In re Gay ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
In re KENNETH EARL GAY
on Habeas Corpus.
S130263
Los Angeles County Superior Court
A392702
__________________________________________________________
February 13, 2020
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
__________________________________________________________
In re GAY
S130263
Opinion of the Court by Kruger, J.
Petitioner Kenneth Earl Gay was convicted of the first
degree murder of a police officer and sentenced to death. In an
earlier habeas corpus proceeding, we found that Gay’s trial
counsel had defrauded Gay in order to induce Gay to retain him
instead of the public defender, and then had gone on to commit
serious errors during the trial’s penalty phase that undermined
the reliability of the resulting death verdict. We accordingly
granted habeas corpus relief and vacated the judgment of death.
(In re Gay (1998) 19 Cal. 4th 771, 780 (Gay I).) Now, presented
with additional allegations concerning trial counsel’s deficient
performance during the guilt phase, we consider whether his
performance undermined the reliability of the jury’s guilty
verdict as well.
To address this question, we ordered an evidentiary
hearing before a referee. Examining Gay’s allegations in light
of the extensive hearing record, the referee’s findings, and the
trial record, we conclude Gay was denied his constitutional right
to the assistance of competent counsel at the guilt phase of the
trial, just as at the penalty phase. We grant habeas corpus relief
and afford the People the opportunity to retry Gay if they so
choose.
In re GAY
Opinion of the Court by Kruger, J.
I.
After a joint trial before separate juries in the Los Angeles
County Superior Court, Gay and codefendant Raynard Paul
Cummings were convicted of the first degree murder of Los
Angeles Police Officer Paul Verna. (Pen. Code, § 189.) The
juries found, as special circumstances, that defendants
knowingly and intentionally killed a peace officer engaged in the
performance of his duties (id., § 190.2, subd. (a)(7)) and
committed the murder to prevent a lawful arrest (id., § 190.2,
subd. (a)(5)). The juries also found that a principal was armed
with a firearm (id., § 12022, subd. (a)) and that each defendant
personally used a firearm (id., §§ 12022.5, subd. (a), 1203.06,
subd. (a)(1)). Each jury returned a death verdict. (People v.
Cummings (1993) 4 Cal. 4th 1233, 1255 (Cummings).)1 As
explained further below, Gay’s death sentence was later vacated
(Gay I, supra, 19 Cal.4th at p. 780), and a second death
judgment following penalty retrial was overturned on appeal
(People v. Gay (2008) 42 Cal. 4th 1195, 1198 (Gay II)). Here, we
are concerned solely with the validity of Gay’s underlying
convictions.
We previously have described the guilt phase evidence at
length. (See Cummings, supra, 4 Cal.4th at pp. 1257–1270.) We
briefly summarize the relevant points here. Early in the
1
Gay also was charged with, and convicted of, 10 counts of
robbery (Pen. Code, § 211); two counts of attempted robbery (id.,
§§ 664, 211); conspiracy to commit robbery (id., §§ 182, 211); and
being an ex-felon in possession of a concealable weapon (id.,
§ 12021). On appeal, the weapons possession conviction was
upheld, but the remaining robbery-related convictions were all
reversed. (Cummings, supra, 4 Cal.4th at pp. 1256, 1306–1315.)
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Opinion of the Court by Kruger, J.
evening of June 2, 1983, Officer Verna, on motorcycle patrol,
made a traffic stop in a residential neighborhood. The driver
was Pamela Cummings.2 Gay was sitting in the front
passenger’s seat, while Raynard Cummings was sitting in the
backseat. Unbeknownst to Officer Verna, the car was stolen and
Gay and Raynard Cummings recently had committed a series of
robberies. Pamela stepped out of the car and told Officer Verna
she had no driver’s license or registration for the car. When
Officer Verna returned to the car to ask the occupants for
identification, he was shot and fell. One of the occupants then
got out of the car and shot the officer several more times. (Id. at
pp. 1257–1258.) The initial shot would have been fatal on its
own, as would most of the subsequent ones. (Id. at p. 1267.)
The central issue at trial concerned the identity of the
shooter or shooters. The prosecutor maintained that Raynard
Cummings had fired the first shot while sitting in the backseat
and then passed the gun to Gay, who stepped out of the car and
fired the remaining shots at the fallen officer. Gay and
Cummings each maintained that the other had fired all the
shots. (Cummings, supra, 4 Cal.4th at p. 1259.) There were
numerous eyewitnesses to the incident, but the witnesses’
descriptions of this tragic event differed in significant respects.
Pamela was the prosecution’s primary witness. She had
been charged with special circumstances murder and robbery
but pleaded guilty to two counts of robbery and to being an
accessory to murder on the condition that she testify truthfully
as a prosecution witness. (Cummings, supra, 4 Cal.4th at
2
To differentiate Pamela Cummings from her husband,
Raynard Cummings, we will sometimes refer to Pamela by her
first name.
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In re GAY
Opinion of the Court by Kruger, J.
p. 1264, fn. 8.) Pamela testified she was driving a two-door 1979
Oldsmobile Cutlass coupe when Officer Verna stopped her at
about 5:40 p.m. (Id. at p. 1257.) She stepped out of the car and
told Officer Verna she had no driver’s license or car registration.
She gave him a check-cashing card for identification, which the
officer used to complete a field interrogation card. Officer Verna
returned to the car and bent down, putting his hands on his
knees, leaned into the vehicle, and asked the occupants for
identification. Pamela, who was standing near the curb, with
the car between herself and the officer, heard a gunshot, saw
Officer Verna grab his shoulder, and saw the barrel of a gun
pointing straight across the front seat of the car between the
head rests. She could not see who held the gun because her
husband, sitting in the back, obstructed her view. According to
Pamela, Gay then got out of the car, approached Officer Verna,
and fired three shots into his back as he attempted to return to
his motorcycle. The officer walked back a few feet and then fell
to the ground. Gay stood over Officer Verna, shot him two more
times, threw the gun on his body, and picked up the officer’s gun.
Pamela and Gay reentered the car through the driver’s side
door. Gay drove up the street, but then made a U-turn and
returned, stopping by the fallen officer. Gay stepped out and
retrieved Pamela’s identification card and the murder weapon.
(Id. at pp. 1258, 1263.) The field interrogation card naming
Pamela Cummings was left at the scene.
Pamela also testified that on the night of the murder, Gay
and Cummings reenacted the shooting in Gay’s home for the
benefit of Gay’s wife, Robin. Gay extended his arm as if holding
a gun and said, “ ‘Pow, pow, motherfucker. Take this,’ ” and said
that he “ ‘got him good.’ ” Cummings used the same words in
his reenactment. (Cummings, supra, 4 Cal.4th at p. 1264.)
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Opinion of the Court by Kruger, J.
Eight additional eyewitnesses testified for the
prosecution. Their versions of the events and identification of
the shooter or shooters varied. The discrepancies turned in part
on the differences in appearance between Gay and Cummings.
Gay, who is a biracial man of African-American and Caucasian
heritage, is much lighter in complexion than Cummings, who is
a darker skinned African-American man. At six feet tall, Gay is
six inches shorter than Cummings. On the evening of the
murder, Gay was wearing a light gray long-sleeved shirt, while
Cummings was wearing a maroon short-sleeved shirt.
Twelve-year-old Oscar Martin was in the front yard of his
home when he saw Officer Verna giving Pamela a ticket on the
street in front of his house. Oscar went into his house and told
his mother, who was in the kitchen, what he had seen. She told
him to stay inside. He looked out the living room window and
saw the back door of the car open and a person he later identified
as Raynard Cummings get out and shoot the officer four times.
After the shooting, the man got into the car and drove off. Oscar
did not see anyone else in the car. (Cummings, supra, 4 Cal.4th
at p. 1259.)
Oscar’s mother, Rosa Maria Martin, did not see the
murder. She had gone out and looked down her driveway after
Oscar told her that a police officer was giving someone a ticket
but saw nothing and went back inside. She then heard at least
four gunshots, with a pause between the first one and the others.
Oscar came to her and said: “ ‘They killed him.’ ” Rosa looked
out the living room window and saw a two-door car driving
slowly down the street. The driver, whom she identified as Gay,
got out, picked up a revolver, and then got back into the car. A
woman was in the passenger seat, but Rosa could not tell if
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In re GAY
Opinion of the Court by Kruger, J.
anyone was in the rear seat. (Cummings, supra, 4 Cal.4th at
p. 1260.)
Robert Thompson was on a ladder in front of a house
across the street and saw Officer Verna giving a ticket to a
woman. Gay was in the front seat of the car and Raynard
Cummings was in the rear seat on the passenger side.
Thompson looked again when he heard a noise and saw the
officer backing away from the driver’s side door holding his
chest. Cummings was holding a gun in his right hand, which
extended out of the car. After the first shot, Thompson jumped
off the ladder and tried to hide behind a bush. When he looked
again, he saw Gay get out of the front seat with a gun in his
hand and walk toward the officer with his arm at full extension
pointing the smoking gun at the officer on the ground. Gay
stood straddling the officer, who was on his back. Cummings
remained in the backseat of the car. (Cummings, supra, 4
Cal.4th at pp. 1261–1262.)
Gail Beasley’s preliminary hearing testimony was
admitted at trial. She and another witness, Marsha Holt, had
been in Beasley’s home across the street from the shooting.
Beasley saw Officer Verna stop a car and speak to the driver,
Pamela. Beasley looked again when she heard two gunshots
and saw a Black man, six feet tall with very light skin and a
Jheri curl, hold a gun with his arm extended at a 45-degree
angle and shoot the officer four times. Another man was in the
backseat. Pamela was still outside the car. (Cummings, supra,
4 Cal.4th at p. 1263.)
Marsha Holt testified she saw a police officer giving a
ticket to Pamela. Holt looked away but turned back when she
heard a gunshot and then, after a pause, more shots. She saw
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In re GAY
Opinion of the Court by Kruger, J.
the officer fall and saw the shooter pick up the officer’s gun, run
back to the car, and drive away. At the preliminary hearing and
at trial, Holt identified Gay as the shooter. (Cummings, supra,
4 Cal.4th at p. 1261.)
Eleven-year-old Shannon Roberts was at a residence two
or three houses away and saw Officer Verna giving a ticket to a
woman who was standing outside a car. Shannon turned and
went down the driveway but turned back when he heard a
gunshot. He saw Gay shoot the officer four times. Gay then got
into the passenger side of the car, the woman got into the
driver’s side, and they left. A Black man was in the rear seat.
