In re Champion

Filed 4/14/14
IN THE SUPREME COURT OF CALIFORNIA
In re STEVE ALLEN CHAMPION )
)
on Habeas Corpus. ) S065575
)
____________________________________)
Petitioner Steve Allen Champion seeks relief on habeas corpus from the
judgment of death entered against him in 1982 in Los Angeles Superior Court,
case No. A365075. On direct appeal, we affirmed that judgment and a judgment
of death against his codefendant, Craig Anthony Ross. (People v. Champion
(1995) 9 Cal.4th 879 (Champion).) In 2002, we issued an order to show cause
based on petitioner‟s allegation, in a petition for writ of habeas corpus, that his
trial attorney (Ronald Skyers, now a Los Angeles Superior Court Judge)
ineffectively represented him at the penalty phase of trial. We appointed the
Honorable Francisco P. Briseño, Judge of the Orange County Superior Court, as
referee, and directed him to take evidence and make findings of fact. Judge
Briseño has done so. Based on his findings, we deny relief.
I. TRIAL EVIDENCE
Below is a summary of the evidence at petitioner‟s capital trial.
Elizabeth Moncrief, a nurse caring for a neighbor, saw four men forcibly
enter the home of Bobby and Mercie Hassan on December 12, 1980. Later that
day, police found the bodies of Bobby Hassan (an unemployed carpenter who sold
marijuana) and his 14-year-old son Eric (described by his stepmother Mercie as
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“handicapped”) on a waterbed in the home. Bobby‟s hands were tied behind his
back; each victim had been shot once in the head. Items were missing from the
house. At trial, Moncrief identified petitioner and codefendant Craig Anthony
Ross as two of the men she had seen entering the Hassan home. On cross-
examination, Moncrief admitted that she had previously identified two other men,
neither of whom had any connection to petitioner, as two of the intruders.
(Champion, supra, 9 Cal.4th at pp. 898-899.)
When arrested a month after the two murders, petitioner was wearing a ring
and a necklace bearing a charm with the king of hearts. Bobby Hassan‟s wife,
Mercie, testified that the ring and the necklace had belonged to her husband.
(Champion, supra, 9 Cal.4th at p. 899.) The prosecution introduced a tape
recording of a conversation between petitioner and codefendant Ross in the bus
transporting them between the court and the jail after their arrest for the murders.
On the bus, the two men spoke briefly of a waterbed; at trial, the prosecution
argued that they were referring to the waterbed on which the two Hassans were
killed. (Champion, supra, 9 Cal.4th at pp. 909-910.)
Both Hassans were shot in the back of the head with a .357-caliber bullet
with rifling characteristics typical of Colt revolvers. Photographs found in
petitioner‟s home showed petitioner and codefendant Ross each holding a Colt
revolver that was either .38- or .357-caliber. Ross‟s fingerprints were found on
Christmas wrapping paper and a white cardboard box at the Hassan home.
(Champion, supra, 9 Cal.4th at pp. 899-900.)
The prosecution also introduced evidence of crimes committed at the home
of Cora, Mary, and Michael Taylor, who lived eight blocks from the Hassans. On
December 27, 1980, two weeks after the murder of the two Hassans, three Black
men invaded the Taylor house looking for drugs, and a fourth man (apparently a
lookout) came to the door but did not enter. The men fatally shot Michael (who,
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like Bobby Hassan, was a marijuana dealer) and one of the men raped Mary.
Codefendant Ross‟s fingerprints were found at the scene. (Champion, supra, 9
Cal.4th at pp. 900-901.)
Later that same night, a Los Angeles County Sheriff‟s deputy tried to stop a
speeding brown Buick automobile. When the car struck a curb and came to a halt
near petitioner‟s house, the car‟s occupants (four Black males) ran away, but a
sheriff‟s deputy found Jerome Evan Mallet (Evan Mallet or Mallet) hiding in the
back yard of petitioner‟s home. In the car, the deputy found a tape player and a
photograph album stolen from the Taylors and a .357-caliber revolver stolen from
the Hassan home. According to a ballistics expert, the bullet that killed Michael
Taylor could have been fired by the revolver, which contained two live rounds and
an empty shell casing and smelled as if it had recently been fired. (Champion,
supra, 9 Cal.4th at pp. 900-901.)
At trial, Cora and Mary Taylor identified codefendant Ross and Evan Mallet
as two of the men who had invaded their home and murdered Michael Taylor, and
Mary identified Ross as the one who had raped her. Cora also identified petitioner
as one of the perpetrators. Because the Taylors had not previously identified
petitioner, he had not been charged with the offenses committed at the Taylor
home. (Champion, supra, 9 Cal.4th at pp. 900-901.)
The prosecution also introduced evidence that a month before the two
Hassans were murdered, the body of Teheran Jefferson, a third marijuana dealer
who lived in the same block as the Hassans, was found in his home. The upper
torso of Jefferson‟s body was on his bed, while his legs and feet were on the floor.
Like Bobby Hassan, his hands were tied behind his back, and (like the Hassans) he
had been shot once in the head with a bullet of .38- or .357-caliber. The
prosecution produced no evidence (apart from the similarities of the crimes)
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linking either petitioner or codefendant Ross to Jefferson‟s death. (Champion,
supra, 9 Cal.4th at p. 917.)
The prosecutor argued to the jury that all of the murders described above
were committed by the Raymond Avenue Crips, a criminal street gang operating
in the Los Angeles neighborhood where the murders occurred, as part of a plan to
kill and rob drug dealers operating on their turf. The prosecution introduced
evidence that petitioner, codefendant Ross, and Mallet were members of that gang,
and that the brown Buick car tied to the Hassan and Taylor killings was owned by
the stepfather of gang members Marcus and Michael Player. (Champion, supra, 9
Cal.4th at pp. 919-921.)
