In Re Gay

24, S030514.Dec. [No. 1998.]

In re KENNETH EARL GAY on Habeas Corpus.

Counsel Urdan; Marron, H. and Martin Sheehy Reid & Richard & Taylor Company, Petitioner. Dodd for Williamson, General, Assistant Chief George Attorney

Daniel E. Lungren, General, Pollack, General, Attorney Assistant Wendelin Carol Attorney Johnson, Harter, Henry Robert S. Frierson, C. Linda William T. Lee Susan General, Winters, for Respondent. Attorneys E. Deputy and Lance

779 Opinion

BAXTER, J. Kenneth Earl was convicted of the Gay by jury 1, 1983, Code, Verna, (Pen. 189)1 June first murder of Paul a Los degree § officer. The found that the murder was an intentional Angeles jury police duties; of a officer in the of his that the killing peace engaged performance 190.2, (§ murder committed was for the lawful arrest purpose avoiding subd. that a (a)(5)); (§ 12022); was armed with a firearm principal 12022.5, 1203.06, (§§ (a), used a firearm subd. subd. petitioner personally (a)(1)). The returned a of death. jury verdict

The also found of two counts of jury guilty attempted robbery (§§ 664/211), (§ 211), ten counts of to commit robbery conspiracy robbery (§ 182), and an ex-felon in of a concealable firearm being possession (§ 12021). He was found to have used a firearm in personally committing 12022.5, 1203.06, three (§§ (a)) of those offenses subd. and to have inflicted on great bodily (§ 12022.7). two of the victims injury robbery This court reversed attempted robbery, robbery, conspiracy error, commit robbery convictions on basis of instructional prejudicial but 29, otherwise affirmed the and sentence of death on judgment April (1993) 796, v. 4 (People 1993. Cal.4th 1233 Cummings 850 Cal.Rptr.2d [18 1].)2 P.2d

While his from the appeal judgment was filed this pending, petitioner for writ of petition habeas The corpus.3 challenges petition validity on several A claim judgment grounds. of ineffective assistance of counsel is focus of the for writ of habeas After principal petition review of corpus.4 exhibits, petition accompanying this court issued an order to show indicated, statutory 1 Unless otherwise all references are to the Penal Code. 2 Among by petitioner the claims made appeal was a claim that he had received constitutionally inadequate representation by attorney, Daye That Shinn. claim was rejected as to some claims because the record on an appeal adequate was not basis on which to determine whether Shinn had sound tactical reasons for the acts and omissions on which and, claims, predicated the ineffective counsel claim prejudice was as to other because no was (See People 1339-1343.) Cummings, supra, demonstrated. v. at pp. Cal.4th petition 3 While the corpus presumptively timely (Supreme writ of habeas is not Ct. Death, Regarding Arising 1-1.2), Judgments Policies Cases from Std. court concluded delay adequately explained justified that the on the basis of Shinn’s refusal records, cooperate corpus with habeas counsel and destruction and loss of and present showing diligence attempting counsel’s promptly locate witnesses. alleged: 4 Petitioner also competent claim II—he did not receive the assistance of a mental professional; health claim process opportunity in—he was denied due and the to defend against aggravating prosecution give adequate evidence because the did not notice of the trial; evidence to be introduced at the claim IV—he denied due deliberations; process by eight-day adjournment immediately jury of the trial before claim cause the why Director of Corrections to show cause ordering respondent not be set aside on the ground petitioner of death should penalty 5 counsel, assistance trial Daye received ineffective constitutionally trial.6 the of the at penalty phase the at the record on the evidence presented

After consideration of appeal, referee, of the we and the hearing, findings habeas evidentiary corpus constitutionally adequate represen- did not receive conclude that petitioner certainty cannot with say of the trial. While we tation at the phase penalty had he been been more favorable to petitioner the result have counsel, confidence in a neither can we have represented by competent defendant de- counsel rendered after a trial which verdict penalty client in the manner his client and ill served his frauded both the court and shall, therefore, the for writ grant petition this record. We demonstrated by court for new and remand superior of habeas corpus trial. I

Background and his crime partner and killed by Verna was shot Officer were they the car Paul when Verna Cummings stopped Raynard against introduced outweighed probative value was prejudicial impact its V—evidence whose had a him; spectators as uniformed officers in the courtroom presence claim VI—the of federal constitutional denied his state and jury; on the claim VII—he was prejudicial impact claim population; representative cross-section rights jury trial before a drawn from him to habeas factual innocence entitled colorable claim of Vm asserted that relief; demonstrated was so effect of the errors IX asserted that the cumulative corpus claim judgment. require reversal of conviction prejudicial as counsel, rejected claim II is ineffective is not relevant to the claim of To the extent that it III-VII are rejected appeal. on Claims raised and partially the merits and as a claim on cognizable corpus. on habeas which are not rejected appeal, made and on rejected as claims 373, 813, 391]; P.2d In re Waltreus (In (1993) Cal.Rptr.2d 855 5 Cal.4th 827 [21 re Harris IX, 218, 9, 1001].) and claim P.2d Claim VIH (1965) Cal.Rptr. 397 62 Cal.2d 225 [42 verdict, rejected on the merits. guilt are claim IX is directed to the extent (In (Review 1992) 16, Dept. the Matter September on 1992. 5 Shinnwas disbarred 5444). (Bar In that 96.) earlier Misc. No. disciplined had been Rptr. 2 Bar Ct. He Cal. State 25,1987, stayed suspension was but the suspended September effective proceeding Shinn was of three months. years suspension with an actual probation for two placed and he was funds, Bar Court client the State recommending misappropriation disbarment for In responsibilities of an understanding fundamental most that Shinn “lacks basic stated and the Rules of and Professions Code provisions of the Business attorney as embodied in 107.) Shinn, Rptr. p. Ct. (In supra, 2 Cal. State Bar Matter Conduct.” Professional issue counsel ineffective to show cause limitation of the order 6 Our case for relief on prima state a facie petition that the fails to determination implicit reflects an 57, 119, (1987) Cal.Rptr. 37 44 fn. (People [241 Miranda Cal.3d remaining grounds. v. 368, 333, (1987) Cal.Rptr. 729 594, 1127]; Bloyd 362-363 People [233 43 Cal.3d P.2d v. 802].) P.2d wife, as Pamela drove Cummings, Raynard’s they driven passengers, In the Terrace district of the San Fernando Valley. Lakeview through violation, Cummings, the car for a traffic weeks before Verna stopped in Los had committed a series of robberies Angeles allegedly petitioner, held in the Los Angeles County his arrest County. Following jail. as retained Shinn met with in the

Daye county jail appeared counsel for a hearing, petitioner preliminary replacing deputy public defender who had been the court. Petitioner had retained Shinn by appointed to the Shinn by on fraudulent prior preliminary hearing representation and Marcus McBroom that Shinn’s fees be a of Black by would paid group businessmen. Shinn was later after Shinn petitioner appointed represent first advised to tell the court that would petitioner parents pay petitioner’s Shinn’s fees and then tell the court that his advised petitioner parents below, not do be could so. As will discussed in more detail Shinn’s fraudulent and the court were of a scheme representations petitioner part Weaver, in which Shinn Dr. Fred a and Marcus brought psychiatrist, McBroom, assistant, who acted as into the Weaver’s case.

A statement in the several rob- pretrial admitting petitioner’s complicity beries with which he was was admitted at trial. Shinn had advised charged officer, to make the statement to an petitioner investigating falsely assuring that the statement would not be petitioner admissible trial. trial, of the

During penalty Shinn called Dr. Weaver offer phase mitigating evidence. Dr. Weaver testified that awas sociopath with antisocial but did in a structured custodial well situation. personality, mother, wife, The other only penalty witnesses were phase petitioner’s mother-in-law, cousin, and three none whom had been acquaintances, Shinn, who were called to offer by interviewed petitioner’s good character traits. other evi- Although potentially available, dence was Shinn did no readily himself investigation penalty evidence and the undertaken Shinn’s phase investigation investigator, who was failed to given guidance, discover that evidence. These inadequate of Shinn’s are the focus of our aspects representation principal inquiry.

II Counsel Allegations7 Ineffective we have concluded that the fails to state a facie Although prima petition case for relief on counsel to guilt, ineffective grounds respect prejudice traverse, summary allegations 7 This made in the includes of the return and as well as those Although a petition corpus. petition purpose for writ of habeas serves a limited in habeas trial, include in our to that of the we not been established as having phase related to the quality factual allegations petition those summary had an impact phase counsel’s representation prior penalty determination. that Shinn engineered appointment in substance alleges lies, conduct. Petitioner’s and unethical the case by misrepresentations, a time at a when was represented retention of Shinn occurred Shinn, an African-American man defender. accompanied by deputy public stated that in the county jail. clerical garb, approached a minister and that his criminal lawyer companion was an experienced inter- businessmen who were who of African-American group represented sure he defense because were they ested in paying to retain Shinn trial. The urged petitioner receive a fair pair otherwise did so. lawyer,” because he needed “good told for the Shinn hearing, peti- When preliminary petitioner appeared had Shinn given tell the court that petitioner’s parents tioner to falsely $5,000 substituted as counsel. Petitioner did so and Shinn was retainer. to retain did not funds Shinn mother declares that she provide Petitioner’s ever investigator Shinn nor his and he did not a retainer. Neither request Shinn until mother did not meet with His interviewed petitioner’s parents. of the trial. she testified at the phase the day penalty court that he told to tell the Shinn hearing petitioner After preliminary under should be appointed funds to Shinn and Shinn was without pay of section 987.2. authority Dr. to see for arranged Prior to the Shinn petitioner penalty phase, McBroom, assistant, Weaver, was minister Dr. Weaver’s psychiatrist. Shinn solicited employment. Shinn to when jail who accompanied was at the penalty phase that Shinn’s performance Petitioner alleges that, the most was damaging allegation ways. Possibly deficient in numerous him against could not be used the statement assuring after falsely petitioner trial, investigating a statement to making into Shinn misled petitioner admitted in the robberies with officers in which participating failed to investigate Shinn also adequately which he was charged. evidence, mental health used incompetent discover available mitigating 833, 190, (1979) Cal.Rptr. 588 P.2d (see 23 Cal.3d 194 [151 In re Lawler corpus proceeding allegations of the all of the factual 1257]), incorporates by reference petitioner’s traverse petition. to the Our response informal reply respondent’s petition and his informal these documents. made in each of allegations therefore includes those summary Petitioner attributes and had no coherent phase strategy. expert, mental health to a conflict Shinn’s selection of Dr. Weaver as his expert arrangement whereby interest out of an arising allegedly improper “capping” Weaver, for then retained Dr. Dr. McBroom solicited clients Shinn who McBroom an assistant. whom him, labored

Petitioner that at the time Shinn Shinn alleges represented clear, undisclosed, interest out of under another but conflict of arising Bar, made Shinn a former client to the State various against complaints and the legislators, regarding district Shinn’s attorney misappropriation client funds. The State Bar threatened Shinn’s license investigation time At the on his behalf in these inves- livelihood. own acting he was unable to devote full time to the of or tigations; representation defend adequately petitioner.

A. Conduct. Prepenalty-phase more alleges specifically regard robbery-related counts that Shinn him to confess to those in a charges advised pretrial interview with a that Shinn had investigator, telling police falsely an agreement that would confess to those counts and for the testify and his statement would not be used him. Shinn did not prosecution against have an to that effect. At a agreement hearing admissibility interview, statement made taped during police investigator testified in Shinn that there was no such response questioning by agree- ment and that the believed truthful in his confes- investigator was petitioner sion to the offenses. In a taken to the robbery-related filing deposition prior of the for Shinn writ of habeas testified that he did not petition corpus, reason, remember what if he had for in that any, investigator questioning fashion.8 denies that Shinn induced to confess

Respondent petitioner robberies,9 to the asserts would have been at the they proven penalty Therefore, asserts, event. any Shinn’s conduct in this phase respondent did not regard cause any prejudice penalty phase. court, deposed superior 8 Shinn was on of the order which directed Shinn to assist

petitioner’s corpus testimony acknowledged habeas counsel. In at present he he was statement, petitioner interview made his but could not recall whose idea it was participating to admit in the robberies. He could not recall initiated the who interview, office, why prosecutor’s did not recall he and went to the and did not they trying recall what to accomplish. were acknowledged destroyed petitioner’s Shinn that he had on case. He did not believe files it to important retain the files for a retrial since none of his cases had ever been reversed happened again discovery. and if that he would be able to obtain any general 9 Respondent does not offer factual basis for this denial and for denials of most allegations petition. Although of the other factual accompanies a declaration 784 we this court reversed the counts robbery-related

Because appeal, matters Shinn’s conduct in these was incompetent consider whether only robberies, so, and, consideration of those robberies and attempted if whether of Shinn’s other was so failings, prejudicial with the impact coupled the death verdict unreliable. verdict as render regard penalty 2052, S.Ct. 80 L.Ed.2d (Strickland (1984) v. 466 U.S. 668 Washington [104 674].)

