People v. Duvall, No. S032489

• Court: United States State Supreme Court (California)
• Writing for the Court: LUCAS; ARABIAN
• Citation: 9 Cal.4th 464,37 Cal.Rptr.2d 259,886 P.2d 1252
• Parties: , 886 P.2d 1252 The PEOPLE, Plaintiff and Respondent, v. Roy Clifford DUVALL, Defendant and Appellant. In re Roy Clifford DUVALL, on Habeas Corpus.
• Docket Number: No. S032489
• Decision Date: 19 January 1995

Page 259

37 Cal.Rptr.2d 259 9 Cal.4th 464, 886 P.2d 1252 The PEOPLE, Plaintiff and Respondent,
v.
Roy Clifford DUVALL, Defendant and Appellant.
In re Roy Clifford DUVALL, on Habeas Corpus. No. S032489. Supreme Court of California,
In Bank. Jan. 19, 1995.
Rehearing Denied March 16, 1995.

Page 262

[9 Cal.4th 469] [886 P.2d 1255] J. Bradley O'Connell, San Francisco, under appointment by the Supreme Court, and Sally McGough, Petaluma, under appointment by the Court of Appeal, for defendant and appellant and for petitioner.

[9 Cal.4th 470] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Stan M. Helfman, Gerald A. Engler and Morris Beatus, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

We granted review in this case to address certain procedural rules governing petitions for writs of habeas corpus in this state. Specifically, we are concerned here with the legal sufficiency of the People's return to an order to show cause that was issued by the Court of Appeal. As we explain, although we agree with the appellate court's interpretation of prior case law applicable to habeas corpus petitions, the modern expansion of the availability of relief on habeas corpus--as illustrated by the facts of this case--justify a clarification of the pleading rules applicable to such petitions. Applying that clarification here, we remand this case to the Court of Appeal with directions to appoint a referee and order an evidentiary hearing in this case.

FACTS AND PROCEDURE

On February 13, 1991, defendant was at the home of victim Rubin Flores, cutting wood. Defendant asked for a kiss from Flores's wife, Rosemarie, and became angry when she refused. The next day, defendant was again at the Flores home. Also present were Rosemarie as well as other friends, including Kevin Trout. Most of those present were drinking beer; Trout estimated that defendant and Flores each drank more than six beers that day. In addition, both Flores and defendant took a muscle relaxant, later identified as carisoprodol.

Flores gave defendant a white-handled pocketknife as a "friendship Valentine present." Despite this gesture of hospitality, tensions rose during the course of the day. Rosemarie became annoyed when defendant increased the volume on the stereo. Later,

Page 263

[886 P.2d 1256] she declined defendant's renewed request for a kiss. Flores became visibly upset at defendant's attention toward Rosemarie. Trout suggested that the men go to his house to cool off.

At Trout's home, the group continued to drink beer; defendant and others also drank tequila. Defendant and Flores walked across the street to the home of Gary and Etta Harness. Etta testified that Flores staggered around her house, and was apparently quite drunk. Defendant was not staggering, but his speech was slurred. Flores and defendant returned to Trout's home, [9 Cal.4th 471] where Flores spent an hour talking to his wife on the telephone. Rosemarie heard defendant and her husband arguing in the background about the kissing incident and then the line went dead. Rosemarie took the children to her mother's house, leaving Flores a note saying she would call him the next day when he was sober.

Flores was upset about his conversation with Rosemarie. Eventually, Trout drove defendant, Flores, and another man (Gessler) back to Flores's house. Trout watched as defendant and Flores began arguing on the front porch; Trout could hear that the men were arguing about defendant's behavior toward Rosemarie. Suddenly a knife appeared in defendant's hand and he began stabbing Flores in a "hook motion." Trout did not see any weapon in Flores's hand. Gessler also saw defendant stabbing Flores, and confirmed Flores was unarmed.

When Trout and Gessler intervened, Flores exclaimed that defendant had stabbed him. Defendant ran off and was arrested later at a nearby motel. The motel's manager testified that defendant had a slash wound on his leg, but he appeared calm and his speech was normal. The arresting officer testified that although defendant smelled strongly of alcohol, his speech was not slurred and he was able to stand up straight. The treating physician gave similar testimony.

A blood sample drawn three hours after the crime showed defendant's blood-alcohol content was .20 percent; a prosecution expert opined that this meant defendant's blood-alcohol level was .26 percent at the time of the crime. The blood sample also showed the presence of carisoprodol as well as meprobamate, a metabolite of carisoprodol. Rubin Flores died of his wounds.

