THOMPSON v. << (1994)

The petition for writ of habeas corpus filed on November 12, 1993, is denied as untimely because petitioner has failed to explain adequately the reason for the substantial delay in filing the petition.  (In re Clark (1993) 5 Cal.4th 750, 765;  In re Swain (1949) 34 Cal.2d 300, 302.)

The petition also is denied on the following additional grounds.

Petitioner's claim that cognizable groups intentionally were excluded from the grand jury that indicted him is denied because petitioner forfeited this claim by failing to raise it in the trial court or on appeal.  (In re Harris (1993) 5 Cal.4th 813, 829;  In re Dixon (1953) 41 Cal.2d 756, 759.)   This claim also is denied on the merits.

Petitioner's claim that the superior court lacked jurisdiction over his case because, after petitioner was held to answer, the state failed to “re-file the indictment as a complaint” is denied, because this court considered and rejected this contention on appeal.  (People v. Thompson (1990) 50 Cal.3d 134, 154-155.)   Petitioner thus is procedurally barred from raising the claim in a petition for writ of habeas corpus.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus (1965) 62 Cal.2d 218, 225.)   The claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 154-155.)

Petitioner's claim that he did not knowingly and intelligently waive his right to have a preliminary hearing held within 60 days of the arraignment, that the delay in the preliminary hearing entitled him to a dismissal, and that this second dismissal of the accusatory pleading would have been a bar to further proceedings, is procedurally barred because petitioner fails to allege that he preserved the issue by raising it in the trial court.   This claim also is procedurally barred because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.  (People v. Gates (1987) 43 Cal.3d 1168, 1190-1192.)

By failing to object in the trial court, petitioner forfeited his claim that the trial court erred in conducting the “death-qualification phase of the voir dire,” the “penalty phase re-hearing voir dire,” and the selection of alternate jurors either in chambers or “in closed court.”  (People v. Thompson, supra, 50 Cal.3d at pp. 156-157.)   This claim also is denied because it was considered and rejected on appeal, and petitioner thus is procedurally barred from raising it in a petition for writ of habeas corpus.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   The claim also is denied on its merits because, regardless whether the trial court erred in conducting voir dire in chambers, such error is not “of a fundamental jurisdictional or constitutional type” that could entitle petitioner to habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that the trial court erred in excusing, without further inquiry, any prospective juror who claimed hardship is procedurally barred, because this claim was considered and rejected on appeal, and petitioner thus is procedurally barred from raising it in a petition for writ of habeas corpus.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   The claim also is denied on the merits, both because the trial court did not act unreasonably (People v. Thompson, supra, 50 Cal.3d at pp. 157-159), and because, regardless whether the trial court erred in this regard, such error is not “of a fundamental jurisdictional or constitutional type” that could entitle petitioner to habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that certain pretrial statements made to the police should have been suppressed as the fruit of an illegal search of his apartment conducted by police officers is procedurally barred both because it could have been, but was not, raised on appeal (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759), and because “the question whether evidence was admitted at trial in violation of the Fourth Amendment is not cognizable on habeas corpus.  [Citation.]”  (In re Harris, supra, 5 Cal.4th at p. 830.)

Petitioner's contentions that the statements he made to the police on August 30, 1981, were inadmissible because they were coerced and were induced in violation of Miranda v. Arizona (1966) 384 U.S. 436 are procedurally barred, because they were considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   These claims also are denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 159-170.)   Petitioner's contentions that his statements were induced in violation of Massiah v. United States (1964) 377 U.S. 201 and United States v. Henry (1980) 447 U.S. 264 are procedurally barred, because they could have been, but were not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)

Petitioner's claim that a precrime photograph of the victim and numerous photographs of the victim's dead body taken at the crime scene and during the autopsy were irrelevant, and offered by the prosecutor for the sole purpose of arousing the sympathy of the jurors at the penalty-phase retrial, was considered and rejected on appeal and, therefore, is procedurally barred.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   Petitioner's claim that these photographs erroneously were admitted into evidence at the guilt phase is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   Both claims also are denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 181-183.)

