Petition for Writ of Certiorari — Hines v. California

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( Supreme Court, U.S.

/ FILED

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97% 832 NOV 18 1997

No OFFICe OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

GARY DALE HINES,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI

MARTIN H. KRESSE

Steuart Street Tower

One Market

San Francisco, CA 94105

(415) 267-4000

Attorney for Petitioner,

November 18, 1997 Gary Dale Hines.

Washington, D.C. « THIEL PRESS «¢ (202) 328-3286

CAPITAL CASE

QUESTIONS PRESENTED

(1) Is acriminal defendant deprived of his right

to counsel as guaranteed by the Sixth Amendment to the

United States Constitution by his counsel's conflict of

interest, when counsel is appointed directly by the court in

which the defendant is to be tried and must choose between

his client's interest in vigorous advocacy and his own

financial interest in ensuring future court appointments?

(2) Is a defendant denied his privilege against

self-incrimination and his right to the assistance of counsel

as guaranteed by the Fifth and Sixth Amendments to the

United States Constitution, when the acts of his counsel and

the trial court coerce him into testifying against his wishes?

(3) Are capital defendants in California denied

their rights under the Eighth and Fourteenth Amendments

by the California Supreme Court's refusal to employ its

statutory power to reduce sentences in cases where a

sentence of death has been imposed at trial?

Petitioner GARY DALE HINES respectfully prays

that a petition for writ of certiorari issue to review the

judgment of the Supreme Court of California entered on

June 26, 1997 and final as of August 20, 1997.

-ii-

TA F CONTENTS

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If. CONSTITUTIONAL PROVISIONS .............::0008 l

IV. SEP YE ot et ae). gf, |: | Speer sooner 2

V. SEAL ESIORISIN COR TEES FS csccscecenesssrescecerscisone 3

VI. HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED

VII. REASONS FOR GRANTING THE

1. PETITIONER DEPRIVED OF HIS

RIGHT TO COUNSEL AS

GUARANTEED BY THE UNITED

STATES CONSTITUTION BECAUSE

THE COUNSEL WAS APPOINTED BY

THE COURT BEFORE WHOM

PETITIONER WAS TO BE TRIED

CREATING A CONFLICT OF

INTERESTS IN THAT APPOINTED

COUNSEL WOULD BE BEHOLDEN |

TO THE JUDGES OF THE COURT

WHICH APPOINTED SUCH COUNSEL

TO REPRESENT PETITIONER.............0...000 6 )

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2. PETITIONER WAS DEPRIVED OF THE

FREE EXERCISE OF HIS RIGHT NOT

TO TESTIFY BY THE ACTS OF HIS

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3. CAPITAL DEFENDANTS IN

CALIFORNIA ARE DENIED DUE

PROCESS OF LAW BY THE REFUSAL

OF THE CALIFORNIA SUPREME

COURT TO APPLY ITS STATUTORY

POWER TO REDUCE CRIMINAL

SENTENCES TO CASES IN WHICH

THE DEATH PENALTY HAS BEEN

SO I a vik Sc sb sbesisic si babchldsudoinerisoeeicsvesaiins 18

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TABLE OF AUTHORITIES |

Page(s) |

Cases

Cuyler v. Sullivan, 446 U.S. 335 [64 L.Ed.2d

FF 5, eT lieciaiadcdisnamenilisabibsiengiiancidevcies 6,7

Ford v. Wainwright, 477 U.S. 399 [91 L.Ed.2d

Ra RO Tas MTEL ivdcsc rida nada dathhdnneneiadinniintnvsainoinnn 18

Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct.

FED vsniscisiiclorkcuesis vextatismatbnbtpame clear Achuaddidaninieoeines 6

Glasser v. United States, 315 U.S. 60 [86 L.Ed.

