cure other

imstructions which are error because they have the same prejudicial effect,

we stil] must look at the content of the subsequent instructions of the tria!

court.

“11 @ mot your function to decide now whether this man will be suitable for parole a! some fu-

ture date So far as you are concerned. you are to decade only whether thes man shal) suffc

the death penalty or whether be shal) be permutied to remain ahve

“Lf upon connderanon of the emdence you believe thai life unprizonmen| withow! possibs!i'y

of perole is the proper sentence. you musi axsume thai the Governor. the Supreme Court. and

these officials charged with the aperation of our parole system will perform their duty in @ cor.

rect end responsible manner. and tha: Mr Hamilton will noi be paroled unless he con be safely

released inio society .

“lt would be s violation of your duty as jurors if you were to fx the penalty a1 death be

cause of s Gowbt that the Governor and other officials will property carry out thew respons:-

bilities.“ (Italics added.)

yas Peorte « HAMILTON

45 Cal34 351, — CalRpe. —, — P24 — Petey 1988)

Far from being told that it was improper to consider the possibilities of

commutation and subsequent parole, the jury was told that it should consid-

er those possibilities but only in the perspective that, when and if defendant

paroled it would be done lawfully To execute a defendant based on the

Governor’s power to commute sentences whether done lawfully or uniaw-

fully violates the fundamental fairness guaranteed by the due process clause

of our state Constitution

The prosecutor exploited the fundamental unfairness of the instructions

in his closing argument. The prosecutor suggested that if defendant received

thinking about his horrible crimes. He'd be conniving snd devising ways ‘o

manipulate the system and get oul. . . _ Look at his letters [to Officer Burse,

Ruth Story and the San Diego District Attorney's office] now, bow be

operates.” (Italics added.) The comment is « direct comment on the poss:

ualate the system and get out” by appealing to governmental suthorines was

through exercise of the commutation power The majority suggest that the

prosecutor was only trying to state that defendant wes lacking in fechng anc

self-centered (maj. opn., p. 374), but the comment speaks for itself

In the instant case the instructions discussing the Governor's powers

were as long as those setting forth and defining the aggravating and mitigat-

ing circumstances which should control the application of the death penal-

ty 1 am satisfied that the instructions on the Governor's Poet Sit oo

harmful than any we have seen im prior cases. supplemental instruc:

Gous relied upon by the majority did not eliminate the prejudice but could

only have emphasized the commutation power and confused the jury mic

PEeorLe » HAMILTON | peorLe » HAMILTON 385

xr. —, — P.2d — [May 1988) 45 Cal3d 351; — Cal Rpe. —, — P.2d — [May 1988)

—_

4 * believing that the power was an important matter, if not the most important

ae os matter, to be considered by the jury in determining the penalty. The prose-

consider the possibilites of cutor referred to possible parole in his closing argument, and the prejudice

us told that it should consid- - from the errors is overwhelming.

1¢ commutation power was 8

1out possibility of parole and

wsume that if defendant was 3

ec a defendant based on the

her done lawfully or unlaw-

sed by the due process clause

APPENDIX 1-3

unfairness of the instructions

ted that if defendant received

spend all his time im prison

Governor's powers were more

es. The supplemental instruc

ainate the prejudice but could

er and confused the jury mto

Peorie v. HAMILTON

4) Cal.3¢ 408; 221 Cal.Rptr. 902, 710 P.24 981 (Dec. 1985)

[Crim. No. 21958. Dec. 31, 1985 )

THE PEOPLE, Plaintiff and Respondent, v

BERNARD LEE HAMILTON, Defendant and Appellant

SUMMARY

Following a jury trial, defendant was convicted of first degree —~

burglary, robbery, and kidnapping. Special circumstances allegauons -

the murder was committed while defendant was engaged ip or was an ac

complice in the commussion of robbery, burglary, and kidnapping —

found to be true. The jury fixed the punishment at death. (Superior Cou

of San Diego County, No. 47283, Franklin B. Orfield, Judge.)

The Supreme Court affirmed the judgment of guilt, but set aside the spe-

cial circumstances findings and reversed the penalty judgment ohe —-

held the trial court's failure to instruct the jury that in order to find true the

special circumstances allegations, i must find an intent to kill, was _—

ible error. The only theory on which the jury was instructed _—— ~

murder was felony murder, which does not require & finding of intent \&

kill. The court held the evidence did not establish intent to kill as a ~ ye

of law, where the coroner was unable to determine the cause of —s

the victim, or whether her head and hands were cut off before or after dea

where the one stab wound that was inflicted before death was nonfatal, and

where it was possible the victim might have been killed accidentally, with

defendant deciding afterwards to mutilate her body in an attempt to ——o1

its idenuficauon (Opinion by Kaus, J.,° with Broussard and Reynoso._ ;

concurring. Separate concurring opinions by Grodin, J., and by = <

Separate concurnng and dissenting opimons by Lucas, J., and by Mosk,

}

HEADNOTES

Classifed to California Digest of Official Reporss., 34 Sernes

(la-1f) Criminal Law § 87—Rights of Accused—Aid of Counse!—Seif-

representation—Discretion of Trial Court.—Uniess a defendant's

*Retired Associate Justice of the Supreme Court situng under assignment by the Chair

person of the Judicial Counc

"LE v. HAMILTON

24 981 (Dec. 1985)

s allegations that

in OF was an ac

kidnapping were

(Superior Court

age.)

set aside the spe

ment. The cour

to find true the

kill, was revers

sted vis-a-vis the

ding of intent to

> kill as @ matter

ause of death of

re or after death

vas nonfatal, and

ccidentally, with

tempt to prevent

nd Reynoso, J).,

ad by Bird, C. J

and by Mosk, J.)

f Counsel—Self-

8s a defendant's

ament by the Cha

PEOPLE v. HAMILTON 409

41 Cal 34 408; 221 Cal Rotr. 902, 710 P.2d 981 (Dec. 1985)

mouon to proceed in propna persona is made within a reasonable time

before commencement of trial, it does not invoke the constitutional!)

