*1 May Nos. 1993.] Crim. 25196. S004568. [No. PEOPLE,
THE Plaintiff Respondent, MAYFIELD, Defendant Appellant. LADON DEMETRIE Corpus. DEMETRIE LADON MAYFIELD on Habeas In re *19 Counsel Asaro, Su- and Andrea G. under
Sanford Rosen Jay appointments Lerner, Court, Buckley, Phillips, Jody Sallyanne Barbara Y. Stuart preme Rosen, Zieve, Bien M. & Asaro for Allison Rosen & Campbell, Phillips Defendant and Appellant. General,
John K. Van de and Daniel E. Steve Lungren, Attorneys Kamp Williamson, General, White H. George Chief Assistant John Attorneys Bloom, General, Assistant Sugiyama, Attorney Jay Rodriguez, M. Jesus Gillette, Wilkinson, Millar, Jr., Frederick R. Dane R. F. Deborah Herbert Beaumont, General, Factor and Garrett for Plaintiff Attorneys Deputy Respondent.
Opinion awaits, Prison, MOSK, J. Quentin Ladon at San exe Mayfield Demetrie judgment cution of a A of death. convicted him of two counts of first jury Code, (Pen. 189.)1 murder. degree found true the special §§ defendant, circumstance alleged each one count: that addition to first murder, degree was convicted at trial an murder in first additional 190.2, (§ trial, second degree. (a)(3).) subd. At the conclusion *20 the jury returned a verdict The of death. trial denied defendant’s court motion to modify verdict and entered judgment.
In the 24 hours following the was for their killings, defendant arrested He commission. to them day confessed during interrogation an was The next he audiotaped. agreed reenact day the crimes. The reenactment was videotaped.
Defendant’s taped description of the killings’ pos- circumstances left no sibility of dispute trial that he had shot and killed both victims and murdered the second of them. The were whether the murder only questions of the victim second was degree, first or second whether the and killing initial victim was murder or The involuntary manslaughter. prosecution theorized that had defendant carried out two brutal executions. accident, The defense contended that first killing was an hence involun- tary manslaughter, and the second a rash hence second impulse, degree murder. The trial’s guilt and penalty together took 10 phases days.
1Unlabeled section are references to this code.
Facts
A. Guilt Phase Facts. 3, 1983, bodies of Ora found the Early of morning February police on residence. Both Pope Mae Moreno2 in a shed adjoining and Edward Pope discovery, police Within hours of the just had died from wounds. gunshot from the shotgun recovered a They arrested defendant at his home. also a friend defendant. house Patricia Harper, Defendant, man, Pope years; had Mae for about two young known Ora there was evidence that her son a friend defendant. But Byron was had arrested for was at the Defendant been Pope family. defendant angry mother, both, Pontiac, had or Byron Pope theft of the and Popes’ 1968 to a had sentenced decided him. Defendant been press charges against killings. he when committed year awaiting was incarceration jail killing The evidence that defendant had produced strong plotted trial Ora one or revenge Popes, of Mae order exact both Pope killing. he Pope’s killed Edward because he witnessed Ms. had Moreno defendant two witnesses There was evidence that before the crimes told kill the car-theft revenge prosecution. Ora Mae as going Pope Brooks, Michael friend defendant’s cousin witnesses—defendant’s Glen however, turn, In the prose- heard defendant so. Taylor—denied having say Code, (Evid. cution introduced evidence of inconsistent statements prior *21 one, 1235) told a Taylor conversations. In taped the form of telephone § kill to going on the of the defendant said he was day killings detective that other, the In the Brooks told charges. Ms. because of the car-theft Pope and killings he the of the Taylor’s day detective that was house present “Man, In had I’m kill Home mother.” going Boy’s heard defendant to say, defendant, addition, the had killings, Patricia testified that before Harper just Edward Moreno were “going said to the effect that Ms. and something Pope get to theirs.”3 killings the testimony night
Patricia established that Harper’s Pope her the nearby defendant left house surreptitiously approached window, minutes, the room through living residence. For few apparently Moreno, were he on Mae and Edward who spied and Ora eavesdropped Pope For 2The as or John Moreno. record sometimes refers Moreno John Moreno Edward throughout. simplicity we will to him as Edward Moreno refer say the that she heard defendant prosecutor’s. agreed 3The words are The witness had something similar. the couch. When defendant returned to sitting living Harper’s on room house, he told her he he overheard. about what had angry above,
As mentioned gave defendant a confession on February which was on 4 he and the audiotaped, killings reenacted February events them surrounding established that after the videotape. tapes foray described defendant obtained eavesdropping previous paragraph, off, his 12-gauge which he had and went back shotgun, previously sawed residence with two shells—all he Pope the ammunition owned. With a screwdriver he removed the screen from the Popes’ a window bedroom and pried open the window. He crept through living the bedroom into the room, where he confronted Ora Mae car-theft about the Pope prosecution. loaded, Defendant aimed the cocked at her while the discussed shotgun two argued or about the car-theft charges. The and killed her. gun discharged Moreno, Defendant then shot and killed couch Edward seated on the same as Ms. he Pope, because was a witness to Ms. Pope’s killing. confession,
In his audiotaped gave defendant two accounts of Ora Mae death. Pope’s While were they arguing discussing car-theft charges, defendant, Ms. leaned Pope over to aget cigarette and with finger on a hair trigger, accidentally discharged gun; or she started to come at defendant from the couch and he shot her he because was scared or startled.
Defendant life, the two dragged victims—Ms. still Pope showing signs but Edward Moreno dead—to an outside In storage shed. a futile attempt to erase evidence of the shootings, he hosed blood off between pavement shed, house, house and the locked the and restored the rear window to its original house, He condition. took the shotgun to Patricia Harper’s telling he it,” her had shot the victims. “He he said did she testified. “It He slipped. didn’t mean to. And then he had to. . He . . had do the second one.” She also testified shells, that defendant showed her the two spent shotgun that she him permitted conceal weapon on premises. Defendant words, then told in her Harper, that was “going go to wait for Byron, too” *22 and to “get Byron, too.” that,
There was evidence carrying kitchen knife he towel-wrapped had residence, obtained from the Pope defendant returned thereto to lie wait for Byron Pope behind a van. nearby parked testified that Pope defendant him approached him, from the van and confronted the towel containing the knife wrapped around his arm. The two wrestled and defendant succeeded in forcing to leave Pope without entering the house. Defendant essentially warding Pope, After off statements.4 taped this account
confirmed him there. found morning police Later that the defendant went home. statement, did not present did not testify, opening Defendant waived the audio- complete playing witnesses. His defense consisted any closing only excerpts—and had played confession—the prosecution taped argument. killing that the first defendant’s counsel contended closing argument
At He asserted murder. degree accident and that the second was second was an lied to the calculatedly police have that it was defendant would implausible accident, then as an but he of Ora Mae killing Pope when described Defend- silence a witness. admitted he killed Edward Moreno to forthrightly death eligibility; circumstances or meaning ant did not know the of special knew, confessing he was he when he was to the confessing police as far as mind, on their In he threw himself completely to murder. words, .” his neck the noose . . . counsel’s mercy—in “put Therefore, the first was killing that argued, jury accept counsel should of evidence of premed- an accident. The defense the existence acknowledged any had abandoned maintained that defendant killing, itation of that but discharged. kill shotgun accidentally intent before his Moreno, it was the defense conceded With to the of Edward regard killing murder, that it was the but contended degree, either of first or second deliberate and form latter defendant had not had sufficient time to because if that agreed argued intent to kill. Defendant specific murder degree not find it to be first Moreno’s death was murder but could doubt, him convict of second a reasonable it was bound to beyond legally murder. degree neither version of defendant’s theory
The its prosecution emphasized had accidental was true: defendant killing that Ora Mae story Pope’s also revenge. argued killed Ms. Pope purely prosecution Moreno was deliberated and killing premed- evidence showed the of Edward In claim that the had a hair shotgun trigger, itated. answer to defendant’s access to the invited had closing argument prosecution jury—which as a trial exhibit—to gun squeeze trigger. interpretations: this event was of two that defendant regarding susceptible 4The evidence harm, entering do wanted to off from his mother’s house Pope
meant or that he ward him contained, that the now and armed himself seeing carnage living the evidence of room charged with *23 he Defendant was not Pope with a knife because neither nor trusted the other. against any Pope. crime Penalty B. Phase Facts. activity involving introduced evidence of criminal use prosecution (§ 190.3). or There evidence that
or use force violence on attempted defendant, October at former who had angry girlfriend up a broken him living with fired a rifle round her room day, through family’s her, effect, window after in “If I have you, nobody to can’t have can’t saying There was evidence once or you.” also that defendant had twice before threatened her her may to or at which displaying pointing gun, may not have been functional. that Hallow- girlfriend Another former testified een of her in his angry 1982 defendant became with her and hit the face with fist. witness, Rath,
Defendant’s Craig sole Dr. a clinical penalty phase psy- illuminated chologist, background defendant’s and character for the jury offered other evidence in mitigation. Dr. Rath testified that defendant had “indicated in considerable remorse the killings] ways different at [over different in times interview.” Defendant was moderately severely [an] actions; in depressed jail, his because of not all killers And Dr. perhaps are. Rath was “personally stunned the degree of that defendant had rapport” with at least five different like jail seemed to him and he guards—“they them, that, seemed to like In addition he in many to be appears ways [f] a socialized person. He does respond follows authority many ways, them, be, seen, he rules more than breaks and he would I of the inmates have he would be among the easier to handle.” Dr.
Through Rath’s testimony defense introduced the Dr. evaluation of Hunt, a Guy neurologist, that “the crime of which is accused is out of character and be can explained only on the basis of definite cerebral impair- Rath, ment due alcohol and drug abuse.” Dr. According to the killings were the culmination of deterioration defendant’s personality had been for occurring some 18 months. Dr. Rath described rather briefly structure family background, with relationship girl- friend into fired, whose house defendant had allegedly defendant’s history of thereof, drug abuse and the possible cognitive effects defendant’s work background, and defendant’s “long of health history” problems, including poorly controlled juvenile onset diabetes Dr. Rath mellitus. stated that defendant’s friend Patricia did not Harper believe at first that defendant had killed, because her view “it seemed (the out of character him” words). psychologist’s Dr. Rath told the that defendant had an inade- quate education and was “dull” and “in many ways” basically “[i]n low average range of intelligence” a result of an as emotionally deprived childhood. *24 were he the crimes thought whether say asked Dr. Rath to counsel
Finally, already “The has jury Dr. Rath replied, character for defendant. out of minds, them I’m to tell going in not what their own happened decided in my opinion I to them is that would out only thing point different. any for defendant’s behavior different than most of is qualitatively what occurred it is extensive collaborate with And that seems to thing most of his life. one in is deterioration usage seen with that commonly What is drug usage. on. And what happened, and lack of and so insight, reasoning, judgment, what, decided, deliberate, does seem as have you whether it was exactly history.” all of his previous to almost compared to be out of character omitted.) (Paragraphing rebuttal, William H. Dr. psychologist,
In called another prosecution Soltz, two follow- days on each of the who had interviewed defendant once kill and defendant intended to Dr. Soltz concluded that killings. ing on the basis of Dr. Soltz also stated “very affirmatively.” the crimes planned Mae Pope drop “had a Ora plan get the interviews that defendant [to them, He had a to scare gun He executed it the house. charges]. getting her, He he them He killed her. shot and it out of hand and shot both. got her, Dr. Soltz knew he had shoot the other person.” once he shot reactions to with defendant’s past concluded that the were consistent killings situations. bad him he had one can of only
Dr. testified that defendant told had Soltz also purposes. and his mind was clear for all day killings practical beer him mother to have Defendant’s had motivated his behavioral problems adolescent, Medical University the Loma Linda tested as an apparently Center; Dr. Soltz that few defendant’s mother told days killings after child,” that was the “a because very dangerous possibly defendant was that he Defendant told Dr. Soltz evaluation Loma Linda had made of him. and mentioned his arrest for robbery, was arrested at age attempted (The instructed not to consider jury the theft of the automobile. Popes’ did or steal the robbery as evidence that defendant testimony attempt car.) concessions on cross-exami-
Defendant Dr. Soltz impeached by eliciting that in another case which nation. He Dr. Soltz to admit got grudgingly defendant testified psychologist against represented counsel, He administered other his mental evaluation was could have wrong. Defendant’s lack of an outward tests to defendant but chose not to do so. what he had regret did mean he did not showing of “acute” remorse done, “damn not tell the that defendant was not and Dr. Soltz could Soltz did not have words—for what he had done. Dr. sorry”—counsel’s *25 the written material on access to records that have been many might helpful; he relied of which consisted records. solely police
Discussion Jury Selection Issues
I. Philosophically A. Jurors Death. Favoring Inclusion of contends in denying Defendant court erred his challenges of 13 cause who were biased favor of death prospective jurors who, in opinion, could not factors fairly weigh concedes, however, might be that he did presented mitigation. Defendant exhaust peremptory challenges. We have held that challenges a defendant must exhaust the peremptory available him ex to remove been prospective jurors who should have cluded for cause in order to Raley the issue for v. preserve appeal. (People 870, (1992) 678, 2 712].) Cal.4th 904-905 Defend Cal.Rptr.2d 830 P.2d [8 ant fails offer any justification for his failure to exhaust his peremptory challenges, and did not indicate with the any dissatisfaction when sworn. Thus claim any (Ibid.) of error is barred. procedurally
B. Exclusion Jurors Expressing Penalty. Doubts About Death of
Next, defendant contends the court erred in excluding who jurors expressed doubts about of the death our propriety penalty. He calls attention to the exclusion of two venirepersons.
Jurors must be if excused their views capital punishment would prevent or substantially the performance of impair their duties with the accordance 691, instructions their (People oath. v. (1992) Danielson 3 Cal.4th 1, 729], 712-713 Cal.Rptr.2d 838 P.2d quoting [13 Wainwright Witt 412, (1985) 841, 851-852, 469 U.S. 424 L.Ed.2d 844].) [83 Our S.Ct. review of the record reveals error in no exclusion the two venireper- Both sons. declared that could not they vote for death under any circum- stances and thus could not follow their they oath. Hence were properly (People 1223, excluded. v. Gordon (1990) 50 Cal.3d 1261-1262 [270 Cal.Rptr. 251].) 792 P.2d C. Creation Guilt-prone Jury by Opposed Exclusion Jurors Death.