Petitioner presented an alibi defense, testifying that on the morning that
Bobby and Eric Hassan were murdered, he and his brothers, Reginald and Louis,
picked up his paycheck from Prompt Service, a “temporary personnel” agency that
had employed him. He then went home, where he spent the afternoon. His
brother Reginald and his mother Azell corroborated his account. (Champion,
supra, 9 Cal.4th at p. 902.)
The jury convicted both petitioner and codefendant Ross of burglarizing the
Hassan home and of robbing and murdering Bobby and Eric Hassan. As to each
defendant, the jury found true special circumstance allegations of multiple murder,
burglary murder, and robbery murder. The jury also convicted codefendant Ross
of numerous felonies, including murder, committed at the Taylor home. In a
separate trial held before that of petitioner and codefendant Ross, Evan Mallet was
convicted of murder and other felonies at the Taylor home.
At the penalty phase, the prosecution presented evidence that in November
1977, petitioner and seven other youths robbed Vincent Verkuilen, Jerry Stanger,
and Laura Surgot at gunpoint at a Greyhound Bus depot in West Covina. The
prosecution also presented evidence that in September 1978, petitioner and four
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other youths approached Jose Bustos and his wife in a park and took their radio.
When Bustos tried to retrieve it, petitioner kicked him, hit him on the head with a
knife, and cut his finger with a switchblade. Petitioner was a minor when he
committed these two offenses. As a result of the second offense he was
committed to what was then called the California Youth Authority (CYA), now
the Division of Juvenile Facilities of the California Department of Corrections and
Rehabilitation, from which he was released on parole less than two months before
committing the murders in this case. Petitioner was 18 years old at the time of
those murders.
Petitioner‟s trial attorney, Ronald Skyers, called two penalty phase
witnesses: Azell Champion (petitioner‟s mother) and Thomas Crawford (his CYA
parole officer). Petitioner‟s mother testified that on the day petitioner was arrested
for the two murders in this case, he was to start work at Gompers Junior High
School in Los Angeles. Parole Officer Crawford said petitioner was cooperative
and maintained satisfactory contact during the three months that he was on parole.
(Champion, supra, 9 Cal.4th at p. 904.)
II. ORDER OF REFERENCE
We asked the referee to take evidence and make findings of facts on these
questions:
“1. What actions did petitioner‟s trial counsel take to investigate potential
evidence that could have been presented in mitigation at the penalty phase of
petitioner‟s capital trial? What were the results of that investigation?
“2. What additional mitigating evidence, if any, could petitioner have
presented at the penalty phase? How credible was this evidence?
“3. What investigative steps, if any, would have led to this additional
evidence? In 1982, when petitioner‟s case was tried, would a reasonably
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competent attorney have tried to obtain such evidence and to present it at the
penalty phase?
“4. What circumstances, if any, weighed against the investigation or
presentation of this additional evidence? What evidence damaging to petitioner,
but not presented by the prosecution at the guilt or penalty trials, would likely
have been presented in rebuttal if petitioner had introduced this evidence?
“5. Did petitioner do or say anything to hinder or prevent the investigation
or presentation of mitigating evidence at the penalty phase, or did he ask that any
such evidence not be presented? If so, what did he do or say?”
Below, we summarize the referee‟s findings regarding these questions, and
we address the exceptions taken by the parties to those findings.
A. What actions did petitioner’s trial counsel take to investigate
potential evidence that could have been presented in mitigation at
the penalty phase of petitioner’s capital trial? What were the
results of that investigation?
1. Referee’s findings
The referee‟s findings on this question pertained to three categories of
potentially mitigating evidence: (1) evidence pertaining to the charged offenses
(the murders of Bobby and Eric Hassan); (2) evidence responding to the
prosecution‟s aggravating evidence, which consisted of the two felonies (robbery
and aggravated assault) petitioner committed as a juvenile, the crimes committed
at the Taylor home (hereafter the Taylor crimes), and the murder of Teheran
Jefferson;1 and (3) evidence pertaining to petitioner‟s social history, development,
and mental functioning.
1 The evidence pertaining to the Taylor crimes and the murder of Teheran
Jefferson was presented at the guilt phase, not the penalty phase. But the trial
court‟s instructions permitted the jury to consider, at the penalty phase, evidence
(Footnote continued on next page.)
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With regard to the first category of potentially mitigating evidence —
evidence pertaining to the murders of Bobby and Eric Hassan — the referee found
that Defense Counsel Skyers had read the discovery provided by the prosecution,
visited the crime scene as well as petitioner‟s home and Helen Keller Park (which
was across the street from the Hassans‟ home and was the scene of certain events
relevant to the Taylor crimes, discussed in pt. II.B.2.a., post), and spoke with
petitioner and those members of petitioner‟s family who were potential witnesses.
Skyers did not independently investigate or interview the prosecution witnesses.
Skyers, the referee said, knew that the prosecutor had no evidence that it was
petitioner who shot the Hassans, but he also was aware that the egregious nature of
the murders — the execution-style shooting of a man and his 14-year-old son —
would place, in the referee‟s words, “an almost insurmountable burden on any
reasonable trial attorney in identifying and presenting . . . mitigation.”
As to the second category of potentially mitigating evidence — evidence
refuting the prosecution‟s aggravating evidence — the testimony at the posttrial
reference hearing focused primarily on the Taylor crimes. (See pp. 2-3, ante.) As
previously explained (ibid.), petitioner was not charged with those crimes, but
codefendant Ross was, and at the guilt phase of trial prosecution witness Cora
Taylor identified petitioner as one of the perpetrators. The referee found that
Defense Counsel Skyers had reviewed the discovery he received from the
prosecution pertaining to those crimes, but that he conducted no independent
investigation to determine whether he could present evidence that petitioner was
(Footnote continued from previous page.)
of aggravating circumstances that had been presented at the guilt phase. (See
Champion, supra, 9 Cal.4th at p. 946.)