Later, a different car stopped by the officer and the driver got
out and picked up the gun. (Cummings, supra, 4 Cal.4th at
p. 1262.)
Rose Marie Perez was a passenger in a car that drove
through the intersection at the end of the block where the
shooting occurred. She looked up the street and saw Officer
Verna falling backwards and a light-skinned Black man, whom
she later identified as Gay, coming around the back of a car and
walking toward the officer. She did not see anything in his
hands. Perez also saw a person seated in the backseat of the car
but did not see him leave the vehicle. That person had hair
similar to that depicted in a photograph of Cummings.
(Cummings, supra, 4 Cal.4th at p. 1263.)
Shequita Chamberlain was a passenger in a different car
that drove through the same intersection. She looked down the
street and saw a tall, dark-skinned Black man and a police
officer near a parked car and a police motorcycle. She heard a
shot and saw the officer fall on his back. The Black man got into
the car and drove off. Cummings was not the man she saw,
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In re GAY
Opinion of the Court by Kruger, J.
although their complexions were similar. Gay’s complexion was
lighter than that of the man she saw. (Cummings, supra, 4
Cal.4th at p. 1261.)
The prosecution also offered evidence of statements made
by Gay and Cummings while they were in custody awaiting
trial. Less than a month after Officer Verna was murdered,
Gilbert Gutierrez, in jail on an unrelated murder charge, spoke
to both defendants on different occasions about the events. Gay
told him that Cummings first shot the officer from the backseat
of the car, then got out of the car and shot Officer Verna twice
more, after which Cummings emptied the gun. Cummings later
told Gutierrez that he, Gay, and Pamela were on their way to
get cocaine at the time they were stopped by Officer Verna.
When Officer Verna asked him if he had any identification,
Cummings said he did, pulled out a .38-caliber revolver, and
shot the officer in the shoulder. Cummings told Gutierrez that
he then got out of the car from the driver’s side, shot the officer
twice in the back, and then emptied the gun, saying: “ ‘Here’s
your identification, motherfucker.’ ” (Cummings, supra, 4
Cal.4th at p. 1264.) Gutierrez testified that Cummings was
proud of shooting Officer Verna and bragged about it.
Cummings told Gutierrez that he had thrown his gun down and
picked up the officer’s gun, and that Gay had recovered the gun
used by Cummings when they went back. (Id. at pp. 1264–
1265.)
Deputy Sheriff Rick McCurtin testified that in April 1984,
he was on guard duty while Cummings and other inmates were
in the jail shower. As another deputy walked by, “inmate Brooks
said, ‘There is Paul Verna,’ after which Brooks and Cummings
extended their right arms as if shooting a pistol and said ‘Pow,
Pow.’ Cummings then said to [Deputy] McCurtin: ‘Let me show
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In re GAY
Opinion of the Court by Kruger, J.
you how it was done. This is how it was done. First two in the
back. Pow, pow. Walked up and four more. Pow, pow, pow,
pow.’ Cummings’s arm was then pointing down at the ground.
On cross-examination[,] the witness quoted defendant
Cummings as having said: ‘Then we put four more.’ (Italics
added.)” (Cummings, supra, 4 Cal.4th at pp. 1265–1266.)
Deputy Sheriff David LaCasella testified that in April
1985, he escorted defendants from the courtroom to the main
lockup. The coroner had just testified about the postmortem
examination of Officer Verna, explaining that he had numbered
the bullet wounds in the order he examined them from one
through six. The coroner stated that the first shot fired was
“ ‘Number 6.’ ” (Cummings, supra, 4 Cal.4th at p. 1258.) Deputy
LaCasella placed Cummings and Gay in adjacent cells. “He
later heard Cummings yell: ‘You know how he got number six[,]
don’t you?’ Gay then replied: ‘Number six?’ Cummings said
‘yeh,’ and then yelled: ‘That’s the one I put in the
motherfucker.’ ” (Id. at p. 1266.)
Deputy Sheriff Michael McMullan testified that about a
year after the murder, he and Sergeant George Arthur were
escorting Cummings in the central jail when other inmates
began chanting “ ‘dead man walking’ ” as Cummings passed by.
(Cummings, supra, 4 Cal.4th at p. 1265.) Cummings responded
by saying: “ ‘I am no ghost. The only ghost I know is Verna. I
put six in him.’ ” (Ibid.) As he was put in his cell, Cummings
said to Sergeant Arthur: “ ‘He took six of mine . . . . If I see you
all on the streets I hope you are quicker than Verna.’ ” (Ibid.)
In defense, Gay argued that Cummings alone had shot
Officer Verna. In support of this defense, Gay recalled some of
the prosecution’s eyewitnesses as defense witnesses. Rosa
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Opinion of the Court by Kruger, J.
Maria Martin again testified that, after the shooting, she saw a
car being driven toward the fallen officer. Gay left the car,
picked up a gun, reentered the car, and drove it away. She did
not see Gay shoot anybody. Rose Marie Perez testified that as
she passed through a nearby intersection, she saw Gay walk
around the rear of the stopped automobile. At that time, the
officer was already falling down. Perez did not see anything in
Gay’s hand. (Cummings, supra, 4 Cal.4th at p. 1269.)
Gay also recalled Pamela Cummings as a witness. She
testified that she was sure a shot had been fired from within the
car. Gay’s counsel attempted to impeach her by eliciting an
admission that she had lied in prior statements about the
murder, by asking her about testimony by other eyewitnesses
that was inconsistent with hers, and by posing questions
designed to undermine the credibility of her description of the
events and to suggest that she was not truthful in stating that
she did not know who fired the first shot. Counsel for Cummings
then elicited further testimony on cross-examination that
Pamela saw Gay slide across the front seat of the car, come out
firing a gun, and repeatedly shoot the victim. (Cummings,
supra, 4 Cal.4th at pp. 1269–1270.)
II.
This court affirmed the murder convictions and judgments
of death on automatic appeal. (Cummings, supra, 4 Cal.4th at
p. 1343.) While that appeal was still pending, Gay filed his first
petition for a writ of habeas corpus. Among other claims, Gay
argued that the judgment should be vacated because he had
received constitutionally ineffective representation from his
trial counsel, Daye Shinn. We issued an order to show cause
10
In re GAY
Opinion of the Court by Kruger, J.
why relief should not be granted, limited to a claim of ineffective
assistance at the penalty phase.
Following a reference hearing, we granted the petition for
a writ of habeas corpus and ordered a new penalty phase trial.
(Gay I, supra, 19 Cal.4th at p. 780.) In granting relief, we held
that Shinn had rendered deficient performance by inducing Gay
to admit to having committed several robberies—admissions
that were used against him at the penalty phase—while
presenting “little mitigating evidence” even though “much more
potentially mitigating evidence was easily accessible.” (Id. at
p. 794.)
These deficiencies, we explained, could be traced in part to
serious misconduct in the very foundation of the attorney-client
relationship. The referee concluded that Shinn—who would
later be disbarred for misappropriation of client funds in an
unrelated matter (Gay I, supra, 19 Cal.4th at p. 780, fn. 5)—had
used fraudulent means to induce Gay to retain him as his
attorney. Visiting Gay in county jail, Shinn and an associate,
Marcus McBroom, urged Gay to hire Shinn, promising that a
group of unidentified (and, in truth, nonexistent) Black
businessmen would pay his legal fees. Shinn later directed Gay
to tell the court—falsely—that his parents had paid a retainer
to Shinn and would pay his legal fees. (Id. at pp. 781, 794.)
Shinn engaged in these machinations in order to engineer his
eventual appointment by the court. (Id. at p. 794.)
McBroom was an assistant to Dr. Fred Weaver, a
psychiatrist whom Shinn hired to examine Gay’s mental health.
(Gay I, supra, 19 Cal.4th at pp. 783, 795–797.) We concluded
that “Shinn did not select Dr. Weaver because of his
demonstrated competence,” but because “Shinn, McBroom, and
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Opinion of the Court by Kruger, J.
Weaver had a capping relationship pursuant to which Weaver
was retained in cases in which McBroom had arranged
representation by Shinn.” (Id. at p. 796.) Dr. Weaver accepted
the assignment “only with the understanding that the case
would not be complicated and would not place demands on his
time.” (Id. at p. 828.) Shinn did not undertake, nor did he direct
Dr. Weaver to undertake, “the type of penalty phase
investigation and preparation expected of competent
professionals in a capital case,” including a thorough
assessment of Gay’s mental health. (Id. at p. 796.)
Finally, we noted that “at the time Shinn represented
petitioner, Shinn labored under [an] undisclosed potential
conflict of interest—he was being investigated for
misappropriation of client funds by the office of the same district
attorney who was his adversary in the prosecution of petitioner.”
(Gay I, supra, 19 Cal.4th at p. 828.) While the record did not
reveal whether Shinn was influenced by this “distraction,” we
noted that the potential conflict “contribute[d] to our lack of
confidence in the verdict when considered with Shinn’s other
failings.” (Ibid.)
