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Final Piece of Scott Peterson Appeal 1 Shelley Sandusky (Bar No. 155857) Andras Farkas (Bar No. 254302) 2 HABEAS CORPUS RESOURCE CENTER 3 303 Second Street, Suite 400 South San Francisco, California 94107 4 Telephone: (415) 348-3800 5 Facsimile: (415) 348-3873 E-mail: [email protected] 6 7 Cliff Gardner (Bar No. 93782) 1448 San Pablo Avenue 8 Berkeley, CA 94702 Telephone: (510) 524-1093 9 Email: [email protected] 10 Attorneys for Defendant-Petitioner Scott Lee Peterson 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF SAN MATEO 13 In re Case No. SC055500A 14 CAPITAL CASE 15 SCOTT LEE PETERSON 16 Related to: California Supreme Court No. On Habeas Corpus. S230782 (on habeas corpus) and No. S132449 17 (on direct appeal). 18 DENIAL TO RETURN TO ORDER TO 19 SHOW CAUSE 20 Hon. Anne-Christine Massullo 21 San Francisco Superior Court Judge, Sitting by Designation in San Mateo Superior Court 22 23 24 25 26 27 28 DENIAL TO RETURN TO ORDER TO SHOW CAUSE 1 TABLE OF CONTENTS 2 Table of Authorities ............................................................................................................. 4 3 Denial to Return to Order to Show Cause ........................................................................... 6 4 Introduction ......................................................................................................................... 6 5 I. PETITIONER’S NEW FACTUAL ALLEGATIONS BASED ON EVIDENCE RESPONDENT REVEALED IN ITS RETURN ............................... 11 6 II. FACTS RESPONDENT HAS ADMITTED AND DISPUTED IN 7 CONNECTION WITH THE JUROR MISCONDUCT CLAIM ............................ 13 8 A. Factual Allegations Respondent Has Admitted. ............................................... 14 9 B. Factual Allegations Deemed Admitted by Operation of Law. ......................... 14 10 C. Factual Allegations Respondent Denies. .......................................................... 17 11 12 1. Purely Semantic Denials. ............................................................................ 18 13 2. Denials of a Material Fact. .......................................................................... 19 14 III. MR. PETERSON’S RESPONSE TO RESPONDENT’S ADDITIONAL FACTUAL ALLEGATIONS. ................................................................................. 23 15 16 A. Facts Affirmatively Alleged in Respondent’s Return ...................................... 23 17 B. Facts “Alleged” in the Memorandum of Points and Authorities ...................... 25 18 IV. REINCORPORATION OF FACTUAL ALLEGATIONS FROM THE PETITION. .............................................................................................................. 26 19 20 V. CONCLUSION ........................................................................................................ 26 21 MEMORANDUM OF POINTS AND AUTHORITIES ................................................... 27 22 I. INTRODUCTION ................................................................................................... 27 23 II. STATEMENT OF FACTS ...................................................................................... 27 24 A. The Jury Questionnaire ..................................................................................... 28 25 B. Voir Dire of Juror 7 ........................................................................................... 29 26 C. The Marcella Kinsey Incident ........................................................................... 31 27 D. The Eddie Whiteside Incident ........................................................................... 32 28 2 DENIAL TO RETURN AND MEMORANDUM OF POINTS AND AUTHORITIES 1 E. The Second Marcella Kinsey Incident .............................................................. 34 2 F. Juror 7’s Post-Verdict Letters to Mr. Peterson ................................................. 34 3 III. ARGUMENT ........................................................................................................... 36 4 A. In Light of the Supreme Court’s Order to Show Cause and the 5 Numerous Factual Disputes Between the Parties, an Evidentiary Hearing Is Required. ......................................................................................... 37 6 1. The Language of the Supreme Court’s October 14, 2020 Order 7 Requires an Evidentiary Hearing ................................................................ 38 8 2. Because Respondent Disputes Key Facts in Connection with the 9 Juror Misconduct Claim, and Relies Almost Entirely on Juror 7’s “Good Faith,” an Evidentiary Hearing Is Required. ............................. 41 10 11 B. Evidentiary Issues in Connection With the Jury Misconduct Claim. ............... 45 12 1. Juror 7’s Post-Trial Conduct Is Relevant to Pre-Trial Prejudice ................ 