GP Be sa ic RG aE vhs vsninsodtanmeinaibsdca das vaisvabieboscmnaavinces 7 |

Harris v. New York, 401 U.S. 222 [28 L.Ed.2d |

Be A Oe rks SER Ficischccebh as nionchubesniskbin a inkieccindaiaiie 8

Hicks v. Oklahoma, 447 U.S. 343 [65 L.Ed.2d |

5 Fy Ce Re MRE E ncinatesshipssinaicdheviierisnnea-nobiaseonie 18

Parker v. Dugger, 498 U.S. 308 [112 L.Ed.2d

Ee, TENS eee FOE Licstei cristae casbeinchdnctinde 19

People v. Hines, 15 Cal.4th 1079-1080 and

SEI ESRI sien ccisincicaclaeunscceaaplanitbnbdhsniebeaitis casiaunitioves 18

[Hines] 15 Cal.4th 997 [64 Cal.Rptr.2d 594,

8 8 Ak PE wich ina hcitnitained boeipastctgaenseien Be ;

People v. Gary Dale Hines, No. $006640,

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Tuilaepa v. California, 512 U.S. 967 [129

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Statutes

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United States Constitution Amendment V..............cc0000000+ 1,8

United States Constitution Amendment V1 .............cc.ccccceeee l

United States Constitution Amendment VIII.........0.00.0ccccc00e. |

United States Constitution Amendment XIV,

BMUONINL Sasecisiainccinssuecinccediasulamiintascskaeets sshsadouabesoabiauee ince 2

California Penal Code Section 187(a).................cscccsssscsssessees 2

California Penal Code Section 190.2 ............ccsccssesesscessesees eo

Californie Penal Code Section 211 ii...ccscsccscsoscsenisersosicsacsscsens 2

Catiformia Penal Code Section 459 .........ccscscessscsssssessessssosesses 2

California Penal Code Section 460 .............cc:ccsccescsessesersseeeees 2

California Penal Code Section 487.3 ..0cc.vcsessersssesverseesceosasenss 3

California Penal Code Section 1181 (7) ...........cccccessscsesseees 18

California Penal Code Section 1260 .............cccecseeseseseeeeeees 17

California Penal CodeSection 12021 .........:.sccsccsssssssessoereees 3

California Penal Code Section 12022.5 ...........s:csscssssesseeseeens 2

Other

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I. JUDGMENT BELOW

The decision of the Supreme Court of California in

People v. Gary Dale Hines, No. S006640, affirming

Petitioner's convictions and death sentence is attached hereto

as Appendix A. The opinion is published at 15 Cal.4th 997

(1997), 64 Cal.Rptr.2d 594, 938P.2d 388. The Court's

modification of opinion filed August 20, 1997, which did not

alter the judgment, is attached hereto as Appendix B.

The Order denying Petitioner's timely filed petition for

rehearing, also entered on August 20, 1997, is attached hereto

as Appendix C.

Il. JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257 and Rule 13 of the Supreme Court. The

opinion below was filed on June 26, 1997 and modified on

August 20, 1997 (Appendix B). A timely petition for

rehearing was denied (Appendix C) and the remittitur was

filed on August 20, 1997 (Appendix D).

ll. CONSTITUTIONAL PROVISIONS

The United States Constitution, Amendment V:

"No person ... shall be compelled in any criminal case

to be a witness against himself."

The United States Constitution, Amendment VI:

"In all criminal prosecutions, the accused shall enjoy

the right ...to have the Assistance of Counsel for his

defense."

-.

The United States Constitution, Amendment VIII:

"... nor cruel and unusual punishments inflicted."

The United States Constitution, Amendment XIV

Section 1:

"... [nJor should any State deprive any person of life,

liberty, or property, without due process of law;... ."