We summarized our conclusions as follows: “We are
unable to put confidence in a verdict of death rendered by a jury
that reaches a death penalty verdict for a defendant represented
by an attorney who has defrauded the court in seeking
appointment, and whose unethical conduct led directly to the
retention of a mental health expert who the attorney agreed
would not be called upon to do a thorough assessment of the
defendant and who testified that the defendant had a
sociopathic personality. Confidence in the verdict is further
undermined by counsel’s incompetent conduct contributing to
the penalty phase jury’s consideration of evidence that the
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Opinion of the Court by Kruger, J.
defendant is a serial robber with a sociopathic personality, and
by recognition that the jury did not have the opportunity to
consider a substantial amount of mitigating evidence that
competent counsel would have presented. We conclude there is
a reasonable probability that absent counsel’s numerous failings
and the conflicts of interest with which he was burdened, a
different penalty verdict would have been reached. We do not,
therefore, have confidence in the penalty verdict reached in this
case.” (Gay I, supra, 19 Cal.4th at pp. 829–830, fn. omitted.)
Following a penalty phase retrial, Gay was again
sentenced to death in 2000. (Gay II, supra, 42 Cal.4th at
p. 1198.) On appeal, we again reversed the death judgment, this
time because the trial court had erred in preventing the defense
from presenting, and the jury from considering, evidence that
Gay was not the shooter. The improperly excluded evidence
included testimony from four children who were eyewitnesses to
the shooting—the prosecution had objected on the grounds the
children had not been called to testify at the guilt phase of the
trial—as well as various statements Cummings made in which
he claimed to be the sole shooter. (Id. at pp. 1214–1216, 1227.)
The court’s errors, we ruled, prejudiced Gay by hampering his
ability to argue to the jury that it should consider lingering
doubt as to guilt as a mitigating circumstance. (Id. at pp. 1226–
1227.)
On December 28, 2004, while the automatic appeal from
the second judgment of death was still pending, Gay filed this
petition for a writ of habeas corpus challenging his convictions
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Opinion of the Court by Kruger, J.
and related findings.3 Gay raised 26 claims for relief, including
claims that he is actually innocent of capital murder and that he
received ineffective assistance of counsel at the guilt phase of
his original trial. We issued an order to show cause why Gay
was not entitled to habeas corpus relief from his underlying
murder conviction because defense counsel Shinn had failed to
adequately investigate and present evidence at the guilt phase
of the trial, among other failings, and also had had a conflict of
interest that prejudicially affected his representation at the
guilt phase. At the request of both parties, we issued a stay of a
further penalty phase retrial pending our resolution of these
issues.
Following the filing of a return and traverse, we ordered
the Los Angeles County Superior Court to select a judge to act
as a referee and conduct a hearing to take evidence and make
findings of fact on the following questions:
“1. What actions did petitioner’s trial counsel, Daye
Shinn, take to investigate a defense at the guilt phase of
petitioner’s capital trial that petitioner did not participate in the
murder of Officer Verna? What were the results of that
investigation?
3
The procedural bar against successive habeas corpus
petitions does not apply here because Gay’s first petition was
filed before our decision in In re Clark (1993) 5 Cal. 4th 750, 769–
774, in which we clarified that the successiveness bar is
nondiscretionary. Before Clark, Gay would not have been on
notice that failure to raise issues in his first petition would
necessarily preclude their later consideration. (See In re
Robbins (1998) 18 Cal. 4th 770, 788, fn. 9 [“Clark serves to notify
habeas corpus litigants that we shall apply the successiveness
rule when we are faced with a petitioner whose prior petition
was filed after the date of finality of Clark”].)
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Opinion of the Court by Kruger, J.
“2. What additional evidence supporting that defense, if
any, could petitioner have presented at the guilt phase of his
capital trial? What investigative steps, if any, would have led to
this additional evidence?
“3. How credible was this additional evidence? What
circumstances, if any, weighed against the investigation or
presentation of this additional evidence? What evidence
rebutting this additional evidence reasonably would have been
available to the prosecution at trial?
“4. Did the Los Angeles County District Attorney’s
investigation of allegations that petitioner’s trial counsel, Daye
Shinn, had engaged in acts of embezzlement unrelated to
petitioner’s case give rise to a conflict of interest in petitioner’s
case? If so, describe the conflict of interest.
“5. If this conflict of interest existed, did it affect trial
counsel Daye Shinn’s representation of petitioner? If so, how?”
Superior Court Judge Lance Ito was appointed as referee
and held an evidentiary hearing. Shinn, who had died in 2006,
did not testify at the hearing. After the hearing, Judge Ito filed
a 75-page report containing findings of fact. Gay filed extensive
exceptions to the report. The Attorney General did not take
issue with any findings relevant to our disposition of the case.
III.
A.
Because a petition for a writ of habeas corpus is a
collateral attack on a presumptively final criminal judgment,
Gay bears the burden of proving his entitlement to relief by a
preponderance of the evidence. (In re Cowan (2018) 5 Cal.5th
235, 243; In re Price (2011) 51 Cal. 4th 547, 559.) The referee’s
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factual findings are “entitled to great weight where supported
by substantial evidence.” (In re Hamilton (1999) 20 Cal. 4th 273,
296; accord, In re Welch (2015) 61 Cal. 4th 489, 501.) Those
findings are not, however, conclusive, and “we can depart from
them upon independent examination of the record even when
the evidence is conflicting.” (Hamilton, at p. 296; accord,
Cowan, at p. 243.) The ultimate responsibility for determining
whether Gay is entitled to relief rests with this court. (In re
Thomas (2006) 37 Cal. 4th 1249, 1256–1257.)
Gay argues that Shinn rendered ineffective assistance at
the guilt phase, in violation of his rights to the assistance of
counsel under the Sixth Amendment to the United States
Constitution and article I, section 15, of the California
Constitution. “An ineffective assistance claim has two
components: A petitioner must show that counsel’s performance
was deficient, and that the deficiency prejudiced the defense.”
(Wiggins v. Smith (2003) 539 U.S. 510, 521; accord, Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Whether
counsel’s performance was deficient, and whether any deficiency
prejudiced defendant, are mixed questions of law and fact
subject to our independent review. (In re Thomas, supra, 37
Cal.4th at p. 1256.)
We evaluate Shinn’s guilt phase performance according to
well-established standards. “Representation of a criminal
defendant entails certain basic duties. Counsel’s function is to
assist the defendant, and hence counsel owes the client a duty
of loyalty . . . . Counsel also has a duty to bring to bear such skill
and knowledge as will render the trial a reliable adversarial
testing process.” (Strickland, supra, 466 U.S. at p. 688.) “These
basic duties neither exhaustively define the obligations of
counsel nor form a checklist for judicial evaluation of attorney
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performance.” (Ibid.) Rather, “[t]o establish deficient
performance, a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of
reasonableness,’ ” as measured by “ ‘prevailing professional
norms.’ ” (Wiggins v. Smith, supra, 539 U.S. at p. 521, quoting
Strickland, at p. 688.) When applying this standard, we ask
whether any reasonably competent counsel would have done as
counsel did. (In re Reno (2012) 55 Cal. 4th 428, 465.) Counsel’s
performance “is assessed according to the prevailing norms at
the time.” (In re Thomas, supra, 37 Cal.4th at p. 1257.) Judicial
review of counsel’s performance is deferential; to establish
deficient performance, the defendant “must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” (Strickland,
at p. 689.)
As Gay notes, we have already found that Shinn failed in
his most basic duty, loyalty to his client, having defrauded Gay
in order to induce him to discharge the public defender and
retain Shinn instead. (Gay I, supra, 19 Cal.4th at pp. 794–795,
828–829.) But according to Gay, that is not all; Shinn’s lack of
professionalism pervaded the entire course of his pretrial
investigation and advocacy. Among other purported
shortcomings in Shinn’s representation, Gay points to Shinn’s
decision to have Gay confess to involvement in the string of
robberies, which we have already found to constitute deficient
performance in Gay I. (Gay I, supra, 19 Cal.4th at pp. 791–794.)
Gay also argues that Shinn failed to conduct any meaningful
investigation to identify, and thus failed to present, numerous
witnesses who could have greatly strengthened Gay’s argument
that Cummings was solely responsible for the murder of Officer
Verna. We conclude Shinn was deficient in every regard.
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Opinion of the Court by Kruger, J.
B.
Before trial, Shinn formed a plan to have Gay take a
polygraph test from the prosecution’s expert polygraph
examiner. Shinn’s apparent hope was that if Gay passed, he
would be permitted to testify as a prosecution witness
implicating Cummings and would be offered a favorable plea
bargain. The prosecution offered no deal but instead required
as a condition of any examination that Gay first meet with the
prosecutor, a prosecution investigator, Jack Holder, and a
detective investigating the Verna murder, John Helvin.
(Cummings, supra, 4 Cal.4th at pp. 1315–1316.)
In advance of the meeting, Shinn advised Gay to admit
participation in the string of robberies preceding the Verna
murder. Gay followed this advice. At the beginning of the
interview, Gay was told that anything he said could and would
be used against him. Gay and Shinn each expressly confirmed
that no deal was in place and nothing had been promised in
exchange for Gay’s participation in the interview. Then, as
recommended by Shinn, Gay admitted collaborating with
Cummings in a series of five armed robberies. (Cummings,
supra, 4 Cal.4th at pp. 1316–1317.) Gay’s taped confessions
were played for the jury as part of the prosecution’s case. (Id. at
p. 1315; Gay I, supra, 19 Cal.4th at p. 781.)
On direct appeal, Gay challenged Shinn’s conduct in
advising him to confess, and later eliciting testimony that the
confessions were truthful, as deficient. We found the claim moot
as to the robbery charges and did not expressly address it in
connection with the murder charge. (Cummings, supra, 4
Cal.4th at p. 1341.) In resolving Gay’s first habeas corpus
petition, however, we reached the merits and concluded Shinn
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Opinion of the Court by Kruger, J.
performed incompetently. (Gay I, supra, 19 Cal.4th at pp. 791–
794.)
