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IN RE: Henry Valles BORBON on Habeas Corpus.
OPINION
PROCEDURAL HISTORY
Petitioner was originally convicted by jury of two counts of murder and one count of conspiracy to commit murder in Tulare County Superior Court on February 24, 1976. An order granting a new trial on the ground of newly discovered evidence was affirmed by this court on plaintiff's appeal in People v. Borbon, 5 crim. No. 2790, unpublished opinion filed October 19, 1977.
Upon retrial by jury, petitioner was again convicted of the charges on November 17, 1978. Defendant's appeal from the judgment was affirmed by unpublished opinion filed on March 8, 1982, in People v. Borbon, 5 crim No. 4146.
In a petition for writ of habeas corpus dated June 3, 1986, and filed in the Tulare County Superior Court, petitioner claimed, for the first time, that his convictions should be overturned because the trial testimony of prosecution witness Fernando Borbon (hereinafter Fernando), in the 1978 trial leading to his convictions, was tainted by a hypnosis which occurred during petitioner's 1976 jury trial on the same charges.
On August 4, 1986, the court held an evidentiary hearing on the petition, which included testimony regarding the hypnosis by John Wong, M.D.—an employee of Tulare County Hospital who placed Fernando under hypnosis and questioned him about his prior statements and prior testimony, David Rodriguez—the prosecutor at the 1976 trial, Sergeant Ralph Tucker—the chief investigating officer, and Fernando. A partial tape recording of the hypnosis session, as well as two tapes of prior interviews of Fernando by Tucker, was also introduced into evidence at the hearing. The tape of the hypnosis session was made approximately February 2, 1976, and a transcript prepared approximately February 9. This was during the defense case, shortly after the prosecution had concluded its case-in-chief in the first trial. A copy of the tape recording of the hypnosis session and a copy of the transcript of that tape were given to defense counsel at that time.
In his return and supplemental points and authorities, the district attorney argued that the petition should be denied as untimely and meritless. On the merits, the district attorney argued that petitioner failed to prove that he was actually hypnotized or that his subsequent testimony was the product of the hypnotic session.
The court, after hearing, denied the petition in a written ruling. In that ruling, the court found Fernando was, in fact, hypnotized during the hypnosis session. The court also found, pursuant to People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, that it was impossible to tell whether Fernando's posthypnotic testimony was a product of his own memory or a confusion or confabulation induced by the hypnotic experience. It thus rejected the prosecution's argument that Fernando's changed testimony was not due to the hypnosis. The court denied the petition on the merits because Fernando's substantive testimony before and after the hypnosis was essentially the same with the exception of the date he moved in with petitioner. The court thus found, “It cannot be said that excluding the testimony that was tainted by the hypnosis would have resulted in a verdict more favorable to the Petitioner.”
On October 3, 1986, petitioner, through his attorney George Bumanglag, filed his first petition for writ of habeas corpus in this court, 5 Crim. No. F007739, alleging the convictions should be overturned because the trial testimony of Fernando in the 1978 trial leading to petitioner's convictions was tainted by the hypnosis which occurred during petitioner's earlier 1976 trial. On March 11, 1987, this court denied the petition by written order as follows:
“The petition for habeas corpus is denied.
“Petitioner did not timely object to the admission of the post hypnotic testimony of Fernando Borbon. (Evid.Code, § 353.) Petitioner has failed to file a timely habeas corpus petition. Petitioner has failed to show that he may challenge the admission of said testimony on a petition for writ of habeas corpus. (In re Sterling (1965) 63 Cal.2d 486, 487 [47 Cal.Rptr. 205, 407 P.2d 5]; In re Lindley (1947) 29 Cal.2d 709, 723 [177 P.2d 918].)”
On November 6, 1987, petitioner filed the present petition (F009482) in this court, this time in propria persona, again alleging that the convictions should be set aside due to the tainted testimony of Fernando. The petition also alleged a timely filing.
On November 12, 1987, this court requested respondent to file an informal opposition to the current petition in F009482. The opposition was filed on December 3, 1987, contending the petition should be denied as a successive petition not properly before this court in light of this court's previous denial in F007739. Petitioner filed a reply on December 17, 1987.
On February 9, 1988, this court requested supplemental briefing from respondent which addressed the merits of the petition. In supplemental informal opposition, respondent again alleged that the petition should be denied as a successive petition and that it should alternatively be denied as untimely and meritless for the reasons previously set forth in opposition to F007739. On March 28, 1988, petitioner filed his reply in propria persona.
On August 4, 1988, a supplemental brief was filed on behalf of petitioner by the Central California Appellate Project.
On October 27, 1988, this court issued its order to show cause in the present case, and respondent filed its return on November 21, 1988. Petitioner's traverse and denial was filed on December 2, 1988.
At the request of both parties, this court takes judicial notice of all pertinent prior records of petitioner's cases in 5 Crim. Nos. 2790, 4146 and F007739 pursuant to Evidence Code sections 452, subdivision (d), 453 and 459.
STATEMENT OF FACTS
Second Trial
This court's statement of facts of the second trial, including footnotes, in its opinion filed March 8, 1982, in 5 Crim. No. 4146, was, in its entirety, as follows:
THE PROSECUTION EVIDENCE
[Joe] Perez and Rosie [Sanchez] had engaged in a lengthy meretricious relationship that produced two children. The relationship had ended almost a month before she died. Rosie's sister testified that during the month following their breakup, Perez and Rosie were angry with each other.
During February 1975, Perez was living with Cynthia Clifton. He married her on March 10, 1975.
Approximately one week prior to her death, Rosie announced her intention to marry [Richard] Gaither on Saturday, March 1, 1975. Rosie told Cynthia Clifton about the planned wedding about a week before she got killed. Clifton also testified that she spoke to Perez before Rosie got killed regarding Gaither's and Rosie's plans to get married.
On February 21, Clifton and Perez observed Rosie and Gaither seated next to one another in a car parked at an intersection. Clifton asked Perez, “Does that bother you?” Perez responded, “Don't worry about it. I'll take care of it.”
