People v. Brown

• Decision Date: 02 December 1993
• Docket Number: No. S010071,S010071
• Citation: 24 Cal.Rptr.2d 710,6 Cal.4th 322,862 P.2d 710
• Court: California Supreme Court
• Parties: , 862 P.2d 710 The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant.

Page 710

24 Cal.Rptr.2d 710

6 Cal.4th 322, 862 P.2d 710

The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant.

No. S010071.

Supreme Court of California.

Dec. 2, 1993.

Rehearing Denied Feb. 2, 1994.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Steffan Imhoff, Nancy Aspaturian, Jessica K. McGuire and Musawwir Spiegel, Deputy State Public Defenders, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Robert M. Foster, Louis R. Hanoian, Pat Zaharopoulos and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

In 1982, defendant was convicted of rape and first degree murder with special circumstances, and sentenced to death. We affirmed the guilt judgment and special circumstances findings, but reversed the penalty judgment. (People v. Brown (1985) 40 Cal.3d 512, 230 Cal.Rptr. 834, 726 P.2d 516 [Brown I ].) The United States Supreme Court granted certiorari, and thereafter reversed the judgment of this court and remanded for further proceedings. (California v. Brown (1987) 479 U.S. 538, 543, 107 S.Ct. 837, 840, 93 L.Ed.2d 934.) Our opinion on remand found no error requiring retrial of the guilt or penalty issues, but because the trial court erred in its ruling on defendant's automatic motion to modify the verdict (Pen.Code, § 190.4, subd. (e)), we reversed the penalty judgment and remanded "to the trial court solely for prompt consideration of the automatic motion for modification of verdict." (People v. Brown (1988) 45 Cal.3d 1247, 1264, 248 Cal.Rptr. 817, 756 P.2d 204 [Brown II ].)

Thereafter, defendant moved unsuccessfully to challenge the trial judge for cause (Code Civ.Proc., § 170.1, subd. (a)(6)(C)), and unsuccessfully sought writ review of that determination (id., § 170.3, subd. (d) [hereafter section 170.3(d) ] ). After a new modification hearing, the trial court denied the application to modify the penalty verdict, and reinstated the judgment of death. This appeal is automatic (Pen.Code, §§ 190.4, subd. (e), 1239, subd. (b)), and "limited to issues arising on the modification application." (People v. Rodriguez (1986) 42 Cal.3d 730, 795, 230 Cal.Rptr. 667, 726 P.2d 113; Brown II, supra, 45 Cal.3d at p. 1264, 248 Cal.Rptr. 817, 756 P.2d 204.) We affirm the judgment.

Defendant's primary claim on appeal is that he was denied due process because the judge who presided over the hearing was not impartial. The People assert defendant has no statutory or constitutional right to raise that issue on appeal. As explained below, we conclude section 170.3(d) does not bar appellate review of defendant's due process challenge. We also conclude, however, that the record does not support defendant's due process challenge to the impartiality of the hearing judge.

I. Facts and Procedure

The facts are set out in our original opinion. (40 Cal.3d at pp. 522-525, 230 Cal.Rptr. 834, 726 P.2d 516.) For purposes of this appeal, it is sufficient to note that defendant kidnapped, raped, and strangled to death a 15-year-old girl who was walking to school. A jury returned verdicts of guilt on the charges, and found alleged special circumstances to be true. At the penalty trial, the prosecution introduced evidence of defendant's prior rape of another young girl. Defendant presented mitigating expert testimony concerning his tragic upbringing and childhood. The jury returned a verdict of death.

Thereafter, the court heard argument on defendant's automatic motion under Penal Code section 190.4, subdivision (e) (hereafter Penal Code section 190.4(e)), for modification of the verdict. That section provides, inter alia, that the trial judge must "review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to the law or the evidence presented. The judge shall state on the record the reasons for his findings." (Italics added.)

At defendant's initial hearing under Penal Code section 190.4(e), the trial court--Judge Mortland--simply pronounced a formal judgment of death, and failed to state reasons for his findings.