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not one of the perpetrators. The referee noted that Skyers was unsure whether he
had even asked petitioner about an alibi. Skyers did not attend the trial of Evan
Mallet, who was charged with the Taylor crimes and whose trial occurred before
that of petitioner and Ross, nor did he read the transcripts of Mallet‟s trial.
As to the murder of Teheran Jefferson, the referee found that Defense
Counsel Skyers had read the police reports provided by the prosecution and visited
the crime scene, but that he did no additional investigation (such as contacting
witnesses identified in the police reports, conducting ballistics tests on the bullet
found in Jefferson‟s body, and investigating the extent to which the Jefferson
murder resembled the murders of the two Hassans and of Michael Taylor).
With respect to the two felonies petitioner committed as a juvenile, the
referee found that Skyers had read the discovery furnished by the prosecution, and
the referee noted that the “main mitigation” pertaining to these offenses was
“petitioner‟s age and lack of maturity.”
Turning to the third category of potentially mitigating evidence — evidence
pertaining to petitioner‟s social history, development, and mental functioning —
the referee found that Defense Counsel Skyers had reviewed petitioner‟s CYA
records, which the referee described as documenting “petitioner‟s conduct within a
structured setting.” The records contained reports by two psychologists and two
psychiatrists, all of whom concluded that petitioner had no mental illness, defect,
or disorder. Skyers also reviewed a report jointly prepared by two psychiatrists
(Dr. Seymour Pollack and Dr. Lillian Imperi) appointed by the trial court at the
request of Skyers‟s predecessor, Homer Mason, to evaluate petitioner‟s mental
health. Drs. Pollack and Imperi, like the mental health professionals at CYA,
found no evidence that petitioner suffered from any mental illness, defect, or
disorder.
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Defense Counsel Skyers, the referee found, had interviewed petitioner and
visited his home, where Skyers talked to petitioner‟s mother, older sisters, and one
of his two older brothers about petitioner‟s home life, childhood, and other family
matters. Skyers did not interview petitioner‟s older brother Lewis or his younger
siblings, nor did he contact members of petitioner‟s extended family who lived
nearby. The family did not tell Skyers that petitioner had suffered fetal abuse, an
alleged 1968 head injury, head trauma inflicted by older brothers, and extreme
family poverty, topics that family members testified to at the posttrial reference
hearing.
The referee found that Defense Counsel Skyers “did not adequately conduct
a separate, independent [penalty] investigation”; that he “failed to retain a penalty
phase investigator”; that he “did not interview all potential mitigation witnesses
including petitioner‟s teachers, friends, CYA staff, CYA doctors, fellow gang
members or law enforcement personnel”; and that he “did not assemble all
documents” pertaining to the penalty phase, including “school records and . . .
[Evan] Mallet‟s trial transcripts.”
The Attorney General does not dispute the referee‟s findings. Petitioner,
however, takes exception to two findings that he alleges the referee made, which
we address below.
2. Exceptions to the referee’s findings
First, petitioner asserts: “There is no basis for the referee‟s finding that
[Defense Counsel Ronald] Skyers obtained a penalty phase evaluation from
[psychiatrist Seymour] Pollack.” Petitioner does not give a page citation for any
such finding in the referee‟s report, and we cannot locate any such finding. The
referee correctly stated: “The record is clear that Skyers did not specifically ask
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Dr. Pollack to conduct a social history evaluation of petitioner‟s life for the
specific purpose of developing potential penalty phase evidence.”
Second, petitioner takes exception to the referee‟s finding that Defense
Counsel Skyers reviewed the mental health evaluations of petitioner prepared at
CYA when petitioner was incarcerated there. Petitioner points out that Skyers
testified at the posttrial reference hearing that he could not remember whether he
had reviewed these evaluations, and that Skyers‟s case file did not contain copies
of the evaluations. Skyers‟s lack of recall is not surprising, because the hearing
occurred more than two decades after petitioner‟s capital trial. But materials in
Skyers‟s case file indicate that he did review the evaluations: A file note states
that Skyers spoke to a person at the parole office who said that Skyers needed
authorization from petitioner to see petitioner‟s CYA file, the file contains an
authorization petitioner signed three days after the date of the note, and another
file note gives the address of the CYA parole office where a review logically
would have occurred. Based on this circumstantial evidence, we agree with the
referee that Skyers most likely reviewed the CYA mental health evaluations.
B. What additional mitigating evidence, if any, could petitioner have
presented at the penalty phase? How credible was this evidence?
1. Referee’s findings
Regarding the circumstances surrounding the charged murders of Bobby
and Eric Hassan, the referee found that petitioner failed to show that Defense
Counsel Skyers could have presented any additional mitigating evidence. The
referee also found that petitioner produced no mitigating evidence that the defense
could have presented pertaining to the murder of Teheran Jefferson (evidence of
which was presented by the prosecution at the guilt phase of petitioner‟s capital
trial), or to the two felonies petitioner committed as a juvenile (evidence of which
was presented by the prosecution at the penalty phase).
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With respect to the Taylor crimes, the referee concluded that the defense
could have presented alibi evidence tending to show that petitioner was not at the
Taylor home on the night of the crimes. (We summarize this evidence in pt.
II.B.2.a., post.) But the referee also found that the witnesses who testified to this
alibi at the posttrial reference hearing were, like petitioner, members of the
Raymond Avenue Crips, a criminal street gang. Their testimony, the referee said,
was “inconsistent with their own declarations, with each other and with
petitioner‟s own trial testimony,” and was “not credible.” Presentation of such
alibi evidence at the penalty phase, the referee concluded, would not have assisted
petitioner, as it would have confirmed petitioner‟s gang membership (which
petitioner had denied in his guilt phase testimony) and his close association with
codefendant Ross, whose guilt of the Taylor crimes was overwhelmingly shown.
