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Francis Hernandez v. Michael Martel

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 16, 2011

FRANCIS HERNANDEZ, PETITIONER,
v.
MICHAEL MARTEL,*FN1 ACTING WARDEN, CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT.

The opinion of the court was delivered by: Ronald S. W. Lew United States District Judge

DEATH PENALTY CASE ORDER RE OBJECTIONS

The parties have made various objections to evidence submitted as part of the evidentiary hearing. Many of these are not true evidentiary objections but objections to the arguments of counsel. The Court need not rule on these objections, as the Court has considered all of the arguments presented by the parties in addressing each claim. Having considered the parties' briefs, the Court hereby orders as follows:

1. Respondent's objection to the March 27, 1990 declaration of Dorothy Otnow Lewis as unreliable is OVERRULED. The declaration is admissible pursuant to Federal Rule of Evidence 703.

2. Respondent's objection to ¶ 34 of CDD*fn2 as "solely derived from" the March 27, 1990 declaration of Dr. Lewis is OVERRULED.

The Court has overruled respondent's objection to Dr. Lewis's declaration. Moreover, the record belies respondent's assertion that ¶ 34 is based only on information contained in Dr. Lewis's March 27, 1990 declaration.

3. Petitioner's objection to CDNS*fn3 at 135:1-136:27 and Ex. 38 (P01149-1152) is OVERRULED.

4. Petitioner's objection to CDNS at 132:24-133:5 and Ex. 38 (P3439-3443) is OVERRULED.

5. Petitioner's objection to CDNS at 3:9-11 and 1 CDD 49 is OVERRULED.

6. Petitioner's objection to CDNS 3:15-18 and 1 CDD 51, 52 is OVERRULED.

7. Petitioner's objection to CDNS at 4:11-14, 1 CDD 56, 57 is OVERRULED.

8. Petitioner's objection to CDNS at 4:15-17, 1 CDD 58 is OVERRULED.

9. Petitioner's objection to CDNS at 6:19-9:17 and Ex. 38 (P00517-19) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime.

10. Petitioner's objection to CDNS at 9:18-24 and Ex. 38 (P01967-69) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime.

11. Petitioner's objection to CDNS at 9:25-10:7 and Ex. 38 (P00520-24) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime.

12. Petitioner's objection to CDNS at 11:4-18 and Ex. 38 (P0751) is OVERRULED.

13. Petitioner's objection to CDNS at 11:11-12:20 and Ex. 38 (P01213-16) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

14. Petitioner's objection to CDNS at 12:22-13:8 and Ex. 38 (P01210) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

15. Petitioner's objection to Ex. 38 (P00814-15) is SUSTAINED to the extent that it is offered to prove petitioner's mental state at the time of the crime.

16. Petitioner's objection to CDNS at 14:7-15:20, 41:3-11, 138:6-27 and Ex. 38 (P00444-50) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

17. Petitioner's objection to CDNS at 15:22-18:6, 46:1010, 61:4-62:3 and Ex. 38 (P00539-43, P00839-43) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

18. Petitioner's objection to CDNS at 18:7-23, 60:18-61:3 and Ex. 38 (P00547-50) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

19. Petitioner's objection to CDNS at 18:24-19:4 and Ex. 38 (P00529-31) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

20. Petitioner's objection to CDNS at 19:15-20 and Ex. 38 (P00532-33) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

21. Petitioner's objection to CDNS at 19:21-20:8 and Ex. 38 (P0033) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

22. Petitioner's objection to CDNS at 20:9-18 and Ex. 38 (P00438) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

23. Petitioner's objection to CDNS at 20:19-28 and Ex. 38 (P00504) to is SUSTAINED the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

24. Petitioner's objection to CDNS at 21:2-9 and Ex. 38 (P00215) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

25. Petitioner's objection to CDNS at 21:10-15 and Ex. 38 (P00228) to is SUSTAINED the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

26. Petitioner's objection to CDNS at 21:16-27 and Ex. L-1 (P00822-23) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

27. Petitioner's objection to CDNS at 21:28-22:19 and Ex. 38 (P01067-76) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

28. Petitioner's objection to CDNS at 20:20-24:19, 43:27-46:11 and Ex. 38 (P01096-1106) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

29. Petitioner's objection to CDNS at 24:20-25:8 and Ex. 38 (P01109-1110) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

30. Petitioner's objection to CDNS at 25:9-20, Ex. L-10 and Ex. 38 (P01086-88) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

31. Petitioner's objection to CDNS at 25:21-26:5 and Ex. 38 (P00520-24) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

32. Petitioner's objection to CDNS at 26:6-12 and Ex. 38 (P003441-3443) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

