Fresno killer Allen put to death

U.S. Supreme Court refuses to intervene in 1980 triple murder

by Bill McEwen, Tim Eberly and John Ellis - Fresno Bee.com

January 17, 2006

SAN QUENTIN PRISON — More than 25 years after he orchestrated the brutal murders of three young Fresno-area residents, Clarence Ray Allen was executed early today.

Allen, who turned 76 on Monday, died at 12:38 a.m. by lethal injection in the San Quentin death chamber.

Five prison officials escorted Allen, wearing an American Indian necklace and headband and clutching a ceremonial feather, in a wheelchair from his death watch cell to the chamber.

Authorities connected Allen to a heart monitor. Two intravenous tubes — one in each arm — then were put into the condemned man. One tube was used for his execution; the other served as backup in case the first one failed.

The warden gave the order at 12:19 a.m. for the execution to begin, a California Department of Corrections and Rehabilitation spokesperson said.

One minute later, Allen received his first injection — sodium pentothal — causing him to lose consciousness as he looked toward family members. One witness said he appeared to mouth the words "I love you" shortly before losing consciousness.

At 12:35 p.m., after Allen had received the customary three injections used to put a person to death, he was injected with a second dose of the final ingredient, potassium chloride. That caused his heart to stop beating and ended Allen's 23 years on death row.

Allen — mastermind of one of Fresno's most notorious multiple murders — was killed after his final appeals were exhausted Monday when the nation's highest court refused to save his life. The execution was set in motion on Sept. 5, 1980, with three murders at Fran's Market east of Fresno.

Using a sawed-off, single-shot shotgun, Folsom parolee Billy Ray Hamilton methodically executed Bryon Schletewitz, 27, son of store owners Ray and Fran Schletewitz; and store clerks Douglas White, 18, and Josephine Rocha, 17.

Allen orchestrated the murders from a Folsom State Prison cell, where he was serving a life sentence for the 1974 murder of his son's girlfriend, Mary Sue Kitts. After Hamilton was arrested, investigators found a hit list in his wallet.

The list had the names of seven witnesses who testified against Allen in the Kitts trial, including Bryon and Ray Schletewitz.

After sidestepping three previous execution dates during the lengthy appeals process accompanying death penalty cases, Allen's attempt to save his life was denied Monday by the U.S. Supreme Court.

Ward Campbell, who was the assistant prosecutor in the Fran's Market triple slayings, has stayed with case 25 years and now is a state supervising deputy attorney general. "Now I think we can say there can finally be justice for a man who was serving a life sentence when he had three more innocent people killed and was conspiring to directly assault the heart of the criminal justice system," Campbell told The Bee on Monday night as he drove from Sacramento to San Quentin. "This is the fulfillment of a commitment I made many, many years ago. I think that we worked very hard to make sure Allen had a fair trial. And I think all of our actions in that regard have been vindicated."

Monday evening — as death-penalty opponents played John Lennon songs and television news crews set up outside the prison walls — Allen ate his final meal: buffalo steak, a bucket of KFC chicken (white meat only), a slice of sugar-free pecan pie, one pint of sugar-free black walnut ice cream, Indian pan-fried bread and whole milk.

At 6 p.m., San Quentin officials moved Allen into the death watch cell, next to the death chamber. There, he met with his American Indian spiritual adviser. Allen is of Choctaw descent.

The room had a television and radio. Once there, he lay down for about half an hour but didn't go to sleep, said Sgt. Eric Messick, a San Quentin prison spokesman.

After that, Allen started eating his last meal. The ice cream was left out one hour to thaw, and Allen turned it into a milkshake by hand.

Fifty people watched the scheduled execution, the 13th in California since the state reinstated the death penalty in 1977. Seventeen of the witnesses were media members; the remainder were Allen's relatives and friends, and friends and relatives of his victims.

The condemned man's legal team argued that executing the frail, legally blind and nearly deaf Allen would violate the Constitution's ban on cruel and unusual punishment.

Allen's lawyers also argued that the more than 23 years he spent on death row were unconstitutionally cruel. But the nation's highest court — with the exception of Justice Stephen Breyer — didn't buy the arguments for sparing Allen's life. "Petitioner is 76 years old, blind, suffers from diabetes and is confined to a wheelchair, and has been on death row for 23 years," Breyer wrote. "I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment."

Between 7 a.m. and 6 p.m., Allen visited with family members, friends, his legal team and two spiritual advisers.

They met with him in rotating groups of five in a private room with a round table. "There has been a steady stream all day," said Elaine Jennings, a spokeswoman for the California Department of Corrections and Rehabilitation.

Among them: East Bay resident LaRae Vaughn, a relative of Allen's who posed for snapshots with him at about 3:30 p.m.

Vaughn, who formerly lived in Tulare County, said Allen "seemed to be in good spirits," and told her he was ready for his life to be over. "I hope the family doesn't get mad at me for saying it," Vaughn said. "But that's what he said." Vaughn said she hugged Allen, kissed him on the cheek and "told him I loved him." Vaughn was among about 100 people taking part in a vigil outside San Quentin's east gate later Monday.

About 2,000 people outside San Quentin's walls protested last month's execution of Stanley Tookie Williams, the co-founder of the Crips gang who was convicted of four 1979 murders.

Among the penalty protesters Monday before Allen's scheduled execution were two Southern California graduate students who drove up Monday and intended to return home in time for work today. "Killing a man because he killed someone else is the antithesis of Jesus," said Dave Lowitski, 25, of Azusa.

Jes Richardson, 57, a Marin County resident, brought a 10-foot-tall Gandhi statue that he built to protest the war in Iraq. Richardson said he plans to protest every execution in California until the death penalty is overturned. "I think it creates a more violent society when we murder our members," Richardson said.

Death penalty backer Rudy Thered of Sacramento was encircled by opponents but stood his ground while holding up a sign that had pictures of Allen's murder victims. Thered called Allen "unbelievably guilty," then said, "I'm here to represent the victims because people seem to forget."

Also in the crowd: Brad and Mary White of Hanford. Brad was Douglas White's cousin. "Doug was the smart one. He was the good one," Mary White said. "When he died, every one of us died."

Hamilton was convicted in 1981 of committing the murders at Allen's behest and was condemned to death row, where he continues to appeal his case.

Allen's son, Kenneth Ray Allen, is serving a life sentence without the possibility of parole for supplying Hamilton with weapons, cash and transportation for the shootings.

Hamilton's girlfriend, Connie Sue Barbo, pointed a handgun at the market victims while Hamilton reloaded his shotgun. Barbo received a life sentence for her role in the slayings.

Last month a Mississippi man, John B. Nixon, 77, became the oldest person executed in the United States since capital punishment resumed. Unlike Allen, he did not seek an appeal based on his age.

Twelve inmates have been executed in California since the death penalty was reinstated in 1977. More information can be found at www.corr.ca.gov/ReportsResearch/capital.html:

Robert Alton Harris: Executed April 21, 1992, for abducting and killing two 16-year-old boys, John Mayeski and Michael Baker, in 1978. His was the first execution in the state in 25 years.

David Edwin Mason: Executed Aug. 24, 1993, for beating, strangling and robbing four elderly victims, Joan Pickard, Arthur Jennings, Antoinette Brown and Dorothy Lang, within a nine-month period in 1980. While being held in county jail awaiting trial, Mason killed his cellmate. In addition, Mason was wanted in Butte County for shooting and killing his male lover while he was sleeping.

William George Bonin: Executed Feb. 23, 1996, for the rapes and murders of 14 teenage boys in 1979 and 1980. The so-called "Freeway Killer," he was the first in the state to be executed by lethal injection.

Keith Daniel Williams: Executed May 3, 1996, for killing Valley residents Miguel Vargas, Salvador Vargas and Lourdes Meza in 1978.

Thomas Martin Thompson: Executed July 13, 1998, for the rape and murder of Ginger Fleischi, 20, in 1981.

Jaturun Siripongs: Executed Feb. 9, 1999, for the robbery and murder of Packovan "Pat" Wattanaporn and Quach Nguyen in 1981.

Manuel Pina Babbitt: Executed May 4, 1999, for the robbery, rape and murder of Leah Schendel, 78, in 1980.

Darrell Keith Rich: Executed March 15, 2000, for the murder of Annette Fay Edwards, 19, and the rapes and murders of Patricia Ann Moore, 17; Linda Diane Slavik, 26; and Annette Lynn Selix,11, in 1978.

Robert Lee Massie: Executed March 27, 2001, for the murder of Boris Naumoff in 1979.

Stephen Wayne Anderson: Executed Jan. 29, 2002, for the murder of Elizabeth Lyman, 81, in 1980.

Donald Beardslee: Executed Jan. 19, 2005, for the murders of Patty Geddling and Stacie Benjamin in 1981.

Stanley Tookie Williams: Executed Dec. 13, 2005, for the murders of Albert Lewis Owens, 24; Tsai Shai Young, 67; Yen-I Yang, 63; and Ye Chen Lin, 43, in 1979. Williams was a co-founder of the Crips gang.

The Bee's past Allen coverage (1977-1982)

Nov. 4, 1977: Allen is convicted of murder
Sept. 7, 1980: Witnesses describe slayings
Sept. 12, 1980: Modesto police capture triple slaying suspect
Sept. 26, 1981: Hamilton convicted in market murders
Feb. 5, 1982: Change of venue in Allen trial
July 8, 1982: Allen's murder trial starts
Sept. 11, 1982: Allen receives death penalty
Dec. 2, 1982: State may pay for Allen trial

Wikipedia.org

Clarence Ray Allen (January 16, 1930 — January 17, 2006) was a American prison inmate who was executed by lethal injection on January 17, 2006 at San Quentin State Prison in California for the murders of three people.

He became the second oldest inmate to be executed in the United States since 1976 (John B. Nixon of Mississippi was executed in 2005 at age 77). Allen was of Choctaw heritage and was born in Blair, Oklahoma.

Allen was severely disabled: he was deafblind, used a wheelchair (though he was able to walk with the assistance of a walker), had an advanced case of diabetes, and he suffered a heart attack on September 2, 2005.

His lawyers declared that "he presents absolutely no danger at this point, as incapacitated as he is. There's no legitimate state purpose served by executing him. It would be gratuitous punishment."

They argued that his execution would constitute cruel and unusual punishment and requested that he be granted clemency by California governor Arnold Schwarzenegger, which was subsequently refused.

Criminal case

In 1974, Allen plotted the burglary of Fran's Market, a Fresno area supermarket, owned by Ray and Fran Schletewitz, who Allen had known for years.

The plot involved Roger Allen, Clarence Ray Allen's son, Carl Mayfield and Charles Jones. Mayfield and Jones worked for Clarence Ray Allen in his security guard business as well as part of a burglary enterprise allegedly operated by Allen.

As part of the burglary plot against Fran's Market, he arranged for someone to steal a set of door and alarm keys from the market owner's son, Bryon Schletewitz, age 19, while Schletewitz was swimming in Allen's pool.

Allen then arranged a date between Schletewitz and Mary Sue Kitts (his son Roger's girlfriend) for the evening, during which time the burglary took place. The burglary netted $500 in cash and $10,000 in money orders from the store's safe.

Following the commission of the burglary, Kitts told Schletewitz that Allen had committed the crime, which she knew as she had helped Allen cash money orders that had been stolen from the store. Bryon Schletewitz confronted Roger Allen, informing him that he had been told of the crime by Kitts, and Allen admitted the crime.

When Roger Allen told his father Clarence of Bryon's accusation, Clarance Allen stated that they (Schletewitz and Kitts) would have to be "dealt with" Allen then ordered the strangulation of Kitts by Charles Furrow, after an unsuccessful attempt to poison her with cyanide capsules.

Furrow threw Kitts body into the Friant-Kern Canal, and it has never been found. In 1978, Allen was tried and convicted for the burglary itself , the murder of, and the conspiracy to murder Kitts. For these crimes, Allen was sentenced to life in prison without possiblity of parole.

While in Folsom Prison, Allen conspired with fellow inmate Billy Ray Hamilton to murder witnesses who had testified against him, including Bryon Schletewitz. Allen intended to gain a new trial, where there would be no witnesses to testify to his acts. When Hamilton was paroled from Folsom Prison, he went to Fran’s Market where Bryon Schletewitz worked.

There, Hamilton murdered Schletewitz and fellow employees Josephine Rocha, 17, and Douglas White, 18, with a sawed-off shotgun and wounded two other people, Joe Rios and Jack Abbott. Hamilton shot Schletewitz at near point-blank range in the forehead and murdered Rocha and White after forcing them to lie on the ground within the store.

A neighbor who heard the shotgun blasts came to investigate and was shot by Hamilton. The neighbor returned fire and wounded Hamilton, who escaped from the scene.

Five days after the events at Fran's Market, Hamilton was arrested while attempting to rob a liquor store. Hamilton carried a “hit list” with the names and addresses of the witnesses who testified against Allen at the Kitts trial, including the name of Schletewitz.

Legal proceedings

In 1981, the Attorney General filed charges against Allen and prosecuted the trial in Glenn County, CA due to a change of venue. The trial lasted 23 days, and 58 witnesses were called to testify. Ultimately, the jury convicted Allen of triple murder and conspiracy to murder eight witnesses.

As special circumstances making Allen eligible for the death penalty, the jury also found that Allen had previously been convicted of murder, had committed multiple murder, and had murdered witnesses in retaliation for their prior testimony and to prevent future testimony.

During a seven-day penalty phase, the Attorney General introduced evidence of Allen’s career orchestrating violent robberies in the Central Valley, including ten violent crimes and six prior felony convictions.

The jury returned a unanimous verdict of death, and the Glenn County Superior Court sentenced Allen on November 22, 1982.

In 1987, the California Supreme Court affirmed Allen’s death sentence. Associate Justice Joseph Grodin’s opinion referred to Allen’s crimes as “sordid events” with an “extraordinarily massive amount” of aggravating evidence.

In a dissenting opinion, California Supreme Court Justice Broussard stated that the prosecutor influenced the jury by telling them that "if you conclude that aggravating evidence outweighs the mitigating evidence, you shall return a death sentence", while the law does not mandate a death sentence in such a situation.

According to Justice Broussard, this led to a lack of freedom for the jury to make a "normative decision".

In 2005, the U.S. Ninth Circuit Court of Appeals found that Allen’s trial counsel had been inadequate, and the evidence against him was largely the testimony of Allen’s several accomplices, who painted him as the mastermind who forced them by threats and scare tactics to commit robberies and murders.

However the court denied rehearing in Allen’s case. In her opinion for the panel, Judge Wardlaw concluded:

Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment.

Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars.

If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted. California Deputy Attorney General Ward Campbell stated in an interview:

Well, Mr. Allen has cited his age, the length of time on death row, claims about innocence, errors at his trial. We found and told the governor we found all those reasons to be unpersuasive given the nature of his crime, which was in fact a direct attack on the criminal justice system perpetrated by a man for whom society thought — for whom society thought was safe.