B. Murder Count—Guilt Phase. exhibit introduced into evidence that Shinn alleges inexplicably C, Pamela accusing being person a statement by Cummings then left the car and fired fired the first shot at Officer Verna who who declared that he did this shots into the officer’s She remaining body. He “what’s on.” Cummings asking going while codefendant Raynard D, Cummings, accusing introduced exhibit a statement by Raynard also Shinn could not recall any all of the shots. In firing deposition tactical reason for these exhibits. introducing and call four that Shinn failed to discover witnesses

Petitioner also alleges One, Jack he killed Officer Verna. had admitted that Cummings whom Flores, in a cell declaration states that was had been a inmate whose jail described Cummings in June and July 1983. adjacent Raynard Cummings Flores, to shoot that he had been the only shooting admitting person Police a statement to two Los Angeles Department Verna. Flores gave 11, them a letter by He states that he also gave detectives on 1983. July Flores gave did all the admitting Cummings shooting. Cummings return, We have had regarding the robberies. it does not mention statement general denials of respondent’s of a reliance on express disapproval occasion before to our 464, (1995) (See People Duvall 9 Cal.4th allegations corpus petition. a habeas v. factual 865, 259, 1252]; (1985) In re 38 Cal.3d 872-873 Cal.Rptr.2d 886 P.2d Bower 475-480 [37 278, 274, 267, 1269]; (1979) fn. 2 23 Cal.3d Cal.Rptr. [152 700 P.2d In re Lewallen [215 528, 383, disapproval our emphasize A.L.R.3d Cal.Rptr. P.2d 823]. [“We a habeas general cause mere denials of setting in a return to an order to show practice of out of an order to show cause reflects allegations. Because the issuance corpus petition’s which, true, states facts if entitle issuing petition court’s determination that the petitioner’s [citations], upon which the denial respondent should recite the to relief facts evidence, based, and, documentary provide such appropriate, should allegations is where truly issues are enable the court to determine which affidavits, or other materials as will (Italics added.)].) disputed.” course, only to the allegations is known the truth of some factual recognize, of that We allegations with an A denial of those respondent. not available to the petitioner or to sources identify disputed them is unavailable is sufficient that evidence to refute explanation traverse, which, the truth of petitioner’s in the allegation is abandoned factual issue unless the evidentiary hearing at which the through an may to be determined which have credibility can be tested. at the letter to the Flores was called as a witness prosecution separate police. that he told that trial of the He states Cummings. penalty phase about Cummings’s intend to ask him to testify did not prosecution admissions. call inmate James Edward

Petitioner also that Shinn did not alleges jail about Cummings’s who made a statement Jennings police description Cummings role in the had ridden with Cummings’s killings. Jennings statement, a bus to court. In the exhibit E to the petition, Jennings says going that about how he shot and killed Officer Verna Cummings bragged about a series of robberies and auto thefts. told Cummings Jennings was in the backseat of the car Officer Verna. Cummings Gay stopped I.D., in the front seat. the officer asked for said “I’ve Cummings got When I.D.” He then from between his and shot Verna twice in the gun legs pulled once in the neck or shoulder area and once in the body, upper body upper about, area. Verna then at which time shot Verna in Cummings spun back. Gaxiola, Michael another inmate who was not called as a

Allegedly jail witness, had been interviewed at the Los Hall of Justice Angeles County about a conversation told Gaxiola Cummings Cummings he shot Officer Verna because he was not back to or allow going go jail Verna to jail wife.

Shinn also failed to call Robin her who had waived Gay, privilege against self-incrimination before the she had refused to grand jury, although testify at trial. In her she claimed that after the grand jury testimony, shootings, admitted he “downed” the officer and reenacted events Raynard Cummings in which fired the initial shots from the back seat of the car and Raynard then out and shot Officer Verna to death. got

Petitioner to offer this argues by failing guilt evidence phase, Shinn eliminated basis for a doubt” any argument during “lingering of the trial.

C. Penalty Phase.

1. Acts and omissions trial. during that Shinn failed to and rebut alleges investigate prosecution violent criminal and did not to inadmissible prior activity object through evidence. He claims that evidence Shinn aggravating presented Weaver, an antisocial of Dr. who testified that testimony petitioner inaccurate, ill-informed, and corrobo- actually damaging, was personality, rather than factors for offering mitigating jury rated evidence prosecution consideration. referred to

Petitioner also that Weaver’s alleges although testimony peti- childhood, and troubled was ineffective testimony uncompelling tioner’s detail, and conclusory, because it lacked and was incomplete, cursory, case; that it was not of an integrated approach perfunctory; part not a did not and Weaver was testify compe- that Shinn Weaver prepare did not testify regarding psychological tent Weaver expert. suffered problems by petitioner. had commit- that Shinn conceded that petitioner

Petitioner also complains criminal conceded that death was the ted the acts and virtually violent prior appropriate penalty. offered was the items of evidence to which no was objection

Among trial, while had made threats against evidence that in jail awaiting inadmissible as direct evidence and his evidence guard family, jail in aggravation.10

2. Medical/social history. as a miti- Petitioner claims Shinn should have discovered presented abusive, and was raised in a deprived, factor evidence gating environment, and had medical suffered head injuries, problems chaotic home behavior, reason, and his response affected his his ability claim that evidence situations. In of his relevant stressful support ' available, of Joan Carroll Cart- submitted the declaration Ph.D., a clinical who has interviewed petitioner wright, psychologist been assembled. case materials have now regarding reviewed Weaver, of Dr. whose has the trial testimony She states that she reviewed he failed to obtain any she because competence diagnosis questions declares that no for a She diagnosis. data background required competent test used by administered “Gestalt” would have competent professional admin- The assistant to detect brain injury. Dr. Weaver’s assistant for children (WISC) only test that is appropriate istered an intelligence intelligence. measure petitioner’s could adequately concludes that petitioner Dr. Cartwright on her own investigation, Based home in which he and and violent of a dysfunctional is victim that he been admissible in rebuttal 10 The evidence would have setting. well in a structured behaved an alcoholic father who abuse” by “extreme siblings physical experienced Petitioner’s and substantial mental had limited mental impairments. capacity and his sib- of abuse toward emotionally neglectful mother was and also suffered head on the head his father Petitioner was beaten lings. blackouts, headaches, He suffered trauma in accidents in institutions. while as well as loss and attention/concentration problems physical memory ailments. father, Black, IQan of 65. He contracted

Petitioner’s who is Gay, Van cured, 1956, diseases and and because these were gonorrhea syphilis alcoholic, deteriorated and He was abusive mentally psychologically. and as a “form of diagnosed having personality passive-aggressive features and neurosis with with passive type hysterical depres- dependent 1983, and reactions.” In father was found sive conversion fearful of emotional have a moderate to severe disorder and was depressive He as and having closeness. was diagnosed depression paranoia.

Dr. declaration describes additional of childhood Cartwright’s and adolescent and his none of which siblings, problems evidence was Shinn and most of which would have been presented by relevant, evidence. denies the related to

Respondent allegations inadequate penalty phase belief, for lack of information investigation argues preparation that, Shinn failed to and obtain information assuming investigate background records, Shinn, it made no difference. Based on a declaration by additional also asserts Shinn was to call witnesses respondent willing but did not them to The want witnesses penalty phase testify. who testified were those Petitioner admits that he approved petitioner. testified, who but denies the truth of assertion witnesses approved He that Shinn that he instructed Shinn not to call other witnesses. alleges failed to contact the witnesses who did testify or investigate until the he reasserts the claim of their In traverse day testimony. records or Shinn failed to obtain available interview available necessary social, medical, and members of their petitioner’s family regarding psychi- atric history.

3. mental health Incompetent professional. He this Petitioner contends that Dr. Weaver was incompetent. supports claim Dr. declaration. Cartwright’s

(cid:127) denies the that Shinn failed to consult with allegation compe- Respondent defenses,” denies that tent mental health “mental state regarding experts available, consulted asserts that the whom Shinn such defenses were experts to that that Dr. Weaver argues testify were competent, permitting not unrea- a and had an antisocial was personality sociopath the return Shinn states that he sonable. In a declaration accompanying be- in the Weaver and through with McBroom past worked psychologist testing that he had the licenses to administer psychological lieved proper him as an before and used Shinn had used Weaver witness expert petitioner. He He did so because he did a “good job.” after case. petitioner’s either or Weaver in to use the services of McBroom obligated any way case. petitioner’s

4. interest. Conflict of facts to asserts that Shinn misrepresented In related allegations petitioner him effectively and failed to disclose material facts which precluded acts included the failure to disclose in his own defense. These participation Shinn’s Drs. Weaver and “unlawful with relationship” allegedly capping McBroom, as a that he intended to utilize their services failure to disclose that McBroom was as as failure to disclose result of that well relationship, unlicensed that was obligated He Shinn alleges Weaver incompetent. and, for those because he had to Weaver pay utilize the services of Weaver services, to the case and had an incentive to limit the time Weaver devoted to a minimum. charges thus Weaver’s keep to obtain the assistance

Petitioner contends that Shinn’s failure alleged and present- a mental health assist developing competent professional of interest. He alleges evidence resulted from a conflict ing mitigating the defense would be funded by group the minister told him that who Marcus in fact Dr. and that he should retain Shinn was Black businessmen McBroom, that Dr. Dr. He alleges who assisted Weaver. psychologist McBroom, not li- tests to is administered petitioner, who psychological censed in California. Shinn, had a denies Shinn on a declaration by respondent

Relying and McBroom that precluded of interest in Weaver retaining conflict also denies that mental health professionals. Respondent hiring competent he met in clerical when garb petitioner, man Shinn was accompanied and McBroom differ regarding that the declarations of Shinn but concedes that his first contact with Shinn declares the first with meeting petitioner. of Black him that a group McBroom who told was through jail Shinn went Gay. Shinn to represent businessmen wanted McBroom told Shinn. agreed representation McBroom and petitioner Shinn met with would not pay. thereafter that the businessmen willing petitioner. and told him that he was no longer represent that Shinn’s fees would be paid by suggested possibility family. acknowledged McBroom investigator, In interviews with respondent’s that he and Dr. Weaver have he met in the county jail asked occasions. He stated that when Shinn worked with Shinn on numerous assistance, be assisting. told Shinn that McBroom would Weaver’s Weaver McBroom could McBroom to to the so that go county jail Shinn wanted was. Shinn and meet would know who McBroom to one another McBroom first met petitioner. know when petitioner appeared himself to He denied that he as a minister in order get presented for that Shinn was already attorney retained as counsel petitioner, claiming of he met He asserts that is not licensing required record when petitioner. Weaver, license, administered. the tests he holds a valid California who believes that McBroom to administer the tests under Weaver’s was qualified 11

Ill Constitutionally Counsel Ineffective Well-established criteria the assessment of an ineffec- legal govern tive counsel claim. I,

Both the Sixth Amendment to the United States Constitution and article section 15 of the California Constitution a criminal defendant guarantee (Strickland effective assistance of counsel. 466 U.S. at Washington, supra, v. 686, 2063-2064, 2066-2067]; S.Ct. at v. pp. People 691-692 pp. [104 171, 404, 839].) (1987) Ledesma 43 Cal.3d 215 P.2d The 729 Cal.Rptr. [233 of a the defendant not to some criminal defendant to counsel “entitles right (In (1988) bare assistance but rather to assistance.” re Cordero 46 effective 161, 342, 1370].) he is Cal.3d 180 756 P.2d “Specifically, Cal.Rptr. [249 degree respondent’s investigator 11 McBroom told that he holds a doctoral from Golden 1962; University, requirement State or “a course doctrine” in completed which closed 1961 California, (UCLA); counseling Angeles taught graduate psychology University at of Los Northridge; years psychology University, for one semester at California State has two Columbia, Academy, from premedical/prelaw study at Wilberforce a bachelor of science Columbia, University degree religious degree and a from Holmes master of arts from science Angeles, testing. postgraduate psychodiagnostic in Los as well as studies in degree Meharry Medical physician states that he is a licensed and received his from Weaver to College training at UCLA in 1959. He is licensed completed psychiatric in 1955. He tests, personally. do so He uses other psychological/psychiatric administer but does not working began personnel to administer the tests. Weaver met McBroom in 1957 medical with him in 1963. 790 as assistance an reasonably attorney acting

entitled to the competent (In Cordero, Cal.3d re 46 supra, conscientious advocate. diligent p. act, act, 180.) This means that counsel undertakes to or not counsel before and tactics founded must make a rational informed decision strategy (1992) re 1 investigation (In and preparation.” Marquez upon adequate 584, 727, P.2d see Cal.4th 602 822 also (Marquez)); Cal.Rptr.2d [3 435] Ledesma, 215.) of an scrutiny 43 Cal.3d at While our supra, p. v. People deferential, is conduct of the is that deference limited. defense attorney’s meaningful be used insulate counsel’s from performance must never “[I]t or validate acts omissions. thereby automatically challenged scrutiny Otherwise, of counsel the constitutional effective assistance right Ledesma, substance.” supra, would be reduced form without v. (People 217.) Cal.3d at p. bears the of the facts on

A habeas burden of corpus proof challenge validity judgment counsel incompetent is under which is restrained predicated, by preponderance 801, 325, (In (1996) re Visciotti 14 Cal.4th Cal.Rptr.2d evidence. [58 987].) P.2d To do on a he received theory constitutionally 926 so trial, of his counsel representation by penalty phase inadequate did not must establish that counsel’s meet an standard objective performance and that he of reasonableness under norms suffered prevailing professional (Strickland at supra, v. 466 U.S. 694 thereby. Washington, p. [104 prejudice “ a 2068].) established when ‘there is reasonable Prejudice S.Ct. at is p. that, counsel], . . . absent the sentencer the errors probability [of the circumstances concluded that balance of aggravating have the reasonable guilt prob- death.’ As in phase, did not warrant [Citations.] (Mar- the is defined as one that undermines confidence in verdict.” ability 606.) at establish Alternatively, may 1 Cal.4th the quez, supra, p. not subject of the case was prosecution that as result counsel’s inadequacy, the thereby to adversarial meaningful testing, raising presumption 648, (United (1984) unreliable. v. Cronic 466 U.S. 658-659 result is States 2039, 2046-2047, 657].) L.Ed.2d S.Ct. 80 [104 criteria address factual which disputes appear Before these are we applied, is to determine the resolution necessary in the return traverse where constitutionally of claim of ineffective representation merits petitioner’s trial. counsel at the of his

IV Questions Factual Disputed Reference of the of Los Judge Honorable J. Stephen Czuleger, This court the appointed Court, a referee and factual disputes. to sit as resolve Angeles Superior

791 of fact findings to take evidence and make asked Judge Czuleger was to our conclu- are relevant findings Those in which several questions. to of the exceptions In our review parties’ sions are discussed below. referee, conclu- “The referee’s well-settled law. we findings apply review, is his resolution of mixed as sions of law are subject independent fact, of . . . The referee’s findings of and fact. law questions [Citations.] court, when weight on the are given great supported though binding from factual derives findings The deference accorded substantial evidence. to observe the demeanor fact that the referee had the opportunity 1 Cal.4th supra, p. and their manner of testifying.” (Marquez, witnesses 74, 97, 603; (1993) 6 Cal.4th Hitchings Cal.Rptr.2d see also In re [24 466].) P.2d on the relevant to our proposed The findings Judge Czuleger questions thereto, this court and the findings exceptions disposition, parties’ each follow question. from consideration of

Because the jury potential penalty phase prejudice the robberies was is we first consider charged high, with which petitioner claim that Shinn referee’s on the related to findings question robberies which induced him to confess several pre- incompetently ceded the Officer murder of Verna.

A. Did trial counsel induce commission confess the several robberies charged Cleaner Valley robbery; commission Vacuum and did confession; advised potential consequences any or the trial counsel reason to believe prosecutor investigators give be would not that the statement given petitioner confessed used at trial? against petitioner to the and un- charged induced Petitioner to confess

Findings-. “Shinn that it be in his own best robberies. Shinn advised Petitioner charged be able to work interest to and that he might with cooperate prosecution told by of his case as a result. Petitioner was out a favorable disposition him if the that the statement could not be used against prosecutors decided not to use him as a witness. interview, district

“At the time of the recorded with deputy tape advised of his self-incrimination rights against Petitioner was attorney, between the defense that there no or agreements told were promises that they Petitioner and Shinn stated of the interview. advance prosecution understood the admonition.

