CRITZER v. ENOS

avior supports the theory that Jordan suffers from PTSD.

The only aberrant behavior exhibited by Jordan since his military service is the kidnaping and killing of Mrs. Marter. Dr. Wilson posits:

If Mr. Jordan did have PTSD at the time of the crime, it is likely that the offense was committed while Mr. Jordan was under the influence of extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

Dr. Zigelbaum states that he believes it is "entirely possible" that Jordan had "at least some manifestations of PTSD" at the time of the crime. However, other than Jordan's service in Vietnam, there is no indication that these experts reviewed the circumstances of Jordan's offense or his behavior before and after the murder in suggesting this diagnosis. Jordan himself admitted in an exchange with the trial court outside the presence of the jury that he never thought he suffered from PTSD. Absent more evidence of a connection between Jordan's actual behavior and the possibility that he has PTSD, this Court is not persuaded by these experts' affidavits that hiring additional mental health experts would have made a difference in Jordan's case. Goodwin v. Johnson, 132 F.3d 162, 189 (5th Cir. 1997).

Jordan also argues that other mental health experts would have exposed the deficiency in Dr. Maggio's evaluation of him as having antisocial personal disorder. Although this issue was raised in Jordan's post-conviction petition, the Mississippi Supreme Court did not address it in the context of ineffectiveness. In support of his argument here, Jordan argues that the diagnosis of antisocial personality disorder was inaccurate because it was based on "little or no evidentiary support," since Maggio spent little time with Jordan and sought no other information. Additionally, Jordan argues:

Dr. Maggio ultimately concluded that Mr. Jordan had antisocial personality disorder. However, according to the Diagnostic and Statistical Manual ("DSM-IV-TR), there must be some evidence of a conduct disorder prior to age 15, but in this case there was no such evidence. There is also little, if any, support for most of the other criteria for the antisocial personality disorder diagnosis. The relevant diagnostic criteria from the DSM were attached as Exhibit 40 to the state court petition,

The referenced exhibit is a single page that does contain the diagnostic criteria Jordan describes — evidence of Conduct Disorder with onset before age 15 years. However, there is no authentication of this page as having come from the DSM-IV. There is no validation of this diagnostic criteria as being effective at the time that Jordan was interviewed. No expert in mental health has opined that Maggio's diagnosis was fatally flawed in the absence of this finding. This Court is unwilling to find that counsel was ineffective in failing to obtain expert advice to refute this finding on the basis of an untitled page. Jordan has not provided evidence to demonstrate that he was prejudiced in this regard, and the failure of the Mississippi Supreme Court to vacate his death sentence on this issue is neither contrary to, nor an unreasonable application of, clearly established federal law.

Ground L : The trial court denied petitioner's rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments by ordering the disclosure of mental health evaluation even though Petitioner did not intend to call the court-appointed evaluator as a witness.

Prior to trial, Jordan moved the court for a psychiatric examination and evaluation "to determine if there are possible mitigating factors that could be used as evidence on defendant's behalf at his sentencing hearing. There were difficulties in scheduling the motion for a hearing, and the transcript indicates that a hearing occurred with little notice to the parties to discuss whether the State was entitled to a copy of the examiner's report. For that reason, and in order to prevent delay, Jordan's counsel waived his presence at the hearing, on the court's assurance that the issue could be reconsidered at a time when Jordan was present.

Counsel reiterated at the hearing that the examination would be for the purpose of exploring possible mitigation factors. Jordan's attorney argued that, if his client could afford to hire an expert, he would not be required to provide a copy of his report to the State until he decided to use the expert at trial. He contended that it was a violation of due process to prejudice his client because he was indigent. The prosecutor argued that Rule 9.04 of Mississippi's Rules of Circuit and County Court Practice required disclosure of the report. Thus, although he had no objection to the examination, he argued that the State was entitled to the report. The judge ruled for the State, "unless there's a motion for rehearing with some authority otherwise. . . ."

Dr. Maggio was chosen as the expert, with no objection from Jordan's counsel. As discussed earlier, Maggio's report included information from Dr. Davis indicating that Jordan had been dishonorably discharged from the Army. Maggio concluded that Jordan had antisocial personality disorder. Maggio concluded:

[Jordan] actually appeared to be a danger to himself and others prior to being in the military, while he was being in the military, and after he got out of the military. He would portray himself as being a really fine, upstanding citizen who has been a good guy and helped people all of his life and would continue to do so if he got out of jail. The evidence seems to be quite the contrary. He is a self-proclaimed con artist, all of his life offers excuses for his behavior and does not take responsibility for his behavior. In addition, he seemed to show no remorse for the crime that he has committed. If, in fact, he is doing all of these good works while he's in jail, then that is a good thing for him to do but one is led to the conclusion that he's only doing it because he is in jail and to paint a good picture of himself.

This report was never offered into evidence. However, Richard King, a childhood friend of Jordan's, testified that Jordan was not a danger to society and that he would welcome Jordan into his home. During cross-examination, the prosecutor asked whether he was aware of several of the facts related in the report, including his military record, embezzling, the fact that Marter was killed because the FBI did not follow his instructions, and his comment to Dr. Davis, "Better luck next time."

Following King's testimony and that of another witness, Jordan's attorneys announced that they had intended to call two other witnesses, Dola Jones and Joseph Fairchild, but would not do so "in light of the Court's ruling as far as allowing them to be examined on the basis of the psychiatric reports. . . . We're not calling them for that reason only." Ultimately, the trial judge ruled that Maggio could not testify in rebuttal, unless Jordan testified to some matter that Maggio could rebut. After that ruling, Jordan's attorneys asked for a mistrial, based on the decision not to call Jones and Fairchild "for fear, actually being intimidated, that something might inadvertently come out of the witness' mouth to open the door to the use of this report. . . ." The motion was denied. Jordan declined to testify because of the potential that it would open the door to Maggio's testimony, after which the prosecutor stated that he would not call Maggio under any circumstances. Jordan conferred with his attorneys about that development, but still declined to testify.

Jordan argues now that the judge's interpretation of Rule 9.04 violated the Fifth, Sixth, Eighth and Fourteenth Amendments. He contends that, by ordering Maggio's report to be simultaneously published to both sides, the trial court violated his right to due process. He also claims that he was disadvantaged because of his indigency, in violation of his right to equal protection. Jordan equated the compulsion to provide the State with Maggio's report to being required to share an expert, rather than being permitted an independent expert, in violation of Ake v. Oklahoma, 470 U.S. at 77. Citing Brooks v. Tennessee, 406 U.S. 605, 612 (1972), Jordan argues that the trial court's ruling violated the Fifth and Sixth Amendments by requiring him to provide assistance to the prosecution.