Finally, defendant contends the exclusion jurors opposed to death penalty created a jury improperly toward He ac predisposed guilt. knowledges that we have held that those who would always vote against not constitute a regard with do guilt
death yet profess impartiality Constitutions. whose federal or state class exclusion offends cognizable 956-957 (People Cal.Rptr.2d v. Ashmus 54 Cal.3d view, revisit the 214].) have our and decline to We not changed P.2d question. *26 Phase Issues
II. Guilt Validity Miranda Waiver. A. above, police arrest the San Bernardino stated of defendant’s day
As him was tape-recorded. the crimes. interview regarding interviewed statement, interviewing showing his giving detective—possibly Before warning required the written Miranda defendant text of Arizona 86 S.Ct. 10 A.L.R.3d 974]- 384 U.S. L.Ed.2d written in first read the text to defendant. The text was person—e.g., inme I can used as evidence court.” say against and will be “Anything written record rights, Defendant then waived Miranda as the saying, reflects, “Oh, I about his response “Yeah” and so” guess questions to waive them. willingness diabetic, addition, detective, asked
In aware that defendant was he interview whether felt audiotaped defendant at the beginning he felt up Defendant capable being questioned. responded physically we Because when consider to the task. this issue will become important for we set forth defendant’s corpus, writ of habeas petition with his on this interrogator topic: colloquy Anderson: is Anderson. This is my
Detective “. . . name Dave My Jarvis, I few things. Steve and need to talk to some you about partner, I need to doing. “But first see how you’re you were out to the Did a doctor out there?” right? “You see hospital, “Yeah.” Mayfield: Mr. Anderson: like a or you something
Detective “Did give prescription your, some medication for stomach?” your “He I know.” Mr. didn’t me medicine so don’t Mayfield: give my yet, time you Detective Anderson: How feel? When was the last “Okay. you had medicine?” your I it I’m morning.
Mr. “It was didn’t take this Mayfield: yesterday. to take it supposed every day.” it every
Detective Anderson: “You’re to take supposed day?” Mr. “But I didn’t take Mayfield: morning.” it this Detective “When had you Anderson: was the last time it?” Mayfield: Mr. “Yesterday.”
Detective Anderson: “About what time?”
Mr. Mayfield: “8:00 [a.m.].” Detective Anderson: How are “Okay. you feeling right now?” all, Mr. Mayfield: “[Unintelligible.] That’s no.” Detective Anderson: “Otherwise . . .” you’re .
Mr. Mayfield: “Yeah.”
Detective Anderson: “There’s no with us problem you talking to and stuff? feel You to that?” up
Mr. Mayfield: “Yeah.”
Before trial defendant sought on the ruling He tapes’ admissibility. questioned Miranda waiver’s validity, contending the interviewing detective’s failure to explain his Miranda rights the second person before questioning began made the warnings confusing and therefore his waiver was not knowingly and intelligently given. Court and counsel listened to the which audiotape, contained the reading the Miranda warnings. court concluded that the use “I” defendant, rather than did not “you” confuse and ruled that the tapes could be used as evidence notwithstanding claim. however, wondered,
The court whether the such videotape was powerful evidence that the standard Miranda did warning not suffice to warn defend- ant of the tape’s incriminating effect.
Defendant now contends the trial court erred failing to suppress audio and video versions of his confession and reenactment of the crimes
172 inadmissi- therefore was involuntarily was made audiotape because the ble, fruit of inadmissible as the poisoned was videotape and because are offered audiotape regarding for the contention Three bases audiotape. diabetic, defendant, insulin did not give that the interviewers on appeal: it; induced or coerced they unlawfully knew he needed even though they statements; was defendant’s waiver and that incriminating him to make the grudgingly given. invalid because for ground at trial as a did raise the medical ground
Defendant Nor did he raise as involuntary. excluding audiotape videotape it because involuntary was that the statement audiotaped contentions present McClary People (see v. inducement result of an improper was made as a 163, 620]) P.2d 571 (1977) Cal.Rptr. Cal.3d 228-229 [142 ab initio because his response he never waived his Miranda rights them at he did not raise Because involuntary. at best and therefore grudging trial, are not grounds preserved on those his claims of involuntariness (People Kelly Cal.Rptr.2d 1 Cal.4th appeal. 385].)5 P.2d that the Miranda waiver was renews his contention
Defendant also rather than the second use the first person the detective’s invalid because *28 for This claim is confusing. preserved in defendant his was rights reading meritless, however. We find it appeal. defendant, Miranda warning “I read you your
The interviewer have to told Then, waiver form here.” I’m to read them off of this going ... rights. [f] said, being interviewer “You’re the sheet of reading paper, after from charged with, with two counts of murder. Okay? [1] With those rights in mind, talk to me . . . ?” do want to you Miranda waiver was valid raises a
The trial court’s determination that the review on appeal. subject independent legal question predominantly 801, 612, 818 P.2d (People Mickey (1991) Cal.Rptr. v. 54 Cal.3d 649 [286 above, we do not in record 84].) quoted Under this standard and of the light cannot have erred. The use of the first person conclude that the trial court It is also being sought. whose waiver was confusing; been it was obvious an provided interrogator’s preliminary follow-up questions that the plain he was that it was his rights context to make clear to defendant adequate intelligent a knowing we conclude defendant made waiving. Thus waiver of his Miranda rights. II.C., post. And the part inducement 5We nevertheless address issues of coercion and of in our treatment grounds impairment mental is discussed
issue of voluntariness on of IV.D., post. part petition corpus, defendant’s for writ of habeas
173 more a As for whether the use a reenactment videotaped requires of effect incriminating elaborate than the standard warning possibly counsel, of we have recitation to remain silent and to discovered rights no for the that the a more elaborate authority requires law proposition The defendants warning than the Miranda formula. Miranda rule assures that waive of knowingly specific rights. degree constitutional prejudice mag arising defendant from that waiver is not a of constitutional question necessary nitude and is not a for a waiver. knowing intelligent basis that the have been Finally, videotape contention should as the fruit is suppressed poisonous audiotape not preserved 2 appeal, Terry (1970) as failed to (People raise that claim at trial. 362, 409, Cal.3d 961].) 466 It on the Cal.Rptr. obviously P.2d fails event, merits any given our determination that the initial waiver valid. Ability B. to Waive Arraignment. Counsel’s Presence at 7,1983, On February defendant was arraigned charges two counts (§ 187). murder No special circumstances were alleged complaint. Defendant waived his On right counsel at the arraignment. February after days counsel for defendant was the complaint was appointed, amended to charge special circumstance of Defendant multiple murder. waived his formal right to rearraignment.
Defendant suggests right unwaivable to counsel at arraign inment (§ (b)) case capital subd. was violated because the prosecu tion withheld the special circumstance allegations original from the com so as plaint to avoid the mandatory provision original counsel arraignment. Citing Hamilton v. Alabama U.S. 54-55 [7 *29 114, 116-117, 157], L.Ed.2d 82 S.Ct. he contends also that the procedure violated the federal Constitution because it him deprived of at a counsel critical in stage counsel, maintains, If he proceedings. had defendant he would have been able to consider pleading guilty to the two noncapital murder charges sentence, and thereby avoided his death and that he would have had an earlier opportunity to a defense of lack of investigate intent to kill of because or intoxication disease. We are not persuaded.
Defendant was not capitally when charged arraigned; first therefore (b) subdivision of section 987 did not And apply. suggestion that acted prosecutor so as to leave him without the benefit of counsel is purely speculative.
Furthermore, it appears defendant is claiming the should pleadings have him, conferred a sort of dual status on his to benefit in each case: that but charges, he to directly
as a defendant could have noncapital pleaded was not waivable. defendant to counsel capital right as a potentially status; just a as we have cannot claim the benefits of such dual Defendant stated, not when first charged arraigned. he was capitally never should manipulate pleadings
We emphasize prosecution the record is devoid an to counsel. But deny right to a defendant unwaivable be do we what would evidence such Nor any manipulation. perceive of refuse negoti- If the to to prosecution proposes such gained by any attempt. represented whether not a defendant is ate a it can do so plea bargain counsel. failure appoint that the harm from the resulting
Defendant also claims he was taken severe after his arraignment counsel was because particularly and, counsel, battery against another without pleaded guilty court itself was never used former But the of conviction girlfriend. judgment III.F., Therefore, have (See him in no harm would post.) this case. against pt. if occurred even error had. argument. we find merit in defendant’s
Nor do constitutional Alabama, 52, The is supra, distinguishable: petitioner Hamilton v. U.S. he not arraignment, there claimed was denied counsel at should no claim that his have been waive Defendant makes counsel. permitted waiver error any involuntary, appears. so no constitutional way
C. Assistance Counsel. Ineffective Defendant he was denied effective assistance counsel contends that Sixth Amendment guilt and thus was of a under the deprived right phase I, to the States under article section right United Constitution and a similar record, are to which we limited the California Constitution. (see 3 Cal.4th People defendant’s direct considering appeal Diaz 1171]), otherwise. 557-558 834 P.2d shows Cal.Rptr.2d Defendant contends that counsel was deficient the following particu- lars:
1. time and available to necessary money He failed to invest the defense, an and some prepare adequate specific inadequacies appear of on the face of record.
2. of and videotap- He failed to the voluntariness the audio- challenge ings killings. defendant’s confession to and reenactment of the degree He client was of the first or second guilty 3. told Moreno, his client. thereby murder Edward and abandoned He Patricia Michael or Glen Taylor, 4. failed to interview Harper, Brooks, all to and were sympathetic witnesses who had ties prosecution defendant.
5. His of the entire playing confession was audiotape to his client. extraordinarily damaging
6. He failed ask an instruction on voluntary manslaughter. He 7. failed to raise the insanity. issue of temporary 8. He failed to an present adequate closing argument. contention, He failed object
9. to the prosecutor’s closing argu- ment, that defendant had no expressed remorse over and to a killings, statement that the jury could consider the if there manslaughter charge only was no evidence of murder.
To establish a claim of ineffective assistance under either the
Constitutions,
federal
state
(1)
defendant must show
deficient perfor
mance under an
standard of
objective
(2)
reasonableness
professional
under a test
prejudice
(Strickland
of reasonable
Washington
v.
probability.
(1984)
2052];
We turn first claim of ineffective assistance of counsel for failure to challenge adequately admission of the audiotape videotape. for, We will not address the question deficient performance, as we we discern explain, no reasonable that the result probability would have varied had counsel raised claim that the involuntary. confessions were
We agree with defendant that the playing audiotape videotape gave prosecution Moreover, very strong evidence of guilt. they tended to negate any claim that defendant was under the influence of or affected drugs by his diabetes at the time of the crimes.
Nevertheless, defendant bears the burden of showing a reasonable proba- bility counsel, that but for the asserted errors of the result would been have Ledesma, different. (People v. supra, 217-218.) 43 Cal.3d at pp. We con- clude that there is no reasonable that the probability court would have *31 on of involuntari- grounds evidence taped a motion to suppress
granted The record appeal strongly a on had counsel made such motion. ness author- of his faculties when the possession defendant suggests rational, manner was he him His audiotape videotape. recorded on ities he to showed enough proceed, that he was well assured interrogator IV.D., (See post.) also pt. of confusion or illness. symptoms no record, own of the audio Nor the bare our review including does clue authorities any grudging that the coerced videotape, yield tape II.A., ante), (see or the evidence waiver from defendant obtained pt. Miranda we do not inducement. With to first improper regard point, an by, to when he defendant physical being applied coercion was perceive as involuntary Nor was the rendered made his statements. confession to defendant. quit listening of law because the threatened to police matter remark, action were do so. about a course of they The entitled to Their police follow, to the subsequent was not coercive make legally sufficiently could 1067, 1987) (See (4th U.S. v. Cir. 835 F.2d statement Pelton involuntary. second, 1072-1073.) might no With to the there was inducement regard the police have made statement as a matter of law: involuntary defendant’s (See 20 Cal.3d People McClary, supra, did not offer defendant anything. 228; 229.) claims cf. We reject id. at therefore p. dwell ineffective to the extent on appeal they assistance of counsel direct alleged counsel’s failure to the voluntariness of statements challenge in the heard contained or saw. tapes do claims ineffective of counsel Nor defendant’s other establish assistance record. on the face of the appellate failing try
We cannot that counsel agree performed deficiently Brooks, in failing interview or Glen Harper, Taylor, Patricia Michael defense, funds and time to or diligently spend secure develop confession. The record does not illuminate basis playing audiotaped “ omissions, challenged for the acts or and therefore ‘unless counsel was one, an or explanation asked for and failed to unless there provide simply no rejected.” could be the claim on must be satisfactory explanation,’ appeal (People v. Wilson 3 Cal.4th 838 P.2d Cal.Rptr.2d met; 1212].) Neither premise reject rule was we therefore foregoing the claims. to the failure to raise a reasoning alleged same applies defense of seek a instruc temporary insanity voluntary manslaughter tion; we therefore those claims as well. reject turn argument
We to defendant’s contentions that counsel’s closing amounted to abandonment of his client because that Edward conceded
177 murder, to ineffective for failing Moreno’s death was that counsel was had at that defendant object closing argument to the contention prosecution’s no killings. remorse over the expressed the closing argument
Our review of record does not us that persuade is amounted to an abandonment of defendant. To the extent defendant it is concede arguing attorney for an to necessarily incompetence murder, her guilt (1980) client’s is (People law otherwise. v. Jackson 264, 603, 149].) 28 Cal.3d 292-293 618 P.2d record does Cal.Rptr. [168 not show that to ignored part counsel wish on defendant’s any express present (Cf. People an active defense v. regard with count. Burton 843, 184, (1989) 1270].) 48 Cal.3d P.2d 856-857 771 To Cal.Rptr. [258 choice, extent defendant is it an we arguing was tactical dis- incompetent It agree. was not seeking unreasonable to seek to avoid the death penalty by a conviction on one count of second murder and one degree count involuntary manslaughter theory, when the plausible prosecution’s evidence put grave defendant at risk of degree two first murder convictions. before, As we have said candor may be most effective tool available 1027, to counsel. (People (1992) v. Mitcham 1 Cal.4th 1060-1061 [5 Cal.Rptr .2d 230 P.2d conceded that whoever shot [824 1277] one [counsel particular kill]; victim had the intent to People Wright (1990) v. 52 Cal.3d 367, 731, 221]; Jackson, 415 802 P.2d Cal.Rptr. People supra, [276 28 Cal.3d at 292-293.) pp. we
Nor do conclude as general closing argument matter ineffective. It bears reemphasizing against that the evidence defendant was highly incriminating. Counsel attempted length convince the at jury that least the killing of Ora Mae Pope was an accident. He labored to persuade that Edward Moreno’s murder stemmed from a rash impulse rather than a calculated decision. Counsel “attempted] make best a bad situa- tion,” given his very limited options. (People (1992) v. McPeters 2 Cal.4th 1148, 146]; 1187 832 Cal.Rptr.2d People [9 P.2d see also v. Thomas Cal.4th 531-532 1011].) P.2d Cal.Rptr.2d
Finally, we treat defendant’s ninth claim—that counsel was ineffective for object failing to certain aspects prosecutor’s closing argument— below. immediately As will we are appear, unpersuaded that prejudice could error; therefore, have resulted from any counsel was not legally ineffective. D. Claims Prosecutorial Misconduct.
