WELCH (DAVID ESCO) ON H.C.

Department of Corrections and Rehabilitation’s Written Return

Cal.February 21, 2006

SUPREME COURTCOPY ==~ IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re DAVID ESCO WELCH, CAPITAL CASE S107782 On Habeas Corpus. [Formerrelated appeal S011323] Alameda County Superior Court No. 90396 Hon.Stanley Golde, Judge RETURN ON ORDER TO SHOW CAUSE BILL LOCKYER SUPREMFeRT Attorney Generalofthe State of California D ROBERT R. ANDERSON FEB 21 2006 Chief Assistant Attorney General . GERALD A. ENGLER Frederick K. Ohirich Clerk Senior Assistant Attorney General FEPON BRUCE ORTEGA Deputy Attorney General CATHERINE A. RIVLIN Supervising Deputy Attorney General State Bar No. 115210 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5977 Fax: (415) 703-1234 Email: Catherine.Rivlin@doj.ca.gov Attorneys for Respondent DEATH PENALTY TABLE OF AUTHORITIES Cases In re Carpenter (1995) 9 Cal.4th 634 In re Hitchings (1993) 6 Cal.4th 97 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Napolitano (1959) 175 Cal.App.2d 477 People v. Welch (1999) 20 Cal.4th 701 Richardson v. Marsh (1987) 481 U.S. 200 Romano v. Oklahoma (1994) 512 USS. 1, 129 L.Ed.2d 1 Smith v. Phillips (1982) 455 U.S. 209 Strickland v. Washington (1984) 466 U.S. 668 Statutes Evidence Code § 664 Page 2-4 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re DAVID ESCO WELCH, CAPITAL CASE On Habeas Corpus. S107782 COMES NOW the Director of the Department of Corrections and Rehabilitation to state in return to the order to show cause issued on November 16, 2005, as follows: I. In the early morning hours ofDecember8, 1986, petitioner David Esco Welch shot and killed Sean Mabrey, Darnell Mabrey, sixteen-year-old Dellane Mabrey and her two-year-old daughter Valencia Morgan, Cathy Walker and her four-year-old son DwayneMiller. He shot and woundedDellane’s nine-month- old son, Dexter Mabrey, whom heincorrectly believed to be his son. Petitioner shot Leslie Morgan, the father ofDexter and Valencia, and left him for dead. Leslie Morgantestified about petitioner’s room-to-room search for members of the Mabrey family, whom he had been threatening tokill all day and terrorizing for months. Two membersofthe family escaped before petitioner got to their rooms. Petitioner was hunting for Barbara Mabrey, the mother ofSean, Darnell and Dellane, muttering “where is the bitch at?” She had been scheduled to testify for the People at a preliminary hearing set for the following day. She incurred petitioner’s wrath and threats upon her family when she confirmed hours before the killings that she would be appearingat the preliminary hearing. Barbara Mabrey ran out the back door when the shooting started and called police from her neighbor’s houseto report that petitioner was killing her family. 1 Barbara’s son Stacey Mabreyhid in a closet and also survivedto testify about the nighthis siblings, guests, and niece were murdered. Becauseofthe threats, the family house was being observed by an OaklandPolice patrol unit that night. Petitioner, watching the houseandthepolice surveillance from further up the hill, movedin at change ofshift to follow through on his threats. He was arrested at the homeofhis cousin shortly after the murders, aftera standoffwith police. He had usedhis cousin’s fireplace to destroy evidence, including his clothing. (See generally, People v. Welch (1999) 20 Cal.4th 701, 722-725.) Petitioner, whose street name is “Moochie,”insisted on beingthefirst defense witness. Hetestified that he did not kill the Mabreysor their guests, because they were not worth the trouble, and that Dellane’s desperate screams of “no Moochie, don’t” were explainedby the commonnessofthe nickname “Moochie” in Oakland. Clearly the family he acknowledged having some problemswith, including the night before the murders, was killed in the early morning hours by someother “Moochie.” Petitioner asserted he could prove he was notat the Mabrey homeat the time of the killings and explain the injuries he incurred, but was prevented from doingso bythe codeofthe streets. He was an important man in Oakland. He was proudofbeing a goodshotin a dangerous town. He sold drugs and guns, but only to cool people. He testified that he knew that as an ex-felon he was not supposed to possess weapons, but did so anyway. Even if guns were completely banned he would find a way to have access to weapons. He kept guns around wherever he might be, including several Uzis, but not the Uzi that killed the Mabrey family. The murder weapon wasrecovered at his cousin’s house when he wasarrested, wrappedin a pillow case, and spattered with Leslie Morgan’s blood. The defense presented evidence thatpetitioner had alcohol, cocaine and morphine(a heroin metabolite) in his ure. Two medical experts explained the possible effects of this combination of depressant