That conclusion remains sound. Shinn had Gay waive his
right against self-incrimination and confess to a series of armed
robberies. He told Gay that if the prosecution did not agree to
have Gay testify on the state’s behalf, these statements would
not be used, despite the fact no agreement to that effect had been
reached. At a hearing outside the jury’s presence, Gay testified
that he disregarded the warning that his statements could be
used against him because he believed his attorney’s contrary
assurances. The confessions allowed Gay’s own words to be used
by the prosecution to establish that Gay and Cummings were
crime partners, and that each had an equal motive to avoid
capture and arrest by a police officer, and thus equal motive to
shoot Officer Verna. “Shinn not only acted as a second
prosecutor by creating the evidence that led to petitioner’s
conviction of the robberies, his conduct permitted the prosecutor
to portray petitioner as an admitted serial robber who killed a
police officer to avoid arrest and prosecution for the robberies.”
(Gay I, supra, 19 Cal.4th at p. 793.)
Though Shinn may have hoped the prosecution would
eventually offer a deal, Gay’s “statement was not made in the
course of plea negotiations, but as a precondition to initiation of
any discussion of disposition of the charges.” (Cummings, supra,
4 Cal.4th at p. 1318.) Shinn persuaded Gay to confess by
assuring him his statements would not be used unless a deal
was struck but had no such agreement with the prosecution.
During a hearing on the admissibility of his confession, Gay
learned for the first time there was no agreement that would
protect him. Under examination by his own counsel, Gay
testified: “I don’t feel I was tricked by [the prosecutor]. . . . [¶]
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Opinion of the Court by Kruger, J.
I was tricked by you, I feel.” No competent and loyal counsel
would have deceived his own client, as Shinn did. Nor would
competent counsel have allowed a client to be interviewed in the
fashion Shinn permitted, following an express advisement that
any statements could be used in court, without any agreement
in place to protect the client. (Gay I, supra, 19 Cal.4th at
pp. 791–793; see 1 Amsterdam, Trial Manual for the Defense of
Criminal Cases (4th ed. 1984) § 213(C), p. 1-245 [describing
understanding that counsel should exercise caution before
allowing client “to divulge[] any incriminating information to
anyone”].)
Consistent with Gay I, we conclude Shinn’s decision to
have Gay confess to the series of robberies fell well below
prevailing professional norms.
C.
We next turn to the central focus of Gay’s present claim.
To make out Gay’s defense at trial, Shinn relied largely on the
prosecution’s witnesses, who collectively provided only limited
help to the theory of the defense. Gay argues Shinn took this
tack not for lack of better options, but simply because he failed
to conduct an adequate investigation into potential witnesses
who might have provided much more helpful testimony. As a
consequence, Shinn failed to introduce significant testimony
that would have raised doubts about Gay’s guilt. Although Gay
identifies numerous witnesses he claims a competent attorney
would have called, including various types of expert and lay
witnesses, we focus our attention on two particular categories:
(1) eyewitnesses to the shooting who could have described the
shooter in terms that tended to support Gay’s theory that
Cummings, not Gay, fired all the fatal shots; and (2) peace
20
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Opinion of the Court by Kruger, J.
officers who could have testified to Cummings’s admissions of
guilt. For purposes of our inquiry, these two categories of
witnesses are enough.4
Whether Shinn’s failure to call particular witnesses was
deficient, and whether his investigation before trial was
deficient, are legally intertwined, and so we must consider them
together. “ ‘[B]efore counsel undertakes to act, or not to act,
counsel must make a rational and informed decision on strategy
and tactics founded upon adequate investigation and
preparation.’ ” (In re Thomas, supra, 37 Cal.4th at p. 1258,
quoting In re Marquez (1992) 1 Cal. 4th 584, 602.) “[S]trategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
4
We considered the same two categories of witnesses in our
decision invalidating the outcome of the penalty retrial, at which
these witnesses’ testimony had been improperly excluded. (Gay
II, supra, 42 Cal.4th at pp. 1214–1218, 1223–1224.) We
explained there that “[e]vidence indicating that defendant was
not the actual shooter would have been important to the jury in
assessing the appropriate penalty”; the testimony of those who
identified Cummings as the sole shooter, and those who heard
Cummings admit to being the sole shooter, might well have
altered the jury’s decision. (Id. at p. 1227.)
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Opinion of the Court by Kruger, J.
measure of deference to counsel’s judgments.” (Strickland,
supra, 466 U.S. at pp. 690–691; accord, In re Thomas, at
p. 1258.)
1.
During the shooting, Ejinio Rodriguez was at the same
location as Shannon Roberts, who testified for the prosecution.
In a 2003 statement to a defense investigator, Ejinio5 said he
had been playing in his front yard when he noticed a police
officer making a traffic stop of a car containing a woman and two
men. Ejinio later heard what he initially thought were
firecrackers. He saw one of the men, whom he believed was the
shooter, standing over the officer while the other man remained
in the car. The men and woman drove off but made a U-turn
and returned to the fallen officer. The other man then got out
of the car and retrieved the officer’s gun. Ejinio described the
shooter as “a black man who had dark skin and was wearing a
dark shirt.” Ejinio described the nonshooter who picked up the
gun as having “much lighter skin.” The referee found that this
description “points more strongly towards Raynard Cummings
than petitioner” as the shooter based on their respective
complexions and clothing.
Ejinio’s 14-year-old sister, Irma, was also in the front yard
of their house when the officer was shot. The next day, she
described the shooter to a police officer “as a dark skinned male
negro, about twenty-five years old with a three[-] to four[-]inch
afro.” According to Irma, the shooter was the driver of the car
and was “black and very tall. The passenger seated next to the
5
We sometimes refer to Ejinio and his sister Irma
Rodriguez (discussed below) by their first names to avoid
confusion.
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Opinion of the Court by Kruger, J.
driver was a lighter skinned person . . . .” Like Ejinio, Irma
described the car driving off, then returning and the light-
skinned passenger getting out to retrieve a gun. The referee
found that Irma’s description of the shooter “point[s] more
strongly towards Raynard Cummings . . . , with the added fact
that she differentiates between the shooter and a lighter
complexion male Negro wearing the white long sleeved shirt as
the front seat passenger.”
The referee found that Shinn read the police investigation
file. Irma’s name, address, and witness statement were
provided in that file. Ejinio was mentioned in the file as having
been present during the shooting and was also identified in the
grand jury testimony of Shannon Roberts, with whom he had
been playing. Despite this, the referee found Ejinio was never
interviewed before the 1985 trial. It likewise appears
undisputed that the defense never interviewed Irma. Evidence
at the reference hearing helps to explain why. The referee’s
findings and the testimony of Shinn’s investigator, Douglas
Payne, establish that Payne spent parts of three days in
January 1985 seeking out eyewitnesses. Payne confirmed that
this investigation resulted from directions he received around
Christmas 1984 to canvas the area near the murder scene for
witnesses. By the time Payne conducted his investigation, 19
months had elapsed since the murder, jury selection was well
underway, and opening statements were only a month away.
As with other aspects of performance, we measure the
sufficiency of an attorney’s investigation according to the
prevailing norms at the time. (See Rompilla v. Beard (2005) 545
U.S. 374, 387; In re Thomas, supra, 37 Cal.4th at p. 1262.) In
the early 1980s, the “American Bar Association Standards for
Criminal Justice published at the time described the duty to
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Opinion of the Court by Kruger, J.
investigate this way: ‘It is the duty of the lawyer to conduct a
prompt investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the merits of the
case and the penalty in the event of conviction.’ ” (In re Thomas,
at p. 1262, quoting 1 ABA Stds. for Crim. Justice (2d ed. 1982
supp.) std. 4-4.1.)6 Consistent with the ABA standards, a
contemporaneous treatise stresses the importance of a timely
investigation: “[D]efense investigation should begin promptly.
Speed may not be essential in a particular case, but counsel
cannot know this until s/he learns something about the case.
Generally, speed is essential. Physical facts change. An object
of importance may be discarded. Witnesses may disappear or
forget.” (1 Amsterdam, Trial Manual for the Defense of
Criminal Cases, supra, § 108, p. 1-116; see Kayer v. Ryan (9th
Cir. 2019) 923 F.3d 692, 714–715 [holding that defense counsel’s
delay in conducting a capital case investigation may constitute
ineffective assistance].)
Shinn’s investigator agreed that Shinn was “going
through the motions.” Shinn’s apparent decision to wait until
the last minute before having his investigator seek out
exculpatory eyewitness accounts cannot be reconciled with
prevailing norms. Shinn’s trial strategy included relying on
percipient eyewitnesses who said Cummings was the shooter.
(See In re Lucas (2004) 33 Cal. 4th 682, 725 [the reasonableness
of any limits on investigation should be evaluated in light of
counsel’s strategy].) Shinn was retained in August 1983; his
6
Both the United States Supreme Court and this court have
treated those standards as persuasive evidence of prevailing
professional norms. (See Rompilla v. Beard, supra, 545 U.S. at
p. 387; Wiggins v. Smith, supra, 539 U.S. at p. 524; In re
Thomas, supra, 37 Cal.4th at p. 1262.)
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Opinion of the Court by Kruger, J.
investigator began working for him no later than May 1984.
Long before January 1985, one month before opening
statements, Shinn could and should have had his investigator
seek out eyewitnesses to determine whether they would testify
favorably and to preserve their recollections. We conclude
Shinn was deficient for not investigating in a timely fashion the
availability of favorable eyewitness testimony.
The referee’s findings identify two reasons competent
counsel might have ultimately hesitated to call Ejinio as a
witness after interviewing him and learning that his account of
the shooting was consistent with Gay’s defense. First, Ejinio
was young—“about to turn nine” at the time of the shooting.7
Second, Ejinio was emotionally affected by the shooting. The
referee found that when Ejinio testified at the reference hearing
more than 30 years later, he was “anxious and distressed”; even
after so much time, “the events of June 1983 were still very
upsetting to him.” The referee noted that the child’s parents had
been reluctant to permit his older sister, Irma, to be involved in
the police investigation and found it likely “they would have
[had] a similar reluctance on behalf of the younger Ejinio.”
