# Appendix — Hill v. Naddi

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1519%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 978

## Text

No.

Suprer - Court, U.8.

(4 se i ae
Ope 37 1 AUG 3 14998

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998

D. R. HILL, Warden, et al., Petitioners,

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———_ IE 08 Ds ae

TOUFIC BADIH NADDI, Respondent.

V.

APPENDIX

DANIEL E. LUNGREN
Attorney General
GEORGE WILLIAMSON
Chief Assistant Attorney General
GARY W. SCHONS
Senior Assistant Attorney General
HOLLY D. WILKENS
Deputy Attorney General
PAMELA A. RATNER
Supervising Deputy Attorney General
Counsel of Record

110 West A St., Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2273
Counsel for Petitioner

A-i

INDEX
Page

State of California Court of Appeal,
Fourth District, Division One,
[Unpublished Opinion]
filed January 7, 1994 A-1
United States District Court,
Southern District of California,
Report and Recommendation
filed January 23, 1996 A-38

United States District Court,

Southern District of California,

Order Adopting Magistrate’s Report and
Recommendations; Conditionally Granting Writ of
Habeas Corpus

filed April 29, 1996 A-65

United States District Court,

Southern District of California,

Order Denying Motion for Reconsideration and
Denying Ex Parte Application for Stay

filed May 16, 1996 A-77

United States Court of Appeals

for the Ninth Circuit

Memorandum

filed June 9, 1998 A-81

United States Court of Appeals
for the Ninth Circuit

Order

filed July 27, 1998

A-84

A-iii

A-1

IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOURTH DISTRICT, DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

Vv.

TOUFIC BADIH NADDI,
Defendant and Appellant.

D013123
(Super. Ct. No. CR76494)

[UNPUBLISHED OPINION]
Filed January 7, 1994

APPEAL from a judgment of the Superior Court of San
Diego County, Terry B. O’Rourke and Raymond Edwards, Jr.,
Judges. Affirmed.

Toufic Badih Naddi appeals a judgment entered after a jury
found him sane, guilty of five counts of first degree murder (Pen.
Code,” § 187) each while using a gun (§ 12022.5) and the special
circumstance of multiple murder (§ 190.2, subd. (a)(3)). He
received consecutive life sentences without possibility of parole and
an aggregate term of 135 years to life.

Naddi contends his double jeopardy rights under both the
California Constitution and the United States Constitution were
violated when during closing argument the prosecutor committed

1. All statutory references are to the Penal Code.

A-2

deliberate misconduct in order to "save" his case by provoking
Naddi and his defense counsel to request a mistrial. He further
asserts his double jeopardy rights were violated when at the
request of defense counsel, but over his express objection, at a
later trial the court granted a mistrial motion based on jurors’
exposure to newspaper publicity. Regarding these double jeopardy
contentions, he asserts he was denied his right to effective
assistance of counsel due to his counsel’s failure to raise these two
independent double jeopardy claims. Additionally, he argues all
guilt and sanity phase verdicts must be reversed because he was
denied his right of self-representation under the Sixth Amendment
in Faretta v. California (1975) 422 U.S. 806. He continues and
argues he was denied both his Fifth and Sixth Amendment rights
under the United States Constitution, as well as his corresponding
article I, section 15 rights under the California Constitution, to
select and present his defense to the jury. He argues the trial
court’s failure to grant his defense Miranda” motion to suppress
all statements made by him to Dr. Wait Griswold requires reversal
of the "sane" finding, because every psychiatrist testifying for the
prosecution relied on Dr. Griswold’s inadmissible psychiatric
interview. As to sentencing, he challenges the 135 years to life
without possibility of parole, asserting it must be vacated due to
improper multiple punishment on three separate and distinct
grounds. He also argues all gun use enhancement punishment,
except for one, must be stricken, pursuant to section 654. As we
shall explain, we affirm the judgment.

F BACKG ND

On June 3, 1985, Naddi called the El Cajon Police
Department and reported he had shot and killed five people at his
home. During that 30 minute telephone conversation, Naddi
stated he had a .22-caliber rifle, he wanted the responding police
officers to kill him, his two young children were playing outside,

2. Miranda v. Arizona (1966) 384 U.S. 436.

A-3

and his wife had been molested by her father. Naddi was finally
convinced to put the rifle down and to come out of the house, at
which time he was taken into custody. The police then entered the
home and found the five slain victims: Naddi’s wife Aida, her
father Habib Sabbagh, her mother Lilian Sabbagh, her cousin
Michael Sabbagh, and her brother-in-law Osama Maschini. Each
had sustained multiple gunshot wounds to the head and Aida and
Habib each suffered bullet wounds to the groin. The murder
weapon, a Winchester model 190, .22-caliber semi-automatic rifle
and unexpended .22-caliber ammunition and casings were found
near each of the bodies, as well as on the stairway, kitchen counter
and dining room table.

Naddi was promptly advised of and waived his Miranda rights.
During police interrogation, Naddi provided some personal
background history, characterized his relationship with the victims
and his motive for the murders. Specifically, Naddi explained he
had been living in the United States for approximately 12 years
and had lived in San Diego for the majority of that time. The
house had been bought by Habib, as Naddi’s in-laws frequently
stayed there with he and his wife. He described his relationship
with Habib as not very good, emphasizing Habib was on his back
all the time and was an old uneducated man with money. His
suspicions arose regarding Habib’s relationship with Aida because
the former often gave the latter money. He became even more
suspicious approximately 40 days before the murders, when Aida’s
sister, Yasirea, had been visiting and went into Habib’s bedroom
and came out an hour later upset and had to be taken to the
hospital. In addition, during the beginning of May, Aida returned
from a month-long trip to Jordan where she had gone to care for
her ill mother. Naddi had apparently made numerous telephone
calls to her, but she was never home. As a result, he became quite
angry, believing she was doing things she should not do and was
lying to him. In fact, he believed Aida’s mother’s illness had been
merely an excuse, so when she returned he confronted her. At
that time, he advised her he believed, when he married her, she
had not been a virgin. Promising to forgive her and assuring her

)

A-4

they could start anew, he directed her to sit down and tell him the
"whole story" and to write down all the men she had slept with or
who were responsible for destroying their marriage. Naddi
indicated she drafted a list which included her father, Habib.
Later, Naddi confronted Habib regarding molesting Aida and
Habib denied it.

The day before the murders, Aida retained a divorce lawyer
and had a heated argument with Naddi. That evening, at about 10
p-m., Naddi was surprised by the unannounced arrival of Habib,
Lilian, Osama and Michael. At that time, Naddi believed the
latter two were Habib’s "body guards” and that they all intended
to take Aida and the children from him. The following morning,
Naddi awoke to discover everyone in the dining room having
coffee. He sensed Lilian was ignoring him and he became angry
when she kissed his young daughter on the mouth, believing they
were trying to instigate him to do something because he had
accused them of being "a bad family."

He later left the house and visited a long-time friend, Neil
Nicastro. Over a cup of coffee, Naddi told him the "whole story"
and Nicastro warned him not to do anything stupid or "drastic."
Later, Naddi met another long-time friend, Jack Wells, and asked
him how to buy a gun for protection against prowlers. Wells
advised Naddi he could buy a shotgun from a department store,
but that he could not get a handgun quickly due to the necessary
waiting period. Naddi returned home at approximately 11 a.m., at
which time the victims were all leaving the house. They returned
at approximately 4 p.m. Naddi indicated that after a neighbor left,
he went upstairs, made a cup of coffee and sat down at the dining
room table. Aida came over to the table and advised him she had
an appointment with an attorney on Monday and had paid the
attorney a $1,000 retainer which she had placed on Naddi’s VISA
card. Naddi stated he got the impression Aida was offering him
money to leave the house, which infuriated him and caused him to
start drinking. Frustrated, Naddi felt he could not "beat the old

A-5

man in a court of law" and he knew he had a "slim chance" of
obtaining custody of his children.

While Aida was sitting at the table, the remainder of her
family were sleeping, and the children were playing outside, Naddi
retrieved his rifle from his bedroom and shot Michael first.
However, he began calling for Osama whom Naddi had forgotten
was downstairs. Naddi then shot and killed Lilian, then Aida and
then he went into the bedroom where Habib slept and shot and
killed him as well. According to Naddi, none of his victims, except
Michael, struggled. Naddi stated he had intended to kill Aida and
Habib first. He also declared, believing he had performed his
"mission," he tried to shoot himself, but could not do so. He then
called the police.”

NADDI_ WAS NOT DENIED HIS RIGHT TO
PRESENT A "HEAT OF PASSION" DEFENSE
CONSISTENT WITH HIS THEORY OF THE CASE

Naddi claims his federal and state constitutional rights were
denied because the defense theory his attorneys selected and
presented to the jury as to why the facts supported a "heat of
passion" defense reducing his crimes from murder to manslaughter
was qualitatively different than the one he wished them to offer.
He notes that the Sixth Amendment guarantees him the right to
present a defense and the Fifth Amendment guarantees his right
to take the stand in his own defense, both rights he claims were
violated. He cites the holding in People v. Frierson (1985) 39
Cal.3d 803, 813-814, for the proposition that the deference to
counsel’s choice of trial strategy on tactics counsel must bow to the
defendant’s personal choice where there are "fundamental"
decisions in a criminal case. However, in Frierson the defendant
made it clear he wanted to present a diminished capacity defense
at the guilt/special circumstance phase, a defense for which there

3. His blood alcohol, taken approximately five hours after the
murders, was .01 percent by weight.

A-6

was some evidence of which counsel was aware. However, to the
defendant’s surprise his counsel rested without presenting any
defense at all and overriding the defendant’s desire to take the
stand. (Referring to Frierson’s initial trial, People v. Frierson
(1979) 25 Cal.3d 142.)

Here, Naddi took the stand and testified extensively
concerning his entire marital history and his alleged stormy
relationship with Habib over the years. He spoke of the Middle-
Eastern culture to which he was exposed and which he declared
influenced him substantially, and in particular the Arabic principle
that wives should be subservient to their husbands and that those
who were unfaithful should be stoned to death.

Although Naddi argues his theory of defense was totally
different than that presented by his attorneys, that is a gross
mischaracterization. At the guilt phase, the attorneys relied upon
a "heat of passion" theory in an effort to convince jurors to reduce
the admitted homicides from premeditated murder to
manslaughter. Naddi claims his attorneys’ "heat of passion"
defense was keyed to evidence he suddenly erupted violently and
irrationally when his in-laws unexpectedly arrived the night before
the shooting and began interacting with his children in a manner
he considered sexually inappropriate. These observations coupled
with Aida’s steps towards divorce and her offer to "buy" custody of
the children by paying Naddi money, overlay Naddi’s long-festering
belief Aida was sleeping with other men and had been sexually
intimate with her father since age seven, culminated in the violent
assassination of four sleeping persons and his unresisting wife.

Naddi now claims his theory was a different version of the
“heat of passion" defense, one based on many years of slights and
indignities he suffered at the hands of his wife and her relations.
That is, he became more depressed and began drinking after
learning of Habib’s molestation of Aida and Aida’s other
infidelities. These confirmed his long-held suspicions regarding his
lecherous and domineering father-in-law and unfaithful wife. Thus,

A-7

Naddi argues his attorneys overruled his wishes to produce
witnesses to support his testimony that his feelings were generated
by a “heat of passion" generated by the cumulative effect of a
series of events over a considerable period of time. (See
instruction in People v. Aris (1989) 215 Cal.App.3d 1178, 1202.)
In addition, Naddi contends his defense was based upon proving
Aida’s infidelity and sexual liaison with her father over the years
actually occurred, while he claims his attorneys were motivated to
attempt to characterize them as delusions because that dovetailed
with the evidence they intended to produce in support of his
insanity defense.