and stimulant substances on motorskills and mental functioning, even at low doses. One ofthem noted that sleep deprivation would have an additional deleterious effect on thought processing. (RT 5158-5159, 5342, 5347-5355, 5389-5404.) Additional witnesses, familiar with petitioner, testified that he used drugs and alcohol and behaved impulsively when he did so. (People v. Welch, supra, 20 Cal.4th at pp. 724-725.) At the penalty phase, the people proved three prior convictions and twelve additional episodes of violent criminal conduct. (People v. Welch, supra, 20 Cal.4th at pp. 725-727.) Petitioner specifically requested that no mitigating evidence be put on. (RT 5916-5917.) Petitioner’s family was unwilling to meet with, or petitioner was unwilling to have his family members meet with, defense counsel or defense investigators to discuss family social history. (See RT [11/08/1988] 37-38, 48-49; see also Resp. Exh. C.) Nevertheless, defense counsel presented two witnesses in mitigation. In preparation for his testimony andin order to develop a diagnosis, psychologist William Pierce, PhD., interviewedpetitioner and reviewed the extensive social history information the defense team had gathered, including prison and juvenile court records, probation reports, transcripts of judicial proceedings, hospital records, school records and other materials. (RT 5930-5936, 5941- 5943, 5966-5967, 5989; CT 2494.) Dr. Samuel Benson, Jr., M.D., a psychiatrist, also interviewed petitioner and reviewed the social history information to diagnose and explain the behaviorofpetitioner. (RT 6009-6015, 6043.) On direct examination, both mental health professionals diagnosed petitioner with personality disorders affecting his ability to conform his conduct to the law. (RT 5937, 5971-5973, 6010-6015, 6043, 6083.) Dr. Pierce also made an axis I diagnosis of delusional paranoid disorder combined with psychoactive substance disorder and found some indications of paranoid schizophrenia. (RT 5937.) On cross-examination, both mental health professionals agreed that petitioner was fully aware that he was killing the Mabreys, intended to kill the Mabreys, and knewall along that killing his victims was against the law. Petitioner lacks self-control. (RT 5996-5999, 6092-6099.) (See generally, People v. Welch, supra, 20 Cal.4th at pp. 727- 728.) IL. Petitioner was convicted of six special-circumstance murders, two attempted murders, and possession of a firearm by an ex-felon. He was sentenced to death on July 25, 1989. (People v. Welch, supra, 20 Cal.4th at p. 721.) Hl. Petitioner’s conviction and sentence were affirmed by this Court in 1999. (People v. Welch, supra, 20 Cal.4th at p. 721.) Such judgment constitutes the authority and cause for petitioner’s restraint in the custody of respondentat the California State Prison, San Quentin, California. IV. Petitioner alleges, inter alia, that the jury committed misconduct by receiving extrajudicial information from the bailiff (claim 6) and thathistrial counsel were ineffective for failing to investigate and present social history information (claim 18). Specifically, he asserts that the bailiff communicated to the jury that petitioner urinated in the stairwell leading to court, that petitioner was violent, andthat petitioner had threatened witnesses. He further alleges that the jurors and the bailiff were on too familiar terms. On the claim of ineffective assistance of counsel, petitioner alleges that counsel failed to interview “former teachers, friends, relatives, neighbors,” or court personnel and did not obtain housing records for an apartment in whichpetitionerbriefly lived. On November16, 2005, this Court issued an order to show cause why the relief prayed for should not be granted on these two grounds. V. The jury did not commit misconduct. Moreover, if any misconduct occurred as alleged, it could not have been prejudicial. It is improperfor ajuror to receive significant evidence outside of court about a pending case. (In re Carpenter (1995) 9 Cal.4th 634, 647.) Juror misconductraises a presumption ofprejudice that may be rebutted by proof that no prejudice occurred “or by a reviewing court’s examination ofthe entire record to determine whetherthere is a reasonable probability of actual harm to the complaining party [resulting from the misconduct].” (dn re Hitchings (1993) 6 Cal.4th 97, 119; but see Smith v. Phillips (1982) 455 U.S. 209, 217 [the defendant bears the burden of establishing not onlyjuror misconduct but prejudice when pursuinga collateral attack on his judgment].) The relevant question is whether the exposureto the extrinsic evidence so infected the proceedings with unfairness that the conviction was a denial of due process. (Romano v. Oklahoma (1994) 512 US. 1, 129 L-Ed.2d 1, 13.) Assumingthat the jurors followedthetrial court’s