IN RE: Raymond Luis PULUTI (1981)

During the pendency of his direct appeal (People v. Puluti, 174 Cal.Rptr. 597) from the merits of the judgment of conviction entered on a jury verdict finding him guilty of second degree murder (Pen.Code, § 187) of his wife as charged, defendant filed the instant petition for writ of habeas corpus pursuant to People v. Pope, 23 Cal.3d 412, 426–427, 152 Cal.Rptr. 732, 590 P.2d 859.   For the reasons set forth below, we have concluded that the petition must be denied.

 Habeas corpus is an appropriate remedy for the collateral attack on constitutional grounds only when there has been no opportunity to raise the constitutional issue on appeal (In re Rinegold, 13 Cal.App.3d 723, 725, 92 Cal.Rptr. 18;  In re Spencer, 63 Cal.2d 400, 406, 46 Cal.Rptr. 753, 406 P.2d 33;  In re Varnum, 63 Cal.2d 629, 47 Cal.Rptr. 769, 408 P.2d 97).

Here, defendant alleges that the prosecution knowingly suppressed material evidence, and that this fact was not known until after the judgment of conviction was entered.   Thus, defendant has the burden of showing that the suppression was deliberate and that the evidence was material (In re Lessard, 62 Cal.2d 497, 508, 42 Cal.Rptr. 583, 399 P.2d 39).   He asserts that since the prosecution failed to disclose all substantial material evidence favorable to him (People v. Ruthford, 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341), he was deprived of a fair trial and due process (People v. Kiihoa, 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 349 P.2d 673).

The petition here is accompanied by the September 19, 1980, post-trial declaration of Marie M. Shelton, a prosecution witness at the trial.   The instant declaration states that during the trial, Mrs. Shelton received a telephone call from Investigator Sparks, who requested that she meet with him and Deputy District Attorney Sillman.   She became very upset during the telephone conversation.   The following morning, she met with Sparks and Sillman.   When she was questioned as to why she was upset during the preceding day's telephone conversation, Mrs. Shelton revealed:  1) she could not account for the whereabouts of her former husband ¹ (James Shelton, also a witness for the prosecution) on the evening of August 23, 1977, when the victim disappeared;  2) Mr. Shelton had stated to her:  “How do you know I didn't kill her?”  “How do you know I didn't have someone to do it and nail that S.O.B. for it?”  “How do you know I didn't stomp her to death?”

 Sillman then asked whether anyone else knew about James Shelton's statement and specifically whether the defense attorney had been informed.   After Mrs. Shelton replied negatively, Sillman instructed her not to speak to anyone about this matter, “to keep it that way.” ²

 Here, even assuming the truth of the allegations of the petition, there is no basis for habeas corpus relief.   Habeas corpus cannot be used to review or retry issues of fact (In re Dixon, 41 Cal.2d 756, 760, 264 P.2d 513) nor serve as a substitute for an appeal to review determinations of fact made on conflicting evidence or testimony (In re Bushman, 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727, disapproved on unrelated grounds in People v. Lent, 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545;  Marts v. Superior Court, 49 Cal.App.3d 517, 521, 122 Cal.Rptr. 687).   Even the existence of disputed issues of fact and grave conflicts in the evidence or the discovery of new evidence pertinent to them presents no ground for intervention by a reviewing court on habeas corpus.

Here, of course, defense counsel had ample opportunity to cross-examine Mrs. Shelton and did so.   Our Supreme Court in People v. Ruthford, supra, 14 Cal.3d at page 407, 121 Cal.Rptr. 261, 534 P.2d 1341, set forth the test for substantial materiality, namely, whether it bears directly on the question of guilt or innocence, and therefore deprived the defendant of a fair trial.

 To satisfy the requirement of substantial materiality, the petitioner must show that the evidence was such as may have affected the outcome of the trial (In re Wright, 78 Cal.App.3d 788, 811–813, 144 Cal.Rptr. 535).   As our Supreme Court explained in People v. Ruthford, supra, 14 Cal.3d at p. 409, 121 Cal.Rptr. 261, 534 P.2d 1341:  “The defendant must make a showing of substantial materiality and even after this showing is made reversal is not required if the prosecution establishes the failure to disclose was harmless beyond a reasonable doubt.”   The court noted that the prosecution does not have to risk reversal simply because a complete accounting of all conceivably exculpatory evidence is not made (Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706).   Mr. Shelton's alleged statements are not even “conceivably exculpatory” in light of the record in People v. Puluti, 174 Cal.Rptr. 597.   Defendant has not made the requisite showing that the allegedly suppressed evidence would have affected the outcome of the trial.   Thus, we need not reach the question of harmless error.

The petition for a writ of habeas corpus is denied.

FOOTNOTES

1.   At the time of the victim's disappearance in 1977, Marie and James Shelton were married, but apparently not getting along well.   By the time of trial, they had separated.   At the trial, the defense attempted to impeach her credibility by eliciting testimony that she believed that the victim's marriage to defendant had adversely affected her own marriage to James Shelton, the victim's former husband.

2.   The People's informal opposition to the writ is accompanied by the affidavits of Sillman, Sparks and Investigator Dubree stating that Sillman was not present when Sparks interviewed James and Marie Shelton and that no such statement was made by Sillman.   There appears to be no dispute about Mr. Shelton's statement.   In a habeas corpus proceeding, the petitioner has the burden of not only alleging, but also of proving, the facts on which he relies in his claim for relief (In re Lawler, 23 Cal.3d 190, 194–195, 151 Cal.Rptr. 833, 588 P.2d 1257).   The People's opposition and affidavits are informally submitted and not part of a formal return after issuance of an order to show cause which then becomes the principal pleading.   Here, since the petition did not state a prima facie case for relief, no order to show cause was issued (In re Lawler, supra, 195, 151 Cal.Rptr. 833, 588 P.2d 1257).

TAYLOR, Presiding Justice.

ROUSE and SMITH, JJ., concur.