With respect to petitioner‟s social history, development, and mental
functioning, petitioner presented evidence at the posttrial reference hearing that he
suffered from brain damage, that he was traumatized by the death of a man who
acted as a father figure toward him, that he performed poorly in school, that he
was physically abused by various family members, that he grew up in
impoverished circumstances, that he was amenable to rehabilitation and
institutional adjustment, and that he was loved by his family and friends. As
explained below, the referee found that some of this evidence was credible but
some was not.
With respect to petitioner‟s allegation that Defense Counsel Skyers could
have presented evidence of petitioner‟s brain damage, the referee found the claim
“not supportable.” The referee noted that two psychologists and two psychiatrists
at CYA, and two psychiatrists retained by Homer Mason (Defense Counsel
Skyers‟s predecessor as petitioner‟s trial attorney), and two mental health experts
(a clinical psychologist and a forensic psychiatrist) who testified for the
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prosecution at the posttrial reference hearing all found no evidence that petitioner
was neuropsychologically impaired. Although petitioner claimed he could have
suffered brain damage as a result of alleged fetal abuse, a traffic accident, or
beatings allegedly inflicted by his older brothers, the referee found that petitioner
did not suffer brain damage as a result of any of these events. The referee further
found that, in view of the mental health examinations described above, all of
which found no evidence of psychological impairment, Defense Counsel Skyers
“did not have any reason to order any additional evaluations,” and “no trial
attorney could be faulted for not asking for further testing or concluding that no
mitigating evidence existed at the time of trial as to petitioner‟s mental status.”
With regard to petitioner‟s performance in school, the referee found that
records from petitioner‟s school and from CYA showed that petitioner had “a low
IQ, low intellectual functioning, reading and learning difficulties, attention
deficits, a flat affect, deficiency in ability to conceptualize, low self-esteem,
impulsiveness and a bad temper.” This evidence, the referee found, was “credible
and available at time of trial.”
As to the economic circumstances of petitioner‟s family, the referee
rejected as lacking in credibility the evidence presented by petitioner that he grew
up in extreme poverty, that he suffered from malnutrition and deprivation of
childhood necessities, and that he was beaten by his older brothers. The referee
found, however, that when petitioner‟s mother was working, “her absence from
the home resulted in her inability to provide proper care, guidance, and
supervision to petitioner.”
With respect to petitioner‟s family and upbringing, the referee found that
petitioner‟s biological father was physically abusive, but that he abandoned the
family before petitioner was born. Petitioner‟s mother soon became romantically
involved with Gerald Trabue, Sr., who was the primary father figure in petitioner‟s
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life from the time of his birth until he was six years old, when Trabue was killed in
a traffic accident. Trabue, the referee found, was a “wonderful person and
provider” and his death “had a devastating impact on petitioner‟s family”:
Petitioner‟s mother became depressed and the family temporarily experienced
“major financial difficulties.” Trabue‟s death “adversely impacted” petitioner,
who “did not have another father figure afterwards.” These matters, the referee
found, could have been presented by counsel had it not been for the failure of
members of petitioner‟s family to disclose them to Defense Counsel Skyers.
With respect to petitioner‟s amenability to rehabilitation and institutional
adjustment, the referee found that the evidence was mixed: Some CYA reports
said that petitioner had complied with CYA rules and regulations, did well in his
classes, was respectful to staff, and performed well in a structured setting. But the
referee found that petitioner‟s participation in the murders of Bobby and Eric
Hassan less than two months after his release from CYA “nullify this mitigation,”
and other CYA reports mentioned incidents of violent conduct while petitioner
was at CYA.
With respect to love and support from family and friends, the referee found
that the testimony of petitioner‟s mother, while lacking credibility in many
respects, indicated her love and affection for petitioner, and that at the trial‟s
penalty phase Defense Counsel Skyers should have called her to testify about her
feelings for petitioner. The referee also found that other family members and
childhood friend Gary Jones, had they been called as witnesses at trial, could have
credibly testified that they loved and cared for petitioner.
The Attorney General does not dispute the referee‟s findings. Petitioner
takes exception to 11 findings. We divide his exceptions into two categories.
First, we address his exceptions pertaining to the referee‟s findings regarding
mitigating evidence that might have been presented to counter the prosecution‟s
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aggravating evidence (the murders of Bobby and Eric Hassan, the Taylor crimes,
the murder of Teheran Jefferson, and the crimes committed by petitioner as a
minor). Second, we consider petitioner‟s exceptions pertaining to the referee‟s
findings regarding mitigating evidence pertaining to petitioner‟s social history,
development, and mental functioning.
2. Exceptions to referee findings pertaining to the prosecution’s
aggravating evidence
a. “The reference court erred in finding petitioner’s lay witnesses
not credible.”
At the posttrial reference hearing, petitioner presented alibi evidence tending
to show that he did not commit the Taylor crimes, but the referee found that
crucial alibi witnesses were not credible. Petitioner challenges this finding. To
evaluate his claim, we review the pertinent evidence presented at petitioner‟s
capital trial, after which we summarize the alibi evidence presented at the
reference hearing.
Between 11:00 p.m. and midnight on December 27, 1980, three Black males
invaded the Taylor home looking for drugs, and a fourth Black male (apparently a
lookout) came to the door but did not enter. The men ransacked the home, stole a
tape player and a photograph album, and fatally shot Michael Taylor. One of the
men raped Mary Taylor.
