In re Maury ( 2024 )

Filed 10/2/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
In re ROBERT EDWARD MAURY on Habeas C095050
Corpus.
(Super. Ct. No. 21CRHB5212)
APPEAL from a judgment of the Superior Court of Shasta County, Daniel E.
Flynn, Judge. Affirmed.
Rene L. Valladares, Federal Public Defender, Ellesse Henderson, Assistant
Federal Public Defender, for Petitioner Robert Edward Maury.
Rob Bonta, Attorney General, James William Bilderback II, Senior Assistant
Attorney General, Kenneth N. Sokoler, Supervising Deputy Attorney General, Brian R.
Means, Deputy Attorney General, for Respondent California Department of Corrections
and Rehabilitation.
1
This capital case involves a series of murders and sexual assaults that occurred in
Shasta County in the 1980s. In 1989, a jury found Robert Edward Maury guilty of
various offenses, among which included three counts of first degree murder (Pen. Code,
§ 187)1 and forcible rape (former § 261, subd. (2), now codified as § 261, subd. (a)(2)).
After the penalty phase of the trial, the jury returned a death verdict, and the trial court
imposed a death sentence. The California Supreme Court affirmed both the guilt and
death judgments in 2003, and denied Maury’s initial state habeas corpus petition in 2011.
In 2021, after the superior court dismissed Maury’s second state habeas corpus petition as
procedurally barred, he filed a notice of appeal and a request for a certificate of
appealability under section 1509.1, subdivision (c). We issued a certificate of
appealability on one of 12 claims in Maury’s petition: constructive deprivation of
counsel under McCoy v. Louisiana (2018) 584 U.S. 414 (McCoy).
In McCoy, the United States Supreme Court held that a defendant has the right
under the Sixth Amendment to insist that counsel refrain from admitting guilt, even when
counsel determines that confessing guilt offers the best chance of avoiding the death
penalty in a capital case. (McCoy, supra, 584 U.S. at p. 417.) In so holding, the high
court explained: “With individual liberty—and, in capital cases, life—at stake, it is the
defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit
guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence,
leaving it to the State to prove his guilt beyond a reasonable doubt.” (Id. at pp. 417-418.)
Thus, under McCoy, when a defendant expressly asserts and makes plain to counsel that
the objective of his defense is to maintain innocence of the charged offenses and pursue
an acquittal, counsel must abide by that objective and may not override it by conceding
guilt. (Id. at pp. 423-424.) As recognized by McCoy, the Sixth Amendment right to
1 Undesignated statutory references are to the Penal Code.
2
counsel includes a defendant’s right to make their own choices about the proper way to
protect their liberty, including the autonomy to decide that the fundamental objective of
their defense is to assert innocence. (Id. at p. 422.)
In this appeal, Maury argues that under McCoy, counsel violated his Sixth
Amendment right to determine the fundamental objectives of his defense--to maintain
innocence--by presenting mitigating evidence at the penalty trial over his express
objection, thereby rendering his death judgment invalid. According to Maury, counsel’s
presentation of certain mitigating evidence amounted to an admission of guilt in violation
of the constitutional right recognized in McCoy. In a related argument, Maury claims
that, in denying his motions to represent himself at the penalty phase pursuant to
Faretta v. California (1975) 422 U.S. 806 (Faretta), the trial court improperly forced him
to proceed with counsel burdened by an irreconcilable conflict of interest, which
adversely affected counsel’s performance, constructively deprived him of the assistance
of counsel, and prejudiced his case. As we explain, Maury is not entitled to habeas
corpus relief. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Maury is a notorious serial killer, sometimes referred to as the “Tipster Killer.”
As our Supreme Court explained in its 2003 opinion affirming Maury’s convictions and
death sentence, “[t]he prosecution presented a fact-intensive, circumstantial case of
[Maury’s] guilt, which interconnected three murders and the rape of a fourth victim.”
(People v. Maury (2003) 30 Cal.4th 342, 359 (Maury).) A central element in this case
was the Shasta County Secret Witness program (Secret Witness), which was a telephone
“hotline” that was established to receive information from citizens about crimes
committed in the county. (Id. at pp. 359-360.) At the guilt phase, there was evidence
showing that, after each of the murders, Maury called the hotline and provided
information leading to the discovery of the victims’ bodies, two of which were located in
3
the same general rural area in Redding where the rape occurred.2 (See id. at pp. 360-362,
367-370, 396-398.) As explained by our high court, the evidence presented at trial--that
included the Secret Witness calls, the similarities of the victims, and Maury’s
incriminating conduct and statements--amply supported a finding of guilt on the murder
charges. Among other things, the evidence established a basis for the jury to reasonably
infer that Maury made the Secret Witness calls and provided information only the killer
or an eyewitness to the murders would have known about the victims, and that the reward
money from the Secret Witness program motivated Maury, at least in part, to kill the
women. (See id. at pp. 360-363, 367-374, 396-401.)
Because the facts giving rise to the criminal offenses for which Maury was found
guilty are of limited relevance to the habeas claim at issue here, we summarize only the
procedural background of this case. To the extent the underlying facts bear on our
analysis, such as on the issue of prejudice, a detailed recitation of the circumstances
surrounding the offenses is set forth in our Supreme Court’s 2003 opinion affirming
Maury’s convictions and death sentence. (See Maury, supra, 30 Cal.4th at pp. 359-374.)
We assume familiarity with that opinion.
In 1989, a jury found Maury guilty of the first degree murders of Averill Weeden,
Belinda Jo Stark, and Dawn Berryhill (§ 187), an assault on Stark with intent to commit
rape (§ 220), the robbery of Berryhill (§ 211), and the forcible rape of Jacqueline H.
(former § 261, subd. (2)). (Maury, supra, 30 Cal.4th at p. 359.) The jury also found true
the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and
2 The first murder victim was Maury’s roommate. (Maury, supra, 30 Cal.4th at p. 360.)
Her body was found in a wooded area located off a trail behind an automobile shop in
Redding. (Id. at p. 361.) The bodies of the second and third murder victims were found
in a different rural area in Redding, near the location where the rape of a fourth victim
occurred. (Id. at pp. 360-361, 367-369.)
4
robbery murder (former § 190.2, subd. (a)(17)(i) now codified as § 190.2, subd.
(a)(17)(A)). (Maury, at p. 359.)
As described more fully below, at the penalty phase, the prosecution sought a
death verdict, relying on the evidence presented at the guilt phase and Maury’s two prior
felony convictions for receiving stolen property. (See Maury, supra, 30 Cal.4th at p.
376.) The defense presented mitigating evidence from three witnesses and argued for a
sentence of life without the possibility of parole. The mitigating evidence related to
Maury’s mental condition, marijuana abuse, and family background, including the mental
and physical abuse inflicted on him and his siblings by his alcoholic father. (See ibid.)
Following the presentation of mitigating evidence, Maury insisted on taking the witness
stand against the advice of counsel. Maury was not asked any questions by the defense
or prosecution. Instead, he read a prepared statement to the jury. Among other things,
Maury claimed that he had a “normal childhood,” denied that he suffered from
depression, and declared, “You found me guilty of three murders, one rape, one
attempted rape and one robbery. It’s totally unrealistic for you to give me life in prison
without parole. If you think I’m guilty, you give me the death penalty.” (Ibid.) The jury
returned a death verdict, and the trial court imposed that sentence. (Id. at p. 359.)
In 2003, the California Supreme Court affirmed Maury’s convictions and death
sentence on automatic direct appeal. (Maury, supra, 30 Cal.4th at p. 359.) In 2004, the
United States Supreme Court denied Maury’s petition for a writ of certiorari. (Maury v.
California (2004) 540 U.S. 1117.)
In 2004, Maury filed a state habeas corpus petition in the California Supreme
Court, followed by an amended petition in 2007. In 2011, the petition was denied.
In 2012, Maury filed a federal habeas corpus petition in the United States District
Court for the Eastern District of California. In 2020, after new counsel was appointed,
the federal court granted Maury’s request to stay proceedings and equitably toll the
statute of limitations to permit counsel to investigate potential new claims. (Maury v.
5
Davis (E.D. Cal. Oct. 4, 2019, No. 2:12-cv-1043 WBS DB) 2019 U.S. Dist. Lexis 17359;
Maury v. Davis (E.D. Cal. Mar. 31, 2020, No. 2:12-cv-1043 WBS DB) 2020 U.S. Dist.
Lexis 57533.) Thereafter, the federal court granted two other similar requests. (Maury v.
Davis (E.D. Cal. June 8, 2020, No. 2:12-cv-1043 WBS DB) 2020 U.S. Dist. Lexis
100909; Maury v. Davis (E.D. Cal. Aug. 27, 2020, No. 2:12-cv-1043 WBS DB) 2020
U.S. Dist. Lexis 156960.) In 2021, Maury filed a motion seeking permission to file a
supplemental habeas corpus petition, arguing that he should be permitted to add claims
prior counsel failed to raise due to conflicts of interest. (Maury v. Warden, Calif. State
Prison (E.D. Cal. Sept. 26, 2022, No. 2:12-cv-1043 WBS DB) 2022 U.S. Dist. Lexis
174818.) In 2022, the magistrate judge assigned to the case issued an order
recommending that Maury’s motion be denied without prejudice, finding that amendment
of the petition would be futile because Maury had failed to exhaust the proposed
additional claims in state court. (Ibid.) To date, the federal court has not adopted or
rejected the magistrate’s findings/proposed order, and Maury’s federal habeas corpus
petition remains pending ruling in the district court.
