IN THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA

CHOL SOO LEE,
Petitioner,
vs.
R. M. REES, Superintendent,
Respondent.

NO. 29268

PETITION FOR WRIT OF HABEAS CORPUS

OFFICE OF THE PUBLIC DEFENDER
FOR THE COUNTY OF SAN JOAQUIN
26 South San Joaquin Street
Stockton, California 95202
Telephone: (209) 944-2361

ROBERT N. CHARGIN, Public Defender
LEONARD K. TAUMAN, Deputy Public Defender
ROBERT C. BALL, Deputy Public Defender
Attorneys for Petitioner

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RECEIPT OF A COPY OF THIS DOCUMENT IS HEREBY ACKNOWLEDGED:

_______________DATE_____
OFFICE OF THE PUBLIC DEFENDER
FOR THE COUNTY OF SAN JOAQUIN
26 South San Joaquin Street
Stockton, California 95202
Telephone: (209) 944-2361
Attorneys for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN

CHOL SOO LEE,
Petitioner,
vs.
R. M. REES, Superintendent
Respondant.

NO. 29268

PETITION FOR WRIT OF
HABEAS CORPUS

TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN, HONORABLE CHRIS PAPAS, JUDGE PRESIDING:

Petitioner CHOL SOO LEE, petitions this Court for a Writ of Habeas Corpus, and by this verified Petition represents that:

1. Petitioner, CHOL SOO LEE, in whose behalf this Writ is applied for is confined or restrained of his liberty at Deuel Vocational Institute, Tracy, California by R. M. Rees, Superintendent.

2. Petitioner is confined under process of the Superior Court of Sacramento County following his conviction for first degree murder and sentenced to state prison in that Court in case No. 44362. The judgment sentencing Petitioner to state prison

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for the term prescribed by law was entered on July 10, 1974.

3. Petitioner entered a plea of not guilty in the above proceeding and was tried by a jury.

4. An appeal was taken from the judgment to the Court of Appeal, Third Appellate District in case No. 3 Crim. 7711. On April 30, 1975 that Court affirmed Petitioner's conviction in a written opinion not certified for publication. Said opinion is attached hereto and incorporated herein as Exhibit "A". No petition for hearing was filed in the California Supreme Court.

5. The grounds on which Petitioner claims that his imprisonment or detention is illegal are that he was denied his rights to the effective assistance of counsel prior to trial, at trial, and on appeal, both under Article I, Section 15 of the California Constitution and the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment; a denial of the defendant's right to withdraw his motion for a change of venue; the suppression of material evidence by the prosecution; and new evidence that was not available at the time of the trial.

6. The facts supporting the above allegations are, briefly stated, as follows:

(a) Mr. Hintz, Jr., defense counsel, contended throughout the trial that the San Francisco Public Defender's failure to locate and interview witnesses denied the Defendant his right to effective assistance of counsel. The Public Defender's Office

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was appointed in June of 1973. They withdrew following a change of venue of the trial from San Francisco to Sacramento, California. Judge Puglia appointed Mr. Hamilton Hintz of Sacramento, California to represent the Defendant in early April, 1974. At the time the Public Defender's file was turned over to Mr. Hintz, there was incomplete discovery in the file. At the time of his arraignment, the Public Defender's Office was given the names of several persons who could provide evidence of his whereabouts at the date and time of the shooting. These witnesses were never contacted by the Public Defender's Office and by the time of trial, they were unavailable. Thus none of LEE's potential alibi witnesses were present when the trial began on June 3, 1974, in Sacramento, California, due primarily to the failure of the San Francisco Public Defender's office to properly investigate and locate witnesses. See trial counsel's statement to the Court, contained in The Reporter's Transcript of Petitioner's trial at page 6-7. A copy of said transcript is separately lodged with the Court's Exhibit "R".

(b) The failure of trial counsel, Mr. Hintz, to insure that prejudicial testimony was not introduced into evidence against the Defendant, denied the Defendant of his right to effective assistance of counsel. Mr. Hintz called as a witness for the defense Inspector Frank Falzon and asked him if he knew of any motive as to why the victim was killed. This question at this juncture of the trial provided the prosecution with a motive and

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opened the door to a series of incriminating statements that were never contradicted or challenged. See trial counsel's questioning of the investigating officer, between pages 405 and 415 of the Reporter's Transcript of Petitioner's trial, at which he supplied a motive for the killing of Yip Yee Tak.

(c) The failure of appellate counsel, Mr. Hintz, to fully preserve on appeal the issue of his own inadequacy at trial and to raise the issue of coercive change of venue was a denial of Petitioner's right to competent counsel on appeal. See Appellant's opening brief dated January 2, 1975 and lodged with this Court as Exhibit "B".

(d) The failure of the trial court to allow the Defendant to withdraw his motion for change of venue, which request was made on March 21, 1974, was an abuse of discretion. A change of venue is the Defendant's motion and ordinarily may be withdrawn by him at any time prior to its being ruled upon by the court.

(e) The prosecution failed to supply to the San Francisco Public Defender and/or Mr. Hintz with San Francisco Police memoranda which proved that the prosecution had alternative theories as to the motive behind the killing; which contained information that would tend to negate the prosecution's theory that the killing was done in a willful, deliberate, and premeditated manner; and which disclosed the existence of percipient witnesses; all of which was discoverable under a discovery order filed September 13, 1973, see Exhibit "C"

(f) The prosecution failed to supply to the

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San Francisco Public Defender and/or Mr. Hintz a memorandum of the San Francisco Police dated June 4, 1973 indicating that minutes prior to the shooting, witnesses observed possibly same suspect exit a tan colored El Dorado or Coupe de Ville that was parked on Kearney near Pacific Avenue, said vehicle being either a 1972 or a 1973 vintage, light tan body with darker top in good condition.

(g) New evidence, in the form of undisclosed police reports and polygraph results, which was earlier unavailable, raise a substantial question of Petitioner's guilt or the murder charge.

The foregoing facts are more fully set forth in the memorandum of Points and Authorities attached hereto and by this reference incorporated herein.

7. No other applications, petitions or motions have been filed or made with regard to the same detention or restraint other than the appeal referred to above.

8. Apart from the issues raised on Petitioner's direct appeal, no ground set forth in (5) above has been previously presented to this or any other court, state or federal, in any petition, motion or application.

9. The grounds stated in (5) above have either been inadequately presented on Petitioner's direct appeal or not raised at all because Petitioner received inadequate representation on appeal, all as more fully set forth in the memorandum of Points

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and Authorities attached hereto and by this reference incorporated herein.

The conviction was entered on or about June 19, 1974 and the appeal was filed on or about January 2, 1975. On April 30, 1975 the Court of Appeal, Third Appellate District affirmed Petitioner's conviction in a written opinion not certified for publication. This office was appointed to represent the Defendant on or about October 18, 1977 when he was charged with the fatal stabbing of an inmate, while serving a sentence at Deuel Vocational Institute. Shortly after this court appointment, it became apparent in reviewing the facts of the present case that it was necessary to look into the original conviction of murder. This review has resulted in the filing of this petition for Writ of Habeas Corpus.

The delay of almost four years was occasioned by the fact that the Petitioner was totally unaware of the existence of this remedy and on the additional following grounds:

(a) Chol Soo Lee came to the United State from Korea as a 12 year old boy to rejoin his mother in San Francisco after years of separation.

(b) Within one year after his arrival, officials of the San Francisco school system and the juvenile authority decided LEE was beyond control and mentally disturbed.

(c) He suffered from the additional hardship of not knowing any English language except for his name and age and not having access to any Korean interpreters, counselors, or teachers.

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(d) He was diagnosed as adolescent schizophrenic and committed to McAuley Institute after a suicide attempt in juvenile hall where he tied a wet towel around his neck.

(e) In March of 1966 he was committed to Napa State Hospital for observation where he stayed for three months; after being declared sane, he was then placed in a Hayward foster home.