Naddi also meritlessly claims his attorneys’ failure to call
certain witnesses he had identified prevented him from presenting
circumstantial evidence that would support his theory. He does
not identify any witness that would testify favorably, only vaguely
alluding to his belief that certain persons might do so. In light of
the fact that several of the witnesses he expected to present
favorable evidence did not do so when they did testify, his
assertion is purely speculative. However, Naddi’s testimony made
it very clear that he had no evidence that any sexual molestation
by Habib had in fact occurred or that Aida had been sexually
unfaithful to him, or that any uncalled witness would so testify. He
admitted he demanded Aida prepare a list of people with whom
she had slept or had ruined their marriage or had destroyed their
marriage in some way. The list included Aida’s mother, her sister,
an Iranian woman who "they" started bringing to the house and
various male relatives, doctors and friends. Naddi admitted
drinking with one of his victims, Osama, the afternoon and evening
before the murders. When asked why he would buy this victim
liquor if he believed he was sleeping with his wife, Naddi replied
he never saw him sleeping with his wife and therefore he reacted
with normal Middle-Eastern hospitality in providing drinks. He
admitted that he suspected Osama because Aida had written his
name, but he was not sure, and in fact never saw Aida do anything
untoward with any of the people on her list. When Naddi and
Osama ran out of liquor, Naddi went to the liquor store and

A-8

obtained more. Upon returning, he found only Aida still awake,
the other victims had retired. After a brief discussion with Aida in
which she purportedly offered him money in exchange for custody
of the children, he became angry, believing she was insulting him
and then he went downstairs to get his rifle which was loaded with
15 shells and obtained extra bullets from a closet. He admitted he
went downstairs to get his rifle for the purpose of shooting the
sleeping people upstairs. In addition, Nicastro testified to Naddi’s
disheveled appearance and depressed attitude several hours before
the killing and told another person that Naddi stated he wanted to
kill his father-in-law, but did not have the guts to do it. After
having a conversation with Nicastro, Naddi met Wells at a coffee
shop at approximately 9 a.m. Wells described Naddi as being
freshly shaven, wearing a suit and tie with no noticeable difference
in demeanor or actions than any other day. However, Naddi asked
Wells if he knew where he could get a gun which he needed for
protection. Wells replied it would probably take two or three
weeks to get a permit for a gun, but if he went to Montgomery
Ward or Sears & Roebuck he could get a shotgun. Naddi testified
he then went to a sporting goods store and to a Montgomery Ward
for the purpose of buying a gun; however, he decided he already
had a gun in the house that was adequate so he just went home.
Upon arriving there he took the gun downstairs and "waited for my
children to come back."

The children arrived home at approximately 2 p.m. and a
neighbor, Kathy Cradit, came over at approximately 2:30 and
stayed a half hour. She found Osama and Naddi sitting at the
kitchen table talking, the children playing outside the house, and
Aida fixing food. Cradit, Aida and Lilian had a normal
conversation and everyone was in good spirits. Cradit testified she
had never seen Aida being sexually approached by Habib during
the years she knew him and denied ever seeing him act
inappropriately toward Naddi’s children, Aida or other women.

In an effort to establish Habib had a propensity for sexually
inappropriate conduct toward women and children, defense

Deii ite

ee ee a ee ee ot

A-9

counsel called Lois Hellberg to testify concerning her observations
on the single occasion she and her husband had visited the Naddi
home and participated in a barbecue at which Habib was present.
Her testimony provided no support for this theory. Defense then
called Marian Akroush, a native of Syria, who had a long-standing
personal relationship with Naddi and Aida, and came in contact
with Habib on several occasions. On one occasion while Habib
was visiting in the Akroush residence, he put his arm around
Akroush. Following that incident, Akroush’s husband refused to
permit her to go to the Naddi residence, because in Syrian culture
"no man puts his arm around a lady except her husband." Akroush
was deeply offended.

On cross-examination, Naddi admitted Aida stated she never
had sex with the men (or women) she placed on the list. But, even
though he claimed to suspect possible sexual activity between Aida
and at least some of the men, he made it clear that the main
reason he killed Osama and the others is "that God wanted them
to die." ("Them" included Michael who was not even on the list
prepared by Aida.) After recounting how he had spoken to a
lawyer, telling him he wanted to take the law into his own hands
because he could not face the possibility Aida and his in-laws
would defeat him during the divorce and custody proceedings, he
again stated he did not wait and fight in court, "[b]ecause God
wanted [the murders] to be done at that time." By the end of
Naddi’s testimony he had completely negated any theory that the
killing was due to a “heat of passion," whether provoked by
cumulative incidents festering over a long period of time or
brought on by the unexpected arrival of his in-laws, the divorce, or
Aida’s insulting him by offering money in exchange for custody of
the children immediately before the massacre.

In any event, defense counsel in final argument recounted the
long history of Naddi’s frustrations with Habib’s dominance and
interference, and the demeaning position in which Naddi was
placed by the wealthier man. He also detailed evidence that
Naddi was frustrated through the numerous broken promises of

A-10

businesses to be purchased and provided by Habib and his
humiliation upon learning of Aida’s unfaithfulness and incest.

The court instructed the jurors with the standard manslaughter
instructions from CALJIC, advising them that to reduce an
intentional felonious homicide from murder to manslaughter on
the grounds oi sudden quarrel or heat of passion, the provocation
must be of such character and degree as naturally would excite and
arouse such passion and that Naddi must have acted under the
smart of that sudden quarrel or heat of passion. They were also
instructed that the heat of passion sufficient to reduce a homicide
to manslaughter must be one as naturally aroused in the mind of
an ordinary reasonable person in the same circumstances and one
which obscured the reason of the accused to such an extent that
would cause an ordinarily reasonable person of average disposition
to act rationally and without deliberation and reflection and from
such passion rather than from judgment. The court correctly
advised the jurors that either acts committed without deliberation
upon a sudden quarrel or committed under the influence of heat
of passion would reduce an intentional killing to manslaughter.
Significantly, in light of Naddi’s own testimony, the jury was
instructed that when the influence of passion has ceased to obscure
the mind of the accused and sufficient time has elapsed for angry
passion to end and reason to control, its conduct will no longer
-reduce an intentional! killing to manslaughter.

Naddi contends the standard instructions did not adequately
advise jurors that heat of passion may be aroused by a series of
events over a considerable period of time and that verbal
provocation may be sufficient. Absent specific instructions to that
effect, Naddi apparently argues jurors would give no legal
significance to the fact he acted without deliberation and
aforethought in the heat of passion if that mental state was the end
product of a series of events occurring over a long period of time.
He does not support this proposition by reference to the record in
this case. Although Naddi would have been entitled to equivalent

pinpoint instructions on request (see People v. Thompkins (1987)

IS a a

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195 Cal.App.3d 244, 256-257, & fn. 6), no such request was made
here. Because the instructions given correctly set forth the law
regarding intentional killings committed under the influence of
heat of passion, Naddi’s contention his attorneys provided
ineffective assistance of counsel for failing to request the special
instructions lacks foundation. Likewise, his claim the trial court
erred in failing to provide these pinpoint instructions sua sponte is
not supported on this record.

THE DOUBLE JEOPARDY ISSUES

Naddi raises various double jeopardy issues after mistrials
were granted in several of his separate sanity trials, citing Burks v.
United States (1978) 437 U.S. 1, and a reference to Burks in
United States v. Scott (1978) 437 U.S. 82. In Burks, the United
States Supreme Court applied double jeopardy principles in
barring retrial of an unbifurcated case in which it found the
defendant’s motion for acquittal at the close of the prosecution
case should have been granted because the prosecution evidence
was insufficient as a matter of law to permit the matter to go to
the jury concurrently with the evidence relating to the guilt phase.
(Burks v. United States, supra, 437 U.S. at p. 18.)

In Burks, the court based its holding that the government,
having the burden of proof, had failed as a matter of law to carry
its burden of overcoming defense evidence of the defendant’s legal
insanity. Thus, that court declared the double jeopardy clause
“forbids a second trial for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster

A-12

in the first proceeding.’ (Id. at p. 11, fn. omitted; People v.
Belton (1979) 23 Cal.3d 516, 527.)

Naddi does not rely on the precise holding of Burks, impliedly
conceding the evidence at the time his request for mistrial was
granted following completion of the evidence was sufficient to
support a jury finding he had nx: carried his burden to establish he
was legally insane at the time he committed these multiple
murders. Instead, he contends his successful request for mistrial
before completion of the second sanity trial was compelled when
the prosecutor deliberately engaged in misconduct to force a
mistrial and prevent Naddi from obtaining a favorable verdict.
(See Oregon v. Kennedy (1982) 456 U.S. 667.) Naddi also raises
a double jeopardy claim after the court granted a mistrial during
a later sanity trial at his attorney’s request, but over his own
express objection. He argues his personal consent was necessary
to permit the court to grant a mistrial where there was no legal
necessity to terminate because a nonconsensual mistrial ordered by
the court under those circumstances would prevent retrial because
of the double jeopardy bar. Finally, he argues his attorneys’ failure
to enter a plea of once in jeopardy (§ 1016) before each
subsequent trial should not be deemed a waiver (see People v.
Moore (1983) 140 Cal.App.3d 508, 511; People v. Belcher (1974)
11 Cal.3d 91, 96) because it was due to counsel’s constitutionally
ineffective representation. (See Strickland v. Washington (1984)
466 U.S. 668; People v. Medina (1980) 107 Cal.App.3d 364, 370.)

After the initial jury was unable to reach a verdict on the
Sanity issue, the trial proceeded before a different jury. The
prosecution introduced essentially the same evidence as in the first

4. We recognize that the facts and procedures in place during
Burks’s federal trial are significantly different than Naddi’s, in which
he has the burden to prove legal insanity. We do not address
whether double jeopardy rights inure to mistrials entered at a
bifurcated not guilty by reason of insanity phase, but have assumed it
does solely for the purpose of addressing the merits.

|

A-13

trial, testimony from three psychiatrists. The defense also
introduced evidence of the psychiatrists it presented in the first
trial, but in addition introduced lay testimony that following the
killings Naddi had confided his actions were in accord with God’s
command to kill his wife whom he truly believed to have been
unfaithful. One of the prosecution’s expert witnesses, Dr. Gary
Weissberg, listened to testimony of one lay witness, a jail minister
who testified to Naddi’s references that he responded to God’s
commands. Dr. Weissberg then testified that had he been aware
Naddi had confided in others that God had instructed him to kill
his victims because they were evil, he would have had to
"reconsider" his opinion that Naddi was not acting delusionally at
the time of the killings. Thus, at the close of the evidence, three
defense psychiatrists essentially believed Naddi was legally insane
at the time of the killings, two psychiatrists concluded he was sane
and Dr. Weissberg who, after listening to the lay witness testimony
that Naddi professed to have been motivated by a command from
God, indicated that "had Mr. Naddi received, or believed that he
had received a communication from God instructing him to kill
these people because they were evil, I would have to reconsider
my opinion." Although Dr. Weissberg’s position seems equivocal,
it does not, as Naddi attempts to convince us on appeal, make Dr.
Weissberg’s testimony totally favorable to the defense. Especially
in light of Dr. Weissberg’s next remarks: "However, this appears
to be inconsistent with other evidence that was gathered around
the same time." Dr. Weissberg never testified he believed Naddi
was not sane at the time of these killings. In fact, Dr. Weissberg
stated Naddi specifically denied hearing the voice of God when
responding to Dr. Weissberg’s specific questioning. In summary,
all the doctors agree Naddi knew the nature and quality of his acts,
but there was a strong difference of opinion as to whether he
suffered from a mental disease which prevented him from
differentiating right from wrong at the time of the killings.

During final argument the prosecutor discussed testimony of
the psychiatrists. He also discussed the testimony of lay witnesses
concerning Naddi’s statement to them regarding his animosity

A-14

toward Habib and his expressed desire to kill him, and recited —
details of the multiple killings which he believed to be inconsistent —
with Naddi’s acting delusionally. After approximately 50 minutes

of argument, the court recessed for lunch.

Following lunch the prosecutor argued for approximately the
same amount of time and then began discussing Naddi’s personal
value system, based upon his Middle-Eastern culture so that he
believed child molestation was a worse crime than murder. The
prosecutor argued that Naddi may have been making choices
because he believed he was morally justified, but that "people
often fee] that they are in the right, they are on the side of justice,
but it is not sufficient to feel justified to think that something is
right. The question is, whether or not the person has a capacity to
understand right from wrong." At this point the prosecutor argued
Naddi making those decisions was "no different than the people
who hung [sic] Colonel] Higgins last week -- they thought they were
on the side of right." Naddi’s attorney immediately objected and
moved for a mistrial claiming the prosecutor’s remarks unfairly
prejudiced and inflamed the jury.

Outside the presence of the jury, the court stated Colonel
Higgins’s recent execution after being held hostage by Shiite
Muslims in Lebanon was currently on the front page of the
newspapers and recognized the strong emotional resentment on
the part of the American people against that act. Commenting
that Naddi was also from Lebanon, the court asked the prosecutor
to attempt to justify what the court characterized as "about the
cheapest shot I have ever heard from anyone in closing argument."
The prosecutor strenuously argued his analogy was based upon a
discussion with Dr. Weissberg as an example of people who believe
they are justified in committing murder because they are on the
side of right, and was an example he selected because it was fresh
in everyone’s mind. The court declared it was strongly leaning
toward granting Naddi’s motion for a mistrial because of the
extreme inflammatory nature of the Colonel Higgins’s reference in
light of the fact Naddi was from the Middle-East. The court then

eee een

A-15

adjourned until the following morning at which time it reconvened
without the jury being present to consider Naddi’s motion for a
mistrial. At the outset of this hearing, Naddi personally stated he
joined in the attorney’s motion for a mistrial. Again, the
prosecutor strenuously argued against granting the motion for
mistrial. He disagreed with the court’s analysis that his remark was
so inflammatory that an admonition to the jurors could not cure
potential prejudice. The prosecutor pointed out that evidence
showed Naddi had been born and raised in Jordan, not in
Lebanon, a Christian who had gone to a Catholic school and
church. After a lengthy argument by the prosecutor opposing the
defense motion, the court granted the mistrial, finding the evidence
in the case closely weighed, and "I just think the weight of the
evidence was in Mr. Naddi’s favor" and the prosecutor’s statement
was sufficient to deny Naddi the possibility of a fair trial.