instructions to consider only the evidence developedat trial (Richardson vy. Marsh (1987) 481 U.S. 200, 206-207), then such evidence should have had little — if any — effect on their deliberations. (Paraphrasing Romano v. Oklahoma, supra, 129 L.Ed.2d at pp. 13-14.) Welch ultimately offered the information about inappropriate urination at the penalty phase, as evidencethat he acts impulsively and lacked appropriate control mechanisms. This Court has acknowledged the ease with which bailiffs can be charged with misconduct, and the need to give them the benefit of the doubt. “Bailiffs have innumerable contacts with deliberatingjuries any ofwhich offers the opportunity for an untoward comment. The mere potential for impropriety, however, cannot sustain an inference of misconduct. As officers of the court, bailiffs must be presumedtoact in accordance with their sworn duty to keep the jury insulated from all extraneousinfluences, including their own. (Evid. Code, § 664; see People v. Napolitano (1959) 175 Cal.App.2d 477, 480; cf. Rushen v. Spain, [(1983)] 464 U.S. [114] at pp. 118-119.)” (People v. Hawthorne (1992) 4 Cal.4th 43, 67.) By failing to establish impropriety, since the subject matters of the alleged misconduct were abundantly clear to anyone paying attention in court (the smell of the urine, the fact that the entire Mabrey family had been threatened with death and torture for months before petitioner made good on his threats), and becauseall parties are subject to a presumption of performance of duty, petitioner has not alleged facts sufficient to charge the jurors (or the bailiff) with misconduct. Additional evidenceis available to show that the bailiff and back-up bailiff protected the jurors from extraneous influences, including their own. The declaration from Alameda County Sheriff Deputy John Dimsdale, the courtroom bailiff for the Welch tral, explains that the jurors were scrupulously protected from outside influencesandin particularthat the bailiffs did not, and could not have, provided the extraneous information alleged to have been providedin claim 18. He explains his duties to keep the courtroom safe, includingthejury andall participants and to protect the jury from outside influences. He specifically denies that he provided outside information to any juror or alternate. He explains he would not have permitted the jurors to discuss outside information or to discuss the case outside of deliberations. He further explains the procedures for moving defendant Welch to and from the courtroom andthe way taken by the unescorted jurors, showing that no bailiff would have been with the jurors to identify the source of any urine smell they may have encountered in the stairwell. Neither the bailiff nor the back-up officer ate with the jurors. There was no baby showerforthe bailiffs wife. Noneofthe jurors reported feeling threatened during the trial. Had any juror reported feeling threatened procedures were available to escort them. (Exh. A.) Further, the accuracy andtruthfulness of the declarations is in serious doubt. Alternate jurors did not deliberate, and yet alternate juror Wells claimsfirst- hand knowledge ofmatters occurring during deliberations. (Pet. Exh.35,p.2.) Thedeclaration from Alameda County Sheriff Sergeant Herbert Walters, Jr., the back-up officer in Judge Golde’s courtroom during the Welch trial, further confirmsthat although juror’s may have reachedtheir own conclusions about the source of a urine smell in the stairwell, they were not informed bythe bailiff or backup officer about the source of the smell. He denies revealing or discussing any outside information to jurors. (Exh. B.) Both the bailiffand the back-up officer describe how Judge Golde immediately handled courtroom outbursts and any concemsjurors expressed about their safety. Neither the bailiff nor the back-up officer provided information to the jury or alternates about where witnesses lived. (Exh. A & B.) VI. Defense counsel were not ineffective. The burden is on petitioner to establish that, under the circumstances, counsel’s acts or omissions were outside the wide range of reasonably competent professional assistance and that the error or omission deprived petitionerofa trial whoseresult is reliable, that is, it is reasonably likely that absent the error the outcomeofthe trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688.) The reviewing court “must indulge a strong presumption that counsel's conductfalls within the wide range of reasonable professionalassistance.” (/d. at p. 689.) “[S]trategic choices madeafter thorough investigation oflaw and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” (Id. at pp. 690-691.) Defense counsel’s obligation is “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (Jd. at p. 691.) Extensive social history information was collected