Opposition Brief — William George Bonin v. California

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(s) JOSEPH F. SPANIOL, JR.

No. 88-7381 “ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

On Petition for Writ of Certiorari

to the Supreme Court of California

JOHN K. VAN DE KAMP, Attorney General

of the State of California

RICHARD B. IGLEHART,

Chief Assistant Attorney General

HARLEY D. MAYFIELD,

Senior Assistant Attorney General

JANELLE B. DAVIS,

Supervising Deputy Attorney General

STEVEN H. ZEIGEN,

Supervising Deputy Attorney General

110 West A Street, Suite 700

San Diego, CA 92101

Telephone: (619) 237-7679

Attorneys for Respondent

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QUESTIONS PRESENTED © TABLE OF CONTENTS

1. Was petitioner denied his right to effective Page

assistance of counsel due to a conflict of interest arising from

@ purported literary rights fee agreement and from the fact recep cot ancane :

counsel had previous contact with a witness for the prosecution? eee :

2. Did the prosecutor's argument to the jury during a ee : j

the penalty phase constitute prejudicial error within the meaning Te ee ee , 7

of the Booth v. Maryland (1987) 482 U.S. ___, 96 L.Ed.2d 440? ee et 7 )

SUMMARY OF RESPONDENT'S ARGUMENTS f

Petitioner, William George Bonin, is a prisoner 6

incarcerated under judgment of death at the California State , pattie Rg crt hn aaceeneen seaveuence

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

the State of California. 4“ Saubiundens 6¢ uatennen” 19

B. Discussion 21

II THE PROSECUTOR'S ARGUMENT DURING THE PENALTY .

PHASE WAS NOT VIOLATIVE OF BOOTH V. MARYLAND 25 ~

CONCLUSION 28

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Page Petitioner seeks review of an opinion of the California . ’

Cases , Supreme Court affirming his judgment of death. (People v. Bonin

Booth v. Maryland (1989) 47 Cal.3d 808.) ;

(1987) 482 U.S. 496 24-26 |

JURISDICTION

Brien v. United States -

(lst Cir. 1982) 695 F.2d 10 21, 23 This Court has jurisdiction pursuant to 28 U.S.C.

Cha v. California section 1257(3).

(1967) 386 U.S. 18 27

CONSTITUTION, STATUTES AND PROVISIONS INVOLVED

Cuyler v. Sullivan

(1980) 446 U.S. 335 24 United States Constitution, Sixth, Eighth and

Dukes v. Warden . Fourteenth Amendments.

(1972) 406 U.S. 250 24

STATEMENT OF THE CASE

Glasser v. United States

(1942) 315 U.S. 60 22, 23 In an information filed by the District Attorney's

Holloway v. Arkansas Office of Los Angeles County on January 2, 1981, appellant was

(1978) 435 U.S. 475 20, 22, 23

charged with multitudinous offenses and special allegations. (CT

People v. Bonin

(1989) 47 Cal.3d 808 20, 22, 23 1556-1596.)

Schmerber v. California In count I, appellant was charged with the murder of

(1965) 3864 U.S. 757 25

Donald Hyden in violation of Penal Code section 187. Two special

South Carolina v. Gathers

(June 12, 1989, 88-305) __—s U.S. 26 circumstances were alleged; namely, multiple murder pursuant to

Strickland v. Washington Penal Code section 190.2 subdivision (a)(3) and murder in the

(1984) 466 U.S. 668 21 :

course of a robbery in violation of section 211 of the Penal Code

United States v. Winkle

(10th Cir. 1983) 722 F.2d 605 22, 23 within the meaning of Penal Code section 190.2 subdivision

Wainwright v. Sykes (@)(17). (CT 1556-1557.)

(1976) 433 U.S. 72 25

In count II, appellant was charged with the crime of

Wood v. Georgia

(1981) 450 U.S. 261 20, 21 robbery in violation of section 211 of the Penal Code of Donald

Zant v. Stephens Hyden; it being further alleged that appellant with intent to

(1983) 462 U.S. 862 26

inflict such injury, inflicted great bodily injury upon Donald

Hyden within the meaning of Penal Code section 12022.7. (CT

1558.)

In count III, appellant was charged with the murder of

David Murillo in violation of section 187 of the Penal Code.

Special circumstances were alleged as to multiple murder pursuant

to Penal Code section 190.2 subdivision (a)(3) and to murder in

the course of a robbery in violation of section 211 of the Penal

Code within the meaning of Penal Code section 190.2 subdivision

(a)(17). (CT 1559-1560.)

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In count IV, appellant was charged with the crime of

robbery of David Murillo in violation of section 211 of the Penal

Code; it being further alleged that appellant with intent to

inflict such injury, inflicted great bodily injury upon David

Murillo within the meaning of Penal Code section 12022.7. (CT

1561.) ;

In count V, appellant was charged with the murder of

Robert Wirostek in violation of section 187 of the Penal Code. A

multiple murder special circumstance was alleged pursuant to

Penal Code section 190.2 subdivision (a)(3). (CT 1562-1563.)

In count VI, appellant was charged with the murder of

Darin Kendrick in violation of section 187 of the Penal Code.

Special circumstances were alleged as to multiple murder pursuant

to Penal Code section 190.2 subdivision (a)(3) and murder in the

course of a robbery in violation of section 211 of the Penal Code

within the meaning of Penal Code section 190.2 subdivision

(a)(17). (CT 1564-1565.)

In count VII, appellant was charged with the crime of

robbery of Darin Kendrick in violation of section 211 of the

Penal Code; it being further alleged that appellant with the

intent to inflict such injury, inflicted great bodily injury upon

Darin Kendrick within the meaning of Penal Code section 12022.7.

(CT 1566.)

In count VIII, appellant was charged with the crime of

murder of Sean King in violation of section 187 of the Penal

Code, there also being a special circumstance alleged of multiple

murder within the meaning of Penal Code section 190.2 subdivision

(a)(3). (CT 1567-1568.)

In count IX, appellant was charged with the murder of

“John Doe” in violation of section 187 of the Penal Code; there

also being a multiple murder special circumstance alleged

pursuant to section 190.2 subdivision (a)(3) of the Penal Code.

(CT 1569-1570.)