Defendant contends that the prosecutor twice committed miscon First, duct at closing argument. argues defendant that it was improper prosecutor to Second, assert that no remorse was shown. defendant main tains it was misconduct to imply to the that a conviction of involuntary *33 if it could not only possible Ora Mae death was
manslaughter Pope’s verdict degree return a for second murder. because, as on the merits
We are not to address such contentions required object waived: did not defendant the issue has been counsel acknowledges, have and it that an admonition would to the remarks prosecutor’s appears 1, (People (1980) 27 Cal.3d 27 cured harm. v. Green any potential [164 1, Nevertheless, 468].) we will do so 609 P.2d Cal.Rptr. consti assign claim that the failure to misconduct to defendant’s response (1991) 53 Cal.3d (People of v. Wharton tuted ineffective assistance counsel. 522, 631, 290].) 567 809 P.2d Cal.Rptr. [280 a a that theory
It will recalled that of the defense was mainstay be defendant Mae The reminded Pope by prosecutor killed Ora accident. contention, The rejection. its urged prosecutor defendant’s accident, suggestion evidence from of an argued pointed away any In doing, words as and seen on the so including defendant’s own heard tapes. asked, Has the defendant expressed “How about remorse? prosecutor he kills Pope remorse for this accident? What does he do after Mrs. is an The defendant’s behavior says prosecutor interpreted accident?” then “And what are his returning killings. on to Patricia after the Harper’s house it, God, what have last words to as he house? Is Harper ‘My Pat leaves the were, I’m I done? What am I to do?’ last words . . . ‘Now going No. His going to get Byron, too.’ [1] There wasn’t any remorse. . . .” Defendant were constitutionally contends that the words prosecutor’s on his at trial. v. impermissible testify (Griffin comment failure to California 609, 106, 110, (1965) 1229].) 380 S.Ct. Not so. We U.S. 615 85 [14L.Ed.2d review the likelihood comment to determine whether there is reasonable that the defend- jury would be misled about the inference to be drawn from 564, 629, (1992) ant’s silence. v. Clair 2 663 (People Cal.4th Cal.Rptr.2d [7 remarks, 705].) P.2d viewed 828 No such conclusion is possible. context, cannot be seen as other than a fair comment the state of (1992) 2 (People Mincey evidence that the purview falls outside v. Griffin 388]). If shooting Cal.4th defendant’s Cal.Rptr.2d 827 P.2d [6 accident, Mae of Ora was an wondered why, prosecutor then Pope did rhetorically, defendant behave as the evidence he did after the suggested event?
The issue is People similar to that Breaux very presented too, 585], Cal.4th 281 821 P.2d There albeit at the Cal.Rptr.2d remorse, the prosecutor commented on phase, saying the defendant’s lack of (Id. 312.) he had not expressed such at We any p. sentiment after he killed. held comment “was a reference to prosecutor’s simply defendant’s Breaux, course, (Id. 313.) callous behavior after the In killing.” p. character; comment was here it prosecutor’s addressed was addressed differ- homicide defendant committed. But the type note, too, ence insignificant. is We that the jury was instructed prophylacti- cally consider defendant’s failure testify.
The also the prosecutor told that if failed to the jury prove murder, elements of then it could still convict defendant of the lesser included crime of we to involuntary manslaughter. only get “But... that if there is no evidence or point proof degree no of first or second murder. If is, there then it’s crime.” greater comment, and similar comments the prosecutor immediately made
after, were incorrect. if the did Obviously, prosecution provide proof beyond murder, a reasonable doubt defendant had jury committed court, (§ 1097.) to him required acquit thereof. But after informing that “we come jury to that part you trial where are instructed on the applicable law” and that “You must and follow accept the rules of law as I state them to you,” instructed if jury it was not beyond satisfied murder, reasonable doubt that defendant had committed it then turn could to the lesser included offense of involuntary manslaughter to determine whether the evidence sufficed to establish his of that crime guilt beyond a (See 1183, reasonable People doubt. v. (1992) Johnson 3 Cal.4th 1236-1237 702, Cal.Rptr.2d instructions, 842 1].) [14 P.2d The court’s not the prosecu- determinative, tion’s argument, are for “We presume jurors treat the court’s instructions as a statement law a and the by judge, prosecutor’s as comments words spoken by an advocate in an to attempt persuade.” Clair, (People 663, supra, v. 2 Cal.4th at p. 8.) fn. Given the instructions here, provided we (id. discern no reasonable 663) likelihood at p. that the prosecutor’s statements would have misled the jury; therefore defendant fails to demonstrate any prejudice arising from the failure to object.
E. Claims Carlos and Another Intent-related Error.
Defendant contends the jury was not properly instructed that a circumstance special finding of intent kill requires finding as required v. Superior (1983) 79, Carlos Court 35 131 Cal.3d 672 Cal.Rptr. [197 P.2d (Carlos). We reject the 862] claim. Defendant admitted in the video taped interview that he was solely responsible for the victims’ injuries. “As we held People [1104,] v. [(1987)] Anderson 43 Cal.3d 1147 [240 585, 1306], Cal.Rptr. 742 P.2d ‘The court must instruct on intent kill as an element . . . special circumstance when there is evidence from which
180
defendant was an aider and abetter
could find
that the
jury
[citation]
Here,
defendant
all the evidence showed that
rather than the actual killer.’
;
evidence that he was an
killed
. .
there was no
. . . actually
victims].
[his
err in
to instruct on
failing
the court did not
Accordingly,
aider and abetter.
123,
142-143
(People
Cal.Rptr.
v. Hamilton
46 Cal.3d
[249
intent.”
320,
1348],
omitted.)
(1987)
Defendant also contends that the court confused detriment an instruction that intent was by giving implied specific required stated, “The The court degree. murder of either the first or second prove *35 The murder the intent to kill instruc unlawfully.” crime of requires specific tion, view, what defendant the to believe that encouraged jury thereby kill and calls his reckless act sufficed to establish an intent to agree We do not removed the issue of intent from the consideration. jury’s contention, could only we that the instruction with defendant’s for believe In likely interpre have defendant. our view the only reasonably benefitted Clair, 2 Cal.4th at (People supra, p. tation the could have made of it v. jury the 663) is that murder of either the first or second degree requires specific (See v. People intent to Thus error would have been harmless. any kill. 1, 57, 495, 388].) 2 (1992) Visciotti Cal.4th fn. 26 825 P.2d Cal.Rptr.2d [5 Jury Note-taking. F. Failure to Caution on Role of erred in to caution the failing jury Defendant contends the court in note-taking. attention to the trial and pay overly not become absorbed 724, (See People v. Whitt 36 Cal.3d 746-748 810 Cal.Rptr. [685 [205 1161].) take jurors P.2d We note that the trial court invited the although notes, in mind what it reminded them that simultaneously they “keep should if hear the evidence.” Even this brief com you during presentation of ment did not suffice to warn the should not let their jurors they that defendant, we have distract them from the task of note-taking judging since Whitt that the is such an explained give trial court not required (1992) 1 (People Marquez instruction. v. Cal.4th Cal.Rptr.2d 418].) 822 P.2d Penalty III. Phase Issues Importing A. Improper Argument. Guilt Phase Instructions and that it should not be During guilt jury court instructed the phase him, influenced nor should it be by pity against for defendant or prejudice jury mere or court also instructed swayed by sympathy. sentiment At the just regardless consequences. phase, reach a verdict if they instructions jurors they guilt phase court told the could consider found them applicable. to be Sympathy. Entitlement Jury’s
1. to Consider instructed, via the contends that the jury improperly Defendant instruction, him in that it not consider guilt phase could sympathy Fifth, Sixth, his error that state law and weighing fate—an violated Eighth and Fourteenth Amendment He error was rights. maintains that “as compounded by prosecutor’s during closing argument statement judge indicated to earlier in you original gave instructions you, any you decision make this case must be based on a consci [in] law, entious and both the objective consideration of facts and the and you should your not make or any passions decision based sympathies emotions, prejudices or either for the defendant or him.” against Clair, We do not find it reasonably (People supra, Cal.4th likely 663) that the were jurors misled about the of their discretion scope determining We thus penalty. reject the contention. We have reasoned that a will understand such an instruction does not compassionate foreclose *36 evidence, evaluation of the but warns untethered mitigating only against emotion, bias, (People (1990) or outside pressure. v. 51 Cal.3d Gonzalez 1179, 729, 1159].) 1225 Cal.Rptr. 800 [275 P.2d
The facts are similar to
in
(1988)
those we
Malone
People
confronted
v.
525,
We so in conclude this case. was issue the Sympathy obviously during trial. The court penalty (1) instructed that the it could consider whether jury the offenses were committed while defendant was under the influence of disturbance, extreme mental (2) or emotional whether the defendant’s capac- ity to appreciate the criminality his conduct or to his conduct conform the law’s requirements by mental or defect or impaired by disease intoxication, (3) any other circumstances that extenuate the might crimes’ even gravity, though they not be for the might legal excuses crimes. Indeed, in an abundance of the caution the court instructed in jurors, a
182 (4th 8.84.2 CALJIC No. of former modification appropriate significant circum- the aggravating “If vol.), conclude you bound ed. 1979 a [sic], may impose you circumstance mitigating outweigh stances However, circum- the mitigating if determine that you sentence of death. circumstances, a sentence impose shall you outweigh aggravating stances of parole.” life without the possibility in the state prison of confinement jury signaled a whole (Italics added.) adequately The instructions as in “may” use of buttressed sympathy, signal it could consider em- further device that above—a immediately instruction quoted modified were to they of the decision the normative nature to the jurors phasized make. Malone, that the sure, jury stated supra, in People prosecutor
To be incorrectly 41); here the (47 prosecutor at p. Cal.3d sympathy could consider isolation, comment, mis in viewed stated the opposite. prosecutor’s may juror held that each endorse it. We have the law and we cannot stated factor, each relevant he or she will to whatever value assign sympathetic (1985) Cal.3d 541 (People v. Brown mitigation. those including 440], nom. on other sub grounds P.2d revd. Cal.Rptr. [220 Califor 837].) But we 107 S.Ct. L.Ed.2d nia v. Brown 479 U.S. the court’s understands jury that we presume have already explained and the judge, prosecution’s statements of the law by instructions to be II.D., ante.) (Pt. More persuade. an advocate’s attempt to be argument effect, for, over, vitiated the comment’s trial itself the nature of stated, to elicit was designed the defense at the penalty phase as we have history. and medical his background for defendant light sympathy whole, urge did not In taken as a argument, fact the prosecutor’s aggravating relevant statutory He reviewed the to disregard sympathy. the crime circumstances of He that the argued factors seriatim. mitigating prior defendant’s relevant as should be be considered aggravation, should *37 extreme mental or emotional He there was no argued criminal activity. disturbance, in aggravation. thereof was a factor but did not the absence say defendant’s He that the absence of convictions prior felony conceded unequiv- the latter was not in mitigation, though were factors age basically the nature of He to ocally ability appreciate so. said that impaired by have been might conduct and conform to the law’s requirements to that the evidence led disagreed the difficulties—though prosecutor mental of extenuation” of And he the “evidence acknowledged such conclusion. any Rath, showing “possibly Dr. evidence the of the crimes gravity presented circumstances,” his prefatory to use although argued, extenuating some “really present.” evidence of that factor is not that expression, (See approach. in There was the nothing inherently improper prosecutor’s 335, (1991) 1 Cal.4th People Bacigalupo Cal.Rptr.2d v. 152-154 [2 Mosk, (conc. J.), Baciga sub nom. P.2d vacated and remanded opn. 559] _ 32].) v. 506 U.S. L.Ed.2d 113 S.Ct. lupo California Moreover, each the referred mitigating prosecutor of the factors to which And the did not when naturally object touched on sympathy. prosecutor rigid are closing argument, you defense counsel stated at “So not you You to count don’t have up situation. don’t have these factors ‘Well, life; the I him I to do But would like to have the that. say, give power me it.’ The you doing law from law from doing prevent does prevents [][] it.” above, did
Given the record we that the proceedings described conclude not mislead the role. We find likelihood that jury about its no reasonable jurors understood could not consider for defendant’s back- they sympathy ground, medical particular his difficulties. Disregard
2. the Consequences. Instruction to A guilt phase instruction also told the reach a verdict just regard less of The consequences. repeated instruction was not at penalty Malone, (See nor phase, should it have People supra, been. 47 Cal.3d 43-44.) pp. Defendant contends that the court’s instruction at penalty phase consider relevant undermined an prior instructions asserted on the duty jury’s of its part to consider action. consequences Clair, We see no supra, reasonable likelihood (People v. Cal .4th 663) that the jury would conclude it should itsof disregard consequences decision. court instructed jury to arguments “consider[] counsel” reaching a penalty verdict. Both reminded the parties jury of stated, gravity of its role. The we prosecutor “Certainly recognize kind of a decision is a very difficult very, decision to render. anybody And I obviously nothing say or make anyone can that decision says any easier for you.” argued, Defendant’s counsel “We are life talking about the or death of a fellow human . . being . .” He reminded the that “each jurors ladies and you, gentlemen, has the life in power gift your hands Moreover, .” . . . the entire focus of the trial was the consequence focus, to defendant of Given his crimes. defendant’s claim fails persuade.
3. Guilt Phase Instructions on Malice Intent. Effect of
Defendant the giving contends of instructions at the guilt phase on malice and intent have led the might it jury to believe could not consider mental disturbance at the penalty phase. This is contention unpersuasive.
184 in mitigation was told at the that it could consider jury penalty phase The found, mental it and moreover was extreme emotional or disturbances any consider, if extenuate might other circumstance that any told to applicable, focus defendant’s med the crimes’ Given the defense’s on gravity. penalty we are reasonable any emotional there is persuaded ical and problems, Clair, 663) jury at that the would (People supra, p. v. Cal.4th likelihood defendant these instructions for the guilt limiting purpose import phase in instruction. suggests light penalty phase Considering Mitigating Evidence. B. Instructions’ Restrictive Effect restricted unconstitutionally Defendant that certain instructions contends evidence. ability the to consider jury’s mitigating Gravity. 1. Extenuation the Crimes’ above, other any the it could consider As described was told jury though extenuate crimes’ even the gravity, circumstance the might excuse for the crimes. Defendant circumstance would not provide legal the restricted the consideration jury’s contends instruction unconstitutionally and character. United aspects background of defendant’s sympathetic otherwise, concluding jurors held that reasonable Supreme States Court has of sympathetic would not understand the instruction to restrict consideration (Boyde v. 494 U.S. 381-382 evidence. background California 316, 329-330, Boyde 1190].) argues L.Ed.2d S.Ct. Defendant [108 because, in other distinguishable among things, prosecutor is on its facts that case that the consider defendant’s character acknowledged jury could 332-333]), in this case the (id. at 385-386 L.Ed.2d whereas pp. pp. We prosecutor disregard already explained told have jury sympathy. in the the other that the comment was context of prosecutor’s insignificant III.A.l., ante.) (See trial as Hence pt. instructions a whole. light we are that the distinction is material: even unpersuaded Clair, (People comment there is no prosecution’s reasonable likelihood 663) Cal.4th that the misconstrued the instruction to supra, jury at p. consideration of for defendant. preclude any sympathy 2. Extreme Mental or Disturbance. Emotional could jury
Defendant contends that an instruction that giving mitigation extreme mental or emotional disturbance court any consider if of misled the that it could not consider such disturbances lesser court, concluded, Defendant notes that the after trial had degree. also referred his motion to any denying absence of extreme disturbance 190.4, verdict (§ (e)). subd. modify
185 For wording. We that the was misled instruction’s disagree jury 754, (1990) we in 52 803-804 People reasons v. Benson Cal.3d gave [276 827, 330], any that the could consider jury 802 P.2d instruction Cal.Rptr. the crimes’ in addition to those that extenuate specified might circumstance (People conclude no likelihood v. leads us to there is reasonable gravity Clair, 663) 2 supra, jury degree Cal.4th at that misunderstood p. disturbance, 3 (See (1992) if it v. Clark People could consider. also any, 41, 554, defend- 561].) regard P.2d With Cal.4th 163 833 Cal.Rptr.2d [10 comment an undue focus ant’s contention that court’s showed posttrial disturbances, extreme no we note that the court also found circumstances whatever that have the crimes’ We believe the might gravity. extenuated that lesser degree court’s comment shows it saw no disturbance of a have might amounted to such an extenuation. Age
3. As Mitigation Aggravation. a Factor defendant been Finally, contends the should have instructed could age be considered and that only mitigation, equivocal prosecu error, tion comments topic making on the buttressed the instructional thereby penalty trial unconstitutionally repeatedly rejected unreliable. We have 1198, similar claims People (1992) (e.g., DeSantis Cal.4th [9 Moreover, Cal.Rptr.2d 1210]) 831 P.2d and decline to alter our views. the prosecutor conceded that be age was factor could considered III.A.1., mitigation. (See ante.) pt.