In the meantime, the electorate approved Proposition 66, the Death Penalty
Reform and Savings Act of 2016 (Gen. Elec. (Nov. 8, 2016) § 1) (Proposition 66), an
initiative measure intended “to make the system of capital punishment ‘more efficient,
less expensive, and more responsive to the rights of victims.’ ” (In re Friend (2021) 11
Cal.5th 720, 723, 725 (Friend); see Briggs v. Brown (2017) 3 Cal.5th 808, 822 [“The
measure’s various provisions are intended to facilitate the enforcement of judgments and
achieve cost savings in capital cases”].) Effective October 2017, Proposition 66 “made
wide-ranging changes to the procedures for challenging convictions and sentences in
capital cases. Among other things, Proposition 66 introduced new restrictions on the
presentation of habeas corpus claims in what the measure refers to as ‘successive’
petitions: Individuals who file successive petitions must show they are actually innocent
or ineligible for the death penalty before courts may consider the merits of their claims.”
6
(Friend, at pp. 723-724; see §§ 1509, 1509.1.) As our Supreme Court recently explained:
“The traditional rules governing the handling of successive petitions have long
distinguished between the presentation of newly available claims and the presentation of
claims that could have been raised earlier; the law has traditionally limited only the latter,
forbidding consideration of repetitive or pretermitted claims except in a few, narrowly
defined circumstances. Proposition 66 modified these rules by further narrowing the
circumstances under which courts may consider repetitive or pretermitted claims in
capital cases. But properly understood, Proposition 66’s successiveness restrictions do
not limit the consideration of claims that could not reasonably have been raised earlier,
such as those based on newly available evidence or on recent changes in the law—claims
that have not previously been thought subject to successiveness limitations. Thus, under
the law as amended by Proposition 66, habeas corpus petitioners must make a showing of
actual innocence or death ineligibility if they seek a second chance to make an argument
they could have made earlier. No such requirement applies to the habeas corpus
petitioner who raises a newly available claim at the first opportunity.” (Friend, at p.
724.) If the sentencing court denies relief on a petitioner’s successive petition for writ of
habeas corpus, the petitioner may appeal that decision only if the sentencing court or the
Court of Appeal grants a certificate of appealability. (See id. at p. 727; § 1509.1, subd.
(c).)
In July 2021, Maury filed a second state habeas corpus petition in the Shasta
County Superior Court (the instant petition), asserting 12 claims for relief. Of relevance
here, Maury argued that his death sentence was invalid because he was “constructively
deprived of counsel” at the penalty phase. Relying on McCoy, supra, 584 U.S. 414,
Maury asserted that his Sixth Amendment right to control the objectives of his defense
was violated when counsel presented mitigating evidence over his express objection.
According to Maury, the trial court’s error in allowing the presentation of such evidence
was structural and required a new penalty trial without any need to show prejudice, since
7
the mitigating evidence was inconsistent with his clearly stated objectives of maintaining
his innocence and protecting his family. Maury additionally argued that he was entitled
to a new penalty trial because, in denying his motions to represent himself pursuant to
Faretta, supra, 422 U.S. 806, the trial court committed structural error by forcing him to
proceed with counsel “burdened by an irreconcilable conflict of interest, which adversely
affected trial counsel’s performance, constructively deprived [him] of the assistance of
counsel, and prejudiced his case.” In support of this argument, Maury asserted that, as a
result of the irreconcilable conflict of interest, he “felt compelled to ask the jurors for
death” and chose to do so “to counter the mitigation case presented by counsel over his
objection.”3 Anticipating that the State would argue his claim was procedurally barred
because it was asserted for the first time after the denial of his initial state habeas corpus
petition, Maury argued “he [could] overcome any procedural bars” because he was
relying on new law--McCoy, supra, 584 U.S. 414. Alternatively, Maury argued that, to
the extent his prior appellate counsel should have but failed to raise the claim earlier,
counsel was ineffective. Citing In re Reno (2012) 55 Cal.4th 428,4 Maury added that his
claim was not procedurally barred as successive because the “errors during the penalty
phase led to a ‘death penalty . . . imposed by a sentencing authority which had such a
grossly misleading profile.’ ”
In September 2021, the Shasta County Superior Court dismissed the instant habeas
corpus petition, without ordering a response from the State. The court found that
Maury’s claims were untimely and successive (in that the claims were previously raised
and rejected or could have been raised previously but were not), and that Maury had
failed to establish an exception to the general rule that such claims are procedurally
3 Without elaboration, Maury alternatively argued he was entitled to a new penalty trial
because trial counsel was ineffective.
4 Superseded by statute on other grounds as stated in Friend, supra, 11 Cal.5th at p. 728.
8
barred. As for the ineffective assistance of prior counsel claim, the court found that it
was “not factually supported” and therefore subject to dismissal.5 The court did not
reach the merits of Maury’s claim that he was entitled to a new penalty trial under
McCoy, supra, 548 U.S. 414. Nor did the court consider whether to grant a certificate of
appealability on any of the claims asserted in the petition.
In October 2021, Maury filed a timely notice of appeal and a request for a
certificate of appealability under section 1509.1, subdivision (c). In November 2021, we
issued a certificate of appealability on one of 12 claims in Maury’s petition: constructive
deprivation of counsel under McCoy, supra, 584 U.S. 414. As for the remaining 11
claims, we found Maury had failed to make a substantial showing that they were not
successive or that the requirements set forth in subdivision (d) of section 1509 had been
satisfied; namely, Maury failed to show (by a preponderance of all available evidence
whether or not admissible at trial) that he is actually innocent of any of the crimes in
which he was convicted or is ineligible for the death penalty.
5 A petitioner seeking to avoid the successiveness bar on grounds of ineffective
assistance of prior counsel must “ ‘allege with specificity the facts underlying the claim
that the inadequate presentation of an issue or omission of any issue reflects
incompetence of counsel.’ ” (Friend, supra, 11 Cal.5th at p. 731, fn. 5 [noting that
“ ‘mere omission of a claim “developed” by new counsel does not raise a presumption
that prior habeas corpus counsel was incompetent, or warrant consideration of the merits
of a successive petition’ ”].) Conclusory allegations are inadequate to satisfy a
petitioner’s pleading burden. (In re Reno, supra, 55 Cal.4th at p. 500.) In addition to
requiring that habeas corpus petitions state “fully and with particularity the facts on
which relief is sought,” our Supreme Court has indicated that habeas petitions should also
“include copies of reasonably available documentary evidence supporting the claim,
including pertinent portions of trial transcripts and affidavits or declarations.” (People v.
Duvall (1995) 9 Cal.4th 464, 474.)
9
DISCUSSION
I
Habeas Corpus Law
To put the series of reforms enacted by Proposition 66 into context, we briefly
summarize the law as it existed prior to the approval of the measure and then describe the
statutory reforms relevant to the habeas corpus claim at issue here.
A. Traditional Habeas Corpus Principles
“The California Constitution has protected the right to seek relief by habeas corpus
since our state’s founding. [Citations.] Habeas corpus . . . ‘often represents a prisoner’s
last chance to obtain judicial review’ of a criminal conviction. [Citation.] The law
preserves this avenue to relief in service of principles of substantial justice: ‘ “Despite
the substantive and procedural protections afforded those accused of committing crimes,
the basic charters governing our society wisely hold open a final possibility for prisoners
to prove their convictions were obtained unjustly.” ’ ” (Friend, supra, 11 Cal.5th at p.
736.)
The right to seek habeas corpus relief, however, is not unlimited. Restrictions on
the consideration of second or subsequent habeas corpus petitions (sometimes referred to
as “successive” petitions) are well established. (See Friend, supra, 11 Cal.5th at pp. 727-
728.) Our Supreme Court has “long limited piecemeal and repetitive claims” as an abuse
of the habeas corpus remedy. (Id. at p. 736.)
Prior to the approval of Proposition 66, all capital inmates seeking to collaterally
attack their death judgments were required to file their habeas corpus petition directly in
the California Supreme Court. (Friend, supra, 11 Cal.5th at p. 726.) Whenever an
inmate filed a second or subsequent state court habeas petition, the Supreme Court
engaged in a two-step analysis to determine whether the procedural bar on successive
claims applied. At the first step, the court determined whether the petitioner had
adequately justified his failure to present a claim in an earlier petition. (Id. at p. 728.) In
10
the rare instance in which the petitioner provided adequate justification for his failure to
raise the claim earlier (e.g., the claim depended on newly available evidence or a recent
change in the law), the successiveness bar did not apply. (Ibid.) But if a petitioner did
not adequately justify his failure to raise a claim earlier, the court proceeded to the second
step of the analysis. (Ibid.) At that step, the court determined whether the petitioner had
made a showing that the successive claim fell within the four-part fundamental
miscarriage of justice exception set forth in In re Clark (1993) 5 Cal.4th 750.6 (Friend,
at p. 728.) If the petitioner failed to show the claim qualified for consideration under the
fundamental miscarriage of justice exception, the claim was barred as successive. (Ibid.)
The traditional successiveness bar prevented a habeas corpus petitioner from
“abusing the writ process by presenting claims in a repetitive or piecemeal manner.”
(Friend, supra, 11 Cal.5th at p. 730.) The purpose of the rule was to ensure that
legitimate claims were raised early in the legal process, and it operated to preclude
“consideration of claims that were unjustifiably omitted from earlier petitions” while
providing “ ‘a “safety valve” for those rare or unusual claims that could not reasonably
have been raised at an earlier time.’ ” (Id. at p. 728.) Thus, the rules governing state
court habeas petitions “have . . . sought to ‘permit the resolution of legitimate claims in
the fairest and most efficacious manner possible,’ without barring legitimate claims
raised belatedly through no fault of the petitioner.” (Id. at p. 737.)
6 “In In re Clark, [the California Supreme Court] identified four situations in which the
fundamental miscarriage exception is satisfied: (1) a highly prejudicial error of
constitutional magnitude; (2) the petitioner’s actual innocence; (3) presentation in a
capital trial of a grossly misleading and highly prejudicial profile of the petitioner; or (4)
conviction or sentencing under an invalid statute.” (Friend, supra, 11 Cal.5th at p. 728.)
