Opposition Brief — Kristovich v. California

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SUBJECT INDEX

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Petitioner Was Not Denied His Right to a Jury

Trial Under the Sixth and Fourteenth Amend-

ments When the Trial Court Ruled Under

California Law That Petitioner’s Statements

Under Oath Were Material as a Matter of

Law as to the Names of Purchasers of Vehicles

Sold by Petitioner as Public Administrator ...... 9

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TABLE OF AUTHORITIES CITED

Cases Page

Brooks v. United States, 240 F.2d 905 ...... 14, 15

Duncan v. Louisiana, 371 U.S. 145 ................ 15, 16

People v. Brophy, 49 Cal. App. 2d 15, 120 P.2d

PIE Gessecaiscahaatiashccacatdacscatamnansoekocsiccelosenecinematdics 10

People v. Gamble, 8 Cal. App. 3d 142, 87 Cal.

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People v. Kriton, 73 Cal. App. 2d 184, 166 P.2d

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People v. Lem You, 97 Cal. 224, 32 Pac. 11 ........ 10

People v. Macken, 32 Cal. App. 2d 31, 89 P.2d

PGE Sa ticicinlineinieiinenieieliailasiansasbeniinaes mudacstsicnsadipaantuabanks 10

People v. Pierce, 66 Cal. 2d 53, 423 P.2d 969 ..10, 14

People v. Sagehorn, 140 Cal. App. 2d 138, 294 P.

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Rochin v. California, 342 U.S. 165. ...-ccssssse----- 16, 17

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Statutes

California Penal Code, § 118 .W.000..00........ccccccseeee 2

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Page

California Probate Code § 770 .............. ee a

California Probate Code, § 772 ......... sdbeisaiehacc 4

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| Constitutions :

United States Constitution, V1 Amendment .........- :

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United States Constitution, XIV Amendment .... :

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IN THE

Supreme Court of the United States

October Term 1973

No. 73-1512

BALDo M. KRISTOVICH,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALiFORNIA,

Respondent.

Kcesponse in Opposition to Petition for

Writ of Certiorari

Opinion Below

The opinion of the Court of Appeal of the State of

California, Fourth Appellate District, Division Two was

certified for nonpublication. A copy of this opinion is

attached as Appendix A to the Petition for Writ of

Certiorari herein.

Jurisdiction

Petitioner invokes the jurisdiction of this Court pur-

‘ guant to Title 28, United States Code section 1257(3).

Question Presented

In a state court jury trial for perjury, may the court

instruct the jury that the alleged false testimony was

material as a matter of law consistent with the Sixth

Amendment’s guarantee of the right to a jury trial un-

der the due process clause of the Fourteenth Amend-

ment?

a le

—_

Statement of the Case’

Petitioner was indicted by the Grand Jury of Los

Angeles County on 25 felony counts involving the of-

fenses of conspiracy to commit the crime of conflict of

interest, California Penal Code sections 1090, 1097,

and 182.1, perjury in violation of California Penal

Code sections 118 and 118a, preparing false evidence

in violation of California Penal Code section 134, and

other violations not germane to the instant petition.

The indictment was found to be a true bill. [Cl. Tr.

p. 49.]

Prior to trial, petitioner’s motion under California

Penal Code section 995 was granted as to four counts

and denied as to the remaining counts. Petitioner’s

motion under California Penal Code section 1538.5

(suppression of evidence) was denied. Prior to the

jury’s deliberations, petitioner’s motion under section

1118.1, California Penal Code, for judgment of ac-

quittal, as to certain counts was denied and granted as

to two counts. Petitioner’s motion for judgment of ac-

quittal (dismissal) as to one count was also granted

and denied as to another count. [Cl. Tr. pp. 56-57,

65, 94, 106-07. ]

After a jury trial, petitioner was found not guilty as

to five counts and guilty as charged as to four counts

in the indictment, namely, violation of section 134,

California Penal Code, preparing false evidence, and

violation of sections 118 and 118a, California Penal

Code, perjury. [Cl. Tr. pp. 258-68. |

‘It is assumed by respondent that petitions has lodged a

copy of the record on appeal with the Court, or is prepared

to do so on request: the bracketed references will be to the

Clerk’s Transcript and Reporter’s Transcript on appeal.

NS RE i PEI A PO

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Petitioner’s motion for a new trial on the perjury

counts was denied, as was his motion for a new trial

as to the preparing false evidence counts. Criminal

proceedings were suspended, petitioner was granted

probation for a period of five years, without formal

supervision, and the remaining counts were dismissed

in the interests of justice. As to one perjury count,

petitioner was granted summary probation for a period

of five years on condition he pay a fine of $2,000.