On February 22, Perez and Clifton went to the residence of appellant. They arrived about dusk and remained until 5 a.m. the next day. During this period, Clifton heard appellant and Perez “plotting, talking” in Spanish, a language she did not understand. At about midnight, the three of them went to a funeral home for about an hour, as appellant had to identify the body of his nephew who had been hit by a train.
A week or two weeks prior to the killing, Clifton had overheard another conversation between appellant and Perez which involved “ounces of heroin.” Clifton heard appellant say that he would have to score the heroin for Perez because the suppliers did not trust Perez. Perez and appellant arranged for appellant to receive a couple of “spoons” out of each ounce which was obtained.
Sometime in February 1975, Willie Ortiz, a long-time acquaintance of appellant, gave a 32–caliber revolver and some ammunition for the weapon to appellant. On or about February 21, 1975, appellant asked his cousin, Fernando Borbon, to try to find some 32–caliber ammunition.
On February 27, Fernando moved in with appellant to avoid an arrest on some outstanding warrants.2 According to Fernando, that evening appellant told Fernando that he knew of a means for them to make some money. When Fernando expressed interest, appellant asked him if he knew Rosie Sanchez and Fernando said he did. Appellant said that Rosie had to be “eliminated.” Fernando noted that Rosie was with Gaither nine times out of ten, so Fernando asked appellant what he would do if Gaither was with her. Appellant replied, “Well, if he's with her, too, he is just going to have to go right along with her.”
Appellant then told Fernando that Rosie and Gaither had to be “eliminated” because Perez could not accept the idea that Rosie was going to marry a white man and his children would be raised by a white man. Appellant explained he was going to do it for the money. He said there was $1,000 involved, half of which he would receive the night of the killing, and the rest would be paid on the first of the month. Appellant further explained he was doing the killing for the money because he needed the money to pay bills.
Fernando also recounted that appellant spoke about how the killing was to be done. Appellant told Fernando that one of the plans involved Perez calling Rosie and offering or giving her an ounce of heroin. Rosie could keep whatever money she made from selling the heroin which would enable her to “get on her feet.”
Fernando told appellant he better think about it before going through with it. Appellant replied, “Naw.” Appellant never asked Fernando if he wanted to participate in the plan.
Clifton testified that on Friday, February 28, at about 11 a.m., Rosie and Gaither arrived at Perez' residence. Clifton was there but Perez was not.3 Rosie informed Clifton that she and Gaither were planning to meet appellant and Perez in Lindsay at 6:30 to “score an ounce of heroin.” Rosie indicated she was going to take Gaither with her, because she wanted him to fix some in order to determine if it was good enough to deal. Rosie and Gaither left after 30 or 45 minutes.
At approximately 1 or 1:30 p.m., Perez arrived home and threw some money on the table for Clifton to count. Clifton counted $1,000. Perez told her that he and appellant were going to Pixley to pick up an ounce of heroin. Perez then left in his Firebird automobile.
At about 5 p.m. on February 28, Rosie's sister Adela, Rosie and Gaither went to Rosie's mother's house and were there about five minutes. They went in Rosie's Buick Riviera. Rosie had recently purchased a Riviera from appellant and witnesses testified that they saw Rosie with only a single set of two keys to the car.
When Adela last saw Rosie, Rosie was wearing green pants, a green and white flowered blouse, and high-heeled sandals, which appeared to be the same clothes she was wearing when the police found her body.
On the same day at about 6:30 p.m., Fernando testified that Perez arrived at appellant's residence. Appellant walked outside and greeted Perez. Appellant returned to the back of the house toward the bedroom, came back out and said, “I'll be back in a few minutes. I've got to go take care of some business.” He then left.
Between 8 and 8:30 p.m. on February 28, a passing motorist observed Gaither lying on Yokohl Valley Road. Gaither was clutching a blue stocking cap and the motorist later found that blood had run out of his head and down the road.
An ambulance removed Gaither who was still breathing. Officers seized from the area where Gaither had been lying pieces of tinfoil, some expended matches, match books and lead fragment from a bullet. Later analysis would reveal the presence of an opium alkaloid caused by morphine, heroin, codeine or similar compound on one of the tinfoil pieces recovered next to Gaither's body.
Gaither was pronounced dead sometime around 10 p.m. An inventory of his personal possessions turned up Rosie's Riviera car keys in Gaither's pants pocket. Autopsies later revealed the cause of Gaither's death was cardiovascular collapse “secondary” to two gunshot wounds fired into the back of his head. Additionally, an analysis of his urine revealed morphine and there was testimony that heroin breaks down to morphine.
Appellant returned home between 11 p.m. and midnight. Fernando saw appellant standing in the kitchen area starting to take his clothes off and demanding that his wife “wash these clothes and wash them right now.” According to Fernando, appellant acted “nervous” and a “little over excited.” Mrs. Borbon immediately started washing the clothes. Appellant also gave Mrs. Borbon what appeared to be money wrapped up in a plastic bundle.
Appellant then gestured to Fernando not to say anything and to follow him into the bathroom. While appellant walked into the bathroom, Fernando went into a bedroom and picked up a syringe to fix some heroin.4 Fernando then walked back into the bathroom.
In the bathroom, Fernando was taking out some heroin when appellant offered Fernando some of his. Fernando then asked appellant where he had acquired the bag of heroin. Appellant explained he had picked it up from where Gaither was. While Fernando injected some of the heroin, appellant was in the bathroom washing his shoes. Appellant also shot up some heroin. Fernando testified that the heroin did not affect his ability to see, hear and remember, although the heroin got him “loaded.”
Fernando and appellant then had a conversation about the killings. Fernando asked appellant what happened and where. Appellant said it happened way up in the mountains. He said he and Perez had met with Gaither and Rosie. At some point they separated, appellant going with Gaither, Perez with Rosie. Appellant was driving the Riviera and stopped it in the middle of the road. When asked why he did not pull off to the side of the road, appellant explained he did not want to leave any tire tracks.
According to Fernando, appellant recounted how he and Gaither got out of the car, and Gaither squatted in front of the car's headlights and cooked some heroin in preparation for injection. Gaither asked appellant if he wanted to fix some too, and appellant replied yes but asked Gaither to prepare it for him. At this point, appellant came up behind Gaither and shot him twice. When he started firing, only two bullets went off and appellant said, “One of the son of a bitching bullets didn't want to go off.” Appellant said the gun came from a friend in Hanford.