and analyzed by the defense team and provided to the mental health experts whotestified at trial. (RT 5930-5936, 5941-5943, 5966-5967, 5989.) Indeed almost every relevant detail asserted in the petition was acquired by the defense investigators in advanceoftrial. The declaration from petitioner’s aunt, Sarah Perrine, was not available at trial, because petitioner did not want his family members participating in a social history investigation. (RT [11/08/1988] 37-38, 48-49.) While these documents were provided to the psychiatric experts and informed their penalty phase testimony, very few ofthem were placed directly in evidence for obvious tactical reasons, because each documentcontained evidencethat strongly supported the prosecution theory that petitioner knew night from wrong, knew that killing the Mabreys was wrong and against the law,and failed to exercise the self-control necessary to avoid committing criminal acts. For example, the school records obtained bytrial counsel (CT 2494) are included in the exhibits to the petition (Pet. Exh. 112) and show petitioner was capable of A-quality work in the subjects that interested him,like reading, drama, and art, but exhibited self-control problems and becamestubborn at times. These records were the subject of penalty phase testimony and informed the mental health professional’s diagnoses, but also their conclusions that Welch knew right from wrong. His juvenile and probation reports, also obtained bytrial counsel, provide extensive family history, and establish petitioner has “average intelligence,” “is not psychotic,” and has the ability to abide by the rules in juvenile hall, given the incentive to avoid a CYA commitment, butis violent and lacks self-control when he is not getting what he wants. (Exh. D, Commitment to the Youth Authority, with social reports, is provided to the Court under seal.) The adult probation report further supports the theory and predicts, as Dr. Pierce, informed the jury, that “[petitioner] will kill someone some day.” (RT 5989.) Further investigation into the social history of the family was curtailed by petitioner, who preferred to think of himself as dangerous and important, rather than crazy, and forbid his family members from talking to defense counsel. (Exh. C.) Thesocial history investigation was reasonably thorough. Counsel made reasonable decisions about how much investigation to undertake, especially given the control exercised by their client over his family members, and about how to use the extensive information gathered. VI. Except as otherwise indicated, respondent denies each and every allegation of the petition, denies that petitioner’s confinement is in any way illegal, and denies that petitioner’s rights have been violated in any respect. Vill. If petitioner disputes the material facts asserted in this return, a referee should be appointed and an evidentiary hearing held to resolve any conflict thus created. IX. Respondentincorporates by reference Exhibits A through C, appended to this return, and Exhibit D,filed separately underseal. WHEREFORE,it is respectfully submitted that the petition for writ of habeas corpus should be denied andthe order to show cause discharged, unless petitioner disputes any material assertion contained herein. [f petitioner does deny any material fact asserted herein, a referee should be appointed and an evidentiary hearing should be convenedto resolve such disputed fact orfacts, after which the petition for writ of habeas corpus should be denied and the order to show cause denied. Dated: February 16, 2006 SF2002XH0003 40079615.wpd Respectfully submitted, BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General BRUCE ORTEGA Deputy Attorney General CATHERINE A. RIVLIN Supervising Deputy Attorney General Attorneys for Respondent 10 CERTIFICATE OF COMPLIANCE I certify that the attached RETURN ON ORDER TO SHOW CAUSE uses a 13 point Times New Romanfont and contains 2,648 words. Dated: February 16, 2006 Respectfully submitted, BILL LOCKYER Attorney General of the State of California ryfaala,CATHERINE A. RIVLIN Supervising Deputy Attorney General Attorneys for Respondent EXHIBIT A Declaration of Alameda County Sheriff Deputy John Dimsdale I, John Dimsdale, do declare that I am over the age of 18, and if called to testify would _testify underoath as follows: For seven months in 1989, I served as the courtroom bailiff for Judge Golde’s court during the murdertrial of David Esco Welch. Mydutiesincluded: keeping the courtroom safe; protecting the safety of the judge, the jury, and all participants, including Mr. Welch; maintaining the fairnessofthe trial by protecting the jury from any outside influences; providing lunchto the jury; providing security and transportation for the jurors to, during, and from any lunches provided at restaurants; providing