In count X, appellant was charged with the murder of

Markus Grabs in violation of section 187 of the Penal Code; it

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being further alleged special circumstances as to multiple murder

pursuant to section 190.2 subdivision (a)(3) of the Penal Code,

murder in the course of a robbery in violation of section 211 of

the Penal Code within the meaning of Penal Code section 190.2

subdivision (a)(17) and murder in the course of sodomy in

violation of section 286 subdivisions (b)(1) and (c) of the Penal

Code within the meaning of Penal Code sections 190.2 subdivision

(a)(17) and 190.2 subdivision (br). (CT 1571-1572.) In count

XI, appellant was charged with the crime of robbery of Markus

Grabs in violation of section 211 of the Penal Code; it being

further alleged that appellant with the intent to inflict such

injury, inflicted great bodily injury upon Markus Grabs within

the meaning of Penal Code section 12022.7. (CT 1573.)

In count XII, appellant was charged with the crime of

sodomy in violation of section 286 subdivisions (b)(1) and (c) of

the Penal Code upon Markus Grabs. (CT 1574.)

In count XIII, appellant was charged with the crime of

murder of Thomas Lungren in violation of section 187 of the Penal

Code. Special circumstances were alleged as to -wltiple murder

special circumstances pursuant to section 190.2 subdivision

(a)(3) of the Penal Code, as well as murder in the course of a

robbery in violation of Penal Code section 211 and in the course

of mayhem in violation of Penal Code section 203 within the

meaning of Penal Code section 190.2 subdivision (a)(17). (CT

1575-1576.)

In count XIV, appellant was charged with the crime of

robbery of Thomas Lungren in violation of section 211 of the

Penal Code; it being further alleged that appellant with the

intent to inflict such injury, inflicted great bodily injury upon

Thomas Lungren within the meaning of Penal Code section 12022.7.

(CT 1577.)

In count XV, appellant was charged with the crime of

mayhem upon Thomas Lungren in violation of section 203 of the

Penal Code, it being alleged that appellant with the intent to

inflict such injury, inflicted great bodily injury upon Thomas

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Lungren within the meaning of Penal Code section 12022.7. (CT

1578.)

In count XVI, appellamt was charged with the crime of

murder of Charles Miranda in violation of section 187 of the

Penal Code. Special circumstances were alleged as to multiple

murders pursuant to Penal Code section 190.2 subdivision (a) (3)

and murder while in the course of a robbery in violation of

section 211 of the Penal Code within the meaning of Penal Code

section 190.2 subdivision (a)(17). (CT 1579-1580.)

In count XVII, appellant was charged with the crime of

robbery upon Charles Miranda in violation of section 211 of the

Penal Code; it being further alleged that appellant with the

intent to inflict such injury, inflicted great bodily injury upon

Charles Miranda within the meaning of Penal Code section 12022.7.

(CT 1581.)

In count XVIII, appellant was charged with the crime of

murder of James Macabe in violation of section 187 of the Penal

Code. Special circumstances were alleged as to multiple murder

within the meaning of Penal Code section 190.2 subdivision (a) (3)

and murder in the course of a robbery in violation of section 211

of the Penal Code within the meaning of Penal Code section 190.2

subdivision (a)(17). (CT 1582-1583.)

In count XIX, appellant was charged with the crime of

robbery in violation of section 211 of the Penal Code upon James

Macabe; it being further alleged that appellant with the intent

to inflict such injury, inflicted great bodily injury upon James

Macabe within the meaning of Penal Code section 12022.7. (CT

1584.)

In count XX, appellant was charged with the crime of

murder of Ronald Gatlin in violation of section 187 of the Penal

Code; special circumstances being alleged as to multiple murder

pursuant to Penal Code section 190.2 subdivision (a)(3) and

murder in the course of a robbery in violation of section 211 of

the Penal Code within the meaning of Penal Code section 190.2

subdivision {(a)(17). (CT 1585-1586.)

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In count XXI, appellant was charged with the crime of

robbery upon Ronald Gatlin in violation of section 211 of the

Penal Code; it being further alleged that appellant with the

intent to inflict such injury, inflicted great bodily injury upon

Ronald Gatlin within the meaning of Penal Code section 12022.7.

(CT 1587.)

In count XXII, appellant was charged with the crime of

murder of Harry Todd Turner in violation of section 187 of the

Penal Code. Special circumstances were alleged as to multiple

murder pursuant to section 190.2 subdivision (a)(3) and as to

murder while engaged in the crime of robbery in violation of

section 211 of the Penal Code within the meaning of Penal Code

section 190.2 subdivision (a)(17). (CT 1588-1589.)

In count XXIII, appellant was charged with the crise of

robbery upon Harry Todd Turner in violation of section 211 of the

Penal Code; it being further alleged that appellant with intent

to inflict such injury, inflicted great bodily injury upon Harry

Todd Turner within the meaning of Penal Code section 12022.7.

(CT 1590.)

In count XXIV, appellant was charged with the murder of

Steven Wood in violation of section 187 of the Penal Code.

Special circumstances were also alleged as to multiple murder

pursuant to Penal Code section 190.2 subdivision (a)(3) and

murder while engaged in the crime of robbery in violation of

section 211 of the Penal Code within the meaning of Penal Code

section 190.2 subdivision (a)(17). (CT 1591-1592.)

; In count XXV, appellant was charged with the crime of

robbery of Steven Wood in violation of section 211 of the Penal

Code; it being further alleged that appellant with the intent to

inflict such injury, inflicted great bodily injury upon Steven

Wood within the meaning of Penal Code section 12022.7. (CT

1593.)

In count XXVI, appellant was charged with the crime of

murder of Steven Wells in violation of section 187 of the Penal

Code. Special circumstances were alleged as to multiple murder

pursuant to section 190.2 subdivision (a)(3) of the Penal Code

and as to murder while engaged in the crime of robbery in

violation of section 211 of the Penal Code within the meaning of

Penal Code section 190.2 subdivision (a)(17). (CT 1594-1595.)

In count XXVII, appellant was charged with the crime of

robbery of Steven Wells in violation of section 211 of the Penal

Code; it being further alleged that appellant with the intent to

inflict such injury, inflicted great bodily injury upon Steven

Wells within the meaning of Penal Code section 12022.7. (CT

1596.)

Appellant pleaded not guilty and denied the special

allegations. (CT 1599.) A motion pursuant to section 995 of the

Penal Code was granted as to counts V and IX only--those counts

dealing with the murders of Robert Wirostek and “John Doe.” (CT

1562, 1569, 1604.)

On July 29, 1981, a motion for change of venue was

denied. (CT 1610.)

Jury selection began October 19, 1981, (CT 1622), with

jury trial beginning on November 2, 1981.) (CT 1631.)

A motion pursuant to section 1538.5 of the Penal Code

and, in the alternative, to quash and traverse the search

warrant, was denied. The court also refused to suppress the

testimony of witnesses Munro and Miley. (CT 1632.)

