People v. Romero

Decision Date10 November 1994
Citation35 Cal.Rptr.2d 270,883 P.2d 388,8 Cal.4th 728
CourtCalifornia Supreme Court
Parties, 883 P.2d 388 The PEOPLE, Plaintiff and Respondent, v. Debra Jeanie ROMERO, Defendant and Appellant. In re Debra Jeanie ROMERO, on Habeas Corpus. S030160.

Joan Temko Anyon, San Diego, under appointment by the Supreme Court, and Jill M. Bojarski, Newport Beach, under appointment by the Court of Appeal, for defendant and appellant and for petitioner.

James S. Thomson, Sacramento and Cliff Gardner, San Francisco, as amici curiae on behalf of defendant and appellant and petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Asst. Atty. Gen., William T. Harter, William V. Ballough and Leslie P. McElroy, Deputy Attys. Gen., for plaintiff and respondent.

KENNARD, Justice.

May an appellate court, when presented with a petition for a writ of habeas corpus, grant the relief requested in the petition (here, vacating a judgment of conviction for five felonies) without first issuing a writ of habeas corpus or an order to show cause? We conclude, for the reasons set forth below, that it may not.

I

Charged by information with one count of robbery (Pen.Code, § 211) and four counts of attempted robbery (id., §§ 211, 664), Debra Jeanie Romero (petitioner) relied at trial on a defense of duress. Testifying in her own behalf, petitioner admitted participating in each of the charged offenses but said she had done so only because codefendant Terrance Romero had beaten her and threatened her life. The jury convicted petitioner of each of the charged offenses; in addition, it found, for purposes of sentence enhancement, that petitioner or her codefendant had been armed with a firearm during the robbery and two of the attempted robberies (id., § 12022, subd. (a)). The trial court denied probation and sentenced petitioner to a term of five years and eight months in state prison.

Petitioner appealed from the judgment of conviction and also petitioned the Court of Appeal for a writ of habeas corpus. In the habeas corpus petition, petitioner alleged that her trial attorney had failed to investigate and present expert testimony about "battered woman syndrome" (BWS), 1 that a reasonably competent and diligent advocate would have investigated and presented evidence of BWS, and that there is a reasonable probability the jury would have acquitted her had her attorney presented BWS evidence during the trial. On the basis of these allegations, petitioner contended that she had been denied her constitutional right to effective assistance of counsel at trial.

Petitioner submitted three declarations in support of the petition. The first was by petitioner herself. She declared that during trial preparation she had explained to her trial attorney that she had participated in the robbery attempts only out of fear of her codefendant, who had beaten and abused her and that her trial attorney had never explained BWS to her or requested that she be evaluated for BWS. The second declaration, by petitioner's appellate counsel, recounted a conversation with petitioner's trial attorney during which the trial attorney reportedly said he had considered presenting BWS evidence and to this end had attempted to contact an expert but was never able to get in touch with the expert before trial. The third declaration was by a marriage and family counselor specializing in the problems of women battered by their partners. The counselor declared that if the facts of this case had been presented to him before trial, he would have recommended an evaluation and investigation to determine whether petitioner was suffering from BWS.

The Court of Appeal ordered that petitioner's habeas corpus petition be considered concurrently with her appeal from the judgment of conviction, and it directed that any opposition to the petition be submitted within 20 days (see Cal.Rules of Court, rule 60). 2 Within the specified time, the Attorney General, as counsel for the Director of Corrections (respondent in the habeas corpus proceeding), submitted a letter brief arguing that although BWS evidence could be used in connection with a claim of self-defense, it was not admissible in support of a claim of duress. Alternatively, the Attorney General argued that if BWS was admissible in support of a duress defense, this represented a new development in the law and petitioner's trial attorney should not be held to have performed inadequately merely because he had failed to anticipate this new development. Petitioner replied to these arguments by letter brief, and the Director of Corrections (hereafter respondent) submitted a response to petitioner's reply.