“Neither the nor the trial coun- investigators gave prosecutor specifically sel reason believe that the statement would not be used any against Shinn, Petitioner at trial. from the District Attorney’s past experiences Office nonetheless believed that he had this and so advised understanding Petitioner.” to the extent that refer-

Exceptions: excepts findings ee’s statement that the and his did not investigators prosecutor “specifically” Shinn reason to believe that statements would not be used give petitioner’s read be as have done so in their might finding they may implicitly statements and conduct. does not to these that the evidence findings argues

Respondent except established that neither Shinn nor indication from the any or agreement existed. prosecutor investigator any The of the referee are the evidence and are findings fully supported the court its as own. adopted by that Shinn’s in induc-

Respondent argues incompetent performance to admit in the robberies was not as ing petitioner participation prejudicial defendant would have been convicted of the robberies even from those apart The evidence at trial otherwise with to several suggests admissions. respect robberies, of the however. 25, 1983,

Three of the counts were based on an robbery April robbery of Kenn Cleaners. of the identified as None victims operators Pamela testified that Only Cummings present. participant. Pamela was an as a matter of law whose Cummings accomplice testimony as one of the robbers had to be corroborated. identifying petitioner admissions, (§ llll.)12 from there no direct evidence Apart her the robbers. The same identification of as one of corroborating 6, 1983, of the is true as to the two counts based on robbery May robbery of the of the Salads Plus salad bar. None of three victims May operators 29, 1983, of the Pizza Man service robbery delivery operators identified petitioner. light that evidence that argues Cummings’s accomplice

Respondent skinned inference was sufficient corroboration. We are not An persuaded. testimony accomplice unless it upon 12 Section1111: “A conviction cannot be had the tend to the defendant with the be corroborated such other evidence as shall connect offense; merely and the corroboration is not if it shows the commission of the sufficient hereby defined as accomplice the offense or the circumstances thereof. An is commission of charged against defendant on prosecution one is liable to for the identical offense who given.” testimony accomplice the cause is trial in in which be might drawn that because was light skinned and had been petitioner robberies, in some of the Cummings’s was his partner petitioner accomplice in all of the robberies. Circumstantial evidence is sufficient cor- roborate the of an be suffi- testimony slight accomplice, may 1060, cient (1994) corroboration. v. (People Rodrigues 8 Cal.4th 1128 [36 235, 1].) 885 P.2d Cal.Rptr.2d While a court might well recognize conviction, this evidence was sufficient if the arose on after question appeal here we cannot with assurance that it is say that a would probable jury not, necessarily find the evidence sufficient. If it did would not jury convict of six of the petitioner robbery-related counts had his statement not been introduced.

Even were towe assume that a circumstantial jury accept evidence that petitioner was Cummings’s those robberies accomplice during as corroboration of Pamela’s Shinn’s conduct testimony, harmed petitioner. The statement Shinn misled into petitioner making, stipulation peti- robber, tioner was a serial made it for the unnecessary jury grapple of corroboration. question The statement Shinn elicited incompetently from made the case. prosecution’s

There were with two of the other problems counts which might have 20, affected those 1983, verdicts also. The victim of the May Designer Florist robbery was unable to in court. identify She testified that her, “Kenneth had robbed Gay” but that was after seeing whom petitioner, Moreover, she did not then on recognize, television. the victim of the repair 13, 1983, shop robbery May was deceased at the time of trial. His identification of came in the of his reading preliminary hearing There testimony. was no in-court visual identification of either petitioner by of these witnesses. therefore,

It is Shinn’s possible, but for incompetence inducing murder, confess the robberies to the officers investigating would not Moreover, have been convicted of several of the robberies. all, if, question petitioner’s guilt might have been to the as put jury count, did occur on one the trial court granted motion for acquittal. (§ 1118.1.)

The prejudicial impact of the admission of petition- er’s statement confessing robberies cannot be understated. Shinn not acted as a only second prosecutor by the evidence that led to creating robberies, conviction of the his conduct permitted prosecutor as an admitted portray petitioner serial robber killed a who officer police defendant, to avoid arrest and for the robberies. That prosecution picture evidence, be to devastating any absent substantial would any mitigating hope death. for a sentence less than reflects, little mitigating

As our on opinion affirming judgment appeal trial, at the although evidence was offered on behalf petitioner’s that much more hearing suggests evidence offered at the habeas corpus accessible. of that evidence evidence was Some easily potentially Therefore, Shinn engineered related to “mental status.” because petitioner’s McBroom, his Marcus an assistant through appointment relationship Weaver, Shinn to assist in this of Dr. the psychiatrist subsequently engaged case, next to the retention of Shinn to we consider related questions of Dr. Weaver as his mental health Shinn’s selection represent petitioner, Dr. and the of Shinn’s conduct and instructions to Weaver expert, impact health a factor. into mental as investigation potentially mitigating McBroom, counsel, trial Marcus and/or other B. What contacts between ' Shinn; led to election retain did McBroom Daye to persons as clergyman encourage petitioner to a represent himself Shinn; would retain told that a businessmen group to was so, and, told and counsel whom he was private by was pay fees of if true; tell to tell court that his that statement did Shinn true; Shinn, so, had a retainer to was statement parents paid if later, he was retained intend to seek appointment did Shinn time be that his would not knowing paid petitioner’s parents? fee June, 1983, “While Petitioner in late Findings: county jail was to Marcus themselves Petitioner. McBroom McBroom introduced Shinn Petitioner that he a himself as a minister and told represented identified to hire a for Petitioner. of black businessmen wished lawyer group minister. Both Shinn McBroom encouraged McBroom was ordained Petitioner he had no to retain counsel money Petitioner to retain Shinn. said black businessmen not to that this group and Petitioner was told worry take care of Shinn’s fee. fee, fee, collect a a or fee never quoted paid attempted “Shinn of businessmen. alleged from group there ever cause to believe that is no evidence to this Court

“There later told Shinn’s retainer. Shinn of ‘black businessmen’ pay any group had retainer Shinn. This to tell the court that parents paid be reasonable belief that would accurate. never any was not intent from Shinn’s family. of businessmen or Petitioner’s any group paid the Court.” on was seek appointment by early Exceptions'. There are no to the are findings, exceptions amply by We them. Shinn supported testimony petitioner. engineered adopt both his initial retention and fraudulent means. by subsequent appointment

Petitioner retention and argues whose representation attorney is about such a fraudulent and appointment brought unethical scheme should be to have been presumed thus reversal of his prejudicial, requiring conviction. In that the of the failed to concluding allegations state petition however, facie case prima with respect guilt we phase, impliedly rejected is argument from such conduct. Shinn’s prejudice presumed relevant, however, fraudulent schemes are clearly his credibil- assessing Weaver, ity, with Dr. relationship his commitment to act as a zealous advocate at the penalty trial. phase

C. Is there any basis that Shinn had a concluding conflict of interest, or a reason other than demonstrated which led him competence Weaver, to use Fred M.D. and/or Marcus McBroom as his mental health and, so, experts, what are the which might such a support if facts conclusion? Findings: “Marcus McBroom Shinn into brought Petitioner’s case. Shinn had worked with Dr. Weaver and McBroom in the McBroom contacted past. Dr. Weaver and asked him he if would be interested in on the working case. Dr. Weaver said he would if he was satisfied after to Shinn about the talking time commitment Dr. necessary. Weaver indicated that he was in the ‘wan-

ing’ years his forensic work did not awant long complicated case.

“After to Shinn and speaking McBroom together, Dr. Weaver learned that an extensive commitment of time would not be and he necessary agreed take the Weaver, case. Shinn knew that Dr. by retaining McBroom would also be utilized to perform diagnostic Dr. testing. Weaver had never worked on a death case before.

“There is no evidence aof direct conflict of interest. The evidence does individuals, show prior between the relationship three that the three had worked previously together, McBroom had engineered Shinn’s onto the entry case. because of this Simply the three prior relationship, worked together Petitioner’s case.”

Exceptions: does not to these but states that the except findings, a conclusion that supports Weaver was selected because of solely Shinn, he and past McBroom had relationship and/or because Weaver was not interested a assignment. complicated not these does

Respondent findings. except on the the the that the basis of and evidence argues findings that not health record demonstrates Shinn did want an extended mental of at of the the and limited the workup phase scope penalty examination to be and that Dr. nor Weaver was neither performed, qualified interested in the of in this case. undertaking analysis necessary quality that contends that the establishes neither Shinn’s

Respondent evidence that the monetary belief death was inevitable nor the apparent penalty examination Dr. limitations affected the of the performed by adequacy cross- Weaver. relies on answers Dr. Weaver on given by Respondent concluded, after his examination for an that Dr. Weaver himself argument evaluation, not that the case was and since there was independent hopeless difference, too much that make a Dr. concluded that addi- Weaver time affect his tional was not Dr. Weaver’s conclusions did not necessary. work, however, time he felt the amount neces- and he of spent appropriate not for the and to his and would examination review form sary opinion, a a faced have rendered an case in which defendant inadequate opinion execution. he that

We the factual concluded Although referee’s adopt findings. interest, that there was of a direct conflict of he did not find no evidence there was conflict of His factual that there was. findings suggest no interest. Shinn did select Dr. because It is from record that not Weaver apparent Instead, a conclusion of his demonstrated the record competence. supports Shinn, McBroom, a had Weaver capping relationship pursuant arranged in cases in McBroom had which Weaver was retained “direct,” the conflict not have been Shinn. While by may representation inference cases he had the evidence is that in in which reasonable from only McBroom, retaining did not been introduced to the client consider by other than Weaver. experts understanding

The Dr. that Shinn retained Weaver finding necessary the time or undertake work willing Weaver was not commit case is this conclusion and amply sup- for a consistent with complicated reflects, next record. As the relevant to the questions ported considered and Weaver the record also conclusion both Shinn supports did not and for that reason Shinn foregone the death conclusion penalty undertake, undertake, type penalty and did instruct Weaver ain professionals investigation preparation expected competent phase case. capital Dr. does not view adequacy

The evidence respondent’s support as an Dr. Weaver had been used expert examination Weaver’s opinion. diminished issues Shinn in several criminal cases in which capacity prior trial experience testifying raised. Petitioner’s only were trial, testified in two murder of a phase although prior capital in the He became three weeks before only cases 1970’s. involved early At that time Dr. Weav- when Marcus McBroom him. testimony, telephoned time interest in forensic cases was Forensic work took from “waning.” er’s areas in interested. Additional training other which he was experience have, forensic which Weaver did not was now psychiatry, expected in this field. therefore case after McBroom only Weaver experts accepted him it not told was “an case” which much time require would open-and-shut in and Shinn told the Dr. growing him same. Weaver’s own experience up South the him a sense when a Black man was with gave charged killing the a case was Shinn neither advised Dr. Weaver about hopeless. policeman trial, the evidence he to offer at the nor discussed hoped penalty Dr. Weaver’s fit testimony how into the phase presentation. penalty Shinn, to Dr. Weaver his who about five in gave only minutes report spent the hall outside the courtroom with Dr. Weaver before Dr. Weaver testified. twice,

Dr. Weaver he understood was to see once or make a assessment, short back to and Shinn. of Investigation drug report or use discussion family with his would have been considered an unneces- school, “frill” in what was an Weaver had sary open-and-shut case. Dr. no medical, correctional, or for hospital, military, records employment, juvenile or no any members when he examined He had family petitioner. himself, sources of information other than McBroom’s reports, and material attached to or of he part would have police reports. Ordinarily, needed, felt additional was not material but he did in this case. He would have taken not the case if it was extensive It required any investigation. context in this that Dr. to Weaver a made responded affirmatively suggestion on cross-examination that “otherwise” he he would not have rendered what to be considered an a case. in inadequate opinion capital Dr. did Although Weaver see often than more he initially believed was and more than he would have done required normally given fee,13 felt amount that he did not to do his Weaver need best. He to and his just “go through motions” he did not do best.

The evidence as conclusion that Weaver’s selection amply supports Shinn’s mental health was attributable Shinn’s to expert prior relationship 13 Although many unusually petitioner appeared good to have details and recall of Weaver, precise and in responses, literal testified that he had never met Dr. had never evidentiary hearing, jail seen him before he had been testified at the interviewed at the only McBroom who testified about that at trial. It is undisputed interview otherwise that Dr. Weaver interviewed defendant testified at the trial. Weaver, Shinn’s in reten-

with McBroom McBroom’s involvement the latter’s reluctance notwithstanding tion. Shinn’s retention of Weaver case, or time-consuming failure Weaver accept supply complex material, and his instructions background relevant and available easily limited extent the assessment was to make Weaver which Weaver in Shinn’s performance constitute constitutionally inadequate representation. in this the standard to be of counsel regard engaged did meet expected of a case. defendant in a These failures resulted representation capital truncated, mental health evidence inadequate presentation phase. assistance inadequate

Our conclusion Shinn provided constitutionally limited this is presentation of penalty phase preparation aspect relief is available only assessment of Shinn’s If prejudicial, performance. counsel, basis a denial of the to counsel right of ineffective assistance United Since the Sixth Amendment to the States Constitution. guaranteed by Weaver, the state no of Dr. or the limits bore the selection responsibility fee, or his not claim investigation on the extent of his petitioner may placed a mental entitlement to relief on the basis that he was denied competent 1087, 84 (Cf. (1985) Ake 68 S.Ct. health v. Oklahoma U.S. expert. [105 of a 53].) is role of court to assess the competence L.Ed.2d It not the this a decide that only licensed within his area of We expertise. physician acting criminal facing a defendant reasonably competent attorney representing limitations, both financial and death would not similar penalty impose otherwise, and that Shinn’s selection of an who expert accepted expert, that it was not and would understanding complicated the case only standards of take much time did not meet constitutional competence. that Shinn The our conclusion following questions findings support in his of incompetently investigation presentation potentially performed mental health evidence. the evaluation that Shinn Weaver requested D. is nature What of to penalty phase how the evaluation related was perform defenses? the evaluation which of the nature of “Shinn has no recollection Findings: However, convinc- Dr. testified Dr. Weaver to Weaver he asked perform. ‘an of the told that the trial penalty portion that Shinn him ingly phase case, of that it involved told him the facts and shut case.’ Shinn open that was to examine Petitioner a officer and Dr. Weaver murder of police is, or had that he was psychotic if that any see he had psychopathology, told Dr. Weaver be disorder. Shinn that labeled might psychiatric anything the trial to determine whether that the portion purpose penalty received a sentence or life Shinn made to Dr. death clear prison. Weaver, however, conclusion, decision that the was a Peti- foregone would receive death and that Weaver need not tioner Dr. spend time deal of case. on the great $1,000

“Dr. $800 Weaver was to be for his He received from paid work. Shinn.” Neither nor to these

Exceptions: findings respondent excepts we as our own. adopt Weaver, E. Did the records or by reviewed did reveal himself, to Weaver head any history injuries, problems, medical child abuse or conduct, and, so, other might what facts if affect was Weaver aware? information

Findings'. “The records reviewed Dr. Weaver were the only police McBroom, (a the test reports, results obtained Marcus possibly Exhibit I evaluation) and prison psychological some trial He re- transcripts. neither nor was other quested given any records.