secure transportation for Mr. Welch betweenthe jail and court and when he wastaken for medical appointments; bringing to the judge’s immediate attention any questions or concernsofthe jury; and enforcing the judge’s constantly repeated admonition to the jurors and alternates not to discuss the case until it was finally submitted to the jurors for a decision. I never discussed newspaperarticles about the case, or any information about the case, with any jurors or alternates. I never heard anyjurors discussing newspaperarticles or press ~ coverage ofthe case. I never had discussions with others about the casein front of any jurors or alternates. I never heard the jury discussing and I neverparticipated in any discussions with the jury about Mr. Welch’s clothing. I did not provide anyjuror or alternate any information about Mr. Welch. I did nottell any juror or alternate that witnesses had been threatened or that any witness was in danger. I did not discuss with anyjuror or alternate where any witnesseslived. I did not hear any jurors discussing where Barbara Mabrey lived. The procedure for getting Mr. Welch andthe jurors to the court room was worked outin advanceand followed to the letter each day. I waited for Mr. Welch to enter the court room from thestairwell in shackles. Once I admitted him to the courtroom, I removed his shackles. I remained with Mr. Welch. Whenit was time for the jury to come down,I radioed the deputy on the 6th Floor to unlock the door and allow the jurors to walk down thestairs to the courtroom. The jurors came downthe stairs unaccompanied. There were many appearancesin the courtroom beforetrial started each day that involved prisoners from the jail. One or more of them, possibly including Mr. Welch, may have urinated in the stairwell on the wayto or from the jail. This would have been evident to the jurors from the smell. Judge Golde remindedthe jurors and alternates at every break not to read about or hear about the case, and not to discuss the case until it was finally submitted to the jurors for decision. Onthe few occasions when the jurors were taken to lunch at a restaurant that was not walking distance from the court, two bailiffs would transport and accompany them and get them setup at a table. The bailiffs sat at a separate table, near enoughto keep thejurors isolated from Declaration of John Dimsdale p.1 outside contacts. We(the bailiffs) did not participate in the conversationat the jurors’ lunch table, although we could hear someof it. I never heard jurors and alternates discussing the case over lunch or at any other time during the evidence portion of the case. Although my wife was pregnant during this period, and I probably mentioned that fact to the jurors, it is not true that the jurors threw my family a baby shower. My wife never metthe jurors and never was provided a baby showerbythe jurors. Nojuroror alternate ever reported feeling threatened by Mr. Welch. Threats to jurors were taken extremely seriously by Judge Golde. If] had ever heard a juror assert that they were feeling threatened I would haveinsisted that the concern be putin writing and would have taken it immediately to Judge Golde. Judge Golde would have interviewed any juror who reported feeling threatened andall the other jurors and alternates about whetherthey felt threatened. That is how Judge Golde handled this kind ofjuror concern in an earlier case when I was also serving as his court room bailiff. Judge Goldealso took court room outbursts very seriously. There was only one such outburst that I recall in this case. Judge Golde told the spectators that anyone making an outburst or even a distracting gesture would be permanently barred from the courtroom. There were no further outbursts. The jury wastold to disregard the outburst. If any juror or jurors had requested an escort to the parkinglot, I or another bailiff would have accompanied him,her or them. Part of our job is to protect the jurors and make them feel safe during their jury service. Walking jurors to the parking lot in the evening is doneroutinely. The alternate jurors did not participate in deliberations. At one time I transported Mr. Welchto a hospital in Oakland for an MRI the court orderedat the request of defense counselas part of their investigation into whether Mr. Welch had any brain damage. Executed January 3, 2006, in Oakland, Alameda County, California, under penalty of perjury. Liber