They thought they were safe from him because he was behind bars and yet he continued to perpetrate these types of crimes and none of the factors that they cite now overshadow or outbalance those reasons for now executing the judgment of the people of the State of California.

On January 13, 2006, Schwarzenegger refused to grant Allen clemency, stating that "his conduct did not result from youth or inexperience, but instead resulted from the hardened and calculating decisions of a mature man."

Schwarzenegger also cited a poem in which Allen glorified his actions, where Allen wrote "We rob and steal and for those who squeal are usually found dying or dead."

On January 15, 2006, the Ninth Circuit Court of Appeals denied Allen's claim that executing an aged or infirm person was cruel and unusual punishment, observing that his mental acuity was unimpaired and that he had been fifty years of age when he arranged the murders from prison. Judge Kim Wardlaw writing for the panel of judges Susan Graber, Richard Clifton and herself:

His age and experience only sharpened his ability to coldly calculate the execution of the crime. Nothing about his current ailments reduces his culpability and thus they do not lessen the retributive or deterrent purposes of the death penalty. The United States Supreme Court declined to hear the case.

Execution

Allen was executed by lethal injection on January 17, 2006 at San Quentin State Prison in California. He became the second oldest inmate to be executed in the United States since 1976 (John B. Nixon of Mississippi was executed in 2005 at age 77) and one of the most disabled persons to be executed. Allen had to be assisted into the death chamber by four correctional officers.

Allen stated before his death that, "My last words will be 'Hoka Hey, its a good day to die. Thank you very much. I love you all. Goodbye.'" Allen died at 12:38 a.m. Media accounts differ, but apparenlty about 200-300 people protested against his execution.

DeathPenalty.org

Clarence Ray Allen, a Choctaw Indian, will turn 76 years old on Jan. 16, 2006, the day before the state intends to execute him. If this execution is carried out, Allen will be the oldest man put to death in the U.S. in over 60 years. Allen is in verypoor health, suffering from advanced heart disease and diabetes. He is confined to a wheelchair and nearly blind. He suffered a major heart attack on Sept. 2, 2005. He has been nearly discipline-free for the past 23 years. Executing him now will be gratuitous and uncivilized.

Case History

Allen was convicted in 1982 for ordering the murders of three individuals while serving a life sentence at Folsom State Prison for the murder of a young woman in 1974. Billy Hamilton, the man who actually perpetrated the three murders, also received a death sentence.

Case Status On Jan. 24, 2005 the 9thCircuit Court of Appeals denied Allen’s petition for relief. On Oct. 3, 2005 the U.S. Supreme Court denied Allen’s request for relief. Attorney General Bill Lockyer has requested that the Glenn County Superior Court set Allen’s execution date on Jan. 17, 2006. Can We Trust This Death Sentence?

(1) Case depends on the testimony of unreliable informant witnesses. The chief witnesses against Allen at trial were admitted participants in the crimes that he was charged with. The prosecutor secured their testimony by giving thembenefits, including the promise that they would not be charged with these very same murders.

These witnesses had obvious reasons to lie, shifting blame and responsibility to Allen in order to protect themselves. At different times since the trial, each of these witnesses has admitted that they lied at trial.

(2) Race is a factor in this case. Allen is Native American. All of the victims are white. This case was tried in a rural, predominantly white county. According to a recent study published in the Santa Clara Law Review, racial and geographic factors such as these inappropriately affect who is sentenced to death in California.

(3) Allen had an ineffective, poorly qualified lawyer. The 9thCircuit Court of Appeals said in their opinion denying Allen relief, “Trial counsel admits he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered, and even then, in what little time was available, he failed sufficiently to investigate and adequately present available mitigating evidence.” The 9thCircuit stated that it is “overwhelmingly plain” that trial counsel’s performance “fell below an objective standard of reasonableness.”

(4) Other serious mistakes were made. The 9thCircuit found a series of “errors committed by the trial court, prosecutor, and defense counsel” in this case. For example, the judge gave the jury the wrong instructions on the law, stating “If you conclude that the aggravating evidence outweighs the mitigating evidence, you shall return a death sentence.”

This misled the jury, wrongly mandated that the jury return a death sentence without regard to their personal views. The 9thCircuit also found that the prosecutor committed misconduct several times in closing argument at both the guilt and the penaltyphases. In addition, the jury should have considered only 3 aggravating factors, but mistakenly considered 11 aggravating factors. On this issue, the 9thCircuit stated in its denial of relief, “No one disputes that the trial court erred.”

(5) How can we execute Allen while the Justice Commission investigates these issues? The California Commission on the Fair Administration of Justice has been established to study exactly these kinds of mistakes.

The Justice Commission must report its recommendations to the Governor and Legislature by Dec. 31, 2007. No one should be executed while the Justice Commission is conducting this in-depth study.

Mark Gribben.com

The Malefactor's Register - Crime, Punishment, Law, writing

9/22/2005 - Clarence Allen

You would be hard pressed to find a more cold-blooded senior citizen than Clarence Ray Allen, who may be the first killer executed in the Arnold Schwartzenegger era of California government — that is if he survives heart bypass surgery.

On September 16, the 75-year-old Allen suffered a heart attack and was hospitalized pending a bypass procedure.

Allen was the head of a criminal enterprise who showed how easy it is for a well-connected crook to reach out from behind prison walls to commit murder. Recently, his attempts to show that his appellate lawyer was ineffective fell on deaf ears in the normally anti-death penalty Ninth Circuit Court of Appeals.

That a three-judge panel in that circuit would concede a condemned man received ineffective assistance of counsel, but the harm was not sufficient to merit at least a resentencing hearing, says volumes about the character of Clarence Allen.

His “sordid tale,” as the federal judge termed his crimes, began in 1977 when Clarence Allen, then 47, decided to rob the grocery store owned by some friends of his. He enlisted the help of his son Roger and Roger’s girlfriend along with a couple of employees from his security company to put the plan into action.

Clarence’s son, Roger, invited Bryon Schletewitz, whose parents owned Fran’s Market in Fresno, California, over for a swim.

While Bryon was swimming, someone lifted the keys to the store from his pants. That same night, Bryon went on a date with Roger’s live-in girlfriend, Mary Sue Kitts.

The 17-year-old kept Bryon occupied while the Allens and two others burglarized the market. They stole a safe that was later found to contain $500 in cash and $10,000 in money orders.

Over the next couple of weeks, the gang cashed the stolen money orders in Southern California until Mary Sue had a change of heart and tearfully confessed her role in the crime to Bryon. Nineteen-year-old Bryon confronted his “friend,” Roger, who admitted to him that the Allens had burglarized the store.

Roger also told Clarence Allen about Mary Sue’s confession. His father responded that both Mary Sue and Bryon would have to be “dealt with.”

Clarence Allen then went to Ray and Frances Schletewitz, told them he loved their son like his own, and denied the robbery.

He did intimate that the family was in danger if they proceeded with a criminal complaint by letting them know he heard someone talking about burning down the store. One of Clarence’s hirelings drove by one night and fired at the store, for which he received $50.

Clarence then turned his attention to Mary Sue Kitts, because in his mind, her lack of backbone created the problem in the first place. He convened a council of the conspirators who burglarized Fran’s Market and let them know that Kitts was “a snitch.”

He previously had told the group that snitches would be killed and as “proof,” he carried in his wallet a newspaper clipping about a man and woman from Nevada who had been found murdered.

This, he told his crew, was what happened to people who talked. The council unanimously decided that Mary Sue had to die.

Clarence instructed two of his gang, Carl Mayfield and Lee Furrow, to procure some cyanide to poison the teen. Furrow and Mayfield had already participated in the market burglary.

The decision to kill Mary Sue wasn’t a slam dunk. Some of the gang merely wanted her moved “out of the way” until things cooled down and Furrow clearly didn’t have much of a stomach for murder.

Furrow’s adoptive mother, Clarence’s girlfriend, had a problem with the murder occurring in her apartment.

Despite the protestations, Clarence Allen managed to convince the group that Mary Sue Kitts needed to be slain.

Clarence told Furrow that if he refused to do the killing, it was just as easy to take care of two instead of one… While obviously tragic and unnecessary, Mary Sue Kitts’s death is not without grim humor.

She arrived for the party but declined to take the cyanide pills offered to her because the men didn’t have any wine. The killers talked to Clarence, who told them it didn’t matter how it was done, just that the job was accomplished.

Later, they tried again to get her to take the pills and she refused. Furrow called Clarence who told him that he would be killed if he tried to leave the apartment before Mary Sue was dead.

Resigned to his fate, Furrow began strangling Mary Sue, only to be interrupted by a telephone call from Clarence Allen wondering if the deed had been done. Furrow proceeded to kill the girl with his hands.

Clarence then led a group of his followers to a remote mountain stream where they weighted down the girl’s body with paving stones and dumped it. He reminded the crew that they were all equally guilty now and pointed out what happened to snitches.

Things settled down after Mary Sue’s murder and the gangsters toed the line in Clarence’s crew. Clarence used Furrow’s disappearance as evidence that he took care of people who didn’t work up to his standards.

When one member of the gang asked how Furrow was doing, Clarence responded, “he was no longer in existence” and hinted that it was easy to find someone in Mexico who would kill for $50.

In fact, Furrow was still alive. That fact would come back to haunt Clarence Allen and indirectly lead to even more murder.

The Long Arm…

In 1977, Clarence Allen brought in a couple of new recruits, Allen Robinson and Benjamin Meyer, and proceeded to warn them about the rule of silence that he demanded. “If you bring anybody in my house that snitches on me or my family, I’ll waste them,” Meyer reports Allen as saying. “There’s no rock, bush, nothing, he could hide behind.”

After holding meetings with his new men and his son, Roger, Clarence led the gang to case their first robbery project, a K-Mart store in Tulare.

The robbery was moderately successful, but Clarence was reportedly not happy with the way Robinson performed.

In a telephone call to Meyer, Clarence openly talked about bumping off Robinson because of his mistakes. Roger Allen replaced Robinson with a new gunman named Larry Green and the crew prepared to knock over another K-Mart.

Unfortunately for the crew, Green shot a bystander and Clarence, Green and Meyer were arrested by police.

It was the beginning of the end for the Allen gang. Clarence Allen was tried and convicted in 1977 of robbery, attempted robbery, and assault with a deadly weapon for his part in the second K-Mart robbery.

As is typical in gangs, everyone turned against Clarence Allen in an effort to save his own skin and in late 1977, he was put on trial for Mary Sue Kitts’s murder, as well as the Fran’s Market burglary.

After a procession of witnesses — including Lee Furrow, who cut a deal to save his own skin — testified against him, Clarence was convicted of first degree murder, as well as burglary and conspiracy. He was sentenced to life in prison and ended up in Folsom.

Behind the 100-year-old walls of Folsom Prison, Clarence Allen seethed. He had told his crime family that rats paid for their treachery with their lives and he meant it. But serving a long term in Folsom meant he needed someone else to do his dirty work.

Clarence found that someone in Billy Ray Hamilton, a fellow inmate and convicted robber who worked with Allen in the prison’s kitchen.

Hamilton, nicknamed “Country,” became Clarences’s “dog,” running errands and taking care of various problems in return for cash (Don’t ask what else he probably took care of).

Another inmate, Gary Brady, would assist Hamilton occasionally. Brady was scheduled to be paroled July 28, 1980; Hamilton was scheduled for parole one month later.

He confided to another Folsom inmate, Joseph Rainier, that he had been convicted of first degree murder on the basis of the testimony of Lee Furrow, “the guy who did the actual killing,” and that he would like to see Furrow and the other witnesses who testified against him killed.

Clarence told Rainier that Country was going to get $25,000 for the job and that Allen’s other son, Kenneth, was going to help.

In August 1980, Kenneth Allen and his wife and baby visited Clarence, who told them of the plot. He said the plan called for the witnesses and Bryon and Ray Schletewitz would be killed and that Furrow’s adoptive mother had agreed to change her testimony so that on appeal, he would be acquitted.

Kenneth agreed to find guns for Hamilton with help from his wife Kathy, who would evidently trade drugs for the guns, and he smuggled Hamilton’s picture (so he could recognize him when he showed up) out of prison in his baby’s diapers. Thereafter, he received a series of letters from his father detailing the evolving plan.

In one, he wrote: “Hey, I hear a country music show is coming to town around September 3rd. Remember September 3, around that date y’all be listening to a lot of good old ‘country’ music, okay? Just for me. You know how I like ‘country.’”

Another letter dated August 27, stated “now remember around September 3rd, have everything ready so y’all can go to that ‘country’ music show. I know y’all really ‘enjoy’ yourselves. I know you kids never liked ‘country’ music before. But I bet when you hear that dude on the ‘lead’ guitar you’ll be listening to it at least once a week, ha. Anyway, forget about rock and roll and get lost in the country. Ha, ha.”

Soon after Hamilton was paroled Kenneth wired him transportation money and met him at the Fresno bus depot. At Kenneth’s house, Hamilton confirmed he was there to murder Bryon and Ray Schletewitz, and asked to see the weapons he would be using.

He explained he would not kill Furrow’s mother, Shirley Doeckel, yet because she was helping him locate the other hit list witnesses.

Hamilton’s girlfriend, Connie Barbo, joined him in Fresno. During the next few days, she told acquaintances she had a chance to get a few thousand dollars and a hundred dollars worth of meth for “snuffing out a life.”

On Thursday, September 4, Hamilton went to Kenneth’s house and got a sawed-off shotgun, a .32 caliber revolver, and seven shotgun shells.

In a conversation that was eerily similar to the one that Perry Smith and Dick Hickock had about the Clutter family farm in Kansas, the men discussed the market and Hamilton said he knew there were two safes there, one in the wall and the other in the freezer.

Hamilton and Barbo then left, but returned about 9:45 p.m., however, explaining that Connie objected to killing a 15-year-old Mexican boy who was in the store that night.

Instead, they returned the next night and committed some of the most heinous, cold-blooded murders in recent memory.

The next evening Hamilton took more than a dozen shotgun shells, 6 more cartridges, and went with Barbo back to Fran’s Market. When they arrived at 8 p.m., just before closing time, Bryon Schletewitz and employees Douglas Scott White, Josephine Rocha and Joe Rios were there.

Hamilton brandished the sawed-off shotgun and Barbo produced the.32 caliber revolver. Hamilton led Doug White, Josephine Rocha, Joe Rios and Bryon Schletewitz toward the stockroom and ordered them to lie on the floor.

Hamilton told Doug White to get up and walk to the freezer, warning White he knew there was a safe inside. When White told Hamilton there was no safe there, Hamilton responded, “get out ‘Briant.’” At that point Bryon Schletewitz volunteered, “I am Bryon.”

