Criminal Appeal

26 Death Sentences Affirmed on Direct Review in 2005

In 2005, the California Supreme Court issued decisions in 26 death penalty appeals, affirming all 26 death sentences. The vast majority of the decisions were unanimous and affirmed the judgments in their entirety. (Decisions in habeas cases are not listed, nor are abatements due to the death of the appellant (see e.g. here and here).)

The consistency in result and unanimity of opinion is quite remarkable, and was not limited to death cases. A year-in-review article (registration required) published in the Recorder today notes that of 111 decisions handed down in 2005, 85 were unanimous ("52 were 7-0 and 33 were 6-0"). (The one death penalty reversal noted in the article was on habeas review.)

All 26 direct appeals are listed below with links to the opinions and summaries of the results.

People v. Robinson, no. S040703 (Dec. 15, 2005);

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety
  
• Justice Moreno (joined by Justice Kennard) wrote a short concurrence, noting his argreement that the defendant had waived a challenge to penalty-phase victim impact evidence, but also stating that some of the testimony of the victim's family was not admissible because it constituted opinion or charchterization of the crime or defendant, rather than reflecting on loss to society or family caused by the victim's deat. Click here to see the paragraphs describing the offensive testimony.
• Associate Justice (and Cal. Supreme Court Nominee) Carol Corrigan was assigned to this case to fill Janice Rogers Brown's former seat.

People v. Manriquez, no. S038073 (Dec. 5, 2005)

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety

People v. Elliott, no. S057063 (Nov. 28, 2005)

• unanimous decision authored by Justice Moreno
• judgment affirmed in entirety

People v. Harris, no. S058092 (Aug. 29, 2005)

• 5-1 decision authored by Justice Chin
• judgment affirmed in entirety
• Justice Kennard dissented, concluding:
  
  • the trial court erred in questioning defendant in front of the jury in way that revealed court's disbelief of defendant; this error, however, was harmless;
  • the trial court prejudially erred in excluding defense evidence---that the victim of attempted murder was dealing drugs and the victim of the murder (his girlfriend) was in joint possession of the drugs---during the penalty phase. This evidence was admissible under 190.3(a) as circumstances of the offense and was also relevant to rebut victim impact evidence.

People v. Gray, no. S014664 (Aug. 25, 2005)

• unanimous opinion authored by Justice Werdeger
• judgment affirmed in entirety
• Justices Baxter and Chin wrote concurrences suggesting that People v. Coddington (2000) 23 Cal.4th 529, 605-606, should be reconsidered to the extent it held that the work product privilege precludes a prosecutor from arguing that defense failure to call experts who had examined forensic evidence indicated they had nothing helpful to contribute.

People v. Schmeck, no. S015008 (Aug. 25, 2005); modified 10/12/05

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety

People v. Moon, no. S021054 (Aug. 18, 2005)

• unanimous decision authored by Justice Werdeger
• judgment affirmed in entirety

People v. Cornwell, no. S046176 (Aug. 18, 2005)

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety

People v. Carter, no. S014021 (Aug. 15, 2005)

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety

People v. Carter, no. S023000 (Aug. 15, 2005), modified Oct. 26, 2005

• unanimous decision authored by Chief Justice George;
• lying-in-wait special circumstance vacated for insufficient evidence; convictions and death sentence otherwise affirmed;
• Justice Kennard, who joined the main opinion, wrote a separate concurrence, noting the prosecutor improperly commented on the defense failure to call witnesses. But she would find the error harmless.

People v. Dunkle, no. S014200 (Aug. 4, 2005)

• unanimous decision authored by Justice Kennard
• judgment affirmed in entirety

People v. Blair, no. S011636 (July 28, 2005)

• unanimous decision authored by Chief Justice George
• judgment affirmed in entirety

People v. Kennedy, no. S037195 (July 27, 2005)

• unanimous decision authored by Justice Kennard
• judgment affirmed in entirety

People v. Davis, no. S012945 (July 21, 2005)

• unanimous decision authored by Justice Kennard
• one robbery count vacated due to error in failing to give unanmity instruction on which act constituted robbery; judgment otherwise affirmed

People v. Wilson, no. S039632 (July 11, 2005)

• unanimous decision authored by Justice Chin
• judgment affirmed in entirety

People v. Ward, no. S019697 (June 30, 2005); modified 9/7/05

• unanimous decision authored by Justice Brown
• judgment was modified to conform to verdict, such that special circumstance was prior murder conviction; judgment otherwise affirmed

