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In re Bolden

May 4, 2009

IN RE CLIFFORD STANLEY BOLDEN ON HABEAS CORPUS.


The opinion of the court was delivered by: Kennard, J.

A jury convicted petitioner Clifford Stanley Bolden of the first degree murder (Pen. Code, § 187)*fn1 and robbery (§ 211) of Henry Michael Pedersen. The jury found that petitioner used a deadly weapon for both offenses (§ 12022, subd. (b)), and, as a special circumstance, that petitioner murdered Pedersen while engaged in the commission of the robbery (§ 190.2, subd. (a)(17)(A)). The jury fixed the penalty for the murder at death. The trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)) and sentenced petitioner to death. On petitioner's automatic appeal, this court affirmed the judgment. (People v. Bolden (2002) 29 Cal.4th 515.)

In a petition for a writ of habeas corpus, petitioner now seeks relief from the judgment. He has alleged, among other things, that the attorney appointed to represent him during the capital trial provided ineffective assistance by not specifically asking prospective jurors during voir dire about their prior acquaintance with victim Pedersen, and also that one of the trial jurors, Jose S., displayed bias and committed misconduct by not disclosing a prior relationship with Pedersen, by prejudging the penalty issue, and by failing or refusing to deliberate on penalty.*fn2 This court issued an order to show cause limited to these claims. In so doing, we made an implicit determination that petitioner failed to state a prima facie case as to the other claims alleged in the petition. (In re Sassounian (1995) 9 Cal.4th 535, 547.)

After the filing of respondent's return and petitioner's traverse, we determined that there were disputed questions of fact requiring an evidentiary hearing. We appointed as referee the Honorable Mary C. Morgan, a superior court judge, and directed her to supervise discovery, take evidence, and make findings of fact on these questions:

"1. Was Jose S[.], one of the trial jurors, personally acquainted with the victim, Henry Michael Pedersen? If so, when and under what circumstances did they become acquainted, and what was the nature of their relationship?

"2. If Jose S[.] was personally acquainted with Henry Michael Pedersen, would he have disclosed that fact in response to a specific question on voir dire?

"3. Did Jose S[.] prejudge the issue of penalty? "4. Did Jose S[.] engage in deliberations with the other jurors on the issue of penalty, or did he fail or refuse to deliberate?"

The referee held an evidentiary hearing over eight days, commencing May 23, 2007, and concluding August 6, 2007. At this hearing, the referee heard testimony from eight trial jurors (including Jose S.), three defense investigators, the trial prosecutor, a district attorney investigator, a trial witness, Jose S.'s biographer, and an investigator who had searched San Francisco newspapers for articles concerning petitioner. Thereafter, the referee submitted to this court a 25-page report stating her findings and conclusions. In brief, the referee found that Juror Jose S. was not personally acquainted with victim Pedersen, that Jose S. did not prejudge the issue of penalty, and that he did deliberate with the other jurors on the issue of penalty.

After considering the record of the hearing and the referee's report, we conclude that petitioner's claims lack merit and that the order to show cause will therefore be discharged and, by separate order, his petition for a writ of habeas corpus will be denied.

I. THE TRIAL EVIDENCE

The evidence supporting petitioner's conviction and sentence has been set forth in People v. Bolden, supra, 29 Cal.4th 515, and is summarized here.

At trial, the prosecution presented evidence that victim Henry Michael Pedersen was found dead in his apartment. He had been stabbed to death, and his body had been wrapped in a bedspread and placed in a bathtub. When last seen alive, Pedersen was in petitioner's company, and petitioner's fingerprints were found in Pedersen's apartment. When the police arrested him for Pedersen's murder, petitioner had property belonging to Pedersen, and he was carrying a knife that was stained with human blood consistent with Pedersen's blood type.

The defense presented evidence at the guilt phase that petitioner had advertised his services as a model or escort in a newspaper called the Bay Area Reporter that circulated primarily in the gay community, and that Pedersen had previously answered a similar newspaper advertisement.

In argument to the jury at the guilt phase, defense counsel asserted that even if the jury concluded that petitioner was responsible for Pedersen's death, the prosecution's evidence was insufficient to prove that robbery was the motive for the killing. Counsel suggested that the jury could reasonably infer that Pedersen gave his property to petitioner in payment for petitioner's services as a model or escort, or, alternatively, that petitioner decided to take Pedersen's property only after Pedersen's death.

The prosecution's case in aggravation at the penalty phase included evidence that on January 3, 1979, in San Francisco, petitioner killed Ernest Cole by slashing his throat with a machete, and that on May 4, 1979, in San Jose, petitioner killed Cruz Ramirez by stabbing him twice in the back with a knife. Petitioner was convicted of voluntary manslaughter for each of these killings. The defense case in mitigation at the penalty phase included evidence about petitioner's childhood and upbringing, as well as testimony by two clinical psychologists and a psychiatrist about petitioner's mental functioning and how certain events and conditions in his life had affected his development.

II. THE REFERENCE HEARING:EVIDENCE AND FINDINGS

A. Juror Jose S.'s Prior Acquaintance with Victim Pedersen

Charlia S., one of the jurors at petitioner's capital trial, executed a declaration on August 22, 1996, five years after that trial ended. At the time of the reference hearing in 2007, Charlia S. had died. The referee admitted her declaration into evidence. In the declaration, Charlia S. stated: "One day when we were waiting for the bus, [Jose S.] said he knew the victim, Michael Pederson [sic], a gay man. [Jose S.] referred to the victim as 'Michael' and said 'Michael was a good man.' [Jose S.] said 'Michael' had been in some kind of trouble when he was younger, and that he ([Jose S.]) helped him get out of that trouble. The trouble had something to do with the Emporium department store. I believe [Jose S.] said he helped Michael Pederson [sic] get a job at the Emporium, which job he did not hold for very long."

Russell Stetler testified at the reference hearing that he was a defense investigator during petitioner's trial. In that capacity, he interviewed Juror Charlia S. on July 1, 1991, a few months after the jury had returned the penalty verdict on March 11, 1991. His notes of that interview did not report the juror's words verbatim but paraphrased what she told him about Juror Jose S.'s prior acquaintance with victim Pedersen, as follows: "I think he knew this guy. Something he said to me before he was on the jury. When Pederson [sic] was younger, in trouble at the Emporium or something, he counseled him on it." Stetler interviewed Jose S. on July 7, 1991. In that interview, Jose S. denied any prior acquaintance with Pedersen.

Jose S. testified at the hearing and denied any prior acquaintance with victim Pedersen. Trial Juror Andrew N. testified that Jose S. indicated, during the trial, that he had heard of Pedersen but did not know anyone who knew him. Trial Jury Foreperson John C. testified that Jose S. never said anything about Pedersen that indicated he had heard about him before the trial. Trial ...


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