Defendant did not testify, but relied on a theory of self-defense, emphasizing his own leg wound as evidence that Flores was armed. Police found three other knives in the general area of the crime, but there was no direct evidence showing Flores had wielded any of them. Defense counsel's theory was that defendant, reasonably or unreasonably, believed he was defending himself against an enraged and drunken victim. Defense counsel argued Flores must have had a knife that was never recovered, suggesting that Trout may have taken the knife away with him; Trout expressly denied this. A jury convicted defendant of second degree murder.

Defendant challenged his conviction in the Court of Appeal by filing both an appeal and a petition for a writ of habeas corpus. In his habeas corpus petition, he contended that defense counsel was constitutionally ineffective [9 Cal.4th 472] for failing to adequately investigate and present a defense based on intoxication. Defendant submitted his own declaration stating counsel was aware defendant was intoxicated at the time of the crime, but that counsel never discussed an intoxication defense with him. These facts were essentially corroborated in a declaration by the defense investigator, Chuck Harrington. This showing was supplemented by a letter from Dr. Ronald Siegel, who opined that the combination of alcohol and carisoprodol "could have been sufficient to catapult the defendant into a state of confusional delirium marked by disinhibition and maladaptive behavior." According to Siegel, such a drug/alcohol-induced state would allow the petitioner to appear calm and goal-directed because he would be responding to a "confused version of reality." Defense counsel died sometime after trial.

The Court of Appeal consolidated the direct appeal with the habeas corpus petition and asked the Attorney General for informal opposition to the habeas corpus petition. (See Cal.Rules of Court, rule 60.) After

Page 264

[886 P.2d 1257] receiving the People's opposition, the Court of Appeal issued an order to show cause (hereafter OSC), instructing the Director of Corrections (hereafter sometimes respondent) to show cause why relief should not be granted. The Court of Appeal specifically cited In re Sixto (1989) 48 Cal.3d 1247, 1252, 259 Cal.Rptr. 491, 774 P.2d 164 (hereafter Sixto ), and In re Lewallen (1979) 23 Cal.3d 274, 278 & footnote 2, 152 Cal.Rptr. 528, 590 P.2d 383 (hereafter Lewallen ), thereby presumably placing respondent on notice of the language in those cases disapproving general denials in the return.

The Attorney General, representing respondent Director of Corrections, then filed his return to the OSC. (See Pen.Code, § 1480.) ¹ Here reproduced in full, it stated: "Come now the People of the State of California and, for a Return o[f] this Court's Order to Show Cause, state: [p] I. [p] Petitioner is lawfully in the custody of the Department of Corrections and is serving a term of 17 years to life for murder and enhancements for personal weapon use and a prior prison term. The procedural and factual history of the challenged conviction are set forth in the Respondent's Brief filed in petitioner's pending direct appeal (A054254) [p] II. [p] Respondent admits the allegations of paragraphs one through six, nine, and twelve through sixteen of the Petition, and denies the allegations of paragraphs seven through eleven of the Petition. Specifically, respondent denies that petitioner received ineffective assistance of counsel in connection with his defense, or that any act or omission by his trial counsel prejudiced the defense [p] III. [p] Except as specifically admitted herein, respondent denies each and every material allegation in the Petition. [p] WHEREFORE, respondent prays that the [9 Cal.4th 473] Order to Show Cause be discharged and that the Petition be denied." (Fn. omitted.) In a footnote, the return stated: "We request this Court to take judicial notice of its file in direct appeal A054254."

Accompanying the return was (1) a verification, signed by the deputy attorney general who prepared the return (see § 1480, subd. 5), and (2) a memorandum of points and authorities. The latter document begins: "We hereby incorporate by reference and make a part of this Return the Respondent's Brief filed in direct appeal [No.] A054254. In addition, we add the following...." Respondent then set forth three legal arguments: (1) defendant failed to show that his trial counsel's decision to forego an intoxication defense was not based on a valid tactical decision; (2) even if the omission constituted inadequate representation, there was no prejudice; and (3) "the matter should be remanded to the trial court for an evidentiary hearing on disputed factual issues relating to deficient attorney performance and prejudice." (Capitalization altered.)

Under the third heading in the memorandum of points and authorities, respondent stated he: "denies allegations [in the petition] based on the declaration of [defendant], who claims never to have discussed the matter of a mental defense with his attorney. Such declarations are 'subjective, self-serving, and, by [themselves], insufficient to satisfy the Strickland test for prejudice.' (In re Alvernaz (1992) 2 Cal.4th 924, 939, 8 Cal.Rptr.2d 713, 830 P.2d 747.)" (See Strickland v....