“Either direct interview or through with Petitioner comments through McBroom, on by Dr. Weaver was of Petitioner’s passed aware mixed race child, some heritage, history, he received as a family beatings drug usage, some educational and his criminal prison history background. There is no evidence Dr. Weaver was head or any aware other or physical injuries that Petitioner was the victim of sexual alleged abuse.” Exceptions: Dr. excepts that Weaver Respondent finding “possibly” I, reviewed exhibit that the evidence is is respondent’s arguing clear that this Dr. Weaver at the report reviewed the trial. referee, The evidence supports findings we as our adopt own. does, contends,

The evidence suggest as that Dr. did respondent Weaver I, review a exhibit clinic respondent’s parole evalua- outpatient psychiatric tion petitioner.14 Weaver was aware of head or injuries sexual past abuse suffered but did know that racial petitioner, heritage petitioner’s caused had that had abuse at the difficulty, petitioner suffered hands of his 1983, 11, parole 14 This outpatient report, May prepared clinic dated was request 13,1983, petitioner’s parole officer his March a six-month parole after release from violation following his term for term service of a arson. father, clinic and that had abused The drugs. parole outpatient information about childhood some psychiatric report provided problems he mixed-race a back suffered arising heritage, injury from petitioner’s fall, father, of LSD work-related abuse his and use petitioner’s 1977 in a and marijuana.

That had information very Dr. Weaver limited regarding record, his clear from the however. when he made evaluation is background The clinic recites only: parole outpatient psychiatric report “[Petitioner himself had to both and half-black’ and being fight describes as ‘half-white He racial as child. recalls and several being expelled groups suspended He high times school he did from school. though eventually graduate from beatings, recalls that in his his father would him youth, by physical punish He he used his hand to this. causing only injuries, though accomplish [1[] and he mother who was got along friendly that well with his reports He not get her husband from did harming patient. attempted keep brother, that to remain with his he continues along though well reports sisters, welding, close includes history janitor, Employment [f] welder, he lost and a His for 1-1/2 as a but longest job years mechanic. was after the The mental status evaluation stated job injury.” His in all and that his was intact. memory was alert and oriented spheres The had a normal flow and his mood was neutral. psychiatrist speech had concluded that limited insight judgment opined high for return to criminal activity prognosis in a No react to small frustration manner. likely vengeful violent diagnosis was made. psychiatric members; had that he did not meet with any family

Dr. Weaver testified school, records or military no jail, juvenile system, employment, prison, no or members of his and had medical any family; or regarding petitioner no he did his evaluation he made records When hospital regarding petitioner. clinic He any only outpatient effort to obtain of these records. parole results, some information police reports, McBroom’s test report, and McBroom. his interviews with Weaver during supplied by petitioner include all phase testimony potentially F. Did Weaver’s penalty aware which Weaver was regarding petitioner mitigating of information his interviews review records related his from of not, he what additional was assessment petitioner? If of information of not to the why jury? was it related aware Dr. information’ which mitigating “The Findings: only ‘potentially to the concerned jury but that was not relayed Weaver was aware of evaluation, Petitioner’s stress and at the time of drug his usage, depression or attention alleged concentration deficits. “Dr. the information that Weaver did not utilize because he felt drug usage it did not he described the Petitioner which to the diagnosis jury. [a]ffect use, fact, Dr. Weaver stated that Petitioner minimized drug his not even it did describe that to him. Dr. knew about problem only Weaver case, from what McBroom told him. In he not feel it any did was relevant the evaluation which he performed. Weaver,

“As to the observation of Dr. there is no depression by evidence However, mention why as chose not to it. was from jury aware of the trial that Petitioner had suicide guilt portion attempted following Furthermore, arrest. had knew that he been they obviously just convicted murder. deficit,

“Concerning alleged Petitioner’s attention Dr. Weaver stated that However, he came to this conclusion from his interviews Petitioner. else, nowhere from information McBroom’s was that including testing, Moreover, confirmed. it neither Dr. was Weaver nor discussed explained by further as to its relevance.”

Exceptions'. Petitioner to the failure to make excepts findings referee’s regarding evidence which Dr. potentially mitigating Weaver should been have aware and to the failure to find that did Weaver about testify use drug and other factors of was aware which he because he necessary investigate instructed Shinn not to undertake the work such “frills.”

Respondent that Dr. Weaver had stated excepts finding minimized his did use and not describe Dr. drug that problem, arguing did Weaver not make that statement. concedes that the evidence Respondent use, an inference that minimized supports drug but argues there is no evidence that Dr. Weaver was aware so. petitioner’s doing

At outset we note while Dr. White Gretchen offered extensive habeas regarding background evidentiary petitioner’s corpus home, hearing, on many problems impact they him, and abuse drug alcohol that continued the time from teens, in his she offer an did not that he suffered from a mental opinion She disorder. testified that she did not him and did not see diagnose diagnostic tests that she need to on. Dr. White could not rely rely Weaver’s Dr. because it that the test testimony opinion appeared only to both he and McBroom was the Bender Gestalt agreed given petitioner test, which would not assist in about a diagnosing anything person’s person- is, in her The Halstead test which McBroom ality. gave apparently opinion, weak.” “diagnostically extremely and

Dr. also Dr. examined petitioner White testified when Weaver of family offered his Dr. Weaver was aware the diagnosis, Gay genetic to and that three were vulnerability siblings alcoholism schizophrenia; deficit; extent the and attention of petitioner’s physical schizophrenic; suffered and did not know about abuse psychological by petitioner; side of depressive, passive petitioner’s personality. Foster, M.D., a and with extensive neurologist training

David psychiatrist and in forensic which included examinations of 12 experience psychiatry inmates, death did offer a mental health evaluation. He testified row direct declaration and was cross-examined He had under- deposition. by taken a 10-hour of a mental including evaluation psychiatric petitioner, interview, examination, status a structured and diagnostic psychiatric to interview contradictions designed eliciting lengthy open-ended assist and He had reviewed exten- and falsification. also malingering adolescence, trial sive documents related to childhood petitioner’s Weaver, of Dr. evidentiary hearing testimony petitioner’s habeas corpus of the other witnesses at evidentiary testimony, testimony hearing White, results history social of Dr. the 1992 test hearing, testimony Dale Watson. Dr. Foster had been with neuropsychologist provided factors at the trial. available mitigating sentencing length Dr. Foster’s is summarized below some because testimony Shinn’s failure to evidence mental investigate impairment present Dr. as his notwithstanding his decision utilize Weaver Weaver’s expert case among time on the are Shinn’s significant unwillingness expend The failure to this kind of mental disorder/ present omissions. our conclusion that Shinn’s deficit evidence is factor jury supporting at the penalty phase. incompetence prejudicial petitioner Dr. had been asked if manifested psychiatric symptoma- Foster of mental disorders or impairments prevented or other evidence tology or and if those disorders impairments from functioning normally time crimes and trial.15 were present trial of the offenses and the He concluded that at time dissociation, of PTSD (posttraumatic suffered “from residual symptoms Dr. made an accurate opinion 15 Dr. been asked for his on whether Weaver Foster also He prevailing professional accordance standards. and rehable assessment of Weaver, Gay’s state of Kenneth Earl mental concluded the assessment Fred M.D. “[t]hat disorder), stress due to brain impairments organic but dysfunction including, to, not limited difficulties, an attention-concentration deficit and learning disorder, mood substance abuse He by history, psychoactive disorder. suffered from these impairments, which were symptoms heightened and converged with on his behavior and at devastating impact functioning, the time of the crime for he which was convicted. Conditions of his confinement and his trial interfered impaired functioning during with likely to stand trial. The competence mental health evaluation provided trial level was because it failed to take grossly inadequate, into account Mr. and the Gay’s history of clinical importance symptoms, incorpo- fail[ed] rate and failed to appropriate testing, consider the of his importance impair- ments to issues relevant to the penalty determination.”

Dr. Foster stated in his testimony clinical petitioner presented signs consistent with learning disorders and showed of brain signs symptoms trauma, dissociation, dysfunction, and mood disturbance. The symptoms been over time and present continued to affect behavior and functioning. Petitioner’s unusual use of language suggested language disorder that is related to a possibly He also learning disability. manifested the documented attentional and concentration deficit. Dr. Foster found ex- tensive evidence that has suffered long from a dissociative disor- der, an impression corroborated by information in his The dissocia- history. tive occurred experiences father, when only was beaten but when he witnessed similar traumatic events. The frightening, episodes are preceded by physical sensations including dizziness or lightheadedness, weakness, chest, anxiety breath, tightness of the shortness of racing heart, nausea, and weakness of his limbs. The sensations are consistent with dissociation and “aura,” Some anxiety. are also consistent with a phenom- enon that frequently precedes unstable electrical episodes activity the time of the phase was not accurate or reliable and was not made in accordance prevailing professional standards.” His reasons included the absence aof coherent question referral or even information about sentencing the nature and of a purpose capital proceeding; absence of detailed information from sources other than about his symptoms and experiences; failure to accurately identify integrate evidence and symp- disorders; recognized toms consistent with mental and failure to appropriate conduct or order testing. This conclusion is consistent with Dr. testimony regarding Weaver’s own the extent of his investigation and examination. It supported by is also explanation Dr. Foster’s detailed given each of the reasons for his conclusion. disagreed disorder, Dr. Foster diagnosis with Dr. Weaver’s personality antisocial explaining that the specified Diagnostic exclusion criteria in the and Statistical Manual of DSM-IH, (3d ed.), Mental Disorders preclude diagnosis. He observed also that the manual, DSM-IV, fourth edition of the refines the criteria precludes diagnosis and now if any significant other diagnosis that could account person’s symptoms present. for the is As manual, DSM-H, described in the second edition of the personality “garbage antisocial awas diagnosis” behavior, pail attempted to describe explain but did not it.

brain, sense such as seizures. Petitioner stated that the same experienced as during beatings by of detachment and the murder he felt unreality during a and there. his father. He was almost in dream state did not want be Dr. Foster also found corroboration that suffers from debilitat- petitioner disorder, of a mood ing hypomanic symp- anxiety, grandiosity symptomatic and He concluded that toms entrenched also during period depression. arrest, of before affected the use by drugs. petitioner’s counsel, Dr. In answer the first specific question by posed petitioner’s “A. That Earl does Foster found: Kenneth show Gay psychiatric symptoma- mental and by corroborated other evidence of disorders tology, impairments and him from and these disorders normally, which prevent functioning time for which he was were crimes impairments present convicted and his trial.” during devel-

As a of abuse” suffered “extraordinary during result life, and his later he manifested throughout symptoms opment experiences of disorder as identified associated with and stress diagnostic posttraumatic DSM-III, and trial. in use at the time of offense petitioner’s in which was also effects mood Petitioner also suffered incapacitating symptoms, disorder, The is as a at various times. disorder known affective major both, characterized of clinical manic or activity, by periods depression, functions, are with social and which interfere or significantly occupational delusions, mood, excessive associated lability anxiety, irritability, with health, and substance abuse. concern increased emotionality, with physical father has a and was found in genetic petitioner’s The disorder component and least one sister. be caused might

Dr. disabilities multiple Foster concluded that petitioner’s brain. in the of his functioning disturbance previously undiagnosed this head suffered injuries suggested Both and family history areas,” the head in the “association disorder. The location of injuries, in indicated that results damage difficulty integrating experiences. deci- stress and his overwhelming judgment, functioned under very poorly and to be seriously impaired. abilities ability, cognitive appeared sionmaking deficit, dam- which indicated had a He documented attention-concentration under circumstances in the lobes of his brain. Even optimal frontal age monitor, inhibit, control or ability with difficulty would have significant were lobe damage Indications of lobe temporal parietal his behavior. mathematics, and symp- difficulty language found including hyperreligiosity, lobe hypergraphia, toms temporal epilepsy, and altered emotional all of were observed in viscosity, responses, Dr. Foster. petitioner by

Dr. Foster also concluded that suffered from a seizure disorder in the limbic areas of his brain from the effects originating temporal abuse, substance in a family reflected psychoactive history problem remarkable various drug extensive abuse multiple generations branches of The use of alcohol and the devel- family. marijuana during brain, can opmental alter of a child’s period permanently development both and causing Petitioner’s use of neurological psychological damage. as a form of self-medication drugs combined with his defects and neuralgic residual of stress cause symptoms unusually disorder to disor- posttraumatic dered and behavior functioning. “[rjesearch

Dr. Foster time opined available at the of trial could have that, murder, time provided evidence at powerful the of the Kenneth Earl Gay severe abnormalities in inside experienced neurotransmitter his systems cocaine, brain caused by drug and alcohol withdrawal from and ingestion, the of trauma he triggers had and was experienced This imbalance expecting. in the brain chemicals that stimulate different of the brain were parts highly trance, to likely leave him in a dream-like unable control consciously to his behavior. The best evidence indicates that Mr. given Gay’s baseline physi- state, ology, and use of depressed marijuana (and alcohol and perhaps heroin), he would have chemical imbalance the levels present, particularly of serotonin and acid glutamic in his brain.” The evidence of mental health 190.3, would impairments have been relevant as (d), (h), section factors (g), (k) and (j), mitigating evidence.16 190.3,