(f) In October of 1966 he ran away from his foster home and was picked up by the authorities and sent to juvenile hall and then to the California Youth Authority (CYA) in the summer of 1967 at age 15, where he served a 13 month sentence.

(g) His education has been limited, largely obtained through juvenile detention facilities, mental hospitals and prisons, and he is without experience or education in law.

(h) He did not know and was not aware of the existence of a possible writ of habeas corpus based on ineffectiveness of trial and appellate counsel, and the refusal to hold the trial in San Francisco.

(i) Incompetency of trial counsel and appellate counsel was not raised in his original appeal by Mr. Hintz, who was also his trial attorney.

(j) The new evidence came to light in 1978, and was not available prior to that date.

(k) The evidence of suppressed police reports became available only during 1978, consequent to a discovery order mandated in People v. Lee, Information 29268.

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The Petitioner is presently charged with violation of Penal Code section 187, murder of the first degree under Penal Code section 189. It is also alleged that the Defendant was in violation of Penal Code section 190.2(c) (5) having been present during the commission of the act causing death, and with the intent to cause death physically aided or committed such act or acts causing death, having been convicted in a prior proceeding of the offense of murder of the first or second degree. See Information 29268 and lodged with the Court as Exhibit "D".

10. In the proceeding resulting in the confinement complained of, Petitioner was represented by court-appointed counsel as follows:

(a) In proceedings prior to trial by:

1. Mr. Clifford Gould
   Deputy Public Defender
   Hall of Justice
   San Francisco, California; and
2. Hamilton Hintz, Jr.
   901 "H" Street, Suite 302
   Sacramento, California

(b) In all proceedings thereafter through the appeal by Hamilton L. Hintz, Jr.;

(c) In the preparation, presentation, or consideration of any petitions, motions or applications with respect to this conviction by:

Leonard K. Tauman and Robert C. Ball
Deputy Public Defenders
San Joaquin County
26 South San Joaquin Street
Stockton, California 95202

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11. Petitioner is currently represented by the Public Defender, San Joaquin County.

12. This petition is filed in this Court because Petitioner is here charged in case No. 29268 with murder in an Information which also alleges as a special circumstance under Penal Code section 190.2, subd. (c) (5) that Petitioner suffered a prior murder conviction: to wit, the conviction challenged in this petition. As the memorandum of Points and Authorities attached hereto and incorporated herein shows, Petitioner's only means of establishing the invalidity of the prior conviction is through the current petition. Because of the significance of the prior conviction (for case No. 29268), because the great bulk of the evidence in this petition is either uncontested or depends upon transcripts, briefs and other documentary materials available to the Court, because hearing in this matter in another county would result in unconscionable delay in proceedings on Information No. 29268, because all interested parties are in San Joaquin County and because Petitioner anticipates no difficulty securing the attendance of such witnesses as may be necessary, the interests of justice and the efficient administration of justice requires that proceedings on this writ be heard in this Court prior to trial in case No. 29268.

WHEREFORE, Petitioner prays as follows:

1. That the Court issue its Order to Show Cause returnable before this Court at a date, time and place to be specified

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inquiring into the legality of Petitioner's confinement and detention;

2. (a) That following receipt of the return and the traverse thereto, and after hearing, that this Court issue the writ ordering Petitioner discharged from custody of respondent.

(b) That the Court strike the special circumstance alleged in Information No. 29268.

3. For such other and further verdict as may be meet and proper.

DATED: July 17, 1978

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VERIFICATION

       

STATE OF CALIFORNIA	)
	:	ss
COUNTY OF SAN JOAQUIN	)

I, the undersigned, say:

That I am an attorney at law admitted to practice before all courts of the State of California, and have my office in the City of Stockton, San Joaquin County, California, and am the attorney for Petitioner in the action herein filed;

That I have read the foregoing document and know the contents thereof, and the same is true of my own knowledge and belief, except as to those matters which are herein stated upon my information or belief, and as to those matters I believe them to be true.

I certify under penalty of perjury that the foregoing is true and correct.

Executed on July 17, 1978, at Stockton, California.

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FACTS

The facts of this petition are based upon the Reporter's Transcript on Appeal, (RTA), Appellate Briefs for Appellant, (ABA), and police reports (PR), concerning the investigation of the 1973 shooting of Yip Yee Tak and affidavits, sequentially denominated, (Aff. 1, 2, 3, ...).

On June 3, 1973 in the early evening hours, Yip Yee Tak, an adult Chinese male was shot and killed in the crowded intersection of Pacific and Grant Streets in San Francisco's Chinatown. (RTA 225:7-12; 26:10-11; 38:24-28; 39:1-10; 62:1-28; 66:10-14; 70:205; 95:7-18; 103:13-28; 116:3-6; 177:18-29; 177:1-10)

Police arrived at the scene shortly thereafter and were confronted by a witness who came forward and pointed out to Officer Katz the weapon that had been discarded by the killer; the name of the witness went undetermined, but the gun was recovered by Crime Lab Inspector John Marotto. (PR 2, 3, 4, 9)

Police secured the firearm, a .38 caliber weapon, from Beckett Alley. (RTA 135:27-28; 136:1-5; 13; 140:17-20; PR 4) The police detained two witnesses who were taking photographs of the scene of the crime and other individuals in the area and confiscated their film. (PR 6) Police took five

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witnesses to the police station to view mug shot photographs; (RTA 46:1-7, 22-24; 104:14-21; 182:7-13; PR: 4; 12) three of these witnesses, Steve Main, David Lennon, and Andy Mill, saw the shooting while the other two witnesses, Lawrence Sonderson and John C. Huey, saw a man wearing clothing described by the first three witnesses moving from the location of Pacific and Grant immediately after the shots were fired. (RTA 39:1-13; 40:1-28; 69:12-28; 70:1-28; 79:1-4, 24-26; 80:1-6; 85:25-28; 87:25-28; 97:21-28; 98:8-16; 102:21-28; 103:1-17; 118:19-28; 119:1-12; 127:1-14; 178:13-24; 193:25-26; 194:5-6; PR 5)

At the police station, the witnesses were apparently divided into two groups, as above, and they selected several mug shots of persons who resembled the man whom they saw earlier in the evening. (RTA 46:14-27; 47:1524; 48:13-26; 49:24-28; 50:8-15; 41:18-20; 81:15-28; 104:14-28; 105:1-0, 21-26; 106:1-11; 121:21-25; 122:17-21; 129:3; 181:19027; 183:1-11) Included in those mug shots was a photograph of CHOL SOO LEE.

On June 2, 1973 Officers Marble and Armstrong were called to 452 Broadway Street on the report of a gun discharging. They found a bullet in the wall facing a window in the apartment CHOL SOO LEE was renting. After speaking briefly with LEE, the officers removed the bullet from the wall and left the premises. (RTA 237:4-8; PR 1)

On June 8, 1973, Officers Johnston and Snider arrested LEE as he returned to his apartment. On LEE's person the officers

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found a .357 Python revolver loaded with five live rounds of ammunition, and forty-one .38 caliber bullets in his possession. (RTA 261:22-25; 263:20-22; 246:1-14; 267:8-10; 299:2-3; 301:2-28; 302:23-28; 303:1-6, 25-28; 304:1-11; 305:1-28; PR 7) Subsequent investigation revealed that .38 caliber bullets were recovered from Tak's body. When arrested on June 8, 1973, LEE had .38 caliber bullets which fit the gun in his possession. (RTA 28:8-20; 29:1-28; 30:1-28; 31:1-8; 237:12-14; 312:28; 313; 314; 317:5-28; 318:1-8; PR: 9)