The Mississippi Supreme Court recognized that there are limitations on the use of psychiatric testimony where it has been ordered by the court. Jordan, 786 So. 2d at 1007-08; Estelle v. Smith, 451 U.S. 454, 462 (1981). However, it distinguished Jordan's case from the authorities that he cited, on grounds that he requested the examination and voluntarily subjected himself to it. Jordan, 786 So. 2d at 1008. According to that court, where the defendant requests such an evaluation or presents psychological evidence, the prosecution is entitled to rebut it. Id. (citing Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987)). The prosecution may resort to the reports of the defendant's expert to do so. Id. The court concluded:

We find that the State's cross-examination of King did not violate Jordan's privilege against self-incrimination. King testified that he had known Jordan most of his life; therefore it was reasonable for the State to ask King about Jordan's employment and his military career. King testified that he did not consider Jordan to be dangerous and that he had exhibited good behavior during his tenure at Parchman; therefore it was reasonable for the State to ask King about statements made by Jordan about the killing.

786 So. 2d at 1010. Additionally, the court noted that the substance of Maggio's report was never divulged to the jury.

Jordan argues that the Mississippi Supreme Court never reached any issue beyond his Fifth Amendment claim; therefore, his remaining claims may be reviewed de novo. He claims that the court's reliance on Estelle, and Buchanan was in error, as he did not present mental health or mental status testimony. Additionally, according to Jordan, the state court's opinion relied on a mistake of fact. In its opinion, the court states, "The basis of the State's questions was Dr. Davis' psychiatric report which was introduced into evidence when Dr. Davis testified during the guilt phase. See Jordan v. State, 365 So. 2d 1198, 1203 (Miss. 1978)." 786 So. 2d at 1010. As Jordan correctly avers, Davis did not testify during any trial. He was retained to examine Jordan to determine whether he was competent, and his only testimony occurred at a pretrial hearing. His report was never introduced into evidence. Thus, to the extent that the state court opinion permitted use of Davis's report on the assumption that a jury heard it during the guilt phase, that assumption was in error.

With regard to the first issue, this Court agrees with Respondents that the Mississippi Supreme Court's decision was not limited to his Fifth Amendment claim. The opinion states:

Even though Jordan claims his right to due process was violated, the issue, at its basis implicates the Fifth Amendment to the United States Constitution, the guarantee against self-incrimination. Jordan did not want the State to have copies of the psychiatric reports because they included statements made by Jordan and opinions based thereon which may have been damaging to his defense. Therefore, if it is determined that Jordan's Fifth Amendment rights were not violated, he has no due process claim.

786 So. 2d at 1007. As to the third issue, this Court agrees that the Mississippi Supreme Court made a factual error — Dr. Davis never testified before a jury in Jordan's case. However, the error does not mandate habeas relief, since the court's opinion is not reliant solely on the assumption that reference to Davis's report was proper because it had been introduced to the jury in the only trial on Jordan's guilt. Instead, the opinion went on to reason that reference to the report was proper to impeach King, particularly since its contents were never revealed to the jury. 786 So. 2d at 1010.

It is the second issue, whether requiring Dr. Maggio to provide his report to both the prosecution and the defense violated Jordan's constitutional rights, that is the primary issue here. The state court ruled that it did not, and this Court agrees. In Granviel v. Lynaugh, 881 F.2d 185 (5th Cir. 1989), the petitioner raised an insanity defense. In response. the State introduced testimony from two psychiatrists who had examined him earlier. Granviel argued that the admission of that testimony violated his Fifth and Sixth Amendment rights, both of which claims were rejected. Id. at 190. Additionally, Granviel attacked, on constitutional grounds, the state statute that permitted the appointment of a disinterested expert, but required that a copy of his report be provided to the court and opposing counsel. Id. at 191. Based on that statute, the trial court required that the report of one of the psychiatrists be disclosed to the State.

The court disposed of Granviel's Sixth Amendment claim on grounds that it was waived when his attorney requested that an expert be appointed. Id. Granviel had also alleged that he was denied the right to meaningfully defend himself by asserting an insanity defense, in contravention of Ake. The court denied that claim, stating, "Granviel's ability to uncover the truth concerning his sanity is not prejudiced by a court-appointed, neutral expert. . . . The state is not required to permit defendants to shop around for a favorable expert." 881 F.2d at 192. Thus, Granviel had been provided "the raw materials integral to the building of an effective defense." Ake, 470 U.S. at 77.

In a later case, White v. Johnson, 153 F.3d 197 (5th Cir. 1998), the petitioner, who had been convicted of capital murder and sentenced to death, had asked for the appointment of a psychiatrist to assist him in defending the State's claim of future dangerousness. The trial court gave him two options — a simultaneous, joint examination by psychiatrists for both sides or an examination by a court-appointed psychiatrist whose report would be made available to the court and counsel for each side. Id. at 200. Because White would not agree to either option, the court denied his motion. White contended that the trial court had violated his due process and equal protection rights, as well as his Fifth Amendment right against self-incrimination.

The court first distinguished White's case from Granviel's, noting that Granviel had put his mental state at issue by pleading an insanity defense, while White sought expert assistance to counter a claim made by the State. Id. at 201 n. 2. Without deciding that the State erred in setting conditions for the appointment of a psychiatrist, the court determined that any error was harmless. To establish the standard of review, the court decided that failure to provide the services of a psychiatrist in this context was trial error, rather than structural error, and therefore, subject to harmless error analysis. In making that determination, the court noted that White's right to psychiatric assistance was contingent upon the State's introduction of evidence of future dangerousness. Absent the introduction of such evidence, White had no right to psychiatric assistance under Ake. Thus, the court reasoned, "if the state's admission of psychiatric testimony is subject to harmless-error analysis, then the purported Ake error is likewise subject to harmless-error analysis." Id. at 203. The court noted that the Supreme Court had held that the erroneous admission of psychiatric testimony is subject to harmless error analysis. Id. (citing Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988)). That being so, the denial of psychiatric assistance to White was also subject to harmless error analysis.

White argued that it was error not to provide him with his own psychiatrist to counter the testimony of the state's expert, who testified that he considered White to be at the end of the spectrum in terms of danger to society, and that he considered him to be a high risk for future dangerousness. However, there was ample lay testimony to the same effect; e.g., officers testified that he bragged about the crime and showed no remorse; his ex-wife reported that he beat her, as well as other ex-wives; and family members who testified about his propensity for violence. Given this testimony, the court concluded that the psychiatrist's testimony likely did not affect the jury's finding the issue of future violence, particularly considering the effectiveness of the defense's cross-examination. The court further rejected White's claim that psychiatric testimony would have helped him in other areas of his case, since he did not include those areas in his request for expert assistance. For these reasons, it found that, if error was committed, it was harmless. Id. at 205-07.