Following Hamilton’s demand, Bryon gave up his keys and assured Hamilton he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Hamilton to the stockroom where, from seven to twelve inches away, Hamilton fatally shot him in the center of his forehead with the sawed-off shotgun.

Hamilton returned an asked White, “Okay, big boy, where’s the safe?” “Honest, there’s no safe,” White responded. Hamilton fatally shot him in the neck and chest at pointblank range.

As Josephine Rocha began crying, Hamilton fatally shot her through the heart, lung and stomach from five to eight feet away. Meanwhile, Joe Rios had taken refuge in the women’s restroom.

Hamilton found him, swung open the restroom door, pointed the shotgun at Rios’ face, and shot him from three feet away. Rios, however, put up his arm in time to take the blast in the elbow, saving his life.

Assuming Rios was dead, Hamilton told Connie Barbo, “let’s go baby,” and they fled through the front door, only to be spotted by a neighbor, Jack Abbott, who had come to investigate after hearing the shooting.

As Connie Barbo retreated into the restroom, Hamilton and Abbott traded fire: Although hit, Abbott nevertheless managed to shoot Hamilton in the foot as he ran to his getaway car. Barbo was nabbed by officers at the scene.

Hamilton phoned Kenneth Allen later that evening and said that “he lost his kitten” and that “things went wrong at the store.”

They arranged to meet and exchange cars, after which Hamilton drove to the Modesto home of Gary Brady, a Folsom inmate who had been paroled a month before Hamilton.

While staying there for about five days, Hamilton told Brady he had “done robbery” and he had “killed three people for Ray,” referring to Clarence Allen as “the old Man.”

He also had Brady’s wife write a letter to Clarence asking him for the money he was owed for the job. The letter, signed “Country,” gave Brady’s Modesto address as the return address.

Shortly after, Hamilton was arrested after robbing a liquor store across the street from Brady’s apartment.

The police seized an address book containing a list of names and addresses of those who had testified against Clarence at the 1977 murder trial.

When investigators visited Kenneth Allen’s home at about the same time, they were handed Hamilton’s mug shot by Kathy Allen.

Shortly after the carnage at Fran’s Market, Kenneth Allen was arrested on drug charges and was interviewed about his knowledge of the murders.

After thinking over his options for a week (and learning that Billy Hamilton had been arrested), he contacted the police to offer his testimony in return for protective custody and his choice of prisons.

Clarence on Trial

After his arrest on drug charges and questioning on the Fran’s Market murders, Kenneth Allen eventually entered an agreement whereby he promised to testify “truthfully and completely” in all proceedings against Hamilton, Barbo and his father.

It was made clear to Kenneth that no “deal” was being made concerning either the drug charges or possible homicide charges against him and that he would not be given immunity from prosecution for anything he told the police.

With his attorney present, Kenneth agreed to the district attorney’s terms and was advised of his Miranda rights.

Kenneth explained that during a visit with his father at Folsom Prison on August 17, 1980, dad told him Hamilton would be coming to Fresno to “get some things done for me,” including the robbery of Fran’s Market and the murder of Ray and Bryon Schletewitz. Kenneth insisted he did not provide Hamilton with the shotgun used in the killings.

Approximately three weeks later, on October 7, 1980, Kenneth initiated a third interview with police.

After consulting with his attorney by phone, Kenneth told the police that during his August 17 prison visit his father had told him Hamilton was going to kill everyone who testified against him in his 1977 murder trial so that, in the event Clarence’s pending appeal was successful, there would be no witnesses to testify against him on retrial.

Kenneth added that he was supposed to provide Hamilton with weapons for the Fran’s Market killings and did, in fact, provide Hamilton with transportation, money, a shotgun and a revolver.

On October 15 and 16, Kenneth testified at the Hamilton-Barbo preliminary hearing in exchange for release on his own recognizance and his choice of prisons.

His testimony was generally consistent with his third statement to police and implicated defendant, Hamilton and Barbo in the Fran’s Market killings.

In February 1981, Kenneth entered into a formal plea agreement under which he agreed to testify truthfully and completely in all proceedings against Hamilton, Barbo and his father, in exchange for which he would be allowed to plead as an accessory to murder and possession of a controlled substance.

The district attorney would recommend a three-year sentence for each offense to run concurrently and that, with time off for good behavior, he would be out of prison in two years.

A complaint was filed in June 1981 against Clarence Allen for the Fran’s Market murders and conspiracy. Kenneth Allen testified at his dad’s preliminary hearing.

As with the Hamilton-Barbo preliminary hearing, Kenneth’s testimony was generally consistent with the statement he gave to police on October 7, 1980.

On July 10, 1981, however, Kenneth sent a letter to his father in prison. The letter, which was intercepted by prison officials, indicated that Kenneth was preparing to perjure himself to save his father.

On July 22, 1981, Deputy District Attorney Jerry Jones and Investigator William Martin confronted Kenneth with the letter. He admitted writing it and stated his testimony at his father’s preliminary hearing had been untruthful in a number of respects.

Specifically, he told Martin and Jones that Hamilton had come to Fresno not to execute anyone, but to help Kenneth “fence” some guns. He claimed that he and Hamilton had discussed the robbery but no killing was ever mentioned or planned.

Thereafter Jones told Kenneth that in his opinion, Kenneth had violated the plea agreement and the agreement was therefore terminated. Kenneth was then read his Miranda rights and, when he asked to speak with his attorney, the questioning ceased. Kenneth was subsequently charged with the Fran’s Market killings.

A week later, while being transported to his arraignment, Kenneth told Martin that his testimony in the preliminary hearings of Hamilton, Barbo and defendant was in fact truthful, that he intended to testify to the same story in the future, and that what he had written in the July 10 letter to his father was not true.

In late August Kenneth’s attorney requested a meeting with Martin.

With his attorney present, and having been advised of his Miranda rights, Kenneth explained he wrote the July 10 letter because of pressure from his wife, Kathy, who had a very close relationship with her father-in-law.

Kenneth told Martin that in exchange for writing the letter, his wife resumed giving him sexual favors during “contact visits,” he was able to receive some drugs while in jail, and conditions had generally improved for him as a result of writing the letter. He assured Martin the story he told at the preliminary hearings was the truth.

Nevertheless, the district attorney’s office maintained the plea agreement with Kenneth was terminated. Before Clarence Allen’s trial, a hearing was held to determine whether Kenneth would testify.

In response to questions from both the prosecution and the court, Kenneth stated repeatedly that he knew it was the district attorney’s position there was no plea agreement and that he would receive nothing for his testimony in his father’s case, and that by testifying he would waive his privilege against self-incrimination. Nevertheless, Kenneth stated, he wanted to testify truthfully and honestly at the trial.

Kenneth testified at trial for the prosecution, directly tying his father to the Fran’s Market triple-murder and conspiracy, testifying as to Allen’s plotting and recruiting of Hamilton, Kathy, and himself.

Gary Brady, who harbored Hamilton after the murders and had been in prison with Hamilton and Clarence Allen, corroborated Kenneth’s testimony, explaining that Allen attempted to recruit both Hamilton and Brady to kill those who had testified against Allen, and describing how he housed Hamilton immediately after the triple-murder.

Kenneth’s testimony regarding his father’s involvement in the Fran’s Market killings was consistent with the testimony he had given earlier.

He testified he wrote the July 10 letter at his wife’s request to confuse law enforcement officials and to discredit his own testimony. He felt his testimony was necessary to bolster the prosecution’s case and if it was discredited, he might have helped his father escape a murder conviction.

He added that he hoped by now upholding his end of the agreement, the plea deal would still go through. Extensive evidence corroborated Kenneth’s and Brady’s testimony.

Folsom inmate Joe Rainier testified that Allen told him Hamilton was going to take care of “some rats” for him, that Hamilton would be paid for the job and that “Kenny [would] take care of transportation.”

Rainier also testified that he saw Allen and Hamilton talking together in the prison yard every day for the four to six weeks preceding Hamilton’s release.

Clarence took the stand in his own defense. He denied any involvement in the Fran’s Market murders or in the conspiracy to execute the witnesses who testified against him in his previous trial.

He admitted writing letters to Kenneth and Kathy about “Country” Hamilton coming to town and confirmed many details of his prior bad acts about which the people on his hit list had all testified.

His daughter-in-law, Kathy, tried to exculpate him and implicate her husband as a “drug-crazed, hallucinogenic mastermind” of the Fran’s Market murder. She also testified, however, that she heard Allen mention “guns for witnesses.”

In addition, the police found the list of witnesses against Allen in Hamilton’s possession and a mug shot of Hamilton — to which Allen had access in prison –in Kenneth and Kathy’s home.

She admitted that she had tried to falsify evidence about the murders, and that she had transmitted messages to Hamilton for Clarence.

The jury heard 58 witnesses over 23 days and deliberated for three days before finding Clarence Ray Allen guilty of murder and conspiracy. The jury would now consider whether to sentence Clarence to death.

The People’s evidence presented at the seven-day penalty trial showed Clarence Allen masterminded the following armed robberies:

August 12, 1974, armed robbery at the Safina Jewelry Store in Fresno in which $ 18,000 worth of jewelry was taken from the store safe.

September 4, 1974, armed robbery at Don’s Hillside Inn in Porterville in which $ 3,600 was taken from the safe and hundreds of dollars in cash and credit cards were taken from patrons at the scene.

February 12, 1975, residential armed robbery of William and Ruth Cross, an elderly Fresno couple, in which a coin collection valued at $ 100,000 was taken.

June 18, 1975, attempted robbery at Wickes Forest Products in Fresno October 21, 1976, armed robbery at Skagg’s Drug Store in Bakersfield, in which Raoul Lopez (another stepson of Barbara Carrasco who was recruited by Clarence) accidentally shot himself.

November 20, 1976, armed robbery at a Sacramento Lucky’s market, in which grocery clerk Lee McBride was shot by robber Raoul Lopez and sustained permanent damage to his nervous system as a result.

February 10, 1977, robbery at the Tulare K-Mart, in which over $ 16,000 in cash was taken.

March 16, 1977, Visalia K-Mart robbery, in which Larry Green held a gun to the head of employee Bernice Davis and subsequently shot employee John Attebery in the chest, permanently disabling him.

The evidence also showed that while in the Fresno County jail on June 27, 1981, Clarence called a “death penalty” vote for inmate Glenn Bell (an accused child molester) and directed an attack on Bell during which inmates scalded Bell with over two gallons of hot water, tied him to the cell bars and beat him about the head and face, and thereafter shot him with a zip gun and threw razor blades and excrement at him while he huddled in his blanket in the corner of the cell.

The People’s evidence established that Clarence repeatedly threatened that anyone who “snitched” on the Allen gang would be “blown away” or killed, and that he thwarted prosecution of the attempted robbery at Wickes Forest Products by threatening the chief prosecution witness and his family.

In his mitigation argument, Clarence put on two witnesses. His former girlfriend, Diane Harris, testified to his “good character.” She explained that he had helped her financially both before and after her marriage to Jerry Harris, that he helped rush her to the hospital for surgery on one occasion, that he was good to children and that he wrote poetry. She did admit, however, that he had threatened to kill her husband. After deliberating one day, the jury returned a verdict of death.

Clarence Allen pursued appeals at every level, but was unsuccessful. Even after the Ninth Circuit found that his trial counsel was deficient during the penalty phase of his trial, the court upheld his sentence and conviction, writing:

Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran’s Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation.

He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.

If he survives his forthcoming heart bypass surgery, Clarence Allen’s only hope for a reprieve appears to be a longshot request to Gov. Arnold Schwarzenegger for clemency.

ProDeathPenalty.com

The now-75-year-old death row inmate who plotted three killings 25 years ago - from inside Folsom Prison - will finally come face-to-face with the fate a Glenn County jury and judge pronounced in 1982.

Glenn County Superior Court Judge Roy MacFarland is scheduled to re-sentence Clarence Ray Allen to three death sentences at a 10 a.m. hearing Nov. 18, and set the convicted killer's execution date.

Allen has spent the last quarter-century housed at San Quentin Prison, appealing the conviction, the first in Glenn County history where a jury called for the death penalty.

MacFarland presided over the triple-murder trial where Allen was convicted for his role as master conspirator and a contributor in the 1980 shooting deaths of Bryon Schletewitz, 27, Josephine Rocha, 17, and Douglas White, 18, at Fran's Market in Fresno.

The November hearing follows an Oct. 3 decision by the U.S. Supreme Court denying Allen a hearing. That denial was Allen's final chance to avoid the death sentence 12 Glenn County citizens imposed decades earlier.

A distant relative of victim Schletewitz told the Enterprise-Record that it was a shame the young man's parents, Fran and Ray, weren't alive to see justice in the killing that she said tore the family apart. "I just think it's about time they took care of that fellow," said Fran Schletewitz of Fresno. "I guess due justice is coming around."

MacFarland originally sentenced Allen to the three consecutive death sentences and scheduled the murder mastermind to be executed on May 22, 1987. Allen's numerous appeals to the California Supreme Court, the 9th Circuit U.S. Court of Appeals and the U.S. Supreme Court delayed his execution, but the courts upheld Allen's 1982 conviction.

Now, Allen's only hope of dodging his imposed date with death is a reprieve by Gov. Arnold Schwarzenegger - unless nature intervenes.

A month ago, the murder conspirator suffered a major heart attack. Allen's victims didn't have a series of appeals to save their lives.

Pieced from 1982 reports of the Glenn County trial, the story of how an imprisoned Allen hired another inmate to kill several individuals to silence their testimonies follows: At the time of the market murders, Allen was serving a sentence at Folsom State Prison for ordering the 1974 murder of a 17-year-old woman named Mary Sue Kitts and planning and participating in a burglary that year of Fran's Market.

At Allen's murder-burglary trial in 1977, it was reported that Kitts was ordered killed because she had told people - including Schletewitz - that Allen was involved in the market burglary.

Both Schletewitz and his father, market owner Ray Schletewitz, testified against Allen at that trial.

In 1980 while attempting to appeal his conviction, Allen plotted to silence the Schletewitzes and six other people he expected to testify against him.

Allen befriended fellow Folsom inmate Billy Ray Hamilton, 32, who was soon to be paroled, promising $25,000 to perform the hit.

Shortly after his parole in September 1980, Hamilton used a shotgun at close range, killing the younger Schletewitz, Rocha and White, and seriously wounding another. Hamilton was arrested five days later.

A woman accomplice, Connie Barbo, 33, was arrested at the murder scene. Both were tried in Fresno and convicted of first-degree murder for the killings. Hamilton is at San Quentin Prison awaiting a death sentence. Barbo is serving a life sentence.

Allen's 1982 change-of-venue trial in Glenn County tied up MacFarland's courtroom for the entire summer. The conspirator's defense at the 1982 trial was that it was his son, Kenneth Ray Allen, a key witness for the prosecution, who planned the killing.