IV. STATEMENT OF THE CASE

On December 16, 1986 GARY DALES HINES

("Petitioner") was charged by Information No. 77733 with the

following charges: (1) violation of California Penal Codel/

Section 187(a) in the death of Donna Roberts; (2) violation of

Section 187(a) in the death of Kathryn Roberts (the mother of

Donna Roberts); (3) including special circumstances to wit,

violation of Section 190.2(a)(17)(vii) in that both deaths

occurred during the course of a burglary in the first degree as

defined by Section 460, violation of Section 190.2(a)(17)(i) in

that the deaths occurred during the course of a robbery as

defined by Section 211, and violation of Section 190.2(a)(3) in

that the Petitioner is being charged with multiple deaths;

(4) violation of Section459, burglary, in entering the

residence of the decedents with the intent to commit larceny

therein with the enhancement that Petitioner used a firearm in

violation of Section 12022.5; (5) violation of Section 211,

robbery, in that Petitioner, by means of force and fear, did take

the personal property of the decedents while in_ their

V/ Unless otherwise stated all code sections referred to herein

are to the California Penal Code.

a

immediate presence with the enhancement that Petitioner used

a firearm in violation of Section 12022.5; (6) violation of

Section 487.3, grand theft, in that Petitioner took one

automobile which was the property of Lawrence Roberts; and

(7) violation of Section 12021 in that Petitioner, who had been

previously convicted of a felony, was in possession of a

firearm. (C.T. 196-200.)2/ Petitioner entered a plea of not

guilty as to all charges.

The special circumstance findings rendered Petitioner

eligible for the death sentence under California law. Penal

Code Section 190.2.

The jury recommended the penalty be death. The trial

court imposed a sentence of death on July 7, 1988.

(C.T. 1137-1139, amended at C.T. 1140-1142.) The

California Supreme Court confirmed the convictions in their

entirety.

V. STATEMENT OF THE FACTS

On the morning of September 15, 1986, the day of the

homicides, Petitioner rode to the Roberts' neighborhood with

several acquaintances, including Randal Ray Houseman, Jr.

(R.T. 5071:7-22; 5112:3-9.) According to Petitioner's

testimony at his trial, because Petitioner's probation officer

had told Petitioner, at the request of Kathryn Roberts, to keep

away from the Roberts’ home, Petitioner asked Houseman to

go to the residence to check on his girlfriend, Rebecca

Palanuk, whom he heard was pregnant and whom he believed

2/ C.T. refers to the Clerk's Transcript and to the Clerk's

Augmented and Corrected Record.

ihc

was staying with the Robertses. (R.T. 5071:4-6; 5127:8-9;

$071:7-22; 5112:3-19.) While Houseman went to the

residence, Petitioner waited at a corner bus stop at the end of

the street. (R.T. 5073:23-5074:16.)

Petitioner testified that after a wait of approximately

45 minutes, he walked to the Roberts’ residence. Upon his

arrival, Petitioner found that the garage door had been forced

open and a Model T replica had been loaded with various

items of the Roberts’ personal property. (R.T. 5076:11-15;

5078:14-23.)

Petitioner stated that he met Houseman coming out of

the garage and Houseman told him no one was home.

Houseman indicated that they should take the items that were

in the garage and leave the premises. Petitioner then "hot

wired" the Model T replica, after moving a VCR which was

placed on the driver's seat by Houseman. (R.T. 5079:2-3.)

Petitioner then drove away from the Roberts’ house in the

vehicie without having entered their living quarters. (R.T.

5079:17-5080:12.) Petitioner and Houseman then drove

around Sacramento and spent the night at the home of Terry

Wilson.

Petitioner and Houseman were arrested at Wilson's

home the following morning. (R.T. 5088:24-5090:13.)

During the course of the proceedings, Petitioner tried

on numerous occasions to replace his counsel. (R.T. 5-15; 85-

96; 1973-1975; 2145-2153; 2295-2297.) Each of these

attempts were rebuffed.

ee

VI. HOW THE FEDERAL QUESTIONS WERE

RAISED ANP DECIDED BELOW

Petitioner argued in the California Supreme Court that

his convictions and death sentence were obtained in violation

of his rights under the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution by (1) the

conflict of interest created by the fact that his trial and

appellate counsel were each appointed directly by the courts in

which his case was pending and were dependent on the favor

of those courts for both remuneration and subsequent

appointments, and (2) the fact that Petitioner was forced

against his will to testify at his trial by the failure of the trial

court and his counsel to advise him of his right not to take the

stand and by his counsel's actions in telling the jury during

opening statements what the content of Petitioner's testimony

would be.