Granviel continues to apply to cases in which the request for psychiatric expert assistance is made to support an issue raised by a criminal defendant. Long v. Johnson, No. 98-10994, 189 F.3d 469 (5th Cir. July 15, 1999). There, the petitioner argued that the state was obligated to appoint an independent psychiatrist, not merely a neutral one, to assess his claim of insanity. The court noted that other circuits had held that appointment of an expert who was neutral, but not independent, violated Ake. However, without ruling on that issue, the court noted, "[T]he trial court in this case would not have felt bound to apply these cases in the face of Granviel's binding precedent." Id. at n. 6. More recently, the Fifth Circuit again recognized the contrary opinions from other circuits, but held, in the absence of a clear precedent from the Supreme Court, a state court does not err in assuming that Graviel remains good law. Woodward v. Epps, 580 F.3d 318, 332 (5th Cir. 2009).

When Jordan raised this issue on direct appeal, it was couched as an attack on the trial court's interpretation of Rule 9.04, which Jordan contended was unconstitutional. His argument was that the Rule should be interpreted to compel production of an expert's report to the state only when a defendant intends to use the expert's opinion at trial. 786 So. 2d at 1007. The court analyzed the argument as a Fifth Amendment claim. "Jordan did not want the State to have copies of the psychiatric reports because they included statements made by Jordan and opinions based thereon which may have been damaging to his defense." Id. The court recognized that, where a defendant is ordered to participate in a mental health evaluation, a Fifth Amendment claim arises from the use of his statements at that evaluation. Id. at 1007-08 (citing Estelle v. Smith, 451 U.S. 454, 462 (1981)). The court also recognized, however, that the analysis changes when it is the defendant who seeks a psychiatric examination. Id. at 1008 (citing Buchanan v. Kentucky, 483 U.S. 402, 422-23). Even in that situation, however, use of expert testimony by the state is only appropriate where the defendant has "introduce[d] mental-status evidence that may be fairly be characterized as expert. . . ." Id. (citing Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir. 1988)). Lay opinions on sanity were not "mental status evidence" for that purpose. Id. (citing Brown v. Butler, 876 F.2d 427 (5th Cir. 1989)). However, even if Maggio's report could not have been introduced to counter Jordan's witnesses' testimony, a lay witness may be confronted with a report from a mental health expert on cross-examination. Id. at 1009-10. Finding that Jordan's witness, Richard King, had made specific comments about Jordan's character, there was no error in having him silently read Maggio's report. Id. at 1010.

Based on the law announced by the Supreme Court in Ake and interpreted by the Fifth Circuit in Granviel and Woodward, the Mississippi Supreme Court's opinion was not contrary to, or an unreasonable application of, clearly established federal law. Jordan requested the appointment of a psychiatrist to explore the possibility that he suffered from Post Traumatic Stress Disorder. Given the vagueness of his assertion, Jordan's right to the appointment of a psychiatrist is dubious. Some threshold showing or reason for same is necessary. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985); Goodwin v. Johnson, 132 F.3d 162, 189-90 (5th Cir. 1997). In any event, under the law in this Circuit, Jordan did not have a right, under Ake to an independent psychiatrist, and the trial court's appointment of Maggio under the condition that his report be shared by both sides did not violate Jordan's constitutional rights. For this reason, he is not entitled to habeas relief on this issue.

Ground M : Petitioner was denied his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution due to the lack of a knowing and intelligent waiver prior to cooperating with the court-appointed examiner. Ground N : Petitioner was denied the effective assistance guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and Mississippi law by trial counsel's failure to ensure that he had the opportunity to make a knowing and intelligent waiver prior to cooperating with the court-appointed evaluation. Ground O : Petitioner did not knowingly, intelligently, or voluntarily waive his right to be present on numerous occasions, including at a hearing on his motion for appointment of a mitigation expert.

These issues are so interrelated that they may be discussed together. Prior to the trial, Jordan filed a pleading titled, "Assertion of right to be Present." The document asserted his right to be present at "all aspects of the case. . . ." Jordan specifically named the following events:

a. all pre-trial hearings, conferences or any other matters (save only telephone scheduling of proposed hearings or meetings between the attorneys);

b. all other pre-trial matters, including but not limited to the drawing of the jury pool;

c. all aspects of the trial, including but not limited to all voir dire, all bench conferences, and all charge conferences;

d. all other hearings and judicial proceedings of any kind which may influence whether he lives or dies.

Despite Jordan's assertion, he was not present at the pretrial conference where the trial judge ruled that Dr. Maggio's opinion would be shared by counsel for both sides. That hearing was held in the judge's chambers, with the prosecutor participating by telephone. At the beginning of the hearing, defense counsel waived Jordan's presence, noting:

I initially tried to get the motion set for the 25th or the 26th, and due to the Court's schedule I was unable to do so. Joe Sam advised us that he had a conflict this afternoon, and so I think that because of the nature of this motion for a psychiatric evaluation, and in order to not cause a possible delay or grounds for delay in the trial, I wanted to go forward with this because sometimes these things take a lot of time and I wanted to move quickly on it. For that reason I've waived Jordan's presence at this hearing.

Jordan argues that, because he was not present at the hearing, he was unaware that the judge had ordered the report of his psychiatric evaluation to be sent to the prosecution. He further contends that his attorneys did not advise him of that fact. According to Jordan, he declined to cooperate with an examination during earlier proceedings because this condition was imposed. Thus, he maintains, had he known that the report would be given to the prosecution, he would not have participated in it, and the prosecution would not have had the benefit of the unfavorable evidence it used against him.

This issue was raised on direct appeal, with reference to the hearing on Maggio's report, as well as other pretrial proceedings and bench conferences. While recognizing the general right of a criminal defendant to be present at "critical stages" of his trial, the court held that the conferences did not qualify, since the matters discussed therein were "purely legal, and the criminal defendant can do little to aid his defense." 786 So 2d at 1021-22. With regard to the hearing on Maggio's report, the court held that its ruling on the prosecution's entitlement to Maggio's report disposed of the matter. Id. at 1022.