[Cl. Tr. pp. 269, 283-88. ]

Upon appeal, petitioner’s conviction for perjury was

affirmed by the California Court of Appeal and his

conviction for preparing false evidence was reversed

and remanded to the trial court for reconsideration of

the motion for a new trial as to those two counts only.

(Petn., Appendix A, p. 7.)

Petitioner’s petitions for rehearing (Court of Ap-

peal) and hearing (California Supreme Court) were

denied as to the perjury counts, and those counts are

now final as to the state courts. Petitioner’s motion for

a new trial as to the two preparing false evidence

counts was eventually granted by the trial court judge

upon remand.

Statement ot Facts

Petitioner was the Public Administrator/Public

Guardian of Loz Angeles County, having been ap-

pointed to that position in 1960. Petitioner was a fidu-

ciary to the estates administered by the Office of the

Public Administrator/Public Guardian of Los Angeles

Cco.nty and was responsible for the sale of assets of

those «states in various types of proceedings, including

sales at auction and sales by private sales with a solici-

tation of bids. The Public Administrator was also al-

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lowed, under California Probate Code section 770,

to sell certain types of depreciating assets or property

without notice, but such sales had to be approved by

the probate court before title passed and fair market

value had to be received for the assets sold. Public auc-

tions were conducted by an auctioneer with competitive

bidding, and the highest bidder took the property and

title passed. Private bidding contemplated the solicita-

tion of bids by prospective purchasers, with the highest

bid being accepted, and then the court would confirm

the sale after a “return and petition for confirmation

of sale.” Title to that property would avi pass until

the matter came up before the court and the court ex-

amined the return and petition, which was verified un-

der penalty of perjury, and was satisfied that the sale

was conducted pursuant to the statute. The Office of

County Counsel of the County of Los Angeles would

prepare the return and petitions for approval of sale

under section 770. This type of sale related almost in-

variably to the sales of automobiles. In the auction of

personal property under section 772, the County Coun-

sel’s office did not prepare those documents, which

were prepared by the Public Administrator, and the

matter would be set for a hearing on the court’s calen-

dar and required notice would be given. [Rep. Tr. pp.

53-54, 55-62, 1099-1117, 1118-30. ]

As to Counts VIII and IX of the indictment,’ the

evidence showed that one George Harry Barclay was

an independent contract auctioneer and sometime in

the 1960s became an auctioneer for the Public Ad-

ministrator of Los Angeles County. From late 1968

“Only one count of each transaction herein described involved

a perjury conviction.

to 1971 Mr. Barclay held auctions for the Public Ad-

ministrator at least every other month. In March of

1970 Mr. Barclay purchased an automobile from the

Public Administrator which was a 1969 Cadillac. He

negotiated for the purchase of this vehicle initially

with petitioner’s secretary, Lynn Reka. The vehicle had

approximately 12,000 miles on it. Mr. Barclay com-

municated with petitioner on the telephone and indi-

cated he desired to purchase the vehicle. Petitioner

quoted a price of $4,800 and Mr. Barclay thereafter

bought the vehicle for that price. There was no writ-

ten bid of any kind on the car. Mr. Barclay took pos-

session of the car from an impound lot and not from

the Public Administrator’s warehouse where he per-

formed his auctions. This vehicle was purchased from

the estate of Raymond C. Warren, as indicated by

People’s Exhibit 8B, a lettergram from petitioner dated

March 17, 1970. This lettergram recited that the 1969

Cadillac from the estate of Raymond Warren had been

sold to “Henry George” at an address of “6312 Teas-

dale, North Hollywood.” Mr. Barclay did not live on

Teasdale in March of 1970 but lived in the San Fer-

riando Valley. Mr. Barclay further did not tell peti-

tioner to process the sale of that car under the name

of “Henry George.”

The Return of Sale and Petition for Order Approv-

ing Sale of Personal Property under California Pro-

bate Code section 770 stated that the vehicle had been

sold on March 12, 1970, and described the vehicle

which Mr. Barclay purchased. The document further

recited that the vehicle had been sold to “Henry

George, 6312 Teasdale, North Hollywood, California.”