The California Supreme Court rejected each of these

arguments. The court ruled that the appointment and

remuneration of defense counsel by a court does not create a

conflict of interest. (Appendix A at 22; 15 Cal.4th 997, 1029.)

The court also ruled that Petitioner had not been coerced into

testifying because he had consented to do so before the

beginning of trial. (Appendix A at 24-27; 15 Cal.4th at 1030-

1032.)

me

Vil. REASONS FOR GRANTING THE WRIT

1. PETITIONER DEPRIVED OF HIS RIGHT

TO COUNSEL AS GUARANTEED BY

THE UNITED STATES CONSTITUTION

BECAUSE THE COUNSEL WAS

APPOINTED BY THE COURT BEFORE

WHOM PETITIONER WAS TO BE

TRIED CREATING A CONFLICT OF

INTERESTS INTHAT APPOINTED

COUNSEL WOULD BE BEHOLDEN TO

THE JUDGES OF THE COURT WHICH

APPOINTED SUCH COUNSEL TO

REPRESENT PETITIONER.

By accepting remuneration for representation of

Petitioner, Petitioner's appointed counsel both in the trial court

and on his appeal to the California Supreme Court did not

fulfill the requirements of the Sixth and Fourteenth

Amendments to the United States Constitution, as interpreted

by Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct. 792 (1963),

and subsequent cases dealing with the right to representation.

Because the People of the State of California were

paying Petitioner's trial counsel, such trial counsel had an

irremediable conflict of interest between the interests of

Petitioner, who is being prosecuted by the People of the State

of California, and the source of trial counsel's payments.

A defendant establishes a violation of the Sixth

Amendment if he demonstrates that an actual conflict of

interest adversely affected his counsel's performance. Cuyler

v. Sullivan, 446 U.S. 335, 350, 64 L.Ed.2d 33, 100 S.Ct. 1708

(1980).

«Se

Petitioner contends that the courts before whom he is

appearing, first at the trial court in Sacramento County, and

then the California Supreme Court, should not be involved in

the selection, directly or indirectly, of the counsel chosen to

represent him or of the method or amount of compensation.

Petitioner's trial counsel was selected by the trial court, and

Petitioner's appellate counsel appeared by appointment of the

California Supreme Court. Because such counsel are

appointed by the very courts before whom they are appearing,

this necessarily inhibits such counsel from vigorously

defending and protecting Petitioner's rights. Petitioner

contends that this precluded Petitioner's trial counsel from

vigorously objecting to the trial court's errors because they had

a greater interest in receiving further appointments from the

trial court and did not wish to prejudice their chance to obtain

such appointments in the future.

Simply put, Petitioner contends that neither Petitioner's

trial counsel nor Petitioner's appellate counsel were in a

position to advance issues on Petitioner's behalf which might

injure or decrease trial counsel's or appellate counsel's

perceived ability to obtain future assignments from the

appointing tribunal whose function it is to commission these

attorneys to represent individuals situated similarly as

Petitioner.3/ The more likely an appointed counsel would be

3/ As much as a lawyer who represents two clients with

opposed interests, counsel in this case "struggle[d] to serve two

masters” -- his client and the court. Cuyler, 446 U.S. at 349,

64 L.Ed.2d 335, 100 S.Ct. 1708; see, Glasser v. United States,

315 U.S. 60, 75, 86 L.Ed. 680, 62 S.Ct. 457 (1942).

ie

to advance positions favorable to Petitioner4/ defeating the

likelihood of conviction or the upholding of a conviction on

appeal, the less likely that this same counsel would be

appointed in the future to another case. As such, the appointed

counsel has a fundamental conflict of interest between their

current client and the counsel's hope for future clients through

court appointment.

This Court should hold that appointments for trial and

appellate counsel, and provisions for their award of fees,

should be managed by some entity such as local and/or the

State Bar Association rather than the courts before whom the

appointed counsel is appearing.