During the initial conference regarding the defense motion,
the court stated it was sure the prosecutor did not intend his
remarks to have caused a mistrial, stating "I am sure that, you
don’t want to retry the case anymore than anyone else does...
misconduct does not require intent. It can come about by
negligence as well. I’m not passing judgment on them." He went
on to state "I would assume that you did it spontaneously without
premeditation."

Naddi argues the above scenario shows he was entitled to
raise the bar of double jeopardy following the grant of mistrial
even though the mistrial was granted at his request, citing the
holding in Oregon v. Kennedy, supra, 456 U.S. 667. He contends
the record unequivocally shows the prosecutor’s reference to
Colonel Higgins’s murder by Lebanese terrorists was deliberately
intended to force a mistrial. Naddi theorizes the prosecutor
believed the evidence overwhelmingly favored a verdict by reason
of insanity and the deliberate misconduct was a ploy to force the
defense into a position whzre it would have to ask for a mistrial,
giving the People a fresh opportunity to present better evidence at
retrial.

A-16

In Oregon v. Kennedy, supra, 456 U.S. 667, the court
established a very narrow exception to the ordinary rule which
permits retrial following a mistrial to which the defendant consents.
It concluded that harassing or overreaching prosecutorial
misconduct does not bar a retrial, even if it is sufficient to cause a
mistrial on the defendant’s motion, absent an intent on the part of
the prosecutor to subvert the protections afforded by the double
jeopardy clause. (Id. at pp. 675-676, 679.) The Supreme Court
rejected an expanded exception relied on by the Oregon Court of
Appeal which had held retrial would be barred if the prosecutor’s
misconduct was intended to provoke a mistrial or is motivated by
bad faith or to prejudice the defendant.

The holding in Oregon v. Kennedy, supra, 456 U.S. 667, is
clear as it expresses the intent of the United States Supreme Court
in construing the double jeopardy clause of the United States
Constitution. However, the individual states are not prohibited
from adopting a greater degree of protection than that provided
against double jeopardy in the Fifth Amendment of the United
States Constitution. (See Curry v. Superior Court (1970) 2 Cal.3d
707, 716-717.) Naddi asks us to do so here, and adopt a rule that
the California double jeopardy clause is violated whenever during
closing argument a mistrial is declared at the request of the
defense based on deliberate acts of prosecutorial misconduct such
that the failure to make a mistrial motion would have constituted
ineffective assistance of counsel.

This court has considered and rejected a similar argument in
People v. Valenzuela-Gonzales (1987) 195 Cal.App.3d 728, 737.
In that case, the prosecutor violated an express court ruling that he
not question a certain witness about the defendant’s drug arrests.
The court granted a defense motion for mistrial based on the
misconduct of the district attorney. At a second trial, Valenzuela-
Gonzales was convicted on all counts before a different judge.
However, a new trial was granted before sentencing and prior to
the third trial, Valenzuela-Gonzales entered a plea of once in
jeopardy which was denied after hearing by the judge who granted

A-17

the mistrial. On appeal, we -held the trial court’s finding the
prosecutor’s conduct was not intended to goad the defendant into
moving for a mistrial was supported by substantial evidence, and
therefore the double jeopardy principles did not bar a second trial
under the holding of Oregon v. Kennedy, supra, 456 U.S. 667. We
recognized, however, California’s interest in protecting its citizens
has led the courts to interpret its constitutional double jeopardy
clause more broadly. We reviewed state court decisions from
other jurisdictions which found the double jeopardy provisions of
their state constitution should not be construed so narrowly as in

Oregon v. Kennedy, supra, 456 U.S. 667.

In State v. Kennedy (Ore. 1983) 666 P.2d 1316, the Oregon
Supreme Court interpreted that state’s double jeopardy clause to
bar a retrial "when improper official conduct is so prejudicial to
the defendant that it cannot be cured by means short of a mistrial,
and if the official knows that the conduct is improper and
prejudicial and either intends or is indifferent to the resulting
mistrial or reversal." (Id. at p. 1326.) In Pool v. Superior Court
(Ariz. 1984) 677 P.2d 261, the Arizona Supreme Court found the
Arizona Constitution bars retrial after a mistrial granted on motion
of the defendant because of improper conduct or actions by the
prosecutor when that conduct amounts to intentional conduct
which the prosecutor knows to be improper and prejudicial,
pursued for any improper purpose with indifference to a significant
resulting danger of mistrial or reversal, which causes prejudice to
the defendant incurable short of a mistrial. (Id. at pp. 271-272, fn.
omitted.) The Oregon and Arizona Supreme Courts believed the
rule of Oregon v. Kennedy, supra, 456 U.S. 667, required the court
to determine a prosecutor’s intent through a subjective inquiry, the
difficulties of which would make it unlikely for a court to arrive at
the truth.

In People v. Valenzuela-Gonzales, supra, 195 Cal.App.3d 728,
we expressed our disagreement with the reasoning of the Oregon

and Arizona decisions, noting the finding of the trial court on the
issue of intent is no different than inferring the existence or

A-18

nonexistence of intent from objective facts and circumstances
which is a familiar process in our criminal justice system. (See
Oregon v. Kennedy, supra, 456 U.S. at p. 675.) We concluded
there was no independent state reason to apply a different double
jeopardy standard on circumstances such as these than that
adopted in Oregon v. Kennedy. (People v. Valenzuela-Gonzales,
supra, 195 Cal.App.3d at p. 742.) Naddi asks us to reconsider
Valenzuela-Gonzales because it is erroneous. We have
reconsidered that decision in light of his arguments, and adhere to
it. Thus, the dispositive issue is whether the record establishes the
prosecutor’s prejudicial remark was intended to provoke the
defendant into requesting a mistrial.

As we have earlier stated, the trial court did not believe the
prosecutor had such an intent. During the prosecutor’s argument
against granting the defense motion, the court stated it was sure
the prosecutor did not want to retry the case any more than
anyone else. It is noteworthy the trial court indicated its strong
inclination to grant a mistrial immediately after the defense
motion, and before recessing to hear argument. Had the
prosecutor intended his remark to provoke Naddi into requesting
a mistrial to permit the People a better shot in a later proceeding,
that goal was virtually assured before the parties left the
courtroom. Instead, the record shows the prosecutor strenuously
argued against a mistrial for approximately two hours, attempting
to justify his motive in applying the analogy, pointing out his
remarks were interrupted in mid-sentence when the court
sustained Naddi’s objection, and that it was his intent t» explain
the analogy to the jurors in such a way as to eliminate prejudice.
He explained the analogy was suggested to him by Dr. Weissberg
shortly before his argument began as an example of how sane
people intentionally commit illegal and immoral acts under a belief
they are justified in doing so because they are on the side of right.

In Oregon v. Kennedy, supra, 456 U.S. at page 679, the trial
court made no findings of fact relative to whether the prosecutor

intended his conduct to goad the defendant into moving for a

SRN ata

A-19

mistrial. It was not requested to do so and the opportunity never
arose during any of the multiple lower court proceedings because
no plea of former jeopardy was ever entered. It is Naddi’s burden
on this appeal to establish the prosecutor acted with the requisite
intent. He asks us to speculate from the trial court’s
characterization of the prosecutor’s comments as outrageously
inflammatory that it was intentionally introduced to prejudice the
jury against him. However, to trigger the bar of double jeopardy,
it is not enough that the prosecutor intentionally introduce
inflammatory remarks for the purpose of gaining an unfair
advantage at trial, there must be proof the action was taken with
an intent to terminate the existing trial. (Ibid.) Although Naddi
asks us to glean an intent to force a mistrial from the trial court’s
opinion that the conflicting evidence as to his sanity tilted in his
favor, that requires a leap of logic not warranted by the record and
one which is inconsistent with the prosecutor’s lengthy arguments
in Opposition to the motion and his urging the trial ccurt to
admonish the jurors instead.

II

Following the grant of mistrial for prosecutorial misconduct,
attempts to impanel a new jury were aborted because the trial
court expressed doubts as to Naddi’s present sanity. After a
competency trial in which Naddi was adjudged competent, a new
jury was sworn and the evidence taking began. This time the
People announced they intended to present evidence from a
psychiatrist not previously presented. Shortly afte: the trial began
it came to the attention of the court that Naddi’s picture was on
the front page of both the evening Tribune and morning Union
with "teaser" headlines referring to his recent marriage. The
picture on the front page of the Union was placed next to another
"teaser" headline relating to a different person (Dean Carter)
stating, "Serial Killer Gets Death Penalty." Both newspapers
contained stories referring to interviews with Naddi’s new wife
whom he married while in prison during these proceedings, in
which she expressed her belief he was insane at the time the

A-20

killings took place but had recovered, and that he would be
released as soon as the insanity trials were completed. The
Tribune article also mentioned that Naddi had been subjected to
previous sanity trials, one of which had ended with an 11 to 1 vote
for a finding of sanity.

When defense counsel moved for a mistrial, the court
questioned each juror and the four alternate jurors. The inquiry
established that two jurors read a substantial portion of the
articles, one received a phone call from his neighbor who
recounted the Tribune article to him and had also read the Union
"teaser" about Naddi and his new wife. Juror Carol Blaisdell
claimed she did not read either article, but had heard juror Mario
Valencia discuss the articles with other jurors in the courthouse
hall. Juror Valencia, however, claimed he read only two or three
lines of one article and denied discussing the matter with anyone
although he heard other jurors claim they saw the newspaper but
did not read it. The court specifically declared it believed juror
Valencia was not truthful and, in fact, had discussed the article
with other jurors as juror Blaisdell had reported. The other jurors
and alternates either read and heard nothing about these articles
or saw the Union headline. After examination by the court and
counsel, each juror declared their verdict would not be affected by
this publicity.

Initially, the court stated it believed any potential prejudice
could be cured by merely replacing the two jurors who admitted
reading the articles with alternates. However, the defense
attorneys persisted in their request for a mistrial, pointing out that
other jurors were equally tainted, including juror Ernest McKay
who admitted violating the court’s admonition not to let others
discuss the case with him when he permitted his neighbor to read
the entire Tribune article to him, and juror Valencia who the court
had described as “covering up" by giving untruthful testimony
concerning his discussion of the articles with other jurors.

A-21

Once again, the prosecutor vigorously argued against the grant
of a mistrial, stressing his belief that an admonition to the jurors
would be sufficient to cure any potential prejudice. Naddi also
opposed the motion. At the beginning of the second day of the
mistrial hearing, the court stated:

"Yesterday, Mr. Naddi, your two counsel] made a motion
for a mistrial. Do you join in your counsels’ motion for
the mistrial?

"NADDI: No, Your Honor.
"THE COURT: You're against that?
"NADDI: Yes, Sir."

Without further inquiry the court stated: "All right, lets proceed
counsel. It’s your motion. Speak Mr. Crabtree and Ms. Barrett."
No further inquiry was made as to why Naddi was opposed to the
motion.

After considerable discussion and argument as to what
possible forms the prejudice might take, the court pointed to the
several jurors who expressed their surprise, and shock, when
learning that someone in Naddi’s position could be permitted to
marry. The court stated:

"[The defense attorney] has all sorts of speculations about
what effect it have [sic] but you do have people who
describe a reaction of shock. Do you think a reaction of
shock can be expunged in the minds and souls of jurors
by judicial admonition?"

After the prosecutor responded appropriately, the court stated:

"I think most people think that if somebody gets married,
they are planning on a marriage where it is consistent

A-22

with their future state. They may not think that that
means Mr. Naddi is walking out the door, but would be
a pretty safe inference that Mr. Naddi thinks he is,
wouldn’t it? Wouldn’t that be the most logical inference
... that would say something about what Mr. Naddi’s
future plans and state of mind might be? If there is an
inference that would be the most commonsensical one, it
is Mr. Naddi thinks he is going to be a free man soon,
because that’s the state most people associate with
getting married. Most people don’t associate with getting
married if you’re heading for death row."

After the prosecutor suggested the court was basically dealing in
speculation, it stated its belief there were some plausible
interpretations that could be prejudicial including:

"The most likely one that a person who gets married
because it is associated with that state people associate
with getting married outside the prison bars .. . [and]
some of these jurors who were shocked were shocked
that a person in his circumstance would even think it was
possible."

The court then continued:

"[W]e don’t know, do we? They didn’t want to explain
why they were shocked. We couldn’t get them beyond
that attitudinal statement, could we? We tried. They
knew they were shocked, but they didn’t reaily articulate
why."

