# Opposition Brief — Bernard Lee Hamilton v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0531%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1047 ## 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 ii 10 10 12 24 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 iv 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. 1 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 ry 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. 10 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. ll II 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.) 12 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 13 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.) 14 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 is 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. 16 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 17 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 ~ 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.) 19 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 21 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 24 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 At 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 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- 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 | i | ' 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 - 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 Ce 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 —_——~— if At « bearing on January 15, 198 |—@ve days before the penalty phase renewed bis mouon Again. the cour demed his re 6o— . \- bee ~~ ——_ _ i] * - 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 | 7 | (@) 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 (© CalM a p 34, & 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 1 Hit fli fi! Ht Tih itt ie Nps ut ily i i i ? 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 ra 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 * 3 3 ; i ; 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 1 * 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.” bj 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 te 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— 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) e 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 ¥ 3 »! 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. i aI ?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 = 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 le 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0531%3A4. Public record. Not legal advice.