A line-up was conducted on June 11, 1973, which included LEE and five other Oriental males. (RTA 52:2-28; 53:14-26; 54:15-28; 106:12-28; 108:1-3; 123:16-18; 185:25-28; 188:6-17; PR: 13, 14,15,16) None of the people selected by the witnesses as looking like the killer at the June 3 mug shot observations were included in the line-up, other than LEE. (RTA 46:14-27; 47:15-24; 48:13-26; 49:24-28; 50:8-15; 51:18-20; 31:15-28; 104:14-28; 105:1-9, 21-26; 106:1-11; 121:21-25; 122:17-21; 129:3; 181:19-27; 183:1-11; PR 13)

Andy Mill, David Lennon, Lawrence Sanderson, John Huey, Michael Novak and Katherine Novak were present as witnesses to attempt an identification. (RTA 52:6-7; 106:12-18; 185:25-28; PR 13, 14, 15, 16) Andy Mill, David Lennon and John C. Huey selected LEE as the man they saw on June 3, 1973. (RTA 53:14-26; 54:15-28; 108:1-13; 123:16-18; 185:25-28; 188:6-17; PR 13, 14, 15, 16)

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Lawrence Sondreson selected Sing Lee Chang as the man most resembling the killer. (PR 13, 15) Michael Novak selected Randolph Wong, "if I had to guess, but couldn't be sure." (PR 13, 14) Katherine Novak made no identification. (PR 13, 15) All of the people viewing the line-up were white and all were percipient witnesses. (RTA 39:1-13; 40:1-28; 69:12-28; 70:1-38; 79:1-4, 24-26; 80:1-6; 85:25-28; 87:26-28; 97:21-28; 98:8-16; 102:21-28; 103:1-17; 118:19-28; 119:1-12; 127:1-14; 178:13-24; 193:25-26; 194:5-6; PR 5, 6, 13, 14, 15, 16)

A report dated June 15, 1973, made by Mitchell Luksich, a criminologist with the San Francisco Police Department, indicated that the bullet removed from the wall abutting LEE's room was dischareged from the weapon found in Beckett Alley, concededly the weapon used to kill Tak (PR 2, 10) After securing the right to have the bullet examined by an independent criminologist, the San Francisco Public Defender's Office, appointed as LEE's attorney, proved that the bullet did not match up to the gun found in Beckett Alley. (Affadavit by Gould, see Exhibit "E") Mr. Clifford Gould, Deputy Public Defender, confronted Mr. Luksich with this conclusion. Mr. Luksich admitted the bullet did not emanate from the .38 found on June 3, but indicated he had stated a contrary conclusion because he felt it was necessary to obtain a conviction. (Affadvait by Gould, see Exhibit "E")

Mr. Hintz claimed at trial and on appeal from the conviction that the San Francisco Public Defender who was appointed to represent

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LEE, was provided with the names of three witnesses who could furnish alibi evidence of his whereabouts on the evening of June 3, 1973. (RTA 479:3-12) The San Francisco Public Defender's Office made no effort to contact those witnesses during the ten months period that they were attorneys of record.

A discovery motion was filed by the Public Defender's Office on August 30, 1973, and granted by the San Francisco Superior Court on September 13, 1973. A motion for a change of venue was filed by the Public Defender's Office on September 4, 1973; this motion was originally denied by the trial court and the Defendant sought a writ of mandate in the Court of Appeal. On Feb. 13, 1974 the Appeal Court issued an Order that the trial court grant the change of venue and conduct a hearing on the feasibility of transferring the case to an appropriate county. On March 21, 1974, apparently realizing that a change of venue was not in the best interest of his client and recognizing the passage of time had mitigated earlier prejudical publicity, the Public Defender's Office, before the hearing of the trial court scheduled to act on the Appeals Court ruling, moved leave of the Court to withdraw his request for a change of venue. The trial court denied Defendant's request and conducted the hearing whereupon the case was removed to Sacramento County on that same date. (Exhibit "F")

On April 2, 1974, Hamilton Hintz, of Sacramento, California was appointed to represent Petitioner by the Honorable Robert K.

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Puglia, Presiding Judge of the Sacramento County Superior Court. (RTA 478:2-7) Mr. Hintz accepted the appointment as attorney contingent upon the San Francisco Public Defender's Office promise of assistance in securing witnesses and investigating various matters in the case, inasmuch as Mr. Hintz would not be able to properly investigate and prepare the case from Sacramento without such assistance. (RTA 477:12-28; 477:8-28; 479) This assistance by the San Francisco Public Defender's Office never materialized.

On May 31, 1974, Mr. Hintz hired an investigator in an effort to secure witnesses and learn more of the circumstances of the case. Cindy Miquel, a percipient witness to the shooting was subpoenaed by the defense. It was learned that other witnesses to the shooting were unavailable. (RTA 480:19-28; 481)

On June 3, 1974, trial commenced before the Honorable Robert W. Cole in the Superior Court of the State of California in and for the County of Sacramento. The trial lasted until Wednesday, June 19, 1974, when the jury after nine hours of deliberation including reread of testimony, found the Defendant guilty of murder as charged in the Information in the first degree. (RTA 517:17-22; 514:9-11; 515:13-14; 516:25-26)

During the course of the trial the prosecution called three percipient witnesses, Andy Mill, John Huey, and David Lennon who testified that they observed the shooting on the night of June 3, 1973 in Chinatown and saw the shooter in a rust colored

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jacket; that later that night they gave statements and descriptions of the shooter to the police and viewed mug shots at the police station where they picked out several persons with features similar to the shooter. On June 11, 1973, a line-up was conducted at the San Francisco Police Department whereupon these three individuals picked out LEE as the shooter from among six persons included in the line-up.

Robert R. Wright testified on behalf of the prosecution that he was a pathologist and that he examined the body of the victim identified to him to be Yip Yee Tak and that it was his opinion that the victim died as a result of gun shot wounds to the back of the head, right chest and shoulder; that he removed a bullet from the head and right side of the chest.

John M. Morotto testified on behalf of the prosecution that he was a San Francisco police officer as a member of the crime laboratory on June 3, 1973 and that he responded to a call along with Inspector Wayne Clemmont at approximately 8:10 p.m. and they observed the body of the victim and found a .38 caliber Smith & Wesson firearm in Beckett Alley, in proximity to the body of the victim, which five empty casings in the cylinder.

Florence Etcheveste testified on behalf of the prosecution that she was the manager of the Skyway Hotel in San Francisco located at 438 Broadway and that the Defendant was a tenant in apartment #8, having lived there approximately two months. On June 5, 1973, upon hearing loud noises she went to apartment

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#8 and heard a girl screaming from inside of the apartment, but could not identify the voice of the boy. She shouted from the hallway to be quiet or she would call the police, whereupon it became very quiet. The argument started again and she shouted that the police were coming, even though she had not called them, whereupon a girl ran out of the apartment and she heard sounds of furniture being moved or thrown emanating from the apartment. When she returned to her apartment she heard her dog bark and saw the Defendant climbing up the mountain in back of his apartment. One June 6, 1973 she talked to the Defendant who said he was sorry for what happened the day before and she told him that he no longer had an apartment there and that the police had come. She said that the Defendant asked her if his welfare check had arrived and asked her to keep it for him as he would be coming to pick it up. On June 6, 1973 she and her husband attempted to gain entry to apartment #8 but couldn't open the door due to the placement of a heavy dresser against the door. After removing the dresser they entered the room and found a sock containing a gun case between the two sheets on the bed; which sock they gave to the police later that same day. She cleaned up the room and found on top of a dresser an empty box containing Western X .38 special which she disposed into a garbage can outside the apartment, and gave to the police.

Kenneth Moses testified for the prosecution that he was a police inspector for San Francisco assigned to the crime

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laboratory and that he viewed the scene of LEE's apartment at 438 Broadway on June 7, 1973 and took various photographs of the interior of that apartment and viewed some clothing but never inventoried any rust, gold or mustard colored jacket.

At this point, Officer John Clearly and Officer Johnston of the San Francisco Police Department testified out of the presence of the jury concerning the stake out and arrest of the Defendant.