After a brief recess, the court granted the defense motion for
mistrial, concluding Naddi’s concurrence in the defense motion
unnecessary, relying on People v. Moore (1983) 140 Cal.App.3d
508, 513. It stated that the prejudice caused by at least seven
jurors and two alternates seeing the newspaper headline, which in
the Union was placed beside the headline indicating that a serial

2, Se ee ee Maem

A-23

killer had received the death penalty, created a prejudice the court
believed was incurable by admonition. The court concluded from
its personal observation of the jurors, the prejudice was so great
it was legally necessary to grant the mistrial.

In Curry v. Superior Court, supra, 2 Cal.3d 707, the Supreme
Court declared that absent clear consent of a defendant or

counsel, a case mistried before submission to the jury may not be
retried except for some cause beyond the control of the court
amounting to legal necessity. In Curry, the Supreme Court
rejected a claim of legal necessity where the trial court had
declared a mistrial sua sponte because certain testimony had been
erroneously admitted which the court felt made it impossible for
either the People or the defendant to have a fair trial. (Id. at p.
714.) Examples of legal necessity are disappearance of the
defendant’s attorney in midtrial (People v. Manson (1976) 61
Cal.App.3d 102), defense counsel’s discovery of a conflict of
interest in midtrial (People v. McNally (1980) 107 Cal.App.3d 387,
393), disqualification of a trial judge during trial (T.P.B. v. Superior
Court (1977) 66 Cal.App.3d 881, 886), and a defense counsel’s
misstating evidence in opening statement which undermines the
defendant's credibility (People v. Coleman (1992) 9 Cal.App.4th
493, 496). a

In Arizona v. Washington (1978) 434 U.S. 497, the Supreme
Court considered the standard by which an appellate tribunal
should review a decision of a trial court to grant a mistrial over a
defendant’s objection, in a case where the trial court had made no
findings relative to whether there was a manifest necessity for
granting the mistrial. Although the Supreme Court concluded
defendants have a constitutional interest in their right to have a
trial completed by a particular tribunal (Arizona v. Washington,
supra, 434 U.S. at p. 503, citing United States v. Jorn (1971) 400
U.S. 470, 484, Illinois v. Somerville (1973) 410 U.S. 458, 466, &
Wade v. Hunter (1949) 336 U.S. 684, 689), it held that interest
must in some instances be subordinated to the public’s interest in
fair trials designed to end in just judgments (Arizona v.

A-24

Washington, supra, 434 U.S. at p. 503, citing Wade v. Hunter,
supra, 336 U.S. at p. 689).

The Supreme Court rejected an interpretation of “manifest
necessity" which would preclude the trial court’s exercise of
discretion in cases where a mistrial is not absolutely compelled.
Rather, it found compelling reasons for allowing the trial court to
exercise broad discretion in determining whether a high degree of
necessity requires a grant of mistrial to avoid having the case
decided by a jury which may be tainted by bias. (Arizona v.
Washington, supra, 434 U.S. at p. 516.) In Arizona, the Supreme
Covrt found that in a strict literal sense mistrial was not
"necessary" on the facts presented and that some trial judges might
have proceeded with the trial after giving appropriate cautionary
instructions. However, it felt "the overriding interest in the
evenhanded administration of justice requires that we accord the
highest degree of respect to the trial judge’s evaluation of the
likelihood that the impartiality of one or more jurors may have
been affected by the improper comment." (Id. at p. 517.) The
Supreme Court noted that it had affirmed a trial court that had
concluded the publication of a letter in a newspaper during trial
made it impossible for the jurors to dispose of the trial fairly, even
though it never examined the jurors to determine what influence,
if any, the article may have had on them. (See Simmons v. United
States (1891) 142 U.S. 148, 155.) Having concluded the trial
court’s decision to declare a mistrial is entitled to great deference,
the Supreme Court held that appellate review is to be limited to
determining whether the trial court’s discretion was exercised
soundly, that is not irrationally or irresponsibly.

Here, the court examined jurors and alternates, and permitted
the parties to do likewise. The court heard lengthy arguments
both for and against the grant of mistrial and explained the
reasons for its decision. The court’s perception that the character
of the material to which several jurors and alternates were exposed
was likely to prevent Naddi from having a fair trial even after
judicial admonitions, was concurred in by both defense counsel.

A-25

We find the court’s determination that the extent of the
exposure and the quality of the material to which the jury was
exposed created a legal necessity for a mistrial, and was well within
its discretion. Accordingly, we need not address the issue of
Naddi’s failure to consent.

FARETTA ISSUE
I

On April 8, 1987, Judge Tharp granted Naddi’s Faretta
motion and he continued to represent himself until September 18,
1987, when Judge O’Rourke expressed doubt as to his competency
to stand trial and to waive counsel and temporarily suspended the
proceedings on October 16. A jury found Naddi competent to
stand trial; however, on February 18, 1988, Judge O Rourke
permanently terminated Naddi’s Faretta rights and appointed
counsel. In doing so, the court declared its decision was based on
evidence presented during the competency hearing showing Naddi
suffered from paranoia causing him to have delusions concerning
his present and past attorneys being corrupted by the district
attorney or his murdered wife’s family. The court concluded
Naddi’s decision to waive counsel was influenced by this major
mental disorder to the extent that his action could not be fairly
characterized as voluntary. Judge O’Rourke then presided over
three aborted not guilty by reason of insanity trials during which
time Naddi was represented by a succession of attorneys against
whom Naddi filed numerous Marsden*® motions to have them
involuntarily relieved. During some of the Marsden motions Judge
O’Rourke repeated his opinion Naddi was incompetent to waive
counsel.

Preliminarily, we note that Judge O’Rourke’s ruling on Naddi’s
competency to stand trial, that is to understand the factual nature

5. People v. Marsden (1970) 2 Cal.3d 118.

A-26

of the proceedings against him or to assist counsel in the conduct
of a defense in a rational manner (§ 1367), is qualitatively different
than the mental competency required to make an intelligent
decision regarding self-representation. (See discussion in People
v. Burnett (1987) 188 Cal.App.3d 1314, 1326-1327, and authorities
cited.) Where there is evidence of a defendant’s mental illness, a
trial court should consider psychiatric evidence when deciding a
request for self-representation. (Id. at p. 1329; People v. Salas
(1978) 77 Cal.App.3d 600, 605.)

When Judge O’Rourke announced his decision, he cited the
standard adopted in Curry v. Superior Court (1977) 75 Cal.App.3d
221, 227. There, the court deferred to the United States Supreme
Court decision of Westbrook v. Arizona (1966) 384 U.S. 150, which
distinguished between competency to stand trial and the
competency to make a knowing and intelligent waiver of the right
to counsel. From Curry, Judge O’Rourke noted one
commentator’s interpretation of Westbrook as holding "a
defendant must be free of mental disorder which would so impair
his free will that his decision to waive counsel would not be
voluntary," citing Silten & Tullis, Mental Competency in Criminal
Proceedings (1977) 28 Hastings L.J. 1053, 1066. Further, the court
made its finding immediately following testimony of six doctors to
the effect that Naddi suffered from a major mental disease,
paranoia. Some doctors concluded Naddi had delusions that his
entire array of defense counsel had turned against him because of
a conspiracy with the district attorney’s office and/or his murdered
wife’s family. In support of Naddi’s position he was incompetent
to presently stand trial, his attorney emphasized the conspiracy
obsession regarding his attorneys was the product of his mental
illness. He also emphasized the doctors unanimously agreed he
suffered from a mental illness, and some clearly concluded Naddi
totally lacked insight regarding that illness.

Judge O’Rourke applied the proper legal standards in
evaluating Naddi’s competency to make a choice concerning self-
representation and applied it to substantial psychiatric evidence

A-27

showing he lacked that competency. Accordingly, we find Naddi
was not unconstitutionally deprived of his right to self-
representation during the guilt phase of his trial which then
ensued.

IT

Naddi also argues his Sixth Amendment right to counsel and
self-representation required the trial court to continue the guilt
trial until such time as he regained his competency to choose self-
representation. He cites no authority for this proposition, made no
motion for continuance and does not suggest he was at all inclined
to agree to waive his constitutional right to a speedy trial. We
hold there is no sua sponte duty on the trial court to continue
trials of persons mentally competent to stand trial (§ 1368) who
are presently mentally incompetent to voluntarily and knowingly
waive their rights to an attorney on the mere possibility that
sometime in the future they may achieve that enhanced level of
competency.

We reject Naddi’s argument that a finding he was not
competent to make a knowing choice as to whether to exercise his
right of self-representation is the functional equivalent of finding
him mentally incompetent to conduct his own defense in a rational
manner, which would require criminal proceedings to be stayed
pursuant to section 1367. As explained in Curry v. Superior Court,
supra, 75 Cal.App.3d at page 227, the standard in evaluating one’s
ability to make a required voluntary and knowing Faretta waiver
is not the same as that of section 1368. (See also Westbrook v.
Arizona, supra, 384 U.S. 150.) Naddi cites the holding of Godinez
v. Moran (1993) 113 S.Ct. 2680, for the proposition that
competency to act as one’s own attorney is subject to no higher
test than competency to stand trial. That is the Godinez holding;
however, Naddi attempts to extrapolate it into a holding that the
test for determining whether a "waiver" of one’s right to counsel is
the same. This argument is contrary to express language in
Godinez which recognizes there is a heightened standard for

A-28

adjudging whether a waiver is knowing and voluntary. (Id. at pp.
2687-2688.) Because Naddi’s premise is incorrect, we reject his
conclusion that he was convicted while legally incompetent.®

III

Naddi contends Judge O’Rourke lacked jurisdiction to “either
ignore or review" the earlier Faretta ruling made by Judge Tharp
which had granted him the right to represent himself. Although
unclear, it appears Naddi’s jurisdictional argument assumes Judge
O’Rourke countermanded Judge Tharp’s earlier Faretta
determination and set it aside because he believed it was error.
On this erroneous assumption Naddi argues an order made in one
department of a superior court cannot be ignored or overlooked
by another department because under California Constitution
article VI, section 4 jurisdiction is vested in the court and not in a
particular judge or department. (Citing In re Kowalski (1971) 21
Cal.App.3d 67, 70.) However, the record shows Judge O’Rourke’s
determination rested upon his perception of Naddi’s present
competency from personally observing Naddi’s conduct and
statements, and considering the psychiatric testimony.

Although we have found no case directly on point, decisional
dictum in People v. Clark (1985) 168 Cal.App.3d 91, 95, suggests
it is conceivable that a defendant’s conduct during criminal
proceedings might be so deficient or irrational as to indicate that

6. Although the question of whether Naddi was mentally
competent to waive counsel was not the issue given to the section
1368 jury to determine, the question was asked of various testifying
psychiatrists. Dr. Donald Duff believed Naddi’s delusions adversely
affected his ability to reason and make a judgment as to whether he
should represent himself. Dr. E. W. Klatte gave the same opinion.
Dr. Richard Rappaport agreed. On the other hand, Drs. William
Vargas and Bernard Hansen believed Naddi was capable of making
a free choice to waive counsel and represent himself. Dr. Kaushal
Sharma also believed Naddi was competent to make a voluntary
waiver.

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a prior correct Faretta determination should be reconsidered in the
interest of justice. In Clark, the court concluded there was no sua
sponte duty to reconsider the previous finding of Faretta
competency mid-trial merely because of a defendant’s eccentric or
bizarre behavior. However, it specifically noted that evidence of
a defendant’s history of psychiatric problems was not brought to
the court’s attention until after trial (People v. Clark, supra, 168
Cal.App.3d at p. 96), implying the trial court might have been held
to a different standard had there been evidence suggesting an
impaired mental state. Here, not only was there current
psychiatric evidence to explain Naddi’s observed delusional and
irrational comments relating to attorney conspiracy, there was
evidence of Naddi’s previous finding of mental incompetency and
state hospital commitment. Judge O’Rourke’s inquiry was
exhaustive and pursued in the interest of justice.