C. Assistance at the Penalty Counsel Phase. Ineffective Defendant contends that he denied effective assistance of counsel at He is not penalty trial. persuasive. trial,
At the as at the penalty phase guilt defendant bears burden of showing (1) ineffective assistance. He must show deficient performance reasonableness, under an objective (2) standard of professional prejudice under a test (In re Marquez (1992) reasonable Cal.4th probability. 602-603 435].) 822 P.2d As here and in Cal.Rptr.2d explain we will our discussion of the habeas effort corpus counsel’s petition, present Nevertheless, defense was unimpressive. we conclude it did not violate state or federal constitutions.
1. Quality Closing Argument.
Defendant contends that his counsel’s closing argument dis tanced counsel from his client by remarking on as his status appointed
186 counsel, for or the need (2) mention in stress mitigation failed to factors doubt, (3) in and in a reasonable aggravation beyond factors to be proven find but no agree perfunctory, We do that it was general perfunctory. prejudice. “We about the talking are began closing argument by stating,
Counsel his reason, and, I may a human for that become life or death of fellow being continued, “I I you He what would to ladies thought say emotional.” about Brennan United States and I read a from Justice gentlemen quote and Supreme Court. ... [1] He said, ‘The role of the defense lawyer should be, all, client’s auton- to the instrument and defender of the above function as said, right He ‘The and in all of the criminal omy dignity phases process.’ [f] anof the Constitution the services guaranteed by contemplates to counsel attorney devoted solely to interests of his client.’ [1] . . . ‘It’s this kind nowhere is for which the Sixth Amendment makes and provision of service in case of an to appointment this service deemed more honorable than may hire accused an accused too to a even represent poor lawyer, though with an or may charged be a member an hated be unpopular group, So, [|] gentlemen, which is abhorrent.’ ladies and offense particularly Brennan, I’m you those I to tell to recalling proud words of Justice want whatsoever, a lawyer stand before and make no for it both as you apologies man, life and as a for the fellow human being.” plead to be of reference to appears Counsel’s curious his status appointed rhetorical But contrast was limited value. Its is obscure. clear point just mention he was not counsel’s summation of his of his status: appointed but obligated proud jury plead rather was stand before life. made reference to his defendant’s We do not believe counsel his (See People status distance himself from defendant. also v. appointed 794].) (1988) 44 Wade 987-988 750 P.2d Cal.Rptr. Cal.3d [244 If defendant is that the was inade- asserting closing defense’s argument made, we briefly brevity because cannot quate principle agree: (See are not inconsistent. cases: Kinnell eloquence necessarily pre-Strickland 1248, 1252, (D.Kan. 1981) v. State Kan. 509 1254 F.Supp. [seven-minute counsel; closing argument closing did not show incompetence “[t]he develop- . . and his argument. preparation indicates on the of counsel part App. ment of the self-defense Hawaii theory”]; State Gutierrez trial; P.2d minutes on decision to five spend 317] [court reveal was tactical and the did not closing argument record as whole claim, counsel].) defense ineffective assistance of Contrary convictions, did the possi- counsel mention defendant’s lack of prior felony that he was bility mentally mitigation. as factors impaired, age matter what prison Counsel that defendant would die no told *41 He the jury issue is how and when.” told prescribed—“The the penalty jury the lesser that if the in mitigation justified a member decided evidence single law of the would parole, life without imprisonment possibility of the defendant likely sustain the verdict. desire to jury’s punish Anticipating to life defendant was destined dreary spend counsel described the severely, if the defendant forever given behind bars lesser and that would penalty, have the he had contemplate acts committed. sure, in
To be counsel did not must be argue aggravation factors doubt, be a but an would mistaken proven beyond argument reasonable such v. Edwards except regards (People as evidence of crimes unadjudicated 436]), 54 P.2d a factor that Cal.3d 842 819 Cal.Rptr.2d in this case defendant the as regarded contends to be and court itself Moreover, relatively minor. it is evident this point adequately was covered the the it must be by instructions to the was told that jury: jury satisfied that defendant activity beyond committed criminal a reasonable doubt.
We leave aside further any question discussion of because deficiency, of is not prejudice close. The crimes were and therefore the case egregious, in aggravation was The heard strong. mitigating had Dr. Rath’s just evidence and must have it well in We had mind. discern reasonable no probability that had delivered stronger argument counsel a closing (In outcome would have differed. re Marquez, supra, Cal.4th at pp. 602-603.)
2. Failure to Present Additional Mitigating Evidence.
Defendant in contends counsel was ineffective failing present additional mitigating evidence. character claim speculative of this is doctors, illustrated by defendant’s if assertion that “Even testimony isolation, relatives or friends might have been in trivial their cumulative effect have [might] altered the verdict favor.” Because the appellant’s record not does illuminate the reasons for regard counsel’s decisions with evidence, presentation the claim is better raised a for writ petition Wilson, of habeas corpus, as defendant indeed (People supra, did. 936; IV.E., Cal.4th see post.) On pt. appeal direct we it. reject Defendant also maintains that counsel chose the sole defense wit ness, Rath, view, Dr. heedless of risk involved. In Dr. Rath’s elicited testimony extensive that introduced damaging cross-examination evidence of other instances of misconduct included and rebuttal case that rationally,
evidence defendant had committed the crimes without coldly, We discern no in the introduction Dr. remorse. deficient performance above, we tried to portray As have described Dr. Rath testimony. Rath’s life man of a harsh young replete defendant as buffeted vicissitudes with mental and items for challenges—all proper environmental physical, we will under 190.3. On direct appeal consideration section jury’s choice introduce such under question testimony—it proper counsel’s an grim portrait standard of effective counsel objective light defendant the crimes themselves had painted guilt phase. *42 Claims Assistance
3. Other Counsel. of Ineffective of (1) failing to try Defendant was in asserts that counsel ineffective against evidence acts committed unadjudicated exclude the of violent (2) girlfriends; former failing defendant’s former to interview the girlfriends; (3) guilty of to a to set defendant’s failing try plea aside subsequent object to the (4) failing of on one charge battery girlfriends; of violent use of evidence to defendant’s prosecution’s prove prior hearsay record; tactical silent they conduct. These are choices to us on a presented and on are evaluated for writ of habeas corpus, better of way petition Wilson, 936.) at reject (People supra, p. direct we them. v. 3 Cal.4th appeal we should find basis Finally, defendant contends prejudice of if error” because of the ineffective assistance substantial occurred “any dire an We disagree. of adverse outcome at consequences penalty phase. We assistance have held that the standard of review of a of ineffective claim III.C., (see ante) is trials. guilt the same for either the generally pt. Mitcham, 1027, (See 1080.) 1 People supra, also v. Cal.4th Double-charging Multiple-murder Special D. Circumstance.
Defendant sentence reversed because the argues his must be having state alleged twice the circumstance been improperly special We in the not proceeding. convicted of murder same do multiple review a unless there a claim that invidious normally charging decision is 865, (1992) discrimination caused it. Pinholster 1 Cal.4th (People v. 971 [4 765, 571].) 824 such advanced here. P.2d No claim is Cal.Rptr.2d We that one must set agree findings of the circumstance be special 955; 86, (id. (1992) 2 People Hardy aside at Cal.4th 191 p. Cal.Rptr.2d v. [5 781]), reversal 825 P.2d but do not that the error of the agree requires the number of judgment. jury could not have been confused about victims, in urged counting aggravating nor was it a mechanical engage (See People factors. v. 47 357 Cal.Rptr. Cal.3d Hernandez insists, that this 1289].) P.2d in supplemental briefing, Defendant prosecution’s penalty of the because the judgment error reversal requires of that contention: case was weak. do not with the phase agree premise We aggravation case not weak. Acts. Quality Unadjudicated E. Evidence Violent trial, At introduced evidence of defendant’s prosecution unadjudicated did against violent acts former Defendant girlfriends. oppose two numer- introduction of the evidence the trial court. He now maintains on ous grounds his sentence must be reversed as a result of the introduction of the evidence.6
Defendant concedes that he did not introduction oppose Pinholster, His supra, evidence. claim thus is barred. procedurally (People 959.) Cal.4th We on the p. see little the issues point treating claim, ante, III.C.3., merits coun notwithstanding part *43 sel’s failure to ineffec the introduction of the evidence amounted oppose 522, Wharton, (Cf. tive supra, assistance of v. 53 People counsel. Cal.3d 567.) do in We not believe have defendant’s counsel would succeeded acts, from the the substance the even if he have keeping jury of violent could certain suppressed incident hearsay testimony regarding the purportedly 6, the (see of a firearm as under involving discharge ante) fn. inadmissible the Evidence Code. There is no doubt the introduction of evidence of defendant’s conduct showed . . plainly activity “criminal . which involved the use or of attempted use force or violence involved express or which the or implied (§ 190.3.) threat to force use or violence . . . .”
Defendant the also contends that court’s failure to that the instruct jury could not the consider unadjudicated criminal unless it prior activity unanimously found the that had each prosecutor element proved Fifth, aggravating Sixth, offense a reasonable doubt the beyond violated Eighth and Fourteenth Amendments and similar state provi constitutional Gordon, sions. We discern People no such violation. In supra, v. 50 Cal.3d 1223, 1273, law, we determined that neither state “the nor cruel and unusual grounds alleged 6The are: the conduct too “trivial” to be admissible under section 190.3; Fifth, evidence of unadjudicated criminal acts cannot be introduced consistent the with Eighth Sixth and Amendments and the equivalent; latter’s California evidence defendant that girlfriend’s fired a shot a former house was hearsay inadmissible also failed establish doubt; beyond the crime prosecution girlfriend reasonable the give failed to notice that the occasions; testify would gun defendant had threatened her with a prior prosecution impermissibly asked expert defendant’s witness about defend possible various instances of conduct; ant’s violent and the trial of already this offense to a had convicted defendant of murder and the he proper introduction of evidence of which did not receive notice Eighth violated the Amendment. 190 Amendment[, of the due clause process clause of
punishments Eighth or] Gordon, In light Amendment” such an instruction. of required Fourteenth Fifth The Sixth we Amendment due claim. reject process indeed, held also “we have never Amendment contention fails to persuade; instruction—neither, an United States Constitution such requires (People any our has other court decision.” knowledge, appellate reported Benson, 754, 811.) And reject v. 52 Cal.3d “We constitu supra, [state defendant tional at the threshold as not raised: properly perfunctorily claims] (1990) (People v. support.” asserts claim without Marshall argument 269, 945, Nor, 907, 676].) contrary Cal.3d fn. 9 P.2d Cal.Rptr. 50 790 [269 their writing do that the urging, jurors put to defendant’s we require (1991) 1 (People criminal v. Price findings acts. regarding alleged 106, 610].) Cal.Rptr.2d Cal.4th 490 821 P.2d Relitigation F. Facts Prior ViolentAct. of battery
Defendant contends that conviction required First, girlfriends. exclusion of evidence of his of one his former battery defendant the record of the concedes that did not to substitute attempt is thus conviction for the at trial. His claim testimony given procedurally event, Pinholster, In 960.) we (People supra, barred. Cal.4th at p. any times, rejected many have similar and decline reconsider contentions now. v. Frank Cal.3d (People Cal.Rptr. issue 730 [274 1215].)7 P.2d Propriety Psychologist’s Testimony. G. Prosecution Rebuttal *44 Soltz, rebuttal the argues testimony
Defendant that the Dr. it was the prosecution prod was admitted because psychologist, improperly concluded, however, of an We have that the involuntary uct confession. invol provided statement and reenactment were not audiotaped videotaped II.C., (See ante.) The fails for want of a valid untarily. contention thus pt. premise. Taylor v. United States 7We find U.S. unpersuasive argument defendant’s 495 court, Taylor requires 110 a In the L.Ed.2d S.Ct. different result. [109 2143] considering state-litigated burglary might a enhancement burglary what offense of constitute law, particular under a that the facts should not be underlying prior federal held the conviction (Id. 628].)
relitigated. at issue p. p. statutory L.Ed.2d at The scheme here [109 schemes; it wholly ordinary sentencing” “involves different considerations than criminal prior propensity “properly jury the to focus on the defendant’s criminal conduct and allows violence, (People . .” possible aggravating for factors deemed relevant as circumstances . . Danielson, view, supra, Taylor 720.) in our is the distinguishable: v. 3 Cal.4th Thus background past focus there was not on the and certain criminal character whole, convictions, merely prior conduct but on certain the facts viewed as a criminal be high which the court held should not retried because do so would implicitly federal be People (495 628-629].) (See pp. pp. inefficient. U.S. at 601-602 L.Ed.2d at also Johnson, 1183, 1243, supra, 14.) 3 Cal.4th fn. Aggravating H. Evidence Factors. Propriety Regarding Prosecution’s Propensity 1. Violence.
Defendant over his intro objection, contends that prosecution, duced Dr. evidence that was inadmissi through testimony Soltz’s character any statutory ble because it was in nature and did not relate general aggravating factor. Rather,
The record reveals no on that objection ground. prosecution’s witness, Soltz, rebuttal Dr. arrested for stated that defendant had been attempted robbery. Defendant found this because testimony “misleading” alleged crime was never evidence in offered as aggravating prosecution’s words, In other case-in-chief. was to rebuttal testi- objection improper evidence; mony. Defendant moved for mistrial and to strike the both denied, motions were but the court to treat Dr. admonished Soltz’s statement as evidence indeed that defendant had commit attempted crime; rather, the jury could consider in evaluating the statements only quality of the psychologist’s opinion defendant. The court’s ad- regarding monition was adequate.