Assistant District Attorney Bob Ellis of Fresno County said in a telephone interview Thursday that Kenneth Allen was never tried because on the eve of trial he admitted a charge of murder with special circumstances, and is serving a sentence of life without possibility of parole for his participation in the triple slaying.

Clarence Allen was 51 when he was charged in Fresno in 1981 for murder, conspiracy and other crimes, but an appeals court ordered the case assigned to Glenn County in March 1982.

Allen pleaded not guilty at his arraignment before MacFarland June 7 to three counts of murder with special circumstances and one count of conspiracy to commit murder.

The case was prosecuted by Ron Prager and Ward Campbell of the state Attorney General's office, who took over the case because of legal conflicts in the Fresno district attorney's office.

The evidence phase began July 7 and ended Aug. 22 when the jury rendered verdicts of guilty on all counts. Court records list 162 items of evidence used in the trial.

The penalty phase of the trial lasted from Aug. 30 until Sept. 10, with the same jury choosing the death penalty. MacFarland confirmed the jury's choice Nov. 22 by sentencing Allen to death.

Security during the trial was heavy said Glenn County Sheriff Larry Jones recently. Jones was then a sheriff's sergeant and one many deputies assigned to trial security. Jones recalled that the Sheriff's Office transported Allen from San Quentin.

Allen was kept isolated from other inmates in the old Glenn County Jail in quarters that usually housed women inmates. Security transports were planned each day for Allen's entry into the courtroom, Jones said.

People were screened before entering the courtroom by male or female officers with hand-held wands and an airport-type metal detector that was set up on the landing halfway up the stairs to the courtroom, Jones remembered. The jury was sequestered during deliberations.

Allen will not be at the hearing in November. Campbell, now capital crimes coordinator in the Attorney General's Office, will represent the state at the November hearing.

In its request for the hearing, the state has requested the execution be set to occur Jan. 17, 2006.

(Story by Barbara Arrigoni, copyright Chico Enterprise-Record Nov. 16, 2005)

National Coalition to Abolish the Death Penalty

Clarence Ray Allen - Jan. 17, 2006 - California

Clarence Ray Allen, a Choctaw Indian, faces execution in California on Jan. 17, 2006 for three counts of murder and conspiracy in Fresno County.

Allen is said to have masterminded a number of robberies and murders in Fresno County, including the murders of potential witnesses against him while he was in prison.

Reviewing Allen’s case, the U.S. Ninth Circuit Court of Appeals in 2005 found that Allen’s trial counsel had been inadequate.

Allen’s sentence was not reversed and no retrial was called for because the court also believed that the evidence in the case was overwhelming.

Unfortunately the supposedly overwhelming evidence mostly consisted of the testimony of Allen’s several accomplices.

Allen’s accomplices paint Allen as the mastermind who forced them by threats and scare tactics to commit robberies and murders.

Considering the admittedly inadequate representation that Allen received at trial and the sources of much of the evidence against him, clearly the appropriateness of Allen’s sentence is questionable.

Furthermore, in a dissenting opinion, California Supreme Court Justice Broussard discusses the unconstitutional instruction of Allen’s trial jury.

According to Broussard’s dissent, language used, particularly by the prosecution, to instruct the jury may have led them to believe that they had no option but to return a death sentence at the penalty phase of Allen’s trial.

The prosecutor told the jury that “if you conclude that aggravating evidence outweighs the mitigating evidence, you shall return a death sentence.”

According to previous court opinions the law does not require a death sentence in such a situation. Instead the jury is always expected to make a normative decision.

According to Broussard “[s]hall, not may, not might, not maybe...is very explicit... [t]here is nothing equivocal in this language, and no freedom for the jury to make [a] normative decision.” Clearly the jury instruction in Allen’s penalty phase may have prejudiced his sentence.

Allen’s execution date is the day after his 76th birthday. 75-year-old Allen uses a wheelchair to get around. His advance case of diabetes has left him blind.

Also, Allen suffered a heart attack on Sept. 2. Considering his age and health in addition to his inadequate trial representation and prejudiced jury, it is unacceptable for Clarence Ray Allen to be executed.

People v. Allen, 42 Cal.3d 1222, 232 Cal.Rptr. 849 (Cal. 1986) (Direct Appeal)

Defendant was convicted in the Superior Court, Glenn County, Roy G. MacFarland, J., of three murders and conspiracy to murder, 11 special circumstances were found and defendant was sentenced to death. On automatic death penalty appeal, the Supreme Court, Grodin, J., held that: (1) allegedly unlawful plea bargain between district attorney's office and defendant's son was not made under unlawful coercion; (2) admission of nine color photographs of murder victim was harmless error; (3) failure to rule on defendant's motion for new trial was harmless error; (4) physical restraint of defense witness in minimally obtrusive fashion was not abuse of discretion; (5) there was no evidence of juror misconduct by consumption of alcohol; (6) eight of eleven death penalty special circumstances were improper; and (7) jury instruction regarding "weighing process" for imposition of capital sentence was not improper notwithstanding prosecutorial reference to mandatory wording of statutory instruction. Affirmed. Panelli, J., filed concurring opinion in which Lucas, J., concurred. Broussard, J., filed concurring and dissenting opinion in which Bird, C.J., and Reynoso, J., concurred. Bird, C.J., filed concurring and dissenting opinion.

GRODIN, Justice.
This is an automatic appeal from a judgment imposing death under the 1978 death penalty legislation. (Pen.Code, §§ 190-190.5.) We affirm the verdict of guilt, the finding of special circumstances, and the judgment of death.

I. FACTS AND PROCEDURE

The sordid events leading to the charges that underlie this appeal go back to 1974 and include a large cast of characters: Numerous victims and third party witnesses, various prison witnesses, and at least 10 members of defendant's "crime family." For reasons that will appear below, it is necessary to outline the sequence of events in detail.

In June 1974, defendant, then 44 years old, decided to burglarize Fran's Market in Fresno. He had known the owners of the market, Ray and Frances Schletewitz, for over a decade.

He enlisted the assistance of his son Roger, Carl Mayfield, and Charles Jones; the latter two were ostensibly employees in defendant's security guard business and worked for him and his son in various criminal pursuits.

Roger Allen invited the Schletewitz's 19-year-old son, Bryon, to an evening swimming party at defendant's house. While he was swimming, the Fran's Market keys were taken from his pants pocket.

Later that night, while Bryon was on a date arranged by defendant with 17-year-old Mary Sue Kitts, defendant, Mayfield and Jones used Bryon's keys to burglarize his parents' market.

They removed a safe and took it to the house of Jones' wife, Charlotte, where they opened it and divided the booty--$500 in cash and over $10,000 in money orders.

Defendant, with help from his son Roger, Mary Sue Kitts, defendant's girlfriend Shirley Doeckel, and two additional persons--Barbara Carrasco and her stepson, Eugene Furrow--cashed the stolen money orders at southern California shopping centers by using false identifications.

Thereafter Mary Sue Kitts contacted Bryon Schletewitz and tearfully confessed defendant had burglarized Fran's Market and that she had been helping to cash the stolen money orders with a fake identification and a wig provided by defendant.

Bryon went to Roger Allen's house to confront him with this story. Roger admitted the Allen family had burglarized the store, and Bryon confirmed to Roger that Mary Sue Kitts had confessed to him.

When Roger Allen told his father, defendant, of Bryon's accusation based on Mary Sue Kitts' confession, defendant responded that they (Bryon and Mary Sue Kitts) would have to be "dealt with."

Defendant subsequently told Ray and Frances Schletewitz he had not burglarized their store and that he loved Bryon like his own son. He threatened the Schletewitzes, however, by hinting to them that someone was planning to burn down their house.

He also intimidated them by having his son Roger pay Eugene Furrow $50 to fire several gunshots at their home one midnight.

Around this same time defendant called a meeting at his house and told Charles Jones, Carl Mayfield, and Eugene Furrow that Mary Sue Kitts had been talking too much and should be killed. Defendant called for a vote on the issue of Mary Sue's execution; it was unanimous that she should be killed.

One reason for the unanimous vote was that those present feared defendant if they did not go along with his plans: He had previously told criminals working with him that he would kill snitches and that he had friends and connections to do the job for him even if he was locked up; he had stated that the "secret witness program" was useless because a good lawyer could always discover an informant's name and address; finally, he had numerous times referred to himself as a Mafia hitman.

He kept a newspaper article about the murder of a man and woman in Nevada, and claimed he had blown them in half with a shotgun.

After the vote, defendant developed a plan to poison Mary Sue Kitts by tricking her into taking cyanide capsules at a party to be held at Shirley Doeckel's apartment in Fresno. He sent Carl Mayfield and Eugene Furrow to a winery (one of his security guard clients) to pick up the cyanide for the job.

Defendant also put some stepping stones from his house in the back of Charles Jones' truck, to be used to weigh down Mary Sue Kitt's body, which was to be dumped into a canal after the murder.

When discussing the plan to murder Mary Sue Kitts, defendant overruled Charles Jones' suggestion that she be sent somewhere until "things died down."

He also dismissed Shirley Doeckel's objection to a murder being committed in her apartment.

Shortly before the party started at Shirley Doeckel's apartment, defendant also told Eugene Furrow that it was just as easy to get rid of two persons as one if he (Furrow) did not take Mary Sue's life.

Defendant left Shirley Doeckel's apartment shortly before Mary Sue Kitts arrived, having first arranged for his operatives to call him from a nearby phone booth to report on the progress of the execution plan.

When Mary Sue Kitts arrived she refused to take the "pills" without wine, and Mayfield and Jones so informed defendant by phone; defendant told Furrow to kill Mary Sue one way or the other because he just wanted her dead.

The partygoers later brought wine, beer and "reds" to the apartment but Mary Sue still did not take the cyanide. Defendant subsequently met Furrow outside the apartment and stressed that "he didn't care how it was done but do it."

Defendant told him he had people surrounding the apartment and that he (Furrow) would be killed if he tried to leave.

Thereafter, when Furrow and Mary Sue Kitts were left alone in the apartment, he began to strangle her only to be interrupted by a call from defendant asking if he had killed her yet. Furrow answered, "no"; defendant ordered, "do it" and hung up. Furrow then strangled Mary Sue to death.

Furrow called defendant and told him to come pick up the body. Charles Jones, who was with the defendant when he received the call, then announced he wanted nothing to do with the murder. Defendant told him it was already done and that he was equally involved with the others.

Defendant, Shirley Doeckel and Jones then went to pick up the body, which they wrapped and put in defendant's Cadillac trunk. He again warned Jones that they were all equally involved.

Defendant and Shirley Doeckel, in the Cadillac, led Jones and Furrow, in Jones' car, to defendant's house, where they transferred the body to Jones' car and then drove, defendant in the lead, to the mountains.

They stopped after passing over a canal. Furrow and Jones tied the stones with wire to the body pursuant to defendant's instructions and, while defendant watched for traffic, threw the body into the canal.

Defendant variously threatened and bragged to all of his cohorts after the murder. When Carl Mayfield asked defendant how "everything went" a few days later, defendant said, "everything went okay," meaning that Mary Sue Kitts had been killed.

When Mayfield later asked how Furrow was doing, defendant said he was no longer in existence, explaining it is easy to go to Mexico, get someone killed, and have the body disposed of for only $50.

About six months after the murder, when Mayfield asked defendant if he was worried about others talking, defendant said he was not afraid, that "things would be taken care of" if that happened, that he would have snitches killed, and that he would take care of "secret witness" informers even if he was locked up.

He told Charles Jones and others that "talking was a spreading disease and that the only way to kill it was to kill the person talking."

When Jones and others gathered at defendant's house, defendant stated that "none of [these] people talked," that "they first took what was coming," and that, if they did not, "he would get them from inside or outside prison."

When Jones' home was burglarized some time after the murder and Jones told defendant about the burglary, defendant told Jones the burglary showed he could be easily reached.

He later gave Jones a key that Jones discovered fit his residence, and told Jones in front of Jones' five-year-old son he knew Jones "would like his kids to grow up without harm."

Defendant made several statements to Shirley Doeckel after Mary Sue's murder, telling her, among other things, that Furrow was no longer around and repeating his claim that he had killed a woman in Las Vegas.

He also spoke often with Barbara Carrasco, telling her he had "offed Mary Sue Kitts because she was opening her mouth about the money orders," that he involved Furrow in the murder because "he wanted to get him in deep so he couldn't talk about the armed robberies and other things that he knew," and that "he would have put Furrow in the same hole if Furrow didn't go along with the murder."

Speaking about Mary Sue Kitts herself, defendant told Barbara Carrasco that they "had to ride her up, wet her down and [feed] her to the fishes."

Despite his boasts, defendant had not killed Furrow. In fact, he thereafter used him--along with Charles Jones--to rob an elderly couple at their jewelry store in August 1974.

Unhappy with Furrow's performance, however, defendant told him he would have shot him a long time ago if not for Barbara Carrasco (Furrow's adoptive mother).

In early 1977 defendant brought some new employees, Allen Robinson and Benjamin Meyer, into his crime family.

He told Meyer he previously "had a broad helping them who got mouthy so they had to waste her" and that "she sleeps with the fishes." He warned Meyer, "If you bring anybody in my house that snitches on me or my family, I'll waste them. There's no rock, bush, nothing, he could hide behind...."

When Meyer asked what would happen if defendant was arrested and could not make bail, defendant replied, "you've heard of the long arm of the law before? Well don't underestimate the long arm of this Indian. I will reach out and waste you."

Some time later, defendant told Meyer about Ray Schletewitz, stating that he kept $50,000 to $75,000 in a second safe in Fran's Market.

He mentioned he had robbed Fran's Market by taking the first safe and that Ray Schletewitz was mad at him for the robbery, but that "the stupid son-of-a-bitch (Ray Schletewitz) don't have no proof so he shouldn't be upset."

After holding meetings with his new men and his son, Roger, defendant drove them to "case" their first robbery project, a K-Mart store in Tulare.

After the robbery, he phoned Meyer to congratulate him on a fine job and to chastise Allen Robinson for making mistakes.

He told Meyer, "we are not going to have anything else to do with [Robinson] anymore, and we just might waste him," and that he would "be back to [him] for other robberies."

Defendant's son Roger later contacted Larry Green to replace Robinson as the "inside man" for a number of robberies planned by defendant.

They committed an armed robbery in March 1977 that proved to be the beginning of the end. At the K-Mart store in Visalia, Larry Green shot a bystander and the police arrested him along with Meyer and defendant.

Defendant was tried and convicted in 1977 of robbery, attempted robbery, and assault with a deadly weapon for his part in this crime.

His arrest also led to his second 1977 trial, this one for the Fran's Market burglary, conspiracy, and the murder of Mary Sue Kitts--a trial at which numerous witnesses, including Bryon Schletewitz, Carl Mayfield, Charles Jones, Eugene Furrow, Shirley Doeckel, Barbara Carrasco and Benjamin Meyer testified for the prosecution.