Shortly after the murder, a Los Angeles County Sheriff‟s deputy tried to stop
four Black males in a brown Buick car that did not have its headlights on and was
near Helen Keller Park, within half a mile of the Taylor home. The Buick took off
at high speed, struck a curb, and came to a halt near petitioner‟s home; its
occupants ran away. In the car, deputies found a tape player and a photograph
album stolen from the Taylor apartment, as well as a revolver stolen from the
Hassan home that, a prosecution expert concluded, probably fired the bullet that
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killed Michael Taylor. In the back yard of petitioner‟s home, the deputies found
Evan Mallet, who was later identified as one of the perpetrators of the Taylor
crimes. Thus, it is likely that the occupants of the brown Buick committed those
crimes.
Petitioner testified at the guilt phase of his capital trial, denying that he was
one of the men who murdered Bobby and Eric Hassan, but on direct examination
he did not mention the Taylor crimes. On cross-examination, the prosecutor asked
petitioner where he was on the night of those crimes. Petitioner said he was home
between 10:00 and 11:00 p.m., but that he left between 11:00 and 11:30 p.m. and
stayed out until after midnight. He said that during that time (but after the crash of
the brown Buick) he was detained by sheriff‟s deputies. Petitioner‟s mother, when
asked on cross-examination where petitioner was that night, said he was at home.
At the posttrial reference hearing, petitioner‟s alibi witnesses — Marcus
Player, Wayne Harris, and Earl Bogans — testified that petitioner was playing
basketball in Helen Keller Park at the time of the Taylor crimes. Their testimony
also tended to implicate Robert Simms rather than petitioner as the one who, along
with Craig Ross and Evan Mallet, committed the Taylor crimes. We summarize
the alibi witnesses‟ testimony below.
Marcus Player testified that on the night in question he was at his fiancée‟s
house, but between 10:00 and 11:00 p.m. he walked to a liquor store to buy some
orange juice or milk. On his way, he saw a group of people, including petitioner
and Wayne Harris (Player‟s cousin), at the basketball court in Helen Keller Park,
and he spoke with them for half an hour. He then went to the liquor store to make
his purchase. On the way back to his fiancée‟s house, sheriff‟s deputies detained
him. Petitioner and Harris were not with him at the time. While Player was being
detained, a brown Buick that Player recognized as belonging to his stepfather
entered the park, and the deputies left him to chase it.
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Hearing the Buick crash, Player, joined by petitioner and Harris, went to see
what had happened. Sheriff‟s deputies then detained and questioned them. Player
told the deputies that the car belonged to his stepfather and that he had last seen it
being driven by his brother Michael. The deputies ordered Player, petitioner, and
Harris to walk to the location of another patrol car. While they were walking
there, they were joined by a youth that Player knew only by the name “Lil Owl.”
The deputies at the second car ordered them to sit on a curb for approximately half
an hour, during which time a police car came by and shone a spotlight on them.
Eventually, the deputies took Lil Owl into custody and allowed Player, Harris, and
petitioner to go to petitioner‟s home.
Wayne Harris testified that on the night in question he and petitioner, along
with a dozen other youths, played basketball until about 10:30 p.m., when they left
to go to the store. As they walked, sheriff‟s deputies arrived at the park and
detained several youths, not including petitioner and Harris.2 While the detentions
were occurring, a brown Buick came into the park, then sped away, apparently
after its occupants saw the deputies. The deputies gave chase. Harris, petitioner,
and Marcus Player then started walking west on 126th Street, noticing that the
Buick, which Harris recognized as belonging to the Player family, had crashed.
Shortly thereafter, sheriffs‟ deputies detained the trio and ordered them to walk to
another sheriff‟s department vehicle. As they walked, Lil Owl joined them. When
they reached the second sheriff‟s vehicle, the deputies questioned the youths and
checked their pulse rates by placing a hand on each of their chests. Eventually
2 Harris acknowledged that he had signed a 1997 declaration stating he,
petitioner, and Marcus Player, had been detained in the park by the deputies, and
held for four hours, but he did not recall making the statements attributed to him in
the declaration.
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they took Lil Owl away and allowed petitioner, Player, and Harris to go to
petitioner‟s home.
Earl Bogans testified that on the night in question he arrived at Helen Keller
Park between 7:00 and 7:30 p.m. There, he played basketball with petitioner,
Marcus Player, and other youths for about 90 minutes, after which they sat in the
parking lot smoking marijuana. About 10:00 p.m., two patrol cars drove up. The
sheriff‟s deputies inside told the youths to lie on their stomachs. Suddenly a
brown car entered the parking lot and quickly backed out again, and the deputies
left to chase it. Bogans then went home.
Sheriff‟s reports prepared at the time of the murder and testimony of sheriff‟s
deputies at the posttrial reference hearing corroborated parts of the testimony of
Player, Harris, and Bogans. According to the reports and testimony, sheriff‟s
patrol cars went to Helen Keller Park shortly before midnight on the night of the
Taylor crimes, responding to a call of a gang-related disturbance. There, the
deputies detained four Black males. When the chase of the brown Buick began,
the deputies left the park and joined in the chase. After the Buick crashed,
deputies set up a perimeter to try to contain the Buick‟s passengers within a four-
block area around the crash site.
At 12:30 a.m., petitioner, Marcus Player, and Wayne Harris were detained by
sheriff‟s deputies when they walked into the containment area. The deputies filled
out field interrogation cards and told the three to walk to another command post in
the containment area and identify themselves. When they arrived at the second
post, they were accompanied by a 16-year-old youth who falsely identified himself
as “James Taylor” (apparently Lil Owl). There, sheriff‟s deputies again detained
them and filled out field identification cards, after which the deputies released
petitioner, Player, and Harris. Because “Taylor” had joined the other three in the
containment area and because his appearance and clothing closely resembled one
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of the four Black males former Deputy Sheriff (now Attorney) Theodore Naimy
had seen in the brown Buick, he was taken to a sheriff‟s station where deputies
determined that his true name was Robert Simms. Simms was eventually released
without being charged.
