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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Lindsey Dean MAYES, Defendant and Appellant. IN RE: Lindsey Dean MAYES, Petitioner, On Habeas Corpus.


Decided: March 24, 1983

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Nathan D. Mihara, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Edward M. Krug, Patricia K. Staggs, San Rafael, for defendant and appellant.

We have consolidated for hearing and determination, the appeal of defendant Lindsey Dean Mayes from a judgment based on a jury's verdict finding him guilty of first degree murder, and his related petition for a writ of habeas corpus.

The homicide victim, Michael Johnson, was well known to many people, including defendant Mayes, in the area of his residence.   His friends knew that he kept money and other valuables in his residence.   On the morning of October 2, 1979, his dead body was found on the floor inside the home.   He had been shot five times with a handgun, and a ring customarily worn by him had been removed from his finger.   Glass of an outside door had been broken inward, indicating a forced entry by the gunman.   Blood was found around the living room where the body was discovered.   Some of it appeared to be the victim's blood and some, found in but 18 percent of a random population, was of the same type as that of defendant Mayes.   Outside was the victim's van which had been “locked up constantly.”   Its door was open, and inside “it was all messed up and gone through”;  there was “stuff all over.”   And on the van's wind-wing was found a bloody palm print of defendant Mayes.   Upon his later arrest Mayes was wearing the missing ring.

Mayes did not testify at his trial.   He relied upon a recorded statement admitted in evidence, given by himself to a police officer several months after the offense in which he had positively denied his guilt, and disclaimed any knowledge of the homicidal incident.

The Appeal

 Mayes' only contention of error on his appeal is stated as:  “The trial court erred in not instructing the jury sua sponte on second degree murder.”

The prosecutorial theory of the trial was that the homicide committed by Mayes was first degree murder.   There was much evidence in support of the theory.   The outer door's window, broken inward, indicated a first degree burglary, and the missing ring found on Mayes' finger, an armed robbery.   And upon finding that Mayes had committed the homicidal act, the jury might reasonably conclude that it was deliberately committed to prevent his identification by the victim, as the perpetrator of the other crimes.  (See Pen.Code, § 189.)

Toward the trial's end and out of the jury's presence, the following proceedings, among others, occurred.

“[The Court:]  There are no instructions that have been tendered by anyone with respect to a second degree murder, specifically [CALJIC] 830 or 831, and I don't—I don't know that we specifically discussed this.   I simply want the record to show that neither side has tendered those and—

“Mr. Dale [District Attorney]:  I don't think we did.

“Mr. Owen [Defense Attorney]:  I don't think we discussed it one way or the other.

“The Court:  But I take it that both sides agree that the court should not instruct on second degree as an included offense?

“Mr. Dale:  That's correct.   Unless there's a sua sponte requirement, but I don't think there is and I don't think the evidence suggests it.

“The Court:  Well, Mr. Owen, you can—you can give that some thought if you want over the noon hour.

“As I say, the record should reflect properly that neither side tendered any instructions on that and, to my recollection, we didn't discuss it during our instruction conference on the record.

“Mr. Owen:  That's correct, your honor.

“The Court:  Okay.”

Nothing occurred over the court suggested “noon hour” reflection to change defense counsel's mind about the second degree murder instructions.   And in his ensuing jury argument, defense counsel was reasonably obliged to accept the prosecutor's manifestly supported contention of “an obvious, premeditated malicious intentional killing,” by saying, “I'm not going to dispute that too much.”   His repeated argument was that his client's guilt of the horrible crime “hasn't been proved,” and he stood upon the “presumption of innocence.”   He insisted that the defendant “is entitled to a verdict of not guilty because he didn't do it.”

The state's high court has said:  “Matters involving trial tactics are matters ‘as to which we will not ordinarily exercise judicial hindsight․’  ․ ‘In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings.   Except in rare cases an appellate court should not attempt to second-guess trial counsel․’ ”  (People v. Frierson, 25 Cal.3d 142, 158, 158 Cal.Rptr. 281, 599 P.2d 587.)

And it is said that in cases such as this, the trial “court should ascertain from the defendant whether he wishes instructions on the alternative theory.   Such inquiry will afford assurance that the theory has not been inadvertently overlooked by counsel.”  (People v. Sedeno, 10 Cal.3d 703, 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on other grounds in People v. Flannel, 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1;  emphasis added.)   We note also the very recent case of People v. Wickersham, 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, where second degree murder instructions were neither requested by defendant nor given by the trial court.   The court said (p. 333, fn. 11, 185 Cal.Rptr. 436, 650 P.2d 311):  “We deem it appropriate to emphasize that the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests.   If it appears to the court, however, that there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.   Such inquiry will afford assurance that the theory has not been inadvertently overlooked by counsel.”  (Emphasis added.)

