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In re Cowan

Filed 6/18/18 IN THE SUPREME COURT OF CALIFORNIA In re ROBERT WESLEY COWAN ) ) S158073 on Habeas Corpus. ) ____________________________________) In 1996, a Kern County jury convicted petitioner Robert Wesley Cowan of the first degree murders of Clifford and Alma Merck (Pen. Code, §§ 187, subd. (a), 189; all undesignated statutory references are to this code) and found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and murder during the commission of robbery and burglary (id., subd. (a)(17)(A), (G)). As to each murder, the jury found that a principal had been armed with a firearm (§ 12022, subd. (a)(1)), and the trial court found that Cowan had suffered a prior serious felony conviction (§ 667, subd. (a)). The jury was unable to reach a verdict on a murder count involving a third victim, Jewell Russell, and the trial court declared a mistrial on that count. At the penalty phase, the jury returned a verdict of death for Alma’s murder and a verdict of life imprisonment without the possibility of parole for Clifford’s murder. The trial court imposed the death sentence with a one-year arming enhancement for Alma’s murder, a consecutive sentence of life imprisonment without possibility of parole plus a one-year arming enhancement for Clifford’s murder, and a five-year enhancement for the prior serious felony conviction. On automatic appeal, this court affirmed the judgment in its entirety. (People v. Cowan (2010) 50 Cal.4th 401, 415 (Cowan).) While his appeal was pending, Cowan filed a petition for writ of habeas corpus petition in this court. In Claim 2 of the petition, he alleged that Juror No. 045882 committed misconduct by intentionally concealing that he previously had been convicted of public fighting (§ 415, subd. (1)) and was then on probation. On June 22, 2011, this court issued an order instructing the Secretary of the Department of Corrections and Rehabilitation (CDCR) to show cause why we should not grant Cowan relief based on juror misconduct. After the Attorney General, representing CDCR, filed a return and Cowan filed a traverse, we appointed a referee and ordered him to take evidence and make findings of fact on the following questions: 1. Is Juror No. 045882 the person who was cited for public fighting, a misdemeanor violation of section 415, subdivision (1), on January 14, 1995; was charged with a violation of that section on January 18, 1995; pled guilty to that offense on February 6, 1995; and received a sentence of three years’ probation and a fine of $225, as reflected in the court file in Bakersfield Municipal Court No. 506741B? 2. If so, what were Juror No. 045882’s reasons for failing to disclose these facts on his juror questionnaire and during voir dire at Cowan’s trial? 3. Was the nondisclosure intentional and deliberate? 4. Considering Juror No. 045882’s reasons for failing to disclose these facts, was his nondisclosure of the above facts indicative of juror bias? 5. Was Juror No. 045882 actually biased against Cowan? The referee conducted …
Original document
Source: California Supreme Court