33. Petitioner's objection to CDNS at 26:13-25, 136:28-37:12, Ex. 38 (P01119) and 6 CDD 77-78 is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

34. Petitioner's objection to CDNS at 26:26-27:4 and Ex. P01121 is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

35. Petitioner's objection to CDNS 134:20 -135:7 and Ex. 38 (P01127-28)

is SUSTAINED to the extent that the evidence is offered to prove petitioner's father was not abusive but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

36. Petitioner's objection to CDNS at 27:5-19 and Ex. 38 (P01133) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

37. Petitioner's objection to CDNS at 27:20-28:3 and Ex. 38 (P01134) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

38. Petitioner's objection to CDNS at 28:4-17 and Ex. 38 (P01135) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

39. Petitioner's objection to CDNS at 135:8-19, 6 CDD 87-88 and Ex. 38 (P01139-40) is SUSTAINED to the extent that the evidence is offered to prove petitioner was not abused by his parents.

40. Petitioner's objection to CDNS at 135:21-36:27 and Ex. 38 (P01149-52) is SUSTAINED to the extent that the evidence is offered to prove petitioner's father was not abusive, but OVERRULED to the extent that the evidence is offered to prove whether trial counsel made a strategic decision.

41. Petitioner's objection to CDNS at 28:19-29:2, 137:13-21 and Ex. 38 (P01153) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

42. Petitioner's objection to CDNS at 137:23-28 and Ex. 38 (P01155) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

43. Petitioner's objection to CDNS at 29:3-10 and Ex. 38 (P01156) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime or his relationship with his parents.

44. Petitioner's objection to CDNS at 29:11-16 and Ex. 38

(P01156) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

45. Petitioner's objection to CDNS at 138:1-5 and Ex. 38 (P01158) is SUSTAINED to the extent the evidence is offered to prove petitioner's mental state at the time of the crime or that petitioner was not abused by his parents.

46. Petitioner's objection to CDNS at 29:17-21 and Ex. 38 (P01112) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

47. Petitioner's objection to CDNS at 29:22-25 and Ex. 38 (P01159-60) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

48. Petitioner's objection to CDNS at 29:26-30:6 and Ex. 38 (P0163) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes.

49. Petitioner's objection to CDNS at 138:28-139:10 and Ex. 38 (P01170) is SUSTAINED to the extent the evidence is offered to prove that petitioner was not abused by his father.

50. Petitioner's objection to CDNS at 139:12-140:3 and Ex. 38 (P01176) is OVERRULED to the extent the evidence is offered to prove whether counsel made a strategic decision.

51. Petitioner's objection to CDNS at 140:4-20 and Ex. 38 (P01177-78) is SUSTAINED to the extent the evidence is offered to prove that petitioner was not abused by his father.

52. Petitioner's objection to CDNS at 140:21-141:3 and Ex. 38

(P01179-80) is OVERRULED to the extent the evidence is offered to prove whether counsel made a strategic decision.

53. Petitioner's objection to CDNS at 141:4-142:3 and Ex. 38 (P01181-82) is SUSTAINED to the extent that the evidence is offered to prove petitioner's father did not abuse petitioner, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

54. Petitioner's objection to CDNS at 142:4-12 and Ex. 38 (P01187) is SUSTAINED to the extent that the evidence is offered to prove petitioner's parents did not abuse petitioner.

55. Petitioner's objection to CDNS at 142:13-19 and Ex. 38 (P01193-94) is SUSTAINED to the extent that the evidence is offered to prove petitioner's parents did not abuse petitioner.

56. Petitioner's objection to CDNS at 30:7-11 and Ex. 38 (P01195) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

57. Petitioner's objection to CDNS at 142:21-26 and Ex. 38 (P01198) is SUSTAINED to the extent that the evidence is offered to prove that petitioner's parents did not abuse petitioner.

58. Petitioner's objection to CDNS at 142:27-143:13 and Ex. 38 (P01199-01) is SUSTAINED to the extent that the evidence is offered to prove that petitioner's parents did not abuse petitioner.

59. Petitioner's objection to CDNS at 30:12-16 and Ex. 38 (P01204-05) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

60. Petitioner's objection to CDNS at 143:14-20 and Ex. 38

(P01208) is OVERRULED to the extent the evidence is offered to prove whether counsel made a strategic decision.

61. Petitioner's objection to CDNS at 30:17-27 and Ex. 38 (P01211) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents.