Petitioner's claim that the trial court erred in excluding prospective jurors who automatically would vote against the death penalty is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at p. 157.)   Petitioner's claim that the trial court erred in concluding that several jurors automatically would vote against the death penalty is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied because it does not include the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that the evidence was insufficient to prove that he committed sodomy upon the victim by means of force or fear while the victim was alive, or that he killed the victim during perpetration of the sodomy, is procedurally barred, because this court considered and rejected this contention on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 171-172.)

We reject on the merits petitioner's claim that this court erred in applying the rule that Penal Code section 654 does not prohibit petitioner's conviction of both sodomy and lewd conduct with a child under the age of 14 years (People v. Thompson, supra, 50 Cal.3d at pp. 172), a rule announced in People v. Pearson (1986) 42 Cal.3d 351, 358, which was decided three years after petitioner's trial.

Petitioner's claim that the trial court erred in instructing the jury, after it had begun deliberations, that child endangering is a lesser, included offense of kidnapping is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 172-173.)

Petitioner's claims that his trial counsel was ineffective in agreeing to permit the court reporter to enter the jury room with no other court personnel present, in order to read back testimony during the guilt-phase deliberations, and that the trial judge erred by entering the jury room “to submit a verdict form for a lesser-included offense,” are procedurally barred, because they were considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   These claims also are denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 173-175.)

Petitioner's claim that the jury committed misconduct by using a dictionary during guilt-phase deliberations is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied because petitioner has failed to demonstrate it is the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)   This claim also is denied on the merits.

Petitioner's claim that the trial court erred in failing to instruct the jury that it had to agree unanimously on the same theory of first degree murder is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.  (Schad v. Arizona (1991) 501 U.S. 624, 630, 643-644 [115 L.Ed.2d 555, 564, 572-573, 111 S.Ct. 2491, 2496, 2503];  People v. Pride (1992) 3 Cal.4th 195, 249.)

Petitioner's claim that he was not afforded adequate notice that he could be convicted of “capital murder” if he committed the murder either during the commission of, or during the immediate flight after the commission of, sodomy or lewd conduct is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at p. 176.)

Petitioner's claim that the jury instructions erroneously failed to define the “technical legal” terms “while engaged in the commission of” and “immediate flight after” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   It also fails on the merits, because petitioner has failed to demonstrate it is the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)   This claim also fails on the merits.  (People v. Raley (1992) 2 Cal.4th 870, 901.)

Petitioner's claim that the jury was instructed on the basis of the definition of malice contained in Penal Code section 188, as amended effective subsequent to the crime, in violation of the prohibition against ex post facto laws, is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also fails on the merits, because petitioner has failed to demonstrate how this error was prejudicial, and thus has not established the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

We deny on the merits petitioner's claim that this court erred in applying retroactively the decision in People v. Anderson (1987) 43 Cal.3d 1104.  (People v. Poggi (1988) 45 Cal.3d 306, 326-327.)

Petitioner's claim that the jury instruction defining what constitutes a lewd or lascivious act is vague and overbroad is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)

Petitioner's claims that the trial court erroneously instructed the jury that child endangering is a lesser included offense of kidnapping, that the jury instructions were contradictory as to whether the identity of the perpetrator is an element of a crime, that the trial court erred in refusing his requests to instruct the jury “as to the specific evidence exonerating petitioner,” and that petitioner need not prove his alibi defense beyond a reasonable doubt, are procedurally barred because they could have been, but were not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   These claims also fail on the merits, because petitioner has not demonstrated they are the type of fundamental jurisdictional or constitutional errors that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that the trial court erred in instructing the jury to consider “the existence of any special circumstance[s] found to be true” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.

Petitioner's claim that the trial court erred in instructing the jury, in accordance with former CALJIC No. 8.84.1, to consider in determining the penalty “[t]he presence or absence of criminal activities by the defendant which involves the use or attempted use of force or violence ․” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits, because petitioner has failed to demonstrate this error resulted in prejudice (People v. Miranda (1987) 44 Cal.3d 57, 106;  People v. Melton (1988) 44 Cal.3d 713, 763) and, therefore, has failed to establish it is the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that the trial court erred in instructing the jury, in accordance with former CALJIC No. 8.84.1, to consider in determining the penalty “[t]he presence or absence of any felony conviction” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   We also deny this claim on the merits.  (People v. Melton, supra, 44 Cal.3d at p. 764.)