mandated unconditional nght of self-representation, but puts the matter

within the court's discreuon. In a prosecution for first degree murder

and other offenses. the trial court properly exercised its discretion in

denying defendant's mouon to proceed im propria persona, where the

mouon, which was made in the context of a bearing on motions to

exclude evidence and set aside the indictment, was untimely, in that

the hearing had begun two months earlier and had produced several

days of tesumony, and where the court noted defendant had not stated

a valid reason for relieving counsel and was grasping at amything to

delay the proceedings

(2a-2f) Criminal Law § 87—Rights of Accused—Aid of Coansel—Seif-

representation—Discretion of Trial Court.—In exercising its discre

bon in determining whether to grant defendant's mouon to preceed in

propria persona, the trial court should consider the quality of counse! 's

representation of the defendant, the defendant's prior proclivity to sub

sutute Counsel, the reasons for the request, the length and stage of the

proceedings, and the disruption or delay which might reasonably be

expected to follow the grantung of such a motion. Therefore, in a pros

ecuuon for first degree murder and other offenses, the tmal court did

not abuse its discretion in denying defendant's mouon to proceed in

propria persona, where the mouon was made after the jury had already

been selected and was therefore not umely for purposes of having an

absolute nght of self-representauon, and where the court poted that 1!

had already taken four weeks to select the jury, that the reason for

defendant's request seemed groundless, that defendant was receiving

high quality representauon, and that he had a proclivity w subsutute

counse!

(3a-3e) Criminal Law § 44—Rights of Accused—Fair Trial—Physica!

Restraints on Defendant; Jail Clothing—Discretion of Tria!

Court.—A trial court must make the decision to use physical restraints

On a case-by-case basis, and its determination, when made pursuant (o

a hearing outside the jury's presence, with the court making « duc

process determination regarding the necessity for the restraints on

record. cannot be successfully challenged on review except on a show

ing of a manifest abuse of discretion. Therefore, on appeal of a cor

vicuon of first degree murder and other offenses, defendant's conten

Gon that the trial court abused its discreuon in ordering him to be

shackled during the tria) was without merit, where the tnal court held

an in camera hearing, heard tesumony by law enforcement officers and

A A A A

Peor_e v. HAMILTON

41 Cal.3¢ 408; 221 Cal Row 902. 710 P.2d 981 [Dec. 1985)

the defendant, and made an on-the-record determination of the neces-

sity for ordering defendant shackled

(4a-4f) Criminal Law § 658—Appellate Review—Harmiess and Revers-

ible Error—Evidence—Prior Conviction or Misconduct— Proof o!

Motive and Identity.—In a prosecution for first degree murder and

by defendant approximately six years before the crimes in issue, while

defendant was in prison for another crime. The letters, which were

written to a superior court judge and the district attorney's office, ex-

pressed defendant's fear of prison and offered to provide information

about crimes commutted by others in exchange for release from prison

They were ruled admissible on the issue of motive and identity. How-

ever, the proffered motive of killing the victim, who allegedly wit-

nessed defendant burglarizing her vehicle, based on defendant's ¢x-

treme fear of prison, rested entirely on speculation and a tenuous chain

of inferences. Nonetheless, it did not appear reasonably probable that

the jury would have reached a more favorable result had the letters not

been admitted, and therefore the error was not prejudicial, where, even

without the letters the jury would have known of defendant's prior

convictions of various crimes, and where there was strong circumstan

tial evidence of defendant's guilt.

(Sa-Sd) Criminal Law § 311—Evidence of Other Crimes or Miscon-

duct—Exceptions to Rule of Inadmissibility—To Prove Facts Ma-

terial to People’s Case.—Evidence of a defendant's prior criminal acts

is inadmissible under Evid. Code, § 1101, unless it is relevant to prove

some fact, such as motive, opportunity, intent, preparauion, plan

knowledge, identity, or absence of mistake or accident, other than

defendant's disposition to commit such acts. The factual relevance,

however, must pertain to some issue that is actually in dispute, and

even then the trial court must exercise its discretion under Evid. Code

§ 352, and exclude the evidence if its relevancy to prove the disputed

fact is not of sufficient probative value to outweigh the manifest pre)-

udice of such evidence.

(6a-6e) Criminal Law § 375—Admissions and Deciarations—Ambiguity

of Statement.—In a prosecution for first degree murder and other of-

fenses, the trial court properly admitted in evidence a statement mace

by defendant to a deputy sheriff who was transporting defendant be

tween jail and the courtroom. The deputy was ughtenng defendant s

security chains. when defendant told the sheriff be could have his fun.

and defendant would have his later. In response to the deputy's reply

“| thought you already had your fun.” defendant said: “Yeah, and 1°!)

‘LE v. HAMILTON

24 981 (Dec. 1985)

jon of the neces-

iess and Revers-

aduct—Py oof of

gree murder and

ee letters written

es in issue, while

ters, which were

rney's office, ex

vide information

case from prison

id identity. How

20 allegedly wit-

1 defendant's ex

d a tenuous chain

bly probable that

iad the letters not

cial, where, even

jJefendant s prior

rong curcumstan

mes or Miscon-

Prove Facts Ma-

mor criminal acts

relevant to prove

reparation, plan,

idem, other than

actual relevance,

y in dispute, and

nder Evid. Code,

rove the disputed

he manifest pre)

tons— Ambiguity

‘der and other of-

a statement made

ing defendant be

ening defendant's

yuld have his fun,

he deputy's reply

i: “Yeah, and I'll

et el RRR CPA

PEOPLE v. HAMILTON 411

41 Cal.34 408, 221 Cal. Rpw 902, 710 P.2d 981 [Dec 1985)

kill a Jot more too, and you may be first on my list." The trial court

properly determined that there was no interrogation of defendant by

the deputy and also properly rejected defendant's asseruon that the

statement was too ambiguous to constitute an admission. Although de

fendant did not mention any specific victims, he did admit to having

(Ja-7e) Criminal Law § 392—Admissibility Documentary Evidence—

Letters Written by Defendant Containing Threats to Witnesses and

Others.—On appeal of a convicuon of first degree murder, defendant! s

contention that the trial court erred in admitting in evidence a letter

written by him, in which he discussed the offer of another individual

to “take out” his defense attorney, the prosecutor, and others if he

lost the case, was without merit. In light of defendant's knowledge that

authorities would copy and read his letter, defendant's mention of

death threats, despite his stated reluctance to agree to them, consututed

ap attempt to intimidate the persons at whom the threats were directed

Moreover, defendant's contenuon that the trial court should have ex-

cluded the letter as more prejudicial than probative under Evid. Code

§ 352, even though he never raised the claim at trial, was without

merit. Defendant presented no perunent authority to support his asser

tion that the trial court had a sua sponte duty to consider exclusion

under § 352

(Sa-8e) Criminal Law § 400— Admissibility —Demonstrative Evidence—

Weapons and Instruments of Crime—Evidence Indicating Con-

sciousness of Guilt.—In a prosecuuon for first degree murder and

in evidence a pruning type s#~, ® butcher knife, and two shanks 0!

