Rose v. Superior Court, B134032.
| Decision Date | 12 June 2000 |
| Docket Number | No. B134032.,B134032. |
| Citation | 96 Cal.Rptr.2d 843,81 Cal.App.4th 564 |
| Parties | Clarence Lasalle ROSE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
Peter Gold, San Francisco, under appointment by the Court of Appeal, for Petitioner.
Lloyd W. Pellman, County Counsel, and Frederick R. Bennett, Assistant County Counsel, for Respondent.
GO Garcetti, District Attorney of Los Angeles County, George M. Palmer, Head Deputy District Attorney, Fred Macksoud and Roderick W. Leonard, Deputy District Attorneys, for Real Party in Interest.
The superior court did not comply with our order that it conduct a hearing on a petition for writ of habeas corpus. We therefore must grant a writ of mandate.
On February 3, 1996, Scott Riley and four friends met at a Long Beach bar to celebrate his birthday. During the course of the evening, they drank a considerable amount of alcohol. About 1:00 a.m., they were talking outside the bar when an African-American man and two women walked by. The two groups exchanged words.
Soon thereafter, several individuals confronted Riley's group. A man took a nine-millimeter pistol from his pocket and pointed it at Randy Borgfield. Borgfield turned and fled. More than a dozen shots were fired. Brian Borgfield, Randy's brother, was hit in the head by a nine-millimeter bullet and died. Two others were wounded.
The police conducted a photographic lineup. Three members of the Riley party identified petitioner Clarence Lasalle Rose as the assailant.
Rose was charged with murder, attempted murder, and assault. At the preliminary hearing, he was represented by the alternate public defender. Rose's defense was an alibi. Additionally, Rose claimed that the police investigator was biased. The People's case depended largely upon eyewitness identification.
Prior to trial, Rose retained two private attorneys. One was a recent California State Bar admittee who had tried only one jury trial. The other attorney had been admitted to the State Bar less than three years before. Neither attorney had ever defended a felony.
In opening statement, defense counsel told the jury, He was only half right. Closing argument followed a mere five days on the heels of opening statement.
Sandwiched in between was a brief trial and no trial brief. Two eyewitnesses testified that Rose was the person who had been walking with the two women and who had pulled a pistol from his pocket. Another witness was uncertain of the identity of the assailant. A fourth witness, intoxicated the night of the shooting, testified he did not believe Rose to be the assailant. Each of these witnesses had been drinking just prior to the attack.
During summation, the prosecutor referred to gang affiliation and purportedly misstated testimony given by an alibi witness. Counsel failed to object to these arguments.
The jury deliberated for six days and ultimately convicted Rose of first degree murder, attempted murder, and assault with a firearm. He was sentenced to a term of 38 years in prison, plus 3 consecutive life terms.
Rose appealed. In addition, he submitted a petition for habeas corpus which averred that his counsel was ineffective. (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.) The petition prayed that "this Court should grant the Petition for Writ of Habeas Corpus and reverse Mr. Rose's convictions, or in the alternative, order an evidentiary hearing." In declarations attached to the habeas corpus petition, both attorneys acknowledge numerous deficiencies.
Rose alleges his attorneys failed to: (1) conduct any pretrial investigation of prosecution witnesses; (2) challenge the photographic lineups on the ground that they were unduly suggestive; (3) use information of possible police bias garnered by the alternate public defender; (4) introduce admissible evidence of police bias at trial; (5) demonstrate a familiarity with the rules of evidence relating to hearsay and its exceptions; (6) call an expert witness on the subject of cross-racial identification; and (7) subpoena Rose's doctor.
After reviewing the record on appeal, it appeared to us that Rose's trial counsel likely failed to explore and preserve possible defenses. The allegations and declarations in Rose's petition for habeas corpus heightened our concern over the quality of his representation. We issued an order to show cause why the relief prayed for in the habeas corpus petition should not be granted. We ordered the matter returnable in respondent court.
