In re Corpus

Citation263 Cal.Rptr.3d 63,49 Cal.App.5th 377
Decision Date26 May 2020
Docket NumberE073871
CourtCalifornia Court of Appeals
Parties IN RE Tom SMITH on Habeas Corpus.

Michael B. Petersen and Paula M. Mitchell, Loyola Law School Project for the Innocent, for Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Respondent.

OPINION

RAMIREZ, P.J.

A jury found petitioner guilty of first degree murder, assault by means likely to produce great bodily injury, dependent adult abuse, conspiracy to commit murder, custodial possession of a weapon, custodial manufacture of a weapon, and misdemeanor damage to prison property, along with various enhancements, arising from an attack on a fellow inmate at Patton State Hospital. Petitioner was sentenced to an aggregate term of 168 years to life. He appealed, raising, among other issues, the ineffectiveness of his trial counsel based on defense counsel's closing argument, in which he conceded petitioner's guilt of the crime but asked the jury to find him guilty of second degree murder, rather than first degree. The judgment was affirmed on direct appeal. ( People v. Smith (Apr. 13, 2012, E052044) 2012 WL 1241806 [nonpub. opn.] [Hollenhorst, Acting P.J.; King & Codrington, JJ., concurring].) Petitioner did not seek review in our Supreme Court. However, he did file multiple petitions seeking to collaterally attach the judgment.

In May 2018, the U.S. Supreme Court decided McCoy v. Louisiana (2018) 584 U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 ( McCoy ). Petitioner filed a habeas petition in superior court re-arguing the issue of his trial counsel's ineffective assistance based on McCoy , and, when that petition was denied, he raised the same issue in this appellate court, and we denied the petition. Petitioner then pursued the issue in the Supreme Court, which issued an order to show cause before this court why petitioner is not entitled to relief pursuant to the holding of McCoy , and why McCoy should not apply retroactively to final judgments on habeas corpus.2 ,3 We deny the petition.

BACKGROUND

We recite the facts as set forth in our original opinion on direct appeal, People v. Smith , (nonpub. opn., E052044), filed on April 13, 2012:

In 2005 petitioner was a patient at Patton State Hospital (Patton), where he roomed with Jason Porter, Michael Zamora and Robert Lucas in housing Unit 33. Petitioner was five feet five inches tall and weighed 260 pounds. Because he was overweight, he was on a reduced calorie diet and always wore black suspenders to keep his pants up. He was assigned to the caseload of Psychiatric Technician Marie Rockwell, who had observed him unravel the fabric from his suspenders and attach the string to other objects, like a pen.

On the evening of September 6, 2005, hotdogs were being served for dinner in the dining room at Patton. Petitioner became upset and enraged that he could not have a second portion, and the staff calmed him down. After 9:00 p.m., Rockwell saw Porter run into the main bathroom. Ten or 15 minutes later, Porter came out "hurrying" while putting on a prison-issued khaki button up.

At 10:15 p.m., Albert Rennie, a registered nurse, went to petitioner's room to deliver a CPAP (continuous positive airway pressure) machine for sleep apnea

to help petitioner sleep. As he entered the room, Rennie saw petitioner and Porter sitting on the bed whispering to each other while playing loud music. A half-hour later, senior psychiatric technician Mark Carty conducted rounds at housing Unit 33. As he was checking the bathrooms, he saw petitioner and Porter in adjoining stalls, Porter said, "Oh shit. Oh shit." Smith and Porter identified themselves when Carty stated he was doing the count.

However, upon proceeding to Room 33-23, Carty saw Lucas lying on the floor, completely wrapped in bedding with only his ankles showing. The bedding was wet and smelled of urine. Lucas's feet were discolored. Carty touched Lucas's left shoulder but there was no response. Further shaking produced no response from Lucas, who was not breathing. Carty testified there appeared to be "some type of black material wrapped tightly around [Lucas's] neck," which looked like the black suspenders used by heavyset patients at Patton to keep pants up. He saw a "moderate amount of blood spots" on the floor and the wall. Zamora was lying on an upper bed with his eyes closed. Carty notified the nurse's station and Rockwell ran to retrieve the crash cart.

The staff attempted to revive Lucas but was unable to do so. The suspender material wrapped around his neck was so tight the staff had to use a knife to cut it off. Zamora continued to lie in bed during the resuscitation efforts. Rockwell later heard petitioner and Porter talking about how proud they were of killing Lucas. They were unremorseful about killing him, saying they were glad they did it. Petitioner said, "we just wanted to see how it felt to kill someone."