11
Although our Supreme Court, by its own admission, has not always been
consistent in its use of the term “successive” in the context of habeas corpus petitions,7
the substantive principle underlying the successiveness bar has remained constant: A
claim has been barred as successive when it was omitted from an earlier petition without
justification. By contrast, a claim that could not have reasonably been raised in an earlier
petition was not subject to the bar on successive petitions. (Friend, supra, 11 Cal.5th at
pp. 731-732.)
B. Proposition 66
In the November 2016 election, California voters approved Proposition 66. (Gen.
Elec. (Nov. 8, 2016) § 1.) The initiative measure included “a series of findings and
declarations to the effect that California’s death penalty system is inefficient, wasteful,
and subject to protracted delay, denying murder victims and their families justice and due
process.” (Briggs v. Brown, supra, 3 Cal.5th at p. 823.) The measure enacted a number
of statutory reforms, including adding provisions that extensively “revamp” the
procedures governing habeas corpus petitions in capital cases. (Id. at p. 824.) We tailor
our discussion of the measure to the reforms at issue here. It is undisputed that the instant
habeas corpus petition is a second or subsequent petition under habeas principles, as it
was filed almost 10 years after the California Supreme Court denied Maury’s initial state
habeas corpus petition in 2011.
To advance the goals of Proposition 66, including making the system of capital
punishment more efficient, the measure changed the procedures for handling and
resolving habeas corpus petitions in capital cases, the bulk of which are found in newly
7 In Friend, supra, 11 Cal.5th at page 732, the court acknowledged that it had
“sometimes used the term ‘successive’ to refer to any second or subsequent petition,
while referring to those petitions subject to the successiveness bar as both successive and
unjustified.”
12
added section 1509. (Friend, supra, 11 Cal.5th at p. 725.) Subdivision (a) of that
provision requires that capital habeas corpus petitions generally be presented to the
sentencing court (i.e., superior court) instead of the California Supreme Court. (§ 1509,
subd. (a).) Subdivision (d) of section 1509 altered the standard for considering claims in
a successive petition. In relevant part, it provides: “[A] successive petition whenever
filed shall be dismissed unless the court finds, by the preponderance of all available
evidence, whether or not admissible at trial, that the defendant is actually innocent of the
crime of which he or she was convicted or is ineligible for the sentence. . . . ‘Ineligible
for the sentence of death’ means that circumstances exist placing that sentence outside
the range of the sentencer’s discretion. Claims of ineligibility include a claim that none
of the special circumstances in subdivision (a) of Section 190.2 is true, a claim that the
defendant was under the age of 18 at the time of the crime, or a claim that the defendant
has an intellectual disability, as defined in Section 1376. A claim relating to the
sentencing decision under Section 190.3 is not a claim of actual innocence or ineligibility
for the purpose of this section.” (§ 1509, subd. (d).)8
8 At the time of Maury’s penalty trial (and now) section 190.3 provided: “If the
defendant has been found guilty of murder in the first degree, and a special circumstance
has been charged and found to be true, . . . the trier of fact shall determine whether the
penalty shall be death or confinement in state prison for a term of life without the
possibility of parole. In the proceedings on the question of penalty, evidence may be
presented by both the people and the defendant as to any matter relevant to aggravation,
mitigation, and sentence including, but not limited to, the nature and circumstances of the
present offense, any prior felony conviction or convictions whether or not such
conviction or convictions involved a crime of violence, the presence or absence of other
criminal activity by the defendant which involved the use or attempted use of force or
violence or which involved the express or implied threat to use force or violence, and the
defendant’s character, background, history, mental condition and physical condition.”
Section 190.3 further provided that, in determining the appropriate penalty, the trier of
fact must consider the relevant enumerated aggravating and mitigating circumstances—
e.g., circumstances of the crime of which defendant was convicted and the existence of
13
Consistent with the traditional use of the term “successive” in habeas corpus law,
Proposition 66’s procedural bar on successive claims only applies when a petitioner filing
a second or subsequent habeas corpus petition has not adequately justified his failure to
present the claims in an earlier petition. (See Friend, supra, 11 Cal.5th at pp. 724, 729,
731-732, 741.) As previously indicated: “Proposition 66’s successiveness restrictions do
not limit the consideration of claims that could not reasonably have been raised earlier,
such as those based on newly available evidence or on recent changes in the law—claims
that have not previously been thought subject to successiveness limitations. Thus, under
the law as amended by Proposition 66, habeas corpus petitioners must make a showing of
actual innocence or death ineligibility if they seek a second chance to make an argument
they could have made earlier. No such requirement applies to the habeas corpus
petitioner who raises a newly available claim at the first opportunity.” (Id. at p. 724.)
Our Supreme Court has explained that the successiveness standards in Proposition 66
preserved the two-step inquiry employed in traditional habeas corpus practice, but at the
second step it replaced Clark’s four-part fundamental miscarriage of justice exception
with a narrower exception (i.e., a “more stringent standard”) restricted to claims of actual
innocence or death penalty ineligibility. (See Friend, at pp. 729, 739-740.)
Under Proposition 66, to pursue an appeal from the denial of relief on a successive
habeas corpus petition collaterally attacking a judgment of death, the petitioner must
obtain a certificate of appealability from the superior court or the Court of Appeal, which
may be issued only if the petitioner has shown “both a substantial claim for relief . . . and
any special circumstances found to be true, the presence or absence of any prior felony
conviction, whether or not the offense was committed while the defendant was acting
under the influence of extreme mental or emotional disturbance. A sentence of death
must be imposed if the trier of fact concludes that the aggravating circumstances
outweigh the mitigating circumstances. (Ibid.) However, if the trier of fact determines
that the mitigating circumstances outweigh the aggravating circumstances, a sentence of
life without the possibility of parole must be imposed. (Ibid.)
14
a substantial claim that the [actual innocence or ineligibility for the death sentence]
requirements of subdivision (d) of Section 1509 have been met.” (§ 1509.1, subd. (c).)
The issuance of a certificate of appealability is also permitted upon “a substantial
showing that the claim, although presented in a subsequent petition, was not successive
within the meaning of Clark’s rule.” (Friend, supra, 11 Cal.5th at p. 747.) Under Clark,
a claim is ordinarily not successive when the petitioner offers adequate justification for
his failure to present it in an earlier petition. (Id. at p. 731.) Thus, a finding of
successiveness may be avoided by a showing that “ ‘the factual basis for a claim was
unknown to the petitioner and he had no reason to believe that the claim might be made’
and the claim is ‘asserted as promptly as reasonably possible.’ ” (Ibid.) Claims based on
changes in the law that are retroactively applicable to final judgments and claims
premised on ineffective assistance of prior counsel may also justify presentation in a
subsequent petition. (Ibid.)
II
McCoy Error
Maury’s primary contention is that he is entitled to a new penalty trial under
McCoy, supra, 584 U.S. 414, which he claims applies retroactively to final judgments of
conviction. In connection with these arguments, Maury claims the superior court erred in
determining that his McCoy claim was procedurally barred as untimely and successive.
As we will explain, because we conclude Maury’s claim fails on the merits, we need not
and do not decide whether McCoy applies retroactively to final judgments or whether the
superior court erred in finding the claim procedurally barred.9
9 At oral argument, Maury’s counsel’s requested remand to the trial court for “fact-
finding” if we were inclined to reach the merits of the underlying claim. Because any
facts in dispute are not relevant to our disposition of this appeal, we decline to remand.
Simply put, regarding the presence or absence of McCoy error, the record is complete.
15
A. Additional Background
On August 24, 1989, the jury rendered its guilt phase verdicts and special
circumstance findings. Later that same day, the trial court tentatively scheduled the
penalty trial to commence on August 30. The next day, after an in camera hearing
(discussed below), the penalty trial was continued to August 31. The penalty trial began
on August 31 and the jury returned a death verdict on September 8.
Next, we summarize the relevant portions of the penalty phase.
1. In Camera Hearings
a. August 25 Hearing
The day after the conclusion of the guilt phase, the defense requested an in camera
hearing concerning scheduling and the evidence it intended on presenting at the penalty
trial. At that hearing, the defense indicated that it had two problems, only one of which is
relevant here--Maury’s preferred penalty. When asked, defense counsel explained:
“[Maury] has previously indicated . . . that, if convicted, . . . he wants to take the witness
stand and ask for the death penalty. My personal opinion is that I think that’s highly
inappropriate and I don’t think it’s in his best interests to do that, if for no other reason on
appeal, and . . . I want the opportunity to talk with him and to convince him that that’s not
an appropriate way to end this trial. I understand the law and I understand he . . . has that
right to get up and do that. And I also understand my ethical obligation to go ahead and
present factors in mitigation and argue against that.”
Following these remarks, there was no further discussion about Maury’s preferred
penalty. Instead, there was a discussion about whether a psychologist, who the defense
had hired to do a “dynamics and background study” on Maury, would testify at the
penalty trial.
16
b. August 29 Hearing
Two days before the commencement of the penalty trial, Maury and his attorneys
met with the trial court in camera outside the presence of the prosecutors and the jury.
During that meeting, the following exchange occurred:
“THE COURT: The record will indicate that the prosecutors have left and that the
only remaining parties are the defendant, his attorneys and the court personnel.
Gentlemen?
“[DEFENSE COUNSEL]: Your Honor, what my client is indicating is that he
prefers the death penalty of the two penalties that are available to the jury at this time and
is attempting to get that accomplished. He has instructed us to get that . . . penalty[]
accomplished in one way or another. At the same time, I believe that he is confident or at
least is steadfast in the fact that he does not wish to take the witness stand in the penalty
phase. . . . [H]ave I correctly stated what’s going on?
“THE DEFENDANT: Yes, 95 percent. I mean if I had to take the stand, if I
thought the only way I was going to get the death penalty . . . was . . . to take the
stand and piss the jury off, I’d do that. I understand my lawyers have a legal obligation, a
moral obligation. They have to put on some type of a case, but if there’s anyway [sic]
that I could handcuff them . . . to get them to not put on the case, I would do that. I’m not
. . . trying to commit suicide or anything. I’ve got a couple, three, four good reasons why
I think the death penalty would be more appropriate. I’m honestly not trying to make a
martyr out of myself, not trying to commit suicide. I have . . . what I think are good
reasons.