Because the judge who presided over the Rose case had since retired from the bench, the matter was assigned to the Honorable Joan Comparet-Cassani. The court acted with alacrity and denied the petition the day after Rose's appellate attorney filed a detailed 43-page traverse. The court's terse minute order was not enlightening. It stated merely that the court had read and considered the traverse; that Rose was "unrepresented" and not present in court; and that the petition for "Habeas Corpus is denied." The court held no hearing. It made no factual findings. It left us with not so much as a hint why it ruled as it did.
Rose again sought relief from this court through a petition for habeas corpus. This required us to treat the petition as one for mandate. We then issued an order to show cause.
In a letter to this court, county counsel acknowledged that the order of July 21, 1999, did not contain a proper recital of reasons. Counsel submitted a second letter, dated August 17, 1999, in which respondent court premised its denial of Rose's petition upon his failure to allege specific facts to sustain his arguments. In its transmittal letter, counsel stated that respondent court requests that its "letter be accepted and filed as a written return."
Respondent court's order of July 21, 1999, was irredeemably flawed. As we stated in In re Moss (1985) 175 Cal.App.3d 913, 921, footnote 5, 221 Cal.Rptr. 645, "Reticent superior court judges pondering the merits of habeas corpus petitions should keep in mind that a denial without a statement of reasons is contrary to the plain requirements of California Rules of Court, rule 260(e)." A recitation of grounds aids and preserves (In re Podesto (1976) 15 Cal.3d 921, 937, 127 Cal.Rptr. 97, 544 P.2d 1297 [].)
In a written decision, the court "must account for its conclusions [and] there is a greater likelihood that it will carefully analyze the merits." (Leone v. Medical Bd. of Cal. (2000) 22 Cal.4th 660, 674, 94 Cal. Rptr.2d 61, 995 P.2d 191 (dis. opn. of Mosk, J.).) It also affords the petitioner the opportunity to assess whether to seek further review. (In re Sturm (1974) 11 Cal.3d 258, 268-270, 113 Cal.Rptr. 361, 521 P.2d 97 []; People v. Ramirez (1979) 25 Cal.3d 260, 276, 158 Cal.Rptr. 316, 599 P.2d 622 [].) When habeas corpus is sought in an appellate court, a brief statement of reasons by the trial court aids the appellate court in its review of the merits of the petition. (In re Jackson (1985) 39 Cal.3d 464, 477, 216 Cal.Rptr. 760, 703 P.2d 100; see also Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513-518, 113 Cal.Rptr. 836, 522 P.2d 12.)
The trial court tried to rectify its failure to comply with rule 260(e) of the California Rules of Court by its August 17 letter stating its grounds for denying the petition. In submitting the letter, county counsel related the trial court's message that it wished us to accept the letter as "a written return."
By filing its own return, however, the trial court assumed the appearance of an adversary rather than a neutral, even though that was not its intention. (See, Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1129, 22 Cal. Rptr.2d 504, 857 P.2d 325; Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1016, 61 Cal.Rptr.2d 49.) We stated in Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273, 258 Cal.Rptr. 66, that "Judges should be umpires rather than players." Judges must strive to maintain the appearance of neutrality when their actions could be interpreted otherwise.
The consideration of a habeas corpus petition is more than a formal ritual or a procedural nuisance. This caveat is particularly significant here. We have remanded a habeas corpus petition for hearing in which petitioner, facing life sentences, has raised what may be meritorious contentions concerning the quality of his representation. This calls for more than a cursory review.
No doubt the trial court was aware that Rose was represented by counsel. Nevertheless, the minute order states, "defendant is not present in court and not represented by counsel." This language could lead one to make a reasonable, but apparently incorrect assumption: the trial court read the petition, return, and traverse superficially.
The county counsel explains that this is "programmed computer language," which simply means that the matter was heard in chambers, and neither Rose's counsel nor Rose were present. Only Humpty Dumpty would find this interpretation reasonable.1 We, however, like Alice, subscribe to the more conventional view that language should say what it means. This...
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