45 13 2. Juror 7’s Statements During Deliberations Are Not Barred Under Evidence Code Section 1150, Subdivision (a). ................................ 47 14 15 IV. CONCLUSION ........................................................................................................ 49 16 VERIFICATION ............................................................................................................... 50 17 18 19 20 21 22 23 24 25 26 27 28 3 DENIAL TO RETURN AND MEMORANDUM OF POINTS AND AUTHORITIES 1 TABLE OF AUTHORITIES 2 3 Cases 4 In re Boyette 5 (2013) 56 Cal.4th 866 .................................................................................................. 45 6 Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970 ....................................................................................... 46 7 8 In re Fratus (2012) 204 Cal.App.4th 1339 ...................................................................................... 15 9 In re Hardy 10 (2007) 41 Cal.4th 977 .................................................................................................. 42 11 In re Hochberg 12 (1970) 2 Cal.3d 870 ..................................................................................................... 38 13 In re Manriquez (2018) 5 Cal.5th 785 ........................................................................................ 42, 44, 48 14 15 People v. Cleveland (2001) 25 Cal.4th 466 .................................................................................................. 48 16 People v. Duvall 17 (1995) 9 Cal.4th 464 ............................................................................................. passim 18 People v. Hord 19 (1993) 15 Cal.App.4th 711 .......................................................................................... 48 20 People v. Romero (1995) 8 Cal.4th 728 ........................................................................................ 23, 26, 38 21 22 Rose v. Superior Court (2000) 81 Cal.App.4th 564 .............................................................................. 39, 40, 41 23 Smith v. Phillips 24 (1982) 455 U.S. 209 ..................................................................................................... 45 25 United States v. Parse 26 (2d Cir. 2015) 789 F.3d 83 ..................................................................................... 46, 47 27 Wainwright v. Witt (1985) 469 U.S. 412 ..................................................................................................... 45 28 4 DENIAL TO RETURN AND MEMORANDUM OF POINTS AND AUTHORITIES 1 Williams v. Taylor (2000) 529 U.S. 420 ..................................................................................................... 42 2 Statutes 3 4 Evid. Code § 1150 ............................................................................................................. 17 5 Evid. Code § 1150, subd. (a) ....................................................................................... 47, 48 6 Pen. Code § 166, subd. (a)(4) ............................................................................................. 34 7 Pen. Code § 236 (4) ..................................................................................................... 11, 33 8 Pen. Code § 242 ........................................................................................................... 11, 33 9 Pen. Code § 243, subd. (e) ........................................................................................... 11, 33 10 Pen. Code § 273.5, subd. (a) ........................................................................................ 11, 33 11 Pen. Code § 273A, subd. (b) ........................................................................................ 11, 33 12 13 Pen. Code § 594 ................................................................................................................. 32 14 Pen. Code § 1484 ............................................................................................................... 25 15 Rules of Court 16 Cal. Rules of Court, rule 4.551 .............................................................................. 15, 16, 17 17 Cal. Rules of Court, rule 4.551, subd. (d) .......................................................................... 15 18 Other Authorities 19 National Institutes of Health, About Pregnancy, 20 (https://www.nichd.nih.gov/health/topics/pregnancy/conditioninfo) .................... 12, 34 21 22 23 24 25 26 27 28 5 DENIAL TO RETURN AND MEMORANDUM OF POINTS AND AUTHORITIES 1 DENIAL TO RETURN TO ORDER TO SHOW CAUSE 2 TO THE HONORABLE ANNE-CHRISTINE MASSULLO, SAN FRANCISCO 3 SUPERIOR COURT JUDGE SITTING AS SAN MATEO COUNTY SUPERIOR 4 COURT JUDGE: 5 By this verified
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