In re Bacigalupo

On petitioner’s automatic appeal in this death penalty case, we affirmed the judgment. Thereafter, petitioner filed a habeas corpus petition. We ordered an evidentiary hearing on petitioner’s claim that the prosecution had failed to disclose evidence that would have supported a case in mitigation at the penalty phase that petitioner committed the two murders *315 because of a Colombian drug cartel’s death threats against him and his family. After hearing the testimony of 17 witnesses, the referee found merit to petitioner’s claim. We uphold that determination by the referee, and we grant petitioner’s habeas corpus petition for relief from the judgment of death.

I. Procedural Background

In April 1987, a jury found petitioner Miguel Angel Bacigalupo guilty of the December 29, 1983, murders of brothers Orestes and Jose Luis Guerrero. (Pen. Code, § 187; further undesignated statutory references are to the Penal Code.) The jury also found to be true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) committed during a robbery (former § 190.2, subd. (a)(17)(i)). 1 The jury returned a verdict of death. In June 1987, the.trial court sentenced defendant…

I join the court’s opinion. The prosecution’s withholding of favorable, material evidence that would have been provided by a confidential informant, Gale Kesselman, violated petitioner’s right to due process under Brady v. Maryland (1963) 373 U.S. 83, 87 [ 10 L.Ed.2d 215 , 83 S.Ct. 1194 ] and entitles him to relief. I write separately to highlight three additional points in favor of the court’s holding.

The first concerns the significance of Santa Clara County Superior Court Judge Read Ambler’s pretrial ruling that Kesselman was not a material witness. The court rejects the Attorney General’s argument that “any obligation the prosecution may have had to disclose to the defense either Gale Kesselman’s identity or the information she had provided was excused” by that ruling. (Maj. opn., ante, at p. 336.) As the court explains, Judge Ambler’s pretrial ruling “was limited to whether Kesselman was a material witness on the issue of petitioner’s guilt of the Guerrero brothers’ murders. Judge Ambler never addressed whether Kesselman was a material witness on the issue of penalty for those murders. As we have stated, the prosecution’s disclosure obligations extend to evidence that is…

Filed 8/27/

IN THE SUPREME COURT OF CALIFORNIA

In re MIGUEL ANGEL BACIGALUPO ) ) S079656 on Habeas Corpus. ) ____________________________________)

On petitioner‟s automatic appeal in this death penalty case, we affirmed the judgment. Thereafter, petitioner filed a habeas corpus petition. We ordered an evidentiary hearing on petitioner‟s claim that the prosecution had failed to disclose evidence that would have supported a case in mitigation at the penalty phase that petitioner committed the two murders because of a Colombian drug cartel‟s death threats against him and his family. After hearing the testimony of 17 witnesses, the referee found merit to petitioner‟s claim. We uphold that determination by the referee, and we grant petitioner‟s habeas corpus petition for relief from the judgment of death.

I. PROCEDURAL BACKGROUND

In April 1987, a jury found petitioner Miguel Angel Bacigalupo guilty of the December 29, 1983, murders of brothers Orestes and Jose Luis Guerrero. (Pen. Code, § 187; further undesignated statutory references are to the Penal Code.) The jury also found to be true special circumstance allegations of multiple murder (§…