The court addressed the issue again in its opinion on Jordan's post-conviction petition. There, it held, "This Court has already addressed similar issues related to Dr. Maggio's evaluation in its most recent opinion. [cite omitted] This claim is procedurally barred pursuant to Miss. Code Ann. § 99-39-21." 912 So. 2d at 816. The court went on, however, to "examine the merits of Jordan's claim." While not addressing the waiver issue as it related to Jordan's presence at the hearing, the court did address his argument that he did not knowingly and intelligently give a waiver "with respect to the use of those statements at the sentencing proceedings." Id. Distinguishing the cases cited by Jordan to show that he should have been fully apprised of the potential use of the examination at trial, the court stated that those cases involved court-ordered examinations, rather than examinations requested by the defendant. "Because Jordan's counsel requested the psychiatric examination, he was well aware, and even intended, that statements he gave be used at the resentencing trial." Id. at 817. Moreover, since Maggio was not "a state actor," the warnings were unnecessary. Id. Finally, the court held that, since the only use made of Maggio's report was in cross-examination of a witness, any error was harmless. Id.

Jordan's claim is three-fold, and the relationship between these issues has not been specifically addressed by the state court. He claims: (1) he did not waive his right to be present at the hearing where the ruling on Maggio's report was made; (2) he did not waive his right to refuse to cooperate in providing incriminating information to the prosecution because he was unaware that Maggio's report would be provided to the prosecutors; and (3) his attorneys were ineffective in failing to communicate the court's ruling to him. As to the first issue, it is clear that Jordan wanted to be present at all pretrial hearings, and this hearing was included in his request. (Although he

excluded some telephonic hearings from his request, those were hearings related purely to scheduling issues.) It is equally clear from the record that his attorney waived his right to be present.

A criminal defendant has a due process right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105, 106 (1934). In Snyder, the Court suggested that a different standard governed the analysis where the defendant was not present at a pretrial proceeding:

Many motions before trial are heard in the defendant's absence, and many motions after trial or in the prosecution of appeals. [cite omitted] Confusion of thought will result if we fail to mark the distinction between requirements in respect of presence that have their source in the common law, and requirements that have their source, either expressly or by implication, in the Federal Constitution.

Id. at 107. As more recently restated by the Supreme Court, the right extends to "any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Thus, the right to be present at trial extends to certain pretrial proceedings, particularly where testimony would be taken at the proceedings, and the defendant's right to confront witnesses is involved. Id.

It appears that the state court distinguished the Maggio hearing from the other proceedings that Jordan did not attend. By reaching the issue of waiver, the court implicitly ruled that Jordan had a due process right to attend the Maggio hearing. That ruling is entitled to deferential treatment under the AEDPA. Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001). See also Packer v. Early, 537 U.S. 3, 8 (2003). There being no case from the United States Supreme Court that gives a clear answer on this issue, the state court cannot have unreasonably applied clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 126 (2008). Thus, this Court must defer to the state court's judgment that Jordan had a due process right to attend the Maggio conference.

The Mississippi Supreme Court also found that Jordan's counsel had waived his right to attend the motion hearing. Many rights may be waived by counsel on a client's behalf in a criminal case. Taylor v. Illinois, 484 U.S. 400, 417-18 (1988). Other rights, however, cannot be waived "without the fully informed and publicly acknowledged consent of the client." Id. Those include the right to be present at trial. Id. at n. 24. See also Winters v. Cook, 489 F.2d 174, 179 (5th Cir. 1973) (fundamental rights that cannot be waived by an attorney include the right to plead guilty, the right to waive trial by jury, the right to waive appellate review, and the right to testify personally). The question of whether an attorney can waive his client's right to attend a pretrial motion hearing at which no testimony or evidence was received by the court has not been addressed by the Supreme Court. Again, there being no clearly established federal law to the contrary, this Court must accept the state court's decision that the right was waived.

Jordan argues that, because he did not know that Maggio's report would be sent to the prosecutor, he could not knowingly waive his right to refuse to cooperate with Maggio's evaluation. The Mississippi Supreme Court addressed this issue in its post-conviction opinion. Jordan argued that existing precedent required a pre-examination warning, based on the Fifth and Sixth Amendments. Estelle v. Smith, 451 U.S. 454 (1981); Gardner v. Johnson, 247 F.3d 551 (5th Cir, 2001). The court held those cases inapposite to Jordan's, noting that in neither of those cases had the examination been requested by the defendant. The court went on to discount Jordan's claim that he did not realize that Dr. Maggio's report would be shared with the prosecution, stating that he "was well aware, and even intended, that statements he gave be used at the resentencing trial." 912 So. 2d at 817. Finally, the court held that no warning was necessary because Maggio was not a "state actor." Id.

As noted in the earlier discussion, this Court cannot conclude that the Mississippi Supreme Court's decision that Jordan had no constitutional right to prevent disclosure of the information in Maggio's report runs afoul of clearly established federal law. That being so, the Court must likewise defer to the state court's finding that Jordan had no constitutional right to waive; therefore, his knowledge of the trial court's ruling prior to the examination has no constitutional implications. Clearly, Jordan had the right to refuse to talk to Maggio, but that right is not derived from the Constitution of the United States.

This Court must likewise defer to the state court's finding that Jordan was aware that Maggio's report would be used at trial, as it is not unreasonable determination of the facts in light of the evidence. Jordan addressed the trial court during an argument on Maggio's report and asserted that he was unaware, at the time of the examination, that Maggio's report would be provided to the State. His attorneys, however, never confirmed that they failed to inform Jordan of the trial court's ruling, either during argument at trial or in the affidavit given in support of his post-conviction petition. Additionally, the content of the report indicates that Jordan's intent was to provide a wealth of information to be used as mitigation evidence. Only a small portion of the examination was dedicated to a discussion of possible post-traumatic stress. In contrast, the majority of the report contains self-aggrandizing statements made by Jordan to demonstrate his good behavior. The only bad information in the report came from Davis's report and the comparison of the statements made therein with the statements made to Maggio. Finally, Jordan's prior counsel stated that the same conditions would have been imposed on Maggio's report if Jordan had been examined by him in earlier proceedings. Based on that requirement, his former counsel stated, "We determined that it would be advisable for Mr. Jordan not to cooperate with an evaluation if the results of that evaluation were to be disclosed to the prosecution." Jordan, then, was likely aware of the possibility that Maggio's report would be shared with the State. A defendant's experience with the criminal justice system is a factor in determining whether that defendant knowingly and intelligently waived constitutional rights. Parke v. Raley, 506 U.S. 20, 37 (1992); Marshall v. Lonberger, 459 U.S. 422, 437 (1983). For all of these reasons, this Court is of the opinion that the Mississippi Supreme Court's determination that Jordan's conversation with Maggio was conducted with full awareness of its ramifications was not unreasonable in light of the evidence. Thus, the waiver issue has no merit.