The referee’s findings, which we accept, show there are
reasons why competent counsel might reasonably have decided
not to call Ejinio as a witness after interviewing him. But Shinn
never met with Ejinio, directly or through an investigator, and
7
The referee further found that had Ejinio testified, the
trial court would likely have instructed the jury with CALJIC
No. 2.20.1, an instruction governing the evaluation of testimony
by witnesses 10 years old or younger. Gay takes exception to
this finding because the instruction was not promulgated until
1986, after Gay’s trial in 1985. The Attorney General does not
dispute this point, and we do not adopt this finding.
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Opinion of the Court by Kruger, J.
so neither learned what Ejinio might say nor placed himself in
a position to make an informed tactical decision concerning
whether potential drawbacks to calling Ejinio might outweigh
the benefits. “[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.” (Strickland, supra, 466 U.S. at pp. 690–691.)
Shinn’s failure to call Ejinio as a witness cannot be accepted as
a legitimate tactical choice because, under prevailing norms, his
failure promptly to seek out and interview witnesses such as
Ejinio was not the product of a reasonable professional
judgment. (See Wiggins v. Smith, supra, 539 U.S. at pp. 522–
523.)
When “counsel were not in a position to make a reasonable
strategic choice as to whether to” present evidence “because the
investigation supporting their choice was unreasonable”
(Wiggins v. Smith, supra, 539 U.S. at p. 536), a court must
consider whether there is “a reasonable probability that a
competent attorney . . . would have introduced” the evidence the
attorney’s inadequate investigation failed to unearth (id. at
p. 535). Here, eyewitness testimony was critical to the jury’s
decision about the identity of the shooter or shooters. And young
witnesses were already a feature of this trial: The prosecution
relied in part on the eyewitness testimony of 12-year-old Oscar
Martin and 11-year-old Shannon Roberts. (Cummings, supra, 4
Cal.4th at pp. 1259, 1262.)8 In these circumstances, there is a
8
Our previous opinion indicated Roberts was 13.
(Cummings, supra, 4 Cal.4th at p. 1262.) Reexamination of the
record confirms that while Roberts was 13 at the time of trial,
he was 11 at the time of the shooting, the relevant benchmark
for comparative purposes.
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Opinion of the Court by Kruger, J.
reasonable probability that competent counsel, having
conducted an adequate investigation, would have presented
Ejinio’s testimony to bolster Gay’s case that Cummings was the
lone shooter. The uninformed failure to call Ejinio was deficient,
and we must consider whether that deficiency prejudiced the
defense, a subject we will address below. (See Wiggins, at
pp. 535–536.)
Similar considerations come into play when evaluating
Shinn’s failure to interview or call as a witness Irma. The
Attorney General argues it was reasonable for Shinn not to call
her because he had been unable to interview her before trial.
But the reason Shinn did not interview Irma before trial is that
he did not make a timely effort to do so. Shinn’s belated
investigation of potential eyewitnesses is no justification for not
presenting potentially exculpatory evidence. It is, rather, a
mark of counsel’s unprofessional performance. (See Wiggins v.
Smith, supra, 539 U.S. at pp. 522–523, 527–528; Strickland,
supra, 466 U.S. at pp. 690–691.)
The referee identified two additional considerations that
could have weighed against calling Irma to testify. Like Ejinio,
she was affected by witnessing the shooting. The referee found
her emotional state was heightened by the fact that she was
pregnant at the time. And while she was older than her brother,
her contemporaneous description of the shooting contained
several discrepancies when compared with the testimony of
other witnesses that might have been fodder for impeachment
on cross-examination. Irma told police the day after the
shooting that the “driver punched the officer in the face and
pulled the officer’s gun from its holster and shot the officer in
the neck. The driver then shot the officer two more times and
the officer fell backwards. As the car was leaving someone
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Opinion of the Court by Kruger, J.
inside the car threw the gun out of the passenger side window,
and it landed three feet away from the officer lying on the
ground.” The referee concluded: “While her descriptions of the
shooter as a dark complected male Negro and the light skinned
passenger are helpful to petitioner, her recollection of events is
largely inconsistent with that of the other witnesses. These
discrepancies call into question the value and weight of her
testimony.”
Again, competent counsel, having interviewed Irma,
might have chosen not to call her. But Shinn never met with
Irma and so could not have made a strategic judgment that her
testimony would have hurt more than it would have helped. (Cf.
Burger v. Kemp (1987) 483 U.S. 776, 794 [defense strategy
“supported by reasonable professional judgment” where counsel
at least “interview[ed] all potential witnesses who had been
called to his attention”].) Certainly, inconsistencies did not
prevent the prosecution from relying on the testimony of
eyewitnesses (even children), or the jury from crediting such
testimony. (See Cummings, supra, 4 Cal.4th at pp. 1260–1263
[discussing the many internal discrepancies in the testimony of
the prosecution’s eyewitnesses].) As with Ejinio, there is a
reasonable probability competent counsel would have called
Irma, and so we must consider as part of the prejudice flowing
from Shinn’s limited investigation the impact of her potential
testimony. (See Wiggins v. Smith, supra, 539 U.S. at p. 536.)
2.
During the guilt phase trial, Los Angeles County Sheriff’s
Deputy Michael McMullan testified that he and Sergeant
George Arthur were escorting Cummings when he admitted
killing Officer Verna, saying: “ ‘I put six in him.’ ” (Cummings,
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In re GAY
Opinion of the Court by Kruger, J.
supra, 4 Cal.4th at p. 1265.) Another sheriff’s deputy, Rick
McCurtin, testified that on a separate occasion he overheard
Cummings tell another inmate that he had shot Officer Verna
twice in the back, adding: “ ‘Then we put four more.’ ” (Id. at
p. 1266.) Deputy Sheriff David LaCasella testified that
Cummings admitted to putting the first shot in Officer Verna.
(Ibid.) While this testimony inculpated Cummings, Gay argues
that Shinn should have called additional sheriff’s deputies who
heard Cummings confess that he alone killed Officer Verna and
who could have exculpated Gay. We consider two potential
witnesses, Deputies William McGinnis and Richard Nutt.
In October 1984, Deputy McGinnis was escorting
Cummings when Cummings became upset with McGinnis and
threatened him. When McGinnis told Cummings that at least
he, McGinnis, had never shot anyone in the back, Cummings
responded: “ ‘[w]ell, I put two in front of the motherfucker, and
he wouldn’t have got three in the back if he hadn’t turned and
ran, coward punk-ass motherfucker.’ ” (Gay II, supra, 42
Cal.4th at p. 1214.) McGinnis recorded this statement the same
day in a report he submitted to the prosecutor, which was
disclosed to Shinn in discovery. McGinnis also testified to the
conversation during an Evidence Code section 402 hearing
outside the presence of the jury, during which Cummings sought
unsuccessfully to prevent McMullan’s, McCurtin’s, and
McGinnis’s statements from being admitted. Shinn was present
during that hearing and thus aware of McGinnis’s testimony.
The Attorney General concedes Shinn never interviewed
McGinnis and, when the prosecution did not call McGinnis, did
not have McGinnis testify on Gay’s behalf.
The referee concluded Deputy McGinnis’s testimony
“would have been helpful to petitioner.” We agree. McGinnis’s
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Opinion of the Court by Kruger, J.
testimony would have directly supported Gay’s defense that
Cummings was the sole shooter and fired the final shots into
Officer Verna. And as a peace officer with no evident incentive
to see the killer of a fellow officer escape punishment, McGinnis
would have been among the most credible witnesses Gay could
have called in support of his defense.
The referee thought the value of the statement was limited
because Cummings’s statement “was lacking in detail as to the
identity of the shooter.” In context, however, Cummings’s
statement is best understood as an acknowledgment that
Cummings alone shot Officer Verna. Cummings made the
statement in response to Deputy McGinnis’s assertion that
McGinnis, unlike Cummings, had never shot anyone in the
back. Rather than deny that he had shot Officer Verna in the
back (e.g., because it was Gay who had fired the final shots),
Cummings justified doing so, explaining that Verna wouldn’t
have gotten shot in the back if he hadn’t tried to run. Deputy
McGinnis himself understood the statement in just this way. In
a 2003 declaration, McGinnis said: “It was clear to me then as
it is now that Cummings alone pulled the trigger and was the
sole person responsible for killing Officer Verna.” Had he been
called at trial, McGinnis could have testified to his
understanding of what Cummings meant.9 We recognize that
the form of Cummings’s statement may not eliminate all
possible ambiguity, but it would have been more than
reasonable for the jury to interpret the statement as Deputy
9
The Attorney General concedes that “[t]he context and
substance of Cummings’s admissions made ‘clear to [Deputy
McGinnis] . . . that Cummings alone pulled the trigger and was
the sole person responsible for killing Officer Verna.’ ”
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Opinion of the Court by Kruger, J.
McGinnis did—as an admission of sole responsibility for the
shooting.
The referee also concluded that testimony from Deputy
McGinnis would have been “cumulative to the testimony of
Michael McMullan and Rick [McCurtin].” But Deputy McGinnis
was not a witness to confessions the jury had already heard
about; his testimony would have detailed an entirely different
occasion on which Cummings confessed, in a way that clearly
supported the defense theory that Cummings was the sole
shooter. Deputy McCurtin’s testimony suffered from the
difficulty that saying “ ‘we’ ” put four more in Officer Verna did
not sound like an admission of sole responsibility for the
shooting. (See Cummings, supra, 4 Cal.4th at p. 1266 & fn. 9,
italics omitted.) Cummings’s confession to McGinnis, in
contrast, was understood by McGinnis as just such an
admission. We can think of no tactical reason why competent
counsel would, in a case where codefendants pointed the finger
at each other for the murder of a law enforcement officer, pass
up the opportunity to present testimony from a second peace
officer that placed sole responsibility on the other defendant.