“John Dimsdale Declaration of John Dimsdale p.2 EXHIBIT B Declaration of Sgt. Herbert Walters, Jr.: My nameis Herbert Walters, Jr. Iam now an Alameda County Sheriff Sergeant. In 1989, I was a Deputy Sheriff and the assigned backup officer to courtroom bailiff John Dimsdale for the murder case of People v. David (Moochie)Welch in Department9, at the Alameda County Courthouse. If called to testify, I would make the following statements underoath. In mycareer as a courtroom bailiff, I have never allowed an alternate juror to participate in deliberations. Judge Golde heard large morning calendars in Department 9 before the Welchtrial got underway for the rest of the day. If anyone had urinated in the stairwell during the morning calendar, or if Welch had doneso before the jury was called down, an attempt would have been madeto clean up, but a smell might have remained. I never said, nor did I hear anyonetell a juror that Moochie Welch urinated in the stairwell. I do not remember any courtroom outbursts from witnesses or the audience. In particular I do not recall hearing the phrase: “The jury’s going to make youfry” or anything like that. If any such outburst had occurred, Judge Golde would havetold the person making the outburst to stop and would have warned them that the next time they made such a statement they would be removed permanently from the courtroom. If any juror ever told me that they felt threatened by the defendant, I would have immediately told Deputy Dimsdale about it, since he was the Department9 assigned bailiff. We would both immediately have gone into chambers to report it to Judge Golde. I do not recall anyjurors ever giving a baby shower to Deputy Dimsdale. I did not overhear any membersofthis jury or the alternates discussing the case during lunch times. If I was ever present nearby while a jury wasat lunch, and they started to discuss the case, I would immediately tell them to stop. I never discussed or revealed any information about the case to anyjuror. Further, I never heard Deputy Dimsdale discuss any facts about the case or about Mr. Welch with anyjurororalternate. - Mr. Welch had twoattorneysattrial, Spencer Strellis and Alex Selvin. I never heard either defense counsel joke about Martini time or drinking after work. I never told a juror or alternate about any witness either being threatened orfeeling afraid. I did not know that Barbara Mabreywasflownin from outofstate. Signed underpenalty of perjury on January Zs 2006, in Oakland, California. ide Sgt. Herbert Walters,Jr. EXHIBIT C BILL LOCKYER Attorney General for the State of California ROBERT R. ANDERSON Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General BRUCE ORTEGA Deputy Attorney General CATHERINEA. RIVLIN Supervising Deputy Attorney General State Bar No. 115210 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone No.: (415) 703-5977 Fax No.: (415) 703-1234 Attorneys for Respondent IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re DAVID ESCO WELCH On Habeas Corpus, S107782 [Formerrelated appeal S011323] DECLARATION OF CATHERINEA. RIVLIN 1. I, the undersigned, am counsel for respondent. On or about January 14, 2006, I contacted Mr. SpencerStrellis, petitioner’s lead trial counsel and Mr. Alex Selvin, petitioner’s secondtrial counsel by letter and explained that an order to show cause had issued concerning their representation at trial. I provided them a copyofpetitioner’s claim 18. In follow-up telephone conversations, both attorneys declined my request to prepare declarations 1 concerning the extent of their social history investigation and any reasons for proceedingto trial with the information they had. Both attorneys stated their expectation that if a factual dispute was joined they would be subpoenaed and wouldtestify in any evidentiary hearing. 3. Mr. Selvin confirmed by phone,as indicated in the record (RT [11/08/1988] 37-38, 48-49), that although numerous appointments were madeto interview members of petitioner’s family, the family members never showed up for the appointments and refused to cooperate with the social history investigation in accordance with petitioner’s wishes. I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California on February 16, 2006. CnAZ CATHERINE A. RIVLIN Supervising Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Telephone No:(415) 703-5977 DECLARATION OF SERVICE BY U.S. MAIL Case Name: In re David Esco Welch No.: 8107782 I declare: I am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On February 21, 2006, I served the attached RETURN ON ORDER TO SHOW CAUSEby placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressedas follows: Stephanie Ross Thomas Orloff 600 Winslow WayEast, Suite 130 District Attorney Bainbridge Island,WA 98110 Alameda County 1225 Fallon Street, Room 900 Wesley A. Van Winkle Oakland, CA 94612-4203 Attorney at Law P.O. Box 5216 California Appellate Project Berkeley, CA 94705-0216 101 Second Street, Suite 600 San Francisco, CA 94105 Clerk of the Superior Court Alameda County - 1225 Fallon Street Oakland, CA 94612-4293 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on February 21, 2006, at San Francisco, California. Gloria J. Milina On. hcl... Declarant Signature 40080567.wpd