Defendant was convicted of burglary, conspiracy, and the first degree murder of Mary Sue Kitts, and was sentenced to prison.

From Folsom prison defendant called his second son, Kenneth Allen, asking for several copies of a magazine article about Mary Sue Kitt's murder. Defendant explained he wanted them to send to other prisons to solicit help to retaliate against those who had testified against him. He repeated this request in a letter to Kenneth.

Defendant soon met Billy Ray Hamilton, a fellow inmate and convicted robber who was housed nearby and who worked with defendant in the prison's kitchen for two months in mid-1980.

Hamilton, who was nicknamed "Country," became defendant's "dog," running errands and taking care of various problems in return for cash.

Defendant, who had access to inmate photographs, would give Hamilton photos of inmates and tell Hamilton to locate them for him as one of Hamilton's chores.

Another inmate, Gary Brady, would assist Hamilton occasionally in running errands for defendant. Brady was scheduled to be paroled July 28, 1980; Hamilton was scheduled for parole one month later.

After Hamilton and Brady had been helping him for some time, defendant said he had an appeal coming up and wanted certain people taken "out of the box, killed," because "they had been onto his appeal," and "messed him around on a beef." Defendant mentioned the names "Bryant," (Bryon), Charles Jones and "Sharlene" (Charlotte) as witnesses to be killed, and offered Hamilton $25,000 for the job.

Defendant confided to another Folsom inmate, Joseph Rainer, that he had been convicted of first degree murder on the basis of the testimony of "the guy who did the actual killing," and that he would like to see this individual as well as four other witnesses who testified against him killed.

Rainer saw defendant and Hamilton talking together in the prison yard bleachers and on the track every day for the four to six weeks before Hamilton's release on parole in late August 1980.

Hamilton and defendant usually huddled close together when they were talking--both men would straighten up, separate and stop talking whenever Rainer approached. After Rainer repeatedly asked defendant what was going on, defendant stated "he's [Hamilton] going to take care of some rats [i.e., informants] for me."

He later told Rainer, in front of Hamilton, that Hamilton was going to "get paid for the job" and that "Kenny was going to take care of transportation" for Hamilton after Hamilton's release.

Defendant said that he could probably "win his appeal" if the witnesses were killed and offered to kill witnesses who had testified against Rainer as well.

Defendant asked his eldest son, Kenneth, and Kenneth's wife, Kathy, to visit him, and they did so with their baby on August 15.

He told Kenneth that both Ray and Bryon Schletewitz were going to be murdered and that the other witnesses against him would also be eliminated so that he would prevail on retrial if he won his appeal.

He added that Shirley Doeckel had agreed to change her testimony were he granted a new trial. Defendant explained that Hamilton--whom he referred to as "Country"--would do the killing (and simultaneously commit a robbery so he could have some money to tide himself over) and that he expected Kenneth to supply "Country" with guns and transportation.

He stated that "Country" was a professional who would "do what you told him to do," and gave Hamilton's mug shot to Kenneth, telling him to burn it after memorizing Hamilton's face.

Kenneth agreed to find guns for Hamilton with help from his wife Kathy, who would evidently trade drugs for the guns, and he smuggled Hamilton's picture out of prison in his baby's diapers.

Thereafter, he received a series of letters from his father detailing the evolving plan. In the first letter, written the day after the visit, defendant told Kenneth, "I rapped to my dog when I jammed back in here.... [He] is looking forward to meeting you all and it's okay with him to smoke to your pad."

Defendant asked Kenneth to "send me the name of that dude that got off with such a light sentence, okay? ... and that lawyer, that sounds like just might be the play I have been looking for.... I know with the right lawyer I could beat this beef I am riding. Keep the Allen faith because there is good times ahead."

Kenneth got another letter dated August 20, 1980, telling him of a second short visit from Shirley Doeckel, who was "willing to help me in court and tell it like it really was."

Defendant also wrote: "Hey, I hear a country music show is coming to town around September 3rd." "Show," Kenneth testified, was a code word for murder.

Kenneth received a third letter dated August 26, stating, "remember September 3, around that date y'all be listening to a lot of good old 'country' music, okay? Just for me. You know how I like 'country.' "

Yet another letter dated August 27, stated "now remember around September 3rd, have everything ready so y'all can go to that 'country' music show. I know y'all really 'enjoy' yourselves. I know you kids never liked 'country' music before. But I bet when you hear that dude on the 'lead' guitar you'll be listening to it at least once a week, ha. Anyway, forget about rock and roll and get lost in the country. Ha, ha."

Soon after Hamilton was paroled Kenneth wired him transportation money and thereafter met him at the Fresno bus depot. At Kenneth's house, Hamilton confirmed he was there to murder Bryon and Ray Schletewitz, and asked to see the weapons he would be using.

He explained he would not kill Shirley Doeckel as yet because she was helping him locate the other hit list witnesses.

Hamilton's girlfriend, Connie Barbo, joined him in Fresno. During the next few days, she told acquaintances she had a chance to get a few thousand dollars and a hundred dollars worth of "crank" for "snuffing out a life."

On Thursday, September 4, Hamilton went to Kenneth's house and got a sawed-off shotgun, a .32 caliber revolver, and seven shotgun shells from Kenneth, all to be used to murder Ray and Bryon Schletewitz at Fran's Market.

Hamilton discussed the market and said he knew there were two safes there, one in the wall and the other in the freezer. He left in the evening with Connie Barbo, telling Kenneth he was going to murder Ray and Bryon Schletewitz.

They returned about 9:45 p.m., however, explaining they aborted the execution because Connie objected to killing a 15-year-old Mexican boy who was in the store that night.

The next evening Hamilton took from Kenneth 13 additional shotgun shells, 6 more cartridges, and went with Connie Barbo back to Fran's Market. When they arrived at 8 p.m., just before closing time, Bryon Schletewitz and employees Douglas Scott White, Josephine Rocha and Joe Rios were there.

Shortly after they entered Hamilton brandished the sawed off shotgun and Barbo produced the . 32 caliber revolver.

Hamilton led Doug White, Josephine Rocha, Joe Rios and Bryon Schletewitz toward the stockroom and ordered them to lie on the floor.

Hamilton told Doug White to get up and walk to the freezer, warning White he knew there was a safe inside. When White told Hamilton there was no safe there, Hamilton responded, "get out 'Briant.' " At that point Bryon Schletewitz volunteered, "I am Bryon."

Following Hamilton's demand, Bryon gave up his keys and assured Hamilton he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Hamilton to the stockroom where, from seven to twelve inches away, Hamilton fatally shot him in the center of his forehead with the sawed-off shotgun.

Hamilton emerged from the stockroom and asked White, "Okay, big boy, where's the safe?" As White responded, "honest, there's no safe," Hamilton fatally shot him in the neck and chest at pointblank range.

As Josephine Rocha began crying, Hamilton fatally shot her through the heart, lung and stomach from five to eight feet away. Meanwhile, Joe Rios had taken refuge in the women's restroom.

Hamilton found him, swung open the restroom door, pointed the shotgun at Rios' face, and shot him from three feet away. Rios, however, put up his arm in time to take the blast in the elbow, saving his life.

Assuming Rios was dead, Hamilton told Connie Barbo, "let's go baby," and they fled through the front door, only to be spotted by a neighbor, Jack Abbott, who had come to investigate after hearing the shooting.

As Connie Barbo retreated into the restroom, Hamilton and Abbott traded fire: Although hit, Abbott nevertheless managed to shoot Hamilton in the foot as he ran to his getaway car. Barbo was apprehended by officers at the scene.

Hamilton phoned Kenneth Allen later that evening and said that "he lost his kitten" and that "things went wrong at the store."

They arranged to meet and exchange cars, after which Hamilton drove to the Modesto home of Gary Brady, the Folsom inmate who had been paroled one month before Hamilton.

While staying there for about five days, Hamilton told Brady he had "done robbery" and he had "killed three people for Ray," referring to defendant as "the old Man."

He also had Brady's wife write a letter to defendant asking him for the money he was owed for the job. The letter, signed "Country," gave Brady's Modesto address as the return address.

Shortly thereafter Hamilton was arrested after robbing a liquor store across the street from Brady's apartment.

The police seized from Hamilton an address book containing a list of names and addresses of those who had testified against defendant at the 1977 murder trial, i.e., Eugene Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones, Carl Mayfield, Shirley Doeckel and Ray and Bryon Schletewitz. When investigators visited Kenneth Allen's home at about the same time, they were handed Hamilton's mug shot by Kathy Allen.

After an article about the Fran Market murders appeared, defendant asked fellow inmate, Joe Rainier, "why don't you testify against me ... and see if you can help yourself or get some time off"?

When Rainier said he could not do that, defendant patted him on the back and said, "you wouldn't want to do that anyway because you do have a lovely daughter."

Shortly after the Fran Market murders, Kenneth Allen was arrested on drug charges and was interviewed about his knowledge of the murders.

A week later, he contacted the police to offer his testimony in return for protective custody and his choice of prisons. As will be fully explained below, he eventually entered an agreement whereby he promised to testify "truthfully and completely" in all proceedings against Hamilton, Barbo and defendant in exchange for which he would be allowed to plead to specified charges. (See post, pp. 862-863 of 232 Cal.Rptr., at pp. 128-129 of 729 P.2d.)

A complaint was filed in June 1981 against defendant for the Fran's Market murders and conspiracy and Kenneth Allen thereafter testified at defendant's preliminary hearing.

Defendant was held to answer. An information filed in June 1981 charged him with murdering Bryon Schletewitz (§ 187) (count 1), murdering Douglas Scott White (count 2), murdering Josephine Rocha (count 3), and conspiring to murder Bryon Schletewitz, Ray Schletewitz, Eugene Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones and Carl Mayfield (§ 182, subd. 1.) (count 4). The information further alleged eleven special circumstances: five under count 1, three under count 2, and three under count 3.

As to count 1, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)), (i) for the purpose of preventing testimony (§ 190.2, subd. (a)(10)); (ii) in retaliation for prior testimony (ibid.); (iii) and (iv) in addition to the murders charged in counts 2 and 3 (§ 190.2, subd. (a)(3)) and (v) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)). As to count 2, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)) (i) and (ii) in addition to the murders charged in counts 1 and 3 (§ 190.2, subd. (a)(3)), and (iii) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)). As to count 3, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)) (i) and (ii) in addition to the murders charged in counts 1 and 2 (§ 190.2, subd. (a)(3)), and (iii) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)).

Thereafter, as will be explained fully below, the prosecutor terminated Kenneth's plea agreement after discovering Kenneth had written to defendant promising to change his testimony at trial in order to exculpate him.

Nevertheless, stating he wanted to testify truthfully, and having been fully advised of his rights and the fact that the previous plea agreement was terminated, Kenneth testified for the prosecution at a trial conducted in Glenn County. FN2.

The Court of Appeal had previously granted defendant a writ of mandate ordering a change of venue.

The jury heard 58 witnesses over 23 days. In addition to the evidence outlined above, defendant took the stand in his own defense. He denied any involvement in the Fran's Market murders or in the conspiracy to execute the witnesses who testified against him in his previous trial.

He admitted on cross-examination, however, that he had told his "good dog," Hamilton ("Country"), to go to Fresno. He admitted writing all the various letters received into evidence and conceded they referred to Hamilton's impending visit to Fresno.

He confirmed that the letters referred to Ben Meyer, Carl Mayfield, and Chuck Jones, and admitted that the phrase "taken care of" meant to kill.

He acknowledged that he had access to mug shots where he worked with Hamilton in Folsom Prison, and admitted talking to Hamilton in the bleachers at the prison.

After being confronted with a tape recording, he also admitted ordering Kathy Allen to call the Schletewitzes to impersonate Mary Sue Kitts, and to pretend to be the mother of Bryon's baby in order to induce the family to call off the Kitts murder investigation.

Defendant also confirmed many of the details about his former acts and convictions about which Charles Jones, Carl Mayfield, Eugene Furrow, Benjamin Meyer, Shirley Doeckel and Barbara Carrasco had all testified.

Among other things, he described how he helped transport and dispose of Mary Sue Kitt's body; he described in great detail his formula for executing "fool-proof" armed robberies of various K-Mart stores with his son Roger, Ben Meyer, and Allen Robinson; he described in detail his role in the Tulare K-Mart robbery; he maintained that "when a guy puts a rat jacket on himself [i.e., becomes a "snitch"], killing them would do them a favor"; he described how he brought Larry Green from Oklahoma to participate in the Visalia K-Mart robbery, and how they had planned to execute three or four additional robberies to make money for summer expenses; and he generally confirmed myriad other details of his role in the former acts and crimes testified to by the above witnesses.

Defendant's daughter-in-law, Kathy, tried to exculpate him and implicate her husband as a drug-crazed, hallucinogenic mastermind of the Fran's Market murder.

She recalled, however, that Kenneth had discussed getting guns for witnesses with his father at Folsom Prison, and that Connie Barbo had told her that she and Hamilton could not leave any witnesses.

She admitted that she had previously testified for defendant, that she had tried to falsify evidence about the murders, and that she had transmitted messages to Hamilton for defendant.

Expert witness Dr. Vincent Mirkil testified about the effects of methamphetamine, but admitted that he had never examined Kenneth Allen and did not know how much of such a drug Kenneth had taken.

Three prison inmate witnesses, John Frazier, Henry Borbon, and Andrew Thompson testified that Hamilton, Allen, and Brady could not have met together in the Folsom yard.

Thompson admitted that he called defendant "Dad" and would lie to protect him; Borbon's testimony was impeached by another witness, Dexter Lasher, and a rebuttal witness Eugene Rose.

Defendant was found guilty as charged after three days of deliberation. He thereafter admitted he had previously been convicted of murder. FN3. These three special circumstance allegations had been bifurcated from the other charges. (§ 190.1, subd. (b).)

The People's evidence presented at the seven-day penalty trial showed defendant masterminded the following armed robberies:

The August 12, 1974, armed robbery at the Safina Jewelry Store in Fresno in which $18,000 worth of jewelry was taken from the store safe;

the September 4, 1974, armed robbery at Don's Hillside Inn in Porterville in which $3,600 was taken from the store safe and hundreds of dollars in cash and credit cards were taken from patrons at the scene;

the February 12, 1975, residential armed robbery of William and Ruth Cross, an elderly Fresno couple, in which a coin collection valued at $100,000 was taken;

the June 18, 1975, attempted robbery at Wickes Forest Products in Fresno, resulting in defendant's arrest;

the October 21, 1976, armed robbery at Skagg's Drug Store in Bakersfield, in which Raoul Lopez (another stepson of Barbara Carrasco who was recruited by defendant) accidentally shot himself;

the November 20, 1976, armed robbery at a Sacramento Lucky's market, in which grocery clerk Lee McBride was shot by robber Raoul Lopez and sustained permanent damage to his nervous system as a result;

the February 10, 1977, robbery at the Tulare K-Mart, in which over $16,000 in cash was taken;

the March 16, 1977, Visalia K-Mart robbery, in which Larry Green held a gun to the head of employee Bernice Davis and subsequently shot employee John Attebery in the chest, permanently disabling him.