twine that defendant purchased after the murder of the vicum The

trial court correctly determined that the probative value of the evidence

was sufficient to warrant its admission, despite its potenual prejudice

in that the victim, whose ankles were bound, and whose wrists had

been tied together, was decapitated and ber hands cut off These unvu-

sual factors also appeared to be closely related to the fact that defend:

ant had threatened to kill his girlfriend to whom he had made incrim-

inating statements, and who appeared to him to be # serious threat to

his liberty as a witness

(9a-9e) Criminal Law $ SS—Rights of Accused—Fair Trial—Confron-

tation by W itnesses— Unavailable Witness—Diligence in Locating

Witness.—In a prosecution for first degree murder and other offenses

412 PEor._e v. HAMILTON

41 Cal.36 408, 221 Cal. Rper. 902, 710 P.2¢ 981 [Dec 1985

any error by the trial court in admitting the preliminary hearing test:

mony of a prosecution witness who had been cooperative but who had

unexpectedly disappeared two weeks before trial, was clearly harmiess

beyond a reasonable doubt The witness’ testimony concerned the fact

that defendant, who was using one of the victim's credit cards, ran out

of the store at which the witness was employed before approval for a

purchase could be given. The witness notified the police, and defendant

was eventually arrested. The trial court found the prosecution had ex

ercised due diligence in attempting to secure attendance of the witness,

even though it had never used the Uniform Act to Secure Attendance

of Witnesses. Since the witness could not be located after his disap

pearance, it would have been pointiess to have used the uniform act

Moreover, the witness’ preliminary hearing tesumony was peripheral

and could not have affected the verdict

(10a-10d) Homicide § 110—Appeal—Harmiess and Reversible Error—

Instructions—Felony Murder—Special Circumstances—Necessity

of Intent.—In a prosecution for first degree murder and other offenses

the trial court committed reversible error in failing to instruct the jur)

that in order to find true the special circumstances that the murder was

committed while defendant was engaged in or was an accomplice in

the commission of robbery, burglary, and kidnapping. it must find an

intent to kill. The only theory on which the jury was instructed vis-a-

vis the murder was felony murder, which does not require & finding of

intent to kill, and the evidence did not establish intent to kil] as a matter

of law, where the coroner was unable to determine the cause of death

or whether the victim's head and hands were cut off before or after

death, where the one stab wound that was inflicued before death was

nonfatal, and where it was possible that the victim might have been

killed accidentally, with defendant deciding afterwards to mutilate the

body in an attempt to prevent its identification

[See Cal.Jur.3d (Rev), Criminal Law, § 3343; AmJur.2¢, Ho

micide, § 499.)

(lla-lic) Homicide § 110—Appeal—Harmiess and Reversible Error—

instrections—Failure to Instruct on Necessity for Intent to Kill in

Feiony-murder Special Circumstances.—In a capital case involving

felony-murder special circumstances, the trial court's error in instruct

ing the jury $0 as to entirely remove the issue of untent from is con

sideration is reversible per se, unless the erroneous mstruction was

given in connection with an offense for which the defendant was ac-

quitted, unless the defendant conceded the issue of intent, unless the

factual] quesuon posed by the instruction was necessarily resolved ad

———— el

& v. HAMILTON

498) [Dec 1985

y hearing test

ve but who had

learly harmiess

ywcerned the fact

t cards, ran out

approva! for a

, and defendant

ecution had ex

of the witness,

ure Attendance

after his disap

he uniform act

was peripheral

rsible Error—

wes— Necessity

| other offenses

nstruct the jury

the murder was

1 accomplice in

it must find an

nstructed vis-a

sire a finding of

kill as @ matter

: cause of death

before or after

*fore death was

ught have been

to mutilate the

m.JjJur.2d, Ho-

ersible Error—

ntent to Kill in

| case involving

rror im mstruct

ot from its con-

instruction was

fendant was ac

went, unless the

ily resolved ad

PEorLe v. HAMILTON 413

41 Cal. 3d 408, 22) Cal. Rper. 902, 710 P.26 981 (Dec. 1985)

versely to the defendant u der other, properly given instructions, OF

unless the evidence establishes intent to kill as a matter of law and

shows no evidence to the contrary that is worthy of consideration

COUNSEL

Barry L. Morris, under appomtment by the Supreme Court for Defendant

and Appellant

John K. Van de Kamp, Attorney General, Jay M. Bloom, John W Carney

and Pat Zaharopoulos, Deputy Attorneys General, for Plainuff and

Respondent

OptInion

KAUS, J.*—Defendant Bernard Lee Hamilton was convicted of first degree

murder, burglary, robbery and kadnapping (Pen. Code, §§ 187, 459, 21!

207).' Special circumstance allegauons that the murder was commutted

while defendant was engaged in or was an accomplice in the commussion of

robbery (§ 190.2, subd. (a)(17)()), burglary (§ 190.2, subd (aX 17 vu))

and kidnapping (§ 190.2, subd (a)(17)ii))—all under the 1978 death pen

alty law—were found to be true. The jury fixed the punishment at death

The appea) is automatic (Cal. Const., art. V1, § 11; § 1239, subd. (d)

For reasons hereafter stated, we affirm the judgment of guilt, but set aside

the special circumstance findings and reverse the penalty judgment

I. Facts

1. Prosecution Case

On May 31, 1979, about | p.m _ the body of Eleanore Frances Buchanan

was discovered in the grass near 8 cul-de-sac off Pine Valley Road, near

San Diego. Harry Piper nouced it while walking back to his car from target

shooting. The body had no head or hands and was clothed only in a bra

anderpants and socks

*Retired Associate Justice of the Supreme Court situng under assignment by the Chair

person of the Judicial Counc

‘Except as otherwise indicated all statutory references are to the Penal Code

414 Psorue v. HAMILTON

4) Cal. 34 408: 221 Cal. Roper. 902, 710 P24 981 (Dec. 1985)