Mayes' rejection of second degree murder instructions was patently a tactical choice.   It is not uncommon for experienced trial lawyers of criminal cases to put juries to the unpleasant option of finding the client guilty of a greater, and more severely punishable, offense or not guilty at all, hoping that their compassion will direct the latter verdict, thus to prevent an otherwise probable verdict of a lesser offense.  (See, e.g., People v. Phillips, 64 Cal.2d 574, 581, fn. 4, 64 Cal.Rptr. 574, 414 P.2d 353, stating:  “The record reveals, however, that defendant's counsel strongly opposed the manslaughter instruction and indicated to the trial court that he considered it ‘tactically’ to defendant's advantage to confront the jury with the limited choice between murder and acquittal.”)   This, and perhaps other tactical purposes may reasonably be inferred from the record.

Moreover, the record demonstrates that defense counsel had not “inadvertently overlooked” the second degree murder theory.   The trial court had reasonably complied with People v. Sedeno and People v. Wickersham.   And from our examination of the trial record we discern no breach of the stern criteria of People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, for adequate representation by trial counsel, on the part of Mayes' attorney.

Accordingly, no merit is observed in the appeal, and the judgment will be affirmed.

The Habeas Corpus Application

The habeas corpus application is supported by seven declarations made under penalty of perjury.   They were made by Mayes himself, his mother, father and wife, by two attorneys, and by a doctor of medicine whose specialty is that of “clinical toxicologist.”

That of Mayes declares that as a child he had trouble with his school work and had psychology, vision, and dyslexia tests.   For a long time he had been using “cocaine, speed, reds, and Valium.”   Around the time of the homicide he had been drinking and using Valium heavily.  “Most of the night [of the homicide] he didn't remember.”   And his trial attorney was generally cognizant of these matters.

Mayes' wife's declaration confirms his drug and alcohol usage, and states that he “always loses his memory when taking Valium.”   His parents also confirm his childhood problems and assert that this trial attorney never inquired about his drug usage, or whether he had a history of psychiatric problems.

The two attorney declarants claim broad experience in criminal trials, particularly homicide cases.   They declare, by manifest implication, that Mayes did not receive “reasonably competent representation” because of his trial attorney's (assumed) failure to consider, investigate, and do such things as were necessary to develop and offer a diminished capacity defense.

The clinical toxicologist, “a drug and alcohol abuse expert,” opines that adverse reactions from Valium “can” include “confusion, depression and changes in libido,” while in “persons with a history of alcohol abuse there is a good possibility that they will suffer from what is commonly called ‘alcohol blackout.’ ”  (Our emphasis.)   Further, he says:  “During a ‘blackout,’ a person suffers from severe impairment of mental facilities and suffers amnesia.   During such an episode, the person would not be physically incapacitated or comatose but would retain gross motor functioning.   A person suffering from such a ‘blackout’ caused by alcohol and Valium use would have limited or no ability to premeditate or to form specific intent, due to the impairment of mental facilities and amnesia.”

Citing People v. Pope, supra, 23 Cal.3d 412, 428, 152 Cal.Rptr. 732, 590 P.2d 859, Mayes insists that he has thus presented a “colorable claim” that his trial counsel had, without satisfactory explanation, failed to present potential mental defenses.   He argues that, as a matter of law, he is now entitled “to an evidentiary hearing” on the issue whether his trial representation was such as to mandate a new trial, this time, presumably, on his “potential mental defenses.”

We are of the opinion that Mayes misinterprets People v. Pope, and its companion authority.

 A habeas corpus petitioner is sometimes said to be entitled to an evidentiary hearing on his application, when he has presented a “colorable claim” therefore.   But, if there be a difference, the true rule is that the petitioner must establish “a prima facie case” for the requested relief.  (In re Lawler, 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257, the emphasis is ours;  and see Brubaker v. Dickson [9th Cir.] 310 F.2d 30, 39.)

“Prima facie evidence is not conclusive evidence;  it simply denotes that the evidence may suffice as proof of a fact until or unless contradicted and overcome by other evidence.”  (Estate of Woodson, 36 Cal.App.2d 77, 80, 96 P.2d 1016;  the latter emphasis is ours.)

But before evidence may be accepted as “proof of fact,” it must be “substantial evidence.”  Few rules are better known, than that which commands reviewing courts to set aside judicial determinations which are not supported by substantial evidence.  (See People v. Johnson, 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738;  Grainger v. Antoyan, 48 Cal.2d 805, 807, 313 P.2d 848.)   For unless evidence is substantial, it is not allowable as proof of a fact, prima facie, or otherwise.  (Idem.)