2. PETITIONER WAS DEPRIVED OF THE

FREE EXERCISE OF HIS RIGHT NOT

TO TESTIFY BY THE ACTS OF HIS

COUNSEL.

A defendant in a criminal trial has no obligation to

testify if he does not wish to. U.S. Const. Amend. V and XIV;

Harris v. New York, 401 U.S. 222, 225, 28 L.Ed.2d 1, 91 S.Ct.

643 (1971). However, Petitioner's right to make this

fundamental decision was exercised not by Petitioner, but by

his counsel and contrary to his wishes. This fact was ignored

by the trial court notwithstanding Petitioner's objection.

Before the defense opening statement Petitioner's

counsel approached the bench and raised an issue regarding

4/ Or, in the reverse, positions or issues which reflect

critically on trial or appellate courts.

i

whether Petitioner would testify at the trial. (R.T. 4857:8:

4858:17-20.) Subsequent to some discussion on the issue,

Petitioner's counsel stated that "we" (it is not clear to whom

counsel was referring because Petitioner's two lawyers were

involved in this discussion) have "resolved our problems as far

as whether [Petitioner] would take the stand." (R.T. 4863:2-

7.) The district attorney then stated that he believed that the

record should reflect whether there was any disagreement

regarding Petitioner testifying and that Pétitioner should be

advised of his rights in that regard. (R.T. 4863:9-12.)

The trial court, however, declined to advise Petitioner

of his right not to testify claiming that to do so would be

"ham-handed" and may "suggest what [Petitioner] should do

or not do." (R.T. 4863:13-17.)2/ The court then addressed a

question to Petitioner and his counsel: "... are you satisfied

that you have been able to discuss to your satisfaction

[Petitioner's] options, his tactical option and his legal options?

Petitioner's counsel responded in the affirmative which elicited

several questions from the trial court to Petitioner: "You don't

have any concern about that, do you, Mr. Hines? You feel

you're getting sufficient legal advise [sic] from one or both of

your attorneys? You know you have a right to testify or a

right to decline to testify; is that correct?" (R.T. 4863:18-

4864:1.)

5/ Trial judges, of course, routinely advise defendants of their

rights, for example, at the acceptance of a guilty plea, without

"ham-handedly" "suggesting" anything.

<

After this question was put to him, Petitioner

responded:

Well, I know that, but I don't understand quite a

bit when he gets --

eaemiccsiamncnciconcatss, Manaantmnnenncasneeaee inset ncaa etre

THE COURT: What's that again?

THE DEFENDANT: I don't understand quite a

bit of it once it gets down there to --.9/

Rather than responding to this obvious questioning by

Petitioner as to what his rights were and his demonstration of

his confusion over the very important issue at hand, the trial

court plowed ahead, gave a confusing statement about a ruling

the court had made and ended with the following question:

THE COURT: Everybody happy, Mr. Macias

and Mr. Holmes, and your client?

MR. MACIAS: Yes. |

MR. HOLMES: Yes, Your Honor.Z/

6/ At this point the trial court simply cut Petitioner off. (R.T.

4864:2-8.)

7/ Quite obviously, the question as to whether Petitioner was

"happy" was either not addressed to, or if it was, not responded to

by Petitioner. It is unlikely that Petitioner was "happy", given the

circumstances.

+e

THE COURT: And you have had a fair and

open discussion this morning. I don't want any

criticism of Pope-type error three years from

now that you two bludgeoned him into any

course of action that he doesn't agree to.

You're satisfied that you all discussed it?

MR. MACIAS: Yes.

THE COURT: I am going to take that at face

value. I think for Mr. Gilmore and me to go

beyond that at this point would be violative.8/

(R.T. 4864:7-28.)

The prosecutor, obviously recognizing the severity of

the problem and its utter lack of proper resolution, again

requested that before Petitioner's counsel addressed the jury

the record reflect clearly that there was agreement beiween

Petitioner and his counsel that Petitioner would testify.