“THE COURT: All right. But you do understand that their obligation is to -- and
I assume that the reason the law is that way is, as logical as you feel your approach may
be, the law probably feels that two people who are not personally subjected to that type of
a penalty can more objectively look at how you may feel down the road and they have an
17
obligation to present any mitigating circumstances or evidence that they can find that’s in
your favor. [¶] I take it that you don’t argue with their obligation or right to do that?
“THE DEFENDANT: No. If I could argue it, I would. I think they agree with
some of my reasoning and they feel that they’re in a corner where they have to put on a
good defense, and at the same time I’m trying to get them not to put on a good defense. I
believe we all agree that I do have some very good reasons and if there was any way I
could talk you into releasing them from their obligation, I would do that. I’m stuck.
[DEFENSE COUNSEL]: I would concur with [Maury]. I think his views are well
formulated. This isn’t the first time we’ve discussed them, and he can provide
recognizable reasons for his opinion and I agree with them.
“THE COURT: Well, the fact that you may be in agreement is not going to hinder
your ability to do your best to present mitigating factors; is it?
“[DEFENSE COUNSEL]: No. I’ll do my best, Judge. It may be difficult under
these circumstances and that’s why we wanted to have this little discussion on the record
so that everybody is clear as to what -- [¶] . . . [¶] [o]ur obligations are and what we’re
going to be trying to do.
“THE COURT: Well, does either attorney doubt his ability to fulfill his
responsibilities to present what favorable and mitigating evidence there may be available
to the defense?
[DEFENSE COUNSEL]: I don’t have any problem with submitting the evidence,
your Honor. That’s not the problem. It’s the argument that comes afterwards that is
difficult to come up with. Now, we can be critical of the jury in their decision thus far
and that will be easy. But as far as the rest of it, the rest of that argument, it will be quite
difficult. Obviously, having . . . nine chances to come up with other findings, the jury has
rendered their verdict and -- [¶] . . . [¶] [w]e have no illusions as to what the penalty is
going to be.
18
“THE COURT: I assume you’ll be able, as professionals, to argue the normal
bases for sympathy in a proper and adequate fashion?
“[DEFENSE COUNSEL]: I hope so.
“THE DEFENDANT: That, to me, is not a problem because they . . . both want to
put on a good defense and make sure. They’re more than capable of putting on a good
defense, but I think I’m handcuffing them. And to be quite frank, I’m trying my best to
sabotage whatever case they make. So if something doesn’t turn out the way they want,
it’s not their fault, it’s my fault.
“[DEFENSE COUNSEL]: My client has indicated a desire to waive jury in the
pursuit of this and he’s also proposed a certain stipulation that perhaps the Court would
not even entertain. One that he’s asking me to tender to the District Attorney is to
stipulate to the death penalty in exchange for the return of his property which was seized
by the authorities. Now, I’ve not even proposed that to the District Attorney as yet, but
Mr. Maury is trying his best to get his wishes accommodated.
“THE DEFENDANT: And, believe me, this is not making the other attorney over
here very happy at all.
“THE COURT: Well, these things are certainly never easy and always difficult.
[¶] All right, gentlemen. Anything else that you want on the record?
“[DEFENSE COUNSEL]: Would the Court entertain waiving jury, if the parties
stipulate?”
After the trial court questioned the validity of such a stipulation, the following
exchange occurred:
“[DEFENSE COUNSEL]: One of the problems that has come up, and it’s in
regard to what Mr. Maury indicated as his attempts to sabotage our efforts. . . . [A]s part
of the sympathy and attempt to humanize Robert Maury, we intended to call his sister,
Carol Cummins. She has at all times been cooperative and is not under subpena [sic]
and, in fact, we have appointments set up to talk with her tomorrow afternoon. [¶]
19
[Maury] informed me this morning that he has gotten word to [Cummins] that he does
not want her testifying and would she please go to Sacramento for the next three days,
and that may cause a problem with being able to proceed on Thursday. [U]nder my
ethical obligation, I have to present someone from the family. The mother is the most
potentially appropriate, and [Maury] has expressed a desire in no way does he want his
mother on the stand crying for his life. And I think he has a right to decide at least that
limited issue. But we need to put the sister on and if, in fact, the sister is gone to
Sacramento to avoid subpena [sic], then I’m going to be asking for a continuance until we
can locate her and get her into court.
“THE COURT: And do you have someone out trying to serve process on her
now?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Well, your decision, unfortunately, in this type of a situation
regarding putting on the mother should relate to the merits of the defense and the merits
of the available evidence and not to the defendant’s wishes.
“[DEFENSE COUNSEL]: I understand that, your Honor. Actually, the best
evidence is the sister and not the mother. You know, from a sympathy appeal, the mother
may have a lot more sympathy, but from a factual, intellectual standpoint as to explaining
the background of the family, the sister is actually the best witness of that. I’ve spoken to
both of them, and the sister, in my professional opinion, is by far the better witness. Will
make the better witness.
“THE COURT: All right.
“THE DEFENDANT: If that was to come about, I would insist on taking the
witness stand. And I’m quite confident that I could deny anything, that you could bring
400 people in here and I’m quite confident I make a better impression on that jury than
400 people.
20
“THE COURT: As you know, that’s your choice. You have a right to take
whatever position you want.
“THE DEFENDANT: They got enough family problems right now. Put my sister
on or mother on, it’s going to cause more problems that I’d just as soon as not come up.
“[DEFENSE COUNSEL]: His concern -- and I think it’s a valid one -- is there has
been problems with the father in this family. And, right now, the father is taking care of
the daughter and, you know, kind of watching over her. And things have improved, I
think a lot better than they were when they were all children. [¶] And one of the things
that I possibly may be going to request is that when the family members testify, that we
exclude the parents. And what they’re concerned about is that it’s going to be reported in
the newspaper and it’s going to get back to the father and all these old wounds are going
to open back up and it going to cause even more problems in the family. That’s
[Maury’s] concern.
“THE COURT: That’s accurate?
“[DEFENSE COUNSEL]: And I think it’s a valid concern.
“THE DEFENDANT: That’s accurate.
“[DEFENSE COUNSEL]: And the solution to that, in my opinion, is simply close
the court. Exclude the media, exclude the public and let the daughter testify and seal the
record. That way the jury hears it, the jury can consider it for whatever value. Yet we’re
still protecting the confidentiality and integrity of the family.
“THE DEFENDANT: I can live with that.
“THE COURT: Well, of course, that brings up a whole new set of rules. There’s
a third entity we have to deal with and their rights also. Anyway you can let me know the
progress of that when you can. [¶] All right. Anything else you want to discuss?
“[DEFENSE COUNSEL]: (Shakes head).
“THE COURT: And you’re clear that despite this potential conflict between the
[Maury’s] desires and your obligations that when you make decisions concerning
21
presentation of evidence that your primary duty is your obligation to present mitigating
evidence?
“[DEFENSE COUNSEL]: Yes, that’s absolutely clear.
“THE DEFENDANT: That’s where the problem comes in . . . because they insist
. . . they have to do that, but . . . I’m not trying to say I’m paying their bills, but I feel like
they’re working for me and so I should have some say with my case. If I went out and
hired [defense counsel] for $200 an hour, whatever he charges, and he got to court, I
would think he would be following my instructions.
“THE COURT: Normally, as you know, in 99.9 percent of the situations in these
cases, that is the case. In this one very limited area, he has dual responsibilities.
“THE DEFENDANT: I appreciate that.
“THE COURT: All right, gentlemen. Anything further you need to discuss?
“[DEFENSE COUNSEL]: No, sir.”
c. August 31 Hearing
Two days later, another in camera hearing was held after Maury indicated that he
wanted to “take over [his] defense.” In making this request, Maury clarified that he did
not want to discharge his attorneys, explaining that he wanted counsel present during the
penalty trial to “protect” any rights he might not know about.
During the ensuing in camera hearing, which occurred immediately before the
commencement of the penalty trial, Maury stated: “Well, I have some real problems --
my attorneys are both doing an outstanding job, and that’s one reason I want to take over
my defense is because they are doing such a good job. I think I would handle the penalty
phase in a different way, and I feel if I was able to defend myself, I would have more
control over the final phase. I mean, there are some witnesses that my lawyers want to
call that I can’t stop them from calling but I wouldn’t call.”
Upon questioning, Maury indicated that he understood his attorneys were “legally
bound” to present mitigating evidence, but reiterated that the reason he wanted to “take
22
over” his defense was because his attorneys were “doing a good job.” Maury explained
that he would “have to get on the stand” and personally address the jury if the proposed
defense witnesses testified. Later, Maury acknowledged that he had the right to testify at
the penalty trial, and that the proposed defense witnesses “might shed some sympathy on
[him].” Maury, however, explained that he did not want the witnesses to testify because
their testimony “would cause [his] family problems.” Specifically, Maury was concerned
that his father would stop “helping” his sister (Cummins), a single mother with three
children, if she testified about their upbringing, including his father’s physical and sexual
abuse. Maury was also concerned about Cummins’ wellbeing; he did not want her to
relive their difficult childhood on the witness stand. As for the psychiatrist his attorneys
intended to call, Maury said that he would not call that witness if he were representing
himself.
After hearing argument, the trial court denied Maury’s Faretta motion over
defense counsel’s objection. Relying on People v. Burton (1989) 48 Cal.3d 843, the
court found the motion untimely, citing various factors, including that defense counsel
had done a “good job” and that granting the motion at that juncture (“the very end of a
five-month trial”) would disrupt the proceedings. (See id. at p. 853 [identifying factors
trial courts consider in determining whether to grant a Faretta motion after trial has
commenced].) In so ruling, the court advised Maury that he had the right to tell the jury
the penalty he preferred, regardless of whether he was represented by counsel.