Appellant took the bag containing heroin from Gaither and touched nothing else for fear of leaving fingerprints. He then drove back to the location where Perez and Rosie were.
When appellant arrived, he asked Perez if Rosie were dead. Perez, who had beaten Rosie in the head with a “miniature sledgehammer like object” then responded, “Naw, she's not dead. She don't want to die.” Appellant then took a knife, said “I'll make sure she'll die” and stabbed Rosie several times in the upper chest. Appellant told Fernando that even after he stabbed Rosie, Rosie was still full of life; she was just a hard person to kill.
After he stabbed her, appellant helped Perez place Rosie in the trunk of Perez' Firebird. Appellant then drove somewhere near Lemoore and dumped Rosie's body in a river or a lake. Appellant also said they drove the Riviera and abandoned it alongside a road in the Lemoore area.
Fernando asked appellant if he “cleaned up his tracks.” Appellant said, “I'm pretty sure I cleaned my tracks pretty good.” He also said, “We stopped at a car wash, a five minute car wash, and sprayed the trunk real good, made sure there was no blood or anything like that, and got rid of all the weapons and so forth.”
In the early morning hours on March 1, a Kings County deputy sheriff discovered the abandoned Riviera about one mile south of Highway 198 on the Avenal cutoff, a location 30 to 35 miles west of Visalia. The Avenal cutoff road is approximately seven miles west of Lemoore. There were no keys in the ignition of the car.
The vehicle was dusted for prints. A deputy found wipe marks on the outside of the driver's side of the door and testified wipe marks are left when somebody wipes away a fingerprint. An unsuccessful attempt was made to lift prints from the steering wheel.
In the early afternoon of March 1, Sergeant Babcock and Chief Investigator Tucker, who was with the Tulare County District Attorney's office, went to the Borbon residence in Lindsay to talk to appellant. Mrs. Borbon greeted them at the door and they indicated they wanted to speak to appellant. Investigator Tucker testified that Mrs. Borbon appeared very concerned and she broke down in hysteria and started crying. They did not see appellant. However, appellant's brother, Rudy Flores, drove up and started comforting Mrs. Borbon.
Later that day, Fernando saw appellant at Rudy Flores' house in Tonyville. Appellant told Fernando, “Damn, what rotten luck I have.” Fernando asked, “What do you mean?” Appellant replied, “Well, the man (police officers) just left my house and I had to split from there.” He explained that when the police came he had flushed the heroin he had taken from the death scene and left the house via an alley.
On Tuesday, March 4, a sheriff's detective met with appellant and his attorney and discussed the status of the Riviera. Appellant explained he was still the legal owner of the car and he was in the process of selling the vehicle to Rosie Sanchez. He told the detective Rosie still owed him approximately $800 after a $500 down payment.
On March 8, Rosie's body was discovered in the Kings River near Stratford, a location about eight miles from where her Riviera had been found. She was clothed in the manner she had been when Adela Sanchez saw her on February 28.
A Dr. Dollinger, who conducted the autopsy, opined that Rosie had been immersed in water for about five to ten days before he conducted the autopsy on March 9. The autopsy revealed that Rosie had been stabbed approximately 13 times in the chest and neck. The pathologist opined Rosie was alive when she was stabbed and if she had just been stabbed, without immediate medical attention, it would have resulted in her death. The pathologist also found five cuts on Rosie's head. She had also received blows to her head. Dollinger indicated that a blunt object, possibly a four- to six-pound hammer, may have caused some of the wounds. The blows to the head which caused the fracture of the skull and brain hemorrhage would have been sufficient without the stab wounds to cause her death. The actual cause of death was bleeding into the chest and head from the chest wounds, both from multiple blows to the head by a blunt object and multiple stab wounds to the chest. Dollinger also testified the minimum length of the blade causing some of the wounds would have been four and one-half inches.5
On April 4, Investigator Tucker arrested Fernando. Tucker questioned Fernando on April 4 and 5. Both interrogations were taped, played for the jury and transcribed. Tucker testified he did not make any promises in exchange for Fernando talking about the murders. During the questioning, Fernando basically told the same story as he testified to at trial.
On April 7, Tucker called appellant and told him they were going to release the Riviera to him but were going to retain the keys as evidence.
Police units were watching appellant's house and they waited for him to leave. When he drove away, they pursued and activated the red lights and sirens. After somewhat of an erratic chase, he pulled over and was arrested. At the time of his arrest, appellant had in his possession an ignition key to Rosie's Riviera.
On the same day, Tucker executed a search warrant at appellant's residence. Tucker found 47 tinfoil squares in the bedroom of one of his sons. He also found 21 such rectangles in the kitchen on top of the cabinet and washing machine. Tucker testified tinfoil squares are used to package heroin.
Tucker also seized a pair of boots from the closet of the master bedroom. Later analysis would disclose the presence of human blood on one of the boots.
The day after appellant was booked at the county jail, the jailer saw appellant having severe muscle cramps and throwing up. Appellant complained of alternating chills and hot flashes. He told the jailer that he was suffering withdrawal symptoms. He said he had been shooting six spoons of heroin a day. An expert on heroin addiction testified it would cost $300 per day to feed such a habit and that a common habit would be one to three spoons per day.
On April 8, Perez' Firebird was examined for evidence. The examination turned up a single spot of blood in the trunk. Chemical analysis revealed that the spot was human blood. The blood stain was of a type common to only about 5 percent of the population—type 2. Rosie had type 2 blood.
The People also put on evidence regarding appellant's employment and financial status during 1974–1975. In late 1974, appellant earned approximately $1,000 in commissions as an insurance salesman. However, in 1975 appellant did not earn any commissions.
A bank officer also testified that at the end of 1974 through March 1975 appellant and his wife had approximately $15 in their bank account.
DEFENSE TESTIMONY
Appellant testified on his own behalf. He was a director of a poverty agency in Tulare County in 1971 through 1973.
Appellant had worked for Globe Life Accident Insurance Company for eight months prior to his arrest. He testified that he continued to sell policies through April 1975 and that the records of the company did not reflect this because another agent's name was submitted to the company to enhance that agent's chances of winning a vacation from the company for the most policies sold.