Mr. Barclay did not instruct anyone in the Public Ad-

ministrator’s office or anyone in the County Counsel’s

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office to submit the document to the court indicating

that the Cadillac had been sold to a “Henry George”

living at that address. [Rep. Tr. pp. 1200-19. |

Mr. Barclay was aware at the time he purchased

the vehicle that the California Government Code pro-

hibited certain individuals from buying property from

an estate, and Mr. Barclay did not buy at his own

auctions because he took it for granted that he could

not buy at an auction which he conducted. [Rep. Tr.

pp. 1208-09. ]

As to Counts X and XI of the indictment, the evi-

dence showed that petitioner sold two vehicles. a 1969

Chevrolet and a 1963 Plymouth, from the estates of

Lucile R. Rogers and Harriett T. Elkins, respectively,

to his brother, Marin T. Kristovich. As to the 1963

Plymouth, petitioner’s brother offered $477 and peti-

tioner accepted this offer. The 1963 Plymouth was

registered in the name of Mary Florine Kristovich, the

wife of petitioner’s brother. However, People’s Exhibit

6A, a lettergram dated July 8, 1969, referring to the

Plymouth, stated that the vehicle had been sold to a

“Mary Brady” at 5537 Verdun, Los Angeles, by pe-

titioner. Mary Brady was the maiden name of peti-

tioner’s brother’s wife. The lettergram was in petition-

er’s handwriting. People’s Exhibit 6D, a Return of

Sale and Petition for Order Approving Sale of Per-

sonal Property, stated that the vehicle had been sold

to a “Mary Brady” at that address. Petitioner discussed

the sale of this vehicle with a person in the property

pan.

division of his office and told them to put the sale in

the name of “Mary Brady” because his brother did not

want it to go in his name. Petitioner’s brother also pur-

chased a 1969 Chevrolet for himself. According to

People’s Exhibit 7A, a lettergram from petitioner to

Mr. Lyle Peck, attention Art Eaton, dated July 9,

1969, petitioner stated he had sold the 1969 Chevrolet

for $2,177, again to “Mary Brady” at 5537 Verdun

Avenue, Los Angeles. The document was in petitioner’s

handwriting. People’s Exhibit 7C, the Return of Sale

and Petition for Order Approving Sale of Personal

Property, listed the same automobile and recited that

petitioner had sold the vehicle on July 25, 1969, without

notice, to a “Mary Brady” at that address for $2,-

177 in cash. Again, petitioner’s brother testified he

did not specifically request that the second vehicle be

purchased in the name of “Mary Brady” as opposed

to his name. [Rep. Tr. pp. 1269-93.]

There was further extensive evidence showing that

the documents submitted to the probate court as to

the sales of the vehicles under California Probate Code

section 770 came solely from the information supplied

by petitioner through the lettergrams sent to various in-

dividuals in petitioner’s office. These individuals had

no authority to change the information contained there-

on. The actual returns of sale and Petitions for Or-

ders Approving the Sale of Personal Property in the

case at bar were signed by the Chief Deputy Public

Administrator/Public Guardian, Harry P. Koulos, on

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petitioner’s behalf as Public Administrator. |Rep. Tr.

pp. 1046-47, 1057-59, 1060-61, 1209-11, 1284-85,

1288-89, 3734. |

Petitioner acknowledged at trial by his testimony

that the sale of the vehicle to Mr. Barclay, the contract

auctioneer, was contrary to his own policy expressed

in a letter signed by him, because at that time Mr.

Barclay was an auctioneer who was used by tne Public

Administrator in connection with the sales in particular

estates. Petitioner testified he did not wish his employees

to feel that the Public Administrator was doing some-

thing he had told his employees not to do, and that is

why he returned the sale in the name of Henry George

rather than George Barclay. As to the sales of vehicles

‘to his brother, petitioner testified that in his opinion he

could legally sell cars to his brother as the Public Ad-

ministrator but since the office had a policy of no sales

to relatives, petitioner felt that his employees should not

know that he himself was selling vehicles to his rela-

tives. He did not wish them to know that “the boss does

things that he won't let us do.” [Rep. Tr. pp. 2904-

91.]

—

ARGUMENT

Petitioner Was Not Denied His Right to a Jury Trial

Under the Sixth and Fourteenth Amendments

When the Trial Court Ruled Under California Law

That Petitioner’s Statements Under Oath Were

Material as a Matter of Law as to the Names of

Purchasers of Vehicles Sold by Petitioner as Public

Administrator

Petitioner’s sole contention is that the California rule

regarding matcriality of sta

being a question of law for the a a court to ices

and not the jury violated petitioner’s right to a jury

trial under the Sixth and Fourteenth Amendments,

United States Constitution. Petitioner acknowledges that

the California rule is well settled that it is for the court

to determine as a matter of law whether or not a par-

ticular statement was material, i.e., whether it could

have influenced the outcome of the proceedings in

which it was made. But petitioner asserts that this

rule is incorrect because it is a “verbal fiction” and

further states it is a “constitutional anomaly of the

gravest order.” (Petn. pp. 5-9.)