IV

At the completion of the guilt phase and the mistrial of the
first sanity phase trial, Naddi again moved to proceed pro per.
The court appointed psychiatrists to again examine Naddi and
present evidence on the Faretta issue. When the court advised
Naddi it intended to appoint Attorney Raymond Murphy to
represent him in this proceeding, Naddi requested a different
appointment due to the fact Murphy had represented him in
earlier proceedings and had expressly declared a belief Naddi was
incompetent to represent himself. Murphy did appear at the next
hearing and was appointed to represent Naddi. When Naddi again
objected that Murphy would take a position opposite to his on the
competency issue, the court inquired. Murphy responded that he
had not yet seen all the doctors’ reports, but the ones that he had
seen indicated Naddi was capable of waiving his right to counsel.
The court then asked Naddi, "Does that answer your question?"
Naddi responded, "Yes, Your Honor." The court admonished
Murphy that if he found a reason for not going forward with this
representation he should advise the court and the court would find
another attorney. When the case was called, the court again

aii a iA aid

A-30

inquired of Murphy as to whether he was going to assert Naddi’s
right to represent himself to which Murphy responded that most
reports indicated Naddi was competent to make the election.
Naddi made no further objection and the hearing proceeded.
During the examination of the doctors, and the examination of
Naddi himself, Murphy vigorously emphasized points of evidence
most favorable to Naddi’s position. During argument, he
emphatically declared the weight of the evidence tilted heavily in
favor of Naddi’s competence to make a knowing waiver of counsel,
as well as to represent himself. Naddi, who had been most
assertive in earlier expression of concern with Murphy’s ability to
provide adequate representation, made no comment evidencing
dissatisfaction with Murphy’s actual performance. We find it to
have been professional and totally directed toward achieving the
competency result Naddi preferred, contrary to the vituperative
characterization in Naddi’s brief. The fact Judge O’Rourke was
unpersuaded by Murphy’s advocacy and that all but one
psychiatrist believed Naddi was mentally competent to make a
knowing waiver of counsel does not, on this record, reflect
inadequacy of Murphy’s representation. The court stated it relied
on Dr. Rappaport’s clear opinion that Naddi continued to be
delusionally incapable of making a rational decision. The court
was entitled to give greater credence to Dr. Rappaport’s opinion
than the other psychiatrists after evaluating the opinions in light of
its own extensive observations of Naddi’s conduct which, in regards
to attorneys, it found corroborative of Dr. Rappaport’s conclusion
that Naddi’s ability to make a knowing and rational Faretta choice
was substantially impaired by his delusions.

V

After the third sanity phase trial was mistried, Judge
O’Rourke was removed from the case. The matter was referred
to the presiding department where Naddi promptly brought a
Marsden motion against his present attorneys and advised the
court he had refused to cooperate with and talk to his attorneys
and would continue to do so in the future. Naddi advised the

EAP AE

MERE BIT MEI ek dE)

A-31

court he objected to the fact his attorneys were spending time
reading the thousands of pages of transcripts generated during the
(1) guilt, (2) competency, and, (3) aborted sanity trials,
commenting that he had told them those transcripts contained
errors. However, he affirmed that although he had personally
identified numerous errors in those transcripts he refused to
identify them to his attorneys. When the court denied his motion
to substitute attorneys, he asked the court for the right to
represent himself. The motion was summarily denied and the
matter assigned to Judge Edwards. Naddi then asked Judge
Edwards for the right to represent himself during a hearing in
which Naddi denied his paranoia regarding his attorneys conspiring
to work against his stated interest. "It’s obvious now they
[attorneys] are cutting away on me so that -- they did the same
thing in the past and now its another story that is repeating itself
cutting my progress to my pro per status." Naddi faults Judge
Edwards’s treatment of his oral request of May 31, 1990 as unduly
abbreviated; however, only one month before, the court had
denied Naddi’s written request for self-representation and stated
it had no doubt that, based upon the court’s observation of Naddi,
the psychiatric diagnoses of delusions were correct and he
presently lacked the mental capacity to make a knowing and
intelligent waiver of counsel. Although Naddi now contends Judge
Edwards denied him a Faretta hearing, the record shows that is
incorrect. Although it was not a hearing in which psychiatric
testimony was again taken, the court’s remarks show it considered
evidence taken at the previous Faretta hearing and evaluated it in
light of its own current observations. It was in light of all these
facts the court concluded Naddi continued to be affected by
conspiratorial delusions regarding all attorneys to the extent he
could not make a rational, intelligent choice between representing
himself or having counsel. On this record, there is no showing of
an abuse of discretion in the court’s finding.

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THE MIRANDA ISSUE

Shortly after Naddi was arrested, he waived his Fifth
Amendment rights after being properly admonished pursuant to
the requirements in Miranda v. Arizona, supra, 384 U.S. 436.
During the interrogation Naddi was asked whether he would “like
to see someone tonight, a psychiatrist or someone[?]" Presumably
the interrogating officer was less solicitous about Naddi’s well-being
than obtaining a psychiatric evaluation as close to the time of the
murders as possible. After Naddi said no, the officer stated, "You
don’t need to see that?" Naddi replied at first that he might, but
did not know and finally that "well, it doesn’t hurt." Shortly
thereafter, Naddi was introduced to Dr. Griswold, a psychiatrist,
and Dr. Dickson, a psychologist, with the representation they
would ask him some questions. Naddi responded, "All right" and
the officer then proceeded to again Mirandize him. Naddi again
waived his Miranda rights and the interrogating officer left the
room. Before examining Naddi, Dr. Griswold made it clear that
he and Dr. Dickson had been asked to examine him on behal: of
the district attorney and taat he would report to that office.
Further, that the proceeding would not be confidential. Naddi
responded, "Okay." The results of this examination were in fact
reported to the district attorney’s office and were considered by
each expert who testified at the various sanity phases after Naddi’s
motion to suppress for violation of Miranda was denied.

Naddi now claims he was goaded by the interrogating officer
into agreeing to speak to Dr. Griswold after he had already
unequivocally indicated he did not wish to submit to psychiatric
examination or interrogation. Although Naddi replied "No" when
initially asked if he would like to see a psychiatrist, the
interrogating officer’s ensuing comments can hardly be interpreted
as designed to overreach Naddi’s will or characterized as goading.
In context, the above dialogue immediately followed an inquiry
from the officer whether Naddi had been seeing a psychiatrist for
any problem. Naddi stated he had called the psychiatric hotline to
arrange an appointment for his wife concerning their problems

A-33

approximately four days earlier, but that he had not been seeing
a counselor for himself. It was then he was asked whether he
would like to see someone like a psychiatrist that evening and he
responded "No." The officer inquired, "You don’t need to see
that?" Naddi replied, "I might myself, I don’t know." When the
officer replied “If you want that we can arrange it," Naddi
essentially acquiesced.

Naddi’s challenge on appeal is specific: That his initial "No"
response was an unambiguous indication he wished to avoid
further questioning on the subject of psychiatric examinations. He
analogizes this colloquy as an indication of his right to remain
silent. (Citing Michigan v. Mosley (1975) 423 U.S. 96.) However,
Naddi’s initial response cannot be fairly construed as an invocation
of his Fifth Amendment rights to remain silent. The general
interrogation continued after the colloquy concerning the officer’s
willingness to arrange a meeting with the psychiatrist if Naddi so
chose. Further, Naddi was again advised he had the right to
remain silent and not speak to Dr. Griswold before that
examination occurred, and Dr. Griswold made it very clear that the
questions and answers would not be confidential but would be
provided to the prosecuting attorney. Since Naddi had just been
advised that anything he said could and would be used in court
against him, we find no Miranda violation.

SENTENCING *

The court imposed a sentence of life without possibility of
parole. However, in articulation the court stated:

"The defendant is to serve an additional two years as to
each allegation of P.C. 12022.5 in counts 1, 2, 3, 4, 5 to
run consecutively to each count and consecutive to each
other, for a total term of 135 years to life. Per P.C.
190.2(a)(3), special circumstance, the term is life without
the possibility of parole."

eT

A-34

Naddi characterizes this as imposing a consecutive sentence of life
without possibility of parole to 5 consecutive sentences of 27 years
to life. In fact, Naddi argues that sentencing him to a 25 year to
life sentence on one murder while consecutively sentencing him to
another 25 year to life sentence for another murder, the latter
which served as a basis of the special circumstance, punishes him
for one murder twice in violation of section 654. However, the
jury verdicts on each of the five counts required a sentence of life
without possibility of parole. That sentence was imposed as
required by law. Although the People agree the imposition of
each of the five life without possibility of parole sentences
consecutively could be accurately described as redundant, in any
event the actual sentence is life without possibility of parole.
Naddi does not argue that consecutive life without possibility of
parole sentences are unauthorized. He only argues the
determinate sentences also purported to be imposed consecutively
to the sentence of life without possibility of parole. However, this
misreads the abstract of judgment which merely recites the
determinate sentences for each count to which Naddi will be
subject should the life without possibility of parole special
circumstance sentence be vacated on any count.

Alternatively, Naddi argues imposing both two 27 year to life
sentences for two of the murders and then imposing the
punishment of life without possibility of parole by using those same
two murders constitutes a direct violation of section 654. That is,
he argues section 654 precludes punishing one murder separately
and then inflicting additional punishment by increasing punishment
for a second murder from 25 years to life to life without possibility
of parole. In People v. Price (1991) 1 Cal.4th 324, 492, the
Supreme Court asserted: "Section 654 does not preclude separate
punishment for crimes of violence committed against separate
victims." Price is acknowledged by Naddi who, however, attempts
to distinguish it. In Price, the court resolved the issue of whether
section 654 precluded punishment for one murder simply because
it was used as a second special circumstance for a second. The
first murder was not a capital offense for which an indeterminate

A-35

A ae Clge Sr Obes Fb CISL. AAS CS ort ae

ented

RGR SET

ae i Sy eres

term of 25 years to life was imposed. For the special circumstance
murder, the sentence was death. Naddi argues the facts of Price
significantly differ from this case where five life without possibility
of parole sentences were imposed and make the Supreme Court’s
section 654 holding in Price not applicable. However, the
Supreme Court did not base its conclusion on the specific facts of
that case, but cited its earlier holding in People v. Beamon (1973)
8 Cal.3d 625, 638, footnote 10, for the plain proposition that
section 654 does not preclude separate punishment for crimes of
violence committed against separate victims. That is clearly the
case here, regardless of the type of sentences imposed. Granted,
the Supreme Court in Price does go on to state: "Moreover,
defendant will be required to serve the sentence for the [first]
murder only in the event the death sentence for the [second]
murder is set aside." (People v. Price, supra, 1 Cal.4th at p. 492.)
However, that comment is merely an aside and is not, as Naddi
would urge, the basis for its conclusion regarding the applicability
of section 654 to crimes of violence against separate victims.

CULBRETH ISSUE

The court imposed a separate two-year gun use enhancement
to each of the five indeterminate terms. Naddi argues that four of
these must be set aside under the authority of In re Culbreth
(1976) 17 Cal3d 330% Culbreth holds that only one
enhancement may be imposed on multiple counts involving
multiple victims of violent crime for any charged offenses which
are incident to one objective and effectively comprise an indivisible
transaction. In People v. King, supra, 5 Cal.4th 59, the Supreme
Court permitted only one enhancement where the defendant
robbed a drug store at gunpoint and shot two attendants, noting

7. Culbreth’s holding relevant to this issue was recently overruled
in People v. King (1993) 5 Cal.4th 59, 79-81. However, the ruling in
King was prospective only and the court ordered it not be applied
retroactively to crimes committed prior to the finality of its King
decision.

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both victims were intended from the outset and there was only a
brief time gap between the shootings which occurred at the same
location. It distinguished cases such as People v. Pride (1992) 3
Cal.4th 195, 269, which imposed separate enhancements for
stabbings occurring at least 30 minutes apart in different areas of
an office building, and People v. White (1981) 117 Cal.App.3d 270,
284, where a defendant reloaded his gun and traveled from one
side to the other of a city hall to commit separate killings.
Further, it approved the resolution hypothetically discussed in
People v. Raby (1986) 179 Cal.App.3d 577, to the effect that if a
second victim had unexpectedly appeared on the scene causing the
defendant to react to the turn of events by shooting, multiple
firearm use enhancements would have been permitted. (See

People v. King, supra, 5 Cal.4th at p. 81.)

Here, Naddi reloaded his gun on numerous occasions and at
one time had to go obtain additional ammunition.

Naddi does not cite any facts of this case which show that he
comes within the Culbreth rule. His argument consists only of a
bare conclusion that his "single use of a firearm comes within the
Culbreth rule." (For that matter, the People’s brief is not very
helpful.) In any event, Naddi’s loading of a firearm, then walking
from room to room to shoot four sleeping persons and then
walking back downstairs to shoot his wife sitting at a table is hardly
akin to the commission of a "single frenetic act of violence" which
resulted in multiple victims described in Culbreth. Here, there is
not one indivisible transaction, but a separate deliberate seeking
out of five separated victims. Although the shootings occurred
close in time, we conclude they are not part of one indivisible
transaction as contemplated by Culbreth.

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DISPOSITION

The judgment is affirmed.

WE CONCUR:
TODD, J.

BENKE, J.

WORK, Acting PJ.

A-38

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TOUFIC BADIH NADDI,
Petitioner,

V.

D.R. HILL, WARDEN,
Respondent.