In of his on support opinion section factors and Dr. Foster (g) (j), noted that mental would make petitioner’s impairments him particularly the to susceptible aggressive, of highly threatening, and influence controlling Raynard account Cummings. His of the crime was consistent with entirely to response mechanisms include increased to susceptibility follow sug- or gestions commands of others. “brain His to primed respond (d)—“Whether 16 Seesection 190.3: factor or the offense was while the committed disturbance”; defendant was under the of (g)— influence extreme mental or emotional factor “Whether the or not defendant acted under extreme duress or under substantial domination of person”; (j)—“Whether another factor or not the defendant was an accomplice minor”; participation offense and his of relatively commission the offense was factor (h)—“Whether or not at the capacity time offense the defendant appreciate criminality his conduct or to conform his to the requirements impaired conduct of law was intoxication”; as a result of mental disease defect or (k)—“Any or the effects of factor other gravity circumstance though which extenuates the of the crime even it is not legal a excuse for any the crime” aspect and other of the defendant’s character or record that the defendant offers as a basis for a less than sentence death. that were outside his or ‘go limp’ escape responses automatic aggressive, that in a situation of and grave conscious control. ... highly likely was] [It a and in the known danger, person aggression sudden company violence, submit, the command without consciously choosing, . . . . . other . overwhelmed aggressor. likely impairments [His] even the imme- in rational after decision-making, tenuous ability engage In which I hold to my opinion, diate stress of the moment passed. Mr. conditions all affected and controlled reasonable medical these certainty, thereafter, the time of the crime functioning behavior Gay’s at the time of trial.” this conclusion was available supporting of the state’s aggravating Dr. Foster testified that Finally, impact been from a evidence could have been lessened had that evidence explained lead- In evidence of the circumstances standpoint. particular, mental health her into battering girlfriend pushing ing 15-year-old up some bushes would have included during argument impact peti- raised, in which he was his ethnicity, tioner of rough neighborhood effects, use its and the fact that the alterca- dysfunctional family, drug could tion out character. Most evidence have was of entirely importantly, and the of the of been offered as to devastating impact rejection the on him the mother when she learned of girl’s petitioner’s racial attack by did could have been offered that heritage. mixed-race Evidence to and after not to the and that she continued see him during intend harm girl the related to the arson charge. legal proceedings he an at the home of threw device incendiary

Petitioner’s behavior when had and wanted to living of with whom he been girlfriend another parents the could have been The incident was explained. precipitated also marry told when of using mother’s a racial toward girl’s epithet home, forcing daughter him out of the her biracial heritage, throwing confused racial home. Evidence about family petitioner’s return abusiveness, rough neighborhood, father’s alcoholism identity, of, neighbor, sales sexual orientation drug by, also been offered. Those while could have using drugs behavior changed from which petitioner and the numerous symptoms matters psychiatric in have aided the jury in months before the incident would suffered the six behavior. understanding petitioner’s Dr. an acknowledgment elicited

On cross-examination People in several death row stress disorder had diagnosed Foster posttraumatic consistent with he had examined and dissociative episodes inmates whom it that the in He did not find surprising disorder another. stress posttraumatic documented social death row given existed in on many disorder persons

807 testified, however, death histories of abuse. He also that he had examined a he no disorder. had row inmate whom found stress He posttraumatic examined for or been a consultant for the in several defendants prosecution cases, and in five cases which he twenty-five of approximately for the no done so defense he had advised defense counsel he made that would be of value. findings

The of mental health Dr. Foster not type evaluation performed (See uncommon in at case defense the time of this trial. v. capital People Ledesma, 200-201; (1985) Cal.3d at supra, People 43 v. Brown 40 Cal.3d pp. 512, 834, 516].) P.2d A Cal.Rptr. minimal and review inquiry [230 of documents available to Shinn have alerted him that an readily should such evaluation not might evidence. He failed produce potentially mitigating only to investigate this but also an who was possibility, engaged expert undertake willing analysis extensive unreasonable limits placed of his scope investigation and examination that expert’s precluded discovery this evidence. Shinn’s conduct in this regard clearly falls below level performance even expected minimally competent attorneys a defendant in a case. representing He failed to undertake capital any inquiry into the possible existence of mental health until peti- tioner had been found guilty murder. When did retain Dr. Weaver he conveyed to Dr. Weaver his that the death a foregone opinion conclusion, failed to Dr. Weaver with or supply any background information documentation, and that Dr. agreed Weaver need not much devote time his examination. asked He Dr. Weaver only determine if petitioner suffered from mental illness the time any crime.

In addition to his failure to discover and available develop potentially evidence, discover, mitigating mental health Shinn also failed to investigate, and evidence present petitioner’s childhood and regarding early family which was relationships both relevant to mental and health diagnosis in potentially mitigating and of itself. These omissions also manifest incompetence. defendant can that in the course of reasonably

“[A] expect repre- sentation his counsel will undertake that a only those actions reasonably But would undertake. he can also competent attorney reasonably expect before counsel undertakes to act at all he make a will rational and informed decision and tactics founded and strategy on adequate investigation decision, If counsel fails such ac- preparation. to make [Citations.] tion—no matter how the abstract—is de- unobjectionable professionally Ledesma, 215.) ficient.” v. 43 (People Cal.3d Shinn’s supra, p. to decision on his client for sources of rely only into conclusion that the case did not warrant a reasonable investigation and mental health was not an informed decision. background petitioner’s to social and other investigate history poten- Shinn’s failure this evidence and make informed decision regarding tially mitigating of his and tactics is addressed next. aspect phase strategy Did undertake Daye any investigation G. trial counsel Shinn or history; and social medical petitioner’s family psychiatric history; any or other psychological potentially mitigating background so, and, did he obtain did or should factors, what which information if phase alerted him to the existence potentially mitigating penalty have evidence? of Peti- Shinn conducted no

Findings: “Attorney personally investigation school, obtain any tioner’s He did or otherwise background. subpoena records.[17] did, however, medical, or His investigator work psychiatric mother, to try verify obtain some records from Petitioner’s employ- prison ment to Petitioner witnesses history speak directly regarding might be assistance. I) Exhibit would

“The records obtained Shinn (Respondent’s prison in that alerted evidence’ have him ‘potentially mitigating penalty phase records, nature, indicate some while Petitioner’s violent illustrating 16 and later while in from 1981. prison treatment at psychiatric age his mixed race ancestry, drug also describe his social They history, beatings. his father which included and his usage, relationship poor Weaver, Shinn did the services of Dr. Fred psychiatrist. “Shinn engage of him Dr. asked Petitioner to the evaluation Weaver. cooperate or Dr. Petitioner’s ‘mental other investigate stability’ wanted Weaver to use, to jury be able to might ‘mental defects’ present only police Petitioner’s life. Dr. Weaver had access save possibly evaluation of the trial transcripts prison psychiatrist reports, longer any They destroyed. reported: “Shinn no has of his files. were 17 The referee also however, reported Shinn that Douglas Payne, brought his notebook to court. Investigator file, is, things Payne provided to those which Payne Payne his that he returned kept most of to him.” any testimony to matters of which he had confirms that as Our review of Shinn’s evasive, inconsistent, recollection, nonresponsive. He testified that his and often answers were trial, my investigator, Mr. destroyed shortly after “but most of those files he his files the files,” responded got “I again destroyed “certain he Payne, When asked if he had Doug has.” them, during all the time yes.” Payne then that had most of materials of rid He testified might subsequent been useful did not to him that the files have the trial. He said it occur proceedings such as a retrial. give described above. Dr. Weaver sent Marcus McBroom to psychologist and Weaver number of tests to Petitioner. McBroom Dr. psychological discussed the results of the tests and Dr. Weaver did his own examination Dr. or three Petitioner. Weaver to have met with Petitioner two appears Petitioner, times. Dr. Weaver to no one than and other McBroom spoke Shinn in his forming opinion. examination,

“As a result of that of Dr. Shinn was aware Weaver’s of Petitioner and ‘anti-social diagnosis having ‘sociopathic personality’ disorder.’ A the examination was to personality report prepared given Shinn, but the longer no exists. This evaluation based report report Dr. with upon Weaver’s interviews Petitioner and the psychological testing performed by McBroom.

“Also as a result of this evaluation Shinn’s own contact Peti- with tioner, Shinn was aware that Petitioner had emotional difficulties based upon his racial identity, early childhood and mental abuse upbringing, physical within his family drug usage.”

Exceptions: to the made that excepts findings referee Shinn’s to investigator attempted verify petitioner’s employment history records, the basis that the did not investigator obtain Social Security would have verified that He also that history. McBroom is complains California, referred as a not licensed as such in “psychologist,” although that the referee complains failed make a that finding McBroom administered tests that were for children rather than inappropriate designed adults, the tests were insufficient a correct diagnosis, and the tests produce produced inaccurate results.

Petitioner also referee’s that directed objects report implies to obtain the investigator names of witnesses penalty phase prior verdicts, return of the guilt phase although credible evidence establishes that no work was until those penalty phase begun after verdicts were returned. back-

Respondent excepts implication Dr. Weaver’s access to ground information regarding somehow limited or impeded, that Dr. noting Weaver did not any additional records. request

The referee’s to the limited findings respect investigation Shinn undertook in for the are preparation amply supported We record. as our own. adopt findings earlier,

Shinn was first witness As noted evidentiary hearing. however, clear, was able to recall little the trial about It is petitioner. Weaver, to none of the and Dr. Shinn did beyond retaining talking briefly no for the his investigator specific investigation gave the to be instructions evidence regarding sought. a officer and former Los Police

Douglas Angeles Department Payne, 1978, a licensed since was appointed investigator, private investigator to had court assist Shinn in 1984. worked two by July Payne superior as a He investigator. cases and several murder cases private prior capital that his first was to review all the information testified responsibility if it that anything in order to advise Shinn discovery appeared provided had or district office. He been omitted police department attorney’s list, if locate and witnesses was also formulate witness interview and meet and confer He told petitioner with possible, petitioner. officer, credentials, his if former asked was a showed police Payne’s with that. Petitioner told him “no” as any problem into the investigation. experience give Payne insights police some documents. He met with mother who Payne petitioner’s provided that he could find based on the information petitioner witness spoke every his list had moved and other members Some witnesses on family provided. no because he had information on out of the state and some were unavailable them. in touch with get how Shinn and notes reflect that he had a conference with

Payne’s telephone 6, on June 1985. also reflect They then met with petitioner jail 24 and 27. conference and case work on June June phase understood from Shinn that Shinn’s strategy Payne members; could about testify was to who family produce people treated, observed, or evaluated doctors who had background upbringing; incarcerations; and who could offer mitigating during anyone prior as to areas. investigative no limitations on Payne information. Shinn placed court, granted authorized which He limited the funds only by that he wanted to needed. Petitioner told Payne funds as supplemental but very continue to deny guilt penalty phase, and did give Payne evidence about developing cooperative of some witnesses. names potential history including

Petitioner did wish to present personal incident that reason for the firebombing “Wendy,” relationship woman, evidence. aggravating offered as People another involved school, Security, Social or employment did not obtain any military, Payne records, or duces records through subpoenas subpoenas but did obtain prison

811 tecum to witnesses who the records when testified. Some brought they records were mother. provided by petitioner’s testified that to before

Payne Shinn witnesses spoken penalty phase their introduced some to Shinn outside the courtroom and appearance. Payne office, talked to at Shinn witnesses in his and at prospective hallway, aware, where Payne could them in touch. If Shinn was places put already from conversations of the with information witnesses would petitioner, offer, Shinn names asked to gave Payne the and them court. Payne bring

Shinn testified that he looked to and identify family members friends who be might defense witnesses.18 The located and investigator interviewed the Shinn read the and potential investigator’s witnesses. reports returned the He later “talked to” the witnesses reports investigator. he them before on the stand. He had no of put recollection interviewing any of defense or witnesses than those who potential prosecution other were on the stand. put file

Shinn’s own case of consisted some “little bits of only notes” he had taken the trial on of during scraps yellow paper, amounting five or ten and some in pieces of the documents filed paper, copies case.

The referee’s findings regarding evidence that potentially mitigating would have been found a had more thorough been undertaken investigation are also available and amply supported. Readily family background history kind that was offered at the routinely capital cases at (see, the time of (1985) this trial v. Deere 41 e.g., People Cal.3d 353, 13, 925]; 366 710 (1985) P.2d v. 41 Cal.Rptr. People Davenport [222 247, 794, Cal.3d 276 P.2d 861]) was offered at the Cal.Rptr. [221 habeas have been considered corpus hearing, might jury. by That evidence showed that as a young teenager, rejected Black with group young men whom he to associate in a sought neighbor- them, hood park. They thought he was too out” with but also young “hang White, effeminate, off, he thought looked him They weak. chased him, rocks and throwing bottles but after he even was eventually accepted he was the subject of taunts. He was called boy,” “Gay boy,” “white breed,” “half “peckerwood,” “honky” by neighborhood people which he lived and often teased about homosexual. possibly being during 18 Petitioner testified that guilt penalty phase, month between the drugs, discussed with alcohol and abuse physical use of from his father and child, neighbor abuse problems identity, sexual suffered as a his racial therapy prison. he had received in him, but teased him or fights grabbed Petitioner often into when got people a or On he called “coward.” “sissy” would run when hit hard. Then was sons into who fights petitioner, always occasion their neighbors goaded beaten.19 got that de- life” included family

The evidence of an abusive “extremely H, post. under scribed question them, the or did above some investigate

H. trial counsel not factors of If a evidence would mitigating or did not do so what fully, potentially have uncovered? complete investigation reasonably “While and aware of investigation Shinn did conduct some was Findings: described, evidence supra, the matters additional potentially investig him had he conducted more thorough would have been available to hearing at the includes: The evidence obtained and ations.[20:| presented Petitioner’s learning “a. Documents. School documents indicate School disorders, of low and in the 1970’s. There is anxiety possibility depression and a learning to the of IQ possibility as certain subjects, hyperactivity classes. him for education sufficient handicap qualify special out and mood anxiety Prison records depression, “b. Prison Records. point of He had internal conflicts over Petitioner had a swings. history pyromania. scores Psychological testing and of ‘black outs.’ race identity possibility been as inconsistent with the records have viewed might contained within Petitioner’s prison of antisocial disorder. Dr. Weaver’s findings personality and therapy might records indicate that he well prison-based responded of in without the parole been useful in life seeking possibility have prison from the jury. an ex- and witness accounts reveal

“c. Records. Documentation Family father, beaten his by life. Petitioner was family physically abusive tremely old, years during period, same when he also offered that 19 Evidence was marijuana, took other PCP and with whom he associated smoked group cousin, wines, they hung heavily, all area where out. Petitioner’s drugs, cheap drank stayed Gay home or during Kelley, testified that summers when Richard It marijuana daily drank beer and wine. Kelley family, they smoked stayed with adult) clear, however, (or drug youthful jury considers evidence of is that a mitigating. to be and alcohol use a “more mitigating evidence 20 Although finding potentially states what the referee’s uncovered, be that it is intended to investigation we are satisfied thorough” would have investigation complete reasonably what question, which asked a to the court’s responsive certainty that all of the recognize that cannot be said with have it disclosed. We evidentiary hearing been discovered in would have corpus at habeas evidence offered Nonetheless, offered at the investigation. all of the evidence reasonably complete course of at time hearing readily to have been available corpus evidentiary appears habeas trial. Van His father also abusive to other members. Van Gay Gay. family nature, sexual had was cashiered from the of a military improprieties used and alcohol Other difficulty holding job drugs regularly. family be members also emotional some this attributable might problems; the unstable home life established Van These factors have Gay. might been utilized a different a more favorable psychiatrist paint picture Petitioner and his hear- psychological makeup. evidentiary from ing other that Petitioner presented psychiatric experts time of trial suffered from Stress Disorder because Post-Traumatic upbringing.