People v. Samuels, no. S042278 (June 27, 2005), modified 9/21/05

• 5-2 decision, majority opinion authored by Justice Brown;
• judgment affirmed in entirety;
• Justice Werdeger, joined by Justice Kennard, concurred, but wrote "separately ... to suggest the time has come to modify our position concerning whether a jury in a capital case should be completely informed of the meaning of life imprisonment without the possibility of parole." (I.e. CALJIC 8.84 appears to be inadequate.)
• Justice Kennard wrote a separate concurrence and dissent, on two points: (1) while fact that the defendant gained financially from death was admissible, the trial court erred in admitting evidence on how defendant spent money she inherited (this error was harmless); (2) majority failed to determine whether prosecutor's biblical reference were error because it found them not prejudicial; Justice Kennard, however, found it necessary to decide question of error because "majority is wrong when it says that a prosecutor’s improper reliance on religious authority is harmless if it is only a 'small part' of the prosecutor’s closing argument." (She went on to find the reference to the bible was not error because it was part of an argument that the jury should not be persuaded either way by the bible.)

People v. Dickey, no. S025519 (May 23, 2005)

• unanimous decision authored by Justice Brown
• judgment affirmed in entirety

People v. Roldan, no. S030644 (Apr. 25, 2005)

• unanimous decision authored by Justice Werdeger
• judgment affirmed in entirety

People v. Stitely, no. S028970 (Mar. 21, 2005)

• unanimous decision authored by Justice Baxter
• judgment affirmed in entirety

People v. Panah, no. S045504 (Mar. 14, 2005)

• unanimous decision authored by Justice Moreno
• judgment affirmed in entirety

People v. Gregory Smith, no. S026223 (Mar. 10, 2005), modified Apr. 27, 2005

• unanimous decision authored by Justice Kennard
• judgment affirmed in entirety

People v. Vieira, no. S026040 (Mar. 7, 2005)

• 6-1 decision authored by Justice Moreno;
• death sentence for conspiracy to commit murder, which is not a death-eligible offense, vacated; remanded for imposition of 25-to-life term on that count; death sentences on three other offenses affirmed;
• judgment otherwise affirmed;
• Justice Kennard wrote a separate concurrence and dissent noting (1) the trial court erred in excluding expert witness on cults, but the error was harmless; (2) finding that the prosecutor's biblical references in closing argument were prejudicial error, resulting in her vote to vacate the death sentences;
• in a modification filed on May 26, 2005, the court "remand[ed] to the trial court for reconsideration of the question of a restitution fine under the currently applicable statute".

People v. Harrison, S035367 (Mar. 3, 2005)

• 5-2 decision authored by Justice Kennard;
• judgment affirmed in entirety;
• Justice Moreno, joined by Justice Werdeger, wrote a concurring opinion in which he concluded that the prosecutor's biblical references in the guilt-phase closing argument was misconduct, but not prejudicial.

People v. Benavides, no. S033440 (Feb. 17, 2005)

• unanimous decision authored by Justice Brown
• judgment affirmed in entirety

People v. Robert Young, no. S018909 (Jan. 31, 2005)

• unanimous decision authored by Justice Brown
• judgment affirmed in entirety
• Justice Brown also authored a separate concurrence in which she expressed doubt about the holding in People v. Motton (1985) 39 Cal.3d 596 that black women constitute a cognizable group for Batson purposes. While she wouldn't reject the possibility, she didn't see an evidentiary basis for the holding in Motton, or for a similar holding in the case before the court: "I would not reject, as a matter of law, the possibility that Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group, but  I see no evidentiary basis in Motton for us to have made a judicial finding to that effect, binding in all jury selection proceedings, and I see no such evidentiary basis in this case either." (Because the majority did not find purposeful discrimination, the question did not need to be decided.)

Ninth Circuit Split Dropped from Budget Bill

How Appealing has links to several news stories about Congress dropping the circuit-spit proposal from the budget bill.

Blakely Retroactivity Tips from Federal Defender

Steve Sady, Chief Deputy Defender for the Ofc. of the FPD in the Dist. of Oregon, has a post at the Ninth Circuit blog lamenting the failure of the federal courts to apply Blakely and Apprendi retroactively. Steve points out why Teague "needs a new look" in these post-AEDPA days when time bars diminish the finality concerns underlying Teague. Steve also links to a memorandum that can serve as the basis for a retroactivity argument.