Civil No. 95-0022-J(AJB)

REPORT AND RECOMMENDATION
Filed January 23, 1996

Petitioner, a state prisoner, proceeding pro se, has filed an
Application for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (1988). This Court, having reviewed all of the pleadings
and relevant exhibits submitted by both parties, hereby
recommends as follows: (1) that Petitioner’s application for a Writ
of Habeas Corpus based upon his claims that his conviction was
obta: xed in violation of double jeopardy when the secund and third
sani,’ phase trials were mistried should be DENIED; (2) that
Petitioner’s application for a Writ of Habeas Corpus based upon
his claim that he was denied effective assistance of counsel should
be DENIED; and (3) that Petitioner’s application for a Writ of
Habeas Corpus based upon his claim that he was denied his right
to self-representation should be GRANTED, and that the case
should be reversed and remanded for a new trial.

A-39

BACKGROUND

On September 17, 1990, Petitioner was convicted of five
counts of first degree murder with personal use of a firearm.
Pursuant to his conviction, he received consecutive life sentences
without the possibility of parole and an aggregate term of 135
years to life. Petitioner’s Application for a Writ of Habeas Corpus
in this Court raises four issues: (1) The Petitioner’s conviction was
obtained in violation of the protection against double jeopardy
when a mistrial was declared during the second sanity phase trial
as a result of comments made by the prosecutor during closing
arguments; (2) The Petitioner’s conviction was obtained by a
violation of the protection against double jeopardy when a mistrial
was declared during the third sanity phase trial as a result of
alleged juror misconduct; (3) The Petitioner was denied effective
assistance of counsel when counsel failed to raise double jeopardy
arguments following the mistrials of the second and third sanity
phase trials; and (4) The Petitioner was denied his right to self
representation. Each of these issues were raised in Petitioner’s
Application to the California Supreme Court for review.
Therefore, Petitioner has exhausted his state court remedies and
this Court’s review is proper.”

DISCUSSION OF PETITIONER’S CLAIMS FOR RELIEF

1. Petitioner’s Claim that his Double Jeopardy Rights were Violated
Upon Mistrial of the Second Sanity Phase Trial.

Petitioner claims that his conviction was obtained in violation
of the protection against double jeopardy when, during the closing

1. The unpublished opinion of the California Court of Appeal
sets forth, in great detail, the factual background regarding the five
first degree murder charges. (See Respondent’s Exhibit 1.) To the
extent that a more extensive factual recitation is necessary for
consideration of the claims in this Petition. the Court will set out
those facts in the discussion of those claims.

A-40

arguments of the second sanity phase trial, the prosecutor made
prejudicial comments. Because of the prejudicial nature of the
comments, counsel for Petitioner moved for mistrial and the
motion was granted. Counsel for Petitioner did not, prior to the
beginning of the third sanity phase trial, enter a plea of once in
jeopardy. Therefore, there was no explicit finding by the trial
court whether the prosecutor’s comments were made with the
intent to goad the defense into requesting a mistrial so as to bar
retrial under the principles set forth in Oregon v. Kennedy, 456
U.S. 667 (1982). The California Court of Appeal, however, found
that the trial court implicitly rejected the argument that the
prosecutor made his comments with an intent to goad the defense
into requesting a mistrial. See,Respondent’s Exhibit 1, p. 23.

A. Discussion of the Law.

Pursuant to Oregon v. Kennedy, 456 U.S. 667 (1982), where
a trial is terminated upon the request of defendant, double
jeopardy does not bar retrial absent an intent on the part of the
prosecutor to subvert the protections afforded by the double
jeopardy clause. Id. at 676. This test requires the court to
examine the objective facts and circumstances surrounding the
request for a mistrial, and make a determination or finding of fact
as to whether the prosecutor intended, by his or her conduct, to
provoke the defendant into requesting a mistrial. Id. at 675.
Because the issue of intent regarding the prosecutor’s conduct in
a claim of double jeopardy under Oregon v. Kennedy is a finding
of fact, the finding of the state court is entitled to a presumption
of correctness under 28 U.S.C. § 2254(d) and is reviewed for clear
error. Greyson v. Kellam, 937 F.2d 1409 (9th Cir. 1990); Weston
v. Kernon, 50 F.3d 633, 636 (9th Cir. 1995). In addition, an

evidentiary hearing is necessary only where an examination of the
record reveals that the state court’s finding is not entitled to the
presumption of correctness. Greyson, 937 F.2d at 1415.

A-41

B. Examination of the Trial Court Record.

On August 8, 1989, following the close of evidence in the
second sanity phase trial, the prosecutor began his closing
argument. After the prosecutor argued approximately 40 minutes,
the court broke for lunch and resumed again at 1:30 p.m. The
prosecutor continued his closing argument. Following
approximately another hour of argument, the prosecutor made the
following statements:

All the doctors do agree on one thing, though, this is an
encapsulated delusion, that Mr. Naddi’s delusion is only
in one area. They all agree that he was not having
hallucinations, not hearing the voice of God, no
commands from God. They all agree that he did not feel
controlled, did not feel obligated, and as Dr. Strauss said,
he did not feel powerless, commanded, victimized, so that
he could not resist the will of God or some other force.

The delusion gave him false information, just as Dr. Jaffe
said, just as Dr. McTigue said, just as Dr. Weissberg said,
but it didn’t give him a way out. It left him hanging out
on that limb and he had to go and see what to do about
it and he had to decide for himself what to do about this
bad thing and he made a wrong judgment.

It was his value system, as Dr. McTigue said, not part of
a delusional value system, but he felt child molest was the
worst crime, it was worse than murder. That was his
values, but it was not insane values. Maybe some people
believe that, I don’t know, but it was a value system that
he had built up and he made a decision.

People often feel that they are in the right, they are on
the side of justice, but it is not sufficient to feel justified
and to think that something is right. The question is,
whether or not the person has the capacity to understand

A-42

right from wrong. Mr. Naddi was making those decisions.
He made that decision on his wife, at the time, that she
had morally done something wrong by offering this
money. Habib was committing incest, that was morally
wrong. He was making those decisions, and then no
different than the people who hung Colonel Higgins last

week --

Mr. Crabtree: Objection, your Honor.

Mr. Boles: -- They thought that they were on the side of
right.

The Court: Why don’t you approach?

(OUT OF THE PRESENCE OF THE JURY.)

Mr. Cabtree: That is improper argument, your Honor.
The Court: Why?

Miss Barrett: That is the second reference to the Middle
East. He earlier referred to Allah after he said God’s

will. He also said --

The Court: You think it is an attempt to prejudice and
inflame the jury against Mr. Naddi?

Mr. Barrett: It certainly is. I would make a motion for
mistrial.

Mr. Boles: Your Honor, it is an example of something
that has recently happened and well known.

The Court: Mr. Naddi is of Middle Eastern origin, isn’t
he, he is from Lebanon?

A-43

Mr. Boles: It was an example that was discussed
between myself and Doctor Weissberg. He brought it up
to me.

The Court: I'll order a recess because I am strongly
inclined to grant a mistrial. We will go talk about it.

43 R.T. [8-8-89] 8275-8277 (emphasis added). At this point in
time, the court took an afternoon recess, after which counsel
argued at length about whether a mistrial was proper. The
prosecutor strenuously opposed a mistrial and argued that any
perceived prejudice from the comment comparing Petitioner to the
people who had killed Colonel Higgins could be cured by a strong
admonition by the court to the jury to disregard the comment.
The prosecutor argued that the evidence before the jury showed
that Petitioner was not a Shiite Muslim, like the persons who had
executed Colonel Higgins, but rather was a Marionite Christian.
43 R.T. [8-8-89] 8278, 8281, & 8285. The prosecutor also
attempted to clarify to the court that he did not intend to liken
Petitioner to terrorists, but rather wished to give an example of
people who believe they were justified in what they were doing.
Id. at 8278, and 8281. Following a remark by the prosecutor that
he did not intend to inflame or prejudice the jury, the court stated
as follows: "I’m sure that you don’t want to retry the case anymore
than anyone else does, Mr. Boles, that is probably so. Misconduct
does not require intent. It can come about by negligence as well.
I’m not passing judgment." Id. at 8287. The court went on to
explain, "I would assume that you did it spontaneously, without
premeditation, but that has nothing to do with the prejudicial
effect or whether it can be cured, it is not my role to try to ferret
those things out." Id.

Shortly thereafter, the court recessed for the afternoon,
instructing counsel that any further argument regarding the defense
motion for a mistrial would be heard the following morning. The
court also gave a tentative ruling that it was inclined to grant the
Motion for Mistrial. When court resumed again in the morning,

A-44

the prosecutor continued to argue strenuously against a declaration
of mistrial. Despite the prosecutor’s arguments, however, the court
granted the defense motion for a mistrial and stated as follows:

The defense motion for a mistrial is granted. The court
does not find Mr. Boles’ explanation of his statement or
his interpretation satisfactory. I think in conjunction with
this is an irresponsible attribution to Dr. McTigue that
Mr. Naddi made reference to the will of Allah as quoting
her when she said no such thing in connection with the
blatant reference to Colonel Higgins. That was an |
unjustifiable and outrageous appeal to ethnic and racial
prejudice.

Mr. Boles was well advised at the beginning of the trial
and concurred that it was necessary to keep this trial free
from any possible taint of prejudice against the defendant
because of his origins in the Mideast.

Questions were placed in the questionnaire. It was
prepared jointly by the prosecution and the defense to
elicit from our prospective jurors their attitudes about
persons from the Mideast. It was the practice of both
the defense and the prosecution in the course of the jury
selection to immediately stipulate to the removal from
our panel of any prospective juror who harbored any hint
of prejudice against people from the Mideast.

I believe that the evidence in this case is so closely
weighed where it is well within the range of the evidence
that this jury could have returned a verdict of not guilty
by reason of insanity because of the overwhelming
number now of expert witnesses who are of the opinion
that Mr. Naddi is legally insane.

I just think the weight of the evidence was in Mr. Naddi’s
favor and under the circumstances of this case as it

en ———————

A-45

stands with the testimony before the jury, I believe that
the statements made by Mr. Boles are more than
sufficient to deny Mr. Naddi the possibility of a fair trial
and to tip the scales against him.

43 R.T. [8-8-89] 8309-8311. Thereafter, the court discharged the
jury and set a time to resume jury selection for the new trial.

Because Petitioner’s trial counsel did not enter a plea of once
in jeopardy, there was no subsequent hearing by the trial court to
specifically determine the question of whether the prosecutor's
comments were made with the intent to goad defense counsel into
requesting a mistrial. Upon appeal, the California Court of
Appeal examined the trial court’s record and found that the trial

| court implicitly rejected a finding that the prosecutor had the
| requisite intent under Oregon v. Kennedy. Respondent’s Exhibit
| 1, p. 23. In so finding, the California Court of Appeal focused
upon several factors including: (1) The trial court’s statements
that it was sure the prosecutor did not want to retry the case; (2)
The trial court’s statement that misconduct does not require intent;
(3) The trial court was inclined to immediately grant a mistrial
following the defense motion, but the prosecutor continued to
strenuously oppose the motion for mistrial; (4) The prosecutor
attempted, at length, to explain the purpose of his comments; and,
(5) The prosecutor urged the court to continue the trial and
admonish the jury strongly to disregard his comments. In the
aggregate, the court of appeal found an implicit rejection by the
trial court of any intent by the prosecutor to goad a mistrial.

Upon review of the record of the trial court, the Court
| acknowledges Petitioner’s argument that the trial judge made many
| comments condemning the prosecutor’s remarks. The trial court
expressed its belief that the prosecutor’s comments were extremely
inflammatory and prejudicial, and an appeal to racial prejudice.
Despite such comments, reviewing the record as a whole, this
i Court cannot say that the court of appeal’s finding of lack of intent

on the part of the prosecutor sufficient to bar retrial under Oregon

a eee

A-46

v. Kennedy, »; unsupported by the record. Therefore, this Court
recommends that Petitioner’s application for a Writ of Habeas
Corpus upon his claim that his conviction was obtained in violation
of double jeopardy should be DENIED.”

2. Petitioner's Claim that his Double Jeopardy Rights were Violated
Upon Mistrial of the Third Sanity Phase Trial.

Petitioner claims that his conviction was obtained in violation
of the protection against double jeopardy when, during the third
sanity phase trial, the court granted defense counsel’s motion for
a mistrial based upon a finding of prejudice arising out of juror
misconduct. After being advised that jurors had been exposed to
publicity regarding Petitioner, defense counsel requested that the
trial court declare a mistrial. Petitioner did not join his counsel in
this request, but rather specifically opposed a declaration of
mistrial. After examining the jurors regarding their exposure to
the publicity, and the effects of that publicity on their ability to
serve as jurors in the case, the trial court found that there was
prejudice to the defendant, arising out of juror misconduct. Based
upon that finding of prejudice, and upon the further finding that
such prejudice could not be cured by an admonition to the jury,
the trial ccv ct determined that a mistrial should be declared due
to legal necessity.