 In determining whether there is substantial evidence, a reviewing court must consider the “whole record” before it;  it is not enough to point to “some evidence.”  (People v. Johnson, supra, 26 Cal.3d at pp. 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

 Thus, unless “it initially appears from the allegations of a habeas corpus petition filed in an appellate court, and from ‘any matter of record pertaining to the case,’ ” that the required “prima facie” showing has been made, the court will not issue the order “to show cause why the relief sought should not be granted.”  (In re Hochberg, 2 Cal.3d 870, 874, fn. 2, 2d par., 87 Cal.Rptr. 681, 471 P.2d 1.)

Our inquiry is whether, on the record now before us of Mayes' trial and the sworn allegations supporting his habeas corpus petition, a prima facie case based upon substantial evidence appears in support of his contention of constitutionally inadequate representation by trial counsel.

We state some apposite principles of law.

“Of course, the burden of proving a claim of inadequate trial assistance is on the [claimant].”  (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

In respect of “substantial evidence,” it has been authoritatively said that:  “The critical word in the definition is ‘substantial ’;  it is a door which can lead as readily to abuse as to practical or enlightened justice.”  (Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689.)

“Evidence, to be ‘substantial’ must be ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value.’ ”  (People v. Johnson, supra, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  and see People v. Murtishaw, 29 Cal.3d 733, 771, fn. 34, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Bassett, 69 Cal.2d 122, 138–139, 70 Cal.Rptr. 193, 443 P.2d 777;  Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54.)

“[T]he question as to whether or not there is substantial evidence in support of the ․ case is always a question of law for the court ․ and in determining this question ‘the credulity of courts is not to be deemed commensurate with the facility and vehemence with which a witness swears.  “It is a wild conceit that any court of justice is bound by mere swearing.   It is swearing creditably that is to conclude the judgment.” ’ ”  (Herbert v. Lankershim, 9 Cal.2d 409, 472, 71 P.2d 220;  see also, White v. State of California, 21 Cal.App.3d 738, 759, 99 Cal.Rptr. 58;  Estate of Zlaket, 180 Cal.App.2d 553, 559–560, 4 Cal.Rptr. 450;  Cowee v. Marsh, 170 Cal.App.2d 811, 813, 339 P.2d 599.)

 “Moreover, a trial judge is not required to accept as true the sworn testimony of a witness, even in the absence of evidence directly contradicting it, and this rule applies to an affidavit.”  (Lohman v. Lohman, 29 Cal.2d 144, 149, 173 P.2d 657;  and see Warner Bros. Records, Inc. v. Golden West Music Sales, 36 Cal.App.3d 1012, 1017, fn. 7, 112 Cal.Rptr. 71;  Noice v. Noice, 195 Cal.App.2d 204, 216, 15 Cal.Rptr. 703;  People v. Canada, 183 Cal.App.2d 637, 642, 7 Cal.Rptr. 39.)  “One of the powers of the trial court is to disbelieve allegations in the declarations, even though they are not controverted.”  (People v. Cuevas, 250 Cal.App.2d 901, 907, 59 Cal.Rptr. 6;  and see, People v. Meyer, 216 Cal.App.2d 618, 636, 31 Cal.Rptr. 285;  People v. Bannister, 153 Cal.App.2d 480, 484, 314 P.2d 577.)   This rule seems particularly applicable where the witness' testimony is affected by an interest such as compensation therefor, or relationship to a party.  (See Witkin, Cal.Evidence (2d ed. 1966) § 1113, pp. 1029–1030, §§ 1231–1232, pp. 1137–1138.)

“ ‘[T]he weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion.’  ․ [I]ts value ‘rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion․’  ․ Such an opinion is no better than the reasons given for it ․ and if it is ‘not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.’ ”  (White v. State of California, supra, 21 Cal.App.3d 738, 759, 99 Cal.Rptr. 58;  and see authority there collected.)

 From all of the foregoing we discern a clear principle, that courts will readily grant habeas corpus relief where, upon a proper evidentiary showing, criminally charged defendants appear, in fact, to have been denied constitutionally effective trial representation.   But nevertheless, courts will be alert to ensure that the writ not become a device under which one criminally accused, who has already had a fair trial on the issue of his guilt may be accorded a second trial of that issue.