The brown Buick Riviera believed to have been used in this case was the appellant's until mid-January 1975. At that time, he sold it to Rosie and gave her two separate keys, for a total of four keys. All of the keys appellant knew of were given to her in mid-January 1975. It was after the death of Gaither and Rosie when his wife found an extra key in the Borbon home, the key which appellant apparently had in his possession the day of his arrest.
In early February 1975, appellant picked up a gun from Willie Ortiz and gave it to Fernando Borbon, who had been pestering appellant for one. At this time and in the ensuing months, appellant stated that he was not a heroin addict.
He then testified that on Saturday night, February 22, Perez and Clifton came to his home. Perez, the codefendant, came over to see if appellant could get an attorney for him. Perez knew that appellant had been responsible for running the Tulare County Legal Services. While visiting with Perez and Clifton, appellant was informed by his brother, Rudy Flores, that his nephew, Rudy Flores, Jr., had been killed. Appellant was asked if he would go to the hospital to identify the body of his nephew and he complied.
On February 28, while at his brother's house across from the mission in which the rosary was to be held, appellant noticed Fernando around 4 or 5 p.m. Fernando had entered the garage, and it was appellant's impression that Fernando wanted to take something out of the garage. A discussion followed in front of the garage and appellant asked Fernando to leave, which he did. Appellant did not see Fernando again that night.
Numerous witnesses, namely, Rudy Flores, appellant's brother, Oscar Salinas, a relative by marriage, Estella Salinas, his niece, Olga Escalera, a relative, and Ramon Contreras, an acquaintance since 1947, testified to corroborate appellant's alibi that he was involved with funeral-related activities at the time of the murders.
On March 1, the day after the murders, appellant returned to his home at 2 a.m. and slept.
On April 7, the date of appellant's arrest, he stated that there was no lactose in his home. Further, he testified that he had not tried to evade the police when they attempted to arrest him. He also denied that he had heroin in his possession at the time of his arrest, although he was convicted of possession of heroin for sale.
After being incarcerated, appellant became ill in jail due to a liver ailment. He denied telling Herb Gray, a sheriff's deputy in the jail, that he had a six-spoon-a-day heroin habit and was having withdrawals. Appellant testified that Gray was going to get back at him as Gray accused appellant of stopping funding for the sheriff's department when appellant was director of the Tulare County Anti–Poverty Program. Appellant's arraignment was postponed due to his ill health. Appellant denied that he had ever threatened anyone concerning this case.
Appellant admitted being taken to the hospital two to three days after his arrest, but denied telling the doctor he was a heroin addict. Appellant also denied talking to the doctor at all. Appellant, however, was given a shot.
Ruby Borbon, appellant's wife, stated that they had gone together to Rudy's house on Friday, February 28, around 4 or 5 p.m. She testified her husband went to the rosary across the street but came back shortly, as her husband was sick with diarrhea. She stated that appellant was with her on Friday night until they went home at about 2:30 or 3 a.m.
On the day of appellant's arrest, Mrs. Borbon was present in her house when it was searched. She testified that she knew nothing of the tinfoil pieces found in the house, and that her husband was not a heroin addict.
Perez testified that Fernando helped him in the commission of the murders. However, appellant was not involved.
On cross-examination, Perez testified that he had taken an extra key from Rosie that fit the Riviera. He denied ever telling Ralph Tucker that appellant had planned the murders. He also told Tucker that he would not testify against appellant.
After Perez was convicted in 1976, he sent appellant a letter. The letter stated, “I wish you a lot of luck, only I know you are innocent. Only if there anything [sic ] I can do for you, let me know.” Perez also wrote some letters to appellant's attorney offering to testify for appellant.
Perez also gave considerable testimony regarding his dealings with the Tulare County District Attorney's office. He showed Investigator Tucker where the hammer was.
In return, Tucker allowed Perez to make love to Clifton in the back seat of the detective's car. (Clifton denied making love.) While making love in the back seat, Perez mentioned the name Henry Borbon to Tucker who was on the back of the car. Tucker had asked Perez for a name during intercourse. Tucker also arranged for Perez to be with other women. (Tucker denied this and the intercourse interrogation.)
Clifton also testified on behalf of the defense. She saw Perez a month or two before the trial. Perez had already told her that he was going to testify against appellant and then he changed his mind. Clifton tried to convince him to change back again because it was the right thing to do. Perez told her how he and appellant killed Gaither and Rosie. (Perez denied this.) Perez said he wanted to testify so he could clear his name. However, he changed his mind because somebody came and talked to his mother and changed her mind.
Manuel Medina, a friend of both appellant and Fernando, testified that he saw Fernando on Saturday, March 1. Upon walking up to his house, Fernando had a newspaper rolled up and tucked under his arm. Fernando had told his wife that “Gator” had gotten killed. On the way home from a bar, Fernando was crying and told Medina that he messed up his life, or something like that.
Numerous defense witnesses who were incarcerated with Fernando testified that Fernando implicated himself but exculpated appellant in the murders. (Fernando denied many of these conversations.)
The defense also called Sarah Borbon who was married to Fernando, although she had not lived with him for three years prior to March 1975. Although she was concerned for her children because Fernando was testifying against appellant, she testified that she had not received any threats from appellant before moving from the area. She received three checks from the district attorney's office to move out of Tulare County. The three checks totaled approximately $1,200. Apparently, some of the money was also for lost wages. Tucker gave her the money to leave because the 24–hour sheriff's protection was costing the county too much money. At the end of 1975, she stayed with Fernando and her children at the Hilton in Fresno. Nobody had threatened her or the kids.
Jay Powell, the Tulare County district attorney, was also called as a witness for the defense. He testified that he had written checks to Sarah Borbon, and the purpose of this money was to allow Sarah protection because Fernando's family had been threatened with physical violence. There were threats on her and the children to put pressure on Fernando not to testify. He also testified it was cheaper to give her the money and get her out of the county than to provide protection.
Powell stated appellant was in custody but he had information that appellant's associates would be available to carry out the threats. He had received briefings from the California Department of Justice in this area. Powell was allowed to testify (for purposes of his state of mind only) that he had been informed that appellant was a lieutenant in the Mexican Mafia and because of that Powell felt appellant was a danger to those witnesses. Also, in 1975, he had been told that “witnesses could be killed, or injured or intimidated by the Mexican Mafia.”