After the jury returned, Officer Johnston testified that he was assigned with his partner Officer William Snider to stake out the apartment of the Defendant and observed LEE at approximately 11:00 o'clock on June 7, 1973 and arrested him thereafter; he conducted a pat search and recovered a bag pouch containing 41 .38 caliber bullets and a .357 magnum from his waistband, containing five rounds of ammunition. At that time LEE said to Officer Johnston, "Go ahead and kill me. I would be better off." LEE was placed in the back of the police car and transported to the police station when he said "And I was going home to Korea in a couple of weeks." Officer Johnston said that on the night of the arrest, he had a faint mustache.

Mitchell Luksich testified on behalf of the prosecution that he was an assistant criminologist for the San Francisco Police Department assigned to the Crime Laboratory and that he examined the Smith and Wesson .38 special revolver, model #37 serial number J19385 that was found in Beckett Alley after the shooting

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and examined slugs that were fired from that weapon and compared them with the two slugs that were found by the pathologist in Tak's body. It was Lusksich's opinion that both slugs found in Tak's body were fired from the weapon found in Beckett Alley. It was also his opinion that of the five expended casings found in the murder weapon only one of these casings could have come from the box found in LEE's apartment.

Thomas M. Sullivan testified on behalf of the Defendant that he was employed by the San Francisco Adult Probation Department and was LEE's probation officer during a period in 1971, 1972 and 1973 for the offense of grand theft from a person which LEE pled guilty to in December, 1971 and was placed on three years probation. He indicated that he had either a phone conversation or a personal conversation with LEE on June 4, 1973, but could not remember which.

Lawrence Sonderson, one of the percipient witnesses, testified on behalf of the defense that he was in the vicinity of Columbus and Pacific Avenue on the night of the shooting and witnessed the shooter running across the street. He described the shooter as his height, about 5 feet 10 inches tall and 135-140 lbs. He stated that he did not recall the shooter having a mustache. Later he attended a line-up and identified suspect No. Four, Sing Lee Chang as the shooter because he had no mustache and was closer to the shooter's height than was LEE, suspect No. Five.

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Inspector Frank Falzon testified on behalf of the defense that he was a homocide inspector for the San Francisco Police Department assigned to investigate the killing of Yip Yee Tak. During the course of the investigation he secured statements from witnesses who observed the shooting and talked to Andy Mill, one of the prosecution's main witnesses who gave a description of the shooter as 23 to 24, about 5' 10"; the next day Mill indicated to him that he may have been wrong on the height and adjusted it to 5' 6" to 5' 8", wearing a gold jacket; according to Mr. Mill, no mustache was observed by him. Inspector Falzon also took a statement from John Huey on the day of the shooting and obtained a description of the shooter as Oriental, 5' 6" to 5' 8", 165 lbs. wearing a mustard colored jacket in his early twenties. According to Mr. Huey no mustache was observed by him. Inspector Falzon took a statement from David Lennon in which Mr. Lennon described the shooter as an Oriental male, about 5' 7", 145 lbs. wearing a rust colored jacket, 22 years old; according to Mr. Lennon no mustache was observed by him.

Inspector Falzon testified that he was responsible for separating into two groups the witnesses who viewed the mug book, Lawrence Sonderson and John Huey in one group and Andy Mill, Steve Main and David Lennon in the other group. The persons were supplied with a piece of paper and pencil and told to look at the photographs and pick out persons whose characteristics

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were similar to that of the shooter and jot their names down and mark the page. The witnesses selected five photographs from the books; Andy Mill and David Lennon picking out the picture of CHOL SOO LEE taken August 2, 1969. LEE was the only person selected in the photos that appeared in the line-up.

Inspector Falzon testified that the victim was of Chinese ancestry and that in the past two years there had been 18 gangland type killings of Chinese persons in Chinatown. Mr. Hintz asked Inspector Falzon if "you have any motive as to why Mr. Yip Yee Tak was killed." Falzon answered that the motive behind the killing was that LEE was a gun for hire, contracted by the Wah Ching Group of San Francisco to kill Tak because Tak was building up defense money to free two of his own gang members from prison, one of whom, Anton Wong, a reputed "leader" of the Wah Ching gang, was out on bail; that on May 24, 1973 Anton Wong was shot and killed on a Chinatown street and Tak absconded with some $10,000.00 shortly thereafter; that subsequently LEE was hired to kill Tak because he misappropriated the money. Inspector Falzon testified that Jerry and John Leng, two of Anton Wong's chief assistants in the Wah Ching gang appeared as No. One and No. Three respectively in the line-up along with Robert Louie, No. Two. He indicated that LEE was a member of the Ski Mask Bandits, headed by Robert Louie, and that he arrested Randolph Wong, suspect No. Six in the line-up, two

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years prior for murder. He said he last saw Randolph Wong shortly before the trial exiting the bedroom of a young lady named Cynthia McGill. In exchange for the killing of Tak, by LEE, Wang Fong, a member of the Wah Ching, group would not testify against Robert Louie, who was charged with the crime of assault with a deadly weapon; that this agreement was worked out between Robert Louie, head of the Ski Mask Bandits and Anton Wong, head of the Wah Ching group. Later Mr. Anton Wong was killed, Mr. Wang Fong testified against Robert Louie who was convicted of assault with a deadly weapon and shortly thereafter Wong was killed in an unsolved murder.

Inspector Falzon testified that neither Mr. Huey or Mr. Lennon mentioned a mustache on June 3, 1973, (the date of the shooting), June 11, 1973, (the date of the line-up), or June 28, 1973 (the date of the preliminary examination).

CHOL SOO LEE testified on his own behalf that he was twenty-one years of age and was living at 438 Broadway at the time of his arrest; that he had a cooking pot and some hot plates to cook with; that he was 5' 4", 125 lbs.; that on Sunday, June 3, 1973 he was in his apartment No. 8 at 7:30 p.m. when he received a telephone call from Cassandra Owang, his girlfriend, asking him to meet her at her job at the Fairmont Hotel after work; that he didn't tell Inspector Falzon her last name as he didn't want them to involve her due to her family's disapproval of him; that he left with his girl about 10:15 p.m. on foot walking down

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Stockton Street, stopped to eat at a restaurant at Jackson and Grant Street and returned to his apartment with his girlfriend around 11:00 p.m.; that the following morning, Monday, June 4, 1973 he went to a movie and then to see Thomas Sullivan at his probation office in the Hall of Justice at 850 Bryant Street at approximately 12:00 Noon to tell him about the gun shot that went off in his room on the previous Friday; that he had been attempting to clean the gun, that he didn't know how to handle it and it discharged; that he returned to his apartment with his girlfriend and spent the night of June 4, 1973; that on June 5, Tuesday, around 11:00 o'clock he and his girlfriend got into an argument over her wanting to leave and go to her grandmother's house; that she subsequently left when his landlady Florence Etcheveste appeared at the door and requested that they calm down; that he was informed by Mrs. Etcheveste that she had called the police and not wanting to be found in his apartment with a gun and bullets, he left his room and went to see Joanie Hu, who lived at 608 Anza; that the next day he called Mrs. Etcheveste to inquire about his welfare check and apologized to her for the argument whereupon she told him that he had to move out and clean everything out of the apartment; that the clothes he was wearing when he left on June 5 were the same clothes that he was wearing when he was arrested; that he last saw Cassandra Owang in June of 1973; that he is not a member of any Wah Ching, Ching Ching Yee or Ski Mask Bandit

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gang; that he did not take out a contract to hit or kill the deceased.