The body appeared to be in full mgor morus when a deputy sheriff arrived

at the scene between 1:30 and 2 p.m. Two strings of whute cord were ued

around the ankles. and there were dark blue fibers sucking to some biood

on the body. There were marks on the wrists indicating that they had been

ued together A search of the area revealed no clothing or anything else tha‘

could be associated with the victim

Luibel, who the autopsy, was unable to determine the

Fen aed ye ~ gp athe By (The bead and hands

have never been found ) He could, however, rule out natural causes. There

were three long superficial incisions on the abdomen that appeared to have

been inflicted after death There was a horizontal stab wound on the abdo-

men that had probably been inflicted before death. but it did mot penetrate

the stomach or imtestines. The right hand appeared to have been sawed off

and the left one cut off with a knife. The head was probably removed by

using both a knife and saw. Dr Luibe! could not say whether the vicum

was alive or dead when ber head was cut off. The small amount of hemor

rhage at the wrists suggested that the victim was probably dead when her

hands were cut off. The body was still in full rigor mortis at 4 p.m. on May

31. 1979. when Dr. Luibe! examined it. Death would have occurred about

16 hours before then—about midmght the might before

Terry Buchanan, the vicum's husband, testified that his wife had given

birth to a baby boy three weeks before her death and that she was sul

nursing him on May 30, 1979. That day Mrs Buchanan left the house about

6:30 p.m to go to # math class at Mesa College from 7 to 10 p.m che wes

wearing tan levis, a beige and brown T-shirt, and was carrying # brown

sumulated leather purse Mrs. Buchanan drove the famuly 's only vehicle—a

new blue van. There was very little gas im the tank because Buchanan

pianned to have the tank replaced the next day Since Buchanan used the

van during the day for his dental supply sales work, the van contained dental

equipment and supples Buchanan said his wife was very security comscious

and customarily locked the van He also said that everything im the van was

un good condiuon when she left

Mrs. Buchanan was last seen alive walking toward the pevking lot from

her math class about 9:30 pm Fellow students had given ber copies of

class notes for the classes she had missed b-cause of the burth of her baby

Mrs. Buchanan had left class « litte early because an optonal quiz was

given at 9:30 p.m

At 1:52 a.m. (California time) on May 31, 1979, detendan: called his

girlfriend, Donna Hatch, im Terrell, Texas from his parents home un San

"LE v. HAMILTON

2d 981 [Dec. 1985}

sty sheriff arrived

te cord were tied

ig to some blood

iat they had been

anything else that

to determine the

head and hands

ral causes. There

appeared to have

and on the abdo-

did not penetrate

: been sawed off

ibly removed by

sether the victim

nount of hemor-

/ dead when her

t4 p.m. on May

* occurred about

wife had given

iat she was stil]

the house about

10 p.m. She was

arrying a brown

only vehicle—a

cause Buchanan

chanan used the

contained denta!

curity conscious

g in the van was

sarking lot from

n her copies of

rth of her baby

uuonal quiz was

odant called his

ts’ home in San

PEOPLE v. HAMILTON 415

41 Cal.3d 408; 221 Cal. Rper. 902, 710 P.24 981 [Dec. 1985)

Diego. He told Donna that be had a van and was planning to leave for Texas

as soon as the gas statiqns opened in the morning.

There was a gasoline shortage at the time, and gas stations were only

open for limited hours. Between 4:45 a.m. and 10:15 a.m. on May 31,

1979, defendant used Terry and Eleanore Buchanan's Visa card to buy gas

in E) Cajon, California. The card was used two more times that day to buy

gas for the van—once in E] Centro, California at a station that was open

between 6 a.m. and 10 a.m., and once in Tucson, Arizona

When defendant arrived at Donna Hatch's home in Terrell, Texas on the

evening of June 1, 1979, the van was dirty, had a broken arm on the driver's

chair, a broken mirror, and a broken wing window on the passenger side

Defendant took Donna with him on errands in the van on June 1, 2 and 3,

1979. Donna saw some credit cards in the name of Terry and Eleanore

Buchanan in the compartment between the seats. Defendant used the credit

cards to buy gas and food while Donna was with him.

On June 3, while Donna was in the van withdefendant and her daughter,

they saw a highway patrolman. When Donna turned back to talk to her

daughter, defendant told her not to make any sudden moves because they

could get shot. Later, defendant stopped at a pay phone to call his brother

and his friend Clifford. Donna heard defendant tell his brother he had flown

to Texas. Clifford testified that when defendant called him, he was watching

a report on TV that the body of a white woman with her head and hands

cut off had been found; he told defendant about it. Defendant seemed ner-

vous when he returned from talking to Clifford. He told Donna that he

thought he had killed a man, but he did not want to tell her any details

because she might not want to have anything to do with him if he told her

Defendant said be would let the van sit a while to see if anybody paid

attention to it. He also said he needed some Texas license plates. He asked

Donna to go wich him to a car lot, but she refused.

Donna broke up with defendant the next day. Defendant said that if Donn

were upset about the fact that he had lied about his ex-wife being dead. he

would kill his ex-wife. On June 6, defendant called Donna to discuss bring-

ing her back to California to testify for him in a pending case. At one point.

a friend of Donna's got on the phone. Defendant told Donna, “I'm going

to kil) you and your friend, too. And you won't know when I'l! be around

because I don't have to be driving this van, I can be in another vehicic.~

Donna never saw or talked to defendant after thai phone call

Defendant continued using the Buchanans’ credit cards to buy gas. food

and other items. lt was stipulated that on June 6 defendant charged a saw.

416 Psorie v. HAMILTON

41 Cal.34 408; 221 Cal Rpt. 902, 710 P.24 981 [Dec 1985)

screwdriver and set of wrenches at a local store, and on June 7, he bought

s butcher knife and two shanks of twine st # variety Sore.

While driving the van in Oklahoma on June 8, 1979, defendant was

stopped by a deputy sheriff. The deputy ran a check of the van’s VIN sum-

ber and learned that it belonged to the homicide victim. Defendant was

arrested and taken to jail. On the way to the jail he passed « poster offering

reward for David L. Wall, alias “Spider.”

On June 9, 1979, San Diego sheriff’s deputies interviewed defendant in

Oklahoma. They began by introducing themselves, saying that they had

come to talk to defendant about the van. Defendant interrupted them, stat-

ing: “Yeah, the guy told me yesterday, one that pulled the gun on me, that

it had been involved in a homicide, and uh... -” Defendant was then

advised of his Miranda rights, which he waived. Defendant told the deputies

he had left San Diego in the van with Spider and Fran, & white woman who

had left her husband for Spider. Spider's real name was Calvin Spencer.