A defense motion to dismiss tie great bodily injury

allegations pursuant to section 12022.7 of the Penal Code in

counts II, IV, VI, IX, XII, XV, XVII, XIX, XXI, XXIII and XXV of

the robbery counts was granted on December 18, 1981. Appellant’s

motion pursuant to Penal Code section 1118 was denied. (CT

1695.) A similar allegation was subsequently stricken from count

XIII. (CT 1699.)

Jury deliberations began December 28, 1981. (CT 1700.)

On January 6, 1982, jury verdicts were returned as follows: In

count I, appellant was found guilty of murder in the first

degree. As to the special circumstances, the jury found that the

murder of Thomas Lungren was not true; the murder of Markus Grabs

was true; that the murder of Sean King was not true; that the

murder of David Murillo was true; that the murder of Charles

Miranda was true; that the murder of James Macabe was true; that

the murder of Ronald Gatlin was true; that the murder of Harry

Todd Turner was true; that the murder of Steven Wood was true;

that the murder of Darin Kendrick was true; that the murder of

Steven Wells was true; and that the murder of Donald Hyden,

committed while engaged in the crime of robbery, was true. (CT

1975-1977.) The jury also found appellant guilty of robbery of

Donald Hyden in count II. (CT 1977.)

The jury found appellagt guilty of the murder of David

Murillo and found it to be of the first degree. The finding of

the special circumstances were the same as those of the Donald

Hyden murder except that they also found the murder of Donald

Hyden also to be true. (CT 1977-1979.) The murder of David

Murillo was found to have been committed while appellant was

engaged in the crime of robbery. (CT 1977-1979.) Additionally,

appellant was found guilty of the robbery of David Murillo in

count IV. (CT 1979.)

Appellant was found guilty of murder in the first

degree of Darin Kendrick. The finding of the multiple murder

circumstance was the same as the murder of Donald Hyden except,

of course, it included the murder of Donald Hyden. The special

circumstance alleging that appellant was engaged ir the crime of

robbery was found to have been true. (CT 1979-1981.) Appellant

was also found guilty of the robbery of Darin Kendrick in count

VI. (CT 1981.)

Appellant was found not guilty of the murder of Sean

King. (CT 1982.)

Appellant was found guilty of the first degree murder

of Markus Grabs. The special circumstance relative to multiple

murder was the same as that of Donald Hyden except, of course,

the murder of Donald Hyden was included as a special

circumstance. (CT 1982-1983.) The special circumstance was also

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found to be true that appellant killed Marcus Grabs while engaged

in the crime of robbery. (CT 1983.)

“The sodomy special circumstance was found to be untrue.

(CT 1984.) Appellant was found to be guilty of robbery of Markus

Grabe in count IX, but not guilty of sodomy of Markus Grabs in

count X. (CT 1984.)

Appellant was found not guilty of the murder of Thomas

Lungren in count XI, not guilty of the robbery of Thomas Lungren

in count XII and not guilty of the mayhem of Thomas Lungren in

count XIII. (CT 1984-1985.)

Appellant was found guilty of the first degree murder

of Charles Miranda and the special circumstances were found to be

true relative to the multiple murder as to Donald Hyden except,

of course, for the special circumstance relative to the murder of

Donald Hyden. (CT 1985-1986.) The special circumstance that the

murder was committed while appellant was engaged in the crime of

robbery was found to be true. (CT 1987.) Appellant was also

found guilty of the robbery of Charles Miranda in count XV. (CT

1987.)

Appellant was found guilty of the first degree murder

of James Macabe and the special circumstances relative to

multiple murder were found to be true as with Donald Hyden

except, of course, for the special circumstance relative to

Donald Hyden. (CT 1987-1989.) Additionally, the special

circumstance was found true that the murder was committed while

appellant was engaged in the crime of robbery. (CT 1989.)

Additionally, appellant was found guilty of the robbery of James

Macabe. (CT 1989.)

Appellant was also found guilty of the first degree

murder of Ronald Gatlin in count XVIII. The special circum-

stances relative to multiple murder were the same as Donald Hyden

except, of course, as to the one alleged relative to Donald

Hyden. (CT 1989-1900.) Additionally, the robbery special

circumstance was found to be true and appellant was found guilty

of the robbery of Ronald Gatlin in count XIX. (CT 1991.)

Appellant was found guilty of the first degree murder

of Harry Todd Turner in count XX. The multiple murder special

allegations were found to be true and were the same as Donald

Hyden except, of course, for the special circumstance concerning

Donald Hyden. The robbery special circumstance was found to have

been true and appellant was also found guilty of the robbery of

Harry Todd Turner in count XXI. (CT 1991-1993.)

Appellant was found guilty of the first degree murder

of Steven Wood in count XXII and the multiple murder special

allegations were found to have been true as in the case of Donald

Hyden except, of course, for Donald Hyden’s special circumstance.

The robbery special circumstance was found to be true and

appellant was also found guilty of the robbery of Steven Wood in

count XXIII. (CT 1993-1995.)

Appellant was found guilty of the first degree murder

of Steven Wells in count XXIV and the multiple murder special

circumstance was found to be true as in the case of Donald Hyden

except, of course, for the special circumstance concerning Donald

Hyden. The robbery special circumstance was found to be true and

appellant was found guilty of the robbery of Steven Wells in

count XXV. (CT 1995-1997.)

The penalty phase of trial commenced January 14, 1982.

(CT 2002 et seg.) On January 20, 1982, the jury returned ten

death verdicts as to the murders of: James Macabe, Donald Hyden,

Steven Wells, Darin Kendrick, Steven Wood, Harry Todd Turner,

Ronald Gatlin, Charles Miranda, David Murillo and Markus Grabs.

(CT 2078-2079. )

On March 12, 1982, appellant's motions for new trial

and to modify the penalty were denied by the court with the trial

court’s reasons noted in the record. (CT 2083-2086, 2089-2094.)

Thereafter, the trial judge ordered that appellant

should be put to death as to counts I, III, V, VIII, XIV, XVI,

XVIII, XX, XXII and XXIV. (CT 2093.) The court further provided

that should appellant's sentences be reduced to life

imprisonment, with or without the possibility of parole, each

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sentence was to run consecutively as permitted by Penal Code

section 669. (Id.)

Appellant was also sentenced on the non-capital

matters. (CT 2092-2093.)

Upon automatic appeal to the California Supreme Court,

the judgment was affirmed in its entirety. (People v. Bonin,

Supra, 47 Cal.3d 808.)

