Keenan v. Superior Court

• Decision Date: 30 October 1981
• Citation: 126 Cal.App.3d 576,177 Cal.Rptr. 841
• Court: California Court of Appeals Court of Appeals
• Parties: Maurice John KEENAN, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 51777.

Page 841

177 Cal.Rptr. 841

126 Cal.App.3d 576

Maurice John KEENAN, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 51777.

Court of Appeal, First District, Division 2, California.

Oct. 30, 1981.

Hearing Denied Feb. 2, 1982.

M. Gerald Schwartzbach, San Francisco, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for real party in interest.

SMITH, Associate Justice.

Petitioner Maurice Keenan, who is charged with a capital offense, seeks a writ of mandate compelling respondent superior court to grant petitioner's motions 1) to discover the prosecution's policy regarding the charging of "special circumstances" (Pen.Code, § 190.2), 2) to have an independent and confidential analysis of physical evidence performed by defense criminalists, and 3) to order the prosecution to advise petitioner of the specific evidence that the prosecution intends to introduce in aggravation of the sentence at the penalty phase of trial pursuant to section 190.3 of the Penal Code. ¹

On July 11, 1979, a complaint was filed in which petitioner and codefendant Robert Kelly were charged with murder, burglary, robbery, attempted robbery, and various firearm offenses. (Pen.Code, §§ 187, 459, 211, 664, 12022.5.) Scheduled for arraignment in the municipal court on July 12, 1979, petitioner escaped from his holding cell. He was recaptured on August 6, 1979, after being arrested in Miami, Florida. A second complaint against the codefendants was filed on August 8, 1979. Neither the first nor the second complaint contained special circumstances allegations. On August 21, 1979, a third complaint was filed, and, for the first time, special circumstances justifying the imposition of the death penalty were alleged as to petitioner.

Discovery was provided to the defense during August and September 1979. A defense criminalist, Charles Morton, examined the murder weapon and clip, the report of Richard Gryzbowski (a police department criminalist), the coroner's photographs, and one page of the necropsy report. On March 20, 1980, Morton personally test-fired the murder weapon for purposes of distance determination. He also examined the coroner's bullet and spent casings and made microscopic comparisons with the test-fired bullet.

In March 1980, petitioner's court-appointed counsel sought to withdraw as attorney of record. That request was granted by Division Four of this Court on July 23, 1980. (Yanowitz v. Superior Court, 1 Civ. 49158.) Thereafter, on October 7, 1980, petitioner's present counsel was appointed to represent petitioner.

On January 13, 1981, petitioner moved the trial court for an order directing the prosecution to furnish discovery of the current policy and procedures in the San Francisco District Attorney's Office with respect to the charging of special circumstances; ² a list of every case prosecuted in which a special circumstance was alleged pursuant to section 190.2, as approved November 7, 1978; ³ a list of every case prosecuted by the district attorney's office in which a defendant was charged with murder, but the death penalty was not sought, in which robbery, kidnapping, the performance of lewd or lascivious act upon the person of a child under the age of 14, oral copulation burglary, arson, train wrecking, or a previous conviction for a first or second degree murder was alleged against the same defendant, but in which no special circumstance was alleged; ⁴ a list of every case in which a defendant was charged with murder in which no special circumstance was ever alleged against the defendant, but in which it was known to the district attorney's office prior to the disposition of the case that one or more of the facts stated in section 190.2, subdivision (a), was applicable; ⁵ and, finally, all records, reports, handwritten notes, memoranda, staff meeting minutes, recommendations, writings and statements concerning the instant action. ⁶ The motion was denied.

On January 21, 1981, petitioner moved the trial court for an order directing the district attorney, inter alia, to release, for a reasonable period of time, to the custody of defense counsel or defense criminalist, Lindberg Miller, all of the physical evidence connected with the charged offenses in this action and to provide defense counsel notice of the particular evidence to be introduced by the prosecution as evidence of aggravating circumstances, pursuant to section 190.3. The motion was granted in part and denied in part. With respect to the release of evidence, the court ordered the prosecution "to allow defense criminalists to inspect, test and examine all physical evidence which was seized during the course of the investigation of this case. However, in order to protect the integrity of said evidence, the evidence shall not be removed from the San Francisco Hall of Justice and the custody of the San Francisco Police Department, and the prosecution may monitor said inspections, testing and examinations by having a representative of the San Francisco District Attorney's Office or the San Francisco Police Department present during the course of all inspections, testing and examinations conducted by defense criminalists." Petitioner's request for notice of the particular evidence to be introduced by the prosecution as evidence of aggravating circumstances was denied without prejudice to its being renewed before the trial court. A petition for a writ of mandate compelling the superior court to grant all of petitioner's discovery motions followed.

I. Petitioner was properly denied discovery of information pertaining to prosecutorial decisions to charge special circumstances in a murder case

Petitioner seeks to discover information pertaining to the standards, if any that are applied by the San Francisco District Attorney in determining whether to charge special circumstances justifying the imposition of capital punishment. He claims this information will allow him to ascertain whether the District Attorney has violated his constitutional rights by a standardless charging of special circumstances. ⁷

Petitioner begins his argument by citing the well established Murgia rule, rooted in equal protection, that pre-trial discovery is available to a defendant to show invidious prosecutorial discrimination in the enforcement of penal statutes. Murgia v. Municipal Court (1975) 15 Cal.3d 286, 306, 124 Cal.Rptr. 204, 540 P.2d 44; Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306, 142 Cal.Rptr. 286, 571 P.2d 997.) However, petitioner does not claim invidious discrimination in the instant case. Rather, citing Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 and Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, he argues that a standardless prosecutorial charging of special circumstances contravenes the due process clauses of the 5th and 14th Amendments and the due process clause of article I, section 15, of the California Constitution.

Objective standards are constitutionally mandated in the penalty phase of death penalty cases from the time the jury considers imposition of the death penalty through the time of appellate review. (Gregg v. Georgia, supra, 428 U.S. at p. 198, 96 S.Ct. at p. 2936.) In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the United States Supreme Court held that standardless sentencing in death penalty cases violates a defendant's right to be free from cruel and unusual punishment. (See id., at p. 240, 92 S.Ct. at p. 2727 (conc. opn. of Douglas, J.), pp. 291-295, 92 S.Ct. pp. 2753-2755 (conc. opn. of Brennan, J.), p. 306, 92 S.Ct. p. 2760 (conc. opn. of Stewart, J.), p. 310, 92 S.Ct. p. 2762 (conc. opn. of White, J.); see also Gregg v. Georgia, supra, 428 U.S. at pp. 188-189, 96 S.Ct. at p. 2932 (opn. of Stewart, Powell and Stevens, JJ.), pp. 220-221, 96 S.Ct. p. 2947 (conc. opn. of White, J.).

Petitioner claims there is no plausible reason for not extending this holding to the District Attorney's initial decision to charge special circumstances. However, petitioner overlooks the plurality opinion of Justices Stewart, Powell, and Stevens in Gregg, supra, at pages 199-200, 96 S.Ct. at page 2937, which rejected this argument: "First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them (P) The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty (P) Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." (See also Proffitt v. Florida (1975) 428 U.S. 242, 254, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913; Jurek v. Texas (1975) 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929.) A footnote to this passage further states: "The petitioner's argument is nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be...