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SACRAMENTO � Prosecutors can rest easy. The California Supreme Court on Tuesday gave all indications that they can appeal a judge’s decision that a murder defendant is mentally retarded and, therefore, not eligible for the death penalty. In addition, in the case being argued the justices seemed to have doubts that the defendant was, in fact, mentally impaired. They also appeared to disagree with attorneys for both sides about what evidence judges need to consider in reaching such conclusions. The case revolves around Jorge Vidal Jr., a 37-year-old defendant accused of shooting a man to death in 2001 near Delano, in rural Tulare County. Before he died, Eric Jones � whom Vidal accused of trying to steal his car � was also stabbed in the back, electrically shocked several times and brutally sodomized with a stick. During pretrial hearings, Tulare County Superior Court Judge William Silveira Jr. found that Vidal � who had a verbal IQ score of 77 and a so-called full scale IQ test of 92 � came within the definition of mentally retarded as laid out in 2002 by the U.S. Supreme Court in Atkins v. Virginia, 536 U.S. 304, and in 2005 by the California Supreme Court’s In re Hawthorne, 35 Cal.4th 40. Under the Hawthorne standard � now codified as Penal Code &167 1376 � a person is mentally retarded if he or she has “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” In addition, standard IQ tests set 75 as the top limit for mental retardation. In a split decision in 2005, the Fifth District Court of Appeal ordered Silveira to vacate his order declaring Vidal mentally retarded. The court said the judge should have relied on Vidal’s full scale IQ test of 92, rather than the lower verbal IQ test. The appeal court also held that because the decision terminated the penalty phase portion of the trial court proceedings, it was an appealable judgment, rather than a ruling subject only to the court of appeal’s discretionary review. On Tuesday, Justice Kathryn Mickle Werdegar seemed to sum up the other justices’ feelings, appearing to agree with the Fifth District on appealability. “Here, there’s part of a capital case prosecution that’s terminated,” she told Tulare County Deputy Public Defender William Mueting. When Mueting attempted to disagree, Werdegar said sharply, “Part of the proceedings are clearly terminated.” Werdegar and Justice Carol Corrigan tag-teamed each other moments later, alternately questioning Mueting and telling him that without appellate review no one � including other judges looking for support in their own mental retardation rulings � would ever know what had taken place in Tulare County. Werdegar also expressed some doubts about the mental retardation finding for Vidal. She noted that court records indicated that he was married, had children, was employed and managed the family finances. Mueting argued that all those facts needed to be put into context, and got a laugh from the audience when he said that people “don’t have to have any sense” to be married and have children. Not joining in the laugh, Werdegar said: “He cared for the children, did he not?” Tulare County Supervising Deputy District Attorney Barbara Greaver � whose husband and daughter were in the audience � later tacked on that the brutality of Vidal’s crime and the various acts he perpetrated on the victim before killing him ruled out mental impairment. “These are not the actions of a mentally retarded person,” she said. “These are the actions of a sadistic, cruel person.” Where both Mueting and Greaver seemed to falter was in arguing what weight the judge should have given the IQ tests. Mueting said the judge was correct in giving more weight to the verbal IQ test score, while Greaver said the court of appeal got it right with the full scale IQ test. The Supreme Court appeared to believe there was a middle road. Corrigan and Justice Joyce Kennard reminded both attorneys that the state Legislature didn’t establish any particular test score as the standard for determining mental retardation. Neither did the high court’s own ruling in Hawthorne, which gave trial court judges the authority to weigh all the relevant evidence. “There’s a certain amount of interpretation, isn’t there?” Corrigan asked Mueting. Kennard was tougher on Greaver, telling her that if the court agreed with the prosecutor’s office, the ruling “would fly in the face of the legislative pronouncements.” She also said that Greaver’s position “would tie the hands of the trial court.” In the end, the justices seemed to almost unanimously feel reversal was necessary, but were unsure about what court should get the case at this point. “What do we do?” Werdegar asked Mueting. “Send it back to the trial court or back to the appeal court to resolve other issues?” A ruling in People v. Superior Court (Vidal), S134901, is due within 90 days. Earl Johnson Jr., a justice on Los Angeles’ Second District, replaced Justice Marvin Baxter during the argument because Baxter’s brother-in-law, Justice James Ardaiz, authored the Fifth District’s opinion.

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