 Among matters which courts may consider in cases such as this, are the “ease with which plausible but unfounded allegations may be made against trial counsel, the temptation of the convicted to blame their attorneys rather than themselves, ․ the weakness of the threat of perjury against those confined in prison, [and the] possibility that available defenses were deliberately withheld to ․ give accused two chances to prevail.”  (Brubaker v. Dickson, supra, 310 F.2d 30, 39.)

 From the whole record now before us including Mayes' habeas corpus application, and under the above-noted criteria, we find a lack of substantial evidence, and thus no prima facie case, supportive of Mayes' habeas corpus application.   And we conclude therefrom that Mayes has had the fair trial which was his due.

 Moreover, it is now clearly developed law that, to establish constitutionally inadequate representation by trial counsel, one convicted of crime must affirmatively show (the emphasis are ours) that:  “the omissions of defense counsel involve a critical issue, ․ that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.”  (People v. Lanphear, 26 Cal.3d 814, 828, 163 Cal.Rptr. 601, 608 P.2d 689), and that the court “can conceive of no satisfactory explanation for counsel's omissions.”  (People v. Pope, supra, 23 Cal.3d 412, 428, 152 Cal.Rptr. 732, 590 P.2d 859.)

Here, a “satisfactory explanation” for trial counsel's “choice of tactics” is manifest.

As pointed out in our discussion ante on Mayes' appeal, it is not uncommon for an experienced trial lawyer of criminal cases to put juries to the unpleasant option of finding the client guilty of a greater, and more severely punishable, offense or not guilty at all, hoping that their compassion will direct the latter verdict, thus to prevent an otherwise probable verdict of a lesser offense.   Such an attorney will recognize that, where as here the defense is that the accused did not commit the homicidal act, an argument of counsel that even if he did, it was because of some mental infirmity, will almost always degrade and cause rejection of the principle defense.   And he will have learned that jurors, holding out for a not guilty verdict as to a greater offense will sometimes vote guilty of a lesser offense when permitted to do so.   And see the comment of Tobriner, J. in People v. Phillips, supra, 64 Cal.2d 574, 581, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353.

The judgment is affirmed and the petition for a writ of habeas corpus is denied.

I dissent:

Defendant's petition for habeas corpus relief alleges in substance that he was denied the effective assistance of counsel as a result of woefully inadequate investigation and preparation regarding a capital offense by an admittedly inexperienced trial counsel who, it appears, initially injected himself into the role of retained counsel.   Despite counsel's awareness of defendant's history of alcohol-drug abuse involving episodes of unconsciousness and amnesia, no attempt was made to even consider the possibility of an available defense of diminished capacity.   Such omission can't be excused on the basis of tactical choice without benefit of some inquiry and plausible justification.  (People v. Frierson [1979] 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587.)   Lack of an adequate investigation simply precluded any “rational choice” or any informed judgment at all.  (In re Saunders [1970] 2 Cal.3d 1033, 1049, 88 Cal.Rptr. 633, 472 P.2d 921.)   As in Saunders, the unexplained omission of such potentially viable defense was crucial particularly in view of the fact that the only evidence offered by the defense consisted of defendant's superficially exculpatory extrajudicial statement.   Moreover, such inexplicable oversight is excacerbated in light of the submitted testimonial evidence of counsel's unfulfilled intention to obtain adequate expert examinations coupled with his repeated though unjustified assurances of an outright acquittal even up to the point of denial of the Penal Code section 1118.1 motion.

Since the petition, supported by uncontroverted declarations, makes out a prima facie case for relief, an order to show cause should issue.  (See In re Lawler [1979] 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257;  In re Hochberg [1970] 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.)   Only through the vehicle of an evidentiary hearing can it be fairly determined whether counsel failed to act in a reasonably competent manner which resulted in the abandonment of a potentially meritorious defense.  (People v. Pope [1979] 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859;  cf. People v. Fosselman 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144 (1983.)

I do not understand how a reviewing court—confronted with a prima facie showing for relief—is empowered to deny such a fundamental procedural claim under the rubric of a substantial evidence analysis.   To deny habeas on the record before us in a serious case of this nature without even the benefit of a return and likely-necessary evidentiary hearing, the constitutional right of effective representation becomes hollow indeed.

In conclusion, I believe the petition not only makes out a prima facie case, but a strong one at that.   An order to show cause should issue requiring a return and remand for an evidentiary hearing.   Accordingly, I would defer the decision on appeal pending receipt of the referee's findings and report.  (Cf. In re Hall [1981] 30 Cal.3d 408, 179 Cal.Rptr. 223, 637 P.2d 690;  People v. Corona [1978] 80 Cal.App.3d 684, 706, fn. 10, 145 Cal.Rptr. 894.)

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.