(R.T. 4865:1-8.) The trial court, rather than discussing this

issue with Petitioner, simply ignored the prosecutor's request

and stated, incorrectly, "I assume what these three gentlemen

tell me, there is not a problem in that regard." (R.T. 4865:9-

10.) In truth, Petitioner, presumably one of the "three

gentlemen" referred to, had indicated, at minimum, his

confusion on the issue which the trial court had refused to

follow up on, and had never said that there was "not a

problem."

8/ Violative of what we are not told.

«oo

The prosecutor, understandably still not satisfied that

the issue had been resolved appropriately, offered to absent

himself from chambers so that the subject of Petitioner

testifying could be discussed outside of his presence and so

that it could be clear that Petitioner understood his rights with

respect to his exercising his right not to testify. However,

rather than availing themselves of this opportunity, one of

Petitioner's counsel again stated that he would resolve the

issue with Petitioner. The Court took that at "face value",

declining the prosecutor's offer and thanking him for his

concern. (R.T. 4865:16-28.)

On the heels of this colloquy, the jury vss brought in.

Petitioner's counsel gave his opening statement during which

he told the jury that Petitioner would be testifying.

(R.T. 4870:22-23.)

Petitioner's concern about his testifying was again

raised with the trial court. At the request of Petitioner, there

was an in-camera session which commenced with Petitioner

stating the issue thusly: "[wlell, it's the matter of me

testifying. It's already in front of the jury now."2/

(R.T. 4902:8-9.) According to Petitioner, one of his counsel

told him that he had "no choice" and that he had to testify.

(R.T. 4902:13-17.)

9/ Exactly the problem that both the prosecutor and Petitioner

had earlier expressed concern over and exactly the problem the trial

Court ignored and not a problem of Petitioner's making.

ceemeeenaieemmenreneen a

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Petitioner pointed out to the trial court that the court

had asked him a question about his testifying and that he had

not responded.10/ (R.T. 4902:20-22.) Petitioner went on to

articulate the dilemma in which he had been placed despite his

timely attempts to resolve the issue prior to the matter having

been raised in the opening statement. As Petitioner pointed

out, the jury now anticipated that he was going to testify.

(R.T. 4903:7-13.) The trial court then went on to tell

Petitioner that in its view, Petitioner's counsel was not

suggesting that he was under a legal compulsion to testify.

The trial court also sought Petitioner's counsel's assent to this

assumption. (R.T. 4904:1-18.) Remarkably, the trial court

also seemed to indicate that Petitioner possessed sufficient

knowledge to know how to exercise his Fifth Amendment

rights. (R.T. 4904:22-27.)

The trial court, in an obvious attempt to browbeat

Petitioner into a position stated: "Butto suggest you have

been railroaded into a quick decision because you never faced

that prospect of whether or not you testify is, of course, utterly

ridiculous and denied here by your two attorneys."1/

(R.T. 4906: 23-26.) The trial court then offered to instruct the

10/ Petitioner noted that he had made some kind of gesture at

the earlier discussion. It is unclear what the gesture was, but from

the record it appears to have been consistent with signaling to the

court Petitioner's confusion and_ resistance to _ testify.

(R.T. 4902:24.)

1l/ How the trial court could have any knowledge on the

subject is not disclosed by the record.

me

jury on Petitioner's right not to testify and give an explanation

to the jury that "/t/he defense camp has decided over the lunch

hour to change its tactics." (Emphasis added.) (R.T. 4907:1-

13.)

Petitioner responded that he had been trying to discuss

the issue of his testifying with his attorneys and that he clearly

had not had an adequate time to discuss and analyze the issue

prior to the opening statement having committed him to

testify. (R.T. 4907:23-4908:8.) The discussion continued

with the resolution that it would be taken up over the recess

before the next day's session and prior to the Petitioner

testifying. (The discussion concludes at R.T. 4912.)