2. Claim Improper Rebuttal.
Defendant also maintains that Dr. Soltz’s testimony improper rebuttal insofar as it reflected on defendant’s character and his lack of merits, remorse. We treat the first we have contention on the for as ex plained, defendant raised it at trial. witness, Rath,
Defendant’s Dr. testified phase murders defendant, were troubled, out of character. The though was that implication was not as violent as crimes would was entitled suggest. prosecution to try to undermine defendant’s claim of character good with testi- expert *45 Mitcham, mony that the crimes inwere character. v. 1 (People supra, Cal.4th 1027, 1071-1072; People v. Fierro 1 Cal.4th 237 Cal.Rptr.2d 1302].) 821 P.2d
We understand defendant to claim that Dr. by eliciting Soltz’s statement, prosecutor the called unconstitutionally attention to defendant’s failure testify to at trial. (Griffin California, supra, v. 380 U.S. 615 [14 Defendant, however, 106,110].) L.Ed.2d object did any not on to Dr. ground remorse, Soltz’s statement that defendant appeared to show no much less on the ground we of And discern reason to that an no conclude Griffin. objection and subsequent admonition the to the not have jury court would
192 on defendant’s appeal cured harm. Therefore we will not consider any law and under state testimony improper contentions that the was rebuttal 2 (People Mincey, supra, of of v. amounted to a violation due law. process 408, 446.) Cal.4th Medical Results. Regarding
I. Prosecutorial Conduct Test Defendant’s In new direct defendant raises a brief on supplemental appeal, by implying through contention: the misconduct prosecutor that committed for the negative out the trial that defendant’s blood and urine had tested (PCP), after of when fact a lab test discovered presence phencyclidine He drug. trial that urine had not tested that reveals defendant’s been the avoid habeas maintains this court should consider issue to additional he We decline so. Defendant does contend corpus litigation. to do is references. The claim objected any prosecutor’s purported to raised in the trial barred on direct because it was not procedurally appeal Benson, 754, 786, 7.) (People supra, court. Cal.3d fn. Parole. Imprisonment
J. Reduction Death Sentence to Without of Life the circum mitigating Defendant contends that as a matter of law stances therefore reduce his outweigh the we should aggravating, sentence to life the We cannot imprisonment possibility parole. without to Defendant law agree. seemingly permits jury overlooks consider in crimes of which aggravation circumstances 190.3, (§ (a)): degree convicted factor first murders. guilt phase at the two We have already rejected premise prosecution’s penalty III.D., (Pt. ante.) case was Hence we this too. reject weak. must claim Constitutionality Penalty K. Death Law. defendants,
As have other defendant of death many judgment contends must be death law is reversed because the 1978 unconstitutional case, six As we them in another specific grounds summarized grounds. are (i) are that law “fails: which factors distinguish penalty phase to (ii) which are to aggravating ‘non-statutory unspec- exclude mitigating; factors’; (iii) ified of the existence of aggravating findings written require (iv) factors the death aggravating supporting penalty; proof require doubt; (v) each factor aggravating reasonable beyond require factors; (vi) unanimity on the dispositive aggravating require propor- *46 2 Hardy, supra, review the Cal.4th tionality by appellate (People courts.” v. 86, 214.) We have claims made on the basis of those rejected grounds. (Ibid.) Defendant also the is asserts that 1978 death unconstitutional penalty
193 a for failure to the to conclude reasonable doubt require jury beyond (People is the this claim as well. punishment. rejected death We have proper 274, 271, 276]; 2 see 341 6 (1992) Cal.Rptr.2d v. Roberts Cal.4th P.2d [826 least, Clair, 629, 2 People a matter at supra, general also v. Cal.4th 691 [as the and California the death law is valid under federal penalty facially 1978 constitutions].)
In is defendant supplemental briefing, section 190.3 argues _ (1992) in light Stringer unconstitutional of v. Black 503 U.S. [117 367, L.Ed.2d 112 S.Ct. He unconstitution- also contends the was 1130]. the instructed in of reference ally language by section 190.3. He incorporates the brief of remand from the United opening Miguel Angel Bacigalupo States Court’s decision Supreme to vacate and remand our decision previous 5, in California, U.S._[121 that case. (Bacigalupo supra, v. L.Ed.2d 32].) 113 S.Ct.
Section 190.3 sets forth the the in criteria trier fact is to consider case, deciding whether live In death-eligible defendant shall or die. this penalty jury was instructed on all the criteria. But statutorily prescribed trial focused on the three most relevant considerations: circum- crimes, and, of the stances in prior criminal consider- activity, mitigation, character, of background ations of emotional including possibility use, diabetes, arising drug disturbance from hard and a life.
In his letter brief and his by People of the brief on remand in incorporation that, Bacigalupo, v. supra, defendant in contends essence its vagueness, section 190.3 instructions based on that section the Eighth violate Amendment’s guided in in requirement determining discretion sentence case. He capital contends that criteria fail following satisfy Eighth Amendment’s requirements what he terms a capital “rational and reliable crime; sentencing”: the circumstances of the or absence presence prior relevant criminal whether crime activity; committed under circum- disturbance; stances extreme mental or emotional and his at the time age 190.3, of the (See crimes. (a), (b), (d), (i).) factors § 43, We disagree. People In (1992) 4 Hawthorne Cal.4th 79 [14 stated, 118], Cal.Rptr.2d 841 P.2d we (i) with regard factor of section - 190.3, U.S___ “Finally, defendant cites Stringer v. Black 367, 377-383, L.Ed.2d S.Ct. support of 1135-1140] contention that the set age factor forth the standard penalty phase instruc- tions vague, is thereby inviting arbitrary capricious sentencing results violation Eighth Amendment. Reversal on this is to a ground subject harmless error (Id., at analysis. 503 U.S. L.Ed.2d at pp____[117 pp. *47 194 1137,
382-383, be 1140].) age Even the factor to assuming 112 S.Ct. at pp. contended, us find no infirm the record before we as on unconstitutionally 4 (See (1992) Proctor 499 Cal People Rptr.2d also v. Cal.4th [15 prejudice.” 569, 340, 1100]; 4 (1992) v. Cal.4th 594-595 People Tuilaepa [15 842 P.2d 382, 190.3, (a), (b), (i)];& factors [discussing 842 Cal.Rptr.2d § P.2d 1142] 400, P.2d (1992) 4 Cal.4th 842 People Noguera Cal.Rptr.2d 599 [15 v. 1160].) which sentencing
The to criteria to same conclusion the four applies record, On that could prejudice this we do not believe objects. defendant in and the reading have from error on section 190.3 relying resulted any have Neither the nor the instructions could challenged instructions. argument under that section. focused the consideration jury any impermissible crimes, prior three relevant considerations—the circumstances most and, char- background criminal in activity, mitigation, considerations the And as we have acter—were set forth for consideration. starkly jury’s stated, a mitigating the that was already age conceded prosecutor essentially III.A.l., to (See ante.) letter brief factor. Defendant’s pt. supplemental points evidence, no rise to consider- argument giving or instruction possibly in matter. ation an aggravation impermissible contention, contends, in with previous
Defendant also
his
keeping
factors
we
range
aggravating
have
interpreted
statutorily provided
juror
broadly
penalty
as make
death
unconstitu
may consider so
to
in
in
death
discussing
eligibility
tional. He
decisions
argues
essence
wait,
murder
in
discretion
lying
reviewing
jury’s
committed while
have
phase,
consider
statements at the
we
victim-impact
age
190.3, and
failed
of section
therefore
narrowing
construction
adopt
constitutionally
statute
discretion as
is
guide
jury’s
does not
asserts
Georgia (1976)
We at this decisions majority decline time to reconsider the previous (People Cal.3d areas of wait Morales lying 244]) (People 770 P.2d statements v. Pinhol Cal.Rptr. victim-impact ster, 865, 959). supra, 1 Cal.4th And not least prosecutor because (see case was a factor age mitigating pt. conceded this essentially III.A.l., ante), we find contention that the unpersuasive as a given leeway age excessive to consider factor unconstitutionally aggravation. Penalty.
L. to Modify Motion law in denying Defendant that the erred under state asserts court the death application failing independently sentence modify *48 the and verdict findings review evidence to determine whether the jury’s evidence, were the law and the for contrary failing to to state reasons in He the ruling. its also contends asserted error resulted perfunctorily Fifth, Amendments, in violations of the and Fourteenth essence Eighth, it him deprived because of a full consideration of circumstances mitigating and a reliable determination.8 sentencing 190.4,
Under (e), section a defendant sentenced to subdivision death deemed have automatically is sentence modification. applied “In ruling reweigh on the trial must the judge the application, independently evidence of circumstances and determine aggravating mitigating whether, in the the of the evidence judge’s independent judgment, weight the verdict. state on the record supports jury must also judge [Citation.] the reasons for the ruling. (People Mincey, supra, Cal.4th [Citation.]” 408, 477.) 190.4,
The trial court the reviewed mandate of section subdivision (e), and stated that it had court reviewed examined all the evidence. The stated, 190.4, “I (e)] don’t take it as the intent being subdivision [section give the Court the its own individual prerogative exercising viewpoints out, regarding how the case should come but instead that ultimately section me compels to review what the presented and then to determine whether their was a finding mistake. words,
“In I other don’t think I can act as that final of the finder arbitrator of fact in what the necessarily overruling other twelve members of that panel did absent some clear that their showing evaluation was wrong.”
The preceding comments are inter- enigmatic somewhat and difficult to however, pret. More clearly wrong, were the court’s additional comments that “I think the citizens of this state under our some system, absent consideration, overwhelming contrary been have choice or given I I responsibility, say, should of choosing impose. what And for feel, one do absent some or compelling legal difficulty, factual to [szc] overturn that finding.”
We do not know whether the missing material is previous sentence able,” “be obliged,” “be compelled,” “be other agree some But we phrase. with defendant that these making comments court misstated 190.4, applicable legal (e). standard under section subdivision 8The ruling court’s modify generated automatic motion to the death sentence litigation appeals. additional and two parties Because both have us to asked consider action, original ruling effect of appears and it to us proper that to do so is the do not we People post, (See herein discuss the separate appeals. v. Mayfield, p. Cal.Rptr.2d 220 [19 372].) 852 P.2d us, however, that even persuades
The record of the as whole hearing standard, court, instances, it misstated the applicable isolated though *49 prefatory Not did the court’s only nevertheless the proper concept. applied stated, mind, in it it standard but comments indicate that had the appropriate has it does find in “The Court and just made before those quoted, comments as those circumstances special the evidence the truth of concerning in case was that is Mr. this jury, Mayfield to the and submitted murder, at in the first which was least charges of two of one of convicted conclusively,] the evidence that the jury’s and the assessment of is degree, in mitigation in the circumstances aggravation outweigh[] circumstances that their decision that the of the evidence and by weight ... is supported or to the law contrary the death is the verdict is not imposition appropriate concluded, is that the factors The “the Court’s assessment evidence.” court in in mitigation; those outweigh reasonable doubt aggravation beyond evidence, and the to the law or finding contrary was neither jury as verdict of death to automatic motion for modification the jury [sic] Defendant is denied.”
Thus, supra, 2 Mincey, v. (People the law correctly applied court it. 477), at even if did not and p. correctly consistently pronounce Cal.4th it determined that The reviewed the carefully independently court record presented.” was to law the evidence “contrary verdict not penalty 190.4, (§ (e).) There was no state law error. subd. are perfunctorily claims asserted largely
Defendant’s constitutional (People v. Therefore we do not consider them. argument support. without however, Roberts, does, 340-341.) argue his supra, 2 Cal.4th Defendant sentencing unconstitutionally claim that the court’s action rendered his He court did not his assertion on the belief that trial arbitrary. grounds course, have, just an We conduct review of the evidence. independent that we conclude otherwise. explained Proportionality
M. Review. imposed Defendant this court to his sentence to those asks compare Mincey, (People “more cases. We decline to do so. analogous serious” supra, 476.) Defendant also contends death p. Cal.4th of his is because the uncontradicted facts penalty “entirely inappropriate” A a defendant’s case make it claim that a is disproportionate so. (ibid.), is but we conclude there personal culpability cognizable appeal first no such Defendant was convicted of two incongruity. degree was he killed Ora in a Pope murders and evidence that Mae strong there him a calculated and Edward to silence as revenge manner Moreno is to defendant’s grossly witness. Thus the sentence disproportionate {Ibid) personal culpability. Cumulative Errors.
N. Effect of Defendant that the cumulative effect of the argues penalty phase great enough judgment. only errors was reversal require are the properly preserved claims of error we have found meritorious prosecutor’s telling disregard jury’s mistake sympathy, murder, and consideration of a circumstance duplicative special multiple isolated the law in discussing modify misstatements of defendant’s motion *50 that, the verdict. These flaws are to us had they insufficient persuade occurred, there exists a have reasonable that defendant would possibility been sentenced life imprisonment to without of possibility parole. Corpus
IV. The Petition for Writ of Habeas Introduction. A.
While his was Demetrie filed a appeal pending, Mayfield Ladon petition cause, for writ of habeas We issued an order to corpus. show appointed referee, and directed the referee take to evidence and make fact findings of regarding claim petitioner’s of ineffective assistance of counsel the guilt at and trials.9 penalty The referee’s are findings summarized at length below. brief,
In the referee found that counsel failed to fully a defense of investigate petitioner’s phencyclidine or petitioner’s person, if any, named in show which to the time of the offenses with penalty phase? trial counsel should have discovered or discover answer to subpart evidence, existence of to (d) trial counsel have [qjuestion, why “2. 9Our order directed the in the toAs the answer to petitioner police—may (a) (a) that item of evidence? each if petitioner’s post-arrest subpart Were there witnesses or potential trial counsel fail to discover? trial of this [qjuestion is any any, person, [1] did mental state or intent that was an element of counsel, was other of the kind discovered the (a) (e) As to each item of petitioner’s subpart have been affected by insulin-dependent charged, of if any, psychoactive the answer to subpart this referee to consider: S. Donald (b) which he [qjuestion, referred named in or trial counsel fail to introduce that item of evidence? of this [5] statements identity affirmative, (iii) (d) substances, Ames, was charged to establish the existence to What [qjuestion, the answer to did in the interviewed, [5] evidence, to show that petitioner’s mental state—either at that person witnesses for the petitioner’s (c) evidence, “1. What who were (b) answer to As or (a) of this police or at why by any to if subpart each item of not? but did any, if the time of his or have conducted an interview? HJ did trial those were [qjuestion, any, subpart other similar factor? evidence, referred to petitioner’s the offenses or counsel fail (b) prosecution diabetes, involuntary, (ii) of persons? (a) a mitigating evidence, HJ this why if kind referred to in the of this post-arrest any, (b) by trial counsel [qjuestion, [1] should subpart to whom If was available to allegations introduce (c) if [qjuestion, any, [1] factor at the ingestion As to each petitioner’s petitioner’s statements negate (d) answer to (b) why referred of this fail What (i) with did did of to interview witnesses disease or to intoxication or intent reason of lack of guilt aided the defense both have theory might who moreover, investigation; funds for The defense had limited trials.10 and that scanty pretrial preparation that counsel’s referee concluded have might helped who attorney a second failed to to associate try counsel case. the defense try prepare we referee’s report, of the and consideration
After review of the record must be denied. that the petition conclude have counsel would claim is that competent gravamen petitioner’s defense, mental state solely part investigated pursued
further
night
use on
drug
controlled diabetes or
petitioner’s poorly
based on
view,
have
counsel would
In
competent
or both.
killings,
petitioner’s
lacked
actually
petitioner
defense to
try
persuade
used such a
trial,
and,
murder,
at the penalty
degree
the mental state for first
in mitigation.
mental state should be considered
petitioner’s
*51
First, he maintains
that
claims.
raises two other significant
Petitioner
an exhaustive inquiry
would have pursued
trial
counsel
competent
before
to
to
try
persuade
at the time
his
statements
postarrest
his mental state
into
Second, he
given involuntarily.
should be excluded as
they
the court
that
requisite mental
petitioner’s trial counsel fail to discover
defense
person
Mickey, supra,
199 much more contends that counsel would have striven to obtain competent and would have good upbringing evidence of his character and difficult him. presented the same to the to further humanize Applicable Legal B. Standards on Review.