But the deputies‟ reports and testimony neither confirmed nor disproved the
testimony of Player, Harris, and Bogans that petitioner was in Helen Keller Park at
the time of the Taylor crimes. A report prepared by Sergeant Owen Tong listed
the names of the youths who were being detained in the park by the deputies when
the chase of the brown Buick began; the list included Player and Bogans, but not
petitioner. Thus, Player, Harris, and Bogans were the only witnesses whose
testimony at the posttrial reference hearing gave petitioner an alibi for the Taylor
crimes. But these three witnesses all were members of the Raymond Avenue
Crips, as petitioner was.
At the time of the posttrial reference hearing, both Player and Bogans were in
prison: Player had been convicted of first degree murder, and Bogans had been
convicted of robbing an armored car. Harris was not in custody, but he had
convictions for robbery and kidnapping. Bogans also had shown a willingness to
commit perjury on behalf of a fellow gang member. He admitted that after Evan
Mallet was convicted of murdering Michael Taylor, Mallet telephoned Bogans and
said he was sending Bogans a declaration that could help Mallet get out of jail. In
the mail, Bogans received a blank declaration form that he signed and returned to
Mallet, allowing Mallet to write whatever he liked in the declaration.
The referee found that the alibi testimony of Player, Harris, and Bogans was
not credible. Petitioner takes exception to this finding. He argues that Marcus
Player “had no reason to lie for petitioner because, thinking petitioner only faced
the Hassan charges, he did not realize the importance of his information to
petitioner‟s defense.” Petitioner acknowledges that the testimony of the three alibi
18
witnesses was inconsistent in certain respects; he argues, however, that such
discrepancies do not show a lack of credibility, asserting that the discrepancies are
most likely attributable to the circumstance that the posttrial reference hearing was
held decades after the events in question.
Because the referee had an opportunity to observe the demeanor of Player,
Harris, and Bogans when they testified, we give “great weight” to his
determination that their testimony lacked credibility. (In re Price (2011) 51
Cal.4th 547, 559.) Moreover, their credibility is suspect because all three were
members of petitioner‟s gang — and thus had a substantial motive to give
testimony that would assist petitioner — and because all three had been convicted
of very serious crimes that reflect adversely on their credibility. Furthermore,
their reference hearing testimony and petitioner‟s testimony at trial differed in
several significant respects: (1) Petitioner testified that he was at home most of
the evening and did not leave before 11:00 p.m., whereas Harris, Bogans, and
Taylor testified that he was playing basketball in Helen Keller Park during the
time petitioner claimed to be at home; (2) petitioner denied that he was a member
of the Raymond Avenue Crips, whereas Harris and Bogans said he was in the
gang; (3) petitioner and Harris denied that they were detained by sheriff‟s deputies
in Helen Keller Park just before the brown Buick entered the park, whereas
Bogans said they were detained. For all of these reasons, substantial evidence
supports the referee‟s finding that the witnesses were not credible.
b. “The referee erred in finding that Marcus Player would have
been unavailable to Skyers in support of petitioner’s defense
against the allegation that he was involved in the Taylor
Murder.”
At the posttrial reference hearing, Marcus Player gave alibi testimony on
petitioner‟s behalf. (See pt. II.B.1.a., ante.) The referee found, however, that
Player “would not have cooperated with trial counsel in any effort to develop and
19
present an alibi through his testimony,” and that if Player had been called to testify
at petitioner‟s capital trial, he would have invoked his privilege against self-
incrimination to avoid prosecution as an accessory after the fact, based on his
efforts to assist codefendant Craig Ross in evading arrest. The referee noted that
at the time of petitioner‟s trial, Player was awaiting trial on an unrelated charge of
murder, of which he was later convicted.
Petitioner takes exception to the referee‟s finding. He notes that Player was
not arrested until more than four months after Defense Counsel Skyers began his
representation of petitioner, so Skyers could have spoken to Player before his
arrest. Moreover, petitioner notes, Player testified at the posttrial reference
hearing “that he was not fearful of a perjury charge because he had nothing to do
with the Taylor crimes.” But Player also testified at the reference hearing that if
he had been contacted by an attorney representing petitioner at the time of
petitioner‟s trial he would not have spoken to the attorney, and that he would not
have willingly testified at petitioner‟s trial. Based on this testimony, we agree
with the referee‟s finding.
c. “The referee errs in failing to find that Simms’s fingerprint
would have been available at the time of petitioner’s trial.”
As previously noted (see pt. I., ante), Cora and Mary Taylor testified at
petitioner‟s capital trial that three men invaded their home on the night of
December 27, 1980, and that the men raped Mary and fatally shot Michael Taylor
(Cora‟s son and Mary‟s brother). At the posttrial reference hearing, petitioner
attempted to show that Defense Counsel Skyers should have discovered and
presented evidence that the three men were codefendant Craig Ross, Evan Mallet,
and Robert Simms, and thus that petitioner could not have been one of the men.
Simms, it will be recalled (see pt. II.B.2.a, ante), was detained by sheriff‟s
deputies on the night of the murder when he, accompanied by petitioner, Wayne
20
Harris, and Marcus Player, was found inside the containment zone established by
the police around the location where the brown Buick car had crashed while being
pursued by the deputies. At the time of his detention, Simms falsely identified
himself as James Taylor. When Cora and Mary Taylor were brought to the
location of the detained suspects for a field showup, they could not identify any of
the four. Simms was then taken to a sheriff‟s station, where his true identity was
ascertained. At the station, Theodore Naimy, one of the deputies in the patrol car
that had been chasing the Buick, observed Simms. Based on height, weight, age,
and clothing, Naimy thought that Simms resembled one of the men he had seen
running from the car, but he was uncertain of his identification. Simms, who was
16 years old, was released without being charged with the Taylor crimes.