Following this hearing, the trial court advised the prosecution outside the presence
of the jury that it had granted Maury’s request to exclude his father from the courtroom
during the penalty trial, and denied Maury’s Faretta motion.10 The court noted that
10 Maury renewed his Faretta motion during the penalty trial after two mitigation
witnesses testified. At an in camera hearing, the trial court denied the motion for the
reasons it had previously stated. In so ruling, the court advised Maury that his attorneys
23
cameras would not be allowed in courtroom while Cummins was testifying, and that it
had “asked the press to use sensitivity and restraint in reporting the details of that
testimony.”
Thereafter, defense counsel explained that the defense intended on calling Susan
Szerencsy as a witness. When asked, counsel explained that Szerencsy, a “counselor”
employed by a social services organization, would testify that, in the summer of 1987,11
Maury requested medication for his brother, who (according to Maury) talked about
murder all the time and had “some serious mental conditions, delusions, hallucinations,
[and] various kinds of things like that.” According to counsel, Szerencsy believed that
Maury could have been referring to himself rather than his brother during this
conversation, and that Maury’s remarks would be offered as “a cry for help.” That is, for
the purpose of showing that Maury recognized he had a problem and wanted to do
something about it, not to “point[] the finger at [the] brother for responsibility for [the
charged] crimes.” Counsel noted that Szerencsy did not know whether Maury was
actually talking about himself, and that, in any event, counsel was not interested in
eliciting an opinion from Szerencsy on that point. Shortly thereafter, counsel made it
were “obligated to work to save [his] life,” but noted that Maury had the right to “tell the
jury what [he felt] should be done,” (i.e., his preferred penalty), which the court
characterized as a more “just way to proceed.” When defense counsel indicated that he
did not feel like he was representing Maury’s best interests by not seeking a death verdict
in accordance with Maury’s wishes, the court explained that counsel was legally required
to present the available mitigating evidence for the jury’s consideration in deciding the
appropriate penalty. As part of that discussion, the trial court advised Maury that, even if
defense counsel refused to call him as a witness, he had the right to take the witness stand
against the advice of counsel and make any statement he wanted. For his part, Maury did
not dispute counsel’s representation that the only reason he wanted to testify was to
ensure the jury returned a death verdict. Nor did Maury dispute that his counsel had
repeatedly advised him against testifying at the penalty trial.
11 Weeden disappeared in 1985 and Berryhill and Stark disappeared at the end of June
1987. (Maury, supra, 30 Cal.4th at p. 360.)
24
clear that Maury did not want Szerencsy to testify, explaining: “[Maury] feels that by
putting on this evidence that I’m in effect insinuating that he may be guilty of these
crimes, he is vehemently opposed to that, objects to my doing that, and the only reason
I’m doing that is because I feel I have an ethical obligation to put on evidence that may
be sympathetic to the jury and I think that . . . if this evidence is characterized as a cry for
help that it may be sympathetic.” In response, the trial court stated that it would “allow
the evidence.”
2. Opening Statements and the Penalty Trial Evidence
The defense did not make an opening statement at the outset of the penalty trial.
The prosecution, for its part, simply stated that the evidence presented at the guilt phase
was sufficient to justify a death verdict. Thereafter, the parties stipulated to the
admission of evidence showing that Maury had two prior felony convictions for receiving
stolen property.
The prosecution did not call any witnesses and the defense called three witnesses:
Szerencsy, Cummins, and Fred Rosenthal, M.D., Ph.D. (education and psychology).
After these witnesses testified, Maury (as promised) insisted on taking the witness stand.
As recounted more fully below, neither the prosecution nor the defense asked Maury any
questions. Instead, Maury read a prepared statement to the jury. No other evidence was
presented at the penalty trial.
Next, we summarize the pertinent portions of the penalty trial testimony.
a. Szerencsy
On direct examination, Szerencsy testified that she was a marriage and family
psychotherapist employed by Northern Valley Catholic Social Services, that she knew
Maury because he worked for her parents at a miniature golf course in the summer of
1987, and that, according to her father, Maury was very dependable, well-liked, and
friendly. Szerencsy described her relationship with Maury as “[v]ery casual;” they spoke
to each other every “once in a while.” In one of those conversations, Maury mentioned
25
that his brother was “giving this girl the creeps because he would sit in the living room
with the lights out and he would rock in a chair and he would talk about killing people.”
When Szerencsy told Maury that his brother “should seek help” (i.e., mental health
treatment) as soon as possible, Maury indicated that his brother had been treated or was
in treatment and was taking several antipsychotic medications. Thereafter, Maury asked
Szerencsy if she could provide him with antipsychotic medications. Szerencsy responded
in the negative, explaining that she could not prescribe medication because she was not a
psychiatrist. The following exchange then occurred between Szerencsy and defense
counsel:
“Q Okay. In your field of counseling do you ever encounter situations where a
client will come to you under the guise that he’s asking . . . [for] information to help a
relative or friend?
“A It’s not unusual.
“Q Well, what happens?
“A I don’t think it’s uncommon for . . . a client [to] come in and discuss a
particular event or difficulty they’re having in their life and pretend that it’s somebody
else.
“Q In this particular conversation that you had with [Maury] do you have any
opinion as to whether or not he was using that guise to get information?
“A I didn’t at the time, so --
“Q Do you now?
“A -- so I wouldn’t make that supposition. It’s possible.”
On cross-examination, Szerencsy recalled an uncomfortable conversation she had
with Maury. During that conversation, Maury asked Szerencsy whether he was the type
of guy she would ever “go out with.” When Szerencsy indicated that she had a
boyfriend, she “got the feeling that there was some agitation or some tension.” Upon
further questioning about this conversation, Szerencsy noted that Maury was wrapping a
26
“[s]tring or something” around his finger and pulling it.12 Later, Szerencsy indicated that
her father had nicknames for Maury, including “Bobby” and “Manson.”13
On redirect examination, Szerencsy clarified that her father’s “reference to
Manson” was based on Maury’s physical appearance (i.e., long hair and beard), not
Maury’s conduct, attitude, or behavior.
b. Cummins
Before Cummins took the witness stand, the trial court granted Maury’s request to
be absent from the courtroom during her testimony. Thereafter, Cummins told the jury
that she was Maury’s older sister, that she was around a year or so older than him, and
that they had two brothers, one of whom had been diagnosed as a paranoid schizophrenic.
When asked about her father, Cummins explained that he “started drinking really heavy”
on a daily basis when she was in the fourth grade (i.e., around nine years old), that he was
“always mean and vulgar and drunk all the time,” that he had “so much meanness and
hate inside him,” and that she did not have “any good memories from fourth grade on.”
Cummins added that her father was verbally abusive to her brothers, and would scream in
the house and spank them with a belt or switch at least two to three times per week.
Cummins also recalled instances where her father broke items in the house while
intoxicated, and noted that there were occasions when he tried to molest her by putting
his hands down her pants. Upon questioning, Cummins explained that she and her
12 At the guilt phase, there was evidence that Weeden had been strangled with a nylon
clothesline, Berryhill had been strangled with a scarf, and Stark had been strangled with a
boot string. (Maury, supra, 30 Cal.4th at pp. 361-362, 369-370, 372, 374, 398-401.)
There was also evidence that, prior to raping Jacqueline H., Maury placed a rope around
her neck and demanded she remove her clothes as he tightened the slip knot on the rope.
(Id. at pp. 364, 403.)
13 The “Manson” nickname was apparently a reference to Charles Manson, one of the
most infamous criminals in American history. Manson was a cult leader whose followers
carried out a series of murders in the late 1960s.
27
siblings “didn’t care for [their father] very much,” thought he was crazy, and were “really
afraid of him.” According to Cummins, nothing she or her siblings ever did was good
enough for their father, and that he never taught his children how to do anything.
As for her relationship with Maury, Cummins explained that he was “always real
nice” to her, and “always protective of [her]” from when she was in fourth grade until she
started high school. When asked, Cummins said that Maury “routinely smoked
marijuana” while he was in high school, but noted that he never “really” got into any
trouble at school and was never “violent towards classmates.”
c. Dr. Rosenthal
Dr. Rosenthal, a physician who specialized in the field of psychiatry, testified that
he conducted a psychiatric assessment of Maury in 1988. As part of that assessment, Dr.
Rosenthal concluded that Maury had “several areas of difficulty,” including mild
symptoms of depression, a very long history of heavy marijuana use, and emotional
problems from being raised by a verbally abusive and occasionally violent alcoholic
father. In reaching these conclusions, Dr. Rosenthal characterized Maury’s childhood as
“fairly difficult,” destructive, and “somewhat chaotic,” explaining that persons raised in
such a situation (like Maury) do not do well in school, cannot hold a job, are not
productive, and very often resort to drugs to “handle the feelings that they can’t otherwise
cope with.”
Upon questioning, Dr. Rosenthal opined that Maury was not suffering from any
antipsychotic symptoms, and that there was no evidence Maury had multiple personality
disorder, although Dr. Rosenthal believed Maury suffered from a non-severe type of
borderline personality disorder. Dr. Rosenthal emphasized that Maury did not have any
history of serious violence or anger (including severe anger against women), which he
explained would be expected if Maury had committed the charged offenses. According
to Dr. Rosenthal, Maury did not have the personality type “that would lead [one] to
28
predict that he would be able to behave in the way that he would have to behave in order
to commit [the] kinds of crimes” he was found guilty of committing.
On cross-examination, Dr. Rosenthal conceded that he could not “predict
categorically” whether or not a person was likely to be violent. However, he explained
that Maury did not have a history of violence or “serious psychopathology,” which are
“predictors” that are “very valuable if you’re trying to make that kind of decision.”
d. Maury
When Maury took the witness stand following the presentation of mitigating
evidence, defense counsel indicated that he did not have any questions for him. Maury
then read the following statement to the jury:
“Because of your verdict and findings I feel the only penalty that you can
conscientiously . . . consider is the death penalty. You found me guilty of three murders,
one rape, one attempted rape and one robbery. It’s totally unrealistic for you to give me
life in prison without parole. If you think I’m guilty, you give me the death penalty.