It is respectfully submitted by respondent that pe-

titioner’s argument lacks any merit. As petitioner him-

self has conceded. and as the California Court of Ap-

peal specifically held in its opinion below, it is the law

of the State of California by reason of decisions of

the California Supreme Court that the question of ma-

teriality of any statement or testimony under oath is

not an issue of fact for the jury but is an issue of

ower

PRES eR

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law for the court to determine and that it is the ex-

clusive right of the trial judge in a crimir2! ection in

California to determine the materiality of the alleged

perjured testimony or statement and to instruct the

jury thereon as to the materiality of the statement or

testimony as a matter of law. People v. Pierce, 66

Cal. 2d 53, 61, 423 P.2d 969; People v. Lem You,

97 Cal. 224, 228-29, 32 Pac. 11; People v. Sagehorn,

140 Cal. App. 2d 138, 152-53, 294 P.2d 1062; People

v. Kriton, 73 Cal. App. 2d 184, 190, 166 P.2d 45;

People v. Brophy, 49 Cal. App. 2d 15, 24, 120 P.2d

946; People v. Macken, 32 Cal. App. 2d 31, 41, 89

P.2d 173.

Petitioner was not denied the right to a jury trial as

to the two perjury counts by reason of such a rule.

The tesi for materiality under the facts at bench is

whether the statement as to names of purchasers could

probably have affected the probate court’s approval of

the sales of automobiles in the instant case. The actual

belief or opinion of the judge in the original proceed-

ings is not controlling. People v. Pierce, supra, 66 Cal.

2d at 61, 423 P.2d at 975. As the California Court of

Appeal pointed out, petitioner claimed that the pro-

bate court’s interest in or indifference to the names

listed as purchasers on returns of sale under California

Probat2 Code section 770 was a controverted fact,

and peiitioner argued the jury was prevented from de-

termining it by the court’s instructions that if the jury

found petitioner had caused the falsification of names,

the statements were material. As the California Court

of Appeal held, if the probate court had known who

the real purchasers of those vehicles were, it might

well not have approved the sales, might well have fur-

ther inquired as to the propriety of said sales, and it

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was arguable that the sales prices were too low (under

fair market value). (Petn., Appendix A, p. 3.) The

materiality of the false names of the purchasers did

not depend upon the existence of controverted facts.

Essentially, the facts favorable to petitioner were un-

controverted. The true test is whether or not the mis-

representation of the purchasers’ names could have

affected the court’s approval of the sale. It is submitted

that this is the proper test and petitioner was not there-

by denied a jury trial on the question of his guilt or

innocence of the charge of perjury.

Further the materiality instruction was not equiva-

lent to a directed verdict of guilt. The instruction told

the jurors that statements described in five perjury

counts were material, yet the jurors reached agreement,

as pointed out by the California Court of Appeal in its

opinion, in only two of those counts (the instant case).

The jurors were therefore not convinced beyond a rea-

sonable doubt in at least three other counts that pe-

titioner had in fact caused a false material statement

to be made knowing it to be false or without know-

ing the truth or falsity of the statement. The instruc-

tion was on the existence of only one element of the

crime of perjury, it was not, and the jury did not so

treat the instruction, as a direction to find petitioner

guilty of perjury regardless of any other fact presented

to the jury.

Respondent further argues that states may properly

determine the substantive law within their own juris-

dictions on such crimes as perjury or preparing false

evidence. or any crimes involving statements under

oath to a court of law or submission of evidence in a

judicial proceeding. The iury in the instant case deter-

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mined that petitioner was guilty of two counts of per-