Michael Grubb testified he could find no common origin between the tinfoil found at the scene of Gaither's death and the tinfoil found at appellant's house. He also did numerous tests on clothing and shoes to determine if there were blood stains on the same. He stated that there were no stains on his clothing nor on the black boots that he tested. Apparently, the items tested belonged to appellant.
PROSECUTION REBUTTAL EVIDENCE
Jay Thomason testified that, in the latter part of 1975, he was in the Tulare County jail for six weeks with Perez in the cell next to him. Perez told him that appellant had shot Gaither and stabbed Rosie. (Perez denied this.)
Henry Babcock was one of the arresting officers on April 7 when appellant was arrested. Next to appellant Babcock found a balloon within a balloon filled with a brown, powdery substance which was later determined to be heroin.
Malcolm Wagner was a doctor at the Tulare County Hospital in 1975. His duties included taking care of the inmates from the Tulare County jail. On April 8, he treated appellant. Appellant told him that he had heroin withdrawals, and that was consistent with Wagner's diagnosis. On the first visit, appellant did not mention his liver problem.
Jay Powell, the district attorney, testified that he became involved in this case right after the deaths of the two victims. Although he admitted to having doubts about the case, as he does in every case, he felt justified in filing the complaint. He stated that he never told his assistant, Singh Aulakh, that the case was “no good” or that he had grave doubts about appellant's guilt.
DEFENSE REBUTTAL
Singh Aulakh was employed as assistant district attorney in November 1975. Jay Powell was his superior. Prior to April 9, 1975, Aulakh received all the police reports and worked with Investigators Tucker and Babcock. On April 8, the decision to issue a complaint against Henry Borbon and Joe Perez was made. For almost two hours Aulakh discussed with Powell whether a complaint should be filed. He analyzed the case for Powell. Powell said that there was grave doubt about the guilt of appellant and that he had serious reservations about the authenticity of Fernando Borbon's statements to Tucker. Powell further said that it did not make any sense to him that appellant would kill Rosie when the allegation of motive was that he receive $1,000, yet she was indebted to him after buying his car.
Powell also stated he did not believe appellant could have related the events to Fernando as rationally as they were presented by Fernando on the night in question. Aulakh went on to say that Powell again stated to him at the arraignment of appellant that he had grave doubts about his guilt.
William Boyer testified that he had a conversation with Perez in the Tulare County jail in August or September 1976. At that time, Perez said that appellant was not involved but he could not seem to convince them of that.
Perez again took the stand and denied that he had talked to Jay Thomason and had implicated appellant. He also testified that he refused Investigator Tucker's invitation to testify against appellant. He claims Tucker stated he wanted appellant real bad and would do anything to get a conviction. Perez told him appellant did not have anything to do with it, but that Fernando did. Perez stated that he spoke with Bill Boyer. Perez said appellant was innocent and implicated Fernando.
[End of quote from opinion filed March 8, 1982, 5 Crim. No. 4146.]
The major difference in Fernando's testimony presented in the two trials was that at the first trial Fernando testified that he moved in with defendant on February 25, 1975, while at the second trial he testified it was on February 27, 1975, that he moved in with defendant.
Habeas Corpus Hearing
At the hearing on the habeas corpus action in the superior court, it was developed that Fernando was hypnotized during the course of the first trial.
Detective Tucker testified that in April 1975 he was assigned to investigate the deaths. He interviewed Fernando on April 4 and April 5 in 1975 before the first trial. These statements were generally consistent with Fernando's testimony at the first trial.
During the first trial (1976), Tucker took Fernando to see Dr. George Wong for a hypnotic session. Detective Tucker assumed he gave Dr. Wong information as to what he was to ask. The sole purpose of taking Fernando to the doctor was to have Fernando hypnotized.
Tucker said it did not appear to him that Fernando was hypnotized, but explained as follows:
“I—my exposure to it [hypnosis] at that time and since that time has been extremely limited, and as I looked at what was going on there I personally didn't feel that the guy was under hypnosis, that's all I can tell you. It didn't look like to me that there was any hypnotic state, or like that, if that guy changed personality or if in fact was hypnotized. That's just my opinion. Whether it's true or not I don't know.”
Tucker testified that Dr. Wong tried to hypnotize Fernando, and that he (Tucker) turned on the tape recorder at the start of the session.
Dr. Wong testified that in 1975 he would from time to time hypnotize individuals for the Tulare County Sheriff's office. He did not specifically recall Fernando's session. The doctor also testified that there were certain tests he relied upon at the time to determine whether or not the person was under hypnosis. He explained:
“A There are about three things I could use. Number one is the eyelid movements. When the patient is under—when a client is under hypnosis usually the lids start flickering like a butterfly, number one. And number two, we do the hand drop test. When you raise a patient's hand, and if he was conscious when you—he would drop his hand automatically, the client would carefully drop his hand down. And if he is under hypnosis the hand would just flop right down.
“And the other thing, of course, I would have a pretest. Pretest is my own term. I would bring the patient to suggest a journey and ask the client the journey, a particular journey, and usually they can give a description that led me to believe that the client is in hypnosis.”
The tape of the session was played for Dr. Wong. He recognized his voice, but could not recall the specific session because he did many hypnotisms in those days. The tape sounded to Dr. Wong like the hypnotic sessions where he was putting someone under hypnosis and thereafter asking questions.
Fernando testified that he could not recall whether he went to the session during the first trial. He did recall that it was before the second trial. He could not remember what the doctor did to put him under hypnosis. At the time of the hearing he did not think he had been hypnotized. He testified that on the one hand he was aware of what was going on around him, but on the other hand he could not recall hearing other people in the room or things of that nature. In fact, Fernando could not recall much of the circumstances. This one hypnotic session was the only experience he ever had with hypnosis, and he had not studied hypnosis.
DISCUSSION
ISHOULD THE PETITION BE DENIED AS A SUCCESSIVE PETITION?