During the posttrial reference hearing, an exemplar set of Simms‟s
fingerprints, obtained by the police when Simms was arrested in 1987 (five years
after petitioner‟s capital trial) on an unrelated matter, was compared with the latent
prints in the Taylor home. The parties stipulated that one of the fingerprints
matched a latent print found on a metal box in the Taylor home‟s kitchen. At the
reference hearing, petitioner argued that Defense Counsel Skyers should have
discovered the fingerprint match and presented evidence of it at petitioner‟s trial to
show that petitioner was not one of the perpetrators of the Taylor crimes.
But Defense Counsel Skyers could only have discovered and presented
such evidence if he could have obtained an exemplar of Simms‟s fingerprints from
law enforcement officials so that he could have asked an expert to compare it to
the latent prints found at the Taylor home. By the time of the posttrial reference
hearing (which began in 2006), any such exemplar no longer existed, and there
was no way to determine whether one had existed at the time of trial. The referee
found that petitioner had not shown that Simms‟s fingerprints had been available
to Skyers.
21
Petitioner challenges this finding. According to petitioner, “Simms was
arrested and booked into jail” and “[t]he booking process in [Los Angeles] county
jails required taking fingerprints.” Thus, he asserts, the deputies must have taken
Simms‟s fingerprints, and Defense Counsel Skyers could have obtained them from
the prosecution through pretrial discovery. But petitioner presented no records
showing that Simms was booked into the jail, and it is unlikely that he was,
because he was a juvenile. (See Welf. & Inst. Code, former § 207, subd. (a), as
amended by Stats. 1979, ch. 373, § 347, p. 1387 [“No . . . peace officer shall
knowingly detain in any jail or lockup any person under the age of 18 years, unless
a judge of the juvenile court shall determine that there are no other proper and
adequate facilities for the care and detention of such person . . . .”].) Although it is
possible that the deputies obtained Simms‟s fingerprints even without booking him
into the jail, we doubt that they did so: If the fingerprints had been obtained, the
prosecution (which was seeking to apprehend everyone responsible for the Taylor
crimes), would most likely have compared them with those found at the Taylor
home. Thus, we accept the referee‟s finding that petitioner failed to show that
Defense Counsel Skyers could have obtained Simms‟s fingerprints at the time of
petitioner‟s trial.
d. “The referee errs in concluding that petitioner’s defense
evidence was not credible.”
As described in part II.B.2.a., ante, at the posttrial reference hearing
petitioner presented evidence tending to show that he did not participate in the
Taylor crimes. According to petitioner, the referee found that the evidence “did
not necessarily eliminate petitioner as a perpetrator and for that reason reasonably
competent counsel would not have presented it.” (Italics added.) Petitioner
disputes this finding by the referee, pointing out that to prevent the jury from
considering the Taylor crimes as evidence in aggravation at the penalty phase,
22
counsel only had to raise a reasonable doubt as to whether petitioner committed
those crimes; he did not have to conclusively establish petitioner‟s innocence of
those crimes. But the referee did not base his finding that reasonably competent
counsel would not have presented the alibi evidence solely on the
inconclusiveness of this evidence. Rather, the referee found that competent
defense counsel would not have presented the alibi evidence because the alibi
witnesses would have contradicted petitioner‟s guilt phase testimony about his
whereabouts on the night of the Taylor crimes, would have confirmed petitioner‟s
gang membership (which petitioner denied in his guilt phase testimony), and
would have contradicted petitioner‟s claims at the posttrial reference hearing that
he had brain damage and grew up in impoverished circumstances. Petitioner does
not refute these reasons given by the referee for his finding.
e. “The referee errs in finding that petitioner presented no
evidence at the hearing rebutting any alleged connection
between petitioner and the Jefferson murder.”
The referee found that “petitioner did not present any additional mitigation
or rebuttal evidence as to the Jefferson murder” at the posttrial reference hearing.
Petitioner takes exception to this finding, citing the reference hearing testimony of
Steven Strong, hired by petitioner as a private investigator. Strong had previously
worked for the Los Angeles Police Department for 20 years; his service included
many years as a detective focusing on criminal street gangs and several years as a
homicide detective. In 1979 and 1980, he investigated narcotics offenses
committed by the Raymond Avenue Crips, and he had made extensive contacts
with members of that gang while working undercover.
According to investigator Strong, the available evidence pertaining to the
murder of Teheran Jefferson indicated that it was a drug-related slaying, not a
gang-related slaying, and there was nothing unique or unusual about the murder.
23
He conceded, however, that the same was true of the slayings of Bobby and Eric
Hassan, and that Jefferson‟s home was in the same block as the Hassan home. He
acknowledged that Jefferson, like the Hassans, was killed with a .38- or .357-
caliber weapon, but he did not regard that fact as particularly significant, noting
that “.38‟s and .357 caliber revolvers were very commonplace” in South Central
Los Angeles at the time of the 1980 murders.
In response to this exception asserted by petitioner, the Attorney General
attacks investigator Strong‟s credibility, asserting that Strong was not provided
with and did not review certain “important materials relevant to his opinions” and
that he used “patently defective reasoning.”
We agree with petitioner that, contrary to the referee‟s finding, he did
present evidence about Jefferson‟s murder. But petitioner‟s evidence did not
consist of facts that were not presented at trial; rather, it consisted only of
investigator Strong‟s evaluation of those facts. We see no need to determine the
merits of the Attorney General‟s attack on the credibility of Strong‟s evaluation
because, as explained below, it is highly unlikely that the jury considered
Jefferson‟s murder as an aggravating circumstance at the penalty phase of
petitioner‟s capital trial.