Petitioner's claim that the trial court erred in instructing the jury to consider, in determining the penalty, whether “the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance,” because the jury was not told to consider this only as a mitigating, and not an aggravating factor, is procedurally barred, because this claim could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.   Petitioner's claim that this instruction was erroneous because the jury may have concluded it could not consider a mental defect that was not “extreme” is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 183-184.)

Petitioner's claim that the trial court erred in instructing the jury it could consider “the effects of intoxication” only if such intoxication affected “the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 183-183.)

Petitioner's claim that the trial court erred in failing to remove from the factors (listed in former CALJIC No. 8.84), to be considered in determining the penalty, those factors that were irrelevant, is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 185.)

Petitioner's claims that the trial court failed to instruct the jury that a factor found not to be mitigating is not automatically aggravating, and failed to instruct the jury which factors listed in former CALJIC 8.84.1 were mitigating and which were aggravating, are procedurally barred, because they could have been, but were not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   These claims also are denied on the merits.  (People v. Clark (1993) 5 Cal.4th 950, 1040-1041.)

Petitioner's claim that the trial court erred in instructing the jury, in accordance with former CALJIC No. 8.84, factor (k), that the jury could consider in determining the penalty any other factor “which extenuates the gravity of the crime” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   We also deny this claim on the merits, because petitioner has failed to demonstrate that an examination of the totality of the penalty instructions given, and the arguments made to the jury, revealed that the jury may have been misled to his prejudice.  (People v. Hamilton (1988) 45 Cal.3d 351, 372.)   Thus, petitioner has failed to demonstrate that the giving of this instruction is the type of fundamental jurisdictional or constitutional error that could justify habeas corpus relief.  (In re Harris, supra, 5 Cal.4th 813, 828.)

Petitioner's claim that the trial court erred in failing to instruct the jury it must find unanimously that petitioner had committed a prior offense, before such offense could be considered as a factor in aggravation, is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at p. 185.)

Petitioner's claim that the trial court erred in refusing to give Defendant's Special Instruction No. 10, which included a list of factors petitioner asserted should be considered in mitigation, is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   We also deny this claim on the merits.  (People v. Gordon (1990) 50 Cal.3d 1223, 1277.)

Petitioner's claim that the trial court erred in instructing the jury that, if the aggravating factors outweigh the mitigating factors, the jury “shall” impose the death penalty is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at p. 184.)

Petitioner's claim that the trial court erred by adding to CALJIC No. 2.70, which instructs the jury to view with caution evidence of an oral confession by the defendant, the phrase “unless such confession or admission has been recorded electronically or by a court reporter,” is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   We also deny this claim on the merits.

Petitioner's claim that the trial court erred in refusing to give Defendant's Special Instruction No. 13, which stated that, if petitioner were sentenced to life without the possibility of parole, he never would be released from prison, is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   We also deny this claim on the merits.  (People v. Gordon, supra, 50 Cal.3d 1223, 1276.)

Petitioner's claim that he did not knowingly and intelligently waive his right to be present during discussions between the court and counsel concerning proposed jury instructions is denied on the merits.  (People v. Morris (1991) 53 Cal.3d 152, 210.)

Petitioner's claims that the prosecutor committed misconduct on several occasions during the trial are procedurally barred, because they could have been, but were not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)

Petitioner's claim that trial counsel Ronald Brower was ineffective is denied on the merits, because petitioner has failed to provide, or explain his failure to provide, a declaration from Brower disclosing whether Brower had valid, tactical reasons for his actions or omissions.

Petitioner's claim that trial counsel Ronald Brower was ineffective in failing to challenge the composition of the indicting grand jury is denied on the merits, because petitioner has failed to demonstrate that such a challenge would have been successful.