Respondent contends that this petition should be denied as a successive petition because there is nothing to exclude this case from application of the established rule that a petition for habeas corpus based on the same grounds set forth in a previous petition which was denied by the court will be denied where there was no change in the facts or laws substantially affecting the legal right of the petitioner. (Citing People v. Thomas (1955) 45 Cal.2d 433, 437, 290 P.2d 491; In re Miller (1941) 17 Cal.2d 734, 735, 112 P.2d 10; In re Chessman (1954) 43 Cal.2d 391, 399, 274 P.2d 645; In re De La Roi (1946) 28 Cal.2d 264, 275, 169 P.2d 363; In re Horowitz (1949) 33 Cal.2d 534, 546, 203 P.2d 513; Pen.Code, § 1475.) Petitioner counters that the issuance of an order to show cause by this court constitutes a previous finding adverse to respondent's position. It appears petitioner's contention is correct to a certain extent.
This court's issuance of an order to show cause constituted a prima facie finding that the petition or matters of record pertaining to the case have shown the petitioner is entitled to relief; however, this preliminary finding does not become the law of the case. (See In re Hochberg (1970) 2 Cal.3d 870, 874, fn. 2, and 875–876, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.) Thus, while a prima facie case has been established, we are not strictly bound by this preliminary determination and, therefore, we may still consider respondent's contention that the petition should be denied as a successive petition.
However, we reject respondent's contention for two reasons. First, the authorities relied upon by respondent are distinguishable because those cases involved a situation where the previous adjudications of the petitions therein had been made on the merits. In the instant case, the merits have never been reached. Second, as pointed out by the Supreme Court in In re De La Roi, supra, 28 Cal.2d 264, 267, 169 P.2d 363, “the state is ever solicitous that those whom it prosecutes shall be accorded full measure of every legal right.”
II
SHOULD THE PETITION BE DENIED ON THE GROUND THAT PETITIONER FAILED TO OBJECT TO THE POSTHYPNOTIC TESTIMONY AT TRIAL?
Respondent contends that this petition should be denied as untimely because (1) petitioner never challenged the hypnotic session on appeal from his conviction in 5 Crim. No. 4146 or in his unsuccessful petition for hearing following the affirmance of his convictions; and (2) petitioner did not seek to challenge the hypnotic session until he filed this petition for writ of habeas corpus in superior court on June 3, 1986, more than 10 years after the hypnotic session had occurred.
Petitioner explains the reasons for the delay in filing the writ as follows:
“On March 11, 1982 (three days after the District Court of Appeal rendered its decision in petitioners [sic ] appeal of the second conviction) the California Supreme Court handed down its decision in People v. Shirley, [1982] 31 Cal.3d 18 [181 Cal.Rptr. 243, 723 P.2d 1354], holding that ‘․ a witness may not be allowed to testify after he has undergone hypnosis for the purpose of restoring his memory of the events in issue.’ (Id. at p. 23 [181 Cal.Rptr. 243, 723 P.2d 1354] )
“Petitioner first had an opportunity to review that decision at the prison wherein he was confined at the time some days after the decision was handed down. It was at that time that petitioner first became aware that the hypnosis of the witness Fernando might have been illegal, however, while the Supreme Court initially intended that its decision in Shirley, supra, was to be given retroactive application to all cases not yet final at the time of its decision, that language was ommitted [sic ] in its published opinion.
“Petitioner, upon learning of the Shirley, supra, decision, did contact appellate counsel and advised him that the witness Fernando had ben [sic ] subjected to hypnosis during petitioners [sic ] first trial. However, because trial counsel had not objected at the time of trial, there were no records from which appellate counsel could ascertain the fact of the matter․ Appellate counsel made earnest efforts to secure information and the copy of the tape recording reflecting the hypnotic session from trial counsel George Bumanglag to ascertain the possibility of a Shirley issue, however, appellate counsels [sic ] efforts, including those of petitioner and petitioners [sic ] family, failed to motivate trial counsel to make the copy of the tape recording and related information available to appellate counsel prior to the expiration of the time in which to include the issue either at the time of filing of Petition For Rehearing in the appellate court, or the filing of Petition For Hearing to the California Supreme Court, therefore the issue was never raised on appeal․
“Appellate counsels [sic ] tenure/appointment terminated with the denial of Petition For Hearing to the California Supreme Court on May 27, 1982, and the attached declaration ․ will reflect that appellate counsel did not succeed in obtaining the necessary information or the tape recording of the hypnotic session from trial counsel until September 2, 1982, long after petitioners [sic ] opportunity to raise the issue on appeal was past and appellate counsels [sic ] appointment had terminated.
“Thereafter, on November 21, 1984, the California Supreme Court handed down its decision in People v. Guerra, [1984] 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635], in which the court reaffirmed its holding in Shirley, supra, banning the use of testimony after a witness has undergone hypnotic questioning about the subject matter of the events in in [sic ] issue and held that the holding in Shirley established a ‘new rule of law’ and was to be applied retroactively ‘to all cases not yet final on the date of the Shirley decision, or, not yet final on March 11, 1982.’
“Petitioner first had an opportunity to read and review the Guerra decision at the institution where he is presently confined in July of 1985, because the decision was unavailable at the institutions [sic ] library and petitioner had no access to it prior to July 1985․”
Generally, absent extraordinary circumstances, the time and place to secure the adjudication of the admissibility of evidence is at trial and on appeal. (In re Rinegold (1970) 13 Cal.App.3d 723, 730, 92 Cal.Rptr. 18; In re Shipp (1965) 62 Cal.2d 547, 551–552, 43 Cal.Rptr. 3, 399 P.2d 571.) Petitioner counters that the failure to object does not bar review when trial counsel, acting in accordance with the state of the law at the time of trial, fails to raise an objection. (Relying on People v. Kitchens (1956) 46 Cal.2d 260, 262–263, 294 P.2d 17; People v. De Santiago (1969) 71 Cal.2d 18, 22–28, 76 Cal.Rptr. 809, 453 P.2d 353; People v. Beagle (1972) 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1.)1
In People v. Kitchens, supra, the court created the following exception to the requirement of an objection at trial as follows:
“This case was tried before the decision in People v. Cahan, [1955] 44 Cal.2d 434 [282 P.2d 905], at a time when the trial court was bound by the earlier decisions of this court that illegally obtained evidence was admissible, and the record demonstrates that it would have admitted the evidence even had objections been made․ Although we adhere to the rule that ordinarily the admissibility of evidence will not be reviewed on appeal in the absence of a proper objection in the trial court, we conclude that it is not applicable to appeals based on the admission of illegally obtained evidence in cases that were tried before the Cahan decision․ A contrary holding would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal. Moreover, in view of the decisions of this court prior to People v. Cahan, supra, an objection would have been futile, and ‘The law never does nor requires idle acts.’ (Civ.Code, § 3532.)” (People v. Kitchens, supra, 46 Cal.2d at pp. 262–263, 294 P.2d 17.)