Fran and Spider were presently in Shreveport, Louisiana. They had given

defendant the van and credit cards when he had said he did not want to stay

in Louisiana. Defendant was shown & picture of Eleanore Buchanan with

her baby. He said it looked like Fran, but Fran was @ little skinner 2 De-

fendant said “the only ume I seen her” Fran was wearing light colored

jeans and carrying a beige nonleather purse.

Enroute to San Diego, defendant was disturbed about his arrest for mur-

der and kept saying it was not going to stick because all the police had was

a body they could not identify and a runaway wife.’

Shortly after defendant's preliminary hearing, Terry Buchanan received

s letter with defendant's county jail return address It said, “You are prob-

ably full of grief when you should be highly pissed-off s because Fran

ay ot dead but had left with Spider and was smoking Sherman Sucks.

Buchanan turned the letter over to the district attorney's office.

Sveven Thomas, an inmate at the San Diego County jail, testified that 0

January 24, 1980. he had a conversation with defendant about his case. He

asked defendant, ““Who are you trying to convince, Hamilton, me or your-

self?” Defendant replied, “Well, I did it but they"ll never prove it. Thom-

weported the conversation to the guard. Thomas had been convicted of

an was Eicanore Buchanan's aickname. lt was on the school papers she had been

carrying and on an unmailed birth ansouscement thet had been in ber

*The body was, in fact, quickly idestified by « mumber of disuscuve

included moles, toenail polish, scars, recent ,

LE v. HAMILTON

24 981 [Dec. 1985)

———

ane 7, he bought

. defendant was

van'’s VIN num-

Defendant was

a poster offering

wed defendant in

ag that they had

upted them, stat-

: gun on me, that

endant was then

told the deputies

shite woman who

Calvin Spencer

They had given

i not want to stay

e Buchanan with

Je skinnier.? De-

ing light colored

is arrest for mur-

ve police had was

uchanan received

. “You are prob-

.”” because Fran

Sherman Sticks.

iffice

1, testified that on

bout his case. He

Jton, me or your-

prove it."’ Thom-

xeen convicted of

papers she had been

purse

ctive features, which

ing bra

PEOPLE v. HAMILTON 417

41 Cal.3d 408; 221 Cal.Rptr. 902, 710 P.24 981 [Dec. 1985)

murder, robbery, forgery, burglary and escape Thomas testified he was in

the federal witness protection program against organized crime, but had not

received any money from the United States with respect to that program.

While transporting defendant between the jail and courtroom on August

21, 1979, Deputy Sheriff Parsons was tightening defendant's secunty

chains. Defendant said, “All right, you have your fun, I'll have mine lat-

er.” Parsons responded, “I thought you already had your fun." Defendant

replied, ““Yeah, and I'll kill a lot more, too, and you may be first on my

list.”

Brandon Armstrong, a criminalist, testified that the blue fibers that had

been on the victim’s body could easily have come from the carpet in the

victim's van. Blood on the carpet in the van matched the type and charac-

teristics of the victim. Several hairs found in the carpet stains could have

been hers. Armstrong also examined blood found on defendant's shoe and

concluded that it had been smeared on when wet. The blood on defendant's

shoe was type O—the victim's type.‘ Defendant's type was A.

A questioned documents expert testified that defendant was the person

who had signed Terry Buchanan's name to the credit card invoices.

2. Defense Case

Defendant's mother testified that he was at her house between 8 and 9

p.m. on May 30, 1979. She said that although she testified at the preliminary

hearing that she did not remember seeing defendant on the evening of May

30. 1979, she later spoke to defendant who refreshed her recollection by

reminding her of some things that had happened that evening °

Mary Brewer, a relative of defendant's who lived in Oklahoma City tes-

tified that defendant had visited her in the early part of June 1979. He gave

her a ride in the van, and she did not remember secing any blood in it

Defendant testified that he had never seen the victim alive or dead. He

said he went to his sister-in-law’s house after he left his parent's house

about 9 p.m. on May 30, 1979. He saw the Buchanans’ van parked on a

street between 12:45 and 1 a.m. on May 31, 1979, while walking home

“armstrong testified on rebuttal that the blood on defendant's shoe could not have come

Irom rubbing against the blood on the van's carpet

‘Defendant had written two letters to Donna Hatch after her preliminary hearing tesumony

aticmpting to refresh her recollection as to events that involved her

Peor.e v. HAMILTON

41 Cal.36 408; 221 Cal. Rper. 902, 710 P.24 981 [Dec. 1985)

from a 7-Eleven store after talking to Butch Mclntyre.* The keys were in

the ignition, the wing window was broken, and a purse was on the passenger

seat. Defendant drove the van home, called Donna Hatch, put his clothes

in it and left for Texas shortly before sunrise. Defendant said he broke the

armrest on the driver's seat when he was moving from the passenger scat

to the driver's seat. (The seats were swivel chairs with armrests.)

Defendant explained that he had told the officers in Oklahoma that he had

driven across the country with Spider and Fran because he did not want to

get stuck with an auto theft charge.

Defendant denied having threatened to kil] Donna Hatch. He said he

bought the saw and other items on June 6 before he spoke to Donna Hatch

He planned to use them to burglarize a store in Terrell. Defendant said he

was attempting to distract Donna when he told her he thought he had killed

someone; she was angry at him because she had just found out he had lied

about his ex-wife being dead.

David Faulkner, an entomologist, testified about an experiment he had

conducted in an attempt to determine when the victim's body had been left

at the cul-de-sac. Faulkner took a rabbit, with its head and forepaws sev-

ered, and at midnight put it where the victim had been found. The purpose

was to determine the amount of insect activity that would occur. Faulkner

testified that within a few hours of sunrise there were a lot of flies around

the rabbit. Based on this experiment and his knowledge of the temperature

on the morning of May 31, 1979, Faulkner concluded that the earliest the

body would have been put there would have been about 9 a.m. Faulkner

admitted, however, that there is a great deal of variation in the degree to

which insects are attracted to different human bodies.

Parker Bell, a criminalist testified that the blood on defendant's shoe was

& smear, as opposed to a droplet or splatter. He thought the blood could

have come from the carpet, but he acknowledged that there were no bluc

fibers in the blood. (The blue carpet shed badly.) On cross-examination.

however, Bell admitted it was possible that the blood could have been

smeared on defendant s shoe by having bumped one of the victim's bloody

stumps.

