Rose v. Superior Court

• Citation: 92 Cal.Rptr.2d 313,77 Cal.App.4th 1185
• Decision Date: 28 January 2000
• Docket Number: No. B134032.,B134032.
• Court: California Court of Appeals
• Parties: Clarence Lasalle ROSE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The People, Real Party in Interest.

92 Cal.Rptr.2d 313

77 Cal.App.4th 1185

Clarence Lasalle ROSE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The People, Real Party in Interest.

No. B134032.

Court of Appeal, Second District, Division 6.

January 28, 2000.

Rehearing Granted February 24, 2000.

Peter Gold, under appointment by the Court of Appeal, San Francisco, for Petitioner.

County of Los Angeles Office of the County Counsel, Lloyd W. Pellman, County Counsel, and Frederick R. Bennett, Assistant County Counsel, for Respondent.

No appearance by Real Party in Interest.

OPINION AND ORDER

GILBERT, P.J.

This is a case in which this court should not have to grant a writ of mandate. We must do so nonetheless because the superior court did not comply with our order that it conduct a hearing on a petition for writ of habeas corpus. The trial court's failure to follow our explicit order sets a poor example for litigants, lawyers, and the public. It undermines the administration of justice and fosters disrespect for the law.

FACTS

On February 3, 1996, Scott Riley and four friends met at a Long Beach bar in order to celebrate Riley's birthday. During the course of the evening, the Riley party drank a considerable amount of alcohol. At about 1 a.m., they were talking outside the bar when an Afro-American man and two women walked by. There was a brief exchange of words between the two groups.

Soon thereafter, several individuals confronted Riley's group. A man took a 9millimeter pistol from his pocket and pointed it at Randy Borgfield. Randy Borgfield turned and fled. More than a dozen shots were fired. Brian Borgfield, Randy's brother, was hit in the head by a 9-millimeter bullet and died. Two others were wounded.

The police conducted a photographic lineup. Three members of the Riley party identified petitioner Clarence Lasalle Rose as the assailant.

Rose was charged with murder, attempted murder, and assault. At the preliminary hearing, he was represented by the office of the alternate public defender. Rose's defense was based on alibi. Rose additionally claimed that the police department investigator was biased. The People's case depended largely upon eyewitness identification.

Prior to trial, Rose retained two private attorneys. One was a recent California State Bar admittee who had tried only one jury case. The other had been admitted in June of 1993. Neither attorney had ever tried a felony.

In opening statement defense counsel told the jury, "most likely we'll be out of here in a week, which is good for you. I hope it's good for Mr. Rose...." He was only half right. Closing argument followed closely on the heels of opening statement, a mere five days.

Sandwiched in between was the brief trial and no trial brief. One eyewitness testified that Rose was the person who had been walking with the two women and who had pulled a pistol from his pocket. Another witness stated he was intoxicated and therefore uncertain of Rose's identity as the assailant. A third witness testified that he did not believe Rose to be the assailant. It was night and each of these witnesses had been drinking just prior to the attack.

During closing arguments, the prosecutor referred to gang affiliation and purportedly misstated the testimony given by an alibi witness. Counsel failed to object to these statements.

The jury deliberated for six days and ultimately convicted Rose of murder in the first degree, attempted murder and assault with a firearm. He was sentenced to a term of 38 years in prison, plus 3 consecutive life terms.

Rose filed an appeal with this court. In addition, he submitted a petition for habeas corpus in which he averred that his counsel was incompetent. (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.) In declarations attached to the habeas petition, both attorneys acknowledge numerous deficiencies.

Rose alleges his attorneys failed to: (1) conduct any pretrial investigation of prosecution witnesses; (2) challenge the photographic lineups on the ground that they were unduly suggestive; (3) use information of possible police bias garnered by the alternate public defender; (4) introduce admissible evidence of police bias at trial; (5) demonstrate a familiarity with the rules of evidence relating to hearsay and its exceptions; (6) call an expert witness on the subject of cross-racial identification; and (7) subpoena Rose's doctor.

After reviewing the record on appeal, it appeared that Rose's trial counsel likely failed to explore and preserve possible defenses. The allegations and declarations in Rose's petition for habeas corpus heightened our concern over the quality of representation. We therefore issued an order to show cause on the habeas petition and ordered that it be returnable in respondent court.