The evidence also showed that while in the Fresno County jail on June 27, 1981, defendant called a "death penalty" vote for inmate Glenn Bell (an accused child molester) and directed an attack on Bell during which inmates scalded Bell with over two gallons of hot water, tied him to the cell bars and beat him about the head and face, and thereafter shot him with a zip gun and threw razor blades and excrement at him while he huddled in his blanket in the corner of the cell.

The People's evidence established defendant repeatedly threatened that anyone who "snitched" on the Allen gang would be "blown away" or killed, and that defendant thwarted prosecution of the attempted robbery at Wickes Forest Products by threatening the chief prosecution witness and his family.

In addition, defendant's prior convictions of (i) conspiracy, first degree murder and first degree burglary and his prior convictions of (ii) first degree robbery, attempted robbery and assault with a deadly weapon were introduced into evidence at the penalty phase.

It was also stipulated that the guilt phase testimony of Ray Schletewitz, Carl Mayfield, Charles Jones, Eugene Furrow and Benjamin Meyer concerning the prior conspiracy to murder and the first degree murder of Mary Sue Kitts in August 1974, the robbery at the Safina Jewelry Store on August 12, 1974, the burglary and robbery of the Tulare K-Mart Store on February 10, 1977, and the assault with a deadly weapon, burglary, conspiracy to commit robbery, and attempted robbery at the Visalia K-Mart Store on March 16, 1977, could be considered by the jury at the penalty phase without recalling these witness.

Defendant put on two witnesses. His former girlfriend, Diane Harris, testified to his good character. She explained that defendant had helped her financially both before and after her marriage to Jerry Harris, that he helped rush her to the hospital for surgery on one occasion, that he was good to children and that he wrote poetry. She did admit, however, that he had threatened to kill her husband, Jerry Harris.

Defendant's second penalty witness, San Quentin inmate John Plemons, testified he had instigated the assault on accused child molester, Glenn Bell, and that defendant had nothing to do with it, but had merely sat by while the incident occurred.

This was rebutted by Correctional Officer Delma Graves who testified Bell told her immediately after the incident that defendant had instigated the assault.

The vast majority of the prosecutor's penalty argument was devoted to recounting the details of defendant's present and prior convictions and uncharged crimes as aggravating factors militating in favor of the death penalty.

After deliberating one day, the jury returned a verdict of death. The court subsequently denied defendant's "statutory motion for a new trial" and sentenced him to death.

II. GUILT PHASE ISSUES

1. Kenneth Allen's Plea Bargain

Defendant claims he was denied a fair trial because of an allegedly unlawful plea bargain between the district attorney's office and his son Kenneth--a key witness for the prosecution.

On September 9, 1980, Kenneth Allen was arrested on drug charges. That same day, the police conducted a tape-recorded interview with Kenneth concerning the Fran's Market incident. Kenneth initially maintained that during the first week in September his cousin had stayed one night with Kenneth and his family.

After continued questioning, Kenneth eventually admitted the visitor was not his cousin but a man named Billy.

He also admitted defendant had told him to expect a call from Billy, who would be coming to town and would need a place to stay.

Kenneth insisted that Billy had spent only two nights with him and that he had driven Billy to the bus depot early in the morning of September 5.

Six days later, after Kenneth learned that Billy Hamilton had been arrested, he asked for another interview with the police.

At the outset of the tape-recorded interview Kenneth said he had certain information about defendant's participation in the Fran's Market incident and that, in exchange for this information, he wanted protective custody, release on his own recognizance and his choice of prisons.

The district attorney agreed to Kenneth's demands on the condition he agree to testify truthfully at the preliminary hearing of Hamilton and Barbo.

It was made clear to Kenneth that no "deal" was being made concerning either the drug charges or possible homicide charges against him and that he would not be given immunity from prosecution for anything he told the police.

With his attorney present, Kenneth agreed to the district attorney's terms and was advised of his Miranda rights. Kenneth explained that during a visit with his father at Folsom Prison on August 17, 1980, defendant told him Hamilton would be coming to Fresno to "get some things done for me," including the robbery of Fran's Market and the murder of Ray and Bryon Schletewitz.

Kenneth admitted he did not take Hamilton to the bus depot as he had earlier claimed, but insisted he did not provide Hamilton with the shotgun used in the killings.

Approximately three weeks later, on October 7, 1980, Kenneth initiated a third interview with law enforcement officials.

After consulting with his attorney by phone, and having again been advised of his Miranda rights, Kenneth told the police that during his August 17 prison visit defendant told him Hamilton was going to kill everyone who testified against defendant in his 1977 murder trial so that, in the event defendant's pending appeal was successful, there would be no witnesses to testify against him on retrial.

Kenneth further stated that he was supposed to provide Hamilton with weapons for the Fran's Market killings and did, in fact, provide Hamilton with transportation, money, a shotgun and a revolver.

On October 15 and 16, Kenneth testified at the Hamilton-Barbo preliminary hearing in exchange for release on his own recognizance and his choice of prisons. His testimony was generally consistent with his third statement to police and implicated defendant, Hamilton and Barbo in the Fran's Market killings.

Four months later, in February 1981, Kenneth entered into a plea agreement under which he agreed to testify truthfully and completely in all proceedings against Hamilton, Barbo and defendant, in exchange for which he would be allowed to plead to a violation of section 32 (accessory to murder) and Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance). [FN4] It was Kenneth's understanding that the district attorney would recommend a three-year sentence for each offense to run concurrently and that, with time off for good behavior, he would be out of prison in two years.

FN4. The agreement provided in pertinent part: "Kenneth Ray Allen hereby agrees that he will testify truthfully and completely in all proceedings where his testimony is needed in the case of the People of the State of California vs. Billy Ray Hamilton and Connie Lee Barbo, and he further agrees that he will testify truthfully and completely in any and all proceedings instituted by the People of the State of California against his father, Clarence Ray Allen, including any preliminary hearings, grand jury proceedings, trials, parole hearings or any other legal proceedings in exchange for the following considerations by the People of the State of California: [¶] 1. The People of the State of California shall allow Kenneth Ray Allen to plead to violation of Penal Code section 32 and Health and Safety Code section 11377a, and in exchange for this plea, the People shall agree to a concurrent sentence. [¶] 2. Whatever time Kenneth Ray Allen serves will be at an institution where his security can be guaranteed. [¶].... Should Kenneth Ray Allen ... fail to comply with the terms of this agreement, then all commitments by the People will be null and void."

In mid-May 1981 Kenneth testified at defendant's preliminary hearing. As with the Hamilton-Barbo preliminary hearing, Kenneth's testimony was generally consistent with the statement he gave to police on October 7, 1980.

On July 10, 1981, however, Kenneth sent a letter to defendant in prison.

The letter, which was intercepted by prison officials, stated in part: "Dad Ive been doing a lot of thinking about all this shit and I'm still confused but I believe things will work out okay for everybody but me but that's okay I haven't got anything to live for anyway, but you do so I'm going to tell them the real truth the next time we go to court, and that should clear you but I want the death penalty. But I dont want the gas chamber. I want to donate my body to people who can use the parts. Like my heart, lung, kidneys, eyeball, and all that stuff, if I can die that way I'll feel okay about death in the Bible it say no greater deed can a man do than to give his life, so another may live so after I clear you with the truth, and give my organs to people who need them maybe one of you will live and God might have grace on me for what I'm doing with my life.... [¶] I would do anything just for the chance to make our marriage work just so I could then grow up like a real dad should do but its not in the stars for me to get that chance so maybe this way they will remember me as the man who gave them back there grandfather and that way you wont let them forget me will ya. I hope not at least everything they see or hear, from you they may think of me from time to time I sure hope so. Dad we both know these people just want an Allen so after I tell them the truth they will have one, that way they may lighten up on you I sure hope so."

On July 22, 1981, Deputy District Attorney Jerry Jones and Investigator William Martin confronted Kenneth with the letter. He admitted writing it and stated his testimony at defendant's preliminary hearing had been untruthful in a number of respects.

Specifically, he told Martin and Jones that Hamilton had come to Fresno not to execute anyone, but to help Kenneth "fence" some guns.

He claimed that he and Hamilton had discussed the robbery but no killing was ever mentioned or planned. Thereafter Jones told Kenneth that in his opinion, Kenneth had violated the plea agreement and the agreement was therefore terminated.

Kenneth was then read his Miranda rights and, when he asked to speak with his attorney, the questioning ceased. Kenneth was subsequently charged with the Fran's Market killings.

A week later, while being transported to his arraignment, Kenneth told Martin that his testimony in the preliminary hearings of Hamilton, Barbo and defendant was in fact truthful, that he intended to testify to the same story in the future, and that what he had written in the July 10 letter to his father was not true. In late August Kenneth's attorney requested a meeting with Martin.

With his attorney present, and having been advised of his Miranda rights, Kenneth explained he wrote the July 10 letter because of pressure from his wife, Kathy, who had a very close relationship with defendant.

Kenneth told Martin that in exchange for writing the letter, his wife resumed giving him sexual favors during "contact visits," he was able to receive some drugs while in jail, and conditions had generally improved for him as a result of writing the letter.

He assured Martin the story he told at the preliminary hearings was the truth. Nevertheless, the district attorney's office maintained the plea agreement with Kenneth was terminated.

Before defendant's trial, a hearing was held to determine whether Kenneth would testify.

In response to questions from both the prosecution and the court, Kenneth stated repeatedly that he knew it was the district attorney's position there was no plea agreement and that he would receive nothing for his testimony in defendant's case, and that by testifying he would waive his privilege against self-incrimination.

Nevertheless, Kenneth stated, he wanted to testify truthfully and honestly at defendant's trial.

Kenneth testified at trial for the prosecution. His testimony regarding defendant's involvement in the Fran's Market killings was consistent with the testimony he had given at defendant's preliminary hearing and at the preliminary hearing of Hamilton and Barbo.

Kenneth also testified at length concerning his three tape-recorded statements to the police, his agreement to testify at the Hamilton-Barbo preliminary hearing in exchange for release on his own recognizance and his choice of prisons, and his plea agreement with the district attorney's office.

He testified he wrote the July 10 letter at his wife's request in an attempt to confuse law enforcement officials and to discredit his own testimony.

He explained he believed his testimony was indispensable to the prosecution's case against his father and that by discrediting his own testimony he might help defendant escape a murder conviction.

Kenneth further testified that he wrote the July 10 letter believing it would have no legal effect on his plea agreement and that as long as he testified truthfully and willingly at defendant's trial, the plea agreement would be binding.

On both direct and cross-examination, Kenneth made clear he understood it was the position of both the district attorney's office and the attorney general's office that no plea agreement then existed.

Nevertheless, Kenneth testified he believed the February plea agreement was still in effect, and that by testifying at defendant's trial he was trying to comply with the agreement.

He denied, however, that he was fabricating his trial testimony in an attempt to induce the district attorney's office to honor the agreement.

Defense counsel asked Kenneth whether he felt the district attorney's office would have to abide by the plea agreement if Kenneth testified at trial as he had testified at defendant's preliminary hearing, to which Kenneth answered, "Yes."

Defendant argues Kenneth's plea agreement was conditioned on his trial testimony conforming to the statement he gave the police on October 7, 1980.

Because this placed Kenneth under a strong compulsion to testify in conformance with his October 7 statement, defendant argues, the plea agreement and his son's highly incriminating testimony denied him a fair trial.

* * *

III. SPECIAL CIRCUMSTANCES ISSUES

Defendant claims it was error for the prosecution to submit, and for the jury to find true, six "multiple murder" special circumstances instead of one, two "killing of a witness" special circumstances instead of one, and three "prior murder conviction" special circumstances instead of one.

1. Multiple-murder Special Circumstances Section 190.2, subdivision (a)(3), defines as a special circumstance a situation in which "[t]he defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree."

A plurality held in People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, "alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty, a result also inconsistent with the constitutional requirement that the capital sentencing procedure guide and focus the jury's objective consideration of the particularized circumstances of the offense and the individual offender. (Jurek v. Texas (1976) 428 U.S. 262 at pp. 273-274 [96 S.Ct. 2950 at p. 2957, 49 L.Ed.2d 929].)" (36 Cal.3d at p. 67, 201 Cal.Rptr. 782, 679 P.2d 433.)

Pursuant to our reasoning in Harris, appropriate charging papers should allege one multiple-murder special circumstance separate from the individual murder counts. (Ibid.) It follows that five of the six multiple-murder special circumstances should be set aside, and only one should have been found true.

2. Witness-killing Special Circumstances Section 190.2, subdivision (a)(10), defines as a special circumstance (i) the intentional killing of a victim to prevent his testimony in any criminal proceeding (when the killing was not committed during the commission, or attempted commission of the crime to which he was a witness) "or" (ii) the intentional killing of a victim who was a witness to a crime in retaliation for that witness' testimony in any criminal proceeding.

The section obviously addresses two separate situations in which a witness-related killing will be a special circumstance. Nothing suggests that evidence supporting findings on both theories permits the People to charge and the jury to find two separate special circumstances.

Indeed, the opposite seems better to reflect the drafters' probable intent: a defendant who is shown to have violated a particular special circumstance in more than one way is "guilty" of no more than one of such a special circumstance violation.

Of course, evidence supporting the alternative theories of violation would be properly before the jury in any event; we therefore reject the People's suggestion that our construction of the statute forces the People to promote one societal interest over the other simply because both are established by a single course of conduct.

The presence of evidence supporting both theories of violation can properly be emphasized by the prosecutor in order to stress to the jury the extent to which societal interests that underlie the witness-killing special circumstance have been violated.

We conclude that only one witness-killing special circumstance should have been found true.

3. Prior-murder-conviction Special Circumstances Section 190.2, subdivision (a)(2), defines as a special circumstance the situation in which "[t]he defendant was previously convicted of murder in the first degree or second degree."

Pursuant to our reasoning in Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, two of the three prior-murder-conviction special circumstances should be set aside, and only one should have been found true.

Defendant argues that even this remaining special circumstance finding should be set aside because it was not properly pleaded.

Instead of alleging the prior-murder-conviction special circumstance pursuant to defendant's present first degree murder convictions under section 190.2, subdivision (a )(2), the introductory clause of each of the three disputed pleading paragraphs erroneously alleged the special circumstance under section 190.2, subdivision (b ), which subdivision does not support a prior murder special circumstance. This technical omission, however, does not invalidate the special circumstance finding.