jury by causing to be prepared and returned to a pro-

bate court returns for confirmation of sales of vehicles

with false names listed as the purchasers of said ve-

hicles. At best, petitioner’s reasons for doing so were

specious. It would appear the real reason petitioner did

so was to mask the true identities of the purchasers,

namely, his brother and an independent contract auc-

tioneer who had business dealings with petitioner’s of-

fice, so that the authorities and the probate couri would

not realize what petitioner was doing. Petitioner’s ar-

gument that the aforementioned California rule deprived

him of a jury trial ignores the fact that he was not

convicted of several other simiiar charges of periury

involving the same jury instructions. The perjury of

which petitioner was found guilty was clear in the two

instant counts, and the test for materiality was prop-

erly applied by the trial court under California law,

namely, whether the misrepresentation as to the names

of purchasers of estate assets could have affected the

outcome of the proceedings in probate court. As pointed

out by the California Court of Appeal, there was no

evidence showing that the probate court ever routine-

ly approved sales of vehicles from decedents’ estates

where the names of purchasers were listed completely

falsely, if such falsification was called to the court’s

attention. (Petn.. Appendix A, p. 4.)

Also, a jury under California law still must decide

as an issue of fact solely for its determination whether

or not the defendant, in fact, caused to be made or

personally made the false statement under oath. This

was required of the jury in the instant case, and pe-

titioner does not dispute it. Therefore, the instruction

as to the element of materiality did not withdraw from

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the jury the ultimate determination of whether peti-

tioner had in fact made or caused to be made the

false material statements under oath. Petitioner’s argu-

ment in the courts below, both at trial and on appeal,

was to the effect that he had merely had his name

upon documents which had actually been signed by

his chief deputy. This was rejected by both the trial

court jury and the appellate courts of California. Pe-

titioner, as the Public Administrator/Public Guardian

of Los Angeles County. was solely responsible legally

for the returns filed with the probate court bearing

his name, and containing information which he him-

self submitted to his various agents to include in such

documents presented to the probate court as to the

saies of the particular vehicles involved herein.

Respondent takes issue with petitioner’s argument

that the California rationale for materiality as a matter

of law in a perjury case is “defective in all of its prem-

ises.” (Petn. p. 7.) The proposition of law can be fair-

ly boiled down to the following: A statement is “ma-

terial” within the meaning of evidentiary rules when it

has a direct bearing on some issue before the trier of

fact. When evidence is objected to on the grounds of

materiality, a court determines whether or not the evi-

dence shall be heard by the trier of fact, whether it is

the court or a jury. When the issue is one of “ma-

teriality” of a statement or testimony under oath by

the defendant in a perjury case, the question is like-

wise one of law since it involves wholly legal concepts

and not factual determinations by a jury as to whether

the defendant did or did not cause the statement to

be made knowing it to be false. Therefore, it is entirely

reasonable that California courts have taken the posi-

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tion that such a question is a matter of law for the

court to determine, and not a question of fact for the

jury to aetermihe, even though materiality is an ele-

ment of the crime of perjury. People v. Pierce, supra,

66 Cal. 2d at 61, 423 P.2d at 975; People v. Gamble,

8 Cal. App. 3d 142, 146, 87 Cal. Rptr. 333. Thus,

far from being “defective in all of its premises” such a

rule is eminently rational, and, we submit legally cor-

rect. The question of “materiality” of a statement,

whether it is sought to be introduced in evidence or

whether it is part of the corpus of the offense of per-

jury, is primarily and fundamentally a legal question

and not a factual one. Petitioner admits that other jur-

isdictions have the same rule in perjury cases, as well

as California. See Wilson v. State, 284 §.2d 24, 25

(Fla. App. 1973). (Petn. p. 8.)

Respondent respectfully takes issue with petitioner in

his reliance upon Brooks v. United States, 240 F.2d

905, 906 (Sth Cir. 1957). (Petn. p. 6.) In that case

the Circuit Court of Appeals reversed for the sole rea-

son that the trial court had charged the jury as a mat-

ter of law that a particular agent for the Internal Reve-

nue Service was authorized by law to administer oaths

to individuals questioned by the IRS. This instruction

did indeed withdraw from the jury’s consideration a

completely factual issue which was part of the ele-

ments of the offense charged against the defendants,

d namely, that they had given false testimony in a pro-

: ceeding before the IRS in which the laws of the United

States authorized an oath to be administered by a

. competent agent of the IRS. Brooks v. United States,

supra. The trial court in that case erred not on the is-

sue of materiality as an element of the offense of per-

jury under federal law, but rather erred in charging

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the jury that a particular fact (the authority of a par-

ticular government agent to administer oaths) which

was apparently disputed at trial was proved by the

government as a matter of law. The instant case pre-

sents no such analogy, since the court did not instruct

the jury, for instance, that petitioner as a matter of

law had caused to be made or made the statements

in question under oath to the probate court. This was

still for the jury to determine, and the jury did not con-

vict petitioner on several identical charges under the

same instructions. As the court in Brooks said:

“(I]t [the instruction] deprived the jury of its

function of determining whether or not, under

the evidence and as exclusive judges of the facts

and of the credibility of the witnesses, they be-

lieved beyond a reasonable doubt that Perry was

an officer authorized to administer . . . and thus

violated appellants’ constitutional right to a trial by

jury... .” Brooks v. United States, supra, 240

F.2d at 906.