Jordan also argues that his trial counsel was ineffective for failing to inform him of the trial court's ruling with regard to Maggio's report; however, Respondents contend that this issue was defaulted in state court and therefore never discussed by the Mississippi Supreme Court. Jordan disagrees and directs this Court's attention to his post-conviction petition. The entirety of his argument on this issue is as follows:

XXII PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE GUARANTEED BY THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW BY TRIAL COUNSEL'S FAILURE TO ENSURE THAT HE HAD THE OPPORTUNITY TO MAKE A KNOWING AND INTELLIGENT WAIVER PRIOR TO COOPERATING WITH THE COURT-APPOINTED EVALUATION.

257. Petitioner incorporates all facts alleged in Grounds XVIII — XXI.

258. Trial counsel filed a motion requesting that Petitioner be allowed to be present at all hearings. Although the trial court granted that motion, counsel waived Mr. Jordan's presence at a conference with respect to the appointment of a mental health evaluator. Although the Mississippi Supreme Court addressed whether Mr. Jordan had a due process right to be present at the hearing, Jordan v. State, 786 So. 2d 987, 1022 (Miss. 2001), it did not have reason to address the distinct question as to whether trial counsel adequately informed Mr. Jordan about the purpose of the evaluation and whether anything that he said to Dr. Maggio could be used against him. Exhibit 36.

259. By not ensuring that their client was aware of the ramifications of cooperating with the evaluation, Mr. Jordan could not make a knowing and intelligent waiver of his rights prior to meeting with 76 Cal.App.4th at p. 1293), demonstrate that the court's order granting the HOA's motion finally disposed of the litigation. There was nothing left for the court to do other than enforce its order, and the HOA, notwithstanding its urging that the order is not final, identifies no further matters to be determined in the case. The Second District Court of Appeal (Div. Three), recently addressing similar circumstances, held: "The court here granted the motion [to enforce settlement] under Code of Civil Procedure section 664.6, but failed to enter a formal judgment. Absent a formal entry of judgment, an appellate court may amend an order to include a judgment if the effect of the order is to finally determine the rights of the parties in the action. [Citation.] We conclude that the effect of the order here was to finally determine the rights of the parties in this action by enforcing the settlement agreement. Accordingly, we will amend the order to include an appealable judgment so as to expedite appellate review." ( Hines v. Lukes, supra, 167 Cal.App.4th at p. 1183, citing Griset, supra, 25 Cal.4th at pp. 698-700.)

We therefore conclude that, although it would have been preferable for the court to have disposed of the HOA's motion by entering judgment as specified in section 664.6, the order here finally determined the rights of the parties. Therefore, "we will amend the order to include an appealable judgment so as to expedite appellate review." ( Hines v. Lukes, supra, 167 Cal.App.4th at p. 1183.)

II. Motions to Enforce Settlement Under Section 664.6

The Second District Court of Appeal, Division Two, has succinctly described the nature of motions brought pursuant to section 664.6: "Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.] . . . Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon." ( Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809-810 [ 71 Cal.Rptr.2d 265]; see also Terry v. Conlan (2005) 131 Cal.App.4th 1445 [ 33 Cal.Rptr.3d 603] [court erred in granting § 664.6 motion where record demonstrated no meeting of minds concerning material terms of settlement].)

The trial court's factual findings on a motion to enforce a settlement under section 664.6 "are subject to limited appellate review and will not be disturbed if supported by substantial evidence." ( Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162 [ 64 Cal.Rptr.2d 571].) In instances involving questions of law, including the construction and application of the statute, the trial court's decision is not entitled to deference and will be subject to independent review. ( Ibid.) For example, where the principal claim of error "raises a question of law concerning the construction and application of section 664.6[, . . .] it requires independent review. [Citations.]" ( Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1116 [ 127 Cal.Rptr.2d 370], fn. omitted ( Gauss).)

III. Whether Purported Settlement Is Enforceable Under Section 664.6

The record discloses that when the Settlement was recited on the record on January 30, 2008, two of the five parties did not personally give their consent to it. Because this raises a serious question as to whether the statutory requirements of enforcing a settlement under section 664.6 were satisfied, we address the issue below. Additionally, in view of the fact that the apparent absence of the parties' personal consent to the oral Settlement was not a focal point of either the Critzers' opposition to the motion below or of their appeal, we also address below whether any enforceability argument should be deemed forfeited.

Both parties acknowledged in their briefs that not all parties gave their formal consent at the time to the oral Settlement, but they did not elaborate on the potential legal effect of this circumstance upon the enforceability of the Settlement under section 664.6. Accordingly, we requested that the parties submit supplemental letter briefs on both the substantive issue and on whether the question should be deemed forfeited. We have considered those supplemental briefs in reaching our conclusions in this opinion.

A. Enforceability of Purported Settlement

Section 664.6 provides as follows: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."

The Supreme Court has addressed the meaning of the term "parties" in the context of whether a section 664.6 motion may be brought to enforce a settlement for which there was a purported written agreement that was not signed by all litigants themselves, but was signed by attorneys on behalf of their clients. (See Levy v. Superior Court (1995) 10 Cal.4th 578 [ 41 Cal.Rptr.2d 878, 896 P.2d 171] ( Levy).) After observing that the statute requires a stipulation by the "parties" to pending litigation, the court concluded the term "parties" must be interpreted literally to mean the litigants themselves. ( Id. at p. 586.) Although the term "party" is recognized in other contexts as including the litigant's attorney of record (e.g., § 437c), the court determined the Legislature intended "a narrower meaning" for the word, "namely the specific person or entity by or against whom legal proceedings are brought. [Citations.]" ( Levy, supra, at p. 583.) The court reasoned that, unlike other steps an attorney takes in managing a lawsuit, settlement ends the lawsuit and is thus "such a serious step that it requires the client's knowledge and express consent. [Citation.]" ( Ibid.) In holding that enforcement of a settlement pursuant to section 664.6 requires the personal assent of the litigants themselves, the court reasoned: "[I]n 1981 [,] . . . the Legislature enacted section 664.6, which created a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met. Thus the statute requires the `parties' to stipulate in writing or orally before the court that they have settled the case. The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]" ( Levy, at p. 585, fn. omitted.) Because one of the parties in Levy did not personally sign the settlement agreement, the Supreme Court concluded that the purported settlement agreement confirmed in writing by the parties' attorneys could not be enforced under the procedural mechanism of section 664.6. ( Levy, at p. 586.) Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700 [45

In so holding, the court observed that there are procedural devices other than a motion under section 664.6, such as summary judgment or a separate action, that may be available for the enforcement of a settlement. ( Levy, supra, 10 Cal.4th at p. 586, fn. 5.)