62. Petitioner's objection to CDNS at 143:21-45:20, 26 and Ex. 38 (P01212-13) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crimes or petitioner's relationship with his parents, but OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

63. Petitioner's objection to CDNS at 30:28 and Ex. 38 (P0842) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

64. Petitioner's objection to CDNS at31:13-26 and Ex. 38 (P00842-43) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

65. Petitioner's objection to CDNS at 31:27-32:17 and Ex. 38 (P0886-87) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

66. Petitioner's objection to CDNS at 32:18-24 and Ex. 38 (P01602) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

67. Petitioner's objection to CDNS at 32:25-33:4 and Ex. 38 (P01977) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

68. Petitioner's objection to CDNS at 33:5-13 and Ex. 38 (P00317) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

69. Petitioner's objection to CDNS at 33:14-34:2 and Ex. 38 (P00324) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

70. Petitioner's objection to CDNS at 34:3-20 and Ex. 38 (P00376) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

80. Petitioner's objection to 5 CDD 6 is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime, but OVERRULED to the extent the evidence is offered to prove whether counsel made a strategic decision.

81. Petitioner's objection to CDNS at 39:22-40:10, 6 CDD 43-45 and Ex. 38 (P00886) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime, but is OVERRULED to the extent the evidence is offered to prove whether counsel made a strategic decision.

82. Petitioner's objection to 2 CDD 10 is SUSTAINED to the extent that the evidence is offered to prove that petitioner's parents did not abuse him.

83. Petitioner's objection to 11 CDD 119 is OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

84. Petitioner's objection to CDNS at 86:17-87:9 is OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

85. Petitioner's objection to CDNS at 88:7-24 is SUSTAINED. 86. Petitioner's objection to Ex. 38 (P00887) is SUSTAINED to the extent that the evidence is offered to prove petitioner's mental state at the time of the crime.

87. Petitioner's objection to 4 CDD 62-65 is OVERRULED to the extent the evidence is offered to prove counsel made a strategic decision.

88. Petitioner's objection to CDNS at 100:1-6 is OVERRULED.

89. Petitioner's objection to 6 CDD 26, 27 is OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

90. Petitioner's objection to CDD Ex. 4 (P00330) is OVERRULED to the extent that the evidence is offered to prove whether counsel made a strategic decision.

91. Petitioner's objection to CDD Ex. 38 (P00330) is OVERRULED.

92. Petitioner's objection to CDD Ex. L-1 (P00446) is OVERRULED.

93. Petitioner's objection to CDD Ex. 38 (P01968) is OVERRULED.

94. Petitioner's objection to 4 CDD 56, CDD Ex. 38 (P00346-47) is OVERRULED.

95. Petitioner's objection to 2 CDD 68-73, 76; 3 CDD 6, 12-14, CDD Ex. 38 (P00196) is OVERRULED.

96. Petitioner's objection to CDNS at 152:3-12 is SUSTAINED to the extent that the evidence is offered to prove that petitioner was not abused by his parents.

97. Petitioner's objection to 3 CDD 16-19, 24-25 and CDD Ex. 38 (P00210) is SUSTAINED to the extent that the evidence is offer to prove petitioner's parents were not abusive.

98. Petitioner's objection to CDD Ex. 38 (P01096-11) is SUSTAINED.

99. Petitioner's objection to 8 CDD 74 is OVERRULED. 100. Respondent's objection to Wagner Depo. at 25:6-22, 26:19-24 is SUSTAINED.

101. Respondent's objection to State Petition, Ex. D is SUSTAINED. 102. Respondent's objection to Wagner Depo. at 23:15-24:21 is SUSTAINED.

103. Respondent's objection to Wagner Depo. at 40:19-41:13 is

SUSTAINED.

104. Respondent's objection to Wagner Depo. Ex. I, ¶ 2 is SUSTAINED. The statement, "I told him that I was agonizing over the fact that I had to make a decision that could mean life or death for the individual on trial," is admissible to show what happened outside the jury room but is inadmissible for the truth of the matter asserted.

105. Respondent's objection to McClister-Jasinski Depo., Ex. B, ¶ 2 is SUSTAINED.

106. Respondent's objection to Lamont-Soliman Depo. at 23:5-8 is SUSTAINED.

107. Respondent's objection to Wagner Depo. at 41: 12-13 is SUSTAINED.

108. Respondent's objection to Wagner Depo. at 40:19-41:13 is SUSTAINED.

109. Respondent's objection to Wagner Depo. at 23:17-20 is SUSTAINED.

110. Respondent's objection to Wagner Depo. at 23:23-24, 24:1-21 is SUSTAINED.

111. Respondent's objections to the declarations of Martin Brandfon, Vikki Schummer and William Gailey, including paragraph 8 of Martin Brandfon's declaration, are SUSTAINED.

IT IS SO ORDERED.


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