It is submitted that the issue in Brooks was factual and

not legal, as is the question of materiality under Cali-

fornia law in a perjury prosecution.

The issue of materiality was adversely determined to

petitioner in the trial court below, as well as on ap-

peal in the California Court of Appeal and Supreme

Court. Petitioner has presented no persuasive reasoning

or authority to show why this Court should overturn

the rule as to a state substantive offense which has

been in existence in California for well over seventy

years. It is submitted respectfully that petitioner was

not denied any right to a jury trial under the Sixth

or Fourteenth Amendments. See Duncan y. Louisiana,

Biasetecee Seca easiew

="

391 U.S. 145, 149-50 (1968). The question of whether

or not a particular statement could have influenced a

court of law in a particular proceeding and was, there-

fore, material is peculiarly one of law and not of fact

and, therefore, the trial court properly resolved this is-

sue rather than the jury and so instructed. No viola-

tion of petitioner’s constitutional rights to a jury deter-

mination has been shown on the ultimate issue of guilt

or innocence or the issue of whether or not petitioner

did in fact make the statements or caused them to be

made to the probate court. California may properly set

forth such rules for substantive crimes as perjury un-

der the Penal Code, since each state is allowed to de-

termine what shall be the elements of a particular state

offense and how they are to be proven by the prosecu-

tion, so long as such rules satisfy the basic require-

ments of due process of law. As long as the reasonable

doubt standard is utilized and the jury is not improperly

directed by the court to find the defendant guilty in

some manner or other, no federal constitutional rights

of defendants are thereby violated merely because one

of the elements of the offense may be legal and not

factual, and therefore for the trial court and not the

jury to pass upon. Perjury is such a crime. and Cali-

fornia has uniformly held that the question of material-

ity is legal, not factual. This Court in Rochin v. Cali-

fornia, 342 U.S. 165 (1952), stated with regard to

this question:

“In our federal system the administration of

criminal justice is predominantly committed to the

care of the States. The power to define crimes

belongs to Congress unly as an appropriate means

of carrying into execution its limited grant of leg-

islative powers. [Citation.] Broadly speaking,

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crimes in the United States are what the laws of

the individual States make them, subject to the

limitations of Art. I, § 10, cl. 1, in the original

Constitution, prohibiting bills of attainder and ex

post facto laws, and of the Thirteenth and Four-

teenth Amendments.

“These limitations, in the main, concern not

restrictions upon the powers of the States to de-

fine crime, except in the restricted area where fed-

eral authority has preempted the field, but restric-

tions upon the manner in which the States may en-

force their penal codes. Accordingly, in reviewing a

State criminal conviction under a claim of right

guaranteed by the Due Process Clause of the

Fourteenth Amendment, from which is derived

the most far-reaching and most frequent federal

basis of challenging State criminal justice, ‘we

must be deeply mindful of the responsibilities of

the States for the enforcement of criminal laws,

and exercise with due humility our merely nega-

tive function in subjecting convictions from state

courts to the very narrow scrutiny which the

Due Process Clause of the Fourteenth Amend-

ment authorizes.’ [Citation.] Due process of law,

‘itself a historical process,’ [citation], is not to be

turned into a destructive dogma against the States

in the administration of their systems of criminal

justice.” Rochin v. California, supra, at 168.

Therefore, in reviewing petitioner’s criminal convic-

tions

for two counts of perjury, the scope of scrutiny

under the Due Process Clause of the Fourteenth

Amendment, particularly as it applies to the Sixth

Amendment’s guarantee of a jury trial, should be

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“very narrow.” Under such a constitutional test, re-

spondent submits that petitioner has presented no sub-

stantial issue of federal constitutional law.

Conclusion

For the foregoing reasons, respondent requests denial

of the Petition for Writ of Certiorari.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

JACK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

S. CLARK Moore,

Assistant Attorney General,

NorMAN H. SoKOLow,

Deputy Attorney General,

LAWRENCE P. SCHERB II,

Deputy Attorney General,

Attorneys for Respondent.