Petitioner's claim that trial counsel Ronald Brower was ineffective in failing “to attempt to rehabilitate” 10 prospective jurors who expressed their opposition to the death penalty, and were excused by the trial court, is denied on the merits.  (People v. McPeters (1992) 2 Cal.4th 1148, 1177.)

Petitioner's claim that trial counsel Ronald Brower was ineffective in failing to challenge for cause prospective juror Joan Potter and, instead, exercising a peremptory challenge to have her excused, is denied on the merits.  (People v. Danielson (1992) 3 Cal.3d 691, 713.)

Petitioner's claim that trial counsel Ronald Brower was ineffective in failing to exercise a peremptory challenge to have juror Robert Gauger excused, because Gauger had signed a petition to recall former Chief Justice Rose Bird, is denied on the merits.  (See People v. Montiel (1993) 5 Cal.4th 877, 911.)

Petitioner's claim that trial counsel Ronald Brower was ineffective in failing “to prepare and deliver a timely and concise opening statement” is denied on the merits.  (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.)

Petitioner's claim that the trial court erroneously failed to exercise its discretion, following mistrial of the penalty phase, as to whether to conduct a penalty phase retrial or instead sentence petitioner to life in prison without possibility of parole, is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 176-177.)

Petitioner's claim that the prosecutor's “second amended notice” of aggravating evidence was untimely, because it was filed after the mistrial of the original penalty phase, is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 177-178.)

Petitioner's claim that the circumstance that three members of the original jury voted in favor of a sentence of life without the possibility of parole was a mitigating circumstance that the second jury should have been allowed to consider during the retrial of the penalty phase, is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at p. 178.)

Petitioner's claim that the prosecutor exercised peremptory challenges to excuse jurors on the basis of race is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 178-179.)

Petitioner's claim that he was denied a fair trial because the trial court excluded mitigating evidence, consisting of letters petitioner had written to a fellow prisoner, is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.  (People v. Livaditis (1992) 2 Cal.4th 759, 780.)

Petitioner's claim that he was denied a fair penalty hearing, because the trial court read the probation report prior to denying petitioner's automatic motion to modify the judgment of death, is procedurally barred, because it could have been, but was not, raised on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Dixon, supra, 41 Cal.2d 756, 759.)   This claim also is denied on the merits.  (People v. Gonzalez (1990) 51 Cal.3d 1179, 1238;  People v. Cudjo (1993) 6 Cal.3d 585, 636.)

Petitioner's claims that counsel Michael Horan was ineffective at the penalty phase retrial in failing to (1) bring a motion for new trial, (2) interview the jurors who were unable to reach a verdict at the penalty phase of the first trial, (3) present evidence of the value of petitioner's life to his family and friends, (4) introduce evidence to support a lingering doubt as to petitioner's guilt, (5) relitigate the validity of the indictment, the admissibility of evidence seized from petitioner's apartment, and the voluntariness of petitioner's confession, (6) request discovery of “previous instances and complaints against or misconduct by petitioner's interrogators,” (7) object to the trial court's excusal, on the basis of hardship, of 76 members of the jury venire, without inquiry into the reasons for such hardship, (8) object to the trial court's practice of having prospective jurors sit in the witness stand, (9) “adequately rehabilitate at least four scrupled jurors who stated they were disinclined to vote for the death penalty,” (10) “adequately develop the basis for his cause challenges against jurors Larry A. Richardson and Donald McTaggart,” (11) prevent the prosecutor from telling prospective jurors during voir dire that, if the aggravating factors outweighed those in mitigation, they were required to vote for the death penalty, and that a sentence of life without the possibility of parole meant petitioner likely would be released on parole, (12) “object to the prosecutor's invocation of God's image in reference to the murder victim,” (13) ask prospective jurors whether they would consider certain mitigating evidence in arriving at a penalty verdict, (14) “secure a ruling regarding the admissibility of evidence of petitioner's alleged prior convictions in order to make an informed tactical decision whether to question prospective jurors on the potential effect” of such evidence, (15) “prevent the prosecutor from characterizing mental health professionals as crazy doctors,” (16) investigate and challenge the validity of petitioner's two prior convictions for child molestation, and (17) impeach prosecution witness Stony Blades with a prior felony conviction, are denied on the merits.