Accordingly, Brown II, supra, 45 Cal.3d at p. 1264, 248 Cal.Rptr. 817, 756 P.2d 204, held: "We find no error requiring retrial of the issues of guilt or penalty. However, we must reverse the penalty judgment on the basis of the [Penal Code] section 190.4(e) error, and we do so. As in Rodriguez, the cause is remanded to the trial court solely for prompt consideration of the automatic motion for modification of verdict. ( [Rodriguez, supra,] 42 Cal.3d at pp. 794-795, 230 Cal.Rptr. 667, 726 P.2d 113.) The trial court's procedure, and the parties' appeal rights from the new judgment shall be as set out in Rodriguez. " The referenced portion of Rodriguez provides: "If, [on remand], the court again denies the application for modification of the verdict, it shall reinstate the judgment of death.... Defendant's appeal from any reinstated death judgment shall be automatic ( [Pen. Code,] §§ 190.4, subd. (e), 1239, subd. (b)), and limited to issues arising on the modification application." (42 Cal.3d at pp. 794-795, 230 Cal.Rptr. 667, 726 P.2d 113.)

In mid-February 1989, about a month before the scheduled hearing on remand from this court, defendant filed a declaration of disqualification "for cause" against Judge Mortland under Code of Civil Procedure section 170.1, subdivision (a)(6)(C). ¹ The factual basis for the motion was set out in declarations by defendant's counsel and investigators (§ 170.3, subd. (c)(1)).

Counsel for defendant, Monica Knox, declared under penalty of perjury: "On January 25, 1989, Judge Mortland telephoned the investigator engaged by defense counsel and inquired into the investigation being pursued, specifically in regards to interviews with jurors; Judge Mortland told the investigator that jurors did not have to talk, that he would talk to Judge Macomber about authorizing funds for such an investigation, that he believed there was no need for juror interviews, and that he believed such an investigation was a waste of taxpayers' money....

"Later on the afternoon of January 25, 1989, I was contacted by telephone by Garry Raley, Assistant Court Executive Officer; Mr. Raley advised me that he was contacting me pursuant to Judge Mortland's instruction and that Judge Mortland wanted to know who had authorized contact with the jurors; I explained that no one had expressly authorized contact with the jurors but that Judge Macomber had authorized funds for an investigation and juror contact was part of that investigation; Mr. Raley said that Judge Mortland wanted to know what I was investigating; I responded that, with all due respect, I believed my investigation was confidential and I was under no legal obligation to reveal its details;

"On January 26, 1989, Judge Mortland contacted me personally by telephone; he asked what I was doing having an investigator contact jurors; I responded it was part of the investigation I was conducting to prepare for the hearing scheduled in March; Judge Mortland read me part of the California Supreme Court opinion in this case and then said that jurors had nothing to do with the upcoming hearing; Judge Mortland went on for several minutes telling me, in a raised voice, that the jurors' role was 'culminated, terminated, over' several years ago, that jurors were irrelevant to the upcoming proceeding, and that he would not consider whatever I had to say at the hearing about the jurors or their role in the trial; Judge Mortland claimed a juror had complained about my investigator telling her that she was required to meet with him; I explained I would talk to my investigator and stop any such action, if it had in fact occurred; Judge Mortland concluded by saying that he believed my action in contacting jurors was unprofessional and he thought it should stop but that I would do what I would do;

"On January 26, 1989, a juror who had previously voluntarily agreed to be interviewed by my investigator cancelled the meeting saying she was no longer willing to be interviewed; she did state that between setting up the appointment and cancelling it she had spoken with Judge Mortland...." ²

Judge Mortland filed an answer denying prejudice. (§ 170.3, subd. (c)(3).) He confirmed most of the factual allegations contained in defendant's declarations, and expressly denied "that I am disqualified in any way or that I am biased or prejudiced against the defendant or defendant's counsel." Judge Mortland explained:

"While this matter was pending around late January or early February 1989, my bailiff received several calls from some of the jurors advising that an investigator was seeking to interview them and ask[ing] if they had to talk to that person. I told my bailiff to tell the jurors that they did not have to talk to any investigator and had a right not to do so.

"At one point I talked directly to one of the jurors on this matter of their right not to talk to the investigator. One of the jurors said that the investigator advised that if an interview were not given, he, the investigator, would be back with a court order.

"On one occasion I talked directly to a defense investigator who tried to explain that interviewing the jurors was necessary, and I tried to explain that it was not only not necessary, but was totally unnecessary and improper in that the only issue remaining was for the trial court to consider and either grant or deny the defense automatic motion to reduce the death penalty to life without the possibility of parole under Penal Code section 190.4(e).

"I also called defense counsel and advised her of...