Dr. Ali Hameli, Chief Medical Examiner of the State of Delaware. tes-

tified that in his opinion the victim died between 9:30 and 12 p.m. on May

30. Dr. Hameli also thought that rigor mortis was present when the body

“Mcintyre westified he saw defendant after watching the NBA game on TV There had

however, been oo game on May 30. There had been one on May 29, 1979

OPLE v. HAMILTON

P.2d 981 (Dec. 1985)

The keys were in

as on the passenger

ch, put his clothes

said he broke the

the passenger seat

rmrests.)

ahoma that he had

he did not want to

atch. He said he

> to Donna Hatch

Defendant said he

ught he had killed

1d out he had lied

xperiment he had

sody had been lefi

ind forepaws sev-

und. The purpose

i occur. Faulkner

ot of flies around

if the temperature

at the earliest the

9 a.m. Faulkner

1 in the degree to

¢ndant’s shoe was

the blood could

ere were no blue

"0SS-€xamination,

could have been

e¢ victim's bloody

of Delaware, tes-

12 p.m. on May

it when the body

on TV. There had,

979

419

PEOPLE v. HAMILTON

41 Cal.3d 408; 221 Cal. Rptr. 902, 710 P.2d 981 (Dec. 1985)

was placed at the cul-de-sac and that the body could have been put there no

earlier than 4 a.m. on May 31

Allen Biggs testified that he had been at the cul-de-sac about 10 a.m -

May 31, 1979. He had seen Mr. Piper's car but no body Deputy Sheriff

Crawford testified that tire tracks at the scene in the cul-de-sac did not match

the tire tracks of the victim's van.’

0. Guitt PHASE

1. Faretta Motions

(1a), (2a) Defendant contends that he was improperly denied his con-

stitutional right to represent himself on two occasions (1b) The first

motion was made during a section 1538.5/995 hearing, which began on

March 24, 1980, and ended on May 21, 1980. At that time trial was set for

June 23, 1980. On April 25, defendant's appointed counsel, Thomas Ryan

and Vivian Camberg, requested a continuance of the hearing order to

appear before the presiding judge and ask to be relieved The ——

pressed some frustration about the delays caused by defendant's difficulues

with counsel and noted that defendant had just appeared before the presiding

judge and been denied his request to have counsel relieved. The court —,

theless granted the continuance, and the presiding judge heard and den)

counsel's motion. Defendant then renewed his motion to relieve counsel,

which was also denied

On May 1, defendant filed a motion to relieve counsel and to proceed in

pro. per. At the hearing on the motion on May 9, defendant decided to

withdraw his pro. per. motion and instead requested that he be given co-

counse! status. The request was granted. On May 20, however, at the ume

chat drag

had testified for the prosecuuon and had idenufied photos showed

cate aan Gn canteen chats On tal bad torn Gund The drag marks appeared to

start on the pavement

420 Peorie v. HAMILTON

41 Cal.36 408; 221 Cal.Rptr. 902, 710 P.24 981 [Dec. 1985)

finding any other lawyer to come in at this stage of the proceedings. The

prosecutor objected to any further delays and urged the court to proceed,

noting that be had witnesses scheduled to appear

No error appears in the trial court's denial of defendant's motion to pro-

ceed in pro. per. In People v. Windham (1977) 19 Cal.3d 121 [137

Cal.Rptr. 8, 137 P.2d 1187}, we held that unless such a motion is made

within a reasonable ume before commencement of trial, it does not invoke

the constitutionally mandated unconditional] nght of self-representation, but

puts the mafter within the court's discretion. The motion here was untimely

within the context of this protracted section 1538.5/995 hearing. Accord-

ing!y, the court properly exercised its discretion under Windham in denying

the motion on the ground that defendant had not stated a valid reason for

relieving counse] and was grasping at anything to delay the proceedings

The fact that the court may also have referred to defendant's lack of legal

ability—an urelevant considerauon under Faretia—does not detract from

the validity of its other reasons for denying the monon

(2b) On October 14, 1980, defendant filed another written motion to

proceed in pro. per. On October 20, however, he requested that his motion

be taken off calendar. stating that he wanted to keep trying to get along with

counse! and that he did not think that pro. per. status was the answer to his

probiems.* Defendant revived his mouion on November 3, alleging inade-

quate representation by counse!. At that time, however, the jury had been

selected and counse! were ready to give their opening statements. The court

held an ex parte in camera session to hear and discuss defendant's com-

plaints about counsel: Counse!'s failure to keep him informed of discovery ,

counsel's decision to have a de novo section 1538.5 hearing, lack of com-

mumicauon, and madequate investigation. Counsel responded with appar-

ently sausfactory explanations on al) counts

After more than one and a half hours of discussion about defendant's

Gifficulues with counsel, the court had the prosecutor join the proceedings

and indicated that i, was going to deny the mouon to relieve counse!. The

court stated that the reasons for defendant's request seemed groundiess |

felt that defendant would be unable to adequately represent himself. he

would have difficulty in communicating due to his soft voice, and he did

not have sufficient objectivity to cope with examining witnesses and address-

*The problems he referred to were his continual dissansfacncn with counse!'s strateg)c

decisions, asserted difficulty im communicating with counse!, and counse!'s alleged failure

to keep him informed of all discovery Defendant stated these complaints oe a sumber of

occasions. and the record uw replete with discussions between the court, defendant and his

EEE SS ees: eae:

OPLE v. HAMILTON

P.2d 981 (Dec. 1985)

proceedings. The

court to proceed,

it's motion to pro-

Cal.3d 121 [137

&@ motion is made

it does not invoke

representauion, but

here was untimely

hearing. Accord-

indham in denying

a valid reason for

the proceedings

ant’s lack of legal

not detract from

wnitten motion to

ed that his motion

to get along with

the answer to his

3, alleging inade-

the jury had been

‘ments. The cour:

defendant's com-

ned of discovery

ing, lack of com-

oded with appar-

ibout defendant's

1 the proceedings

eve counsel. The

ed groundless. It

sent himself; he

oice, and he did

sses and address-

> counsel's strategic

wel's alleged failure

mts On & number of

t, defendant and his

§ Counse! on strateg

Peorie v. HAMILTON 421

41 Cal.34 408, 221 Cal Rpw. 902, 710 P.24 981 [Dec. 1985)

ing the court. The court noted that defendant was receiving high-quality

representation and had a proc.vity to substitute counsel It further noted

that it had already tak... four weeks to select the jury. Defendant reminded

the court that he was not asking for a continuance

This motion, too, was properly denied under Windham. Since the jury

had already been selected at the time defendant revived his mouon, i was

not umely for purposes of having an absolute nght of self-representation

under Farenta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.C:

2525). (See People v. Harris (1977) 73 Cal. App.3d 76 [140 Cal. Rptr. 697)

{motion made after jury selection underway); People v. Hail (1978) 87

Cal.App.3d 125 [150 Cal.Rptr. 628) (motion made right before jury selec-

tion); People v. Hill (1983) 148 Cal.App.3d 744 [196 Cal Rpt. 382) [mo-

tion made at beginning of trial before jury selection}.) The fact that defend-

ant did not ask for a continuance is not determinative. (See People v. Hill

supra, 148 Cal. App.3d 744.) Windham lists a number of factors for the

court to consider in excrcising its discretion: “the quality of counsel's rep-

resentation of the defendant, the defendant's pnor proclivity to subsutute

counsel, the reasons for the request, the length and stage of the proceedings

and the disruption or delay which might reasonably be expected to follow

the granting of such a motion.” (19 Cal.3d at p. 128.) The court considered

those factors and acted within its discrevon in denying defendant's request

Again, the court's reference to umpermussible factors—such as defendant s

lack of legal knowledge and his soft voice—does not invalidate the res: of

its reasoning

2. Shackling

(3a) On September 18, 1980, before the trial started, defendant appeared

with his counse! at an im camera hearing to discuss whether be should be

ockled at trial. Counsel reported to the court that defendant had attacked

his assistant 10 days earlier while she was meeting with defendant in a ja)!

hoiding cell. Then, on the night before the hearing, defendant bad punched

counse! in the mouth while he was visiting defendant in jai). Coumse! stated

he had no doubts about defendant's menta) competency and that be though!

defendant was mercly “acting out™ as a result of his frustration. Counse!.

however, believed that defendant would continue such behavior and feared

its effect on the jury if such outbursts occurred at trial. He therefore re-

quested that defendant be shackied during tna) in order to avoid the poss:

bility of the extreme prejudice that would result from the anticipated ou!

bursts Defendant objected to shackling and reminded the court that he hac

never caused a problem in his previous court appearances. Although (he

court did not rule on the issue of shackling at that ume, defendant appeared

Peorie v. HAMILTON

41 Cal. 36 408, 221 Cal Row. 902, 710 P24 981 (Dec. 1985)

at later pretrial hearings in shackles, apparently as « result of a security

decision made by the sheriff's department

On September 24, stil] before trial, defendant and counse! appeared at

another in camera hearing At this hearing, which was basically held to

consider defendant's mouon to proceed in pro. per., defendant requested

removal of the shackles (particularly those on his arms) to enable him to

handle his papers and to take notes. Counsel, however, requested that the

felt m was in defendant's best interests to be shackled from we beginning

of tal rather than take the chance of the extreme prejudice resulting from

an outburst at tal and the midtral! appearance of shackles. Defendant again

obyected, citing the discomfort and inconvenience of shackles and the fact

that he had never caused a problem in his many other court appearances in

this case

On October 2, before jury selection was to begin, another in camera

hearing was held at defense counse!'s request. Counsel stated that he had

reconsidered the matter after discussions with defendant and with other at

torneys. He now felt that defendant should be allowed to start trial without

shackles Counse! said he believed that defendant intended to behave at tna!

and noted that defendant had not disrupted any proceedings in the past

After hearing from defendant and checking with jail authoriues, the cour

concluded that defendant should be unshackled but that he would stil] have

to wear a knee brace which would not be visible to the jury. Jury selection

began later that day

Al the nex! court session on October 6, defendant complained about the

discomfort of the knee brace. The court took the matter under submussion

and concluded later that day that defendant should start tal without any

restraints

On October 8, however, while jury selection was still in progress, the

court held another in camera hearing on the question of shackling A sher-

iff's deputy was sworn as a witness and related an incident that had hap

pened al the jai) that morning: Defendant was reminded at 6, 7:20 and 7:40

a.m. that he was to go to court and should get ready. Defendant was stil!

in bed when the deputies arrived to take him to court. When they removed

hus blanket, defendant jumped up and took a fighting stance He was sub

dued, but he continued to struggie and be uncooperative as he was being

moved from jail. Ultimately the deputies had to drag him part way. De

fendam called the deputies cowards and asked them to remove the chains

and fight him “one on one.” Another deputy testified that while at the

holding cell, defendant again became abusive and proceeded to remove al!

moe eee eee;

PLe v. HAMILTON

24 98) (Dec. 1985)

walt of @ security

nse] appeared at

oasically held to

endant requested

to enable him to

equested that the

} position that he

mm the beginning

2¢ resulung from

Defendant again

kes and the fact

‘l appearances in

other im camera

ated that he had

xd with other at

tart trial without

ngs im the pas

wities, the court

would stil] have

¥. Jury selection

lained about the

nder sudrmussiot

1a) without any

nM progress, the

sckling. A sher

ut that had hap

», 7:20 and 7:40

endant was stil)

n they removed

¢. He was sub

S he was being

part way. De

aove the chains

at while at the

d to remove al

Peorie v. HAMILTON 423

41 Cal.36 408; 221 Cal. Rpw. 902, 710 P24 981 (Dec. 1985)

of his clothes. He came to court wrapped im « blanket. Defense counse!

cross-examined the deputies, and defendant gave his version of the incident

After argument by defense counse! against shackling and by the prose

cutor for shackling. the court concluded that defendant should be shackiec

lt cited the pattern of increased agutanon by defendant despue as efforts tc

accommodate defendant's problems with jail routine. “Mr Hamulton has

obtained the privileges over and above those privileges granted to other

prisoners in the jail. He has a private cell, private telephone, he is abic t&

work on his case, being co-counse! up the case He has chosen wo defy orders

that have been made by officers in the jail. He has refused to Gress to come

to court. He is coming imto court with jail gar> and apparently 4 Dianke:

thrown over his body and one shoe on and one shue off. apparently He has

defied all authority and I think it is just e matter of time before he would

begin to defy all authority here in the courtroom 1 am gong to take the

steps that are necessary to make certain that doesn '| happen 1 am going to

require that he be in chains, his ankles and hands, for the tral. I regret the

necessity to do it. I regret that Mr. Hamilion brought this upon himse!f

Rut I find no alternative. I am not going to subyect anybody in ts court

room to any possible unjury or violent confromtauon This case 5 going

be tned in an orderly and a quiet and judicial manner

Defendant contends the court abused its discrevion in ordering hum to De

shackled during tnal because there was no showing of manifest seed In

People v. Duran (1976) 16 Cal.34 282 (127 Cal. Rper 618, 545 P.2¢ 1522

90 A.L.R.3d 1}, we held that the court had abused is discrevion in ordering

2 defendant shackled without a showing on the record of a manifesi neec

for such restraints: “There is no showing that defendant threatened to ¢s

cape or behaved violently before coming to court or while in court“ (/¢

ap. 293 ) We noted that « trial court must make the decision wo use physica!