Petitioner's claim that counsel Michael Horan was ineffective at the penalty phase retrial in failing to object to the prosecutor's misstatement that “the jurors could consider the effect of the victim's death on his family as a circumstance in aggravation,” is denied on the merits.  (People v. Thomas (1992) 2 Cal.4th 489, 535-536.)

Petitioner's claim that counsel Michael Horan was ineffective at the penalty phase retrial in failing to exercise peremptory challenges to have several jurors excused is denied on the merits.  (People v. Montiel, supra, 5 Cal.4th 877, 911.)

Petitioner's claim that counsel Michael Horan was ineffective at the penalty phase retrial in failing to make an opening statement is denied on the merits.  (People v. Mitcham, supra, 1 Cal.4th 1027, 1059.)

Petitioner's claim that counsel Michael Horan was ineffective at the penalty phase retrial in failing to cross-examine several prosecution witnesses effectively is denied on the merits.  (People v. Cox (1991) 53 Cal.3d 618, 662.)

Petitioner's claims that counsel Michael Horan was ineffective at the penalty phase retrial (1) in presenting the testimony of psychologist Dr. Anderson, (2) in failing to object to the prosecutor's cross-examination of Dr. Anderson regarding whether it was likely that petitioner killed the victim to prevent him from testifying against petitioner, (3) in failing to call as witnesses several members of petitioner's family and several witnesses who testified at the initial trial of the penalty phase, (4) in failing to object to the prosecutor's arguments that life without the possibility of parole “does not mean what it says,” that the jurors were required to vote in favor of the death penalty if the aggravating factors outweighed the mitigating factors, that petitioner killed the victim because the latter was a witness, and that petitioner robbed the victim in order to obtain money for gasoline, and (5) in making his closing argument, because Horan allegedly told the jury he hated petitioner, invited the jury to consider sympathy for the victim and his family, told the jury, “the law says that in deciding penalty, you weigh factors, and I guess whichever one is heaviest wins,” “told the jurors that if they hated petitioner and felt remorse for the victim's family [sic] those factors could outweigh everything else,” referred to a newspaper article that described the evidence against petitioner as overwhelming, and referred to graphic photographs of the victim, are denied on the merits.

Petitioner's claim that counsel Michael Horan was ineffective at the penalty phase retrial in failing to seek a jury instruction that life without the possibility of parole “means what it says” is denied on the merits.  (See People v. Gordon, supra, 50 Cal.3d 1223, 1277;  People v. Clark, supra, 5 Cal.4th 950, 1041.)

Petitioner's claims that counsel Michael Horan was ineffective at the penalty phase retrial in “throwing up his hands” in frustration during a discussion concerning jury instructions, held outside the presence of the jury, in failing to make a motion for new trial both as to the guilt phase and the penalty phase, and in failing to introduce mitigating evidence at the automatic motion for modification of the death verdict, are denied on the merits.

Petitioner's claim that, because other defendants have committed murders “of greater severity” than petitioner's crime and have received sentences of life without the possibility of parole, petitioner's death sentence is “cruel, unusual, exceptional, freakish, disproportionate and unconstitutional,” is procedurally barred, because it was considered and rejected on appeal.  (In re Harris, supra, 5 Cal.4th 813, 829;  In re Waltreus, supra, 62 Cal.2d 218, 225.)   This claim also is denied on the merits.  (People v. Thompson, supra, 50 Cal.3d at pp. 185-187.)

Petitioner's claims that the listed aggravating and mitigating factors were too vague to guide the jury adequately in its determination of the appropriate penalty, that the trial court erred in instructing the jury to consider the circumstances of the offense, “without further limitation or guidance,” that the trial court erred in failing to instruct the jury that the absence of mitigating circumstances does not constitute a circumstance in aggravation, and that the trial court erred in instructing the jury to consider petitioner's age without providing the jury with further guidance, are denied on the merits.  (People v. Clark, supra, 5 Cal.4th 950, 1040-1041.)

Petitioner's claim that the trial court erred in failing to instruct the jury as to the definitions of the terms “criminal” and “violent” is denied on the merits.  (People v. Bacigalupo (1993) 6 Cal.4th 457, 478.)