I have just one thing to add. There should be no need to make a retroactivity argument as to post-Apprendi sentencings. Blakely and Booker did not announce new rules; both were matter-of-fact applications of Apprendi and the rule applied in those three cases applies to any cases which were not final on direct review when Apprendi was decided. Justice O'Connor, in her Blakely dissent, recognized that Blakely might not have announced a new rule:

Every sentence imposed under such guidelines in cases currently pending  on direct appeal is in jeopardy.  And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring  (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) (“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s  conviction became final”).

En Banc Review in Fed. Habeas Right-to-be-Present Case

The Ninth Circuit granted en banc review today in Bradley v. Henry, no. 04-15919, a state prisoner habeas case in which the three-judge panel, in a 2-1 decision, reversed the denial of the habeas corpus petition. Judges Noonan (author) and Ferguson (concurring) held that the defendant's absence from a hearing during which the trial court relieved retained counsel and appointed new counsel violated the due process right to be present at a critical stage of the proceeding. The Court found that the California Court of Appeal's holding to the contrary constituted an unreasonable application of US Supreme Court authority. Judge Rymer dissented.

Read the three-judge opinion here.

Cal. Capital Case Habeas Changes

The Cal. Supreme Court has announced some changes designed to encourage more attorneys to accept appointments to state habeas proceedings for capital defendants. The changes include an extended presumptive deadline for habeas-only appointments (three years from appointment, instead of two), record review at 50 pages per hour (instead of 60). The Court also intends to pursue an amendment to legislation in order to eliminate the $25,000 on habeas investigation expenses.

Cal. Supreme Court Review Grants

Here's a summary of recent Cal. Supreme Court action on petitions for review. (Grant and hold orders (i.e. briefing deferred) cases are not mentioned here.)

Dec. 14, 2005 Order List: no review grants in criminal cases.
Dec. 6, 2005: oral argument week - no order list.
Nov. 30, 2005:

• In re Large, S127754. The court issued an OSC limited to the following claim:  Is petitioner entitled to relief on the ground the trial court failed to exercise properly  its discretion to dismiss prior conviction allegations under the three  strikes law?

Nov. 23, 2005: no new cases accepted.
Nov. 16, 2005:

• People v. Johnson, S127602. This case is on remand from the United States Supreme Court in Johnson v. California, No. 04-6964, in which the Court held that California applied to high a burden on litigants establishing a prima facie showing that a peremptory challenge was based on an illegal factor (e.g. race, in this case). The Cal. Supreme Court now wants briefing on the remedy for the Wheeler/Batson error—outright reversal of  defendant’s conviction or a limited remand to permit the trial court to  inquire into the prosecutor’s reasons for removing minority jurors. Note: the same issue is pending in People v. Ibarra, S124067.
• People v. Leon, S137137, 131 Cal.App.4th 966: (1) Is there a legitimate expectation of privacy in telephone conversations on telephone procured under a false name and used for criminal purposes? (2) Does Penal Code section 629.72 create a broader right to challenge the admission of communications intercepted by such a wiretap than that afforded by the Fourth Amendment? (3) What showing of necessity is required for issuance of a wiretap in conspiracy cases?
• Perez-Torres v. California, S137346, 132 Cal.App.4th 49.)  This is a civil case: Does Government Code section 845.8 immunize the state and individual parole agents from liability for the mistaken arrest and detention of an individual who was not on parole but, because he was mistaken for another person, was incarcerated for 25 days for having violated parole?   
• People v. Scott, S136498:  Did trial court err in instructing the jury all employees have constructive possession of employer’s property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of employer’s property.
  
• Welch on Habeas Corpus, S107782. (Capital case; see People v. Welch (1999) 20 Cal.4th 701. OSC issued: Is petitioner entitled to relief on ground of jury misconduct (ex parte communications from bailiff) or ground of IAC (failure to investigate and present evidence of petitioner’s social history)?

Nov. 9, 2005: no new cases accepted.
Nov. 2, 2005: one grant and hold case; no fully briefed cases.
Oct. 26, 2005:

• People v. Medina, S137055, 131 Cal.App.4th 493: (1) Can a defendant commit the crime of attempted kidnapping during the commission of carjacking by attempting to kidnap the victim in an attempt to commit a carjacking, or does the crime  require the completed commission of the crime of carjacking in the  course of an attempted kidnapping?  (2) Are attempted kidnapping and attempted carjacking lesser included offenses of attempted kidnapping during the commission of carjacking? 