STATEMENT OF FACTS

“As a result of his activities in Southern

California in the years 1979 and 1980, defendant -- who

was then in his early 30's -- was dubbed the ‘Freeway

Killer’ and his murders the ‘freeway killings.’ After

he was tried in this Los Angeles County proceeding, he

was tried in Orange County action No. C-47500. There

he was convicted of the first degree murder and robbery

of Dennis Frank Fox, Glenn Barker, Russell Rugh, and

Lawrence Sharp; as to each murder count a multiple-

murder special-circumstance allegation was found true;

and for each murder he received the penalty of death.

“The evidence introduced at the guilt phase of

this action -- insofar as it concerns the crimes of

which defendant was convicted -- tells the following

story.

“On August 6, 1979, the nude body of 17-year-old

Marcus Grabs was found in Malibu Canyon near Las

Virgenes Canyon Road; except for the victim's backpack,

no clothing or other identifying evidence was

discovered at the scene. Grabs had been killed by

multiple stab wounds on August 5. The body showed

signs of beating about the face and elsewhere and

exhibited ligature marks on one ankle as well as on the

neck.

“On August 27, 1979, the nude body of 15-year-old

Donald Hyden was found in the area of Liberty Canyon

near the Ventura Freeway; no clothing or other

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identifying evidence was discovered at the scene.

Hyden had been killed by ligature strangulation about

August 25 or 26. The body showed signs of beating

about the face and elsewhere, exhibited ligature marks

on at least one ankle and wrist as well as on the neck,

and revealed indications of sexual activity before

death.

"On September 12, 1979, the nude body of David

Murillo was found alongside the Ventura Freeway near

the Lemon Grove overpass; no clothing or other

identifying evidence was discovered at the scene.

Murillo had been killed by ligature strangulation about

September 9 or 10. The body showed signs of beating

about the face and elsewhere, exhibited ligature marks

on the wrists as well as on the neck, and revealed

indications of sexual activity before death.

“On February 3, 1980, the nude body of 15-year-old

Charles Miranda was found in an alley in downtown Los

Angeles; no clothing or other identifying evidence was

discovered at the scene. Miranda had been killed by

ligature strangulation the same day. The body showed

signs of beating about the face and elsewhere,

exhibited ligature marks on at least one ankle and

wrist as well as on the neck, and revealed indications

of sexual activity before death.

"On February 6, 1980, the fully clothed body of

12-year-old James Macabe was found near Walnut Drive in

Walnut in front of the Pomona Freeway; no identifying

evidence other than the clothing was discovered at the

scene. Macabe had been killed by ligature

strangulation on February 3. The body showed signs of

beating about the face and elsewhere, exhibited

ligature marks on at least one ankle and wrist as well

as on the neck, and revealed indications of sexual

activity before death.

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"On March 15, 1980, the nude body of 19-year-old

Ronald Gatlin was found near Central Avenue in Duarte;

no clothing or other identifying evidence was

discovered at the scene. Gatlin had been killed by

ligature strangulation on March 14 or 15. The body

showed signs of beating about the face and elsewhere,

exhibited ligature marks on at least one ankle and

wrist as well as on the neck, and revealed indications

of sexual activity before death.

“On March 25, 1980, the nude body of 14-year-old

Harry Todd Turner was found in an alley in Los Angeles;

no clothing or other identifying evidence was

discovered at the scene. Turner had been killed by

ligature strangulation sometime on or after March 20.

The body showed signs of beating about the face and

elsewhere, exhibited ligature marks on the neck, and

revealed indications of sexual activity before death.

“On April 11, 1980, the nude body of 16-year-old

Steven Wood was found in an alley in Long Beach near

the Pacific Coast Highway; no clothing or other

identifying evidence was discovered at the scene. Wood

had been killed by ligature strangulation on April 10

or ll. The body showed signs of beating about the face

and elsewhere and exhibited ligature marks on at least

one ankle and wrist as well as on the neck.

“On April 30, 1980, the nude body of 19-year-old

Darin Lee Kendrick was found on Avalon Street in Carson

near the Artesia Freeway; no clothing or other

identifying evidence was discovered at the scene.

Kendrick had been killed by ligature strangulation and

a stab wound to the upper cervical spinal cord on April

29 or 30. The body showed signs of beating about the

face and elsewhere and exhibited ligature marks on at

least one ankle and wrist as well as on the neck.

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“On June 3, 1980, the nude body of 18-year-old

Steven Wells was found behind a gasoline station in

Huntington Beach; no clothing or other identifying

evidence was discovered at the scene. Wells had been

killed by ligature strangulation on June 2. The body

showed signs of beating about the face and elsewhere,

exhibited ligature marks on at least one ankle and

wrist as well as on the neck, and revealed indications

of sexual activity before death.

“In order to establish that it was defendant who

had perpetrated the killings, the prosecution called to

the stand Gregory Miley and James Munro.

“Miley, a sexual partner of defendant and about 19

years old at the time relevant here, testified that it

was defendant who was responsible for the death of

Miranda and Macabe. Specifically, he said that he was

with defendant as defendant was driving a van he owned

on the night of February 2, 1980; defendant picked up

Miranda in Hollywood in the early morning hours of

February 3. and consensually sodomized him in the back

of the van; defendant whispered to Miley, ‘The kid's

going to die,’ and then started to tie up the youth;

defendant asked, ‘What does your dad want for you? How

much do you think we can get for ransom” Maybe a

couple thousand?’ and Miranda responded, ‘I don’t think

I can get that much’; defendant asked, ‘How much money

do you have?’ and Miranda replied, ‘About $6';

defendant told Miley to take the money, and he

complied; Miley said, ‘Well, why don’t you let the kid

go?’ and defendant answered, ‘Mo, man, he'll know the

van and he'll know us’; with Miley's help defendant

proceeded to beat Miranda and to strangle him with a

shirt and to crush his neck with a jack handle;

defendant and Miley dumped Miranda's nude body in an

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alley and disposed of his clothing in various

locations.

“After doing the deed, Miley continued, defendant

said. ‘Well, I'm horny again. I need another one, '

Miley responded, ‘Oh, man, no way, I don’t want to do

it no more. I just want to go home,’ but defendant

went ahead and eventually picked up Macabe in

Huntington Beach in the early afternoon of the same

day, February 3, 1980; not long afterwards, defendant

and the boy engaged in consensual sexual activity in

the van; the trio then drove on; again defendant and

the boy engaged in consensual sexual activity; soon,

however, defendant started to tie up Macabe; he asked,

‘What could you get for ransom?’ and stated, ‘This is a

kidnap’; the boy tried to fight back; with Miley's help

defendant proceeded to beat Macabe and to strangle him

with a shirt and to crush his neck with a jack handle;

defendant and Miley dumped Macabe's fully clothed body

onto the side of a road and took money from his wallet;

defendant then threw the wallet out of the van’s

window.