Subsequent to that in-camera hearing, Petitioner wrote

a letter on this issue to the trial court. C.T. 000154-

000155.12/ In his letter, Petitioner complained about the fact

that his counsel had not spent time talking to him about his

testifying, informed the trial court that his attorney had "told

me I had to [testify]" and recited that counsel and he had only

discussed this issue on one occasion. In support of this

statement, Petitioner requested, in vain, that the trial court

check the log book at the jail to confirm the infrequency of the

visits by his counsel. (R.T. 4929:2-9.)

12/ While the letter was dated March 8, 1988 by Petitioner, it

bears a notation that it was received on April 11, 1988, which is the

day before the trial resumed on April 12, 1988, and appears to be

the correct date. There were no proceedings on April 11, 1988.

Pe sil

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The issue was discussed the following day, April 12, in

a further in-camera hearing prior to Petitioner testifying. One

of Petitioner's counsel informed the trial court that he had

spoken with Petitioner and that he had told Petitioner that

"... it was necessary for him to testify, because there is no

other way for some of what we expected to be evidence to be

presented to the jury." (R.T. 5026:28-29.)

As conceded by Petitioner's counsel, shortly before the

opening statement, Petitioner had indicated that "he did not

wish to testify." (R.T. 5027:5-7.) As Petitioner's counsel

characterized it, there had been "something of an impasse

since..." (R.T. 5027:9-12.) The trial court then went into a

laudatory speech about the competency of Petitioner's counsel,

again offering to give the jury an instruction on Petitioner's

right not to testify. (R.T. 5027:13-5029:18.) The trial court

concluded by stating:

You folks better get together and put up our

[sic] shut up in what you decide you want to

do. I want to be as helpful as I can with the

appropriate comment to the jury, if you elect

not to testify. But, I emphasize, I am not trying

to talk either camp into what position you

ought to take. (Emphasis added.)

(R.T. 5029:19-23.)

Obviously, by characterizing Petitioner and his counsel

as being in separate "camps", even the trial court recognized

the danger of the situation confronting Petitioner in dealing

with this very serious issue. However, consistent with his past

practice, the trial court ignored Petitioner's concerns and

rights.

sies

Petitioner then inquired how the trial court could

ameliorate this situation with the jury. The trial court

responded:

I will do whatever I can ethically to minimize

any psychological impact [by your failure to

testify]. I cannot guarantee you what the jury is

going to believe, whether you do or do not

testify.13/ (Emphasis added.)

(R.T. 5030:18-23.)

Petitioner's counsel then gave a self-serving statement

to the trial court, relating to the decision for Petitioner to

testify, noting that before the defense opening statement

Petitioner was "vacillating a little bit" as to whether to testify.

In fact, Petitioner's counsel told the trial court that just prior to

his opening statement he had asked Petitioner: "Are you sure

you're going to testify?" And he then stated:

So when I stood up and started talking to the

jury, that was it.

I had to make a decision, so I told Mr. Hines

we are locked in. We're -- all systems are go

and I'm going to tell them what you are going

to say. -- We are still trying to talk him into

taking the stand. He knows he has the final

say. (Emphasis added.)

13/ This statement is a recognition that the damage had been

done by this point.

ne |

SF

(R.T. 5031:8-5032:1.)

The trial court terminated this in-camera hearing with

the following confusing statement:

I am simply, as a matter of raw courtesy,

suggesting to Mr. Hines, non-lawyer, that if he

feels some undue impact of your opening

statement, that a bell that can't be unrung, that's

why I made my offer to do it from the

objectivity of the bench with that instruction

about option to testify or not to testify.

(R.T. 5032:2-11.)

There was no further discussion on the record prior to

the time Petitioner testified.

A review of the trial transcript and Petitioner's letter to

the trial court on the issue of testifying demonstrates that the

matter was handled in such a way as to deprive Petitioner of

any meaningful right to choose whether or not to testify. A

review of Petitioner's trial testimony reveals a confused

witness who, albeit he denied culpability for any crime other

than auto theft, surely did not make a favorable impression

with the jury and clearly was inadequately prepared by his

appointed counsel. (R.T. 5056-5242.)