“As we have United following numerous cases explained supra,] States Court’s decision in Strickland v. Supreme Washington[, U.S. 668 L.Ed.2d 104 S.Ct. ‘There are two to a components [80 2052]: claim a defendant counsel’s assistance was so defective as to “First, reversal a require of conviction or death sentence. . . . the defendant must show that counsel’s was deficient.” . . . This performance requires showing that representation objective “counsel’s fell below an standard of reasonableness.” ... In evaluating incompetence, [claim] we accord great deference “A fair tactical decisions of trial counsel. assessment of attorney performance every effort made to requires be eliminate the distorting effects of hindsight, reconstruct the circumstances conduct, of counsel’s challenged and to evaluate the conduct from counsel’s at the time.” perspective The second that the component requires ...[][] defendant show prejudice resulting from counsel’s “It alleged deficiencies. is enough the defendant to show that the errors had some conceivable effect on the outcome of the ... The defendant must proceeding. show HO that, is there a reasonable probability but for unprofessional counsel’s errors, the result the proceeding would have different. A been reasonable is a probability sufficient probability to undermine confidence in the out ’ ” come.” (In re Jackson 3 Cal.4th Cal.Rptr.2d *52 371], P.2d 584, re quoting In 1 Marquez, supra, 602-603.) Cal.4th The defendant must make the showings of performance deficient and resulting prejudice by a preponderance of the (People evidence. 2 Mincey, supra, 449.) not, Cal.4th however, at p. The need defendant show that it is more than not that likely he or she would have a (In obtained better result. re 945, Wilson 3 Cal.4th 956 Cal.Rptr.2d P.2d 1222].)
The when, referee’s findings of fact are entitled to deference we as here, have generally concluded to be the case there is substantial evidence to Jackson, support (In them. re supra, 3 585.) Cal.4th p.at This is so because demeanor, referee can observe the witnesses’ but this court cannot. (Ibid.) On questions nature, of mixed law and fact purely or of a legal however, we reach our conclusions the basis of an review of independent the record and (Ibid.) the law. Both any deficiency counsel’s performance and any prejudice thereby occasioned are mixed questions (Strickland law and fact. v. Washington, supra, 466 U.S. 698 [80 674, 700].) L.Ed.2d Findings. and Our Own
C. Referee’s reference hearing and considering reviewing the referee’s report After we because we deny petition and the original proceedings, trial transcript deficiencies, that, has not shown petitioner conclude whatever trial counsel’s regard guilt We reach this with to both conclusion prejudice. truncated, we need Our discussion is therefore somewhat trials. was no prejudice. when we conclude that there give weight deficiency not Nevertheless, Jackson, 604.) at (In supra, we summarize p. re Cal .4th where we believe that embellishing some the referee’s them length findings, a is required.11 fuller statement record’s contents found, failed to obtain that counsel among things,
The referee other records, of petitioner’s records from the time including various medical level of blood-sugar have elevated 387. arrest that would revealed an a psychiatrist endocrinologist, toxicologist, did not consult an Counsel on mental state. the effect of diabetes or intoxicants regarding reflects, an could have endocrinologist As the referee found and the record may experience that when blood exceeds a diabetic sugar testified headaches, vision, and confused dehydration, blurred impaired reasoning, in a be normal—a factor defense might clumsier than thinking, possible reference hearing, But the who testified at the endocrinologist accident. petition- individual with Young, although Dr. Clinton also testified that an well, level feel he plan, premeditate, er’s could still blood-sugar might intent not have blood-sugar and form the to kill. Such a level would caused to do not otherwise have done. petitioner anything would may A could testified that a chronic PCP user store the toxicologist have causing tissue it later fatty may discharge, psychotic substance can reaction. Diabetes enhance this effect.
A could from mental petitioner have testified suffered psychiatrist have Miranda might disorders that affected voluntariness of petitioner’s *53 waivers—indeed, the by petitioner’s retained counsel psychiatrist appellate opined involuntary. that waiver was petitioner’s
The defense did not of friends and relatives. petitioner’s interview some could have told the that he saw Tommy Wydrmyr petitioner defense possibly briefing extremely much of report long disputes 11Petitioner’s on referee’s is it. Our review, however, quibbles many petitioner’s exceptions us that are own satisfies are collectively generate only glancing petitioner’s exceptions signifi a blow. Where more cant, individually. we discuss them half PCP at and a before the p.m. February day use about chose at time shootings. Wydrmyr But cross-examination suggested not in the There evidence of trial to come forward to aid defense. was thus he that would not have been a witness. Byron Pope particularly cooperative could have told the defense he smelled on breath the petitioner’s alcohol of the but also could have testified that demon- night shootings, petitioner PCP, lack sign being stated no under the influence such as of coordi- nation. his Pope agitated could also have testified that mother could become drunk, irritable when her the air waving striking hands or out.
Patricia was interviewed Harper investigator, appar- defense but he failed to ently learn from her that drank and smoked petitioner alcohol evidence, however, the night PCP There was she was killings. after reluctant to reveal killings regarding drug information petitioner’s use.
Counsel’s contact with his client own was counsel testified superficial; significant that his only interview with petitioner was at courthouse the morning of trial. retested, alcohol, blood,
Counsel never
for PCP or
sample
petitioner’s
commission,
shortly
drawn
after the crimes’
which had tested
for
negative
PCP. He made no effort to have a urine
or
tested for PCP
sample
alcohol
wrongly stipulated the urine
had
sample
tested
negative
PCP. Counsel
had difficulty
the San Bernardino
persuading
trial
County
court system
record,
advance funds for
investigator
his
and apparently, as we read the
did
$1,000
not believe he could obtain more than the
granted.
Counsel failed
try
to associate the assistant counsel to which petitioner
was possibly entitled under
Superior
Keenan v.
Court
D. Counsel at the Trial. Effectiveness The referee court itself the correctly decided that this reserved for deter Nevertheless, in whether counsel ineffective. answer mination to our 3(c) (see ante)—whether fn. counsel have discovered the question should referee identities of and/or called various witnesses—the stated potential trial, that, reference to the it is in the best guilt with “While obvious of all worlds, Ames should investigation Mr. have undertaken lot of which he do, omitted to it is hard defense to fault his conclusion that the best on guilt was based accidental Ora followed phase Pope, shooting [the] an shooting intentional John If had succeeded Moreno. [Edward] have the first as never been establishing shooting manslaughter, there would the guilt phase, penalty phase. Focusing for now just *55 only makes endocrinologists toxicologists all the discussion about and sense if it to advantageous suppress petitioner’s one concludes would have been fact, statements.[12] case, the it it But as Mr. Ames saw before the looking the is clear that it would have been to helpful petitioner suppress not to The could have that inflicted easily proven petitioner statements. prosecution the the fatal shots. It could have and at the trial proven, prosecution easily cousin, did the that through testimony of Michael prove Taylor, petitioner’s kill on of the day shootings, going stated was to Ora petitioner Pope. The that of the prosecution through day also Glen- Brooks proved that he kill shooting, petitioner going told Brooks was to Ora best Pope. evidence, evidence, only being and the Mr. Ames of shooting had the first accidental, made, Ames as Mr. petitioner’s statements to police, to had pointed any out after before he jury, shortly shooting long ante, As opportunity guilt contact counsel. . . . p. [See 166.] [f] . . this phase . court has a difficult time that such concluding exploration [of a mental state led who would have of value. anything Anyone defense] listens to the audio or how composed views video is struck with tape tape petitioner rational seems to all the considering testimony be. Even produced by petitioner’s at the reference it is difficult experts hearing, very for this court to conclude that have confes any judge suppressed would [i.e., sions or that any jury would have a diminished accepted capacity defense.” lack-of-intent] statements,
Petitioner objects
they
to these
that
maintaining
amount to
recommendations
exceed
our
scope
of
reference order.
Whatever the technical
of
(see
(1988)
merits
claim
In re
petitioner’s
Cordero
161, 170,
342,
46 Cal.3d
fn.
1370]),
756 P.2d
our
Cal.Rptr.
own
[249
review of the record of the trial and the
hearing confirms the
evidentiary
observations,
sagacity
referee’s
and we
reach
independently
the same
conclusions. In particular, however deficient
may
counsel
have been
failing to more fully
a defense
lack
kill
explore
of intent to
lack of
ability
silent,
to waive his right to remain
we
with the referee that
agree
it is
very difficult to believe
such a
defense would have been of use to
(Cf.
petitioner.
491,
re
In
Sixto
mental state It defense. is that a be tactical decision must an informed defenses, decision—a decision based inadequate investigation on an possible meritorious time, based on facts known to deserving counsel at the is not one deference as tactical Ledesma, (See choice. People however, v. supra, 215.) 43 Cal.3d say, That is every possible investigated, defense must be evidently no matter how fruitless the results would be. “[S]trategic choices made after complete investigation less than are reasonable precisely to the professional extent reasonable judgments support the limitations on investigation.” (Strickland Washington, supra, 466 U.S. L.Ed.2d 690-691 695].) *56 204 of the voluntariness arises two contexts: of mental state
The question reenactment, of a lack-of- and the presentation confession petitioner’s turn to the confes- at trial. We of mental impairment intent defense because issue first. sion statements, petitioner have suppressed
The law is clear that to that he in fact so impaired that his was reasoning have had to show would Cameron, (In Cal.2d supra, re 68 rational choice. of free or incapable was 639, 498; 648 (1988) [251 v. People Cal.App.3d see Hernandez 393]; U.S. 166-167 Connelly see also Colorado Cal.Rptr. 483-484, necessary activity police 107 S.Ct. L.Ed.2d 515] [coercive confes obtaining violation of federal constitutional finding predicate state matter of sion; mind is a defendant’s state of of question otherwise law].) As we showing. a could have made such
We do not believe petitioner H.A., ante, of beginning at the interrogator told his petitioner described part with him. talking task of he felt to the up session that audiotaped Moreover, findings the referee’s review of the confirms tape our own state defense. effect of a mental very dubious regarding interview, immediately his comments including Throughout lengthy waiver, times if At slowly. somewhat spoke clearly following petitioner animated, defiant conversation or jocular, indignant he engaged prideful, his speech, a relaxed quality detectives. interviewing Despite with the lucid, his which time as he does on the videotape, sounds much petitioner issue, he not contend does petitioner was not an evidently medication ever did petitioner Nor videotaping. of insulin before deprived was well, medication. ask them for interviewers that he did not feel or inform his discern, mentally defendant was not as the referee could or we can As far hearing And the reference when he made his statement. audiotaped impaired the refer- With exception, scant evidence to one contrary. produced varying surmise—with only ence of could hearing petitioner’s panel experts under the influence of confidence—that have been degrees petitioner may for judgment his condition so as to his impair capacity diabetic drugs when he to be agreed taped. “I not that do opined Dr. Rita exception, Hargrave, psychiatrist, to remain right waiver voluntary [petitioner’s]
believe that that was a was petitioner’s speech silent.” She based that conclusion on an opinion “the and on videotape, more slurred and slow on the than on the audiotape PCP, the nature of his him down off the coming plus combined effect of But Har- Dr. metabolic imbalance from his diabetes out of control.” being cross-examination, she could was on grave effectively impeached agreeing be sure that either diabetes or himself out petitioner’s petitioner court, We are remark that unpersuaded hearing petitioner’s control. confession, talking interrogator audiotaped felt to his before capable listening testimony demeanor tape, hearing expert petitioner’s *57 voluntariness, There- the the evidence. subject of would have suppressed fore, other avenues to we do not that counsel’s failure to perceive pursue the statements was There is no reasonable probability suppress prejudicial. that the proceeding’s outcome would have differed.13
We turn next of mental at the time he issue state petitioner’s .the had committed the crimes. defendant “Normally, merely showing the offense, showing consumed of any alcohol or used before the without drugs him, their effect on is enough not to warrant an instruction on diminished (People Pensinger (1991) Cal.3d capacity. [Citations.]” 640, 805 P.2d Cal.Rptr. [considering capacity diminished 899] law].) defense when the same was available under California We see no reason for a a different rule for defense of lack of The guilt phase intent. evidence showed considerable evidence of the of planning premeditation Pope’s Ora Mae no killing, and witness at trial testified that was petitioner under the influence of either his or an At the intoxicating diabetes substance. stated, reference hearing, as we have none of already petitioner’s expert food, witnesses could state unequivocally that his consumption drugs alcohol had altered his mental state in a predictable definite or manner. Therefore, we with agree the referee it is difficult conclude that very a would have a defense accepted of lack of intent by reason of disease too, or intoxication. On this point, has failed to show petitioner prejudice. other Two items require discussion.
First, defense, the most significant evidence favor of an accident confession, other than petitioner’s own taped would have been if the shotgun kill used to Ora Mae and Edward a Pope Moreno had hair or was trigger otherwise defective. Petitioner urges that the reference established hearing abnormal; that the shotgun was therefore trial counsel ineffective for failing retain a criminalist to examine the We a gun. are of different view.
Petitioner’s expert conceded on cross-examination that there was nothing unusually Indeed, dangerous the shotgun. about our reading of expert’s testimony if convinces us that testimonal evidence similar to his had been introduced at trial it might have strengthened the case for premeditation deliberation. The criminalist testified that when “pulled hammer to conclusion, light 13In I, of this we need adoption not decide whether of article section (d) subdivision California permits Constitution the introduction the audiotaped statements. normal, heavy pull even shotgun slightly
full had cocked position,” fired,” if it been if “as gun positioned but that were ha[d] seven pounds, found, there the referee pounds. it have a of two As very light pull would fashion, the latter evidence handled or fired petitioner weapon was no more intentional might purposeful, if he done “it have shown had so behavior, (Italics referee.) by less.