restraints on # case-by-case basis and that such a determinanon. when mace

un accordance with the procedures specified (hearing outside jury $ presence

with court making due process determunabon regarding necessity for re

straints of record), “cannot be successfully challenged on review except on

a showing of « manifest abuse of discretion.” (Jd, at p 293. fm. 12.)

No abuse of discretion is shown here. The trial court followed the dictates

of Duran. it held a hearing, heard testimony by the deputies and by defend

ant. and made an on-the-record determination of the necessity for ordering

defendant shackled The fact that defendant had made sumerous earlier ap

pearances without disrupuon does not dispel the present threat that the cour

found based on defendant's current actions. Defendant's reliance of Peopie

v. Jackla (1978) 77 Cal.App.3d 878 [144 Cal Rpt. 23), is musplaced for

424 Peoriz v. HAMILTON

41 Cal.34 408; 221 Cal Row. 902, 710 P24 981 [Dec. 1985)

the decision there was not based on the judge's independent determination

of the need to shackle or on the defendant's conduct while in custody

Defendant's complaints about the court's earlier decision to shackle him

based on his counsel's request are no longer pertinent since counse! changed

his mind before tal and the court acceded to counsel's plea for remova! of

the shackles. Although fault might be found with counsel's reasoning in

requesting shackling in the first instance—that is, to saddle defendant with

the certainty of prejudice from appearing before the jury in shackles in order

to avoid the possibiliry of prejudice from an outburst at trial—the matter

became moot before trial ever commenced. Defendant's complaints about

the procedure employed im those earlier bearings on shackling are also

moot

3. Evidentiary Issues

a. Exhibits 9], 92, 93

(4a) Defendant contends the trial coun Prejudicially erred in admitung

three letters he wrote in 1973 while in prison (exhibits 91, 92, 93). Two of

the letters were written to a superior court judge asking him to reconsider

the prison sentence he had imposed, and offering, in return for such con

diuon, to provide informauon about cnmes commutted by others. The third

letter was to the district attorney's office pleading for release from prison

in exchange for providing information about recent crimes. Ip this letter

defendant listed a number of alleged crimes and purported perpetrators.

including his own brother °

The People sought to introduce these letters and evidence of a 1972 bur

*Exhibs 9! asked the judge to consider reducing defendani s sentence to county tume

Defendant | oe yt “robberies. burglaries

sasd be had been threatened because of m and was

Grugs os well as Greares.”

Pie v. HAMILTON

> 24 981 (Dec. 1985)

ent determination

¢ in custody

ym to shackle him

> counsel changed

ea for removal of

l's reasoning in

le defendant with

shackles in order

trial—the matter

complaints about

mackling are also

tred in admutung

92, 93). Two of

um to reconsider

imn for such con

others. The third

ease from prison

es. In this letter

ted perpetrators

ce of a 1972 bur

¢ People's theory

he was breaking

a running off—as

vbddernes. burglanes

ecouse of « and was

agaio menponed his

mated: “Sir, | want

wy involve mstances

arm to people. | also

department -

special probation in

| (robbery, burglary

esponsibie. This list

a em rt

Peorie v. HamiLTow 425

41 Cal.34 408; 221 Cal Row. 902, 710 P24 98! (Dec. 1985)

a norma) burglar would have done—was defendant's deathly fear of return

ing to prison. Defendant had been sent to prison in 1973 after two eyewit

nesses to the 1972 burglary had testified against him Defendant's letters

revealed that he was terrified of prison and indicated the lengths to which

he would go—turning in his own brother—to avoid prison

The defense objected, asserting that the letters actually showed only de-

fendant's criminal disposinon and m any event should be excluded under

Evidence Code section 352."* As to the 1972 burglary, the defense con-

tended that there were insufficient disuncove sumilarnnes between mt and the

present crime to warrant an inference that they were commutted by the same

person

The tral court ruled that the 1972 burglary would not be admitted because

it did not share sufficiently distinctive common marks with the current

crime. The three letters, however, were ruled admissible on the issue of

mouve and sdenuty The court suggested that counse! meet and (ry to agree

on excising pornons of the letters that may be wrelevant Counsel, however

were unable to agree on excising anything more than the names of the judges

and distnct attorney to whom the letters were addressed and the details of

the burglary convicuon Defense counsel wanted the details of defendant s

information about other crimes excised, but the court agreed with he pros

ecutor that these details were necessary to demonstrate the severity of de

pnson

(Sa) Evidence of a defendant's prior criminal acts is. of course, mac

missible under Evidence Code section 110! unless « 1s “‘reievant to prove

some fact (such as motve, opportunity, mtent. preparauon. pian know

edge, identity, or absence of mistake or accident) other than his disposition

to commit such acts.” (Evid. Code, § 1101, subd. (6).) The factual rele

vance, however, must pertain to some issue that is “actually in dispute.

and even then the court must exercise its discrevon under Evidence Code

section 352 and exclude the evidence if us relevancy w prove the disputec

fact is not of sufficient probative value to outweigh the manifest prejudice

of such evidence. (People v. Thompson (1980) 27 Cal. 3d 303, 314-32! [165

Cal. Rper. 289, 611 P.2d 883).)

“These usues were reused Guring 8 pretrial bearing h «= ect clear whether Ge Twi cour

was ewere that the only murder theory the Peopic would later assert was felony

The matter was not menvoned by erther sade at the hearing Defendant sow argues ha uace

trial court was aware of that fact a: the Game of ics pretrial ruling be any event. De cour +

Puoruz ». Hamiiron

41 Cal.36 408; 22) Cal Ree. 902. 710 P24 981 [Dec 1985)

(4b) Defendant challenges the admussib

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.