“d. Additional Witnesses. Witnesses those called at the trial were beyond available to Shinn. He could have presented evidence potentially mitigating the substantiating described family above. This could have included history the details of Van abuse of Petitioner’s mother and his Gay’s encouragement of his children to use drugs. Witnesses were available to describe Petition- er’s extensive as a and in drug use later that he was the youth years; subject tone; name, because of his taunting beatings and skin ancestry, father; the victim of by others besides his and that he beatings ran from away home. witness, Anderson, one

“Additionally Don have testified in the might penalty portion of Petitioner’s trial that witness Marsha phase Holt stated to fact, not, him that she had seen murder as she had earlier testified to in the guilt portion of trial. This have been offered might under theory doubt’ in the ‘lingering This was a penalty phase. to concept Shinn testified at the that he did evidentiary hearing not understand. At the trial, time of he told Petitioner not evidence was admissible. It to this appears Court to have been admissible.”

Exceptions: Respondent excepts finding testing psychological scores in the record be might seen as inconsistent Dr. Weaver’s of antisocial findings disorder. also that the personality Respondent argues referee erred in that Anderson’s finding Marsha Holt’s testimony regarding guilt was admissible. phase testimony evidence, also

We of the referee as to this but do adopt findings not that the admissible. agree testimony of Don Anderson would been have Petitioner argues that have testimony would been admissible Anderson’s an support elicit from who held a doubt attempt mercy any juror lingering not, as to his of the murder. We the evidence guilt disagree. Although believed, as Shinn inadmissible not hearsay, it was relevant mitigating evidence.

814 be to offer relevant any

At the a defendant must phase penalty permitted evidence, i.e., relevant to the circumstances potentially mitigating 190.3; (§ v. Penry of the offense or the defendant’s character and record. 2934, 2946, 302, 256]; (1989) 106 L.Ed.2d 492 U.S. 317 S.Ct. Lynaugh [109 393, 394, 1821, (1987) 481 U.S. S.Ct. Dugger Hitchcock v. 398-399 [107 1, 1824-1825, 347]; (1986) 476 U.S. L.Ed.2d v. South Carolina Skipper 95 1670-1673, 1669, (1982) 1]; v. Oklahoma 4-8 S.Ct. 90 L.Ed.2d Eddings [106 104, 869, 875-878, 1]; S.Ct. L.Ed.2d Lockett v. 455 U.S. 112-116 [102 2965, 586, 2954, (1978) 57 L.Ed.2d Ohio 438 U.S. S.Ct. (plur. 973] [98 612, (1991) 54 J.); C. v. Cal.3d 692-693 Burger, People Mickey opn. [286 801, doubt 84].) 818 P.2d Evidence intended create reasonable Cal.Rptr. the offense not to the circumstances of as to defendant’s is relevant guilt character and or the defendant’s record.

Thus, that a who has a doubt juror while a defendant may argue lingering may of the death the defendant should not vote imposition penalty, effort create such a doubt. of the trial retry guilt phase “[A]t doubts any lingering concerning consider phase, jurors may 648, (1990) 52 706 defendant’s v. Kaurish Cal.3d guilt. the (People [276 788, 278].) But not mean that the defendant 802 P.2d this does Cal.Rptr. evidence, at the for introduce not otherwise admissible penalty phase, may the v. (People of a doubt as to defendant’s guilt.” the purpose creating 929, 122, 704].) P.2d (1993) 4 Cal.4th 846 Cal.Rptr.2d 989 Zapien [17 of to the Don through testimony The evidence introduce petitioner sought evidence, which not the category mitigating Anderson does come within admitted the and Fourteenth or be under section 190.3 or Eighth must may Amendments that Evidence is not relevant to the United States Constitution. record, character, the or case the circumstances to the defendant’s prior 604, Ohio, 12 at fn. (Lockett not be v. 438 U.S. supra, p. need admitted [98 v. 2965]) (People Zapien, in is not admissible. S.Ct. at California p. 989.) at Cal.4th p. supra, did not cause that reason this of Shinn’s aspect representation

For However, to Shinn also failed under the record demonstrates that prejudice. into background, even a minimally inquiry take competent to the defendant himself decision to on rely principally an inexplicable evidence. Shinn’s failure offer might witnesses who identify excused, the that he ground as the suggest, cannot be People this regard have, but did might for the He guilt with preparation phase. was preoccupied the not, penalty to assist in for of second counsel preparing seek appointment for all defendants must prepare counsel representing capital and all phase, Moreover, given should have specific Shinn could and the trial. phases to initiated the investigator, directions and monitored verdicts, before return the and inter investigation well the guilt phase viewed the witnesses he elected to His failure to do so prepared present. to be belief if attributable to his uninformed appears directly petitioner be found death were to was inevitable. guilty, penalty Petitioner had with a testified no discussion Shinn regarding trial before the verdicts were penalty guilt phase returned. After verdict Shinn trial to him and explained asked purpose penalty petitioner about could or had any witnesses find call who petitioner something positive to about Shinn told that it would be to say petitioner. petitioner necessary schoolteachers, doctors, have witnesses such as members and friends family who had Other than something positive say. names of asking petitioner witnesses and him meet with a did asking not ask psychologist, Instead, assist for the Shinn told preparing penalty phase. verdict, once returned a it jury guilty foregone conclusion that the death be would imposed. Shinn the names of gave thought witnesses could be with

called the addresses or numbers of some. Shinn told telephone peti- tioner that he given had the names to Payne, investigator, try who to locate them. Petitioner recalled one only meeting Payne, meeting after guilt jail verdicts had been returned. When phase asked if Payne Payne had been able contact had persons petitioner named, said that he Payne been able to locate of them. With one any did witnesses who exception, were located and testify guilt phase brought court mother. The petitioner’s other was then petitioner’s mother-in-law whom asked to come. petitioner

Petitioner testified about the reasons for his witnesses naming potential and states that Shinn different reasons for gave failing to call any witnesses Shinn had at defendant’s Petitioner consid- subpoenaed request. ered Willie a relative because some connections. He Campbell family could about and testify family knew more about relationships petitioner’s himself, extended than but said a family Shinn he would not be petitioner Rice, witness because he Paula good whom had prisoner. petitioner court, met while had being overheard transported Raynard Cummings on several occasions about Verna. bragging killing Officer He believed her counter testimony would the “inconsistent” of other testimony jailhouse informants who said had in his Cummings implicated confes- petitioner sion. Petitioner wanted Rice to but at Shinn told him testify guilt phase him the same when he

her not be admissible. Shinn told testimony would asked to have her at testify penalty phase.21 he not want Shinn to anyone that he did not recall did testified witness, that a item call as a and did not instruction give any particular be should not offered penalty phase. regarding

Prior to the did Shinn information penalty phase, petitioner give his concerns. He identity his use of and alcohol and discussed racial drugs father, he had from his the sexual also told Shinn about the abuse suffered at California abuse his neighbor being placed therapy group Medical at Vacaville. Facility White, as a clinical a marriage

Dr. Gretchen licensed as psychologist counselor, testified, effect evidence regarding and family offering and social influences on family development, and childhood petitioner’s offered as evi- testimony That history. personality, psychosocial been, not, as mitigating have but was forth trial might put dence that reviewing 120 hours of documents evidence. Based on her approximately from members and about declarations background, family petitioner’s mother, and interviews with his background, friends about his a dysfunctional came from Dr. White formed opinion mental illness and genetic vulnerability that had family profound that affected his ability substance abuse. Petitioner attentional problems learn, the time and had substance abuse Throughout problems. was under stress because family parents was growing profound up, he severe physical were of different races and experienced psychological and functioning factors affected his behavior abuse These growing up. while and into adulthood. throughout childhood and which family I. members Which friends of interview; so; did he do what potentially and his did counsel when family interviews; and, he such during did obtain mitigating if information interviews, did conduct such what potentially would such interviews have uncovered? to their not witnesses as any “Shinn did interview

Findings: personally to their the witness stand. immediately prior taking testimony except and obtain did to confer with Petitioner investigator Payne “Shinn direct occurred be interviewed. This or friends who should family the names Anderson, penalty testimony, not have been admissible at like that of Don 21 This phase. after the return of the of the trial and immediately during guilt portion trial. verdict in the of the guilt jury’s phase interviews, the information

“Had Shinn located witnesses and conducted [H], become known Question to would have supra, described the answer him.” in the that Shinn to the report Exceptions: excepts implication to obtain the names of witnesses phase directed his investigator penalty He also to the referee’s before the return of the verdicts. guilt excepts phase exclusion, 57, of declara- of his exhibit No. grounds, comprised hearsay set members of which would have friends family petitioner, tions in more detail the could have obtained. forth evidence Shinn there no direct that instructed to locate Payne While is Shinn 1985, 31, the date on which witnesses potential May penalty phase prior murder, was found the evidence establishes that guilty Payne not was aware that this task was and that he did among responsibilities wait until verdict was returned to such witnesses. guilty begin identify meet and testified that his with was to Payne job regard penalty phase confer with to review and a list of witnesses compile wanted to He and Shinn discussed the witnesses that were present. going be needed before the no as there was long penalty began, question phase were into a trial. they probably going penalty 4,

The of the trial ended on The trial guilt June 1985. phase penalty 3, 24, commenced on June 1985. The verdict was returned on July Shinn, left on on June 27 or By 1985. with vacation prearrangement Payne 28. interviewed Payne’s does witness testimony identify any actually before the end of the of the trial he stated that he had although guilt phase done in his to locate or all of the everything identify potential penalty power time. witnesses phase actually

The witnesses who had been those who subpoenaed testified, however, testified at the that neither nor Shinn Payne penalty phase trial, them to that although briefly interviewed prior part spoke to some witnesses before called to the stand. Claudette just were they Barber, talking who testified at the did not remember penalty phase, Shinn and testified that she had no before the stand. She taking preparation had no idea what kinds of were to be asked. She recalled only questions be asked some “general someone told her she would be next and would witness, Richard did not talk to either questions.” Kelley, Shinn or before he testified. notes do not reflect interviews Payne Payne’s and do not include interview reports the witnesses he identified with have reviewed. might excluded from evidence at eviden- The declarations which the referee are, ruled, Petitioner contends that they as the referee hearing hearsay. tiary first that an foundation was were admissible nonetheless. He argues adequate them as identified who obtained by investigator laid inasmuch were they obtained and testified the manner in which were they who regarding Dr. for her He also argues because were relied on White they opinion. truth, the nonhearsay not for their but for purpose were admissible they available. evidence was mitigating of what demonstrating potentially Code, (Evid. The declarations are hearsay. The referee did not err. to the 1200.) hearsay are as to which no hearsay exceptions Some multiple § Code, laid for 1201.) of the foundation (Evid. rule The adequacy apply. § the declarations within any exception their admission does not bring what showing cannot be considered for the purpose rule. hearsay They at the mitigating by jury evidence that have been considered might for their truth. unless are considered they was available located numerous The record does establish that has persons petitioner claim to have Shinn or and who who were not interviewed by Payne call Petitioner did not those witnesses background. knowledge petitioner’s their in the form however. statements hearing, Admitting evidentiary to cross- of declarations have denied respondent opportunity would that they their statements and assertions examine the declarants regarding have testified. confirms, however, that a substantial The of other witnesses testimony from numerous evidence was available amount of potentially Two such or interviewed Shinn. sources that were not investigated had known and David who Willoughby, Richard DeLouth persons, and the abuse he suffered familiar the physical as a child and were at the evidentiary did background, testify on him of his mixed-race impact the end of when had known since Richard DeLouth hearing. were They neighbors houses from home. the-Gay he had lived two only friends and saw time very good six were during they five or years White, others, Black and had both other on a basis. He observed each daily a “half breed” calling about his racial makeup, taunting petitioner stature. slight had teased about and “half a He himself nigger.” and his and alcohol about use marijuana He also testified petitioner’s school, and about Van Gay, high while glue junior sniffing paint He and father, peti- using marijuana petitioner’s presence. neighbor. from another marijuana tioner stolen

819 on one occasion when DeLouth had but fight, never known petitioner came out of taunted but did not want to Van fight, Gay was being petitioner Petitioner was seen as and like a man.” “fight the house ordered petitioner on for that he did not like to and was fight picked because easy target both Gail Beasley other DeLouth testified that he knew reason by people. witnesses, them, Holt, and had been with and Marsha trial had sold drugs them used He had known several drugs. Raynard Cummings when they he He had violent acts by Cummings before met witnessed years petitioner. baseball team DeLouth’s when on a Little with Cummings League played and were brother. DeLouth was very Cummings surprised petitioner and violence. friends later because he knew Cummings’s temper Pacoima David had known since His home Willoughby 1967. petitioner in had been from that He was then Gay family. seven houses occupied by a four old and remained a for nine was years neighbor years. Willoughby Steven, friend of brother and house Gay was good petitioner’s younger times a He became friends also and both ate several week. with petitioner and in the home. He Van Gay beating witnessed spent night Gay times, at heard least 10 at other times from street petitioner yelling the home. When Van was at home screaming Gay atmosphere the house be He did at the house tense nervous. not enjoy being when father there because Van was Gay always yelling children or Van never knew beating petitioner. Gay moody they what his mood would be. drunk he was drunk he saw Van almost When

Willoughby Gay every day. “meaner,” became and hit the children if wasn’t done or something they children, talked back. He hit more often than the other petitioner frequently “asshole,” him an or asshole.” Petitioner was beaten for calling “f—ing hands, he had not done. hit but things Van with Gay usually petitioner him hit in the front with a club and also Willoughby yard golf saw petitioner bruises, saw him use a leather belt. saw hand on Willoughby prints petition- face, the beatings. er’s “busted” and black from eyes lips, petitioner he it full When Van used the club to strike Gay golf swung force as if he was a bat. He hit twice. swinging screamed and asked his father to when the belt was used. When was stop beaten, and roll into a ball to block the blows. being would cower seemed occasion This to make Van On one Gay angrier. petitioner appeared Petitioner’s mother had to be on the out verge during beating. passing then and Van to strike her. Petitioner and Steven objected begun Gay into the Gay through doorway intervene. Van threw attempted bed, bedroom and hit him until who had crawled onto the petitioner, about Gay to be dazed. Petitioner about 115 Van weighed pounds, appeared that he had seen marks from beatings testified also Willoughby pounds. sister Dorrie. on Steven on petitioner’s comments heard about and name calling by