Hearings Set on Ruvolo and Siggins

The California Commission on Judicial Appointments will hold hearings on January 6 to consider the Governor's nominations of Associate Justice Ruvolo (1st Dist. Div. 2) to be the presiding justice of Division Four of the First District (replacing Justice Kay) and of the  Governor's former legal affairs secretary and current interim chief of staff Peter Siggins to be an associate justice of Division Three of the First District (replacing Justice Corrigan).

From the Governor's press release on Siggins:

• Chief deputy attorney general for legal affairs - 1999 to 2003;
• Senior assistant attorney general for the Correctional Law Section of the Department of Justice;
• Civil litigation and maritime law in the San Francisco Bay Area
• JD from UC Hastings Law School;
• BA from Loyola Marymount University;
• Registered decline-to-state.

There remains one vacancy in the First District: Justice Ruvolo's soon-to-be former seat in Division 2.

Corrigan Nomination

Last Friday, Governor Schwarzenegger announced the appointment of Associate Justice Carol Corrigan of the First Appellate District to fill Janice Rogers Brown's vacancy on the California Supreme Court. The governor's press release is replete with links to photos and a video from the announcement, as well as a copy of Justice Corrigan's CV, which notes the following:

• Associate Justice, California Court of Appeal, 1st Dist. Div. 3, 1994 - present.
• Judge of the Alameda County Superior Court, 1991-1994.
• Judge of the Oakland-Piedmont-Emeryville Judicial District, 1987-1991.
• Alameda County Deputy District Attorney, 1975-1985. 
• Senior Deputy District Attorney, 1985-1987.
• J.D. 1975, UC Hastings College of the Law (Hastings Law Journal Note and Comment Editor, 1974-1975; Law Journal Staff, 1973-1974.)   
• Saint Louis University, St. Louis, Missouri, 1970-1972.  Doctoral Program  in Clinical Psychology.  Left program to attend law school.    B.A. 1970, Holy Names College, Oakland, California.  Magna Cum Laude  in Psychology and in Sociology.  Student Body President, “Who’s Who  Among Students in American Colleges and Universities,” Student Body  Vice-President, Founder’s Medal.

Justice Corrigan has been widely praised for the work she did chairing the Judicial Council task force which created the brand new plain language criminal jury instructions.

I've appeared before Justice Corrigan quite a few times. She's very smart, well-prepared, insightful, has a curious mind and is not result-oriented. (Her demeanor at oral argument, however, can be quite harsh. If she agrees with you, she's very pleasant; if she disagrees with you she isn't exactly gentle. Of course, Justice Corrigan is even-handed in doling out the vitriol: no one is spared, not even deputy A.G.'s.)

 

State Blakely Cases Update

California Cases

• Cunningham v. California, no. 05-6551; response requested 11/8; response due 12/22);
• Black v. California, no. 05-6793, response requested 11/18; response due 12/19) (this was the lead case in California);
• Picado v. California, no.05-7321 (filed 11/2; response due 12/2).

Other States:

• Gomez v. Tennessee, no. 05-296, state's response filed Oct. 3; distributed for conf. of 11/4; distributed for conference of 12/2.

Ninth Cir. to Review Relief for Plea Negotiations IAC

This week, the Ninth Circuit granted en banc review of its 2-1 decision in Riggs v. Fairman, no. 02-55185, a case concerning whether the district court erred in denying specific performance as a remedy for trial counsel's failure to effectively investigate a client's prior criminal history in a California three strikes case.

In the original three-judge decision, the majority (Judges Trott &  Rawlinson (author) held that the district court did not abuse its discretion in fashioning a remedy whereby the parties would return to their pre-error negotiating stage, rather than specific performance. Judge Bea dissented and would  have held that Riggs was entitled to specific performance of the five-year offer.

Trivia Bit #1: Last year, a different 2-1 panel (Judges Reinhardt, Thompson (dissenting) & Berzon) granted habeas relief and specific performance (dissent here) to my client Eugene Jones in a very similar case in which trial counsel's failure to investigate criminal history resulted in the ill-advised rejection of a seven-year offer and ultimate imposition of a 30-to-life sentence. After serving more than 10 years in prison, Mr. Jones was released last spring. Of course, the S.F. jail opted to release him at 11 p.m. with no money in his pocket.

Trivia Bit #2: Riggs, by the way, was the petitioner in a 1999 cert. denial from which Justices Stevens, Souter, Ginsburg and Breyer dissented. That petition raised the question of whether an indeterminate 25-to-life term for petty theft was cruel and unusual.