Cal.Rptr.2d 740] ( Johnson) addressed whether the Levy requirement under section 664.6 of the parties' personal approval of a written settlement agreement applied equally to oral settlements recited before the court. In Johnson, after the case was assigned out to trial, a settlement was recited on the record with counsel present. ( Johnson, at pp. 1703-1704.) Because the purported oral settlement was never acknowledged on the record by the plaintiff himself, the court, following Levy, held that the trial court erred in enforcing it under section 664.6, reasoning: "Settlement negotiations were handled by the parties' attorneys and the court. While the attorneys orally agreed to the settlement during judicially supervised negotiations, and thus orally stipulated to the agreement `before the court' [citations], [the] plaintiff never personally informed the court that he accepted the terms of this agreement. Absent this personal involvement, the agreement is not enforceable under section 664.6." ( Johnson, at pp. 1707-1708.) In so holding, the court rejected the defendants' argument that Levy applied only to written settlement agreements for which enforcement under section 664.6 was sought, and did not apply to oral settlements recited in open court. ( Johnson, at p. 1708; see also Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440 [ 118 Cal.Rptr.2d 502] [§ 664.6 requires oral consent in court or the signatures of the parties themselves; consent by attorneys or spouses insufficient].)

Similarly, in Murphy v. Padilla (1996) 42 Cal.App.4th 707 [ 49 Cal.Rptr.2d 722] ( Murphy), we rejected the argument that an oral settlement agreement ratified by the party's attorney, acting as the party's agent, was enforceable under section 664.6. "The Levy and Johnson opinions appear to reject traditional agency analysis, which holds that ` "the client as principal is bound by the acts of the attorney-agent within the scope of his actual authority (express or implied) or his apparent or ostensible authority; or by unauthorized acts ratified by the client."` [Citation.] [¶] . . . [¶] In the underlying case, Levy and Johnson prevent respondents from relying on agency principles to satisfy the requirements of section 664.6. Accordingly, if appellant did not personally agree to the alleged oral settlement before Judge Bonney, an additional ground exists for concluding that enforcement under section 664.6 was improper." ( 42 Cal.App.4th at p. 716, fn. omitted.)

Since Levy, several cases have addressed the question of whether all parties must personally assent to a settlement in order for it to be enforceable under section 664.6, or whether it is sufficient that the party against whom the settlement is being enforced need to have personally assented. In Harris v. Rudin, Richman Appel (1999) 74 Cal.App.4th 299, 303 [ 87 Cal.Rptr.2d 822] ( Harris), the plaintiff in a legal malpractice suit against a law firm and five individuals sought to enforce a purported written settlement agreement that consisted of a letter of counsel which two of the individual defendants had signed "under a notation reading `[a]ccepted and agreed.'" The letter agreement was not signed by the plaintiff or by the other defendants. ( Ibid.) The trial court denied the plaintiff's motion to enforce the settlement because "the statutory prerequisites of section 664.6 had not been satisfied . . . [in that] not all of the parties in the action [had] signed the [l]etter." ( Ibid.) The court in Harris affirmed. In so holding, the court rejected the plaintiffs arguments that "[(1)] the statute's requirement of a `writing signed by the parties' does not expressly require all the parties in the action to sign the settlement agreement [and (2)] . . . section 664.6 [is similar] to the statute of frauds requiring only the `part[ies] to be charged' to sign the writing. (See Civ. Code, § 1624.)" ( Id. at p. 304.) The Harris court held: "We read the statute's requirement of a writing `signed by the parties' to require the signatures of the parties seeking to enforce the agreement under section 664.6 and against whom the agreement is sought to be enforced. Although there is no direct authority interpreting the term `parties' in such a way, such an interpretation is consistent with our Supreme Court's opinion in Levy[, supra,] 10 Cal.4th [at p.] 585 " ( Id. at p. 305.)

Similarly, in Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30 [ 126 Cal.Rptr.2d 400] ( Sully-Miller), a purported written settlement agreement was signed by the plaintiffs; however, because they did not receive the contemplated consideration in a timely manner, they revoked their offer to settle, and the trial court granted the remaining parties' motion to enforce the purported settlement. ( Id. at pp. 33-35.) The appellate court concluded that this was error. Citing Harris, supra, 74 Cal.App.4th at pages 304-306, it observed that the provisions of section 664.6 could be invoked to enforce a written settlement agreement only if it has been signed by all parties. ( Sully-Miller, at p. 37.) "We conclude that a party cannot satisfy section 664.6's signature requirement simply by adding its signature to a document that does not call for it. The purpose of section 664.6's signed writing requirement — to provide unequivocal proof of the parties' intent to enter a binding settlement — would be frustrated if courts enforced written agreements pursuant to that section where, as here, the agreement only contemplates the signature of one party. Section 664.6 requires the parties' signatures because `settlement is such a serious step that it requires the client's knowledge and express consent. [Citation.]' [Citation.] A party's signature fails to convey such knowledge and consent unless it is contained in a document that was clearly intended by that party to be a binding settlement agreement. [¶] Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement. The ad hoc addition of a party's signature that was neither contemplated in the original document nor bargained for is simply insufficient to render the document enforceable under section 664.6." ( Ibid.)

Finally, in Gauss, supra, 103 Cal.App.4th 1110, the defendant in consolidated appeals argued that the trial court had erred in granting section 664.6 motions to enforce settlement because the defendant had not personally signed the settlement agreements; rather, they were signed by the defendant's agent, its attorney. ( Gauss, at pp. 1112-1113.) The appellate court — citing, inter alia, Levy, supra, 10 Cal.4th 578, Harris, supra, 74 Cal.App.4th 299, Sully-Miller, supra, 103 Cal.App.4th 30, and Murphy, supra, 42 Cal.App.4th 707 — concluded that because there was no writing indicating the defendant's consent to settle, the purported written settlement was not enforceable under section 664.6. ( Gauss, at pp. 1116-1121.)

Here, the record demonstrates that the oral Settlement the HOA sought to enforce was recited in open court on the record on January 30, 2008. The previous day, the court recited the terms of a settlement on the record, and the Critzers' attorney and Tung's attorney each added clarifications to the recital. No party voiced his/her/its assent on the record on January 29. On January 30, after the HOA's attorney recited the terms of the Settlement, and after a clarification from Tung's counsel, the court obtained the consent of David Critzer, Margaret Critzer, and Tung. The court indicated that Enos was not present, but Enos's attorney, Frank Jelinch, indicated that he had authority for his client, had spoken with him, and Enos was "agreeable." There was no consent to the Settlement given by the HOA; indeed, the record does not reflect whether a representative of the HOA was present at the January 30 hearing.

