# Petition for Writ of Certiorari — Hines v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1042

## Text

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( Supreme Court, U.S.
/ FILED

uf,
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
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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,
TI sic isicencilssaaidditsdie asda acl bcamnarachanicsionsnesesbie | f

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1753%3A1. Public record. Not legal advice.