This exception was more fully explained in People v. De Santiago, supra, where the court stated:
“The crucial question confronting us in the case at bench is whether or not the rule announced in Gastelo [People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706], the content of which we examine below, represented such a substantial change in the former rule as to excuse an objection anticipating that decision. We are guided in this inquiry not by metaphysical considerations as to what the law ‘was' preceding Gastelo, but by practical considerations as to what competent and knowledgeable members of the legal profession should reasonably have concluded the law to be. This is the approach undertaken by us in Kitchens, where we emphasized the reasonable expectations of counsel at the time of trial: ․” (People v. De Santiago, supra, 71 Cal.2d 18, 23, 76 Cal.Rptr. 809, 453 P.2d 353.)
Following an extensive discussion of the status of the appellate law prior to Gastelo, the De Santiago court stated as follows:
“From the foregoing summary it is manifest that, prior to the Gastelo case, competent and knowledgeable defense counsel concerned with preventing the admission of evidence obtained by means of an entry which failed to comply with the provisions of section 844 or section 1531 could only have concluded that compliance with these sections was excused by law without any showing of particular exigency whenever the nature of the evidence sought was such as to facilitate easy disposal. In Gastelo, however, we held precisely to the contrary: ․
“We do not believe that we can demand of defendants or their counsel the prescience necessary to anticipate that a rule so deeply rooted as that whose history we have outlined above would be suddenly extirpated. ‘A contrary holding would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.’ (People v. Kitchens, supra, 46 Cal.2d 260, 263 [294 P.2d 17].) We therefore hold that defendant is not precluded from raising for the first time on this appeal his objection based upon section 844 of the Penal Code.” (People v. De Santiago, supra, 71 Cal.2d at pp. 27–28, 76 Cal.Rptr. 809, 453 P.2d 353, fns. omitted.)
Kitchens and De Santiago stand for the proposition that the failure to make an objection does not constitute a waiver only if the former law as perceived by reasonable counsel would have mandated the trial court to deny the objection. (See, e.g., People v. Alvidrez (1958) 158 Cal.App.2d 299, 301, 322 P.2d 557; People v. Myers (1968) 262 Cal.App.2d 307, 311–312, 68 Cal.Rptr. 636; People v. Crosslin (1967) 251 Cal.App.2d 968, 982, 60 Cal.Rptr. 309.)2
We hold that the Kitchens–De Santiago exception is inapplicable here because the issue of whether posthypnotic testimony was admissible in California had not been expressly decided in an appellate decision before Shirley. As noted in People v. Guerra (1984) 37 Cal.3d 385, 411, 208 Cal.Rptr. 162, 690 P.2d 635, prior to Shirley, “because there was no ‘old rule’ to the contrary in California, Shirley did not constitute a ‘clear break with the past.’ ”
The court stated:
“First, it is undisputed that Shirley established a new rule of law: it did more than merely explain a prior holding or apply an existing precedent to different facts, and it was not clearly foreshadowed by previous decisions of this court.
“Second, upon careful review of the case law it appears there was no previous California rule to the contrary, within the meaning of the retroactivity precedents. Few opinions of our courts had mentioned the phenomenon of hypnosis before we discussed it in depth in Shirley, and fewer still had addressed its reliability as a device to restore the memory of a witness.” (People v. Guerra, supra, 37 Cal.3d at pp. 406–407, 208 Cal.Rptr. 162, 690 P.2d 635.)
In essence, the issue of the admissibility of hypnotized testimony was an open question in California at the time the instant case went to trial. The few California cases decided prior to petitioner's trial to pass upon the nature of hypnosis as a scientific technique questioned its reliability and the reliability of statements made under hypnosis. (People v. Ebanks (1897) 117 Cal. 652, 665–666, 49 P. 1049; cf. People v. Busch (1961) 56 Cal.2d 868, 878, 16 Cal.Rptr. 898, 366 P.2d 314.) On the other hand, the prevailing rule in other jurisdictions at the time of trial here (1978) and in People v. Shirley (June 1979) was that the fact of hypnosis went to the weight, not the admissibility, of the testimony. (People v. Shirley, supra, 31 Cal.3d at pp. 54–55, fn. 33, 181 Cal.Rptr. 243, 723 P.2d 1354.) In Guerra, the court noted that while this was the “prevailing rule” when the Shirley case went to trial, the law was nevertheless “in a state of flux.” (People v. Guerra, supra, 37 Cal.3d at p. 411, 208 Cal.Rptr. 162, 690 P.2d 635.) Thus, at the time of petitioner's trial the state of the appellate law would not necessarily have rendered an objection futile. It is important to note that the general rule is the failure to object results in a waiver; Kitchens and De Santiago merely carved out an exception to the rule. The obvious intent was to avoid penalizing a defendant for his counsel's acquiescence to the prevailing law. Where there is no prevailing law it cannot be said that counsel has acquiesced in anything. Consequently, there are “no special circumstances which would justify our departure from the ordinary rule that errors not challenged at trial cannot serve as the grounds for reversal on appeal.” (People v. Flores (1968) 68 Cal.2d 563, 567, 68 Cal.Rptr. 161, 440 P.2d 233, overruled by People v. De Santiago, supra, 71 Cal.2d 18, 28, fn. 7, 76 Cal.Rptr. 809, 453 P.2d 353.)