“I’ve got a lot of things written here, but I’ll quit right there.
“And I had a normal childhood. This stuff that they said, my family said, I’m not
going to say my family lied, but I’ll say they shaded the truth a little bit to help me. I had
a normal childhood.
“And drugs, the psychiatrist said I was depressed. I got them medications to help
[me] sleep, not because I was depressed. I don’t think I’ve ever been depressed in my
life. I’ve always been able to laugh. I don’t believe I’ve ever been depressed. So I got
that drug not for depression but to help me sleep.
“I’ll quit there.”
After the prosecution indicated that it had no questions for Maury, he made an
additional statement:
“Again, if you consider life without parole that leads me to believe there’s some
still some doubt in your mind about my guilt. And, again, I say if you think I’m guilty
29
then you give me life because that’s the only penalty that’s fair. Charles Riel last year
was convicted of one murder, one robbery; he got the death penalty. The death penalty
for one person. You say I’m guilty of three; you can’t give me life in prison, that’s
unrealistic. I can’t see it.
“I would like to say something about my lawyers. They’ve done a real good job
and on their closing arguments they’re going to get up, do a real good job. That’s their
job. They have to do that. I’m not telling you not to listen to them, but that’s their job.
They have to do it.”
3. Closing Argument
In closing argument, the prosecution asked the jury to return a death verdict,
relying on (as aggravating circumstances) the evidence presented at the guilt phase (i.e.,
the circumstances of the crimes and the existence of special circumstances), Maury’s
criminal history (two prior felony convictions for receiving stolen property), and the lack
of “anything in mitigation.” While the prosecution acknowledged that Maury had a
difficult upbringing, it argued that Maury’s childhood did not mitigate or excuse the
premeditated murders. As for other potentially mitigating circumstances, the prosecution
asserted that there was no evidence Maury “was acting under any kind of mental or
emotional disturbance” to justify a sentence other than death. The prosecution also
questioned the value of Szerencsy’s testimony, explaining: “[Szerencsy] said that
[Maury] came and talked to her once about a brother of his who had some serious mental
problems and there was some suggestion in the questioning that maybe [Maury] was
talking about himself. Well, maybe you could draw that conclusion reasonably if there
were no brother . . . that had these serious mental problems. We know that brother
existed and that he had those problems and, obviously, [Maury] was talking about him.”
In response, the defense argued that the appropriate penalty was life without the
possibility of parole. In support of its position, the defense claimed that the testimony of
Cummins and Dr. Rosenthal showed that Maury was not the “kind of person” who could
30
have committed the charged offenses, noting that there was no evidence showing Maury
had a history of violence. In other words, the defense took the position that Maury was
factually innocent. While the defense conceded there were two circumstances in
aggravation--the circumstances of the crimes of which Maury was convicted and his two
prior convictions--counsel argued that these factors did not warrant a death sentence. As
for circumstances in mitigation, the defense cited Maury’s “dysfunctional alcoholic
family,” the absence of any prior violent acts by Maury, his drug use, depression, and
cooperation with law enforcement (including not fleeing to avoid arrest), and Szerencsy’s
testimony suggesting that he was “seeking help” by “talking to her about medication” a
“sick brother” and murder. The defense made no further comment on Szerencsy’s
testimony.
4. Jury Instructions
Prior to penalty phase deliberations, the jury was instructed pursuant to various
pattern instructions, among which included CALJIC No. 8.84 (Penalty Trial-
Introductory), CALJIC No. 8.85 (Penalty Trial-Factors for Consideration), and CALJIC
No. 8.88 (Penalty Trial-Concluding Instruction). Among other things, the jurors were
told that the penalty for Maury was either death or life without the possibility of parole,
and that in determining the appropriate penalty, they were required to consider the
evidence received at both the guilt and penalty phases of trial as well as certain
aggravating and mitigating circumstances--e.g., the circumstances of the crime of which
defendant was convicted and the existence of any special circumstance found to be true,
the presence of any prior felony conviction, whether or not the offense was committed
while the defendant was under the influence of extreme mental or emotional disturbance,
any circumstance which extenuates the gravity of the crime, and any sympathetic or other
aspect of the defendant’s character offered as a basis for a sentence less than death. The
jurors were also told that they could consider any lingering or residual doubts as to
Maury’s guilt as a basis for determining that life without the possibility of parole was the
31
appropriate penalty. To justify a death verdict, the jurors were instructed that they “must
be persuaded that the aggravating circumstances [were] so substantial in comparison with
the mitigating circumstances that it warrant[ed] death instead of life without parole.”
B. Applicable Legal Principles
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the
defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its
result.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
The right to the assistance of counsel entitles a criminal defendant to “ ‘the
reasonably competent assistance of an attorney acting as his diligent conscientious
advocate.’ ” (People v. Ledesma, supra, 43 Cal.3d at p. 215.) A defendant who elects to
be represented, however, does not “surrender control entirely to counsel.” (McCoy,
supra, 584 U.S. at p. 421; see also Faretta, supra, 422 U.S. at p. 820 [the Sixth
Amendment “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is
still an assistant”].) Rather, the Sixth Amendment “contemplat[es] a norm in which the
accused, and not a lawyer, is master of his own defense.” (Gannett Co. v. DePasquale
(1979) 443 U.S. 368, 382, fn. 10.)
In criminal cases, counsel and client have different purviews. Trial management,
including strategy and tactics, is the lawyer’s province: “Counsel provides his or her
assistance by making decisions such as ‘what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude regarding the admission of
evidence.’ ” (McCoy, supra, 584 U.S. at p. 422; see Gonzalez v. United States (2008)
553 U.S. 242, 249 [counsel properly has the prerogative to control “choices affecting
conduct of the trial, including the objections to make, the witnesses to call, and the
arguments to advance”]; Faretta, supra, 422 U.S. at 820 [explaining that when one
“chooses to have a lawyer manage and present his case,” he cedes “the power to make
32
binding decisions of trial strategy in many areas”].) In contrast, “[s]ome decisions . . . are
reserved for the client—notably, whether to plead guilty, waive the right to a jury trial,
testify in one’s own behalf, and forgo an appeal.” (McCoy, at p. 422.)
Autonomy to decide that the objective of the defense is to maintain innocence of
the charged offenses falls within the category of decisions reserved for the defendant.
(McCoy, supra, 584 U.S. at p. 422.) As explained by the McCoy court: “Just as a
defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence
against h[im], or reject the assistance of legal counsel despite the defendant’s own
inexperience and lack of professional qualifications, so may []he insist on maintaining
h[is] innocence at the guilt phase of a capital trial. These are not strategic choices about
how best to achieve a client’s objectives; they are choices about what the client’s
objectives in fact are.” (Ibid.; see Weaver v. Massachusetts (2017) 582 U.S. 286, 295
[self-representation will often increase the likelihood of an unfavorable outcome but “is
based on the fundamental legal principle that a defendant must be allowed to make his
own choices about the proper way to protect his own liberty”]; Martinez v. Court of
Appeal (2000) 528 U.S. 152, 165 (Scalia, J., concurring in judgment) [“Our system of
laws generally presumes that the criminal defendant, after being fully informed, knows
his own best interests and does not need them dictated by the State”].)
McCoy held that a capital defendant has the Sixth Amendment right to insist that
counsel refrain from admitting guilt, even when counsel’s experienced-based view is that
confessing guilt offers the defendant the best chance to avoid the death penalty. (McCoy,
supra, 584 U.S. at pp. 417.) In so holding, the court explained: “With individual
liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not
counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining
mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to
prove his guilt beyond a reasonable doubt.” (Id. at pp. 417-418.)
33
In McCoy, the defendant (McCoy) was charged with three counts of first degree
murder after three of his estranged family members were shot and killed. Defense
counsel concluded that the evidence against McCoy was overwhelming and that the only
way to avoid the death penalty would be to concede guilt and urge mercy at the penalty
phase in view of McCoy’s “ ‘serious mental and emotional issues.’ ” (McCoy, supra, 584
U.S. at p. 420.) McCoy, however, “vociferously insisted” that he did not commit the
killings, clearly instructed his counsel to pursue acquittal instead of any concession of
guilt, and testified he was innocent. (Id. at p. 417.) Counsel nonetheless conceded that
McCoy was guilty of murdering the victims at both the guilt and penalty phases of trial,
and the jury returned three death verdicts. (Id. at pp. 417-420.) In concluding that a new
trial was warranted because counsel’s actions violated McCoy’s protected Sixth
Amendment “autonomy right” (id. at p. 426), the court explained: “Counsel may
reasonably assess a concession of guilt as best suited to avoiding the death penalty . . . .
But the client may not share that objective. He may wish to avoid, above all else, the
opprobrium that comes with admitting he killed family members. Or he may hold life in
prison not worth living and prefer to risk death for any hope, however small, of
exoneration. [Citations.] When a client expressly asserts that the objective of ‘his
defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by
that objective and may not override it by conceding guilt.” (Id. at 422-423.)14 The court
further held: “Violation of a defendant’s Sixth Amendment-secured autonomy ranks as
14 Cases finding McCoy error have involved counsel conceding guilt over the
defendant’s unambiguous objection. (See, e.g., McCoy, supra, 584 U.S. at pp. 420-421;
People v. Bloom (2022) 12 Cal.5th 1008, 1039 [collecting cases].) By contrast, “when a
defendant, informed by counsel [of a strategy to admit criminal conduct], neither
consents nor objects to the course counsel describes . . ., counsel is not automatically
barred from pursuing that course.” (Florida v. Nixon (2004) 543 U.S. 175, 178.)
