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In re Lewis

Supreme Court of California

May 24, 2018

In re ROBERT LEWIS, JR., on Habeas Corpus.

          Superior Court of Los Angeles County Robert J. Perry Judge

          Robert M. Sanger, under appointment by the Supreme Court, for Petitioner Robert Lewis. Jr.

          Bill Lockyer, Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Robert R. Anderson, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, John R. Gorey, Keith H. Borjon, Jamie L. Fuster and Margaret E. Maxwell, Deputy Attorneys General, for Respondent the People.

          CORRIGAN, J.

         Petitioner Robert Lewis, Jr., seeks habeas corpus relief, urging that he is ineligible for execution because he is intellectually disabled[1] and that his counsel failed to investigate and present mitigating evidence as to penalty. We issued an order to show cause and subsequently ordered a reference hearing in the superior court. The referee found that (1) petitioner is intellectually disabled and (2) his trial counsel did not perform deficiently at the penalty phase.

         The referee's findings regarding intellectual disability are supported by substantial evidence and are adopted. Because petitioner is entitled to relief from the death judgment under Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins) and In re Hawthorne (2005) 35 Cal.4th 40 (Hawthorne), we need not reach the penalty phase ineffective assistance of counsel claims.


         This evidentiary summary is drawn from the opinion in petitioner's first automatic appeal. (See People v. Lewis (1990) 50 Cal.3d 262, 271-274 (Lewis I).)

         A. Guilt Phase

         In October 1983, victim Milton Estell had been trying to sell his car. He displayed it in a parking lot and ran a newspaper advertisement. On October 27, neighbors saw him standing outside his home, looking at the car and speaking with petitioner.

         On October 28, after Estell's ex-wife, Jacqueline, had been unable to contact him and neighbors expressed concern, an officer went to Estell's home to check on him. He found Estell's body in a closet, bound and gagged. Estell had been stabbed repeatedly and shot in the back. Toilet paper had been stuffed in his mouth. His wallet lay nearby, containing credit cards but no cash. The car was missing.

         There were no signs of forced entry. Petitioner's fingerprints were found in three locations in the house, including the bathroom near the toilet paper dispenser. Jacqueline confirmed a number of items were missing, including a gold chain. She identified a gold chain petitioner had worn during the preliminary hearing as the missing item.

         On November 1, officers saw Estell's car parked on the street. Petitioner and a woman got in the car and drove off. The officers stopped the car, impounded it, and arrested petitioner. He was carrying $400 in cash and gave officers a false name. When interviewed, petitioner initially claimed he bought the car on October 24. He paid $11, 000 in cash, which he had won in Las Vegas and carried in a brown paper bag. He said that the entire transaction took place on Estell's porch and that he never entered the house. He had Estell make out the bill of sale to his girlfriend because he did not want the car in his name.

         Reinterviewed the next day, petitioner provided conflicting details. He said he had won $17, 000 in Las Vegas and carried the money in a white bag. He maintained the sale took place on October 24, even when told neighbors had seen the car at Estell's on the 27th. A search of the impounded car revealed a bill of sale bearing Estell's forged signature. A door opener to Estell's garage was also recovered.

         Petitioner's father testified for the defense that he had registered petitioner at a motel on October 24. The father entered the license plate number for Estell's car on the registration card. Petitioner's sister testified she had given him a gold chain that looked like the one he had worn at the preliminary hearing. Petitioner did not testify.

         Petitioner was convicted of first degree murder and robbery. The jury found true allegations that he used a deadly weapon and a firearm, and the special circumstance of murder during the commission of robbery.

         B. Penalty Phase

         At the penalty phase, the defense stipulated petitioner had been convicted of robbery in 1982, 1972, and twice in 1977. In mitigation, the defense presented evidence that petitioner's mother had died in 1967, his father had been sentenced to prison several times, and his brother was currently serving a prison term. His sister testified that she loved him and cared about "what happens to him." The jury returned a death verdict, which the court imposed.


         On direct appeal, we affirmed the judgment in all respects, but vacated the death sentence because the trial court erroneously considered a probation report in ruling on petitioner's application to modify the penalty. (Lewis I, supra, 50 Cal.3d at pp. 286-287, 192; see Pen. Code, former § 190.4, subd. (e)[2].) On remand for the new modification hearing, the trial court denied the application to modify the penalty and reinstated the judgment of death. We affirmed. (See People v. Lewis (2004) 33 Cal.4th 214.)

         When petitioner filed a habeas corpus petition, the Director of the Department of Corrections and Rehabilitation was ordered to show cause why relief should not be granted. After the respondent Attorney General's return and petitioner's reply, we ordered a reference hearing and directed the referee to address several questions. The first was whether petitioner is intellectually disabled within the meaning of Atkins, supra, 536 U.S. 304 and Hawthorne, supra, 35 Cal.4th 40. The remaining questions, each with several subparts, concerned the penalty phase ineffective assistance of counsel claims.[3]

         Los Angeles County Superior Court Judge Robert J. Perry served as referee.[4] Some 15 witnesses testified at the evidentiary hearing over the course of 14 days. At least 12 witnesses were questioned about petitioner's intellectual functioning. The referee filed a 42-page report with findings and recommendations. Petitioner and the Attorney General filed exceptions to the report and provided supplemental briefing.


         A. Legal Framework

         A habeas corpus petition is a collateral attack on a presumptively valid judgment, thus " 'the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.' " (In re Price (2011) 51 Cal.4th 547, 559.) The standard of proof is preponderance of evidence. (In re Cudjo (1999) 20 Cal.4th 673, 687; see also In re Bacigalupo (2012) 55 Cal.4th 312, 333.) "Because the referee observes the demeanor of the witnesses as they testify, we generally defer to the referee's factual findings" and give them great weight if supported by substantial evidence. [5] (Bacigalupo, at p. 333.) These findings are not binding, however. Ultimately, this court must make the findings necessary to resolve petitioner's claim. (In re Thomas (2006) 37 Cal.4th 1249, 1256-1257.)

         Evaluation of intellectual disability involves examination of two primary factors: 1) significantly subaverage general intellectual functioning, and 2) deficits in adaptive behavior. Both must manifest before age 18. (See § 1376, subd. (a).) In Hawthorne we recognized that " 'an IQ between 70 and 75 or lower . . . is typically considered the cutoff IQ score' " for the intellectual functioning prong. (Hawthorne, supra, 35 Cal.4th at p. 48.) We declined, however, to adopt a fixed numerical cutoff, concluding that such a requirement would be "inconsistent with established clinical definitions" and undesirable in light of the imprecisions of IQ test scores, which have a five-point measurement error. (Ibid.) This approach remains sound. (See Hall v. Florida (2014) __U.S.__, __ [134 S.Ct. 1986, 2000-2001] (Hall).) As to adaptive behavior deficits, Hawthorne quoted from Atkins and the clinical definitions from the ...

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