In 1984, Los Angeles Sheriff’s Deputy Richard Nutt was
tasked with escorting Cummings to the shower. According to
the referee’s findings, Cummings said to Nutt, “ ‘Hey Nutt. I
killed Verna. He had about sixteen years on. When I get out of
prison you will have about sixteen years on and I will kill you
too.’ ” Nutt replied, “ ‘You’re a coward. I know you shot Verna
in the back. If you want to take a shot at me, do it to my face.’ ”
Cummings did not respond. Deputy Nutt reported the exchange
to his “supervisor, Sergeant George Arthur, who declined to take
a formal report due to the number of similar comments made by
Raynard Cummings to other Sheriff’s personnel.” Like Deputy
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McGinnis, Sergeant Arthur was identified “in reports compiled
by the investigating officers and provided to the defense in
discovery materials.”
There appears to be no dispute that as with Deputy
McGinnis, Shinn never met, directly or indirectly, with Sergeant
Arthur or Deputy Nutt. The referee found that “Nutt’s
testimony would not have been available to Shinn in 1985 as his
contact with the persons accused [of] the killing of Officer Verna
did not come to light until at or near the time of the 2000 retrial.”
Gay takes exception to this finding. He argues that had Shinn
interviewed Sergeant Arthur, Nutt’s supervisor, it is reasonably
likely he would have learned of the exchange Deputy Nutt had
with Cummings.
We decline to adopt the referee’s finding that Deputy
Nutt’s testimony would have been unavailable to Shinn. True,
“the duty to investigate does not force defense lawyers to scour
the globe on the off chance something will turn up; reasonably
diligent counsel may draw a line when they have good reason to
think further investigation would be a waste.” (Rompilla v.
Beard, supra, 545 U.S. at p. 383.) But Nutt’s testimony was
discoverable with minimal effort. As the referee found, Nutt
reported Cummings’s confession to Sergeant Arthur. As the
referee also found, Shinn was provided with Sergeant Arthur’s
name in discovery as a witness to Cummings’s jailhouse
confessions.
Gay was charged with the murder of a police officer. In
such a case, peace officers would have had every incentive to
ensure that those responsible were convicted. Exculpatory
testimony from a peace officer would have been some of the most
persuasive evidence a defense attorney could present. Through
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Opinion of the Court by Kruger, J.
discovery, Shinn was aware of evidence that Cummings freely
confessed to the shooting. The professionally appropriate
response to this information would have been to contact each
peace officer mentioned as having had contact with
Cummings—including Sergeant Arthur—to ask about any
confessions they had witnessed or knew of and to solicit evidence
that Cummings, alone, killed Officer Verna. Such an
investigation would have, in all likelihood, uncovered
Cummings’s confession to Deputy Nutt.
The Attorney General argues that Deputy Nutt would
have been readily impeached because he told homicide
investigators in 2000 that it was Gay whom he escorted to the
showers and who confessed to killing Officer Verna. The written
report prepared by detectives who interviewed Nutt then does
indicate the speaker was Kenneth Gay, but at the reference
hearing Nutt identified a booking photo of Cummings and
testified adamantly and at length, on direct and on cross-
examination, that the detectives had misunderstood his
statements as relating to Gay, whom he had never met. The
referee credited this testimony and concluded it was Cummings
who confessed to and threatened Nutt. The 2000 written report
gives no reason to think Nutt, if called to testify at the 1985 trial,
would have had any doubt it was Cummings with whom he
spoke.
Shinn’s defense of Gay relied in part on highlighting
prosecution testimony that Cummings confessed to shooting
Verna. Calling additional such witnesses, witnesses who could
support the theory that Cummings alone shot Verna, would
have been fully consistent with Shinn’s strategy. Given the
potential value of peace officer testimony, we can conceive no
tactical reason why competent counsel would have declined to
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investigate the availability of such witnesses and instead simply
relied on whichever witnesses the prosecution chose to call.
Shinn’s performance in failing to investigate this line of defense
was deficient. (See In re Lucas, supra, 33 Cal.4th at pp. 725–
731.)
D.
Taken alone, these deficiencies would be troubling
enough. But the specific instances of Shinn’s failure to
competently pursue Gay’s defense must be considered in their
broader context—namely, the context of an attorney-client
relationship poisoned at its root by fraud. As we explained in
our previous opinion and discussed above, Shinn used deception
to insinuate himself into the representation of Gay, who was
originally represented by the public defender.10 An earlier
reference hearing established the following: “ ‘While Petitioner
was in county jail in late June, 1983, Shinn and Marcus
McBroom introduced themselves to Petitioner. McBroom
identified himself as a minister and told Petitioner that he
represented a group of black businessmen that wished to hire a
lawyer for Petitioner. McBroom was an ordained minister. Both
Shinn and McBroom encouraged Petitioner to retain Shinn.
Petitioner said he had no money to retain counsel and Petitioner
was told not to worry [because] this group of black businessmen
would take care of Shinn’s fee. [¶] Shinn never quoted a fee,
was paid a fee, or attempted to collect a fee from the alleged
10
We did not ask the referee additional questions about this
initial fraud; the relevant facts had already been established in
an earlier reference hearing in connection with Gay’s first
habeas corpus petition. (See Gay I, supra, 19 Cal.4th at pp. 794–
795.)
34
In re GAY
Opinion of the Court by Kruger, J.
group of businessmen. [¶] There is no evidence to cause this
Court to believe that there ever was any group of “black
businessmen” to pay Shinn’s retainer. Shinn later told
Petitioner to tell the court that his parents had paid a retainer
to Shinn. This was not accurate. Shinn never had any
reasonable belief that he would be paid by any group of
businessmen or Petitioner’s family. Shinn’s intent from early
on was to seek appointment by the Court.’ ” (Gay I, supra, 19
Cal.4th at p. 794.) There were no exceptions to these findings,
which were amply supported by the record, and we adopted
them, concluding: “Shinn engineered both his initial retention
and subsequent appointment by fraudulent means.” (Id. at
p. 795.)
Thus, from the very outset, Shinn showed himself willing
to deceive Gay (and the court) to further his own personal ends.
The duty of loyalty is “perhaps the most basic of counsel’s
duties.” (Strickland, supra, 466 U.S. at p. 692.) Shinn’s
stunning breach of professional norms casts doubt on the usual
assumption that counsel thereafter assumed and fulfilled this
duty, acting in Gay’s best interests and ensuring the
prosecution’s case would be subject to the requisite adversarial
testing.11 (See Gay I, supra, 19 Cal.4th at pp. 831–834 (conc.
opn. of Werdegar, J.).)
11
Recommending Shinn be disbarred on unrelated grounds
several years later, the State Bar Court concluded “Shinn ‘lacks
basic understanding of the most fundamental responsibilities of
an attorney as embodied in the provisions of the Business and
Professions Code and the Rules of Professional Conduct.’ ” (Gay
I, supra, 19 Cal.4th at p. 780, fn. 5, quoting In the Matter of
Shinn (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 96, 107.)
35
In re GAY
Opinion of the Court by Kruger, J.
Our evaluation as to whether Gay’s conviction was the
product of a reliable proceeding also takes into account the
referee’s findings concerning a second potential conflict of
interest. In an unrelated eminent domain action, Shinn
obtained a judgment of nearly $200,000 for his clients Oscar and
Marjorie Dane. The Danes refused to accept the funds, believing
their property was worth substantially more. Although the trial
court ordered Shinn to keep the funds in an interest-bearing
trust account for the benefit of the Danes, Shinn failed to do so.
He instead loaned $50,000 of these funds to one person, wrote a
check for $2,000 to another, and used $70,000 to make
restitution to a previous set of clients from whom he had
misappropriated money, Alexander and Rebecca Korchin.
The Danes contacted the Major Frauds Division of the Los
Angeles County District Attorney’s Office to complain that the
City of Santa Monica had stolen their home. Deputy District
Attorney Albert MacKenzie and Los Angeles County Sheriff’s
Department Detective Charles Gibbons determined an eminent
domain judgment had been entered but no money paid to the
Danes. On March 1, 1984, after Shinn had begun representing
Gay, MacKenzie and Detective Gibbons met with Shinn at the
Criminal Courts Building in downtown Los Angeles and asked
Shinn for an accounting of the Danes’ funds. Eventually, in
1985, the Danes were persuaded to accept nearly $180,000 from
Shinn. Had Shinn invested the Danes’ funds in an interest-
bearing account as the court had ordered, “the Danes would
have received substantially more.” MacKenzie declined to file
criminal charges against Shinn and the case was closed in 1987.
MacKenzie testified: “ ‘I could never reach a point where I had
. . . what I considered . . . a provable embezzlement.’ ” Thus,
throughout Gay’s trial, Shinn was the subject of an open
36
In re GAY
Opinion of the Court by Kruger, J.
investigation by the same prosecutor’s office that was charging
his client. He should have reported the investigation to Gay and
to the trial court; there is no record that he ever did.
The right to the assistance of counsel secured by the Sixth
Amendment to the federal Constitution and article I, section 15,
of the California Constitution “includes the correlative right to
representation free from any conflict of interest that
undermines counsel’s loyalty to his or her client.” (People v.
Doolin (2009) 45 Cal. 4th 390, 417; see Wood v. Georgia (1981)
450 U.S. 261, 271.) Whether being the subject of an active
embezzlement investigation created an actual conflict of
interest and deprived Gay of his right to the effective assistance
of counsel depends on “whether counsel ‘pulled his punches,’ i.e.,
whether counsel failed to represent defendant as vigorously as
he might have, had there been no conflict” (People v. Cox (2003)
30 Cal. 4th 916, 948) and whether Gay was prejudiced thereby
(Doolin, at pp. 418–421).
The referee thought this unlikely. As the referee noted,
the Los Angeles County District Attorney’s Office is a massive
office; the prosecutor who tried Gay’s case was not acquainted
with the prosecutor who investigated Shinn; and there is no
indication that the trial prosecutor in this case was aware that
Shinn was being investigated by another part of the district
attorney’s office. For these reasons, the referee concluded:
“Whatever deficiencies or shortcomings may have resulted from
Shinn’s representation of petitioner during the 1985 guilt phase
trial, none can be linked to the embezzlement investigation or
characterized as an attempt to curry favor with the
prosecutors.”