34
error of the kind our decisions have called ‘structural’; when present, such an error is not
subject to harmless-error review.” (Id. at p. 427.)
We independently review the legal question of whether a defendant’s
constitutional rights were violated. (People v. Cromer (2001) 24 Cal.4th 889, 894;
People v. Palmer (2020) 49 Cal.App.5th 268, 280.) The constitutional right recognized
in McCoy applies in limited circumstances; it is only implicated where defense counsel
concedes guilt “over the defendant’s intransigent and unambiguous objection.” (See
McCoy, supra, 584 U.S. at p. 426.) To obtain relief under McCoy, the record must show
(1) that defendant’s plain objective was to maintain his innocence and pursue an
acquittal, and (2) that trial counsel disregarded that objective and overrode his client by
admitting guilt. (People v. Eddy (2019) 33 Cal.App.5th 472, 482-483.)
C. Analysis
We find no McCoy error. The circumstances of this case are not analogous to
those presented in McCoy. Unlike in McCoy, at no point did counsel override Maury’s
Sixth Amendment “autonomy right” to control the fundamental objective of his defense
by conceding guilt over his objection. Instead, against Maury’s expressed wishes,
counsel presented mitigation evidence (Szerencsy’s testimony) and argument at the
penalty trial from which the jury could have (at most) inferred consciousness of guilt on
the part of Maury. However, this was not tantamount to an admission of guilt for
purposes of the constitutional right recognized in McCoy. By presenting a defense at the
penalty trial, counsel did not deprive Maury of his right to determine that one of the
fundamental objectives of his defense at the penalty phase was to maintain innocence.
And the record reflects that, consistent with that objective, counsel asserted that Maury
was factually innocent at both the guilt and penalty phases.
Further, while it is undisputed that Maury’s objectives at the penalty phase were to
maintain his innocence and protect his family (by not presenting mitigating evidence
about his difficult upbringing), the record unequivocally reflects that Maury had a third
35
objective: obtaining a death verdict. At in camera hearings prior to the commencement
of the penalty trial, Maury made it clear that he preferred the death penalty, that he had
instructed his attorneys to “get that accomplished,” and that he was willing to stipulate to
a death verdict in exchange for the return of property seized by law enforcement. Maury
explained that while he understood his attorneys had a legal and/or moral obligation to
“put on some type of case” in mitigation, he did not want them to do so. Indeed, to
achieve his preferred penalty, Maury promised to “sabotage” any efforts by his attorneys
to “put on a good defense” by taking the stand at the penalty trial and “piss[ing] the jury
off.” Later, at an in camera hearing during the penalty trial, Maury reiterated that he
preferred the death penalty and indicated that he was prepared to personally address the
jury against the advice of counsel to express his view as to the appropriate penalty. As
indicated, following the presentation of mitigating evidence, Maury took the witness
stand and read a prepared statement, urging the jurors to return a death verdict if they
believed he was guilty of committing the charged offenses. Maury also told the jurors
that he had a normal childhood, that his sister (Cummins) had “shaded the truth a little bit
to help [him],” that he had never suffered from depression, and that his attorneys were
required to present mitigating evidence.
Here, counsel did not do what McCoy prohibits--concede guilt over Maury’s
express objection. Rather, at the guilt phase, counsel maintained that Maury was
factually innocent and urged the jury to acquit him of all charges. In doing so, counsel
emphasized that the prosecution had not met its burden of establishing guilt beyond a
reasonable doubt. (See Maury, supra, 30 Cal.4th at p. 375 [explaining that “[t]he primary
theory of the defense at trial was that the prosecution had not proven its case against
defendant”].) After the jury disagreed and found Maury guilty of the charged offenses,
including three counts of first degree murder, counsel evidently concluded that the best
strategy to avoid a death verdict at the penalty trial would be to present mitigating
evidence and maintain that Maury was factually innocent. This was a reasonable defense
36
strategy to achieve the best result possible for Maury under difficult circumstances.
Although the strategy was contrary to Maury’s stated objective of obtaining a death
verdict, reversal of the death judgment is not warranted under McCoy. Absent an express
concession of guilt by defense counsel or any other conduct or statement(s) tantamount to
such a concession, McCoy is not implicated.
To the extent defense counsel should not have presented a defense at the penalty
trial against Maury’s wishes,15 see People v. Amezcua and Flores (2019) 6 Cal.5th 886 at
page 925 (“among the core of fundamental questions over which a represented defendant
retains control is the decision whether or not to present a defense at the penalty phase of a
capital trial”),16 any error was harmless. In urging a contrary result, Maury insists that
under McCoy, he need not demonstrate prejudice because counsel’s error was structural
and therefore requires automatic reversal. We are unpersuaded. As we next explain, we
find Maury’s reliance on McCoy for this argument misplaced.
15 The record clearly demonstrates that Maury did not want his attorneys to call the
witnesses who testified at the penalty trial. There is nothing in the record suggesting that
Maury wanted to call any other witness. In other words, the record shows that Maury did
not wish to present a defense at the penalty trial.
16 The California Supreme Court recently held that a capital defendant is not deprived of
his Sixth Amendment right to counsel by virtue of his counsel’s acquiescence in the
defendant’s insistence that no defense be presented at the penalty phase. (People v.
Amezcua and Flores, supra, 6 Cal.5th at pp. 925-926; see also People v. Poore (2022) 13
Cal.5th 266, 306 [“ ‘To require defense counsel to present mitigating evidence over the
defendant’s objection would be inconsistent with an attorney’s paramount duty of loyalty
to the client and would undermine the trust, essential for effective representation, existing
between attorney and client’ ”].) In so holding, the Amezcua and Flores court explained
that the outcome was dictated by 30 years of precedent, beginning with People v. Bloom
(1989) 48 Cal.3d 1194. (Amezcua and Flores, at p. 925.) We note that our high court’s
decision in Bloom was issued in late June 1989, about two months before the penalty
phase in this case commenced. The trial record contains no discussion of Bloom.
37
McCoy reversed the guilt and death judgments in a capital case without any
inquiry into harmlessness. (See McCoy, supra, 584 U.S. pp. 426-428.) In finding that
there was no need to show prejudice, the United States Supreme Court concluded that the
Sixth Amendment autonomy right violated by counsel’s admission of guilt at the guilt
phase of a capital trial over his client’s express objection was structural because it
affected the framework within which the trial proceeded, as distinguished from a lapse or
flaw that was “ ‘simply an error in the trial process itself.’ ” (Id. at p. 427.) The court
further concluded that the error was structural because it violated “ ‘the fundamental legal
principle that a defendant must be allowed to make his own choices about the proper way
to protect his own liberty.’ ” (Ibid.) In reaching these conclusions, the high court
explained that such an error is not subject to harmless error review because it “blocks the
defendant’s [autonomy] right to make fundamental choices about his own defense” and
“the effects of the admission would be immeasurable,” since “a jury would almost
certainly be swayed by a lawyer’s concession of his client’s guilt.” (Id. at p. 428.)
We decline Maury’s invitation to extend the structural error found in McCoy to the
unique circumstances of this case. As our Supreme Court recently explained: “ ‘ “[M]ost
constitutional errors can be harmless.” [Citation.] “[I]f the defendant had counsel and
was tried by an impartial adjudicator, there is a strong presumption that any other
[constitutional] errors that may have occurred are subject to harmless-error analysis.” ’
[Citation.] We have therefore recognized that structural error is limited to circumstances
in which the error ‘necessarily affected the whole framework within which the trial
proceeded’ or ‘defies analysis for prejudice.’ ” (People v. Nieves (2021) 11 Cal.5th 404,
461.) Neither of these circumstances applies here.
As we have discussed, in contrast to McCoy, here Maury’s Sixth Amendment
autonomy right to insist that his counsel refrain from conceding guilt was not violated.
Rather, this case involved a disagreement over whether counsel should pursue Maury’s
preferred penalty at the penalty phase of a capital trial; specifically, whether counsel
38
should present mitigating evidence and argument overriding defendant’s desire to obtain
a death verdict. Further, unlike McCoy, Maury achieved the objective he desired,
notwithstanding his counsel’s best efforts to obtain a different result--a sentence of life
without the possibility of parole. We are not aware of any case, and Maury cites none,
establishing that the specific error asserted here belongs to the “ ‘ “very limited class of
errors” ’ ” recognized as structural error requiring reversal without regard to prejudice.
(See People v. Mendoza (2016) 62 Cal.4th 856, 900 [identifying examples of structural
error and referring to them as “belonging to a ‘highly exceptional category’ ”].) And
Maury offers no cogent legal analysis explaining why the structural error found in McCoy
extends to the factually distinct circumstances of this case. Indeed, Maury has not
persuasively articulated in his opening brief how the effects of the asserted error are
“immeasurable,” such that a new penalty trial is warranted without any need to show
prejudice. Instead, for the first time in his reply brief, Maury simply claims (without
elaboration) that the mitigating evidence had an “immeasurable impact” because it is
“difficult to tell the effect” that the evidence had on the jury. But the asserted
constitutional error is not of the kind that may be ranked as structural. It did not render
the penalty trial fundamentally unfair. It does not defy analysis by harmless error
standards. Thus, we reject Maury’s contention that he must be accorded a new penalty
trial without an examination of prejudice.
Because we find no structural error, and because Maury has failed to argue (let
alone demonstrate) that he suffered prejudice as result of the asserted error, he is not
entitled to habeas corpus relief. (See People v. Stewart (2004) 33 Cal.4th 425, 462-463.)
Even if Maury had properly raised a claim of prejudicial error, we would reject it.