Charles Risch, a police sergeant at Patton, contacted petitioner and Porter and read them their Miranda4 rights. Petitioner agreed to speak. The sergeant separated the two men. Petitioner said, "I killed him. I strangled him with the suspenders." He then said that Porter had stabbed Lucas with a pen and punched him. According to petitioner, he and Porter had been planning for a while to kill Lucas "because he [Lucas] was a child molester." Petitioner said he got blood on his clothes. The sergeant saw blood on the floor of the room. When Sergeant Risch spoke to Porter and read him his rights, Porter admitted he was "in on it" with petitioner and that he (Porter) stabbed Lucas with a pen.

Later, while outside smoking a cigarette, petitioner told Officer Donald Sumner, an investigator at Patton, "I did it." Petitioner said he used the suspenders and wrapped them around Lucas's head and face. He said the suspenders initially were in Lucas's mouth, but he was making a noise, so petitioner wrapped them around Lucas's head and face again. When petitioner made this statement, he made a circular twisting motion with his hand to indicate how he had wrapped the suspenders around Lucas's head and face. Petitioner said the second wrap of suspenders caused Lucas to begin to lose his breath.

During the early morning of September 7, 2005, homicide detectives David Dillon and William Flesher of the San Bernardino Police Department investigated the homicide of Lucas at Patton, collecting evidence. Detective Dillon spoke to Zamora, who said he had not been threatened. Detective Flesher conducted a tape-recorded interview with petitioner, which was played for the jury. In the interview, petitioner admitted killing Lucas because, among other reasons, Lucas was a bully. Petitioner described Lucas lying on his side in bed. Petitioner said, "Hale [sic ] Satan." Petitioner described tying the material around Lucas's mouth and neck. Zamora was sleeping but got up when he heard the commotion and asked what was going on. Porter told Zamora to go back to bed. Zamora was scared, so he complied.

In response to Lucas struggling, petitioner wrapped the material a second, and then a third time, around Lucas's neck, and they tied a knot. They put a blanket on Lucas and then urinated on him. Porter was laughing and said they were going to prison, where they would drink "real coffee" and be with his "Arian [sic ] brothers." Petitioner said he was not high on drugs when he killed Lucas.

During the interview, petitioner stated that while Porter's excuse for killing Lucas was that Lucas was a child molester, petitioner did not know if this was true. Petitioner stated that petitioner is a sex offender who "caught a[n] assault with intent to commit rape on a grown woman ..." in 1992. Petitioner felt a bond toward Porter, who gave petitioner money and liked the same kind of music. Petitioner wanted to tell the district attorney that he was guilty, but not guilty by reason of insanity, because he heard Satan's voice when it was actually Porter that he was hearing. Although petitioner thought he had to do what Porter told him to do when he killed Lucas, petitioner admitted it was his fault that they killed Lucas. Based on the autopsy of Lucas, the medical examiner opined that Lucas's death was a homicide caused by ligature strangulation.

On May 1, 2009, during a cell check at West Valley Detention Facility (West Valley), Deputy Sheriff Guillermo Macias of the San Bernardino County Sheriff's Department saw a shank on top of a desk in petitioner's cell. The shank was made from an inmate-issued comb that was sharpened to a point, and strings of a bedding sheet were used to form a handle. The deputy also saw that the sheet had been ripped and pieces were removed. When Deputy Macias held up the shank, petitioner said, "that's mine." After being read his Miranda rights, petitioner admitted he had made the shank two days prior to the cell check. Petitioner claimed that he was using the shank as protection against other inmates; however, he would not reveal the names of the inmates from whom he needed protection. The deputy was unaware of any trouble with petitioner at the jail.

At trial, defense counsel did not give an opening statement. Petitioner testified in his own defense. He denied killing Lucas, claiming it was Zamora and Porter who did it. He said he was going to leave, but Porter threatened to get him too if he did. Petitioner stated he helped them wipe up the blood with his clothes, and Zamora said he was returning to bed because he was medicated and "d[id]n't know shit." Petitioner went to the bathroom to change clothing and was "panicking" because he did not have a change of clothes. Petitioner testified he and Porter planned what they were going to say to the police. During cross-examination, petitioner said that at least half of what he said to Detective Flesher was a...

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