Defendant was clearly on notice that he was on trial for first degree murder and that his prior murder conviction was therefore being alleged as a special circumstance.

Indeed, each of the challenged pleading paragraphs concluded with the express allegation that defendant was previously "convicted in the Superior Court of the State of California, County of Fresno, of first degree murder in violation of Penal Code section 187, within the meaning of Penal Code section 190.2 [, subdivision] (a)(2)." (Emphasis added.)

In any event, we would conclude that any defect in the pleading was waived by defendant's failure to object below. (§ 1012.) Accordingly, the prior-murder-conviction special circumstance was properly found true.

* * *

The judgment of guilt, the finding of three special circumstances, and the judgment of death are affirmed.

Allen v. Woodford, 366 F.3d 823 (9th Cir. 2004) (Habeas).

Background: Following affirmance of his convictions for triple-murder and conspiracy to murder seven people, and a judgment imposing a sentence of death, 42 Cal.3d 1222, 232 Cal.Rptr. 849, 729 P.2d 115, petitioner sought writ of habeas corpus. The United States District Court for the Eastern District of California, Frank C. Damrell, Jr., J., denied his petition, and petitioner appealed.

Holdings: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) counsel's failure to prepare for the sentencing phase of capital case until a week before that phase began, and his resulting failure to thoroughly investigate and present petitioner's mitigation case, was constitutionally deficient;
(2) counsel's failure to investigate and present the potential mitigation evidence did not prejudice petitioner, and therefore did not constitute ineffective assistance of counsel;
(3) court's error in counting the special circumstances was harmless;
(4) improper double and triple-counting of aggravating factors was harmless error; and
(5) trial court's improper conversion of inapplicable mitigation factors into aggravating factors was harmless error. Affirmed.

WARDLAW, Circuit Judge:

Clarence Ray Allen appeals the denial of his petition for writ of habeas corpus by the United States District Court for the Eastern District of California.

He asserts numerous claims of constitutional error in both the guilt and penalty phases of his 1982 trial for the Fran's Market triple-murder and related conspiracy to murder.

The evidence of Allen's guilt for the crimes of conviction is overwhelming. His own testimony provided perhaps the most incriminating evidence of that of the 58 witnesses who testified over 23 days during his jury trial, which ended in convictions for triple-murder and conspiracy to murder seven people, and a judgment imposing a sentence of death.

Just as overwhelmingly plain, however, is that Allen's representation at the penalty phase of his trial fell below an objective standard of reasonableness.

Trial counsel admits he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered, and even then, in what little time was available, he failed sufficiently to investigate and adequately present available mitigating evidence.

We must decide whether, if counsel had adequately investigated, presented and explained the available mitigating evidence, there is a reasonable probability that the result of Allen's penalty phase would have been a sentence other than death.

Having carefully and independently weighed the mitigating evidence, "both that which was introduced and that which was omitted or understated," Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir.2001) (en banc), against the extraordinarily damaging aggravating evidence, we are compelled to conclude, as did the district court before us, that it is not reasonably probable that even one juror would have held out for a life sentence over death.

Given that Allen had just been convicted by his death-qualified jury of orchestrating--from jail--a conspiracy to murder seven people, and succeeding in the actual killing of three, all to retaliate for their prior testimony against him and to prevent future damaging testimony, and that the potential evidence in mitigation was neither explanatory nor exculpatory and was provided by persons unaware of Allen's numerous horrendous crimes or who were otherwise impeachable, we must conclude that there is no reasonable probability, i.e., "a probability sufficient to undermine confidence in the outcome," Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that the jury would have reached a different result. We therefore affirm.

I. Background

We derive much of this recitation of facts and proceedings from that of the California Supreme Court in People v. Allen, 42 Cal.3d 1222, 1236-47, 232 Cal.Rptr. 849, 729 P.2d 115 (1986), and from our own independent review of the record.

Many of the relevant facts are undisputed, and the California Supreme Court's factual findings are adequately supported by the record.

The "sordid events," Allen, 42 Cal.3d at 1236, 232 Cal.Rptr. 849, 729 P.2d 115, underlying this appeal were set in motion in June 1974, when Allen decided to burglarize Fran's Market in Fresno, California.

Ultimately, Allen was convicted of the burglary and related first-degree murder of Mary Sue Kitts, the crime for which he was serving a life sentence when he committed his current crimes of conviction in an effort to silence the witnesses who testified at the 1977 Fran's Market/Kitts murder trial.

A. The Fran's Market Burglary and Murder of Mary Sue Kitts

Allen had known the owners of Fran's Market, Ray and Frances Schletewitz, for more than a decade. To assist in the burglary, Allen enlisted the help of his son Roger, as well as Carl Mayfield and Charles Jones, employees in Allen's security guard business and frequent coconspirators in prior criminal pursuits.

On the night of the burglary, Roger Allen invited the Schletewitz's 19-year-old son, Bryon, to an evening swimming party at Allen's house. There, Bryon's keys to Fran's Market were taken from his pants pocket while he was swimming.

Later in the evening, while Bryon was on a date arranged by Allen with 17-year-old Mary Sue Kitts, son Roger's live-in girlfriend at the time, Allen, Mayfield, and Jones used Bryon's keys to burglarize his parents' market.

They removed a safe from the market and divided the $500 in cash and over $10,000 in money orders found inside.

With help from his son Roger, his girlfriend Shirley Doeckel, Kitts, and two others--Barbara Carrasco and her stepson Eugene Leland ("Lee") Furrow--Allen cashed the stolen money orders at southern California shopping centers by using false identifications.

While the stolen money orders continued to be cashed, Kitts contacted Bryon Schletewitz and tearfully confessed to him that she had helped to cash the money orders stolen from Fran's Market by Allen.

Bryon confronted Roger Allen with this story, and Roger admitted that the Allen family had burglarized the store. Bryon, in turn, confirmed to Roger that Kitts had been the one to confess the burglary to him.

When Roger told his father of Bryon's accusation based on Kitts's confession, Allen responded that Bryon and Kitts would have to be"dealt with."

Allen next told Ray and Frances Schletewitz that he had not burglarized their store and that he loved Bryon like his own son.

He also threatened and intimidated the Schletewitzes, however, by hinting that someone was planning to burn down their house and by having Roger pay Furrow $50 to fire several gunshots at their home one midnight.

Meanwhile, Allen called a meeting at his house and told Jones, Mayfield, and Furrow that Kitts had been talking too much and should be killed.

Allen called for a vote on the issue of Kitts's execution. The vote was unanimous because those present feared what would happen if they did not go along with Allen's plan.

Allen had previously told his criminal accomplices that he would kill snitches and that he had friends and connections to do the job for him even if he were in prison.

He had also referred to himself as a Mafia hitman and stated that the "secret witness program" was useless because a good lawyer could always discover an informant's name and address.

Allen kept a newspaper article about the murder of a man and woman in Nevada, and claimed he had "blown them in half" with a shotgun.

Allen thereafter developed a plan to poison Kitts by tricking her into taking cyanide capsules at a party to be held at Doeckel's Fresno apartment.

Allen sent Mayfield and Furrow to get the cyanide and took some heavy stones from his house to weigh down Kitts's body, which was to be dumped into a canal.

He overruled Jones's suggestion that Kitts merely be sent somewhere until "things died down," and he dismissed Doeckel's objection to having a murder committed in her apartment.

Shortly before the party began, Allen told Furrow that if he refused to commit the killing, Allen could just as easily get rid of two people as one.

Allen left Doeckel's apartment shortly before Kitts arrived. When Kitts arrived and refused to take the "pills" offered to her, Mayfield and Jones called Allen. Allen told Furrow to kill her one way or another because he just wanted her dead.

Later, when Kitts still would not take the cyanide pills, Allen met Furrow outside the apartment and stressed that he "didn't care how it was done but do it." Allen added that Furrow would be killed if he tried to leave the apartment.

When Furrow and Kitts were finally left alone, Furrow began to strangle Kitts, only to be interrupted by a phone call from Allen asking if he had killed her yet. When Furrow answered no, Allen ordered him to "do it" and hung up.

Furrow then strangled Kitts to death. Warning Jones, Doeckel, and Furrow that they were all equally involved in the murder, Allen had them tie stones to Kitts's wrapped-up body and, while he watched for traffic, throw it into a canal.

After the murder, Allen threatened and bragged to his various cohorts. To Carrasco, Allen said of Kitts that he had had to "ride her up, wet her down and [feed] her to the fishes."

When Mayfield asked how Furrow was doing, Allen responded that he was "no longer in existence," explaining that it is easy to go to Mexico, get someone killed, and have the body disposed of for only $50.

Allen also told Shirley Doeckel that Furrow was no longer around and repeated his claim that he had killed a woman in Las Vegas. Allen had not actually killed Furrow, however, and would later enlist his help in the 1974 robbery of an elderly couple at their jewelry store.

About six months after the murder, when Mayfield asked Allen if he was worried about others talking, Allen said that he was not afraid, that "things would be taken care of" if that happened, that he would have snitches killed, and that he would take care of "secret witness" informers even if he were imprisoned.

Allen told Jones and others that "talking was a spreading disease and that the only way to kill it was to kill the person talking." Allen would say of his cohorts that "none of [these] people talked" and that, if they did, "he would get them from inside or outside prison."

When Jones's home was burglarized some time after the murder and Jones told Allen about the burglary, Allen responded that the burglary showed how easily Jones could be reached.

Allen later gave Jones a key that fit his residence, and told him in front of his five-year-old son that he knew Jones "would like his kids to grow up without harm."

Allen later brought in new employees, Allen Robinson and Benjamin Meyer, and bragged to Meyer that he "had a broad helping them who got mouthy so they had to waste her" and that she "sleeps with the fishes."

He further warned Meyer, "If you bring anybody in my house that snitches on me or my family, I'll waste them. There's no rock, bush, nothing, he could hide behind."

When Meyer asked what would happen if Allen was arrested and could not make bail, Allen replied, "You've heard of the long arm of the law before? Well don't underestimate the long arm of this Indian. I will reach out and waste you."

After holding meetings with his new employees and his son Roger, Allen arranged for the group to rob a K-Mart store in Tulare.

Chastising Robinson for making mistakes, Allen told Meyer, "We just might waste him," and later replaced Robinson with Larry Green as his "inside man."

During an armed robbery of a Visalia K-Mart in March 1977, Green shot a bystander, and police arrested him along with Meyer and Allen.

Allen was tried and convicted in 1977 of robbery, attempted robbery, and assault with a deadly weapon. His arrest also led to his second 1977 trial, for the Fran's Market burglary, conspiracy, and the murder of Mary Sue Kitts.

Numerous witnesses, including Bryon Schletewitz, Mayfield, Jones, Furrow, Doeckel, Carrasco, and Meyer, testified on behalf of the prosecution.

Allen was convicted of burglary, conspiracy, and the first-degree murder of Kitts, and was sentenced to life in prison with the possibility of parole.

B. The Fran's Market Triple-Murder and Witness Retaliation Scheme

While incarcerated at Folsom Prison, Allen called and wrote his second son, Kenneth, to request several copies of a magazine article about Kitts's murder. He explained that he wanted to send the copies to other prisons to solicit help retaliating against those who had testified against him.

In Folsom, Allen met Billy Ray Hamilton, a fellow inmate and convicted robber who was housed nearby and worked with Allen in the prison's kitchen for two months in mid-1980.

Hamilton, nicknamed "Country," became Allen's "dog," running errands and taking care of various problems in return for cash.

Another inmate, Gary Brady, would occasionally assist Hamilton. Brady was scheduled to be paroled on July 28, 1980; Hamilton was scheduled for parole one month later.

After Hamilton and Brady had been helping him for some time, Allen informed them that he had an appeal coming up and wanted certain people taken "out of the box, killed," because "they had been onto his appeal," and "messed him around on a beef."

Allen mentioned the names "Bryant" (Bryon), Charles Jones, and "Sharlene" as witnesses to be killed, and offered Hamilton $25,000 for the job. Allen also confided to another inmate, Joseph Rainier, that he had been convicted of first-degree murder based on the testimony of "the guy who did the actual killing" and that he would like to see this person, as well as four other witnesses, killed.

Rainier saw Allen and Hamilton huddled close together and talking on the prison yard bleachers and track every day for the four to six weeks before Hamilton's release in late August 1980.

In response to Rainier's repeated inquiries about what was going on, Allen stated that Hamilton was "going to take care of some rats for [him]." Allen later elaborated that Hamilton was going to "get paid for the job" and that "Kenny was going to take care of transportation."

Allen said that he could likely "win his appeal" if the witnesses were killed and offered to have witnesses who had testified against Rainier killed as well.

Allen asked his eldest son Kenneth, and Kenneth's wife Kathy to visit him in jail, which they did with their baby on August 15.

Allen told Kenneth that both Ray and Bryon Schletewitz were going to be murdered and that the other witnesses against him would also be eliminated so that he would prevail on retrial if he won his appeal. He added that Shirley Doeckel had agreed to change her testimony if he were granted a new trial.

Allen gave Hamilton's mug shot to Kenneth and explained that Hamilton--whom he referred to as "Country"--would commit the killings and that he expected Kenneth to supply "Country" with guns and transportation.

Kenneth agreed to find guns for Hamilton with Kathy's help, and Kenneth smuggled Hamilton's photo out of prison in his baby's diaper. He and Kathy thereafter received a series of letters from Allen detailing the evolving plans.

Soon after Hamilton was paroled, Kenneth wired him transportation money and met him at the Fresno bus depot.

At Kenneth's house, Hamilton confirmed that he was there to murder Bryon and Ray Schletewitz, and asked to see the weapons he would be using.

He explained that he would not kill Doeckel yet because she was helping him locate the other hit-list witnesses. Hamilton's girlfriend, Connie Barbo, joined Hamilton in Fresno.

She told acquaintances that she had a chance to get a few thousand dollars and a hundred dollars worth of "crank" for "snuffing out a life."

On Thursday, September 4, Hamilton went to Kenneth's house to get a sawed-off shotgun, a .32 caliber revolver, and seven shotgun shells from Kenneth.

Hamilton discussed Fran's Market, stating that he knew there were two safes there, one in the wall and the other in the freezer. He left that evening with Barbo, telling Kenneth he was going to murder Ray and Bryon Schletewitz.

The two returned at about 9:45 p.m., however, explaining that they had aborted the execution because Barbo objected to killing a 15-year-old Mexican boy who was also in the store that night.

The next evening Hamilton took thirteen additional shotgun shells and six more cartridges from Kenneth, and went with Barbo back to Fran's Market.

When they arrived at 8 p.m., just before closing time, Bryon Schletewitz and employees Douglas Scott White, Josephine Rocha, and Joe Rios were there.

Shortly after entering, Hamilton brandished the sawed-off shotgun and Barbo produced the .32 caliber revolver. Hamilton led White, Rocha, Rios, and Bryon toward the stockroom and ordered them to lie on the floor.