Willoughby petitioner adults, as “half both children and who referred to petitioner neighbors, beaten in a because of breed” and He had also seen “honky.” fight petitioner mixed race. told his son that he did not want his son playing One parent a “half breed kid” and his son to who was fight goaded petitioner, of the other around the fight beaten in the None ensuing fight. people up at their to it. Instead it on. they goaded Every Friday junior attempted stop beat called On that the Black students “Patty’s Day.” day up school was high He the and mixed-race students and the Mexican students. knew White When said he was had been beaten up Patty’s Day. school, that he had to father told petitioner tired of to going petitioner’s like a acting learn how to fight stop wimp. too, testified about Van use Gay’s open marijuana,

Willoughby, about substance abuse as a child. witnesses, did tell trial counsel he any, J. Whichpotential if did any, did not want to Which additional testify? persons, if evidence, their testimony to call to and what would mitigating

want offer been called? they have been had father, or his father’s “Petitioner did not want his siblings,

Findings'. to that he did not want investigator Payne friends to He made clear to testify. Petitioner, did confer with the of the trial. during Payne grovel penalty phase to witnesses. identify Petitioner’s mother and Shinn in attempt were, at the trial at Petitioner’s “Five in state witnesses who were prison to Los Angeles and with Shinn’s brought omitted]. request acquiescence, [fn. However, that Don demonstrates evidentiary hearing evidence to call to offer Petitioner wanted Anderson was the witness which only above, the husband of discussed Anderson was evidence. As mitigating Holt, Petitioner wanted Anderson witness. guilt Marsha prosecution phase Holt that she had not seen as to an inconsistent statement by to testify murder, Petitioner that the Shinn told testimony. to her contrary early admissible. be and not hearsay testimony that Petitioner’s atti- testimony Court believes investigator Payne’s “This me, then can they ‘if want to convict they tude during penalty phase desire ¡during phase me death Petitioner’s give penalty.’ to maintain his innocence and not give appearance continue ” life.’ or for his ‘sniveling groveling that he “made it clear to finding Exceptions: excepts that he did not want to investigator Payne grovel during penalty phase that he did the trial.” He that the evidence demonstrates want argues put defense, involved to on a with everyone cooperated the five a defense. He also finding subpoenaed present excepts witnesses, He he wanted Don Anderson to evidence. only give mitigating asked that the witnesses be the witnesses had brought, potentially evidence, declined call The shows at and it was Shinn who them. to most that he did not want his father and one sister testify. perhaps The that to objected evidence referee’s supports finding petitioner However, some members. the evidence also calling family supports petition- included er’s claim he did desire to on a defense that put phase penalty both a continued assertion of innocence and evidence about his and mental health. He family background Investigator with cooperated Shinn, and with and McBroom in their Weaver Payne, preparation While indicated to that he did have penalty phase. petitioner may Payne evidence, not to on some there is no want evidence put types made the same statement to either or Weaver. The record petitioner satisfies us that the failure to and available mitigating investigate develop Weaver, belief, is attributable in to Shinn’s shared major by evidence part that because had killed a of the death petitioner policeman, imposition awas conclusion. We do not foreclose the penalty foregone possibility that the failure is attributable unrelated to also to simple incompetence likelihood Shinn’s assessment of the that the death have been penalty imposed. testified that there some members whom

Investigator Payne family were trial, stated he did not to the trauma of want petitioner exposed peti- not or for his tioner did want to give sniveling groveling appearance abuse, life. He did not want to into abuse or go any type parents sexual, and he did his father as a as or not want to use witness psychological did believe he could control his father some petitioner problems He refused to his father. Petitioner instructions on witness. gave Payne every call an he felt had sibling older brother who was one prison younger or Gay, relevant to offer. Petitioner did not want Dorrie Steven nothing Gay, Sharon called. Gay that he insist on his innocence at the

Petitioner himself testified wanted to that, He did not come subject up, also testified phase. although penalty a life without sentence. he would have “groveled” get possibility parole father tell Shinn that he did not want his or sisters testify. He did not earlier, As noted since convincing. The referee found Payne’s testimony at an to hear and observe the witnesses the referee has opportunity to the referee’s assessment of we accord deference hearing, great evidentiary Nonetheless, have said he did not want while credibility. petitioner may called, indicate that some members should not be family and did grovel did not put does not a conclusion that want support We do not a desire not to “grovel” a defense at the penalty phase. equate Shinn, Indeed, of a defense. Payne, with abandonment all testified that was cooperative helpful Weaver his father or his sister to did not want Although phase preparation. His reluctance to did not limits on other witnesses. testify, put potential called be his father’s mental have those witnesses well may explained by sister’s deterioration and erratic behavior and schizophrenia. he had did not want the other persons There is no evidence he had for their other than assertion that Payne’s arranged named to testify One, them a free ride. Willie Campbell, from in order to give removal prison could have testified about petitioner’s family. reflect, the above Shinn’s

As the of the referee and evidence findings use of a mental marshal evidence and his failure to incompetent as a with an who described sociopath health antisocial expert that nothing left the jury impression personality, contributed to his conduct or warranted sympathy. background introducing a tactical reason or displaying K. Did trial counsel have for so, A, C, and, D the what was that reason?22 jury, exhibits if A, Exhibits C tactical reasons for utilizing “Shinn had Findings: apparent D trial. during petitioner’s officer, Paul Verna. of the “Exhibit A is a victim police While photograph earlier to the jury during prosecution’s been it have may displayed as Shinn in an attempt, chose to utilize photograph Shinn opening, case. described, the truth about the into Cummings telling to shock Pamela a tactic that this was Shinn explained corroborated this explanation. Payne the Charles Manson case unsuccessfully—in had been utilized—albeit tactic in other cases as well. He had used the defense by omitted]. [fn. trial. designations are used at the murder exhibit those 22 The D, had little other than memory reference to Exhibits C and Shinn “With tactics.’[23] were the he them for ‘trial These two exhibits to state that used and her hus- witness Pamela Cummings written statements prosecutor’s In those statements they attempted band co-defendant Raynard Cummings. blame on both Petitioner and an uninvolved individual. lay to the reason for their “There no adduced at the as hearing other than his of ‘trial tactics.’ argues, use Shinn proffer Respondent however, utilized Pamela that the statements were to impeach Cummings she and her husband would to shift go and demonstrate the ends to which blame to others. This is not an unreasonable one in light explanation lack of evidence to the contrary.”

Exceptions: cor- finding Investigator Payne excepts exhibit roborated Shinn’s for the use of A and to the explanation implication can be attributed to Shinn. explanation proffered respondent to the conclusion of the referee that Shinn had tactical Finally, excepts A, reasons for D exhibits C and at trial. using

We with the referee that Shinn have had tactical reasons agree may exhibits C and D. using testified that he had discussed the use of trial exhibit Investigator Payne A, Verna, of Officer The with Shinn. blowup photograph photograph to be used to a face on the that had been used with rods to put mannequin demonstrate of the bullets. testified at one that he path point exhibit A in order to shock Pamela into displayed Cummings telling truth, and at another that he felt that other exhibits were not to leave a going on the The exhibit lasting had been impression jurors. photo prosecution that had been on but was not used. display

Petitioner that Shinn’s that he used exhibit A in an argues explanation to shock Pamela into the truth about the murder is attempt Cummings telling A, belied the record. At the time Shinn introduced exhibit he was counts, trial of the cross-examining Raynard Cummings during robbery at that from Pamela about point precluded cross-examining Cummings the because the murder trial had not and the had killing begun mannequin not been used. need not

We consider whether Shinn’s of Officer display photo reflected Verna because we find no likelihood of incompetence prejudice. many 23 Thereferee portions observed Shinn could not recall substantial doing many things representing petitioner. trial or his reasons for testimony. This observation is also confirmed our review of Shinn’s It should be noted 12 years hearing that Shinn was old at the time of the reference and the trial had occurred was, however, years employed earlier. He as a clerk. law exhibit, the had been did not introduce photo While prosecution courtroom, admission of the the trial. Formal during visible to jury, reaction that could have exhibit would not elicit sympathetic perceptible caused prejudice. trial exhibits C and D as “trial tactics.”

Shinn testified that he introduced In the had to the given Exhibit C was a statement Pamela Cummings police. statement, Exhibit D was a blamed shooting. Pamela for had It peti- statement Cummings given police. implicated Raynard however, that both Petitioner fails to acknowledge, tioner in the shooting. Cook, Milton resembled Raynard statements also one who falsely implicated out brought his cross-examination Shinn During in the Cummings, shooting. Cook. that Pamela and Raynard conspired implicate fact the referee’s finding that the evidence argues supports Respondent exhibits. when first Although did tactical reasons for these using have the tactical bases for these actions Shinn could not remember what asked were, husband her he later testified that Pamela Cummings protecting defense was to her strategy implicate during testimony. Payne testified shot Officer Verna. Petitioner himself as the who Cummings Raynard person Pamela and of the defense was to show that testified that the strategy part had lied in their statements. Cummings Raynard the details of his that Shinn’s lack of recall of suggests Respondent had no does not demonstrate that actually of petitioner representation exhibits, to Shinn’s age, these but is attributable tactical reason for using evidentiary the trial and the habeas corpus interval between 10-year hearing. as to record belies theory that the argues again respondent’s and D. He out that exhibits C introducing points

Shinn’s tactical reasons introduced, cross-examined during Pamela was being when exhibit C was had not She Cummings. yet of the trial of Raynard robbery portion Moreover, all the evidence case against testified in the murder petitioner. been be believed had already that Pamela should not to establish necessary corroborated Pam- but introduced. Exhibit D not only implicated petitioner, to D the direct evidence only Exhibits C and offered ela’s later testimony. a in the gun had used single the that two theory persons support prosecutor’s shooting. exhibits the trial at which these of the stage and regardless

Nonetheless in introduced, the that Shinn’s purpose cannot discount evidence were we Pamela Cummings the that exhibits was to persuade jury these introducing an innocent and her husband would to even go any lengths, implicating Faced Cummings. their to seek Raynard in efforts acquittal person, it was not unreasonable the evidence damning against petitioner, quantity statements them against counsel to to turn the Cummingses’ for attempt alone to the was Raynard Cummings responsible an effort persuade jury for Officer Verna. shooting event, recounted in

In since the the version of events rejected any jury exhibits, their not have caused peti- these introduction would prejudice tioner at the of the trial. penalty phase claim that Shinn did not we consider

Finally, develop coherent his witnesses. penalty phase strategy prior presenting

L. Did to the trial any strategy penalty phase prior formulate and, so, the and/or to what was penalty phase arguments, final if and how was it strategy implemented? the

Findings'. “Shinn’s was formulated penalty phase strategy following However, return of a the verdict. he and his discussed guilty investigator and, of conviction the of the fact that possibility during guilt phase light trial, the investigator would be on vacation during penalty phase started work on it Payne during guilt phase.

“While Shinn did not recall his that he formu- stated strategy, always lated one. testified that the was Investigator Payne strategy simply pro- duce witnesses who could as to Petitioner’s to obtain testify background, doctors who had earlier observed him and else that could offer anyone evidence. The on the stand strategy was who simply put anyone could about the Petitioner.” say anything positive to the that work on the

Exceptions: excepts finding penalty begun and to the that Shinn formed phase during guilt finding phase verdict and that the was one of strategy following strategy guilt putting stand who could about anyone say anything positive petitioner. We conclude it is to resolve when Shinn unnecessary developed reflect, As the above Shinn’s strategy. penalty phase findings preparation a thorough He did conduct penalty phase woefully inadequate. that was discover investigation potentially mitigating He did he did available. not interview witnesses prepare present, had decided that much of this was unnecessary prior conclusion. because of the death was a imposition foregone 826 and an expert did some evidence about present (See a in a structured setting. People that would not be problem

opinion 1271-1272.) strategic 4 at Although v. Cal.4th Cummings, supra, pp. offer witnesses who initially sought only approach penalty phase exami- about it is from his could say something positive petitioner, apparent that some strategy Dr. Weaver and his closing argument nation of that to convince began—an attempt jury evolved when penalty phase life in without of was parole appropriate penalty prison possibility that be found to establish because evidence might someday did in a shot Officer Verna and since well not the who person a contribution in the he could make positive prison structured setting, could be used to benefit other where his education and skills environment prisoners.

V Prejudice breakdown of the not a case in there was a total This is be may in which prejudice pre adversarial process 2039, Cronic, 648, 666 S.Ct. (United v. 466 U.S. supra, sumed. States [104 that errors were so 2050-2051].) Petitioner must therefore show Shinn’s trial, is, that “a trial of a fair serious that they deprived petitioner penalty at (Strickland v. 466 U.S. Washington, supra, p. whose result is reliable.” 2064].) The court will relief on grant ground S.Ct. at p. [104 guaranteed a defendant did not receive quality representation that, counsel’s “there but for Amendment if is reasonable probability Sixth errors, different. would have been the result of the proceeding unprofessional undermine confidence sufficient to A reasonable is probability probability 2068].) at (Strickland, S.Ct. p. in the outcome.” supra, p. [104 Therefore, must demonstrate not only to be entitled to relief petitioner but also that this inadequate representation counsel inadequately, performed i.e., returned a that the would have jury that it is probable was prejudicial, received had petitioner of life without the possibility parole verdict concluded above Shinn’s We have competent representation. in sev and possibly prejudicial was inadequate representation of Shinn’s many conclude that the cumulative impact eral We now respects. verdict. and necessitates reversal failings prejudicial we reiterate of Shinn’s failings perspective, To impact put possible factors which led us to reject petitioner’s of aggravating the summation murder, a “The circumstances of the claim on counsel appeal: incompetent cold-blooded, for the execution of a officer purpose police premeditated influential the most undoubtedly and return to custody, arrest avoiding commission, the circumstances of its factor. The murder and aggravating his on his former girlfriend, the evidence of assault Gay’s considered with former and girlfriend, another seriously injured commission of arson which inmate,[24] the culmination of a reflected to bum another jail attempt conduct violent life-threatening and escalating continuing pattern 1343.) 4 Cal.4th at v. (People Cummings, supra, p. Gay.” of armed robberies of which included the series The evidence aggravating of another at had been convicted evidence presented petitioner to several of the victims who injury robbery penalty phase, and the of the and evidence of a threat to a jailer family were pistol-whipped, County jail.25 made while held in Los being Angeles jailer by petitioner to to make the statement Shinn’s persuading petitioner incompetence all of the led to conviction on investigating directly officers Florist, and Artistic Bath counts robbery shop, Designer except repair counts, offenses as aggravating and to the consideration of those jury’s on the Florist Designer factors. It have contributed his conviction may that the and Artistic Bath counts. It would be difficult to conclude count of this number of robberies committed before shortly consideration jury’s the murder did not in the decision. This is heavily particularly weigh killed to so because the that Officer Verna was argued prevent prosecution the arrest and return of and the Cummings Gay prosecutor prison, reviewed the robberies and the violence connected therewith during of those robber- Had not been convicted argument. petitioner ies, that motivation would not have been as as argument strong applied victims could not and the suffered some of the injuries robbery have been considered as factors. aggravating