On cross-examination LEE testified that he had known Cassandra Owang for about a year prior to June of 1973, but told Inspector Cleary and Falzon on June 8, 1973 that he did not know her last name; that he took the empyty cartridge out of the gun after he accidently fired it into the wall on June 2, 1973, and threw it away in the waste can in his room as he had no other use for it; that he placed pebbles in the hole in the adjoining wall; that when Cassandra left the room he accidently knocked the dresser over in front of the door, took his black shirt, his gun and some bullets and went out the back window; that on the nights of June 5, 6, 1973 he stayed at Joanie Hu's house.

The prosecution was allowed to elicit from the Defendant, without objection, that he knew Ronald Gong, a member of the Ski Mask Bandits, who was in jail awaiting trial for the bank robberies committed with Philip Gee, also known by LEE; that LEE and Gee both came to Reno in the same car; that the police took guns out of the trunk, and that LEE had a marked ten dollar bill in his possession that was bait money from the bank, but was not prosecuted; that he kept newspaper clippings of his arrest with the Ski Mask Bandits in his room.

In rebuttal the prosecution called Insepector Falzon to the stand. He testified that on or about June 7, or 8, 1973,

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he had a conversation with Mr. LEE shortly after his arrest whereby LEE was advised of his rights pertaining to the Miranda decision and that LEE told him that he had discovered the weapon about one week ago; that he stated to Falzon that he could not remember leaving his apartment on the date of June 3, 1973; that he was familiar with the intersection where the shooting took place and that Mr.Huey could not have seen the shooter after he turned onto Columbus.

On June 18, 1974, after closing arguments by the respective attorneys, in which the defense argued only the question of identity of the shooter, the Court instructed the jury and at 2:52 p.m. the jury left the courtroom in the company of the bailiff to begin deliberation; they returned into court at 5:10 p.m. and were discharged for the rest of that day. On June 19, 1974 they began deliberations at 10:00 a.m. and returned to the court at 3:05 p.m. for purposes of having certain testimony reread; they retired to deliberate at 3:06 p.m. and returned to the courtroom at 4:54 p.m., whereupon the foreman of the jury handed the verdict to the clerk. The verdict in the case of People of the State of California vs. CHOL SOO LEE, case No. 44362, was guilty of the crime of murder in the first degree. The verdict in the case of People of the State of California vs. CHOL SOO LEE, case No. 44263, was guilty of the use of a firearm in the commission of the offense of murder. (See Exhibit "H")

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On July 10, 1974, a motion for a new trial was denied and it was the judgment and sentence of the Court that the Defendant be confined in the state prison of the State of California for the term prescribed by law.

Mr. LEE began serving his sentence and was returned to Deuel Vocational Institute in Tracy, California where he presently is incarcerated.

On October 8, 1977, the Petitioner was charged by the San Joaquin District Attorney with violation of the Penal Code of the State of California, section 187, murder, alleging special circumstances. Subsequent to the filing of this charge the San Joaquin Public Defender was routinely supplied with all material relating to this current charge, as well as materials relating to the former murder conviction, by the San Joaquin District Attorney. Included in the material were two police reports which had never been furnished to either the San Francisco Public Defender or Mr. Hintz. (See Exhibits "I", "J", "K" and "L")

On April 12, 1978 and April 13, 1978 the Petitioner was administered a two-phase polygraph examination at Deuel Vocational Institute in Tracy, California by Baxter Associates Inc. and they disclosed that he was being truthful when he denied any involvment in the shooting death of Yip Yee Tak. (See Exhibit "M")

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PEITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This petition establishes the constitutional invalidity of the conviction which Petitioner suffered on July 10, 1974, and which has been made the basis for the special circumstance allegation under Penal Code 190.2 subdivision (C) (5) contained in Information No. 29268, currently on file in this Court. Petitioner here shows the representation he received at trial was woefully inadequate and not only withdrew a crucial defense, but, in one instance actually supplied the prosecution with evidence of motive which it would not otherwise have had; that material evidence was suppressed by the prosecution, thus denying the Petitioner a fair trial; that appellate counsel failed to raise substantial issues on appeal, thus denying Petitioner adequate assistance of counsel in appeal; that newly discovered evidence provides grounds for granting extraordinary relief; and that the Petitioner's trial should have been held in San Francisco. This memorandum sets forth in detail the facts supporting the contention of inadequate representation and the other legal principles by which the Court must be guided.

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I
HABEAS CORPUS IS THE APPROPRIATE REMEDY TO CHALLANGE THE CONSTITUTIONALITY OF PETITIONER'S PRIOR CONVICTION

Issues involving incompetency of trial counsel

or appellate counsel^[2] have traditionally fallen within the perview of the Writ of Habeas Corpus. Violations of a person's right to a fair trial, and to due process, in this case through denial of disclosure of essential evidence in the hands of the prosecution, are likewise within the scope of the Writ.^[3] Newly discovered evidence may be heard through issuance of this Writ.^[4] The right of Petitioner to raise the issue of the denial of the right to be tried in the jurisdiction wherein the crime arose seems a matter of first impression. The right has been accorded Constitutional standing,^[5] however, and errors of constitutional dimension are appropriately reachable by Habeas Corpus. The same result is reached when it is acknowledged the issue was not properly raised on appeal because of the ineffective assistance of counsel.

It is significant that habeas corpus relief is the only available method of challenging the constitutionality of a prior conviction used for enhancement purposes under 190.2(C) (5), once the period of appeal has lapsed,^[6] yet the United States Supreme

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Court has held that the use of unconstitutionally obtained prior conviction for sentence-enhancement purposes is itself unconstitutional^[7] absent limited, inapplicable circumstances^[8]; thus habeas corpus must be made available to Petitioner to afford Petitioner some avenue to review the constitutionality of his prior conviction.^[9]

II
JURISDICTION

A

Jurisdiction properly lies with any Superior Court in California.^[10] The proper Court to issue the Writ of Habeas Corpus is the Court wherein Petitioner is illegally confined.^[11] As Petitioner is in custody of R. M. Rees, Superintendent at Deuel Vocational Institute, located in San Joaquin County, the Superior Court has proper jurisdiction.

B

The Return should issue to San Joaquin County. While San Joaquin County Superior Court may, and under ordinary circumstances should, make the Writ returnable to the Court of judgment, Sacramento County Superior Court, this general rule is not mandatary and discretion should be exercised where appropriate.^[12] Given the unusual circumstances of this case, San Joaquin County is the natural and appropriate Court to hear the merits of this Petition.^[13]

Initially, it should be noted that all parties and witnesses,

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save one, are as conveniently served by San Joaquin County Courts as they might be by Sacramento County Courts. Indeed, Petitioner and his counsel reside in San Joaquin County; and the prosecutor in Information 29268, People v. Lee, a case which will be substantially affected by the Writ of Habeas Corpus, also resides and practices in that County.

Unlike most cases, the underlying conviction in this Petition occurred in one county, while the charge arose in another county. Thus, the witnesses and prosecuting authorities are as dislocated in Sacramento as they might be in Stockton; and the Sacramento Court and its officials and officers have a less compelling interest in the matter than they might otherwise.

Sacramento had only a transient, though critical, involvement in the case.

Certainly San Joaquin County does have a great and compelling interest in the habeas corpus proceeding. It must be noted that the Information presented at the hearing will be relevant to later hearings on the propiety of the special circumstance allegation of Information 29268, People v. Lee, presently pending trial in San Joaquin County. A Petition for Writ of Habeas Corpus should in fact be joined with another substantially affected proceeding, where resolution of the issues raised by the Petition is necessary to a proper resolution of the other proceeding.^[14] Much duplication of judicial work will be avoided by issuing the Writ returnable to that County.

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Judicial economy and orderliness will be effectuated if all matters related to People v. Lee, Information 29268, are heard expeditiously in the same judicial district, as wasteful continuances and unnecessary delays may be avoided.

The People of San Joaquin County, its citizens^[15] and judges^[16] will make the decision of life, or death, for Petitioner. It cannot be gainsaid that any other county has greater, or more proper, concern with the issues raised in the Habeas Corpus Petition. Certainly the enormity of all these factors mandate that San Joaquin County retain jurisdiction over this Petition for Writ of Habeas Corpus.