Our review of the record convinces us beyond a reasonable doubt that the jury’s penalty
phase verdict would have been the same absent the Sixth Amendment violation asserted
by Maury. (See People v. Schuller (2023) 15 Cal.5th 237, 251 [the “beyond a reasonable
doubt” standard for harmlessness set forth in Chapman v. California (1967) 386 U.S. 18,
39
applies to federal constitutional errors].) This was not a close case. The Secret Witness
calls, the similarities of the victims, and Maury’s incriminating conduct and statements
made the case against him strong and compelling. After a lengthy trial, the jury
deliberated for a little more than one full day before reaching its guilt phase verdicts and
special circumstance findings. And the challenged mitigating evidence presented at the
penalty trial--Szerencsy’s testimony--was brief and did not amount to a concession of
guilt. When asked, Szerencsy merely indicated it was “possible” Maury was talking
about himself when he said (in the summer of 1987) that his brother was “giving this girl
the creeps because he would sit in the living room with the lights out and he would rock
in a chair and he would talk about killing people.” In closing argument, defense counsel
maintained (as they did during the guilt phase) that Maury was factually innocent of the
charged murders. As for the appropriate penalty, the defense cited several mitigating
factors, including Szerencsy’s testimony suggesting that Maury was “seeking help” by
“talking to her about medication” a “sick brother” and murder. The prosecution, for its
part, questioned the value of Szerencsy’s testimony, pointing out that Maury did in fact
have a brother with mental health issues.
Although the record clearly demonstrates that the trial court allowed defense
counsel to usurp control of an issue that the law now makes clear was within Maury’s
sole prerogative--namely, his Sixth Amendment autonomy right to decide that the
fundamental objective of the defense at the penalty phase was to obtain a death verdict--
we fail to see how Maury was prejudiced. Maury makes no effort in his opening brief to
explain how or why he would have obtained a more favorable outcome had counsel
pursued his preferred penalty, which would have included presenting no defense at the
penalty trial and asking the jury to return a death verdict. In his reply brief, Maury argues
that “but for the denial of his Sixth Amendment autonomy rights, [he] would not have felt
compelled to sabotage his penalty phase.” But Maury did not “sabotage” his objective of
obtaining a death verdict. To the contrary, he read a statement to the jury in an effort to
40
achieve that objective. After the mitigating evidence was presented, Maury took the
witness stand and made his position unmistakably clear as to what he believed the
appropriate penalty was. Among other things, he told the jury: “Because of your verdict
and findings I feel the only penalty that you can conscientiously . . . consider is the death
penalty. You found me guilty of three murders, one rape, one attempted rape and one
robbery. It’s totally unrealistic for you to give me life in prison without parole. If you
think I’m guilty, you give me the death penalty.” Thus, Maury effectively did what
defense counsel refused to do on his behalf, ask the jury for a death verdict. Under the
circumstances presented, we see no basis for reversal.
II
Remaining Contention
Equally unavailing is Maury’s related contention that, in denying his motions to
represent himself at the penalty phase pursuant to Faretta, supra, 422 U.S. 806, the trial
court improperly forced him to proceed with counsel burdened by an irreconcilable
conflict of interest, which adversely affected counsel’s performance, constructively
deprived him of the assistance of counsel, and prejudiced his case.
We conclude the superior court properly found that this claim is procedurally
barred as successive. Maury failed to show that it constitutes a “newly available” claim
within the meaning of Proposition 66 (e.g., the claim is based on a recent change in the
law), such that it was properly raised in his second (the instant) state habeas corpus
petition. (See Friend, supra, 11 Cal.5th at p. 724.)17 Nor did Maury make the requisite
showing under Proposition 66 to seek a second chance to make an argument he could
have made earlier. Maury did not demonstrate, by the preponderance of all available
17 The record reflects Maury raised an ineffective assistance of counsel claim in his
initial state habeas corpus petition that was predicated on a conflict of interest with his
attorneys that “developed” during the penalty phase of trial.
41
evidence, that he was actually innocent of any crime of which he was convicted or
ineligible for the death penalty. (Friend, at pp. 723-724, 727; § 1509, subd. (d).) And, as
the superior court correctly found, Maury did not satisfy his burden to avoid the
successiveness bar on grounds of ineffective assistance of prior appellate counsel.
Maury’s petition does not allege with specificity any facts supporting the conclusion that
the inadequate presentation or omission of this issue from his initial state habeas corpus
petition reflected incompetence of counsel. (Friend, at p. 731, fn. 5.)
In any event, even were we to assume that Maury’s claim is not procedurally
barred, we would reject it on the merits. In his opening brief, Maury makes little effort to
show reversible error, citing a handful of cases without providing any meaningful legal
analysis explaining how and why reversal is required. Consequently, no further
discussion of this issue is necessary. “ ‘Mere suggestions of error without supporting
argument or authority other than general abstract principles do not properly present
grounds for appellate review.’ ” (Multani v. Witkin & Neal (2013) 215 Cal.App.4th
1428, 1457.) “We may and do ‘disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by which the appellant reached
the conclusions he wants us to adopt.’ ” (Hernandez v. First Student, Inc. (2019) 37
Cal.App.5th 270, 277.)
Forfeiture aside, we see no basis for reversal.18 Contrary to Maury’s contention, a
new penalty trial is not required under United States v. Cronic (1984) 466 U.S. 648. (See
18 As noted, the trial court denied Maury’s Faretta motions as untimely. Although our
Supreme Court has declined to identify a specific period in time at which a motion for
self-representation is untimely, it has held on numerous occasions that such motions
made on the eve of trial are untimely. (People v. Wright (2021) 12 Cal.5th 419, 436.)
Here, Maury did not invoke his right to self-representation until the day the penalty trial
commenced, and he renewed his request to represent himself in the middle of the trial,
after two mitigation witnesses testified. Under these circumstances, the Faretta motions
were directed to the sound discretion of the trial court. (People v. Bloom, supra, 48
42
id. at pp. 658-662 [describing three situations in which a defendant need not show
prejudice to prevail on a claim of ineffective assistance of counsel].) In a conclusory
fashion, Maury asserts reversal is required because he was “forced” to proceed with
counsel “burdened by an irreconcilable conflict of interest,” which effectively denied him
his right to counsel at the penalty phase and constituted structural error. As our Supreme
Court has explained: “ ‘Defendants have been relieved of the obligation to show
prejudice [under Cronic] only where counsel was either totally absent or was prevented
from assisting the defendant at a critical stage. . . . In other circumstances, the petitioner
must show how specific errors undermined the reliability of the verdict.’ ” (People v.
Brown (2014) 59 Cal.4th 86, 115.) Maury has failed to show that this is the rare case
where Cronic’s presumed prejudice rule applies. And a fair reading of the record does
not support such a finding.
Maury has also failed to demonstrate that a new penalty trial is warranted because
his counsel labored under a conflict of interest at the penalty phase that compromised
their loyalty to him in violation of his Sixth Amendment right to the assistance of
counsel. In his reply brief, Maury specifically argues for the first time that his attorneys
were burdened by an actual conflict of interest that adversely affected their performance
and prejudiced him.19 As an initial matter, we deem this belated argument forfeited.
Cal.3d at p. 1220 [a motion for self-representation made for the first time after the guilt
phase of a capital trial is addressed to the trial court’s discretion].) On appeal, Maury
provides no legal argument demonstrating the trial court erred in denying his motions as
untimely. And we discern no abuse of discretion by the trial court. (People v. Horton
(1995) 11 Cal.4th 1068, 1110 [self-representation motion made on the date scheduled for
trial (shortly before the actual commencement of trial) untimely]; see also Wright, at pp.
432, 437-439 [Faretta motion made two days before the first day of trial was untimely];
People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made “moments before jury
selection was set to begin” deemed untimely].)
19 Maury did not make this specific argument in his second state habeas petition, request
for certificate of appealability, or opening brief.
43
(Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [a reviewing court will ordinarily not
consider arguments made for the first time on appeal]; Raceway Ford Cases (2016) 2
Cal.5th 161, 178 [“We generally do not consider arguments raised for the first time in a
reply brief”]; In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693 [“Basic notions
of fairness dictate that we decline to entertain arguments that a party has chosen to
withhold until the filing of its reply brief, because this deprives the respondent of the
opportunity to address them on appeal”].) But even if we were to consider the untimely
argument, we would find that it lacks merit.
The constitutional right to the assistance of counsel includes the correlative right
to representation free from any conflict of interest that undermines counsel’s loyalty to
his client. (People v. Wilson (2023) 14 Cal.5th 839, 861.) “ ‘ “[A] defendant is deprived
of his or her constitutional right to the assistance of counsel in certain circumstances
when, despite the physical presence of a defense attorney at trial, that attorney labored
under a conflict of interest that compromised his or her loyalty to the defendant.”
[Citation.] “As a general proposition, such conflicts ‘embrace all situations in which an
attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities
to another client or a third person or his own interests.’ ” ’ ” (Ibid.)
“ ‘Under the federal Constitution, prejudice is presumed when counsel suffers
from an actual conflict of interest. [Citation.] This presumption arises, however, “only if
the defendant demonstrates that counsel ‘actively represented conflicting interests’ and
that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ”
[Citations.] An actual conflict of interest means “a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.” [Citation.] Under
the federal precedents, which we have also applied to claims of conflict of interest under
the California Constitution, a defendant is required to show that counsel performed
deficiently and a reasonable probability exists that, but for counsel’s deficiencies, the
44
result of the proceeding would have been different.’ ” (People v. Wilson, supra, 14
Cal.5th at pp. 861-862.)
Maury has not demonstrated that his attorneys actively represented conflicting
interests during the penalty phase and that an actual conflict of interest adversely affected
their performance. Nor has Maury shown deficient performance by counsel that resulted
in prejudice. Simply put, Maury failed to establish that but for counsel’s alleged
deficiencies, the result of the penalty trial would have been different. Thus, Maury’s
conflict of interest claim fails. (People v. Ng (2022) 13 Cal.5th 448, 530 [to succeed on a
conflict of interest claim a defendant “must establish an actual conflict, deficient
performance, and prejudice”].)
DISPOSITION
The trial court’s order denying Maury’s second state habeas corpus petition is
affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Boulware Eurie, J.
45