He told White to get up and walk to the freezer, warning White he knew there was a safe inside. When White told Hamilton there was no safe there, Hamilton responded, "Get out 'Briant.' "

Bryon Schletewitz then volunteered, "I am Bryon." Following Hamilton's demand, Bryon gave up his keys and assured Hamilton he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Hamilton to the stockroom where, from seven to twelve inches away, Hamilton fatally shot him in the center of his forehead with the sawed-off shotgun. Hamilton emerged from the stockroom and asked White, "Okay, big boy, where's the safe?"

As White responded, "Honest, there's no safe," Hamilton fatally shot him in the neck and chest at point-blank range. As Josephine Rocha began crying, Hamilton fatally shot her through the heart, lung, and stomach from five to eight feet away.

Meanwhile, Joe Rios had escaped to the women's restroom. Hamilton found him, opened the restroom door, pointed the shotgun at Rios' face, and shot him from three feet away. Rios, however, had put his arm up in time to take the blast in the elbow, saving his life.

Assuming that Rios was dead, Hamilton and Barbo fled the store, only to be spotted by neighbor Jack Abbott, who had come to investigate after hearing the shots. Barbo retreated back into the store's restroom, and Hamilton and Abbott traded fire.

Although hit, Abbott managed to shoot Hamilton in the foot as he ran to his getaway car. Barbo was apprehended by officers at the scene.

Hamilton called Kenneth later that evening, saying he had "lost his kitten" and "things went wrong at the store."

The two met and exchanged cars. Hamilton next drove to the Modesto home of Gary Brady, the Folsom inmate who had been paroled one month before Hamilton.

While staying with Brady, Hamilton told him he had "done robbery" and had "killed three people for Ray." He had Brady's wife write to Allen requesting the money he was owed for the job.

The letter, signed "Country," gave Brady's Modesto address as the return address. Shortly thereafter, police arrested Hamilton for robbing a liquor store across the street from Brady's apartment.

The police seized from Hamilton an address book containing a list of names and addresses of the eight people who had testified against Allen at the 1977 Kitts murder trial--Lee Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones, Carl Mayfield, Shirley Doeckel, and Ray and Bryon Schletewitz. When investigators visited Kenneth Allen's home, Kathy Allen gave them Hamilton's mug shot.

After an article about the Fran's Market triple-murder appeared in the newspaper, Allen asked fellow inmate Rainier, "Why don't you testify against me ... and see if you can help yourself or get some time off?"

When Rainier responded that he could not do that, Allen patted him on the back and said, "You wouldn't want to do that anyway because you do have a lovely daughter."

Shortly after the Fran's Market murders, Kenneth was arrested on drug charges. The police interviewed Kenneth about the murders. A week later, he contacted the police to offer his testimony in return for protective custody and his choice of prisons.

He eventually entered into a plea agreement in which he promised to testify "truthfully and completely" in all proceedings against Hamilton, Barbo, and Allen. In June 1981, Allen was charged in the Fran's Market triple-murder and underlying conspiracy. Kenneth testified at Allen's preliminary hearing.

C. Allen's 1982 Trial for the Fran's Market Triple-Murder and Conspiracy

Allen was charged with murdering Bryon Schletewitz (count one), Douglas Scott White (count two), and Josephine Rocha (count three), and conspiring to murder Bryon Schletewitz, Ray Schletewitz, Lee Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones, and Carl Mayfield (count four).

The information further alleged eleven special circumstances: five under count one, three under count two, and three under count three.

Allen's daughter-in-law, Kathy, tried to exculpate Allen and implicate her husband, Kenneth, as the drug-crazed, hallucinogenic mastermind of the Fran's Market murders. She recalled, however, that Kenneth had discussed getting "guns for witnesses" with his father at Folsom and that Barbo had told her that she and Hamilton could not leave any witnesses.

Kathy admitted that she had previously testified for Allen, had tried to falsify evidence about the murders, and had transmitted messages to Hamilton for Allen.

Three prison inmate witnesses, John Frazier, Henry Borbon, and Andrew Thompson testified that Hamilton, Allen, and Brady could not have met together in the Folsom yard.

Thompson nevertheless admitted that he called Allen "Dad" and would lie to protect him. Borbon's testimony was impeached by that of other witnesses.

After three days of deliberation, on August 22, 1982, the jury found Allen guilty as charged. Allen then admitted that he had previously been convicted of murder, confirming three of the eleven special circumstance allegations that had been bifurcated from the trial pursuant to California Penal Code § 190.1(b).

Eight days later, the penalty phase began. The State's evidence showed that Allen had masterminded eight prior armed robberies:

(1) the August 12, 1974, armed robbery at Safina Jewelry in Fresno, which yielded $18,000 worth of jewelry;

(2) the September 4, 1974, armed robbery of Don's Hillside Inn in Porterville in which $3,600 was taken from the safe and hundreds of dollars in cash and credit cards were taken from patrons at the scene;

(3) the February 12, 1975, residential armed robbery of William and Ruth Cross, an elderly Fresno couple, in which a coin collection valued at $100,000 was taken;

(4) the June 18, 1975, attempted robbery at Wickes Forest Products in Fresno, resulting in Allen's arrest;

(5) the October 21, 1976, armed robbery at Skagg's Drug Store in Bakersfield, in which one of Allen's associates accidentally shot himself;

(6) the November 20, 1976, armed robbery at a Sacramento Lucky's market, in which grocery clerk Lee McBride was shot and sustained permanent damage to his nervous system;

(7) the February 10, 1977, robbery at a Tulare K-Mart, in which more than $16,000 in cash was taken; and

(8) the March 16, 1977, Visalia K-Mart robbery, during which Larry Green held a gun to the head of one employee and shot another in the chest, permanently disabling him.

Prosecution evidence also showed that while in the Fresno County jail on June 27, 1981, Allen called a "death penalty" vote for inmate Glenn Bell, an accused child molester.

According to the evidence, Allen directed an attack during which inmates scalded Bell with two gallons of hot water, tied him to the cell bars and beat him about the head and face, and thereafter shot him with a zip gun and threw razor blades and excrement at him while he huddled in his blanket in the corner of the cell.

The evidence also established that Allen repeatedly threatened that anyone who "snitched" on the Allen gang would be "blown away" or killed.

Allen had also thwarted prosecution of the attempted robbery at Wickes Forest Products by threatening the chief prosecution witness and his family.

Allen's prior convictions of (1) conspiracy, first-degree murder, first-degree burglary, and (2) first-degree robbery, attempted robbery, and assault with a deadly weapon were introduced. The parties also stipulated to the consideration by the jury of the guilt-phase testimony by Ray Schletewitz, Mayfield, Jones, Furrow, and Meyer concerning (1) the prior conspiracy to murder and the first degree murder of Kitts; (2) the 1974 robbery at the Safina Jewelry Store; (3) the 1977 burglary and robbery of the Tulare K-Mart; and (4) the 1977 assault with a deadly weapon, burglary, conspiracy to commit robbery, and attempted robbery of the Visalia K-Mart.

Allen put on two witnesses. His former girlfriend, Diane Appleton Harris, testified to his good character, explaining that Allen had helped her financially both before and after her marriage to Jerry Harris.

Harris further testified that Allen had helped rush her to the hospital on one occasion, that he was good to children, and that he wrote poetry. But, Harris admitted that Allen had also threatened to kill her husband.

The second witness, San Quentin inmate John Plemons, testified that he had instigated the assault on accused child molester Glenn Bell in the Fresno County jail, and that Allen had nothing to do with it.

Plemons's testimony was rebutted by Correctional Officer Delma Graves, who testified that Bell told her immediately after the incident that Allen had instigated the assault. After deliberating for less than one day, the jury returned a verdict of death. The trial court denied Allen's "statutory motion for a new trial" and sentenced him to death.

D. Appellate and Habeas Proceedings

The California Supreme Court affirmed Allen's conviction and sentence on December 31, 1986, Allen, 42 Cal.3d at 1222, 232 Cal.Rptr. 849, 729 P.2d 115, and summarily denied his December 1987 and March 1988 supplemental habeas petitions.

Allen filed a federal habeas petition on August 31, 1988, and moved for an evidentiary hearing. The district court then stayed the proceedings for exhaustion of all claims.

The district court reopened Allen's federal habeas proceedings in September 1993. Allen moved for an evidentiary hearing, which was granted in part. In April 1997, the magistrate judge presided over a six-day evidentiary hearing on the issue of ineffective assistance of counsel in the penalty phase.

On March 9, 1999, the magistrate judge issued Findings and Recommendations denying Allen's habeas petition. Following objections to the magistrate judge's Findings and Recommendations, the district court conducted a de novo review of the case in compliance with 28 U.S.C. § 636(b)(1)(C), holding argument on April 26, 2001.

On May 11, 2001, the district court issued a Memorandum and Order adopting in full the magistrate judge's Findings and Recommendations and denying Allen's petition. Allen timely filed a notice of appeal and, on July 5, 2001, the district court issued a Certificate of Appealability, certifying both guilt- and penalty-related issues.

II. Jurisdiction and Standard of Review A

We review Allen's pre-AEDPA petition de novo. "In particular, claims alleging ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo." Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002). We review the district court's findings of fact for clear error, present only where we have a " 'definite and firm conviction that a mistake has been committed.' " Id. (quoting United States v. Syrax, 235 F.3d 422, 427 (9th Cir.2000)). "Although less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are 'not fairly supported by the record.' " Id. at 835 (citing 28 U.S.C. § 2254(d)(8) (1996)). Thus, we owe the state court's factual findings less deference here than in a case governed by AEDPA; however, such factual findings are entitled to a presumption of correctness as long as they are fairly supported by the record. Id.

III. Guilt-Phase Claims

Allen collaterally challenges his conviction on numerous grounds. As explained below, however, to the extent that any claim of error in the guilt phase might be meritorious, we would reject that error as harmless because the evidence of Allen's guilt is overwhelming. Because of the compelling nature of the guilt-phase evidence, for purposes of decision, we address the evidence of guilt before turning to Allen's claims of trial error.

A. Evidence of Allen's Guilt

Allen's own son Kenneth directly tied Allen to the Fran's Market triple-murder and conspiracy, testifying as to Allen's plotting and recruiting of Hamilton, Kathy, and himself. Brady corroborated Kenneth's testimony, explaining that Allen attempted to recruit both Hamilton and Brady to kill those who had testified against Allen, and describing how he housed Hamilton immediately after the triple-murder.

Extensive evidence corroborated Kenneth's and Brady's testimony and supported the jury's guilty verdict. Joe Rainier testified that Allen told him Hamilton was going to take care of "some rats" for him, that Hamilton would be paid for the job and that "Kenny [would] take care of transportation."

Rainier also testified that he saw Allen and Hamilton talking together in the prison yard every day for the four to six weeks preceding Hamilton's release.

Even Kathy Allen, one of Allen's biggest supporters, testified that when she and Kenneth visited Allen, she heard Allen mention "guns for witnesses." In addition, the police found the list of witnesses against Allen in Hamilton's possession and a mug shot of Hamilton--to which Allen had access in prison--in Kenneth and Kathy's home.

Most damning of all, though, was the evidence that came directly from Allen. He admitted writing letters to Kenneth and Kathy about "Country" Hamilton coming to town. In those letters, Allen implied or spoke directly about the harm he hoped would befall the witnesses against him.

On August 26, 1980, for example, Allen wrote "Hey, I hear a 'country' music show is coming to 'town' around September 3rd." Kenneth testified that "show" meant murder. The letter went on, " 'Remember' September 3? Around that date ya all plan on listening to a lot of good ol' 'country' music, okay? Just for me. You know how I like 'country.' "

The following day, Allen wrote another letter, entitled, "Happy days ahead." This letter stated, "Now remember around September 3rd, have everything ready so ya all can go to that 'country' music show. I know ya all really 'enjoy yourselves.' I know you kids never liked 'country' music before, but I bet when you hear that dude on lead guitar, you will be listening to it at least once a week. Ha-ha."

Allen further asked Kenneth to "give his best" to Carl Mayfield: "Tell him I am thinking of him and I hope to see him one day, but I am sure he knows that already."

Allen also called Shirley Doeckel a "snitch bitch" and wished her "many, many more" problems. He wrote of "his dog," Hamilton, leaving Folsom and wanting to find and meet "Chuckettea" (a.k.a. Chuck Jones).

Allen also wrote that Hamilton wanted to meet "Mr. Jones and Mr. Mayfield and a few other good friends" and that "he might move out close to Raisin City," home of Ben Meyer.

Allen further admitted asking Hamilton to go see Kenneth and Kathy in Fresno; at first he claimed that he had merely asked Hamilton to visit his children and grandchildren, but he eventually admitted that Hamilton was to unload a "hot gun" from Kenneth and Kathy.

The jury was also able to examine several of Allen's poems, some of which emoted over and identified with the life of a contract hit man, including the following "Allen Gang" poem:

Ray and his sons are known as the Allen Gang.
Sometimes you have often read
how we rob and steal and for those who squeal
are usually found dying or dead.
The road gets slimmer and slimmer
and at times it is hard to see,
but we stand like a man
robbing every place we can,
because we know we'll never be free.
Someday it will be over
and they will bury us side by side.
To some it will be grief,
but to us it's relief
knowing we finally found a safe place to hide.

Allen's testimony was fraught with damaging inconsistencies and implausible explanations. He admitted lying and telling his associates that Lee Furrow had been killed in Mexico.

He implausibly asserted that he had not directed or been involved in killing Mary Sue Kitts, but that he had only "assisted in the disposal of her body."

Allen also testified that he "barely even knew ... Billy Ray Hamilton" and that he only "talked to him maybe three or four times," although he referred to Hamilton numerous times as "his good dog" (which, as he testified, meant "close acquaintance") in his letters to Kenneth and Kathy.

Allen testified inconsistently as to whether he went to San Diego to cash money orders stolen from Fran's Market and whether the Schletewitzes had come to his house to pressure him to pay money that he owed them.

After having his memory refreshed by a tape recording, Allen also admitted lying about having had Kathy Allen "call the Schletewitzes and act as if she were Mary Sue Kitts."

Questioned repeatedly about the inmate photos in his cell, Allen finally asserted that he was "planning on writing a book about twelve convicts that [he] got acquainted with in Folsom."

Allen further testified about much of his prior criminal history, including his knowing solicitation of someone-- Larry Green--that he considered to be "a very dangerous man" and knew "might kill somebody" to commit burglaries.

Finally, Allen provided illuminating testimony regarding his hatred of snitches. Among many other statements, Allen explained: "[W]hen a guy puts a rat jacket on himself, killing them would do them a favor."

* * *

VI. Conclusion

Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted. Therefore, we affirm the district court's denial of Allen's petition for a writ of habeas corpus. AFFIRMED.