The Court of Appeal asked the parties to tell the court whether they desired oral argument on the appeal and petition. Petitioner requested argument on the petition but not the appeal. Respondent submitted a written waiver and did not appear for oral argument, at which petitioner's counsel argued in support of the contention raised in the habeas corpus petition. Thereafter, the Court of Appeal issued an opinion reversing petitioner's judgment of conviction on the ground stated in the habeas corpus petition; it dismissed the appeal as moot. Respondent petitioned for rehearing, arguing that the Court of Appeal had erred in bypassing established procedural requirements for granting relief in habeas corpus matters. The Court of Appeal denied the rehearing petition, noting in the order denying rehearing that petitioner had supported the allegations of her habeas corpus petition with "a detailed declaration offering admissible evidence in the form of trial counsel's admissions, which were dispositive of the issue." The court declared that "there was no evidence for the People to present and nothing would have been added by the issuance of an order to show cause."

We granted respondent's petition for review, ordering that "[t]he issue to be argued before this court shall be limited to whether a writ of habeas corpus or an order to show cause must issue before a petition for writ of habeas corpus is granted."

II

The writ of habeas corpus was developed under the common law of England " 'as a legal process designed and employed to give summary relief against illegal restraint of personal liberty.' " (Wilkes, Federal and State Postconviction Remedies and Relief (1992) § 2-2, p. 42, quoting 2 Spelling, A Treatise on Injunctions and Other Extraordinary Remedies (1901) § 1152, p. 977.) It continues to serve this purpose today under our law. (See Pen.Code, § 1473, subd. (a) ["Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint."].) 3

The state Constitution grants original jurisdiction in habeas corpus matters to this court and to "the courts of appeal, superior courts, and their judges." (Cal. Const., art. VI, § 10.) In exercising this original jurisdiction, the Courts of Appeal "must abide by the procedures set forth in Penal Code sections 1473 through 1508." (Adoption of Alexander S. (1988) 44 Cal.3d 857, 865, 245 Cal.Rptr. 1, 750 P.2d 778.)

A habeas corpus proceeding begins with the filing of a verified petition for a writ of habeas corpus. The petition "must allege unlawful restraint, name the person by whom the petitioner is so restrained, and specify the facts on which [the petitioner] bases his [or her] claim that the restraint is unlawful." (In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257; see Pen.Code, § 1474.) When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief--that is, whether it states facts that, if true, entitle the petitioner to relief--and also whether the stated claims are for any reason procedurally barred. (In re Clark (1993) 5 Cal.4th 750, 769, fn. 9, 21 Cal.Rptr.2d 509, 855 P.2d 729.) To assist the court in determining the petition's sufficiency, the court may request an informal response from the petitioner's custodian or the real party in interest. (See Cal.Rules of Court, rule 60; In re Williams (1994) 7 Cal.4th 572, 586-587, 29 Cal.Rptr.2d 64, 870 P.2d 1072.)

If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright, such dispositions being commonly referred to as "summary denials." (In re Clark, supra, 5 Cal.4th 750, 769, fn. 9, 21 Cal.Rptr.2d 509, 855 P.2d 729.) When, on the other hand, a habeas corpus petition is sufficient on its face (that is, the petition states a prima facie case on a claim that is not procedurally barred), the court is obligated by statute to issue a writ of habeas corpus. In the language of the Penal Code, "[a]ny court or judge authorized to grant the writ ... must, if it appears that the writ ought to issue, grant the same without delay...." (Pen.Code, § 1476.)

The role that the writ of habeas corpus plays is largely procedural. It "does not decide the issues and cannot itself require the final release of the petitioner." (People v. Getty (1975) 50 Cal.App.3d 101, 110, 123 Cal.Rptr. 704.) Rather, the writ commands the person having custody of the petitioner to bring the petitioner 4 "before the court or judge before whom the writ is returnable" (Pen.Code, § 1477), except under specified conditions (id., §§ 1481-1482), and to submit a written return justifying the petitioner's imprisonment or other restraint on the petitioner's liberty (id., § 1480).

Judicial practice and decisions of this court have authorized one deviation from the procedure specified in the Penal Code. Because "appellate courts are not equipped to have prisoners brought before them ... this court and the Courts of Appeal developed the...

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