“Miley admitted that he had been arrested and

charged with the first-degree murder of Miranda and

Macabe. He also admitted that he had been allowed to

enter a plea of guilty to those charges with concurrent

sentences of imprisonment for 25 years to life on the

condition that he would testify truthfully against

defendant.

“Munro, who -- like Miley -- was a sexual partner

of defendant and about 19 years old at the time

relevant here, testified that it was defendant who was

responsible for the death of Wells. Specifically, he

said that he was with defendant as defendant was

driving his van on June 2, 1980; defendant picked up

Wells as he was hitchhiking and participated in mutual

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consensual oral copulation with him in the back of the

van; the trio eventually arrived at defendant's home in

Downey; there, defendant and Wells continued their

sexual activity, and Munro joined in; soon defendant

persuaded Wells to allow himself to be tied up;

defendant took from Wells's wallet $10, which was all

the money it contained, and also various items of

identification; with Munro's help he then beat Wells

and strangled him with a T-shirt, disposed of his

clothing and other property, and eventually dumped his

body behind a gasoline station; defendant told Munro

that he was the ‘Freeway Killer,’ that Miley was one of

his partners in crime, and that he had committed about

14 murders in the course of his activities.

“Munro admitted that he had been arrested and

charged with the first-degree murder of Wells. He also

admitted that he had been allowed to enter a plea of

guilty to second-degree murder with a sentence of 15

years to life imprisonment on the condition that he

would testify truthfully against defendant.

“The prosecuti.n also introduced evidence of

extrajudicial admissions by defendant linking him to

the crimes charged. Among other witnesses it called

David Lopez, a reporter for Los Angeles television

station KNXT. Lopez testified that defendant admitted

that it was he who killed the 10 young men and boys

named above as well as others, Scott Fraser and Ray

Pendleton, acquaintances of defendant, each stated that

defendant said that while driving his van he picked up

Grabs and in the course of a sexual encounter killed

the youth. Jailhouse informers testified to various

admissions on the part of defendant. Other witnesses

gave testimony to the effect that defendant said he

would not leave witnesses to his criminal activity

alive.

15

es eS en ; % 7 * a

“The prosecution presented expert testimony to the

following effect; the bodies of Miranda, Wells and Wood

each bore a kind of triskelion-shaped fiber that was

not common but was consistent with carpeting in

defendant's van; the bodies of Gatlin, Grabs and Macabe

each revealed the presence of foreign hair that matched

defendant's; the body of Gatlin bore a seminal fluid

stain that could have been made by defendant; and the

van and defendant's home were stained in several placed

with human blood.

“The defense generally tried to show that the

prosecution had not carried its burden of proof beyond

a reasonable doubt. Particularly, it attempted to

discredit the witnesses who testified against

defendant.

“At the penalty phase the prosecution presented

evidence in aggravation. Some of that evidence related

to prior adjudicated felonies. Defendant committed

sexual attacks in late 1968 and early 1969 against 12-

year-old Lawrence B., 14-year-old William J., 17-year-

old John T., and 18-year-old Jesus M. As a result of

his activities, he was convicted of molesting and

forcibly orally copulating Lawrence B., kidnapping and

sodomizing William J., sodomizing John T., and forcibly

orally copulating Jesus M., and was committed to

Atascadero State Hospital as a mentally disordered sex

offender amenable to treatment. In 1971 he was

returned to court, declared unamenable to further

treatment, and committed to prison. In 1974 he was

released. In 1975 he committed a sexual attack on 14-

year-old David M. Later that year he was convicted of

forcibly orally copulating the boy and was sentenced to

prison. In 1978 he was paroled. The prosecution also

introduced evidence relating to the Orange County

killings, attempting to prove that in late 1979 and

16

early 1980 defendant killed, and committed other

offenses against, Dennis Frank fox, Glenn Barker,

Russell Rugh, and Lawrence Sharp.

“In mitigation the defense presented evidence to

the following effect. Defendant's father caused the

family serious problems as a result of drinking and

gambling. At age 10 defendant was in trouble and was

sent to a detention home; while there he was sexually

molested. At age 12 he stole a truck and was put in

custody. Later, he joined the armed forces, served in

Vietnam, and was decorated. A psychologist opined that

defendant could function in the structured setting of a

prison -- and only in such a setting -- and that there

he could be productive.” (People v. Bonin (1989) 47

Cal.3d 808, 820-824.)

Petitioner was not deprived of his constitutional right

to effective assistance of counsel. There has never been a

showing there existed a literary rights fee agreement between

counsel and petitioner and, in any event, as the California

Supreme Court concluded, petitioner failed to demonstrate

counsel’s performance was adversely affected by either this

circumstance or the prior contact with the witness, James Munro.

There was no objection during the prosecutor's argument

to the jury concerning his reference to the impact of the murders

on the families of the victims. Moreover, this argument was

framed in the context of the CALJIC No. 8.84.1(a), involving the

facts of the case. In this regard, the prosecutor's reference in

no measure parallels the victim impact statement scrutinized by

this Court in Booth v. Maryland, supra. Lastly, even if the

prosecutor's reference to the impact on the families of the

victims during his argument to the jury during the penalty phase

was Booth error it was harmless beyond a reasonable doubt.

(Chapman v. California (1968) 384 U.S. 18, 34.)

/

17

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ARGUMENT

I

PETITIONER WAS NOT DEPRIVED OF HIS

CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE

OF COUNSEL _

Despite his unequivocal request for attorney Charvet,

Petitioner contends he was denied his right to effective

assistance of counsel on two grounds: (1) the existence of a

literary rights fee arrangement between himself and counsel and

(2) the contacts counsel had with prosecution witness James Munro

prior to petitioner's trial. On neither of these grounds should

petitioner prevail.

A. The Facts Surrounding The

Substitution of Attorney

The request for substitution of attorney was first made

September 3, 1981, before Judge Ringer. (RT Al 102.) The matter

was eventually set for September 14, 1981, before Judge Keene.

On that day, the motion was again brought. Deputy

District Attorney Norris vehemently expressed his opposition on

three grounds. First, it was argued this substitution was

nothing more than a dilatory tactic designed to prejudice the

People’s case against appellant. It was pointed out by the

prosecution they had been prepared since May 4th, only to have

the court grant two continuances of time over their objection.