Petitioner's claim that his appellate counsel on the direct appeal, Hugh Levine, was ineffective in failing to raise the aforementioned search and seizure issues in the automatic appeal, and in failing to file a petition for writ of habeas corpus in state court alleging that trial counsel was ineffective, is denied on the merits.

On all claims save one, I concur in the order of the court insofar as it denies condemned prisoner Robert Jackson Thompson's petition for writ of habeas corpus on the merits.

But as to the claim that trial counsel provided Thompson ineffective assistance at the penalty phase retrial in violation of the Sixth Amendment to the United States Constitution (as applied to the states through the Fourteenth Amendment's due process clause) and article I, section 15 of the California Constitution, I dissent. I would order the Director of Corrections to show cause why the judgment imposing the sentence of death should not be vacated on that basis.

I write separately to make it plain that I would not deny the habeas petition or any of its claims on the ground that Thompson “has failed to explain adequately the reason for the substantial delay in filing the petition.”

The habeas petition was filed on November 12, 1993, less than 2 1/2 months after present counsel were appointed on September 1, 1993.

To demonstrate “good cause” for any “substantial delay” (Cal. Supreme Ct., Policies Regarding Cases Arising From Judgments of Death (hereafter Death Judgment Policies), Policy 3, Std. 1-2 [West's Cal. Rules of Court (State ed. 1994) p. 952]) during the period of prior counsel's representation from his appointment on April 24, 1984, until his relief on September 1, 1993, Thompson alleges in pertinent part that 'prior counsel did not investigate the existence of claims for habeas corpus relief.” (Boldface omitted.) His allegation is sufficient.

To be sure, prior counsel was not under any duty to file a habeas petition. But he was under a duty to investigate potential habeas claims. (Cal. Supreme Ct., supra, Death Judgment Policies, Policy 3, Std. 1-1 [West's Cal. Rules of Court (State ed. 1994) p. 951].)

The allegation of prior counsel's default is verified by present counsel.

Perhaps more important, it is effectively admitted by prior counsel himself-and not in any mea culpa declaration in support of the petition. The compensation forms he submitted to the Clerk of this court reveal that he conducted the following habeas “investigation”-and no more-during the more than nine years of his representation. On the legal side, he discussed “state habeas issues” with the California Appellate Project (hereafter CAP) for less than 24 minutes after we affirmed the challenged judgment on February 8, 1990 (People v. Thompson (1990) 50 Cal.3d 134); he discussed these issues with CAP for 2 hours more and also read related materials for 6 minutes after the United States Supreme Court denied certiorari on October 1, 1990 (Thompson v. California (1990) 498 U.S. 881). On the factual side, to judge from the absence of any incurred expenses, he apparently did nothing at all. Unsurprisingly, he never even filed an expense application. It deserved noting that he conducted this habeas ‘investigation’ about a year after this court expressly imposed the duty to investigate (Cal. Supreme Ct., supra, Death Judgment Policies, Policy 3, Std. 1-1 [West's Cal. Rules of Court (State ed. 1994) p. 951]) and allowed the incurring of reasonable expenses up to $3,000 without prior authorization (id., Policy 3, Std. 2-2.1 [West's Cal. Rules of Court (State ed. 1994) p. 952]).

Prior counsel's violation of his duty to investigate potential habeas claims plainly entails deficient performance under the Sixth Amendment and article I, section 15. His failure-or perhaps more accurately, his refusal-to discharge his obligation is conduct that falls below any objective standard of reasonableness under prevailing professional norms. (See People v. Ledesma (1987) 43 Cal.3d 171, 216).

Therefore, Thompson demonstrates “good cause” for any “substantial delay.” (See In re Clark (1993) 5 Cal.4th 750, 780 [implying that “[i]f ․ counsel failed to afford adequate representation in a prior habeas corpus [investigation], that failure may be offered in explanation and justification of the need to file [a substantially delayed] petition”].)

KENNARD and WERDEGAR, JJ., are of the opinion the petition should be denied only on the merits. MOSK, J., concurs in part and dissents in part.