In this has also established that Shinn failed proceeding petitioner discover, evidence that have investigate, might given jury present in his and the triggering circumstances understanding background the assault and the arson that the offered as events preceded People offered, fac- Had this evidence been these aggravating factors. aggravating carried with the when consid- weight jury, tors have less might particularly not a threat when ered the evidence that he well performed a stmctured setting. it, lit and shoved it up paper newspaper, made a torch of rolled toilet 24 Petitioner jail push inmate’s face. That inmate was able to

through the bars of a cell in the another away. torch case,” my “would come after jailer 25 Petitioner told the that if “beat easy pickings.” be family cops and me and that were such bad shots we would Here, 584, as in 1 Cal.4th has established Marquez, supra, evidence of counsel should have been aware potentially mitigating available, but neither nor offered. That evidence investigated was was consisted of both the abuse to which background, including petitioner’s as a child and the out of his racial arising heritage, was subjected problems factors had on and these testimony regarding impact expert petitioner’s and mental health. personality

Petitioner has demonstrated that counsel’s to obtain attempt potentially mental state and its regarding possible mitigating petitioner’s from on his conduct at the time of the murder was doomed to failure impact his the start. When Shinn and maneuvered own fraudulently unethically of a defend lost any fully appointment petitioner, petitioner possibility Code, 6068, & subd. (See defense. Bus. Prof. developed penalty phase § abandoned before (d).) attorney any He was saddled with who hope undertaken. The to craft a defense was apparent capping attempt penalty Shinn, McBroom, and Weaver led to Shinn’s retention between relationship that the of a mental health who with the only understanding expert accepted be demands on his time. By case would not complicated place admission, Dr. made no to do a assess- thorough his own Weaver attempt uninterested then meeting ment of mental status petitioner’s to do a assess- current standards of forensic His failure thorough psychiatry. the instructions ment of mental health is as much attributable to Shinn, belief, him which coincided with that of Shinn as his own given by conclusion because that the decision was foregone petitioner, penalty man, killed a White officer. Black had police Shinn labored under at the time Shinn Additionally, represented petitioner, of interest—he was inves- being a second and undisclosed conflict potential district of client funds the office of the same by tigated misappropriation who in the Whether adversary petitioner. attorney prosecution of the defend Shinn’s failure to aggressively penalty phase relation- trial is attributable to the conflict capping solely precipitated fund influenced the distraction of the misappropriation or was ship The se rule of cannot be determined on this record. per investigation therefore. an actual conflict of interest does not from arising apply prejudice 2067].) S.Ct. at {Strickland,v. 466 U.S. Washington, supra, p. p. [104 lack of confidence in the Nonetheless these conflicts contribute to our other considered with Shinn’s failings. verdict when did not interview potential Petitioner has established personally in the he did on the stand only briefly to those put witnesses spoke made to identify the courtroom. Little effort was outside hallway evidence. marshal mitigating phase potentially penalty aggravating of the People’s also demonstrated that some Petitioner has robberies, evidence, finds its source he committed several the evidence that self-incrimination against in Shinn’s failure to preserve petitioner’s privilege at which he persuaded petitioner investigators interview with police had been convicted the commission of the robberies. While admit murder, attorney heinous we cannot join assumption of a conclusion. death was a foregone psychiatrist imposition available evidence was A substantial quantity potentially a result of Shinn’s incompetence. did not hear as jury did tell the jury testimony We that Weaver’s recognize of his mixed a difficult childhood because his conclusion that race, race, both. He also testified either and had to fight did not identify out the did not testimony bring that father had abused him. His petitioner’s of the had or the severity full extent of the petitioner experienced problems brief abuse to he had been Dr. Weaver’s subjected.26 descrip- which physical or to as a factor tion of was not offered background sympathetic murder, in the context of an at the time of the but his conduct explain but had reacted in a structured environment petitioner positively opinion a Thus, on the street. and should not be back sociopathic personality out of the strategy bringing extent that Shinn offered Dr. Weaver as part did about he did so things only say positive petitioner, a structured environment. Any cause trouble in and would do well in jail however, his testimony of that by mitigating impact opinion tempered, had a sociopathic personality. witnesses, or no” heard the “little In the of the trial who judge opinion We evidence offered Shinn. by mitigation appeared penalty phase agree. death rendered aby jury unable to confidence in a verdict of

We are put a by that reaches a death verdict for defendant represented penalty the court in whose seeking who has defrauded attorney appointment, a health who unethical conduct led to the retention of mental directly expert do a assessment of thorough not be called attorney agreed upon had a person- testified that the defendant sociopathic the defendant and who incom- undermined counsel’s Confidence in the verdict is further ality. to the consideration contributing jury’s conduct penalty phase petent he “found that he has a interview with 26 Dr.Weaver stated that in two-hour and bom in very setting being part part black and white started out life kind of in a difficult London, to L.A. with a white mother being back to Texas and then back here transplanted father, he himself felt had mitigated problems some of his a black and indeed this of times to me that development, He indicated number impact considerable on his own ffl] not white and he wasn’t any relationship, any identification. He was he felt like he didn’t have fight the ... fight and sometimes had to whites. [ID He sometimes had to the blacks black. ....’’ abused his father as child . . . been [H]e evidence that the defendant is a serial robber with a sociopathic personality, that the did not to consider a by recognition have jury opportunity substantial amount of evidence that counsel would competent have We conclude there is a reasonable that absent presented. probability counsel’s numerous and the conflicts of interest with which he was failings not, burdened, a different verdict would have been reached.27We do penalty therefore, have confidence in the verdict reached in this case. penalty

VI

Disposition The for writ of habeas is The is vacated granted. judgment petition corpus insofar as the of death is Petitioner is remanded imposed. (see 1493) be held of the Sheriff of the of Los custody County Angeles § retrial of the pending prosecution murder in Paul and Kenneth Earl No. v. People Raymond Cummings Gay, A392702. shall cause notice of the to be served on the District writ

Respondent (See of the of Los the of this finality Attorney County Angeles upon opinion. 1382, (a)(2).) trial subd. Should not be a new granted penalty § time the the in section 1382 or continuances any granted by within specified court, the court shall of life the without superior impose possi- of bility parole.

Mosk, Chin, Brown, J., Peterson, J.,* J., J., C. concurred. Acting MOSK, the court C. I concurin of Acting prepared opinion J.— Justice Baxter. reversed, that, in

I write to note on I would have appeal, separately entered Kenneth Earl against Gay, its entirety, judgment to look the sentence of death. Even I was then unable including though record, that the the face of the I was nevertheless of beyond opinion evidence, knowledge just the prejudice requires 27 Anassessment of of the trial reason, 604.) we evidentiary hearing. (Marquez, supra, p. at the 1 Cal.4th at For offered finding regarding prejudice. As this any or recommendation did not ask the referee make conjunction appeal, we thoroughly proceedings the trial court court has reviewed prejudice. to make the of are better able assessment District, Five, Justice, originally as- Presiding Appeal, Court of First Division * Retired Constitution, VI, Chief Justice signed, section 6 of the California former pursuant to article cause, Lucas, order to show conjunction with the issuance of the Malcolm M. Acting Peterson’s retirement. reassigned by upon Chief Justice Justice

831 Shinn, counsel,” “were disbarred Daye of “failings Gay’s subsequently serious,’ the adversarial of and ‘resulted in breakdown ‘pervasive “ of [Gay’s] a violation ‘that breakdown at trial’ established] process ” the Sixth Amend- of counsel’ under the effective assistance . . . right I, 15 of the and article section United Constitution ment to the States “ of the Constitution; reversal and that ‘that violation California mandate[d] ” of (People in the absence of a showing specific prejudice.’ even judgment 796, 1233, 850 P.2d (1993) 4 Cal.Rptr.2d 1] v. Cal.4th Cummings [18 1, Mosk, (1992) 2 Cal.4th (dis. J.), v. Visciotti People [5 opn. quoting Mosk, 495, (dis. J.).) 825 P.2d opn. Cal.Rptr.2d 388] am the same a fortiori. that I am able to extend I my gaze, opinion Now albeit on the I I could formerly only suspect, For know what presently time of the in the again opinion of evidence. As we observe strongest court, conclusion.” that a of death was a “foregone Shinn believed verdict better, He acted—or to act—accordingly. failed above, that must—at the In I we fully, necessarily, agree view death, because least—set aside the sentence of and that we must do so very defi- Shinn’s was—again very least—prejudicially nonperformance cient in that regard.

WERDEGAR, I concurin the for the reasons that follow. judgment, J.— challenging

In for writ of habeas response corpus petitioner’s petition alia, inter and sentence in his case judgment capital grounds, counsel, an order to show cause ineffective assistance of this court issued ineffec- limited to the whether received constitutionally question petitioner assistance of the trial. The majority tive trial counsel by concludes counsel’s was and likely prejudicial, representation inadequate thus I the death agree penalty reversal verdict. requiring penalty Because, however, the attorney on cannot stand. I believe imposed conflicts of interest who suffered from impermissible represented petitioner case, I of in his for and presentation petitioner’s penalty phase preparation other claims of inadequate rep- find it consider unnecessary resentation or question prejudice. counsel, guaranteed

A criminal defendant’s to effective assistance right Constitutions, includes the right both the federal and state representa- by under establish a of this right tion free from conflicts of interest. To violation Constitution, the record a defendant need show only supports the state “informed affected adversely that counsel’s representation speculation”

832 1, (1995) the claimed conflict of interest. v. 12 Cal.4th (People Sanchez 843, 1129]; (1994) 906 P.2d v. 7 People Kirkpatrick Cal.Rptr.2d [47 988, 818, Here, 248].) Cal.4th 874 P.2d the evidence Cal.Rptr.2d [30 shows trial counsel failed in his duty diligent loyal representation, client’s, his own interests before thereby affording his placing substandard assistance in his trial on penalty.

As the referee found and the trial majority opinion explains, petitioner’s Shinn, substituted in for the defender as retained attorney, Daye public counsel obtained his court first to eventually by lying appointment and then to the court about of his fees. He aided in payment and, this scheme Marcus McBroom return by psychologist apparent assistance, associate, Weaver, retained McBroom’s Fred as psychiatrist Weaver, turn, witness. Dr. principal penalty phase employed McBroom—who was not licensed in California—to perform psychological as he had done in other criminal cases. As testing petitioner, previously states, transactions, this set of which included fraud on both the majority court, client and amounted to a of unethical type capping arrangement. ante, 781, 794-796, 828.) at (Maj. opn., pp. effort, did Shinn such and cross the borders of

Why honesty expend ethics, to obtain in this case? Was it because he believed appointment deserved best most defense vigorous prepared, possible, himself, Weaver, Dr. able to such believed together especially provide defense? we know that was not reason. Shinn’s own Unfortunately, and, for the trial consistent slight, were planning preparation penalty therewith, a routine he instructed Dr. Weaver to undertake evaluation only to Weaver his view the death was a conveying foregone petitioner, ante, 796-800, 807-813, 817-821.) I thus can conclusion. (Maj. opn., pp. infer that Shinn in this case to meet own only sought appointment needs, financial, did— and that he intended to—and personal presumably needs, than to to meet those rather repre- exploit appointment personal sent his client as as well possible. conclusion as to intent and motive is reinforced self-serving Shinn’s

My that, Shinn labored the fact at the time he was representing petitioner, interest, and under another conflict of one criminal raising liability profes- financial, sional, District as as concerns. The Los Angeles County well office, at the same the office that was was prosecuting petitioner, Attorney’s clients a from one of Shinn’s civil time also actively investigating complaint $180,000 from a obtained for' recovery that Shinn had about misappropriated therefore, under not only the client. this Shinn was pressure During period, he was disbarred Bar action (eventually, of criminal State disciplinary client), but this civil concerning and other violations for his misappropriation large-scale likelihood have to make he would faced with the was also Indeed, he, fact, Shinn’s own did). later (as restitution to the client to so anxious he was why investigation may help explain criminal pending to confess to that he induced attorney with the district cooperate de- used in aggravation penalty—without robberies—robberies several not be used the admissions would assurances receiving any or manding ante, 791-793.) (See maj. opn., pp. against petitioner. defense interest attorney’s compen- that a

I recognize court-appointed to not, the attorney’s duty se or in conflict with general, sation does per (See, v. e.g., People or her client loyally diligently. his represent Here, however, 1009-1010.) the ap- 7 Cal.4th at Kirkpatrick, supra, pp. amounts of large money pointed attorney previously misappropriated livelihood, result, and, under threat of his losing from another client as a this money. Against having repay criminal suffering prosecution, case, in a doing his background, attorney engineered appointment capital means, dishonest and for apparent purpose so by extraordinary, time and effort on the case a fee while as little obtaining quickly expending the amount carried out his by strictly limiting as The attorney plan possible. he authorized his evaluation of background investigation psychological undertake, or and generally by presenting consider preparing expert not an one. ordinary case in This case is mitigation. only rudimentary of making In for deceitfully obtaining purpose appointment simply for under these his own interests ahead of petitioner’s, money, placed been better off had he continued circumstances have likely office; he had an interest defender’s certainly to be by public represented that choice free of prospective appointed in making misrepresentation least, short, circumstances grounds, In these attorney. provide 1009) 7 Cal.4th at supra, p. “informed v. (People Kirkpatrick, speculation” of interest affected adversely that counsel’s conflicts and inexcusable as was petition- behalf. Cruel performance serve, crime, first and try er’s entitled to an who would attorney foremost, instead the interests of his client at the penalty phase, to death even been sentenced would have own. Whether attorney’s know, cannot nor need we try and dedicated defense we attorney with loyal concludes, whether, as the majority to decide. Regardless counsel’s deficient performance, outcome was altered likely trial’s execute a death tainted such conflicted judgment representation undermine, advance, rather than for the society’s just quest punishment crime.

Kennard, J., concurred.

Case Details

Case Name: In Re Gay

Court Name: California Supreme Court

Date Published: Dec 24, 1998

Citation: 968 P.2d 476

Docket Number: S030514

Court Abbreviation: Cal.