(RT Al 111-114.) Secondly, the prosecutor contended Charvet had

a conflict of interest in the case because he had previously been

in contact with witness Munro and considered representing him.

This contact, it was asserted, had involved discussions with

Munro about the facts of this case. (RT Al 115-116; 125-128.)

Lastly, Norris referred to the retainer agreement between Charvet

and appellant which purported to involve the attorney retaining

any future literary rights there may be in the case. (RT Al 116-

117, 124.) In support of his assertion the substitution was

merely an attempt to delay the trial, the prosecution introduced

a taped conversation between appellant and two of his friends.

While the tape itself was not transcribed into the record, it is

18

el es ee ey eee ee wee: eee ,

‘

apparent appellant told his friends if Charvet were not

substituted in appellant would ask to go pro per and then request

a six-month continuance, after which appellant would request

another attorney to represent him. (RT Al 128-129.)

Mr. Hanson, after acknowledging he was never

appellant’s attorney of choice, voiced no opposition to the

substitution. (RT Al 108-109.)

Appellant specifically requested Charvet as his

attorney. (RT Al 109.)

On his behalf, Charvet indicated his contacts with

Munro were minimal and involved nothing that would affect his

being able to defend appellant. (RT Al 118-120.) He also

indicated appellant waived “all semblance of any type of conflict

of interest,” and would be willing to say so on the stand. (RT

Al 120-121.) As concerned the issue of any book arrangement with

appellant, Charvet refused to discuss details, stating instead

that if the only asset of an accused was a book right, he could

use it to get the attorney of his choice. (RT Al 123.)

After hearing argument and listening to the

prosecutor's tape, the trial court asked appellant why he wanted

Charvet as his attorney. Appellant responded, *. . . I feel like

I have a much better rapport with Mr. Charvet than I do with any

other attorney, at this point.” (RT Al 134.) Appellant had

“personal vibes” which precluded him from discussing certain

aspects of the case with Hanson. (RT Al 135.)

Thereafter, the trial court, in no uncertain terms,

concluded appellant’s attempt at substituting Charvet in as

attorney was, indeed, a delaying tactic. In addition, the court

was “deeply concerned” with the contact Charvet had previously

with Munro; finding there was a conflict. (Ibid.) Unless

ordered to do so by an appellate court, trial was to proceed with

Hanson as counsel. (RT Al 136; see comments by court on RT Al

138.) Appellant then acknowledged that if Charvet were not

permitted to act as his counsel, appellant would proceed as his

own attorney, although he could not guarantee he would be ready

19

aa Se ae te ae ek ay ee eee! OE Sef in da

to proceed to trial on the date the trial was to begin, one week

hence. (RT Al 139-140.)

On September 21, 1981, Charvet again attempted to come

in as the attorney of record. Apparently, a writ of mandate

filed with the Court of Appeal had been denied. Charvet

expressed his intention of filing a petition with the Supreme

Court. The trial court solustentiy agreed the issue should be

decided by the Supreme Court. Again, it was indicated that were

Charvet not accepted as appellant’s counsel of record, appellant

would proceed pro per. It was also noted, appellant would not be

prepared for trial, but if given the choice between Hanson as his

attorney, and proceeding pro per, appellant would choose the

latter course. The trial court continued the matter for

approximately 30 days, to October 19th. At that time, trial was

to begin in one of three manners: with Charvet as appellant's

counsel, with Hanson 4s appellant's counsel, or with appellant as

his own attorney, with Hanson acting as advisory counsel. It was

clearly contemplated there would be some ruling from the Supreme

Court on the propriety of Charvet serving as appellant’s

attorney. (RT Al 141-147.)

Thereafter, on October 19, 1981, Charvet was

substituted in as appellant’s attorney. Appellant expressly

indicated it was his desire Charvet represent him. (RT 1 1-2.)

B. Discussion

In its decision, the California Supreme Court, in

accordance with American Bar Association dictates, recognized

that a “'grave conflict of interest can arise .. .‘” when a

lawyer is given the rights to publish a book about the offenses

for which he represents the accused. (People v. Bonin (1989) 47

Cal.3d 808, 836.) In analyzing the trial court’s action, the

California Supreme Court paid close attention to the mandates of

this Court by acknowledging the trial court has an obligation

when it knows or reasonably should know of the possibility of a

conflict of interest to make an inquiry into the matter. (Ibid,

citing, inter alia, Wood v. Georgia (1981) 450 U.S. 261, 272;

20

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Holloway v. Arkansas (1978) 435 U.S. 475, 484.) When the court

fails to fulfill its obligatio. in this regard Wood error has

been committed. Reversal ‘« required, however, only when it has

been shown there was an actual conflict which adversely affected

counsel’s performance. (Id., at pp. 837-838, citing Wood v.

Georgia, supra, 450 U.S. at pp. 272-274; Brien v. United States

(1st Cir. 1982) 695 F.2d 10, 14-15; Strickland v. Washington

(1984) 466 U.S. 668, 692.)

The California Supreme Court determined there was

insufficient evidence upon which to conclude the trial court knew

or should have known a literary rights contract existed. The

crux of this aspect of the court’s holding was that given the

complete absence of anything but speculation, finding the trial

court had an obligation to inquire under these circumstances

would create an “intolerable” burden on trial courts since in

almost every case a conflict was “'possible.’* (People v. Bonin,

supra, 47 Cal.3d at p. 838.)

While petitioner assails this conclusion, the fact

remains nothing in his analysis of the scenario in Wood

demonstrates any error in the conclusion drawn by the California

Supreme Court. In Wood the conflict was flagrant. The attorney

representing the owner of an adult book store, also represented

the employees of that store who had been convicted of selling

lewd materials. The probation of the employees had been revoked

because the owner of the store had decided not to pay the

employees’ fines as promised, electing instead to challenge the

propriety of the fines on constitutional grounds. (Id., at pp.

263-264; 266-267.) There was, then, an unmistakable, actual

conflict of interest which clearly adversely affected the

interests of the defendants.

While petitioner asserts the California Supreme Court

“dodges” the holding of Wood in reaching its conclusion, nothing

could be further from the truth. Petitioner's selection of

private counsel to represent him created no semblance of

impropriety but for the fact petitioner was indigent. There was

21

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no other “evidence” of any kind to indicate the existence of such

an agreement. To suggest counsel’s refusal to reveal the source

of his fee with petitioner is stronger evidence than that

presented in Wood is patently insupportable.

As concerns the conflict due to counsel's contacts with

the witness Munro, the California Supreme Court concluded the

trial did fail in its obligation to inquire as required by Wood.