The HOA's motion to enforce settlement pursuant to section 664.6 brought in August 2008 contained the assertion that the parties had settled the case on January 30, 2008, and recited the terms of the Settlement by reference to the matters contained in the reporter's transcript. The motion clearly indicated that the Settlement was reached on January 30 and that it was enforceable under section 664.6. We therefore conclude that — addressing the issue without reference to whether the contention may have been forfeited (see pt. III.B., post) — the oral Settlement was not enforceable under section 664.6. Plainly, there was no personal consent to the recited terms of the Settlement by two of the five parties, the HOA and Enos. Any claim that the Settlement was nonetheless effective because it was expressly consented to by Enos's agent (Jelinch), and perhaps impliedly consented to by the HOA's agent (Attorney Mark Shem, who recited the terms of the Settlement), lacks merit. Under Levy, supra, 10 Cal.4th 578, in order for a settlement to be enforceable under section 664.6, the consent to settlement must have been given by the party, personally, and courts have rejected agency arguments posed to circumvent the party-consent requirement. (See Gauss, supra, 103 Cal.App.4th at pp. 1118-1119; Murphy, supra, 42 Cal.App.4th at p. 716 fn. 7.) Additionally, the fact that the Critzers gave their personal consent to the terms of the oral Settlement — as the parties against whom the Settlement is being enforced — does not obviate the necessity of the personal consent of the remaining parties, including the HOA and Enos. ( Harris, supra, 74 Cal.App.4th at pp. 304-305.) Moreover, there is no basis for making a distinction between oral settlements and written settlements: Both forms of settlements, in order to be enforceable under section 664.6, require the personal consent of all parties. ( Johnson, supra, 38 Cal.App.4th at p. 1708.)

The HOA claims — in both its brief and supplemental letter brief (see fn. 10, ante) — that under Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421 [ 129 Cal.Rptr.2d 41] ( Elyaoudayan), the oral Settlement was enforceable because it was later formally agreed to by the HOA and Enos when a draft agreement was prepared by the HOA's counsel and signed separately by the HOA and Enos. Elyaoudayan is distinguishable and does not support the HOA's argument. There, an oral settlement was recited on the record and was personally consented to by some, but not all, of the parties. ( 104 Cal.App.4th at p. 1426.) The two parties who did not give their consent at the hearing later signed a stipulation attaching the transcript of the court proceedings in which the settlement was recited. ( Ibid.) The Elyaoudayan court held that because "[a]ll parties agreed to the settlement in one form or the other or both" ( id. at p. 1432), it was immaterial that some of the parties merely signed the agreement attaching the court transcript while others gave their oral consent in court.

The respondent's brief filed by the HOA is noncompliant in that it fails to contain any proper citations to the appellate record — either the clerk's or reporter's transcript — supporting matters referred to in the court below. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [matters referenced from the record in appellate briefs must be supported "by a citation to the volume and page number of the record where the matter appears"].) In instances where an appellate briefs noncompliance with this rule is substantial, the court may order the brief stricken. ( Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 [ 94 Cal.Rptr.3d 802].) We have nonetheless overlooked this noncompliance and have considered the contentions and factual assertions made by the HOA in its brief.

Here, neither the HOA nor Enos orally consented at the hearing to the Settlement. Likewise, neither the HOA nor Enos gave its or his subsequent written consent by signing a writing attaching the reporter's transcript (reciting the Settlement terms). The fact that a representative of the HOA — some three and one-half months after the oral Settlement — signed a formal document prepared by its counsel (entitled "Mutual Release of All Claims and Settlement Agreement and Covenant Not to Sue") — does not alter the circumstances that, unlike in Elyaoudayan, the HOA neither orally agreed to the Settlement at the time nor agreed in writing by signing a document attaching the court transcript reciting the terms of the Settlement. Similarly, the fact that Enos signed a version of a written settlement agreement on a date unknown — which version apparently differed from the version signed by the HOA — does not change the fact that Enos neither orally consented to the Settlement on January 30 nor signed a document attaching the court transcript that contained a recital of its terms.

Moreover, we reject the HOA's assertion in its supplemental letter brief that Elyaoudayan is controlling because by signing the written settlement agreement, the HOA and Enos agreed in writing to the same terms that were recited in court on the record and orally agreed to months earlier by the Critzers and Tung. While in a superficial sense, this argument may seem plausible — because the later written agreement incorporated the essential terms that were recited in January and in some sense merely represented the formalized agreement that often follows after the parties reach an oral settlement of a case at a settlement conference — there are very real differences between the written agreement and the prior oral Settlement agreed to by three of the parties. These include the following provisions found in the written agreement that are not in the oral Settlement: (1) the release does not apply to a related civil writ action; and (2) any ambiguity or dispute about the interpretation of the agreement is to be construed to the fullest extent possible as effecting a release of the Critzers' claims (i.e., a clause favoring defendants). Also, the provision in the written agreement concerning Judge Kleinberg retaining continuing jurisdiction is significantly broader than what was recited in the oral Settlement. Accordingly, because there were differences between the oral Settlement and the terms of the written settlement agreement later signed by the HOA and Enos, unlike the circumstances in Elyaoudayan "[a]ll parties [did not] agree[] to the settlement in one form or the other or both." ( Elyaoudayan, supra, 104 Cal.App.4th at p. 1432.)

In the oral Settlement, it was recited: "In the event there is a dispute as to the opaqueness and design of the window, it will be referred to [Y]our Honor for final adjudication on that issue." It was further recited: "The Court again will retain jurisdiction to effectuate the terms of the settlement, again, on the issues of the opacity of the glass as well as the design if there is a dispute." The written agreement signed by the HOA and Enos, on the other hand, provided: "The Santa Clara County Superior Court, the Honorable James Kleinberg, shall have continuing jurisdiction over the parties and this litigation to finalize, execute and enforce the terms and conditions of this release. Further, the court shall retain jurisdiction to decide any issues regarding the opaqueness of the proposed glazing for the awning window to be installed and the design of such glazing should the parties be unable to reach an agreement. The Court shall also retain jurisdiction to resolve any disputes on the type of lattice tresses through noticed motion."

Finally, the HOA argues in its supplemental letter brief that the HOA's personal consent was not needed to enforce the settlement because the HOA was being defended under a general liability insurance policy, and it is generally the case that "the named party does not have the right to consent to any settlement made on its/his/her behalf." In support of this position, the HOA cites Fiege v. Cooke (2004) 125 Cal.App.4th 1350 [ 23 Cal.Rptr.3d 496] ( Fiege). There, the court, relying extensively on Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293-1296 [ 52 Cal.Rptr.2d 264], held that where the settlement was orally agreed to by the plaintiff and the defendants' insurers (but not the insureds), and the policies provided that the insurers could settle without the insureds' consent and could bind the insureds to the settlement, the plaintiff could not thereafter escape from the settlement being enforced under section 664.6 because of the absence of the insureds' oral consent. ( Fiege, at pp. 1353-1355.) The HOA argues that "[s]ince defense counsel indicated [the HOA's] approval of the settlement on the record, pursuant to Fiege, [the HOA] party approved of the settlement in open court."