III
MATERIAL EVIDENCE WAS SUPPRESSED BY THE PROSECUTION, DENYING PETITIONER A FAIR TRIAL

The purpose of discovery is to ascertain the truth and insure that the defendant receives a fair trial.^[17] Unless there is a governmental requirement of confidentiality,^[18] the State has no interest in denying the defendant access to any evidence which may shed light on the issues in the case.^[19] Indeed, the State has the duty of disclosure, and to produce evidence which might aid in the defense regardless of the defense's request.^[20]

A defendant is entitled to discovery when he could not obtain the information through his own efforts and it is evident that the information will aid him in the preparation of his defense.^[21] Criminal discovery must be flexible and does not

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apply only to information in the prosecutor's possession; the prosecutor must make a diligent, good faith effort to acquire evidence in the hands of other agencies in the criminal justice system and make such evidence available to the defendant.^[22]

A failure to disclose material evidence to an accused deprives the accused of a fair trial, irrespective of the good or bad faith of the prosecutor.^[23] When material evidence bearing upon the issue of guilt is suppressed or otherwise made unavailable to the defense by conduct attributable to the State, and such conduct results in a denial of a fair trial, reversal is required, without weighing the degree of prejudice to the accused.^[24] A denial of due process also results if the prosecution, although not soliciting false evidence, allows a misleading and false impression to go uncorrected when it appears; it matters little that a false impression goes only to the credibility of a prosecution witness or that the prosecutor's silence was not the result of guile or a desire to prejudice.^[25]

In United States ex rel. Thompson v. Dye,^[26] the prosecution did not communicate to the defendant's attorney at the time of the trial that several police officers had, when arresting the defendant, detected the odor of alcohol on the defendant's breath, and that he appeared to have been involved in a fight. The prosecution's theory of the case was that the defendant committed the murder either during the course of an armed

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robbery, or willfully and with premeditation. At the trial the defendant contended that he could not formulate the intent necessary to raise the killing to 1^st degree murder. The prosecution introduced police testimony that the defendant was perfectly normal four hours after his arrest. After trial, the defense learned that at least one of the arresting officers told the prosecution that the defendant was almost drunk. The Court, pointing out that the defendant's testimony was not believed by the jury and that the witnesses' testimony had been discredited by the State, held that the suppressed evidence if revealed might well have induced the jury to believe the defendant's evidence about his physical and mental state that could have resulted in a finding of second degree murder, or in a recommendation for life imprisonment. Admittedly the jury might well not have accepted the defendant's testimony and credited the policeman's, but this conjecture did not permit that evidence to be brushed aside as merely cumulative. It could not be held as a matter of law to be unimportant to the defense, as it was substantial evidence which should have been, but never was, submitted to a jury.

In Lee v. United States,^[27] the Court ordered a new trial where the prosecution failed to provide the name of an eyewitness who observed a person fleeing from the scene of the crime. The Court found little merit in the claim that the evidence was not favorable, ruling that the failure of the government to disclose

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the existence of an eyewitness to the crime itself, or to entry upon or flight from the scene of a crime is a denial of that defendant's fundamental rights.

Original notes and statements of all law enforcement personnel made during their investigation are discoverable.^[28] These materials were specifically requested by defense counsel in a motion for pretrial discovery, filed on August 30, 1973;^[29] and the prosecution was ordered to supply the defense such notes and documents by the Honorable Judge Ertola on September 13, 1973.^[30] Likewise, the prosecution was ordered to disclose any and all statements of any persons who had knowledge about the case.^[31] The State failed to supply several critical police reports to the defense. Certainly the most critical report was that dated June 6, 1973. The information was vital to the defense on at lease three independent grounds: first, it contained information suggesting the motive for Tak's slaying might well have been other than sworn to by Inspector Falzon during trial; secondly, it contained evidence that an undis-closed eyewitness saw, and might well be able to identify, Tak's killer; finally, it contained information which probably would have reduced the crime from murder to manslaughter.

During his testimony, Inspector Falzon testified to the proported police theory of the killing.^[32] This "theory" led to the inescapable conclusion, if believed (as it apparently was) and unrebutted (as it certainly was), that the killing of

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Tak was a first degree murder. Yet the police theory at the time of the investigation did not relate solely to the "contract killing" testified to by Inspector Falzon. Rather, the police were in possession of at least three reasons Tak might have been killed. The defense was never provided with this critical information. If Tak had indeed been a suspect in several rapes, defense investigation might have disclosed the identity of several persons with a motive to kill him. Further, the defense might have been able to demonstrate the possibility that the crime committed was manslaughter. It is important to consider that the question of motive was put to Inspector Falzon unambiguously during trial,^[33] yet he failed even there to disclose the several police theories despite the fact that it was his report which first put those possibilities forward.

The remainder of the report of June 6, 1973,^[34] dealt primarily with information provided by a confidential informant who was probably a percipient witness to the killing. The informant advised the police that Tak and another person were seen having coffee together moments before the shooting. "They were seen shaking hands and an apparant agreement made. They left together wherein a verbal argument ensued and minutes later Yip Yang (Tak) was shot."

The suppression of the information of the confidential informant requires the grant of a new trial for two independent reasons. First, the suppressed report supplies a substantial

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basis for concluding the killing of Tak was a manslaughter, a killing upon a sudden argument or in the heat of passion. Defense counsel conceded at closing argument, based on the information provided him, that the killing of Tak was a first degree murder, pure and simple. Defense counsel was never provided with any information mitigating the degree or nature of the offense; yet material, probative and compelling evidence of mitigation existed, secreted in police files.^[35]

More important, the informant, unnamed and unknown to the defense, was also in a position to identify the person who actually shot Yip Yee Tak (aka Yip Young). The name of the informant should have been provided to the Defendant;^[36] instead, the Defendant and his attorneys were left wholly unaware of the existence of this witness. There is a clear mandate in the law, a mandate reinforced by the explicit order of discovery granted in this case, that the existence of witnesses be made known to the defense. The flagrant violation of the law and this order deprived Defendant of a fair trial.

Other reports were also not provided. The most significant of those reports contained information concerning the vehicle the killer used at the scene.^[37] This information could have led to further evidence relating to the offense. Most obviously, it would have led to the source of the information to the police, who may have known the killer, or known others who may have had further evidence on the case.

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IV
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner was represented for ten months by the Public Defender's Office of San Francisco County, and for the remaining few weeks prior to trial by Hamilton Hintz, Jr., a Sacramento attorney appointed following the change of venue. Clearly the substitution threw the defense of Petitioner into disequilibrium, aptly described by Mr. Hintz during and following trial.^[38] Nevertheless, Mr. Hintz felt disinclined toward asking for any continuance. In this unsettled state the trial defense of LEE began.

At the outset matters seemed well in hand. The State's store of admissible evidence consisted of (1) the frail circumstance that Petitioner had, when arrested several days after Tak's death, some .38 caliber bullets, which were the same caliber used in Tak's shooting, and (2) the direct testimony of Messrs. Lennon, Mill, and Huey, all of whom had given descriptions of the killer that were at great variance with LEE.^[39] Further, although the charge was murder, there was no evidence of malice or premeditation. Finally, there was no motive to the killing. This absence cast doubt upon the identity of the perpetrator, and compromised any State claim of malice or premeditation.

When the State rested its case in chief, the posture of the case was as outlined above. Unhappily, defense counsel was not

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content with the gaping holes in the State's case. Counsel could have simply introduced rather formidable defense evidence available, which included the testimony of Mr. Sullivan (Petitioner's probation officer),^[40] Mr. Sondreson (a percipient witness who swore Petitioner was not the man who shot Tak)^[41] and Petitioner himself. Instead, counsel roared into the fray like a bull into a china shop, with much the same result.