(People v. Bonin, supra, 47 Cal.3d at p. 838.) While the trial

court had initially recognized the conflict and denied the

requested substitution, on the first day of trial the

substitution was permitted. (Id., at p. 839.) Despite

petitioner's specific request to be represented by Charvet, and

despite petitioner's presence at the hearing in which Charvet’s

contacts with Munro were discussed, the California Supreme Court

determined the trial court had the obligation to ensure

petitioner had knowingly waived any conflict of interest

concerning his attorney of choice. (Id., at pp. 839-842.)

Relying on this Court's actions in Wood, and a similar

understanding of Wood by the court in United States v. Winkle

(10th Cir. 1983) 722 F.2d 605, 611-612, the California Supreme

Court found the error was not reversible per se. Accordingly,

the court undertook an examination of counsel’s performance,

particularly as it concerned dealing with Munro at trial. In

this regard the court was unable to find any inkling of an

adverse effect on counsel's performance. Nor could the court

even conjecture such a problem. (People v. Bonin, supra, at p.

843.) Thus, the court refused to reverse.

1. In an apparent oversight, the California Supreme Court

failed to note petitioner's waiver to any conflict attaching to

attorney Charvet’s previous contact with Munro. In response to

the prosecutor's request petitioner make an on the record waiver

of any conflict the court specifically addressed petitioner on

this issue and received a specific waiver. (See RT I 90-91.) In

light of the California Supreme Court‘s decision, respondent will

examine the question of whether reversal was mandated. Given

what appears to be a specific waiver of the conflict issue as it

pertains to contacts with Munro, however, respondent submits this

question is moot.

22

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Petitioner's assertion this case is analogous to

Glasser v. United States (1942) 315 U.S. 60 and Holloway v.

Arkansas; supra, 435 U.S. 475 is untenable. In Glasser, the

court appointed the same counsel to represent co-defendant

Kretske over the objections of defendant Glasser. Despite

defendant Glasser’s objections, the court undertook an

exanination of the record and concluded that attorney “Stewart's

representation of Glasser was not as effective as it might have

been if the appointment had not been made.“ (Glasser v. United

States, supra, 315 U.S. at p. 76, emphasis added.) Clearly, the

California Supreme Court was unable to reach the same conclusion.

In Holloway, the trial court appointed the same counsel

to represent three defendants accused of rape and robbery,

despite the objection of counsel that the defendants told him

there could be conflicting interests. After first acknowledging

it is not per se violative of the constitutional right to

effective counsel to permit joint representation, the court

interpreted Glasser as mandating reversal when, over objection by

the defendant or his attorney, the trial court requires joint

representation. (Holloway v. Arkansas, supra, 435 U.S. at p.

488.)

In this regard, the circumstances of each case must be

deemed significant. Here there was neither an objection by

petitioner or his counsel, nor was there any compulsion counsel

jointly represent the witness, Munro. Any conflict stemmed from

Munro's contacting the attorney about possible representation.

In this context, then, the proper remedy is that undertaken by

the California Supreme Court; an examination of the record to

determine whether there was any adverse effect on counsel's

performance.

As the California Supreme Court noted (People v. Bonin,

Supra, 47 Cal.3d at p. 843), this understanding of the Wood

holding was revealed in Brien v. United States, supra, 695 F.2d

10, 15, fn. 10, and United States v. Winkle, supra, 722 F.2d at

pp. 611-612. In the latter case, it was defense counsel who

23

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brought up conflict and the appellate court did note problems

developing during trial for the attorney based on his previous

representation of a government witness. Under such

circumstances, the court ordered a remand, rather than a reversal

to permit the trial court to determine whether counsel‘s

performance was adversely affected.

That the California Supreme Court chose the proper path

is best exemplified by the conclusion reached by this Court in

Cuyler v. Sullivan (1980) 446 U.S. 335. There, this Court

concluded a defendant who raises no objection to the conflict at

the trial level must demonstrate both an actual conflict and

prejudice. When a defendant has demonstrated an actual conflict

has adversely affected the adequacy of his counsel's

representation, there is no need to demonstrate prejudice. (Id.,

at pp. 349-350; see also Dukes v. Warden (1972) 406 U.S. 250,

256.) In the instant case, while the California Supreme Court

agreed with the trial court that a conflict existed, the

threshold showing of any adverse effect on counsel's performance

was never made.

When, as in the instant case, there is not only an

attempted waiver of any conflict (footnote 1, supra) but there is

no forced joint representation of co-defendants with conflicting

interests, a reversal is not warranted in the absence of a

showing counsel's conflict prejudiced his representation of

petitioner.

II

THE PROSECUTOR‘S ARGUMENT DURING THE PENALTY

PHASE WAS NOT VIOLATIVE OF BOOTH V. MARYLAND

Petitioner contends the prosecutor's argument to the

jury during the penalty phase, in which reference was made to the

effect of the murders on the families of the victims (RT 5491-

5493), was violative of this court’s pronouncement in Booth v.

Maryland (1987) 482 U.S. 496 which overturned a Maryland statute

mandating the use of victim impact statements. Petitioner's

comparison does not work, procedurally or substantively.

24

o~

Initially, it must be noted petitioner cannot now raise

this issue since there was no objection at trial. This Court has

previously recognized the failure to object at trial, even to

errors of constitutional magnitude, precludes them from being

raised on appeal. (See, Schmerber v. California (1965) 384 U.S.

757, 765-766, fn. 9; Wainwright v. Sykes (1976) 433 U.S. 72, 86-

90.)

Assuming the merits of petitioner’s claim are addressed

there are three substantive bases which conclusively refute

petitioner's conclusion. First, petitioner is complaining about

an argument which was relevant under CALJIC No. 8.84.1(a) ( CT

VIII 2010-2012) which told the jury to consider “the

circumstances of the crime of which defendant was convicted in

the present proceedings and the existence of any special

circumstance[{s] found to be true.“ In talking about the effect

on the victims’ families, the prosecutor made specific reference

to the victims’ ages, as well as the dehumanizing manner in which

they were murdered. In this regard, then, the prosecutor's

argument was proper.

In this same vein, the VIS employed in Booth cannot

validly be compared to the argument of the prosecutor below. In

Booth, the VIS read to the jury contained information concerning

the emotional and personal problems caused the family as a result

of the crimes. (Booth v. Maryland, supra, 482 U.S. at p. 499-

500.) It noted the family members had described the victims as

being *“‘butchered like animals.’'* The granddaughter of the

victims opined the defendant could never be rehabilitated.