37
In re GAY
Opinion of the Court by Kruger, J.
We agree with the referee that the evidence establishes no
firm link. And because Shinn was not available to testify at the
reference hearing, we have no way to know to what extent his
concerns about the embezzlement investigation may or may not
have affected his performance in Gay’s case. But given the
history of the representation, we cannot entirely disregard the
referee’s underlying findings. (See Gay I, supra, 19 Cal.4th at
p. 828 [the fraud at the inception of the relationship and the
embezzlement investigation both “contribute to our lack of
confidence in the verdict when considered with Shinn’s other
failings”].) Those findings establish that after committing fraud
to obtain representation of Gay, Shinn was soon under
considerable personal pressure to avoid prosecution by the same
prosecutor’s office and financial pressure from the looming need
to make restitution to other clients. Shinn defaulted on his
obligation to inform his client, as well as the court. Although we
cannot definitively link Shinn’s deficiencies and shortcomings to
the pending embezzlement investigation, collectively the
circumstances surrounding Shinn’s representation of Gay
reinforce our conclusion that Gay did not receive the benefit of
the assistance of competent counsel loyal foremost to his
interests.
E.
To obtain relief, Gay must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland, supra, 466 U.S. at p. 694; accord,
People v. Rices (2017) 4 Cal.5th 49, 80; Gay I, supra, 19 Cal.4th
at p. 790.) Where, as here, counsel’s performance has been
shown to be deficient in multiple respects, we do not consider
38
In re GAY
Opinion of the Court by Kruger, J.
each error in isolation. We instead consider the cumulative
impact of the errors on the fairness of the trial. (See Gay I, at
p. 826.) How readily deficient performance undermines
confidence in the trial’s outcome will in part depend on the
strength of the trial evidence on any decisive points. A “verdict
or conclusion only weakly supported by the record is more likely
to have been affected by errors than one with overwhelming
record support.” (Strickland, at p. 696.)
An analysis of prejudice under Strickland does not involve
the application of “mechanical rules.” (Strickland, supra, 466
U.S. at p. 696.) Instead, “the ultimate focus . . . must be on the
fundamental fairness of the proceeding whose result is being
challenged. In every case the court should be concerned with
whether, despite the strong presumption of reliability, the result
of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on
to produce just results.” (Ibid.) We have previously concluded
that “the cumulative impact of Shinn’s many failings,” both his
potential conflicts and his specific deficiencies at the penalty
phase, undermined our faith in the jury’s penalty verdict. (Gay
I, supra, 19 Cal.4th at p. 826.) Today, considering the impact of
specific additional instances of deficient performance in the light
of those same conflicts and misfeasance, we conclude Shinn’s
many failings critically undermine our faith in the jury’s guilt
phase verdict as well.
We begin with Shinn’s decision to advise Gay to confess to
his involvement in a series of robberies, for no evident strategic
reason and without a firm deal in place that would have
prevented the prosecution from introducing the confessions
against him at trial. (See ante, at pp. 16–18; Gay I, supra, 19
Cal.4th at pp. 791–792.) Examining the likely effect on the
39
In re GAY
Opinion of the Court by Kruger, J.
sentence Gay received, we explained in Gay I: “The prejudicial
impact at the penalty phase of the admission of petitioner’s
statement confessing to the robberies cannot be understated.
Shinn not only acted as a second prosecutor by creating the
evidence that led to petitioner’s conviction of the robberies, his
conduct permitted the prosecutor to portray petitioner as an
admitted serial robber who killed a police officer to avoid arrest
and prosecution for the robberies. That picture of defendant,
absent any substantial mitigating evidence, would be
devastating to any hope for a sentence less than death.” (Gay I,
at pp. 793–794.)
The effect at the guilt phase would likewise have been
considerable. Among the robbery victims, only a single one
identified Gay as a participant. (See Cummings, supra, 4
Cal.4th at pp. 1306–1311.) In the absence of Gay’s confessions,
the prosecution would have had to rely principally on the
testimony of Pamela Cummings, who asserted Gay was a
confederate (see ibid.) but was impeachable based on her
incentive to minimize her own and her husband’s culpability for
the robberies, as well as her husband’s involvement in the
murder.12 Instead, the prosecution was able to rely on Gay’s
own admission that he participated in the series of armed
robberies, and to replace any doubt that Gay and Cummings
acted as a team with certainty. (See Gay I, supra, 19 Cal.4th at
p. 793 [“The statement Shinn misled petitioner into making, a
stipulation that petitioner was a serial robber, made it
unnecessary for the jury to grapple with the question of
12
The prosecution conceded the weakness of Pamela’s
testimony in closing argument, describing her as “not a
completely honest witness by any stretch of the imagination.”
40
In re GAY
Opinion of the Court by Kruger, J.
corroboration [of Pamela Cummings]. The statement Shinn
incompetently elicited from petitioner made the prosecution’s
case.”].) The taped confessions, played for the jury, portrayed
Gay through his own words as an active participant and a man
of violence, someone who modified a knife’s handle to improve
its grip and make it easier to use, generally carried a gun, and
even broke his .32-caliber handgun on the head of one
unfortunate robbery victim.
In turn, that crime spree participation formed the
centerpiece of the prosecution’s argument that Gay also shot
Officer Verna and that the shooting was premeditated. (See
Cummings, supra, 4 Cal.4th at p. 1257; Gay I, supra, 19 Cal.4th
at p. 827.) In closing argument, the prosecutor explained why
Gay had a motive equal to Cummings. He speculated that
Cummings and Gay surely would have had “conversations over
a period of weeks when they are doing the robberies. [¶] If you
are responsible for as many robberies as these men were, that
subject has got to come up. [¶] ‘What are we going to do if we
run into the police?’ Because now they were committing some
[crimes] and the reason they have to discuss it is kind of logical.
[¶] Maybe it is not something you spend any amount of time
thinking about, but if you do it, it makes sense th[a]t they talk
about it. Here’s why. [¶] Two people doing these robberies. If
one of them is going to violently resist the police and shoot his
way out, the other one has to be willing to do the same thing.
[¶] If one of them isn’t going to do any shooting and he says,
‘Oh, no. If the police get me, I am going to surrender,’ [then] the
other one has to do the same thing. [¶] They have to coordinate.
[¶] It wouldn’t make any sense for one of them to react one way
and the other one to react the other way. [¶] Imagine the man
says I am not going to shoot my way out, I am going to surrender,
41
In re GAY
Opinion of the Court by Kruger, J.
turns to his partner and says, what are you going to do? [¶] He
says, ‘I am going to shoot my way out.’ [¶] So in this case, they
both decide to shoot.” Describing Gay’s motive, the prosecutor
asked the jury to “[i]magine how worried you would be if you
were responsible for 17 armed robberies in the Valley. You
would probably be frantic about it.” The murder was
premeditated because “with all these robberies being
committed, it is obvious that [Cummings and Gay] had to plan
what their response would be, and in fact they killed Paul Verna
in accordance with that plan.”
True, “[t]he evidence of motive was not limited to evidence
of the robberies of which Gay was convicted, but included
evidence of the joint commission of another robbery, evidence
that the car used by defendants was stolen, and evidence of
parole violation.” (Cummings, supra, 4 Cal.4th at p. 1324.) But
even if the prosecutor could have argued about Gay’s motive to
escape law enforcement detection, the argument would have
been considerably weaker had Gay not confessed to his role in
the lengthy series of armed robberies of which the jury would
later convict him. It is unsurprising, then, that the prosecution
chose to place principal reliance on Gay’s admission to
committing the series of charged robberies with Cummings as
the basis for its theory that Gay and Cummings agreed to shoot
their way out rather than allow themselves to be captured.
Shinn’s decision to have Gay meet with and confess to the
prosecution had other collateral consequences. As part of the
defense case, Shinn called Detective Holder to testify concerning
Gay’s interview. In the course of direct examination, Shinn
elicited from Holder his belief that Gay was telling the truth
when he confessed to the robberies but was lying as to the other
matters discussed that day, i.e., participation in the Verna
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Opinion of the Court by Kruger, J.
murder. According to Holder, Detective Helvin and the
prosecutor shared these views. (See Cummings, supra, 4
Cal.4th at pp. 1269, 1340.) Shinn thus exacerbated the impact
of the confessions by putting before the jury evidence that any
Gay denial of participation in shooting Officer Verna was a lie.
Moreover, by “falsely assuring [Gay] that the statement
would not be admissible at trial” (Gay I, supra, 19 Cal.4th at
p. 781), Shinn severely damaged the attorney-client
relationship and Gay’s ability to trust Shinn and assist in his
ongoing defense. The court’s ruling that the confessions could
be admitted left Gay “believ[ing] that Shinn had not acted in
Gay’s best interest” and that “Shinn had deceived Gay”
concerning discussions with the prosecution. (Cummings,
supra, 4 Cal.4th at p. 1319.) Gay sought without success to
dismiss Shinn. (Cummings, at pp. 1319–1321.) Thereafter, Gay
was represented by an attorney in whom he could place little
confidence.
In the absence of physical evidence, eyewitness testimony
describing the shooting was central to each side’s case. Alone
among the witnesses at trial, Oscar Martin identified
Cummings as the sole shooter. (Cummings, supra, 4 Cal.4th at
p. 1259; see id. at pp. 1259–1263.) Had they testified, Ejinio and
Irma Rodriguez could have provided testimony that also pointed
to Cummings as the sole shooter.13 Crucially, they also could
have offered an explanation for why other eyewitnesses seemed
13
As discussed ante at pages 24 to 26, we find a reasonable
probability competent counsel would have called both to testify.
We thus must consider at the prejudice stage of our analysis
what the impact of this testimony would have been. (See
Wiggins v. Smith, supra, 539 U.S. at pp. 535–536.)
