Bower, In re

• Decision Date: 24 June 1985
• Docket Number: Cr. 23268
• Parties: , 700 P.2d 1269 In re Jackie Lee BOWER, On Habeas Corpus.
• Court: California Supreme Court

Page 267

215 Cal.Rptr. 267

38 Cal.3d 865, 700 P.2d 1269

In re Jackie Lee BOWER, On Habeas Corpus.

Cr. 23268.

Supreme Court of California In Bank.

June 24, 1985.

James Farragher Campbell, Linda Lee DeMetrick and Campbell & DeMetrick, San Francisco, for petitioner.

John K. Van de Kamp, Atty. Gen., Thomas A. Brady and Charles J. James, Deputy Attys. Gen., for respondent.

REYNOSO, Justice.

We issued an order to show cause in this case to examine the first degree murder conviction of Jackie Lee Bower. The prosecution may not, consistent with the guarantee of due process of law, penalize a defendant for exercising constitutional rights. We conclude that a due process violation occurred when the prosecution increased the severity of the charges against petitioner after jeopardy had attached and petitioner had exercised his right to a fair trial by successfully moving, based on prosecutorial error, for a mistrial. Because the due process violation in this case affects only the increase in the charge from second to first degree murder, we modify the judgment of guilt to second degree murder.

I. The Crime, the Mistrial, and the Retrial

On August 18, 1978, Robert McClure and petitioner drove in separate vehicles to the Richmond home of Carla and Richard New. The two visitors entered the home with Carla's consent. Stanley Boyle, a guest of the News was asleep on the couch. Later that night, while all five people were in the living room, McClure grabbed Carla New and pushed her head into the rug. Petitioner pushed down the head of Stanley Boyle, who was still asleep. One shot was fired, by either McClure or petitioner, and it killed Richard New. Neither Carla New nor Stanley Boyle witnessed the shooting. McClure and petitioner drove away in their respective vehicles leaving their headlights off.

McClure and petitioner were charged with murder in violation of PENAL CODE SECTION 187¹ and McClure was charged with personal use of a firearm in violation of section 12022.5. Petitioner was also charged with being an accessory in violation of section 32. The information set forth three prior convictions against petitioner (involuntary manslaughter, possession of narcotics in prison, and possession of a firearm by a felon). At the motion of McClure's counsel the Superior Court for the County of Contra Costa severed the trials of the codefendants. Counsel stipulated that McClure would be tried first.

In McClure's trial, the jury was instructed on first degree murder. However, the jury found McClure guilty of second degree murder. It also found that McClure had personally used a gun in the commission of the crime.

The trial against petitioner began on April 1, 1980. Out of the presence of the jury, petitioner admitted the three prior convictions alleged in the information. On the first day of the proceedings, the jurors and alternate jurors were sworn to try the case. The prosecutor made his opening argument.

On the second day of the trial, the defense and prosecution attorneys entered into a stipulation that limited petitioner's liability to the crime of second degree murder. The court directed counsel to resolve the precise form of the stipulation during discussions on jury instructions. Five of the prosecution's witnesses testified that day.

On the third day of the trial, three additional witnesses for the prosecution testified. During the testimony of Sergeant Doug Sieberling, petitioner's parole status was revealed. ² Petitioner moved for a mistrial and the motion was granted.

Seiberling was the last of the prosecutor's eight witnesses. Apparently the trial was practically completed at the time of the motion for a mistrial. Only the closing arguments, jury instructions and deliberations remained at the time of mistrial.

On retrial, the prosecution unilaterally announced that the stipulation was not renewed. In an affidavit later filed in response to the petition for habeas corpus the prosecutor explained that he had withdrawn the initial offer because in the one week between the two trials, he had had "the opportunity to review the physical evidence and to engage in lengthy conversation with some of the potential witnesses. [p] By the 14th [first day of retrial], I had formed the opinion, based on my more exhaustive review of the case, that it was [petitioner] and not his codefendant, as had been previously believed, who fired the fatal shot. [p] As it was my belief that [petitioner] was the victim's actual killer, I felt that a first degree murder conviction was appropriate and that I was no longer obligated to agree to anything less. [p] The case was tried and argued on the theory that it was [petitioner] who had fired the bullet which took the victim's life."