There are three problems with this argument. First, the HOA does not cite to any portion of the record that demonstrates that the HOA was being defended under a general liability insurance policy under which the HOA gave its insurer the right to settle without the HOA's consent and the right to bind the insured to the settlement. Second, the record from the Settlement recited on January 30, 2008, does not reflect the agreement of the insurer (let alone the insured, HOA) to its terms. It is unclear whether the insurer was even present in court when the terms were recited. Thus, even were the record to have demonstrated that the HOA was insured under an insurance policy that permitted settlement by the insurer alone, there was no consent by the insurer. (Cf. Fiege, supra, 125 Cal.App.4th at pp. 1355-1356 [concluding that insurer agreed to oral settlement when its representatives were in court, heard the settlement recited, and did not object after the court asked if anyone had addenda or disagreements with its terms].) Third, even if Fiege applied here to eliminate the problem of the absence of the HOA's personal consent, the HOA's argument does not address the problem of the absence of Enos's personal consent to the oral settlement.

We therefore conclude that the oral Settlement recited in court on January 30, 2008, could not be enforced under section 664.6 because it was not personally consented to by two of the parties.

B. Possible Forfeiture of Contention

The absence of all parties' consent to the Settlement and the consequent enforceability issue notwithstanding, we must consider whether any challenge that the Critzers may raise to the court's order on this basis is forfeited. This requires a review of the Critzers' arguments both below and on appeal.

In their written opposition to the HOA's motion to enforce below, the Critzers did not argue that the Settlement was unenforceable because of the absence of consent by the HOA and Enos. Their opposition was to the effect that (a) the proposed settlement language in the formal settlement documents prepared by the HOA's counsel after January 30 were heavily slanted toward defendants; (b) the court should not enforce a settlement that contains terms that are unjust to the Critzers; and (c) if the court could not resolve the parties' disputes concerning settlement language, the court should enforce the Settlement terms as limited to what was recited on the record on January 30. At the hearing, the Critzers' counsel, A.K. Abraham, argued principally that there were a number of matters that had been inserted in the draft settlement agreement that had not been part of the Settlement recited in court. Abraham, however, noted that not all of the parties had given their assent when the Settlement was recited on the record and raised a question as to whether the matters recited in court were subject to enforcement under section 664.6. Abraham argued: "The difficulty is that had we articulated the entire settlement terms on the record. [ Sic.] And had the record been truly a 664.6 settlement, which it was not inasmuch as the HOA's representative was not there to affirm the terms, that would have been one thing. Rather, what the Court and the parties did . . . was to give the broad strokes of a settlement agreement and allow the parties then time to work out primarily boilerplate issues. . . ."

On appeal, the Critzers observe in passing that "[n]either Enos nor the HOA were [ sic] present at the time of the January 30, 2008 hearing. . . . Nor did the HOA consent to all of the terms at that time through its counsel, but rather agreed to have its [b]oard of [directors consider some of the terms for approval at a later meeting. . . . Both the HOA and Enos subsequently signed off on the enlarged written settlement agreement which the court directed the HOA's attorney to draft. . . ." Further, although the Critzers' position here is that the January 30 Settlement was "skeletal" and that the parties all contemplated that further "specific terms and conditions [needed] to be fleshed out by counsel in subsequent discussions," they do not address frontally the issue that we have discussed above: namely, whether the failure of all parties to consent to the terms of the Settlement, of itself, precludes enforcement under section 664.6. But the Critzers do note: "Moreover, because two of the defendants were not present and thus never stipulated to the settlement read into the court record — but later signed a document containing numerous additional terms — they cannot be said to have agreed to the same provisions as the other parties. . . . Since the parties here did not all agree to the same terms, [section] 664.6 is, as a matter of law, inapplicable to the `agreement' which defendants seek to enforce. . . ."

It is a fundamental proposition that "`[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method. . . .' [Citation.]" ( Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [ 151 Cal.Rptr. 837, 588 P.2d 1261].) Likewise, an appellant's failure to raise an issue on appeal may result in a forfeiture of the issue. ( Children's Hospital Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 777 [ 118 Cal.Rptr.2d 629].)

Here, although the Critzers could have been more expansive in their discussion of whether the absence of consent by all parties precluded enforcement of the Settlement under section 664.6, we conclude that they raised the issue sufficiently below and before this court to preclude its forfeiture. Moreover, "when the issue involves undisputed evidence and raises a pure question of law, we may consider it for the first time. [Citation.]" ( Burckhard v. Del Monte Corp. (1996) 48 Cal.App.4th 1912, 1918 [ 56 Cal.Rptr.2d 569] [court addresses legal question of whether absence of party's signature on writings confirming settlements precluded enforcement under § 664.6, despite party's failure to raise issue at trial].) We therefore conclude that it is appropriate to consider whether the oral Settlement is enforceable under section 664.6 despite the absence of the personal consent of the HOA and Enos.

C. Conclusion

The fact that not all of the parties gave their personal consent to the Settlement precluded the court from granting a motion to enforce under section 664.6, even though the Critzers themselves personally consented to the oral Settlement. ( Harris, supra, 74 Cal.App.4th at p. 303; Johnson, supra, 38 Cal.App.4th at pp. 1707-1708.) While on the surface, this result may seem to exalt form over substance, the statute is clear and "[b]ecause of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement." ( Sully-Miller, supra, 103 Cal.App.4th at p. 37.) Moreover, "[t]he litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]" ( Levy, supra, 10 Cal.4th at p. 585, fn. omitted.) The controversy here in which the parties have differing views on the substance of the actual settlement exemplifies the rationale for requiring the personal consent of all parties for an enforcement proceeding under section 664.6, as explained in Levy.

We summarily deny the HOA's separate motion for sanctions pursuant to California Rules of Court, rule 8.276, in which the HOA contends that the Critzers and their counsel are pursuing an appeal that is frivolous. In light of our conclusion that the matter must be reversed, the appeal herein is not frivolous.

DISPOSITION

The order granting the motion to enforce settlement pursuant to section 664.6, amended to constitute a final appealable judgment ( Hines v. Lukes, supra, 167 Cal.App.4th at p. 1183), is reversed.

Rushing, P. J., and Elia, J., concurred.