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was not aware that defendant had instructed his family members not to cooperate with the defense investigation, had steadfastly refused to assist Miller, Maple, and defense investigator Sickler in any way with their investigation of a penalty phase defense, and had refused all contact or communication with counsel and the investigator, with the exception of two contacts with attorney Maple, one on July 12, 1990, five days before the scheduled start of the penalty trial, and the other on July 17, 1990, the day the penalty trial commenced.  In those two contacts with Maple, defendant confirmed that he had refused any interviews with Miller and investigator Sickler, and had instructed members of his family not to cooperate or assist in any investigation by the defense.  Defendant also agreed with Maple that as a result of his altercation with sheriff’s deputies in the jail, evidence from institutional records of his good conduct while incarcerated over the years should not be presented to the jury.

The record further reflects that the court was laboring under the mistaken assumption that this court’s 1985 decision in People v. Deere, supra, 41 Cal.3d 353 (Deere I), required counsel to present any available evidence in mitigation of penalty even over a defendant’s expressed objections.  This was not the state of the law, however, by the time defendant’s penalty phase was conducted in June 1990.

As we explained in People v. Deere (1991) 53 Cal.3d 705 (Deere II), in response to Deere’s claim that his counsel rendered ineffective assistance in failing to present evidence in mitigation:  “The claim is totally without merit, if not specious.  [¶] As noted earlier, we held in Deere I, supra, 41 Cal.3d 353, that defendant was denied adequate representation at the penalty phase as a result of counsel’s failure to present evidence in mitigation, notwithstanding defendant’s unequivocal desire that no such evidence be presented.  Defendant was represented at the penalty retrial by the same deputy public defender who had

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