In his opening statement to the jury on retrial the prosecutor argued that petitioner Bower was guilty of murder. However, the prosecutor stated to the jury that "The evidence will prove to you beyond a reasonable doubt, and this is important, that the defendant aided and abetted in the murder of Richard New." Further, during a discussion of petitioner's bail status on the second day of trial, the court asked the prosecutor whether there would be anything different about the second trial. The prosecutor answered that the evidence would not be "different."

The second trial was expeditious. It began on April 14, 1980. The prosecution called the same eight witnesses it had called in the first proceeding. The defense called no witnesses. On the fourth day of the trial, the instructions were read to the jury and they were taken to the jury room for deliberations. On the fifth day of the trial the jurors returned their verdict. They found petitioner guilty of first degree murder.

II. Analysis

Before discussing petitioner's legal contentions, we address the question of whether the claims are cognizable on habeas corpus.

The People argue that all of petitioner's claims were cognizable on appeal but were not raised in that proceeding. We agree that habeas corpus generally may not be used as a second appeal and that matters that could have been, but were not, raised on appeal are not cognizable on habeas corpus in the absence of special circumstances warranting departure from that rule. (See In re Coughlin (1976) 16 Cal.3d 52, 55, 127 Cal.Rptr. 337, 545 P.2d 249; In re Terry (1971) 4 Cal.3d 911, 927, 95 Cal.Rptr. 31, 484 P.2d 1375.) It is equally well established, however, that when reference to matters outside the record is necessary to establish that a defendant has been denied a fundamental constitutional right resort to habeas corpus is not only appropriate, but required. (See, e.g., People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859; In re Lewallen (1979) 23 Cal.3d 274, 278, 152 Cal.Rptr. 528, 590 P.2d 383.) Neither this court's opinion in Twiggs v. Superior Court (1983) 34 Cal.3d 360, 374-375, 194 Cal.Rptr. 152, 667 P.2d 1165, nor that of the United States Supreme Court in United States v. Goodwin (1982) 457 U.S. 368, 383-384, 102 S.Ct. 2485, 2493-2494, 73 L.Ed.2d 74, contemplates that when a claim of prosecutorial vindictiveness is made the parties will be denied the opportunity to present evidence outside the record on that issue. (See Thigpen v. Roberts (1984) --- U.S. ----, ----, n. 6, 104 S.Ct. 2916, 2920, n. 6, 82 L.Ed.2d 23.) Therefore habeas corpus is an appropriate procedure.

As in other cases in which a collateral attack on the judgment is mounted, the petitioner bears the burden of stating a prima facie case entitling him to relief if true (In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257) and of explaining any delay in making the claim. (In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793.) Although a habeas corpus petitioner normally bears the burden of proving the facts upon which he bases his claim for relief, (In re Riddle (1962) 57 Cal.2d 848, 852, 22 Cal.Rptr. 472, 372 P.2d 304) where, as here, the possibility that increased or additional charges violated due process is at issue, he need only demonstrate facts giving rise to a presumption of vindictiveness at which time, even on habeas corpus, the burden shifts to the People to rebut the presumption. (Cf. In re Lewallen, supra, 23 Cal.3d 274, 152 Cal.Rptr. 528, 590 P.2d 383 [People failed to rebut clear meaning of court's statement at sentencing that increased punishment was penalty for exercising right to trial].)

The People do not contend that the allegations of the petition for writ of habeas corpus, supported by the record of the trial proceedings, fail to give rise to a presumption of prosecutorial vindictiveness. ³ And, as was the case in In re Lewallen, supra, the People have neither alleged facts to rebut the presumption in their Return to the petition before this court, nor offered evidence to do so. By making only general denials of the allegations of the petition, alleging only conclusionary statements of ultimate facts, the People have indicated a willingness to rely on the record of proceedings in the superior court and the documentary evidence submitted by petitioner as exhibits to his petition. (In re Lewallen, supra, 23 Cal.3d 274, 278, 152 Cal.Rptr. 528, 590 P.2d 383.) In these circumstances an evidentiary hearing is unnecessary, and we depart from the normal procedure on habeas corpus in which the allegations of the return are accepted as true unless rebutted by the petitioner in his traverse and by proof at the ensuing evidentiary hearing. (See In re Lawler, supra, 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257; In re Saunders (1970) 2 Cal.3d 1033, 1047-1048, 88 Cal.Rptr. 633, 472 P.2d 921.)

Having determined that the petition is properly before this court, we turn to petitioner's claim. ⁴ The constitutional protection against prosecutorial vindictiveness is based on the fundamental notion that it "would be patently unconstitutional" to "chill the assertion of constitutional rights by penalizing...