Second, briefing raises claim petitioner supplemental not to jeopardize to him was tainted a desire counsel’s loyalty funding by seeking proper with the San Bernardino courts standing this at oral argument. defense. He contention petitioner’s emphasized *58 “ sure, conflict of To is an actual by when ‘counsel burdened be interest, 2 (People Hardy, supra, Cal.4th is v. prejudice presumed ....’” 668, 86, 135, 692 Washington, supra, v. 466 U.S. [80 Strickland quoting .) divided virtue of by L.Ed.2d A claim that counsel’s loyalty 696] (People Hardy, a v. is claim of such conflict. conflicting his own interests a “ arises, however, 2 135-136.) at ‘. . . supra, pp. presumption Cal.4th [T]he if con the defendant that counsel “only ‘actively represented demonstrates affected adversely and ‘an conflict of interest flicting interests’ that actual ” ’ ” (Id. v. at Strickland Wash p. quoting his lawyer’s performance.’ 674, 696].) supra, 466 U.S. L.Ed.2d ington, to conclude there is no merit to Our of the record leads us reading counsel, claim, S. for there divided Petitioner’s petitioner’s loyalty. was no Ames, to funds for county testified that it was difficult obtain Donald it effort investigation defense at the time. For considerable example, required county retain a at judge neurologist for Ames to a funds to persuade grant to Ames that effort succeeded. conceded expense, though eventually a “jacket,” among judges 1983 counsel could bad or acquire reputation, he for of funds fees. But asking large expert attorney for amounts for stated, “I I don’t think made a effort not to attain a with jacket that conscious judges. If I did, so be it.[14] [1] But I don’t think that either I did did further, Questioned jacket.” not do a any thing getting avoid particular Ames he tried for for exces getting reputation asking conceded to avoid a fees, representa sive but would let that interfere with his attorney goal a client. tion of
On this record we not met his burden of petitioner conclude has the evidence ineffective assistance of counsel a proving by preponderance Mincey, 449), he (People supra, p. Cal.4th at because has not shown it, resigned got 14We read this sentence to mean that if he not that if “jacket” a he was a avoid “jacket,” petitioner. made conscious effort to was too bad adversely affected his lawyer’s perfor- that standard an actual conflict mance. Penalty
E. at the Trial. Counsel Effectiveness of trial is more penalty issue of ineffective assistance of counsel at difficult for us. life client imprisonment Counsel’s efforts secure for his during referee was moved to appear perfunctory, say hearing, guilt “On the phase, only thing it sure sounds like Ames to talk picked about.... On the like Ames didn’t phase, it sounds do much of penalty [f] anything. ... [1] Whether the penalty phase should have turned out differ- ent, difference, it whether have that is a would made whole different fairness, just But from the question. decency established one point stake, think tends to that when it being comes down to life somebody’s witnesses, attorneys should at least call some make some effort.” We turn now will answer referee’s As we question. appear, are satisfied that as a matter of constitutional law the claim of ineffective assistance of counsel at the phase must fail for want of prejudice.
We are aided the by superb presentation both made at the reference parties essence, In hearing. the case was retried to the referee after an exhaustive of discovery all evidence possible that favored evidence petitioner, including relating background (§ his 190.3). and character above, locate, As mentioned petitioner maintains counsel failed to inter- view and summon friends and relatives on his argues behalf. Petitioner that so, had counsel done could witnesses have favorable evidence presented character—evidence, instance, of his background and of acts of kindness he had performed and of difficulties his and poverty diabetes created for him adolescence.
We are unpersuaded that prejudice could have Respondent’s resulted. treatment of the parade of friends and relatives who testified the reference hearing trial, showed the risks of having them testify at for on cross- examination the witnesses were asked questions devastating about basis for their opinion that petitioner’s character good. Those if questions, trial, asked at would have revealed to the jury specific instances petition- of acts, er’s uncharged violent criminal one of which a was of disturbing sexual nature and might have well been heard jury even though petitioner awas minor when the incident purportedly (People Raley, occurred. supra, 906-909.) Cal.4th Counsel’s learned investigator about the sexual incident in June while investigating case before trial and told would prosecution There reason to believe the
counsel about it. is no Thus, not was the referee’s conclusion only overlooked it. have necessarily as well as provided negative positive some the witnesses would have that of correct, also that cross-examina- but the record establishes information defense, could severe damage tion of the witnesses have done was aware of that risk.15 and counsel that if the had heard more evidence
Nor are we persuaded state, is a mental there use or diabetes on his petitioner’s drug effects of As we have that the outcome would have differed. reasonable probability his state was only could surmise that mental experts explained, petitioner’s murders; to the strong there was evidence abnormal when committed the contrary.16 mentioned, Hargrave, Dr. Rita petitioner
As called already psychiatrist, at the and character background evaluation of give professional life, Hargrave In Dr. provided reference hearing. describing petitioner’s in his trial did not elicit nuance counsel layers complexity Dr. Rath. there was deficient counsel’s nothing examination of But our evidence via Dr. Rath’s presentation penalty phase testimony—in Dr. evidence background view Rath set forth adequately petitioner’s character. that, are if had under
We unable to conclude trial counsel counsel have for the taken exhaustive laborious efforts his appellate have reference there is a reasonable the result would hearing, probability members as proffered produce family 15Counsel also he had a tactical reason not to *60 might cynically parallel a between the victims’ jury indignantly witnesses: the families, draw crimes, family, jurors’ by petitioner’s petitioner’s the and own devastated in minds testified, put parade of evidently by which was untouched murder. Counsel “I didn’t on a family phase, my putting members on opinion family members at the because it is that life,’ say speak, jury. jurors to so to an affront Because had ‘Save his is kind of to the I have me, say to that say family Nobody to ‘What about the of the victims? is here how about the family. gone.’ jurors, up cudgel That victim is And the sometimes take the then for they, kept happen. professional victims’ families. And I didn’t want that to If I could have it stand, might get jury.” (Paragraphing Dr. I a the putting thought Rath on the I fair shake from omitted.) isolation, actions explanation, might While this taken in lead to a contention that counsel’s deficient, investigation were not we note that did not kind of that could counsel undertake the (See ante.) have led to tactical fn. Therefore we draw no conclusion an informed decision. regard performance, point question with of confine our this the quality to discussion on to prejudice. of moreover, note, Haight 16We the respondent’s attorney expert, Raymond comment of office, San County Attorney’s County venirepersons Bernardino District San Bernardino aghast they illicit-drug usage are when first asked whether can as a factor consider mitigation. only initially Haight experience percent venirepersons testified in his are of prepared to do so. of evidently been different. The had the jury accepted prosecution’s theory the killed Ora Mae petitioner avenge punishment case: to Pope of and killed to a Popes’ theft automobile Edward Moreno silence a petitioner witness. There evidence that Ms. off to shed dragged Pope was to die and hosed the off the thus must pavement. victims’ blood Petitioner stood, cold, have in the jury’s eyes, blameworthy killings for two calculated lain in —and the was aware that petitioner, having possibility and with knife kill Byron wait at to ready, Pope. preparing evidence of the counsel for circumstances the crimes was As compelling. trial, petitioner stated at the reference with hearing regard guilt “Watching jurors’ faces when reenact- they were shown videotaped ment, where Mr. into Mayfield bodies out of the house and them pulled put a woodshed and stacked them like had seen cordwood—I that videotape number of and didn’t have to look it as to what the except jury’s [times] reaction to it was. . And my jurors’ . . view the reaction was not [f] favorable view my client.” is fair say
It that before ever he had much petitioner lawyer, saw a done defense, damage to his both with regard and to The fact that guilt penalty. his lawyer’s efforts at the penalty were somewhat phase perfunctory disturbs us, but we discern no reasonable probability that evidence of additional character, background, or mental as impairment—subject the first two would have been to potentially devastating cross-examination and the third to the forceful evidence contrary the tapes have affected the provided—would outcome.
Conclusion One multiple-murder special-circumstance is finding vacated. The judg- ment is otherwise affirmed and the entirely for writ of habeas petition corpus is denied.
Lucas, J., J., Panelli, Arabian, J., Baxter, J., C. J., and George, concurred. KENNARD, J., Concurring in the Dissenting. I join majority opinion murder, affirming defendant’s conviction of two counts of first degree upholding jury’s finding multiple-murder special circumstance. *61 But because of trial counsel’s constitutionally representation of inadequate defendant at case, the of I penalty phase this capital do not the join denial majority’s of defendant’s for petition writ of habeas insofar as corpus, petition challenges the adequacy of trial counsel’s at performance the penalty phase.
The record of the thorough evidentiary hearing, a ably by conducted superior referee, court judge as this sitting habeas corpus court’s demon- strates a total failure trial by counsel to and adequately investigate, prepare, case, Incredibly, capital at the this defendant’s case penalty phase.
present and guilt for the a of 40 hours both spent only preparing counsel total legal file contained no notes or the trial. Counsel’s trial phases of penalty research, the at with defendant place and substantive interview took only his penalty trial. With to the courthouse on the of start of morning respect to effort no and he made no counsel virtually investigation, conducted phase, called. whom have through evidence witnesses could mitigating present it comes “when evidentiary referee at the hearing, As the commented dryly stake, call some at should least attorneys life at somebody’s being down so, witnesses, have would make effort.” Had done the jury some counsel testify were family heard from defendant’s members who many prepared heard from would have background, about his character and and crimes, that, defendant’s who could have at the time of explained experts (PCP) signif- and use of have may diabetes insulin-dependent phencyclidine evidence failure to this present affected his behavior. Counsel’s icantly death, the death in the of judgment requiring undermines confidence be and a new trial conducted. sentence reversed
I. defendant, 21 years who then February On of was morning friend, old, nearby left the and entered a Harper, house of Patricia residence, and killed Mae and Edward Moreno. Pope where he shot Ora trial, guilt Defendant was with At the charged capital phase murder. defendant’s consisted defense counsel’s entire behalf presentation audio of defendant’s statements to playing tape-recording police were efforts at the making minimal counsel’s closing argument.1 Similarly statement, defense There he made no called one penalty phase. witness, opening only and made a six perfunctory closing argument (taking up pages the trial verdict of death. jury returned a transcript). this
While his case was defendant appeal capital pending, petitioned cause, court for a writ We an order to show corpus. of habeas issued referee, regarding and directed the referee to make appointed findings denied at trial. defendant’s claim that he was effective assistance of counsel At the habeas reference defendant presented substantial corpus hearing, evidence that trial counsel’s investigation, preparation, presentation 1Although I representation throughout inadequate, counsel’s defendant the trial was Nevertheless, agree majority inadequacy guilt with the that the at the I phase. was harmless relating inadequate guilt phase have set forth efforts some facts counsel’s trial, representation throughout demonstrate inadequate counsel’s merely penalty phase, at the to show a case in failure to that this is not which counsel’s mitigating penalty phase was offset of such present evidence at the of trial the introduction In re guilt (See, Cal.Rptr. Fields phase. e.g., evidence at the 51 Cal.3d *62 862].) 800 P.2d were of grossly inadequate. availability of trial penalty phase Despite numerous who at the could have offered family phase members background evidence to defendant’s character mitigating relating well have jury found failed to call even one may persuasive, counsel Here, such Five witness. of these witnesses testified at the reference hearing. is what said. summary, they cousin, Teresa Mayfield, defendant’s testified that defendant was not a children, violent that he care of kind her person, very took and was one significantly helping of them to overcome a and that the speech problem, two murders were of character out for him. sister,
Trida Mayfield, defendant’s also younger testified that crimes were out of character for defendant. She defendant as a kind and described gentle person who had been her protective of as a child. Hawkins, uncles,
Calvin one of defendant’s stated that when he was accident, disabled and in a wheelchair following motorcycle defendant was him, kind provided him and took care him an transportation, of extended of time. period brother,
Cicero Mayfield, defendant’s younger testified that had defendant him helped him by teaching how to avoid drugs and He was gangs. shocked when he learned of defendant’s arrest because the were charges inconsistent with defendant’s character and personality. Hawkins, mother,
Hazel traced defendant’s dia- problems to betes, which he developed at the age nine. She stated had that she wanted to testify at trial to ask the jury to her spare son’s life. witnesses,
In addition these the habeas corpus referee found that Willie uncles, Willingham, one of defendant’s who was deceased at the time of the reference hearing, would have testified to defendant’s disadvantaged child- hood and given his view that defendant could overcome his personal drug-related problems.
The record of the reference further hearing shows the availability of medical evidence relating to defendant’s insulin-dependent diabetic condi- PCP, tion and his ingestion and their effect on his possible behavior at the time counsel, however, crimes. Defendant’s trial never considered this mitigating evidence and consequently never A heard it. summary testimony these experts follows.
212 a diabetic with endocrinologist, an stated that a Young,
Dr. Clinton vision, reason- impaired blurred may experience over level blood-sugar headaches, (defend- and that a level of blood-sugar ing, dehydration and nau- arrest) fatigue may additionally produce his following level ant’s as his such defendant’s health problems, mentioned also Young sea. Dr. shots, numerous and his to take his insulin his refusal eat properly, refusal to diabetes, including hospitalization a controlled poorly for hospitalizations the killings. month before one com- Smith, are that PCP “flashbacks” testified toxicologist, David a
Dr. defendant, is who, He that PCP diabetic. explained like is in a person mon later, a causing psychotic discharged fatty in the tissues body’s stored when a reaction, occurs and urine that the acidification of blood and that Dr. Smith discharge. of this increase the amount may loses control diabetic when he defendant from the ratio of acidosis obtained concluded that both acidifica- murders), and an he hours after committed (just was arrested later, high were sufficiently him four days obtained from reading tion when tissues fatty released from defendant’s PCP could have been abuse, of PCP In a combination Dr. Smith’s opinion, committed the murders. diabetes, abuse, have may impaired and depression out-of-control alcohol crimes. at the time of the control reasoning process impulse defendant’s defend- regarding related information Rita Hargrave, psychiatrist, Dr. disorders, view, with his together In her defendant’s mental childhood. ant’s PCP, time of the crimes. influenced his actions at the and use of diabetes Hunt, character were out of killings Dr. testified Guy neurologist, He added impairment. were the result of definite cerebral for defendant and (CAT) scan tomography axial that the results of negative computerized his change defendant did not he had performed and electroencephalogram opinion. defendant’s back- relating evidence mitigating strength that, had it been medical was such and character and his condition
ground gravity extenuate the well have found it to jury may presented, however, counsel did not trial availability, crimes. its Despite trial, called entire counsel at the During offer the evidence penalty phase. one witness on defendant’s behalf. only Rath, who a clinical psychologist,
That sole defense witness was Dr. Craig counsel, Dr. On defense testified at the direct examination penalty phase. were “out of character” that the murders opinion Rath two expressed diabetes, included which history He described defendant’s long defendant. *64 remorse and Rath also to defendant’s hospitalizations. 20 to 30 Dr. testified Hunt, a Guy a had counsel Dr. by to that been defense report prepared that From that Dr. Rath Dr. Hunt’s conclusion neurologist. report, quoted and “the which is out of character can be crime of accused is [defendant] on the definite due alcohol explained only impairment basis of cerebral and drug abuse.” Rath,
In a number its cross-examination Dr. the reviewed of prosecution administered, many tests Dr. Rath had that psychological highlighting specific position. defendant’s on the tests the defense contradicted responses an Dr. Rath two acknowledged report, that tests referred Dr. Hunt’s scan, did show the any irregularities and a CAT not electroencephalogram brain. Rath,
After conducting its redirect examination Dr. the defense rested. Soltz, then Dr. prosecution called as a rebuttal witness. psychologist, Dr. Soltz was of the opinion defendant’s mental condition was not abnormal, remorse, that he did that he kill when and intended to express he committed the crimes. shown, I just
As have is a the strong there substantial between disparity evidence mitigating the at the presented by appellate counsel reference and the hearing attorney evidence that the defendant’s trial actually presented to penalty capital of defendant’s trial. phase counsel, this Although mitigating evidence was to trial called available one only witness at the testimony and that witness’s penalty phase, nullified virtually by and its rebuttal prosecution’s cross-examination discuss, I witness. shall As mitigating trial counsel’s failure to present evidence in question defendant effec- deprived of his constitutional right tive at the representation phase of capital trial.