Respondent court acted with alacrity and denied the petition the day after Rose's appellate attorney filed a detailed 43-page traverse. The court's terse minute order was not enlightening. It merely stated that the court had read and considered the traverse; that Rose was "unrepresented" and not present in court; and that the petition for "Habeas Corpus is denied." The court held no hearing. It made no factual findings. It left us with not so much as a hint why the court ruled as it did.

Rose again sought relief from this court through a petition for habeas corpus. This required our treating the petition as one for mandate. We then issued an order to show cause for a writ of mandate.

In a letter to this court, county counsel acknowledged that the order of July 21, 1999, did not contain the proper recital of reasons. Counsel submitted a second letter, dated August 17, 1999, in which respondent court premised its denial of Rose's petition upon his failure to allege specific facts to sustain his arguments. In its transmittal letter, counsel stated that respondent court requests that its "letter be accepted and filed as a written return" from the court.

DISCUSSION

A. August 17, 1999 Letter from the Court

The letter from the court reflects a fundamental misunderstanding of the law governing habeas corpus and of the proper role of the court in a mandamus proceeding. It is not a proper return.

The court should be neutral, not an adverse party pleading its cause. "It is fundamental that an action must be prosecuted by one who has a beneficial interest in the outcome. In a mandamus proceeding, it is the parties [in the underlying proceeding], not the courts [whose rulings are challenged], which have a `beneficial interest' in the outcome of the case; the role of the respondent court is that of a neutral party." (Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1129, 22 Cal.Rptr.2d 504, 857 P.2d 325, citations omitted.)

"The apparent premise underlying the court's decision[] in Gonzalez ... is that the court should not assume a partisan role. As noted in 8 Witkin, California Procedure (3d ed. 1985) Extraordinary Writs, section 148, page 789, `... if certiorari, prohibition or mandamus is sought against a court, the respondent judge, as in an appeal from a judgment, is a neutral party in the controversy between the plaintiff and defendant in the main action. The adverse party in that action is the real party in interest....' Such neutrality is also demanded by the duty of impartiality imposed upon judges by the California Code of Judicial Ethics (see canon 3)." (Ng v. Superior Court (1997) 52 Cal. App.4th 1010, 1016, 61 Cal.Rptr.2d 49.)

As we stated in Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273, 258 Cal.Rptr. 66, "Judges should be umpires rather than players."

B. The Defective Minute Order

The trial court's order of July 21, 1999, was irredeemably flawed. As we stated in In re Moss (1985) 175 Cal.App.3d 913, 921, footnote 5, 221 Cal.Rptr. 645, "Reticent superior court judges pondering the merits of habeas corpus petitions should keep in mind that a denial without a statement of reasons is contrary to the plain requirements of California Rules of Court, rule 260(e)."¹

A recitation of grounds aids and preserves "confidence in the decision-making process `by helping to persuade the parties [and the public] that ... decision-making is careful, reasoned and equitable.' [Citation.]" (In re Podesto (1976) 15 Cal.3d 921, 937, 127 Cal.Rptr. 97, 544 P.2d 1297 [trial court required to issue a brief statement of grounds when denying an order for bail on appeal].) It also affords the petitioner the opportunity to assess intelligently whether to seek further review. (In re Sturm (1974) 11 Cal.3d 258, 268-270, 113 Cal.Rptr. 361, 521 P.2d 97 [prison board must give its reasons for denial of parole]; People v. Ramirez (1979) 25 Cal.3d 260, 276, 158 Cal.Rptr. 316, 599 P.2d 622 [inmate excluded from California Rehabilitation Center entitled to statement of reasons].) When habeas is sought in an appellate court, a brief statement of reasons by the trial court aids the appellate court in its review of the merits of the petition. (In re Jackson (1985) 39 Cal.3d 464, 477, 216 Cal.Rptr. 760, 703 P.2d 100; see also Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513-518, 113 Cal.Rptr. 836, 522 P.2d 12.)

C. Ineffective Assistance of Counsel

As Rose points out, a defendant has a constitutional right to be represented by effective counsel. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Gideon v. Wainuright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.) The trial judge has a duty "to protect the defendant's right to a counsel who is effective." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 440 P.2d 65.)

An informed tactical decision made by defense counsel does not constitute ineffective assistance of counsel. (In re Ibarra (1983) 34 Cal.3d 277, 284, 193 Cal. Rptr. 538, 666 P.2d 980.) As a corollary rule, "ineptitude or lack of industry" on the part of counsel falls well short of the mark. (In re...