43
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Opinion of the Court by Kruger, J.
to think Gay had fired some of the shots. After the shooter got
back in the car, both saw the car drive off but then return shortly
and a second lighter skinned man in a lighter shirt (by inference,
Gay) get out and retrieve a gun. Their testimony would have
supported an argument that those who thought Gay was a
shooter had indeed seen him outside the car, with a gun, near
Verna, and thus erroneously inferred he had fired some of the
shots. No witness at trial identified Cummings as the shooter
and Gay getting out only after all the shots had been fired. In
the absence of such testimony, Shinn was left to argue that the
majority of eyewitnesses, who testified Gay fired the final shots,
were simply mistaken. We have previously recognized Ejinio’s
and Irma’s testimony would have “substantially bolstered” the
theory that Gay was not a shooter when holding that the trial
court erred in excluding it from the 2000 penalty retrial. (See
Gay II, supra, 42 Cal.4th at p. 1224; see also id. at p. 1216.)14
The case that Cummings was the sole shooter would
similarly have benefited from the testimony of peace officers
who heard Cummings confess. The peace officers the
prosecution called mostly described statements that could
14
At oral argument, the Attorney General stressed that
Ejinio and Irma were farther away from the shooting than
prosecution witnesses such as Robert Thompson. But they were
at the very same location as Shannon Roberts, and at a similar
distance as Shequita Chamberlain and Rose Marie Perez, each
of whom the prosecution called. Nor did closer eyewitnesses
necessarily have a better vantage. Thompson, the closest
witness, was on a ladder across the street facing away from the
traffic stop. After the first shot, he testified he got down off the
ladder, sought out a safe place, and only looked back after
finding shrubbery to hide behind. Witnesses farther away were
not impaired by the need to attend to personal safety.
44
In re GAY
Opinion of the Court by Kruger, J.
equally point to Gay as a shooter. In particular, Deputy
McCurtin testified that Cummings said after he initially shot
Officer Verna, “ ‘we put four more’ ” shots in him. (Cummings,
supra, 4 Cal.4th at p. 1266.) Deputy LaCasella testified he
“heard Cummings yell: ‘You know how he got number six[,]
don’t you?’ Gay then replied: ‘Number six?’ Cummings said
‘yeh,’ and then yelled: ‘That’s the one I put in the
motherfucker.’ ” (Ibid.) These statements could constitute an
admission that Cummings fired only one shot, “number 6”—the
number assigned the gunshot wound from the very first shot by
the deputy medical coroner who testified at trial (id. at
p. 1267)—and that by his silence Gay admitted firing the
remaining five shots. In closing argument, the prosecution
urged exactly this interpretation.
Potential witnesses Deputy Nutt and Deputy McGinnis, in
contrast, could have testified to statements that more clearly
tended to exculpate Gay. (See ante, at pp. 26–31.) Deputy
McGinnis’s testimony was among that referenced when we
criticized the trial court at Gay’s penalty retrial for excluding
“the far more powerful evidence that [Cummings] himself, on at
least four occasions, had admitted firing all of the shots.” (Gay
II, supra, 42 Cal.4th at p. 1224.) The testimony of peace officers
to confessions that implicated Cummings and exonerated Gay
in the murder of a police officer is among the most compelling
evidence Shinn could have had at his disposal, had he only
investigated and developed it.
These deficiencies matter more because of the state of the
record at trial. There was no physical evidence linking Gay to
the shooting. (Gay II, supra, 42 Cal.4th at p. 1226.)
Eyewitnesses’ “versions of the events and identification of the
shooter or shooters varied greatly.” (Cummings, supra, 4
45
In re GAY
Opinion of the Court by Kruger, J.
Cal.4th at p. 1259; see Gay II, at pp. 1226–1227.) Apart from
discrepancies in the testimony of each eyewitness as compared
with the testimony of the others, individual eyewitnesses told
versions of events and made identifications that sometimes
changed from the shooting’s aftermath to lineups to the
preliminary hearing to trial. (See Cummings, at pp. 1259–1263;
Gay II, at pp. 1226–1227.)15 The star witness against Gay,
Pamela Cummings, had evident biases (Gay II, at p. 1227), was
conceded by the prosecutor to be dishonest, and had originally
tried to falsely implicate another man, Milton Cook, as the
shooter until he turned up with an alibi (id. at pp. 1206–1207).
The Attorney General notes that we have had prior
opportunities to grant Gay relief based on a claim of ineffective
assistance of counsel at the guilt phase of his trial but have not
yet done so. (See Cummings, supra, 4 Cal.4th at pp. 1339–1342;
Gay I, supra, 19 Cal.4th at pp. 780, fn. 6, 781–782.) This is true,
but it does not affect our evaluation of the claim he now raises.
Gay did present a similar claim on direct appeal, but because he
was unable to raise matters outside the record, that claim was
necessarily incomplete. (See Cummings, at pp. 1341–1342
[denying relief based on the inadequacy of the record].) And
although Gay raised a guilt phase ineffective assistance claim in
his first habeas corpus petition, the presentation was likewise
15
As one example, Robert Thompson identified the taller
Black man in the backseat as the lone shooter when interviewed
on the day of the shooting and was unable to identify Gay in a
lineup shortly thereafter. Before a grand jury, Thompson
repeated that the dark-skinned backseat passenger was the
shooter. But then at the preliminary hearing and trial,
Thompson positively identified Gay as the front-seat passenger
who exited the car holding a gun.
46
In re GAY
Opinion of the Court by Kruger, J.
incomplete, identifying some but not all of the deficiencies that
we address today. In particular, that petition did not plead a
claim that Shinn was deficient for failing to investigate and
present testimony from Ejinio Rodriguez, Deputy William
McGinnis, or Deputy Richard Nutt. Because Gay’s earlier
attempts to argue that he received the ineffective assistance of
counsel at the guilt phase were raised on direct appeal and in a
habeas corpus petition filed before our clarification of the limits
on successive petitions (In re Clark, supra, 5 Cal.4th at pp. 767–
782), they do not bar relief on the more complete record he now
presents (see In re Robbins, supra, 18 Cal.4th at p. 788, fn. 9;
People v. Mendoza Tello (1997) 15 Cal. 4th 264, 267).
In light of both the specific deficiencies we have addressed
and the deception at the inception of Shinn’s representation, we
cannot say Gay’s murder conviction was the product of a
trustworthy adversarial process. Defense counsel obtained
appointment to represent Gay through fraud, counseled him to
make damaging confessions to the prosecution without
safeguards to ensure the confessions would not be used without
a deal (while deceiving him as to whether such safeguards were
in place), and failed to conduct a timely investigation into
available testimony from eyewitnesses who would have
exculpated Gay and peace officers who would have inculpated
Gay’s codefendant, Raynard Cummings. Counsel turned in this
performance in a case where the evidence at trial left open a
nontrivial possibility that his client bore no responsibility for the
death of the victim. And given Shinn’s manifest willingness to
disregard fiduciary responsibilities, we cannot be entirely
confident that even the other decisions challenged in the habeas
corpus petition that might ordinarily fall within the very broad
range of discretion we generally accord counsel were
47
In re GAY
Opinion of the Court by Kruger, J.
uninfluenced by Shinn’s readiness to place his own interests
first and choose an easier, more personally beneficial path over
the path that would best serve Gay.
It is not inconceivable that even with the assistance of
competent counsel, the jury might still have voted for guilt. But
“that is not the test.” (Rompilla v. Beard, supra, 545 U.S. at
p. 393.) Gay has shown “that counsel’s errors were so serious as
to deprive [him] of a fair trial, a trial whose result is reliable.”
(Strickland, supra, 466 U.S. at p. 687.) Defense counsel’s
multiple failings are, in combination, of sufficient gravity to
overcome the strong presumption of reliability accorded final
judgments and to undermine our ability to place faith in the
jury’s determination that Gay shot Officer Paul Verna. Gay has
demonstrated prejudice.
IV.
We conclude Gay has established entitlement to habeas
corpus relief on his claim that he was denied the effective
assistance of counsel at the guilt phase of his trial. We grant
relief and vacate the judgment against Gay in Los Angeles
County Superior Court Case No. A392702 insofar as it rests on
Gay’s conviction for first degree murder. The petition’s
remaining claims will be resolved by later order to be filed
separately.
48
In re GAY
Opinion of the Court by Kruger, J.
Upon finality of our opinion, the Clerk of the Supreme
Court is to remit a certified copy of the opinion to the Los
Angeles County Superior Court for filing, and respondent
Attorney General is to serve a copy of the opinion on the
prosecuting attorney. (See Pen. Code, § 1382, subd. (a)(2).)
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
49
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Gay
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S130263
Date Filed: February 13, 2020
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: L. Jeffrey Wiatt
__________________________________________________________________________________
Counsel:
Gary D. Sowards, Jennifer Molayem, Patricia Daniels and Kimberly Dasilva for Petitioner Kenneth Earl
Gay.
Lawrence J. Fox, George W. Crawford, Sadella D. Crawford; Drinker Biddle & Reath and Erin E.
McCracken for Ethics Bureau at Yale as Amicus Curiae on behalf of Petitioner Kenneth Earl Gay.
Debevoise & Plimpton, Donald Francis Donovan, Stuart C. Naifeh, Ina C. Popova and Samantha J. Rowe
for United Kingdom of Great Britain and Northern Ireland as Amici Curiae on behalf of Petitioner Kenneth
Earl Gay.
Bill Lockyer, Edmund G. Brown, Jr., Kamala Harris and Xavier Becerra, Attorneys General, Robert R.
Anderson, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Pamela C. Hamanaka
and Lance E. Winters, Assistant Attorneys General, Sharlene A. Honnaka, James William Bilderback and
David F. Glassman, Deputy Attorneys General, for Respondent the State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gary D. Sowards
Habeas Corpus Resource Center
303 Secont St., Suite 400 South
San Francisco, CA 94107
(415) 348-3800
Lawrence J. Fox
Yale Law School
127 Wall Street
New Haven, CT 06511
(203) 432-9358
David F. Glassman
Deputy Attorney General
300 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 897-2355