(Ibid.) The jury was permitted to hear this report over defense

counsel's objection the information contained in the VIS would

inflame the jury in its selection of the appropriate penalty.

(Ibid. )

Unlike the personal expressions by the family members

in Booth, the prosecutor's argument below was directed at the

circumstances of the offense, both as to the age of the victims

and the manner in which they were murdered. While the district

@ P et =r — a ls | ee —._ (. 7 , »

a ee ice ee

attorney did refer to the effect on the families, it was on their families. In the context of petitioner's offenses, the

: certainly a logical argument given the fact each of the victims prosecutor’s argument was neither Booth nor Gathers error.

: was a young son. This Court in Booth found the VIS misdirected Finally, even assuming the prosecutor's argument passed

the jury’s consideration to the character of the victim and the over the line of propriety it is clear any error was harmless

effect on the family. (Booth v. Maryland, supra, 482 U.S. at p. beyond a reasonable doubt. (Chapman v. California (1967) 386

504.) The court also sought to avoid the imposition of the death U.S. 18, 24.) The sheer magnitude of petitioner's crimes and

penalty being dependent on the eloquence and persuasiveness of their attendant indignities to the sanctity of life were

the victim's family, rather than on the circumstances of the } appalling. Had the brief reference to the effect on the victims’

offense. (Id., at p. 505.) Nothing in the prosecutor's argument families been removed from the prosecutor's argument, the jury’s

to the jury runs afoul of these sentiments. The jury was not penalty decision would have been the same. :

advised to impose the death penalty because of the effect on the

families, but rather that such an effect was a natural by-product

of the murder of such youthful victims. Contrary, to

petitioner's conclusion, then, the prosecutor’s argument did oN

direct the jury to give individualized consideration to the

appropriate penalty based on the characteristics of petitioner

and the crimes he committed. (Zant v. Stephens (1983) 462 U.S.

862, 879.)

7 a ee a ae ee

Nor do the prosecutor's statements run afoul of this

Court’s recent decision in South Carolina v. Gathers (June 12,

1989, 88-305) ___ U.S. __. There the prosecutor went to great

lengths to describe to the jury the type of person who Gathers

had murdered. By referring to the victim’s voter registration

+ _~ = 2. ot ek ee

card and by reading from a religious tract carried by the victim,

this Court found that under the rationale of Booth, the

prosecutor had introduced factors about the victim the defendant

might not have known. (Slip opn., pp. 5-6.) ;

In the instant case the prosecutor briefly commented on

the impact of the murders on the families of the victims. This

was done in the context of their age, a factor petitioner would

know. Each of petitioner's victims was young and while

petitioner may not have known their exact age, it would not be

difficult to surmise the boys were the young sons of their

parents, whose degrading murders would leave an indelible imprint

od _ ee oe ~~ ey ae — aA). a? \5 6 2 |

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*

CONCLUSION

For the foregoing reasons, respondent respectfully

requests the petition for certiorari be denied.

Respectfully submitted,

JOHN K. VAN DE KAMP, Attorney General

of the State of California

RICHARD B. IGLEHART,

Chief Assistant Attorney General

HARLEY D. MAYFIELD,

Senior Assistant Attorney General

JANELLE B. DAVIS,

Supervising Deputy Attorney General

RSD

Supervising Deputy Attorney General

Attorneys for Respondent

SHZ:ab

6/13/89

SD89XU0004

28

AFFIDAVIT OF SERVICE BY MAIL

Attorney: No: 88-7381

October Term, 1988

JOHN K. VAN DE KAMP WILLIAM GEORGE BONIN

Attorney General of

the State of California Petitioner,

STEVEN H. ZEIGEN

Supervising Deputy Attorney General

110 West A Street, Suite 700

Vv.

San Diego, California 92101 THE PEOPLE OF THE STATE

OF CALIFORNIA

Respondent .

I, THE UNDERSIGNED, say: I - a citizen of the United States, am

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

which County the below Ban 2 "mailing oc , and not a party

s being 110 West A

to the yy cause, business

Street, te 700, San Diego, California 92101.

I have served the within BRIEF OF RESPONDENT IN OPPOSITION

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

United States, Washington, D.C. 20543, an original and NINE (9)

ies, of which a true and correct copy of the document filed in

s cause is hereunto affixed; AND, by placing one copy in a

rom, Ce envelope addressed for and to each addressee named as

follows:

William Dean Freeman

ty State Public Defender

107 South Broadway, Suite 9111

Los Angeles, CA 90012

Each envelope was then sealed and with the postage prepaid

ited in the United States mail by me at San Diego,

California, on the /¥ day of June, 1989.

There is a delivery service by United States Mail at each place

so addressed or regular communication by United States Mail

between the place of mailing and each place so addressed.

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

correct.

Dated at San Diego, California, June /7, 1989.

Subscribed and sworn to before me

‘DOE UPRE NORE TPETEG AOU T0041 URN POR omen eDenN ORGAN edn

this 15> day of June 1989. JEAN M. EURNS 3

NOTARY PUBLIC - CAUFORNIA

COUNTY C? SAN DIEGO

commision expires Sept. 17. | 99! F

UPTO

we

—. 7

William George Bonin

APPEARANCE FORM

SUPRE...c COURT OF THE UNITEL STATES

No. 88-7381

People of the State of California

(Petitioner or Appellant)

The Clerk will enter my appearance as Counsel of Record for

(Respondent or Appellee)

The State of California

who IN THIS COURT is

(Please list names of all parties represented)

D Petitioner(s) £3 Respondent(s)

DC Appellant(s) D Appeliee(s)

I certify that I am a member of the of the Supreme Court of the United States:

Signature a

©) Amicus Curiae

J

(Type or print) Name Steven H. Zeigen

OM. OMs. OMrs. ODO Miss

Firm Office of the Attorney General

Address 110 West A Street, Suite 700

City & State__San Diego, CA Zip_92101_

Phone (619) _237-7679

CO-73A

ONLY COUNSEL OF RECORD SHALL ENTER AN

APPEARANCE. THAT ATTORNEY WILL BE

THE ONLY ONE NOTIFIED OF THE COURTS

ACTION IN THIS CASE. OTHER ATTORNEYS

WHO DESIRE NOTIFICATION SHOULD MAKE

APPROPRIATE ARRANGEMENTS WITH COUNSEL

_OF RECORD.

ONLY ATTORNEYS WHO ARE MEMBERS OF THE

BAR OF THE SUPREME COURT OF THE UNITED

STATES MAY FILE AN APPEARANCE FORM.

IT IS IMPORTANT THAT ALL REQUESTED

INFORMATION BE PROVIDED.