II. Constitutions, Under both federal state a criminal defendant is counsel, is, entitled to the effective assistance of to counsel whose performance meets an or exceeds objective standard of under reasonableness (Strickland prevailing norms. professional Washington (1984) v. 466 U.S. 668, 693-694, 674, 2052]; 688 L.Ed.2d 104 S.Ct. v. People Mincey [80 408, (1992) 822, 2 Cal.4th 388].) 827 P.2d Effective Cal.Rptr.2d [6 representation requires that counsel adequately investigate, prepare, (In Fields, present 1069; the defense. re supra, People 51 Cal.3d at v. p. 171, (1987) Ledesma 43 Cal.3d 839].) It 729 P.2d is Cal.Rptr. [233 cases, particularly important which often capital legally are factually right of the defendant’s constitutional that courts ensure complex, protection (Keenan Court 31 Cal.3d 430-431 Superior a full defense. course, Of full 108].) 640 P.2d Cal.Rptr. presentation focus the attorney defense by competent requires defense counsel trier of fact. efforts on issues to be determined defense *65 trial, a deciding of the matter jury literally At the a is penalty phase capital we of “In role at have jury’s phase, life or death. the the explaining penalty task, as acting the an normative the jury essentially stated that exercises its standards to that it own moral the community’s representative, may apply has and evidence that it ultimate aggravating presented, and mitigating if for the penalty death is responsibility determining appropriate (1989) 47 particular (People offense and offender.” v. Edelbacher Cal.3d 983, accord, 586, 1]; (1988) People P.2d v. Karis 46 Cal.Rptr. 1037 766 [254 612, 659, 1189]; v. People Cal.3d 639 758 P.2d Williams Cal.Rptr. [250 883, 336, 395].) In (1988) 44 P.2d carrying Cal.3d 960 751 Cal.Rptr. [245 offense, task, out but only this must consider not the nature of (1989) Lynaugh and background (Penry also character of the defendant 256, 277-278, 2934]; Skipper U.S. S.Ct. 492 318-319 L.Ed.2d 109 [106 1, 6-7, 1669]), 4 S.Ct. (1986) v. South Carolina L.Ed.2d 106 476 U.S. [90 the crime even and other circumstance that extenuates of any gravity Code, 190.3, (k); (Pen. crime. factor legal it is not excuse for the though § 637, 709 v. Brown P.2d People Cal.Rptr. 40 Cal.3d Here, 440].) at the penalty phase trial counsel’s of defendant representation was woefully inadequate. court, the habeas referee commented his is corpus “[i]t
As report this . that never gave thought . . much apparent [trial counsel] deficiencies in The record of the reference serious phase.” hearing shows defense counsel’s of defense preparation, investigation, presentation at the of defendant’s trial. penalty phase capital interviewed, never only superficially
Defendant’s trial counsel either interviewed, witnesses evidence strong mitigating who could have offered earlier, I trial on defendant’s and character. As set forth background based cousin), (defendant’s Tricia never interviewed Teresa Mayfield counsel uncle). (defendant’s sister), (defendant’s or Calvin Hawkins Mayfield brother, defendant’s Cicero investigator’s Mayfield, defense interview of it With may respect was so brief that be characterized as nonexistent. fairly Hawkins, mother, Hazel interview investigator’s defendant’s defense defendant; never inquired the investigator focused on information adverse to into or character favorable to defendant. aspects background defendant’s occurred at
The one interview trial counsel had with significant defendant on the this case. morning courthouse of the start trial capital had, stated, at the conversations as the referee “very superficial Counsel Hawkins; uncle, mother, with Willie with Hazel courthouse” defendant’s as a referee characterized with Patricia whom the Willingham; Harper, friend of defendant’s witness and who was also a key prosecution a few of to him. Trial counsel sought production only sympathetic He experts, medical did not retain medical appropriate records. such who this case endocrinologist, toxicologist, as an or psychiatrist, provided testimony could have favorable to defense. highly trial of the defense. As Similarly insufficient was counsel’s preparation than established the habeas counsel no more corpus hearing, spent hours in out-of-court on both the and the preparation guilt penalty phases file, removed, this case. His trial from which had capital nothing been *66 contained no notes or research. He never listened to a legal tape-recorded who, above, statement him I Patricia as prepared Harper, explained was a key prosecution witness and also a friend of and sympa- defendant’s found, thetic him. As the referee inadequate.” was “preparation clearly Trial counsel’s presentation of the at the of penalty phase defense case trial was likewise lacking. Trial at trial that the seriously stipulated counsel prosecution’s test urine results of a taken from defendant his sample upon was, did not arrest indicate the The drugs. urine presence any sample however, found, never analyzed, although, as the referee a urine test is Also, considered the most reliable indicator did for PCP. trial counsel not Hunt, call Dr. a Guy as a Hunt neurologist, penalty witness at Dr. phase. had a performed number of neurological tests on defendant and had prepared
a The report. report states Dr. Hunt’s conclusion ‘the crime of which is accused is out character be only and can on the explained [defendant] Thus, basis definite cerebral due to alcohol and impairment drug abuse.” Dr. Hunt could have assisted the defense that defend- persuading ant’s worth as an individual should not be his commission judged solely by murders, were, as capital shocking the murders occurred they because while defendant inwas an abnormal state.
At the habeas reference corpus trial counsel was hearing, unable present a viable excuse for his failure investigate, adequately prepare, present case; the defense his to offer an attempts explanation were simply Hunt, credible. For he he did example, said not call Dr. the neurologist, as a witness at defendant’s trial capital Dr. Hunt had because told counsel his would have a testimony “devastating” effect on defendant’s case. Counsel stated he did not ask Hunt Dr. about the nature of the “devastating” however, Hunt, information. Dr. making question, denied statement and the referee found counsel’s The referee concluded story implausible. any Hunt did information “devastating” pertaining
that Dr. not possess defendant, had the material information had put and that Dr. Hunt all of stated, issue, referee to defendant’s trial On this counsel. report case and attorney capital court cannot an a simply imagine defending “[t]his With to counsel’s ‘devastating’ respect himself to information.” blinding uncles, defendant’s as a witness at Willingham, failure to call Willie one of trial, reference that he had Willingham counsel stated at the hearing thought fact, In record. Willingham record. did not have felony felony capital at phase
Counsel’s minimal presentation An and rational justified trial cannot be as a tactical decision. informed made adequate can be after strategy only decision based tactics Fields, at (See, Cal.3d supra, p. In re investigation preparation. e.g., Here, 1069; Ledesma, supra, 215.) because his People p. Cal.3d were was un- seriously inadequate, counsel investigation preparation Therefore, much of evidence that existed. aware of the potentially mitigating said that evidence an it cannot be that counsel’s failure to present informed tactical choice. at the denied performance penalty phase
Counsel’s grossly inadequate right prosecu- defendant his constitutional to effective representation. *67 counsel, suc- tion’s a knew defendant’s trial legal expert, prosecutor who win described as seeks to cinctly attorney trial counsel “the of who type oration, In not this by inspiration, cases not perspiration; by preparation.” discuss, case, I enough. counsel’s and oration were not As shall inspiration trial counsel’s were The evidence that a failings prejudicial. mitigating in attorney enough, would have the presented significant competent in the of other evidence that confidence out- bearing context penalty, verdict come—the of death—is undermined. substantially
III. at relief of assistance counsel the To obtain on the basis ineffective of a defendant “need deficient conduct penalty phase, not show counsel’s (Strickland than the case.” more not altered outcome the Wash likely Instead, 697].) ington, supra, 466 U.S. at L.Ed.2d at p. p. [80 is if the defendant entitled to a reversal of the ineffective penalty phase (Id. death. assistance of counsel the verdict of confidence” “undermine[s] Fields, 698]; at supra, at at In re 51 Cal.3d p. p. pp. L.Ed.2d 1078-1079.)
Here, earlier, I in detail investigation, as discussed trial counsel’s prepa- as ration and at the presentation grossly inadequate were so phase in the verdict of death. Counsel’s undermine reasonable confidence any substantial mitigating from ever precluded jury learning inadequacies character, and medical condition. background evidence defi- give The nevertheless concludes that it “need majority weight not trial when we that there was no ciency prejudice.” conclude counsel] [of ante, 200.) The asserts that trial counsel’s (Maj. opn., p. majority perfor- prejudicial hearing mance was because at the habeas reference corpus “devastating defense witnesses were asked on cross-examination questions” that if asked at trial “would have to the specific revealed instances ante, at (Maj. p. violent criminal acts . . . .” uncharged opn., [defendant’s] 207.) Not so.
The testimony hearing at the habeas reference does corpus not support found, assertion. the referee majority’s lay As uninterviewed “[m]any did negative witnesses not have This regarding information [defendant].” is confirmed finding review of the of a prosecution’s cross-examination number of at the witnesses reference hearing.
At hearing, major point sought that the to make its prosecution cross-examination of defendant’s Mayfield, May- relatives—Teresa Tricia field, Hawkins, Calvin Cicero Mayfield, Hazel Hawkins—was that these did witnesses not more out affirmatively seek defendant’s trial counsel or inject themselves into the defense I of the case. Unlike do not majority, find this cross-examination it “devastating”; is It is legally meaningless. Fields, attorney who has the obligation investigate (In re prepare. supra, 1069.) 51 Cal.3d at p. law does not potential witnesses to require counsel, counsel, seek out trial marshall the facts for pertinent otherwise develop defense.
To its support assertion that defendant’s trial counsel’s ineffective repre- at the sentation penalty phase was not because of the prejudicial prosecu- tion’s “devastating” cross-examination defense witnesses at the ha- beas reference corpus hearing, the evidence majority single refers to of a ante, incident of “a 207.) sexual disturbing (Maj. nature.” at The opn., p. majority’s implication of sexual prior serious misconduct defendant that by would have driven the to impose the death the penalty overstates both the facts and potential this had impact incident have on the may jury. old, The incident occurred when defendant was 11 years before years the commission of the crimes this case. It was based on defendant’s mother him finding with his pants down on of his sister top two-year-old sister, with her dress The pulled up. who was by examined defendant’s mother both after the immediately incident and the next showed no morning, his mother at the time
outward of sexual molestation. Defendant told signs in the that he he did because two other children eleven-year-old did what had he do so. neighborhood suggested
This evidence minimal value the decision particular probative has whether death for the two murders he committed. to sentence defendant to time; 10 years Defendant was a child at the the incident young happened assertion, And, in this the contrary majority’s before the crimes case. to the incident, following excerpt as the although disturbing, “devastating,” is not Mayfield the Tricia indicates. from cross-examination of prosecution’s for, “[Question] try think it is to to have sex say, 10-year-old You normal a normal, I with a I don’t it is but don’t think three-year-old? [][] [Answer] either, [Question] heard think it Is that something you is abnormal [ft] any That’s not unfamiliar to happened among family members? [1] [Answer] nation, [Question] race think is a you perfectly So any part [ft] normal have I think normal thing happened? perfectly [ft] [Answer] whatever, friend with have to wonder about sex a sister or 10-year-old [Question] The think question 10-year-old is do it is normal you [ft] try to have sex with his sister? [1] [Answer] Not normal. But like I said, [it either.” abnormal is] incident, doubt-
Given the minimal value of this childhood it is probative reason, much, For the ful it would have had if on the same any, impact jury. that, matter,2 it is had trial doubtful counsel considered evidence have been to the minimal probative would presented jury. value of have been excluded the evidence an basis for it to provides ample Code, Indeed, (Evid. 352.) trial. is it whether questionable prosecutor § would have even tried to such evidence. As just-quoted introduce Tricia hearing cross-examination of at the habeas reference Mayfield corpus demonstrates, introduction this evidence was not by prosecution articulated, without risks. I I find the its tactical For reasons have seriously on this majority’s misplaced. reliance childhood incident to be is the assertion the defense who Equally wrong majority’s experts subject reference were corpus “devastating” testified at the habeas hearing A prosecution. cross-examination review of cross-examination *69 Smith, Hunt, at Young, Hargrave hearing Drs. and the reference does To the means to expert this assertion. the extent refer to support majority in the kill testimony that a defendant’s could form intent to person situation appears hearing 2It at the believed the testimony from trial counsel’s reference commission incident closer of the in this have occurred in time to defendant’s offenses investigated, place case. Had the incident took when counsel he would have learned that young boy years defendant was a 10 earlier.
219 murder, and the majority guilt phase the confuses issues the premeditate with the much broader tibe Under California’s penalty capital issues at phase. law, the include charac- punishment issues at defendant’s penalty phase ter and and extenuate the background other consideration tends to any 190.3, (§ (k).) of the offense. factor gravity testimony of expert endocrinologist, neurologist directly and matters psychiatrist spoke diabetes, have jury long-term should considered—whether his substance abuse and society’s made defendant less psychiatric problems deserving ultimate and a better candidate for the of life penalty, penalty prison.
IV. The choice between life and death at the case is phase capital of a penalty the most serious decision a can be to make. “The United States asked Supreme Court has death kind recognized that is a different expressly other, punishment any from and severity finality. both terms of Because stake, life is at courts must be particularly every sensitive insure observed, safeguard designed to full guarantee defendant a defense be (Gardner 393, 401-402, v. Florida 430 U.S. L.Ed.2d 1197][.])” Court, (Kennan S.Ct. Superior supra, 430.) at p. Cal.3d Here, the strength of the evidence adduced at habeas reference corpus when hearing, to the evidence at the compared phase presented penalty counsel, depth of defendant’s trial under inadequacies thoroughly mine any reasonable confidence the verdict of death. Had trial counsel adequately at the presented defense it be concluded penalty phase, cannot that the result—a verdict In of death—would have been the such same. circumstances, we must aside beliefs put any personal propriety as to the death, and allow its jury to make own decision based on all evidence, presented by competent counsel.
I death, would issue the writ of habeas corpus, vacate sentence of direct a retrial of the penalty phase. 21, 1993,
Appellant’s petition for a rehearing July was denied and the Mosk, J., Kennard, J., opinion was modified as to read printed above. were of the that the opinion should petition granted. be