Defense counsel called Inspector Falzon to the stand in Petitioner's case in chief. After establishing Inspector Falzon's credentials as chief investigator for the San Francisco Police Department in this case, counsel asked "As the officer in charge of this investigation, Mr. Falzon, do you have any motive as to why this man was killed? Any knowledge of a motive as to why Mr. Yip Yee Tak was killed?"^[42] Obviously surprised by the good fortune visited upon him by this gratuitous, purposeless inquiry, Inspector Falzon could only muster, "Yes sir, I do," in response. Defense counsel continued, "Would you state that for the jury", and Inspector Falzon answered.^[43] When the tinkle of porcelain and glass finally abated, the defense case was in shambles. Now probing here and there to find some way to glue the case back together again, counsel only compounded the problem. It became clear by the end of Inspector Falzon's testimony that counsel had no purpose in "opening the door" to the rumors, rank gossip, prior arrests, suggestive affilitations, and other grossly prejudicial and patently inadmissible evidence which

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poured into the case. When Deputy District Attorney Lassart completed his "cross-examination" of Inspector Falzon, the defense lay in shards.^[44]

The standard of competency in California is the farce or sham test; to wit, has the inadequacy of trial counsel reduced the proceedings to a farce, a sham, or a mockery of justice.^[45] Although a forceful argument can be advanced that the standard against which the Courts should measure the compentency of criminal defense counsel charged with protecting the liberty and sometimes even the life of his client (who generally has little choice as to his attorney), should be no more rigorous than the standard employed to measure the competency of civil counsel^[45] (or criminal defense counsel where a civil action is pursued); yet even assuming the continued viability of the farce or sham test Defendant was denied the effective assistance of counsel.

It is almost tautological that competent defense counsel does not ask a question which presents a witness favoring the State an opportunity to gratuitously damage the Defendant's case (in other words the proverbial "why question"), especially when the question invites otherwise inadmissible evidence. The only exception, palpably, is when some compelling purpose is served which will, or at least may, override the damage done. Here, no such purpose manifested itself. Even employing a much less critical test, to wit, what purpose may have been served,

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no satisfacory explanation suggests itself—except that defense counsel blundered. Defense counsel's actions "cannot be explained on the basis of any knowledgeable choice of tactics."^[47]

Defense counsel countered not a single piece of inadmissible testimony that he invited into the courtroom. The evidence furthered no theory of the defense; it merely proved a specter, and finally a shroud, over the proceedings. When counsel finally argued the case, he was trapped into arguing the killing was a "first degree murder, pure and simple."^[48] As to identity, the taint of Inspector Falzon's testimony left little question of the jury's eventual verdict.

The facts in In re Julius B. are strikingly similar to the facts in this case. There, a minor tried for murder relied heavily upon the issue of identity. While admissible evidence of identity existed, it was equivocal. The juvenile's attorney elicited through a police officer damaging hearsay statements of a co-defendant who was then pending trial, and therefore unavailable. The evidence adduced by the minor's counsel pointed unswervingly to the minor's guilt. "The elicitation of inadmissible and highly prejudicial hearsay was not only lethal to the defense, but totally unnecessary."^[49]

The Court pointed out that "the fact that the situation in which the minor found himself resulted from the conduct of his own counsel does not negate but, instead, contributes to the view that his trial was reduced to a 'farce or a sham' ". Stressing that competent defense counsel is counsel "reasonably likely

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to render, and rendering, reasonably effective assistance,"^[50] (emphasis in original), the Court reversed the Juvenile Court's order sustaining the petition.^[51]

The difference between counsel who turns a trial into a mockery of justice, and counsel who merely goes off beaten paths with disagreeable results, is oftentimes difficult to measure. Not so in this case. Initially, it is clear that had the State introduced the evidence in question, and had counsel objected,^[52] the admission of this evidence would have required reversal.^[53] It is incontestable that when a man is convicted by rumors of gang affiliation, by his prior arrests, by his presence when others of sordid backgrounds are arrested, by police speculation of possible motives, the proceedings have turned into a mockery of justice.^[54] When it is defense counsel who, gratuitously and without conceivable purpose, brings such evidence into a case, it is defense counsel who has turned the case into a sham, a mockery of justice.

APPELLATE COUNSEL FAILED TO RAISE TWO SUBSTANTIAL ISSUES ON APPEAL, THUS DENYING PETITIONER ADEQUATE ASSISTANCE OF COUNSEL ON APPEAL

On appeal Mr. Hamilton Hintz, Jr., was appointed to act as appellate counsel for the Petitioner. Mr. Hintz failed to raise the issue of the competency of trial counsel, an issue discussed above.^[55] Further he failed to raise the issue of improper

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change of venue, discussed below.^[56] These failures on the part of appellate counsel prevented the appellate court from making an informed appraisal on the trial record submitted to it for its consideration.^[57]

The California Supreme Court delineated in People v. Feggans and subsequent cases,^[58] the duties of appellate counsel. As stated in In re Smith,^[59] "...Rather, we held that '[c]ounsel's failure to object precluded resolution of the cruial factual issues supporting defendant's primary defense.' (Id. at p. 466) The defense was crucial because it arguably might have produced a verdict for defendant, not because it would have inevitably achieved a favorable result."

Claims of ineffective representation on appeal are likewise reviewable on habeas corpus.^[60] In fact the issue concerning incompetence of trial counsel can only be raised here because, as in In re Hochberg,

"Petitioner could not present [his] constitutional contention on appeal because its factual basis were not revealed by the record on appeal. The very ineffectiveness of trial counsel that is the subject of [his] complaint included his failure to make a record [of his own incompetence]..."^[61]

The abject failure of Mr. Hintz as trial counsel to insure that prejudicial testimony would not be introduced into evidence against his client reduced the trial to a farce and a sham within the meaning of Ibarra.^[62] As appellate counsel, his failure to raise "the issue of his own ineffectiveness at the trial level, and his failure to raise the issue of improper change of venue, was incompetent and denied the Petitioner adequate assistance of

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counsel on appeal.^[63]

Where counsel provides ineffective assistance on appeal, a hearing must be held on the merits of the claim which was inadequately presented.^[64]

VI
NEWLY DISCOVERED EVIDENCE IN THE CONTEXT OF THIS CASE PROVIDES GROUNDS FOR GRANTING EXTRAORDINARY RELIEF

Evidence of guilt in this case was equivocal. Although Petitioner was identified by three of the several witnesses to view the line-up at the behest of the police,^[65] the identification procedure was entirely slanted toward that result.^[66] The witnesses who did identify Petitioner had a fleeting glimpse of the man who they said fired the shot on June 3, 1973.^[67] However, the only circumstantial evidence of guilt was the Petitioner's possession, several days after the shooting, of similar .38 caliber bullets which fit the gun Petitioner was carrying, concededly not the murder weapon.^[68] Predictably, it was only after lengthy deliberation that the jury arrived at a verdict.^[69]

During closing argument, defense counsel conceded that the killing was a murder and presented the issue as one of identity, pure and simple.^[70] Newly discovered evidence casts a shadow over not only the identity of the man who shot Yip Yee Tak, but over the degree of the crime. This evidence, in the form of two reports which are attached to this petition, discloses that the

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police knew of a witness who saw the shooting and saw an argument between a suspect and Yip Yee Tak, aka Yip Yee, moments prior to Tak's death,^[71] and that the police knew of a witness who saw the same suspect exit a tan colored El Dorado or Coupe de Ville that was parked on Kearney near Pacific Avenue, said vehicle being either a 1972-1973 vintage, light tan body with darker top.^[72] These reports should have been supplied to defense counsel and even assuming arguendo that the suppression of these reports does not require the granting of habeas corpus relief, certainly they provide evidence that the killing was not a murder. In the first instance, if the killing resulted from an earlier rape by Yip Yee Tak, as surmised by the police, investigation might have disclosed that the killer was operating under the heat of passion. Additionally, if the killing resulted from an argument moments earlier, again it was probably only a manslaughter.