Finally, it is noted that the Supreme Court has held that Kelly–Frye 3 error can be waived by the failure to make an appropriate objection even in the first cases to apply Kelly–Frye to bar a new type of scientific evidence. (People v. Stanley (1984) 36 Cal.3d 253, 261, 203 Cal.Rptr. 461, 681 P.2d 302; People v. Bledsoe (1984) 36 Cal.3d 236, 247, 203 Cal.Rptr. 450, 681 P.2d 291 [a relevancy objection held sufficient to preserve Kelly–Frye issue for appeal].)
For the above reasons we hold that the failure to object to the posthypnotic testimony of Fernando at petitioner's 1978 trial, knowing that he had been hypnotized and questioned regarding the subject matter of his testimony, precludes the raising of the issue by either direct appeal or by way of a petition for writ of habeas corpus. For the same reasons, we decline to follow the holding in People v. Parrison (1982) 137 Cal.App.3d 529, 187 Cal.Rptr. 123 that an objection to posthypnotic testimony is not a condition precedent to raising Shirley error inasmuch as that holding was based upon the erroneous assumption that Shirley constituted a supervening change in the law. The entire discussion there was in a footnote as follows:
“Parrison's failure to object at trial on the basis of Shirley 's rationale does not prevent his raising the issue on appeal. Although a party's failure to object at trial normally precludes an appeal on that point (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048] ․), a supervening change in the law permits the appellate court to consider the issue. (People v. De Santiago (1969) 71 Cal.2d 18, 22–23 [76 Cal.Rptr. 809, 453 P.2d 353]․) Shirley substantially altered the law regarding the admissibility of a hypnotized witness' testimony. (See Shirley, 31 Cal.3d at p. 77 [181 Cal.Rptr. 243, 723 P.2d 1354] conc. and dis. opn. of Kaus, J.)” (People v. Parrison, supra, at p. 538, fn. 8, 187 Cal.Rptr. 123.)
In light of the above conclusion, we deem it unnecessary to address the other issues raised in this case. We follow the example of Guerra, supra, where the Supreme Court declined to render an advisory opinion on whether various forms of prehypnotic testimony, including trial testimony by the witness as to facts he claims to have remembered before hypnosis, might be admissible despite the holding in Shirley. (People v. Guerra, supra, 37 Cal.3d at pp. 428–429, fn. 45, 208 Cal.Rptr. 162, 690 P.2d 635.) In Shirley, the hypnotic session was directed at “filling the gaps” in the victim's version of how the alleged rape occurred (People v. Shirley, supra, 31 Cal.3d at p. 23, 181 Cal.Rptr. 243, 723 P.2d 1354); the court concluded that her testimony was rendered inadmissible as to “the events that were the subject of the session.” (Id. at p. 68, 181 Cal.Rptr. 243, 723 P.2d 1354.) Here, the hypnotic session was directed almost entirely to events which preceded and were collateral to the crime itself. The critical evidence against petitioner consisted of the admissions he made to Fernando after returning from the murders. Fernando's prehypnotic and posthypnotic testimony as to the nature of these admissions was substantially identical. Petitioner's description of the murders to Fernando mirrored the out-of-court statements of codefendant Perez which specifically identified petitioner as the person who administered the fatal wounds to the victims. Moreover, if petitioner is correct that he did not make these admissions to Fernando, then the fact that Fernando was hypnotized did not restore, improve or otherwise enhance any memories of Fernando since Fernando must have been lying from the time he was first interviewed by the police. Nevertheless, as noted above, we need not determine whether, as suggested by respondent, these circumstances warrant the creation of an exception to Shirley or a conclusion that any error in admitting Fernando's posthypnotic testimony did not “․ violate the fundamental aspects of fairness [or] result in a miscarriage of justice.” (In re Winchester (1960) 53 Cal.2d 528, 532, 2 Cal.Rptr. 296, 348 P.2d 904.)
The petition for writ of habeas corpus is denied.
FOOTNOTES
2. Fernando Borbon was the key prosecution witness. He was given immunity for testifying in the case. As far as Fernando remembered, the scope of the immunity was that it dismissed a pending narcotics case or any warrants or possible charges apparently for passing checks for insufficient funds and that he would be immune from any charges in connection with the murders.
3. Clifton had testified at Perez' trial. Apparently, an arrangement had been worked out so that she would go to a diversion program for a drug charge. She testified that no promises or inducements had been made in return for her testimony in appellant's trial.
4. Fernando was a heroin addict at the time. He also testified that he saw appellant inject two to three times more or less “that day,” and that appellant had at least a $50–a–day habit.
5. Fernando testified at trial that he saw appellant with a knife around the time of the murder and the knife had a blade of at least six inches.
1. Petitioner also notes that in People v. Burroughs (1987) 188 Cal.App.3d 1162, 233 Cal.Rptr. 872 and People v. Glaude (1983) 141 Cal.App.3d 633, 190 Cal.Rptr. 479 there was no indication of an objection having been made at trial, yet the courts reached the merits of the claim. However, “Cases are not authority for propositions not considered.” (In re Tartar (1959) 52 Cal.2d 250, 258, 339 P.2d 553.) Therefore, reference to those cases is not helpful to the issue here.
2. The California Supreme Court recently decided two cases in which Shirley was applied. In People v. Caro (1988) 46 Cal.3d 1035, 1048, 251 Cal.Rptr. 757, 761 P.2d 680, the court noted that at trial, defendant moved to exclude the testimony of a witness on the ground that his hypnotic experience had rendered him incompetent as a witness. In People v. Johnson (1988) 47 Cal.3d 576, 253 Cal.Rptr. 710, 764 P.2d 1087, there is no clear indication that an objection was made at trial. However, in reversing defendant's rape conviction, the court noted that the Attorney General conceded that the Shirley–Guerra rule applied to the case and then determined the testimony of the hypnotized victim was improperly admitted. (Johnson, supra, at p. 600, 253 Cal.Rptr. 710, 764 P.2d 1087.)
3. People v. Kelly (1976) 17 Cal.3d 24, 30–32, 130 Cal.Rptr. 144, 549 P.2d 1240; Frye v. United States (D.C.Cir.1923) 293 F. 1013, 1014.
BEST, Acting Presiding Justice.
ARDAIZ and GEO. A. BROWN,* JJ., concur.
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Docket No: No. F009482.
Decided: March 31, 1989
Court: Court of Appeal, Fifth District, California.
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