2. Respondent also argues that petitioner waived his right to
raise double jeopardy by failure to enter a plea of once in jeopardy
under Cal. Penal Code, § 1016, and that even if double jeopardy was
violated, any violation during the sanity phase would not implicate
the jury’s finding of guilt during the earlier phase of the trial. First,
it is clear that if petitioner had a valid double jeopardy claim under
Oregon v. Kennedy, which trial counsel failed to raise, trial counsel’s
failure to raise a claim of once in jeopardy would amount to
ineffective assistance of counsel, and cause to excuse any procedural
default. Murray v. Carrier, 477 U.S. 478-488 (1986). Further,
because this Court finds that double jeopardy is not imiicated, it
need not reach the question of the effect of double jeopardy in a
sanity phase trial on the guilt phase verdict.

q
4
Z
4
i
j

A-47

A. Discussion of the Law

Double jeopardy does not bar retrial, following the declaration
of a mistrial, if the defendant consents to the mistrial or if the
mistrial is declared as a result of "manifest necessity." United
States v. Tateo, 377 U.S. 463, 467 (1964); Arizona v. Washington,
434 U.S. 497, 505 (1978). The trial court in this case found that
Petitioner was not required to personally consent to a motion for
mistrial and that such a motion is within the realm of decisions to
be made by defense counse! pursuant to People v. Moore, 140 Cai.
App. 3d 508, 513 (1983). A review of federal authorities shows,
however, that the right to consent to the declaration of a mistrial
and forego having the trial completed by the first jury emaneled t:,
hear defendant’s case is a personal right of a defendant, which
cannot be waived by defense counsel. See Weston v. Kernan, 50
F.3d 633, 638 (9th Cir. 1995)("The mistrial declaration without
Weston’s clear acquiescence, deprived Weston of an opportunity
to decide whether he wanted to allow the first jury empaneled [sic]
decide his fate."); United States v. Rich, 589 F.2d 1025, 1032 (Sth
Cir. 1978)(defendant’s attorney was not empowered or authorized,
expressly or impliedly, to waive defendant’s right to finish trial by
the empaneled jury). Theref~re, as Petitioner did not personally
consent to the declaration of mistrial, the trial court’s declaration
of a mistrial may stand only if it was required by "manifest
necessity".

The Ninth Circuit Court of Appeals has set forth standards to
be used by federal courts in determining whether the trial court
properly exercised its discretion in declaring a mistrial without the
consent or over the objection of a defendant. United States v.

Bates, 917 F.2d 388, 394 (9th Cir. 1990). In such a circumstance,
the trial court may declare a mistrial if "an impartial verdict cannot
be reached, or if a verdict of conviction could be reached but
wouid have to be reversed on appeai due to an obvious procedural
error in the trial." Id. at 395. The clearest case is where a reversal
on appeal is imminent -- the "ends of justice" would not be served
in requiring the trial to continue to verdict. Where it is not clear

A-48

that the verdict would be reversed on appeal due to error, the
appellate court, in reviewing the trial court’s decision to declare a
mistrial, should consider the following factors: (1) whether the
trial court heard the opinions of the parties about the propriety of
a declaration of mistrial; (2) whether the trial court considered
alternatives to a mistrial and_has taken the course of action least
harmful to the defendant’s rights; (3) whether the trial court acted
deliberately; and (4) whether the trial court made a determination
of the benefits to defendant of the declaration of a mistrial. Id. at
395-96.

The factual findings of the trial court which underlie the
finding of “manifest necessity" are entitled to a presumption of
correctness under 28 U.S.C. § 2254. Weston v. Kernan, 50 F.3d
633, 636 (9th Cir. 1995). However, the trial court’s finding of the
existence of "manifest necessity," sufficient to justify declaration of
a mistrial without defendant’s consent and even over defendant’s
objection, is an issue of law to be reviewed de novo upon federal
habeas review. Id. The trial court’s determination to declare a
mistrial due to the existence of "manifest necessity" arising out of
juror bias is to be afforded the highest level of judicial deference
upon appellate review. Arizona v. Washington, 434 U.S. at 510;
Weston, 50 F.3d at 638. This level of deference is appropriate
because the trial court

fHjas seen and heard the jurors during their voir dire
examination. He is the judge most familiar with the evidence
and the background of the case or trial. He has listened to
the tone of the argument as it was delivered and has observed
the apparent reaction of the jurors. In short, he is far more
"conversant with the factors relevant to the determination"
than any reviewing court can possibly be.

Arizona v. Washington, 434 U.S. at 513-14.

A-49

B. Examination of the Trial Court Record

On January 23, 1990, a jury was sworn to try the third sanity
phase trial. Following two days of evidence in this third Sanity
phase trial, on January 31, 1990, the trial judge and counsel were
alerted to the fact that several newspapers had run articles the
evening of January 30, 1990 and the morning of January 31, 1990,
regarding the Petitioner. Specifically, the San Diego Union ran
three "teaser" boxes, above the title of the newspaper, one of
which contained a picture of Petitioner along with the title "Prison
Bars Can’t Stop Bonds of Love. Carol Moore Is All Too Aware
Of Obstacles and Why After Marriage To Man Who Killed Five."
The newspaper article, itself, concerned Petitioner’s marriage. It
also contained information that Petitioner’s new mother-in-law
disapproved of the marriage, that Petitioner’s new wife had no
doubt in her mind but that Petitioner had been insane at the time
of the killings, that Petitioner had been tried three times
previously, and that Petitioner had previously been in a mental
hospital in San Bernadino. 48 R.T. [2-1-90] 12819-12820. To the
right of the "teaser" box regarding Petitioner’s marriage was
another "teaser" box which stated "Serial Killer Gets Death
Sentence", which referred readers to a story on another page about
a man sentenced to death for killing three people. 48 R.T. [2-1-90]
12822.

Upon learning of the publicity, defense counsel moved for a
mistrial almost immediately. 47 R.T. [1-31-90] 12727. In light of
the defense request for a mistrial, on January 31, 1990, the trial
court individually polled each of the jurors and alternates to
determine their exposure to the publicity and the effects of such
exposure. 47 R.T. [1-31-90] 12731-12764. The survey of the jurors
revealed that four of the jurors read all or part of the article in the
San Diego Union. 48 R.T. [2-1-90] 12813. One of the jurors who
read part of the article was also very evasive when questioned by
the court about the extent of his exposure to the publicity, and did
not admit, in response to a direct question, that he had spoken
with another juror about the article. 48 R.T. [2-1-90] 12814.

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Another of the jurors who read the article admitted to reading the
article only after first stating he had only been told about the
publicity by his neighbor, which lead the court to find that juror’s
explanations were untrustworthy. 47 R.T. [1-31-90] 12774-75.
Other than the four jurors who had read all or part of the article
in the Union, three other jurors and one alternate said that they
had read the headlines of the paper regarding Petitioner. 48 R.T.
{[2-1-90] 12814.

Following its survey of the jurors on January 31, 1990, the
court entertained extensive argument from both counsel regarding
whether the publicity was prejudicial, the extent of such prejudice
to each party, and whether any prejudice resulting from the
publicity could be cured by the court by dismissing certain jurors
and admonishing the remaining jurors. The court adjourned on
January 31, 1990, and allowed counsel until the next morning to
present additional arguments and authorities regarding the
appropriate action. 47 R.T. [1-31-90] 12808-12810. The following
morning, the court heard additional argument from counsel
regarding possible prejudice from the publicity and the existence
of alternative cures to the prejudice short of a mistrial. The court
also inquired of Petitioner as to whether he joined his counsel’s
request for a mistrial, and learned that Petitioner opposed such a
motion. 48 R.T. [2-1-90] 12812.

In the end the court found that Petitioner need not personally
consent to a mistrial, but that a request for mistrial is a decision to
be decided by defense counsel. The court then granted defense
counsel’s motion for mistrial. In doing so, the court stated as
follows:

I believe that the prejudice caused by our seven jurors
and two alternates seeing the newspaper headline at a
minimum, both as to Mr. Naddi in conjunction with the
headline about Carter creates prejudice that I don’t
believe can be cured by an admonition which I think
could influence the jury and their decision in this case,

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and I think the prejudice is so great that the court
believes it amounts to legal necessity.

I have no confidence that the impression could be
eradicated.

48 R.T. [2-1-90] 12838.

Upon review of the record, this Court finds that the trial
court’s factual findings that actual prejudice existed, and that such
prejudice could not be remedied short of a deciaration of mistrial,
are well supported by the record.” In addition, upon de novo
review of the record, this Court finds that there was manifest
necessity requiring the granting of a mistrial and that the trial court
considered all of the factors as set forth in United States v. Bates,
917 F.2d 388, 394 (9th Cir. 1990). The trial court explicitly
rejected the proposition of defense counsel that prejudice was to
be presumed where there was juror exposure to publicity during
trial, 48 R.T. [2-1-90] 12823, and found that there was actual
prejudice to the defendant due to the jurors’ exposure to the
publicity. 48 R.T. [2-1-90] 12838. The trial court also allowed both
counsel to argue, at great length, about the propriety of declaring
a mistrial. The trial court considered alternatives to a mistrial,
including removing the two jurors who had read the entire article
from the jury and admonishing the remaining jurors to disregard
any information they had learned from the publicity. 48 R.T. [2-1-
90] 12816. In the end, the trial court was particularly concerned
about the prejudicial effect the news of Petitioner’s remarriage
would have upon jurors, who expressed shock upon learning that
someone in his position, i.e. on trial in a death penalty case, would
remarry. 48 R.T. [2-1-90] 12834. Because of all of these

3. Petitioner also argues that the presumption of correctness does
not apply to the trial court’s finding of prejudice because the trial
court erroneously applied a “presumption of prejudice” standard
regarding the exposure of jurors to publicity. However, the trial court
explicitly recognized that such a presumption did not apply. 48 R.T.
[2-1-90] 12823.

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considerations, after a great deal of deliberation and argument, the
trial court concluded that a declaration of mistrial was necessary.

This Court finds, upon de novo review of the record, that
there was manifest necessity requiring the trial court to grant a
mistrial, even over Petitioner’s objection. Therefore, the Court
finds that Petitioner’s claim of double jeopardy based upon the
declaration of mistrial during the third sanity phase trial is without
merit, and recomends that Petitioner’s application for a Writ of
Habeas Corpus based upon this claim should be DENIED.

3. Petitioner’s Claim that He Received Ineffective Assistance of

‘ounsel

Petitioner asserts that he was demied e:iective assistance of
counsel when his trial counsel failed to raise claims of double
jeopardy following the declaration of mistrials in the second and
third sanity phase trials.

A. Discussion of the Law

United States Supreme Court decisions have emphasized that
the Sixth Amendment right to counsel exists “in order to protect
the fundamental right to a fair trial." Lockhart v. Fretwell, 506
US. 364, 113 S. Ct. 838, 842 (1993) (quoting Strickland v.
Washington, 466 U.S. 668, 684 (1984)). Thus, the right to the
effective assistance of counsel is recognized because of the effect
it has on the ability of the accused to receive a fair trial. Id. In
Strickland _y. Washington, the Supreme Court enunciated the
standards for judging ineffective assistance of counsel claims. First,
a petitioner must show that, considering all the circumstances,
counsel’s performance fell below an objective standard of
reasonableness. Id. at 688. To this end, the petitioner must
identify the acts or omissions that are alleged not to have been the
result of reasonable professional judgment. Id. at 690. The court
must then determine whether in light of all the circumstances, the
identified acts or omissions were outside the wide range of

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professional competent assistance. Id. Second, the petitioner must
affirmatively prove prejudice. Id. at 693. Prejudice is found where
"there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different." Id. at 694. A reasonable probability is "a
probability sufficient to undermine confidence in the outcome."

Id.; see also Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995),

cert. denied, 1995 WL 642028 (Jan. 8, 1996); United States v.
Schaflander, 743 F.2d 714, 717-18 (9th Cir. 1984) (per curiam),

cert. denied, 470 U.S. 1058 (1985).

B. Examination of the Trial Court Record

Petitioner’s claims that his trial counsel was ineffective due to
the failure to raise double jeopardy arguments following mistrials
of the ssecond and third sanity phase trials is not supported by the
record. As discussed above in section 1, Petitioner’s double
jeopardy claim related to the mistrial of the second sanity phase
trial is without merit because there was no intent by the prosecutor
to goad a mistrial, sufficient to bar retrial of Petitioner under
Oregon v. Kennedy, 456 U.S. 667 (1982). It cannot be said that
trial counsel was ineffective for failing to raise a double jeopardy
argument or enter a plea of once in jeopardy, as such arguments
are without merit.

As discussed above in section 2, Petitioner’s double jeopardy
claim related to the mistrial of the third Sanity phase trial is
likewise without merit because such mistrial was correctly declared,
even over the objection of Petitioner, due to legal necessity. Even
if trial counsel erroneously concluded that Petitioner’s personal
consent to the mistrial was unnecessary, such error cannot be said
to have been prejudicial because the trial court was justified in
declaring a mistrial due to legal necessity, even over Petitioner’s
objection.