In addition to the police memoranda, which surfaced only recently, new evidence is also available in the form of polygraph results demonstrating the veracity of Petitioner's repeated assertions that he did not shoot Yip Yee Tak.^[73] Petitioner urges this Court to consider the polygraph results in any hearing on this matter.

Since 1973 when the Frye decision set the precedent for rejecting lie detection testimony on the basis of its lack of acceptance in the scientific community,^[74] the concept has grown

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to acceptance by the courts by stipulations of this scientific evidence if the principles are supported by expert testimony demonstrating that it is sufficiently valid to insure probative value.^[75]

While the traditional rule in California has excluded the unbridled use of polygraphs, this case calls for independent assessment of that general rule. Initially, and perhaps most critically, the examination is offered not to a jury, frequently susceptible to exaggerated and sometimes unfounded conclusions of polygraph "experts", but presents these results to this Court, which is experienced in allocating proper weight to difficult and sundry forms of evidence.

In People v. Houser,^[76] the first appellate decision was made to admit polygraph tests results in evidence. The findings were indicative of deception regarding the defendant's denial of the accusation, but after conviction, the guilty verdict was appealed on the basis that the polygraphist was not an expert in his field. The California District Court of Appeal affirmed the trial court's decision.

A number of cases have admitted polygraph evidence on the ground that such testimony fell within the category of relevant evidence, having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable.^[77]

In United States v. Ridling, (E.D.Mich. 1972) 350 F.Supp.90,

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the Court indicated that the psychological basis for the polygraph was well established and that there was considerable usage of this approach by governmental agencies, law enforcement and industry. Concerns related to excessive weight being given to the polygraph testimony by the jury did not seem to be justified, in that it was believed that juries were much more aware and knowledgeable than in the past and able to evaluate the evidence appropriately.^[78]

A barrier to the common use of the polygraph in Court has been the danger presented by the possible exploitation of inexperienced, perhaps, incompetent, lie detector examiners and reviewers whose conclusions might involve a Court in a fruitless "battle of experts", mooting whatever gain might otherwise be had, and in the end wasting valuable Court time and confusing the real issues. This case will involve the testimony of men pre-eminent in their fields including Cleve Baxter, Dr. Stanley Abrams, and Dr. Gordon M. Barland, all renowned authorities in this field.

The final argument frequently interposed to the introduction of polygraph results in Court, concerns the question of the reliability of the test. Petitioner will submit the question to the Court, and the Court, after a review of the testimony, will certainly be able to properly evaluate the tests reliability on its merits.

When placed in the proper context, the polygraph can serve

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as an effective tool helping to ensure that justice is done. Certainly when the State exercises a claim upon a human being, asking that the Judiciary take a man's life, every reliable, probative measure of guilt presented should be scrutinized by the Court. In this case the Petitioner is prepared to present penetrating proof of his innocence of the killing of Yip Yee Tak.

VII
THE TRIAL OF DEFENDANT SHOULD HAVE BEEN HELD IN SAN FRANCISCO, FOLLOWING HIS EFFORTS TO WITHDRAW HIS CHANGE OF VENUE MOTION

On September 4, 1973, Petitioner moved for a change of venue^[79] before the Honorable Judge Morton R. Colvin, sitting as Superior Court in and for the City and County of San Francisco. On February 13, 1974, a preemptory Writ of Mandate was issued by the First Appellate District Court of Appeals, directing the lower Court (San Francisco Superior Court) to grant such motion.^[80]

On March 21, 1974, prior to the granting of the motion, Petitioner moved to withdraw his original motion. The lower Court took this matter under submission and, at a subsequent hearing, denied the motion to withdraw, and granted the motion to change venue. The Court based the denial on the grounds: first, the Court doubted its jurisdiction to entertain the motion to withdraw, given the mandate from the Court of Appeals; second, the Court reasoned that the determination by the Appellate Court that adverse publicity in San Francisco could deny Petitioner a fair trial was binding, therefore not ordering

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a change of venue would result in a trial in a jurisdiction where a fair trial could not be had.^[81]

A motion for a change of venue, absent extraordinary circumstances not applicable here, is a defendant's to make.^[82] As Younger v. Smith^[83] made clear, "one thing, however, is certain; no change of venue can be forced down the defendant's throat."

A defendant clearly has the right to be tried in the Courts of the community where the alleged crime arose.^[84] This centuries old right is designed to ensure that a panel of peers sits in judgment over the defendant; it guarantees a jury composed of people of backgrounds similar to the defendant, and with peripheral orientation to the circumstances and situs of the alleged crime.^[85]

The motion for change of venue, calling for the waiver of a right to jury trial in the vicinage, is much like a waiver of the right to trial by jury itself. These waivers must be made explicitly, unequivocally, by the defendant. Once the right is waived, even after the waiver has been accepted, the right need not disappear forever. The waiver may be withdrawn, given certain conditions. In People v. Melton,^[86] the defendant waived a jury and had the matter set for a court trial. A week later the defendant moved to withdraw his previous waiver. The motion was denied in the trial court. The Appellate Court reversed, stating:

"A waiver of trial by jury, voluntarily and regularly made, cannot afterwards be withdrawn

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except in the discretion of the court. [citations] In the exercise of the discretion thus vested in it, the court may consider such matters as the timeliness of the motion to withdraw the waiver and whether a delay of the trial or inconvenience to witnesses would result from the granting of such motion... On the other hand, where to request to withdraw the waiver of jury trial is made sufficiently in advance of trial so as not to interfere with the orderly administration of the business of the court as to result in unnecessary delay or inconvenience to witnesses or to the prejudice of the other party to the action, the court should exercise its discretion to allow the moving party the jury trial he seeks. Certainly when dealing with a right so fundamental as to be characterized by our Constitution as one which should 'remain inviolate', the court should only deny the privilege thus accorded a defendant charged with crime to a trial by his peers where some adverse consequences will flow from his change of mind... To provide the necessary venire is a duty of the State arising under the Constitution of which it may not constitutionally complain." ^[88]

Similarly in People v. Osmon,^[89] the Court stated:

"The request to withdraw the waiver of the jury trial was made in the present case one week before December 12, the date to which the matter had been continued after the stipulation with respect to the use of the testimony at the preliminary examination and the consideration of the written medical reports... Inasmuch as both the person whose apartment was entered and one of the police officers were present at the trial on December 22, it does not appear that there would have been any substantial inconvenience of witnesses, or any prejudice to the legitimate interest of the prosecution if the motion had been granted. It cannot reasonably be argued that the granting of such motion would have had an adverse effect upon the proper administration of justice. There was a clear abuse of discretion in the refusal of the court to permit a trial by jury and to give relief from the stipulation to which reference has been made."

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Where as here, the request to withdraw a motion for a change of venue is made sufficiently prior to trial, so as not to result in unnecessary delay to the Courts, inconvenience to witnesses, or prejudice to the People, the Court should allow the moving party to withdraw his motion for change of venue.

CONCLUSION

For all of the above entitled reasons, Petitioner respectfully submits that the foregoing Writ of Habeas Corpus should thus be granted.

DATED: July 17, 1978

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FOOTNOTES

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About this text
Courtesy of Special Collections/UCD, General Library, UC Davis, 100 North West Quad, Davis, CA 95616-5292; http://www.lib.ucdavis.edu/specol/
http://content.cdlib.org/view?docId=hb4b69n9nd&brand=oac4
Title: Petition for Writ of Habeas Corpus
Date: [July 17, 1978]
Contributing Institution: Special Collections/UCD, General Library, UC Davis, 100 North West Quad, Davis, CA 95616-5292; http://www.lib.ucdavis.edu/specol/
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Special Collections, General Library, UC Davis, 100 North West Quad, Davis, CA 95616-5292