The correct choice, Petitioner's choice, was not to

testify. Not only did this have a detrimental effect in the guilt

phase of the trial, it most likely carried even over to the

penalty phase.

= 2

CAPITAL DEFENDANTS IN CALIFORNIA ARE

DENIED DUE PROCESS OF LAW BY THE REFUSAL

OF THE CALIFORNIA SUPREME COURT TO APPLY

ITS STATUTORY POWER TO REDUCE CRIMINAL

SENTENCES TO CASES IN WHICH THE DEATH

PENALTY HAS BEEN IMPOSED.

Under California law, both trial and appellate courts

have statutory powers to reduce the punishment imposed on

criminal defendants. Section 1181 (7) of the California Penal

Code provides:

When the verdict or finding is contrary to law

or evidence, but in any case wherein authority

is vested by statute in the trial court or by jury

to recommend or determine as a part of its

verdict or finding the punishment to be

imposed, the court may modify such verdict or

finding by imposing the lesser punishment

without granting or ordering a new trial, and

this power shall extend to any court to which

the case may be appea'ed.

California Penal Code section 1260 states:

Rulings by appellate court. The court may

reverse, affirm, or modify a judgment or order

appealed from, or reduce the degree of the

offense or attempted offense or the punishment

imposed, and may set aside, affirm, or modify

any or all of the proceedings subsequent to, or

dependent upon, such judgment or order, and

may, if proper, order a new trial and may, if

proper, remand the cause to the trial court for

-19-

such further proceedings as may be just under

the circumstances.

The two statutes make no distinction between death-

‘sentenced and non-capital defendants. Under their terms, any

defendant is entitled to have the reviewing court consider

reducing his punishment; in the language of section 1181(7),

"this power shall extend to any court to which the case may be

appealed." (Emphasis added.)

Despite this clear language and over repeated dissents,

a majority of the California Supreme Court has consistently

refused to exercise its power, or even to acknowledge it, in

capital cases, including that of petitioner. Appendix A, pp. 98-

99; 101-106; People v. Hines, 15 Cal.4th 1079-1080 and 1081-

1084, and cases cited therein.

The statutes quoted above establish a procedural

entitlement that is protected by the due process clause. Hicks

v. Oklahoma, 447 U.S. 343, 65 L.Ed.2d 175, 100 S.Ct. 2227.

"Where a statute indicates with ‘language of an unmistakable

mandatory character’ that state conduct injurious to an

individual will not occur ‘absent specified substantive

predicates’ the statute creates an expectation protected by the

Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 428,

91 L.Ed.2d 335, 358, 106 S.Ct. 2595 (1986) (conc. opinion of

O'Connor, J.). The refusal of the California Supreme Court to

acknowledge or employ its power under sections 1181(7) and

1260 constitutes an arbitrary deprivation of that

constitutionally-protected expectation, in violation of the due

process clause of the Fourteenth Amendment.

Capital defendants also possess the right, under the

Eighth Amendment and the Due Process Clause, to

- 20 -

meaningful appellate review. Parker v. Dugger, 498 U.S. 308,

321, 112 L.Ed.2d 812, 821, 1115 S.Ct. 731 ["We have

emphasized repeatedly the crucial role of meaningful appellate

review in ensuring that the death penalty is not imposed

arbitrarily or irrationally."] The California court's refusal to

employ its statutory right of review deprives capital

defendants of that entitlement, as well, increasing the risk that

California's capital charging and sentencing system, already

unable to separate defendants deserving of death from those

who are not, 7uilaepa v. California, 512 U.S. 967, 129

L.Ed.2d 750, 767-774, 114 S.Ct. 2630 (1994) (diss. opinion of

Blackmun, J.) will randomly condemn even more.

Petitioner therefore respectfully requests that this

petition for certiorari be granted.

Respectfully submitted,

MARTIN H. KRESSE

(California Bar No. 048132)

Steuart Street Tower

One Market

San Francisco, California 94105

(415) 267-4000

Attorney for Petitioner,

GARY DALE HINES