Petitioner cannot show any error of counsel in failing to raise
claims of double jeopardy following mistrial of the second and

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third sanity phase trials, and, as such, Petitioner was not deprived
of effective assistance of counsel. Therefore, the Court hereby
recommends that Petitioner’s application for a Writ of Habeas
Corpus upon his claim of ineffective assistance off counsel should
be DENIED.

4. Petitioner’s Claim that He Was Denied His Right to Seif-
Representation

Petitioner claims that his conviction was obtaiined in violation
of his right to represent himself pursuant to Faretta v. California,
422 U.S. 806 (1975). Petitioner’s request to represent himself was
originally granted by Judge Tharp on April 8, 19877. 11 R.T. [4-8-
87] 50. However, the case was subsequently reassigned for trial to
Judge O’Rourke. During a hearing before Judge O’Rourke on
September 18, 1987, prior to the commencement of the guilt phase
of the trial, Judge O’Rourke expressed a doubt as to Petitioner’s
competence both to stand trial and to waive his right to counsel.
13 R.T. [9-18-87] 40-41. Thereafter, a competency hearing was
convened pursuant to Cal. Penal Code § 1368, and the jury found
Petitioner competent to stand trial. 20 R.T. [2-11-88] 964.
However, based upon the psychiatric evidence presented at the
1368 hearing, as well as certain other evidence which was
presented outside of the presence of the jury because the court
believed it related only to the Faretta issue, Judge O’Rourke
found, based upon Curry v. Superior Court, 75 Cal. App. 3d 221
(1977), that Petitioner suffered the influences of a mental illness
which made it impossible for him to knowingly or voluntarily waive
his right to counsel and choose to represent himself. 21 R.T. [2-
18-88] 969. Petitioner’s Faretta rights were suspended at that time,
and despite repeated requests throughout the remainder of the
case, Petitioner was not subsequently permitted to represent
himself.

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A. Discussion of the Law

A criminal defendant undoubtedly has a right to represent

himself. Faretta v. California, 422 U.S. 806 (1974). However, the

decision to represent oneself must be made "knowingly and intelli-
gently." Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). In addition, it is clear that a criminal defendant may not
be made to stand trial unless he is competent. Pate v. Robinson,
383 U.S. 375, 378 (1966). He must have "sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding” and "a rational as well as factual understanding of

the proceedings against him." Dusky v. United States, 362 U.S.

402, 402 {2960)(internal quotation marks omitted).

in Westbrook v. Arizona, 384 U.S. 150 (1966), the Supreme

Court issued a two paragraph order reversing and remanding a
criminal conviction because it found that "although petitioner
received a hearing on the issue of his competence to stand trial,
there appears to have been no hearing or inquiry into the issue of
his competence to waive his constitutional right to the assistance
of counsel and proceed, as he did, to conduct his own defense."
Id. at 150. Based in part upon Westbrook, several federal courts
of appeals and state courts of last resort had held that the
standard for finding a criminal defendant "competent" to waive
counsel, was higher than the competency standard for standing

trial. See Moran v. Godinez, 972 F.2d 263 (9th Cir. 1992); United

States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 133 (2d Cir.
1975); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.
1987); Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir. 1989);

t tes v 874 F.2d 838, 846 (ist Cir. 1989);
Pickens v. State, 292 N.W.2d 601, 610-11 (Wis. 1980).

However, in Godinez v. Moran, the Supreme Court clarified
that the competency standard for waiving the right to counsel is

identical to the competency standard to stand trial. =. ;U.S.__,
113 S. Ct. 2680, 2686-87 (1993). In Moran, the trial court allowed
the petitioner in a death penalty case to discharge his attorneys

A-56

and change his pleas to three counts of first-degree murder to
guilty. Two and a half months prior to the discharge of counsel
and guilty plea, petitioner had been examined by psychiatrists who
found that he was competent to stand trial. Based thereon, the
trial court found that petitioner was competent and that he knew
the nature and quality of his acts. In addition, the trial court found
that petitioner understooc the nature of the charges against him,
was able to assist in his defense against those charges, understood
the consequences of entering the guilty plea, and could knowingly
and intelligently waive his right to counsel. Id. at 2683.

Upon federal habeas review, the district court denied the
petition for a writ of habeas corpus. However, the Ninth Circuit
Court of Appeals reversed the denial of the habeas petition,
finding that the trial court “erroneously applied the standard for
evaluating competency to stand trial [to the question of whether
petitioner was competent to waive counsel], instead of the correct
‘reasoned choice’ standard," and that the record did not show
petitioner was "mentally capable of the reasoned choice required
for a valid waiver of constitutional rights." Moran v. Godinez, 972
F.2d 263, 266-67 (9th Cir. 1992).

Upon certiorari the Supreme Court reversed, holding that the
“competency” standard is the same for waiving counsel as for
standing trial, and that there is no "heightened" standard of compe-
tency for waiving the right to counsel. 113 S. Ct. at 2687; see also
United States v. Arlt, 41 F.3d 516, 518 (9th Cir. 1994)("If Arlt was
competent to stand trial, he was competent to choose to proceed
pro se."). In addition, the Court held that the use of the phrase
“competent to waive counsel" as used in Westbrook v. Arizona, was
merely “a shorthand for the ‘intelligent and competent waiver’
requirement of Johnson v. Zerbst.". Moran, 113 S. Ct. at 2688.
"Thus, Westbrook stands only for the unremarkable proposition
that when a defendant seeks to waive his right to counsel, a
determination that he is competent to stand trial is not enough; the
waiver must also be intelligent and voluntary before it can be
accepted." Id.

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A-57

Therefore, there is no distinction between the level of mental
capacity or competence necessary under the requirements of Due

Process pursuant to Dusky v. United States, 362 U.S. 402 (1960)

in order for a criminal defendant to be able to stand trial, and the
mental capacity or competence necessary under Faretta fo. a
criminal defendant to be able to waive his right to be represented
by counsel. All that is required for a criminal defendant to waive
his right to counsel is that the person be mentally competent to
stand trial, and that the person make a knowing and voluntary
waiver of the right to be represented by counsel. "In this sense
there is a ‘heightened’ standard for ... waiving the right to
counsel, but it is not a heightened standard of competence."
Moran, 113 S. Ct. at 2687 (emphasis in original).

The i cath Circuit Court of Appeals has not provided a
specific formula to be used in determining whether a criminal
defendant’s decision to waive the right to counsel is knowing and
intelligent. United States v. Arit, 41 F.3d 516, 520 (9th Cir. 1994).

However, some guidance is provided in United States v. Mohawk,
20 F.3d 1480, 1484 (9th Cir. 1994):

In particular, we require proof that the defendant
understood his or her constitutional right to have a
lawyer perform certain core functions, and that he or she
appreciated the possible consequences of mishandling

these core functions and the lawyer’s superior ability to
handle them.

(Internal quotations omitted). As distinguished from the inquiry
as to a defendant’s mental capacity, which focuses on a defendant’s
ability to understand the proceedings, the inquiry as to whether a
defendant is "knowingly and voluntarily" waiving his right to
counsel requires that a defendant be "made aware of the dangers
and disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made
with eyes open’." Faretta, 422 U.S. at 835 (quoting Adams v.

A-58

United States, 317 U.S. 269, 279 (1942)); see Moran, 113 S. Ct. at
2689, fn. 12 (distinguishing between the two inquiries).

The trial court in the present case found that Petitioner’s
mental i'Iness rendered him incapable of making a knowing and
voluntary waiver of his right to counsel based upon the authority

of Curry v. Superior Court, 75 Cal. App. 3d 221 (1977). In Curry
the court cited Westbrook v. Arizona, 384 U.S. 150 (1966), as

discussed above, for the proposition that there is a distinction
between competency to stand trial and competency to make a
knowing and intelligent waiver.

Commentators have interpreted Westbrook to mean that
while a defendant may be competent to stand trial, he
may not be competent to waive counsel] .... From this
they derive the formula that "a defendant must be free of
mental disorder which would so impair his free will that
his decision to waive counsel would not be voluntary". . . .
Thus, a Johnson v. Zerbst (1938) 304 U.S. 458 standard
of an “intentional relinquishment or abandonment of a
known right or privilege" is met if the trial court makes
the factual determination that the defendant is free of
such a mental disorder and indicates, on the record, that
he is aware of the consequences of his request.

~

Curry, 75 Cal. App. 3d at 227 (citations omitted). The court in
Curry clearly relied upon a perceived distinction in Westbrook
between the competency to stand trial and a_ heightened
competency to waive counsel, which distinction was rejected by the
Supreme Court in Moran. Even California courts have now
recognized that cases, such as Curry, which rely upon a "free of
mental disorder" standard for determining whether a defendant
may waive his right to counsel are per se inconsistent with Moran.
See People v. Hightower, 96 Daily Journal D.A.R. 392, 395 (Jan.
10, 1996) ("Because the trial court properly found appellant
competent to stand trial, it necessarily follows that the trial court

A-59

erred in denying appellant’s motion for self-representation. The
two rulings are simply antithetical.").

Respondent’s answer to the Petition in this case makes no
attempt to distinguish, explain or otherwise address the impact of
the Supreme Court’s decision in Moran upon this case. Instead,
Respondent continues to cite Westbrook v. Arizona, and Curry v.
Superior Court and other California appellate court decisions
which pre-date Moran. In addition, a review of the written
decision of the California Court of Appeal, dated J anuary 7, 1994,
shows that Moran was not addressed in that court. Therefore, this
Court must analyze the trial court’s finding that Petitioner herein
did not make a knowing and voluntary waiver of his right to
counsel. Whether a waiver of constitutional rights is knowing and
voluntary is a mixed question of fact and law which is to be
reviewed de novo. Moran v. Godinez, 40 F.3d 1567, 1575 (9th Cir.
1994).

B. Examination of the Trial Court Record

_ Having expressed a doubt about Petitioner’s competency both
to stand trial and to waive his right to counsel, Judge O’Rourke
suspended both the proceedings and Peti*ioner’s right to represent
himself. 13 R.T. [9-18-87] 40-41. On January 26, 1988, a
competency proceeding, pursuant to Cal. Penal Code § 1368,
commenced to determine whether Petitioner-was-eompetent to
stand trial. 15 R.T. [1-26-88] 156. During this hearing, the Court
heard testimony, both in the presence of the jury and outside the
presence of the jury, from 6 psychiatrists: Dr. Donald Duff, Dr.
Ernest Klatte, Dr. William Vargas, Dr. Bernard Hanson, Dr.
Richard Rappaport, and Dr. Kaushal Sharma.

In the presence of the jury, the psychiatrists testified regarding
whether Petitioner was competent to stand trial. The jury was
instructed that Petitioner

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is deemed mentally competent to be tried for the crime
charged against him, one, if he is capable of
understanding the nature ©: purpose of the proceedings
against him and, two, if ue comprehends his own status. -
and condition in reference to such proceedings and,
three, if he’s able to assist his attorney in conducting his
defense in a rational manner.

20 R.T. [2-11-88] 899. Based upon the testimony of the
psychiatrists, the jury found that Petitioner was competent to stand
trial. 20 R.T. [2-11-88] 964.

Outside the presence of the jury, Judge O’Rourke iieard
testimony from the psychiatrists bearing on the issue of Petitioner’s
"competency" to waive his right to counsel. Judge O’Rourke asked
each of the psychiatrists to render their opinion of whether
Petitioner was competent to waive his right to counsel based upon
the standard as set forth in Curry v. Superior Court, 75 Cal. App.
3d 221 (1977). Specifically, Judge O’Rourke advised the testifying
psychiatrists that the appropriate standard was that "a defendant
must be free of mental disorder which would so impair his free will
that his decision to waive counsel would not be voluntary." 18 R.T.
[2-8-88] 532. Judge O’Rourke wanted the psychiatrists to opine as
to whether the Petitioner’s choice to represent himself "is made
rationally rather than made as a result of a mental illness." 17
R.T. [2-4-88] 433.

Based upon the standard of "competency" to waive counsel set
forth by Judge O’Rourke, Dr. Duff opined that Petitivaer’s
decision to represent himself was based in substantia! part upon
Petitioner’s paranoid delusions that the District Attorney and all
of the attorneys representing Petitioner had been bought off by his
former wife’s family. 17 R.T. [2-4-88] 435-36. Dr. Klatte also
opined that Petitioner was incompetent to make a decision to
waive his right to counse] because of his paranoid delusions. 17
R.T. [2-4-88] 442-44. Dr. Rappaport testified that Petitioner
suffered from a paranoid condition, and that Petitioner’s delusions

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played a one hundred percent role in his decision to waive his right
to counsel. 18 R.T. [2-8-88] 597.

Dr. Vargas testified that although Petitioner suffered from
delusional jealousy regarding his former wife, he believed that
paranoia did

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1519%3A2. Public record. Not legal advice.