At the penalty phase, the trial court correctly instructed the jurors that they
could consider evidence that petitioner had engaged in violent criminal conduct
other than the murders of which he was convicted only if they found beyond a
reasonable doubt that petitioner had engaged in that conduct. No reasonable juror
could have made such a finding with regard to the murder of Teheran Jefferson.
True, Jefferson‟s killing resembled the murders of Bobby Hassan and
Michael Taylor in a number of respects: Each victim was a marijuana dealer, each
was murdered in his home, they all lived in the same neighborhood, each was shot
with a .38- or .357-caliber weapon, and the killings all took place within a two-
24
month period. Although these similarities are circumstantial evidence tending to
show that Jefferson, like the Hassans and Michael Taylor, was murdered by
members of the Raymond Avenue Crips, they do not demonstrate beyond a
reasonable doubt that petitioner was personally involved in the killing of
Jefferson. In his closing argument at the penalty phase, the prosecutor did not rely
on the Jefferson murder as a circumstance in aggravation; instead, he told the jury
that it could consider that murder only if it found beyond a reasonable doubt that
petitioner had committed it, and said that he would “not belabor that by asking you
for a finding at this time.” In these circumstances, no reasonable juror would have
regarded Jefferson‟s murder as an aggravating circumstance.
f. “The referee erred in not recognizing that petitioner presented
evidence mitigating his involvement in the juvenile
offenses . . . .”
The referee found that “[p]etitioner made no showing that any mitigating
evidence existed at the time of the trial” as to the two felonies in which petitioner
participated as a juvenile, evidence of which was presented to the jury at the
penalty phase of his capital trial. Petitioner takes exception to this finding, citing
psychologist Deborah Miora‟s testimony at the posttrial reference hearing.
Dr. Miora explained that after the death of Gerald Trabue, Sr., who was like a
father to petitioner until his death in a car accident when petitioner was six years
old, petitioner grew up without a strong, nurturing father figure, in a family
traumatized by Trabue‟s death. As a result, petitioner became involved with a
criminal street gang, the Raymond Avenue Crips, when he was 11 years old.
According to Dr. Miora, participation in the gang “meant having a sense of family,
being part of a group, being taken in, being paid attention, being cared for in a way
[when] he had felt lost at home and not recognized.” The gang, Miora said, gave
petitioner “a feeling of belonging, a feeling that somebody was really looking after
25
him and cared about his whereabouts.” This evidence, petitioner asserts, mitigated
the two felonies, which he committed with other members of that group. We
disagree.
Dr. Miora‟s testimony provides a possible explanation as to why petitioner
joined the Raymond Avenue Crips. But not all members of that gang committed
violent crimes. Petitioner‟s best friend, Gary Jones, testified that he too had been
a member of the Raymond Avenue Crips, but that his gang-related activities
consisted only of drinking beer, smoking marijuana, and protecting other gang
members in fights with rival gangs. Thus, Dr. Miora‟s testimony does not explain
why petitioner, as a juvenile, participated not only in an armed robbery of three
persons, but also committed an assault with a knife on a man who was picnicking
in a park with his family.
g. “Given that gang affiliation was a noticed aggravator, the
referee erred in refusing to fund a gang expert, thereby
preventing petitioner from fully exploring gang related issues
and presenting relevant mitigating evidence on this subject.”
Petitioner asserts that the referee erred by denying his requests for funds to
retain a gang expert, but he makes no attempt to support this bald assertion: He
provides no record citations showing that he requested such funds; that the
request, if any, was accompanied by an offer of proof; or that the referee denied
the alleged request. Nor does petitioner provide any argument or case authority in
support of his contention. We therefore do not consider this claim. (See People v.
Stanley (1995) 10 Cal.4th 764, 793 [a court need not consider a claim that is
accompanied by neither argument nor authority].) We note, moreover, that
petitioner did hire a gang expert, investigator Steven Strong, who testified on his
behalf at the posttrial reference hearing, and that psychologist Deborah Miora
testified as to petitioner‟s reasons for joining the Raymond Avenue Crips street
gang.
26
h. “The referee errs in finding that petitioner presented no
evidence to support claims that if Skyers had properly
investigated the taped conversation between Ross and
petitioner he could have shown that the transcript was deficient
or incorrect and mitigated the contents and impact of the
recorded conversation.”
As previously noted (see pt. I, ante), at the guilt phase of petitioner‟s capital
trial the prosecution introduced a tape recording of a conversation between
petitioner and codefendant Ross that occurred in a van transporting them between
jail and the courthouse. In the conversation, petitioner and Ross talked about
“blow[ing] up” the driver of the transport van and escaping, and petitioner laughed
when talking about murder victim Bobby Hassan and his son, Bobby, Jr., who had
been in the audience in court. At the penalty phase, the prosecutor cited this
conversation as evidence that petitioner lacked remorse for the murders.
The referee found: “Petitioner did not present any evidence [at the posttrial
reference hearing] to support the claims that if [defense counsel] Skyers had
properly investigated the taped conversation between Ross and petitioner he could
have shown that the transcript was deficient or incorrect. No mitigating evidence
[on this issue] was presented by petitioner.”
Petitioner takes exception to this finding, claiming that he “presented
evidence that there were numerous plausible explanations to counter arguments
the prosecutor made regarding the taped conversation . . . .” But the testimony he
cites to support this assertion is that of Jack Earley, a criminal defense attorney
called by petitioner as an expert witness, who said that Defense Counsel Skyers
“didn‟t deal with” the tape recording. Earley described some steps that a
reasonably competent attorney could have taken to address the issue, such as
having petitioner evaluated by a psychologist and determining whether petitioner
was a leader or a follower. But Earley did not describe any mitigating evidence
the defense could have presented at trial on the issue, nor did he state that the
27
transcript was deficient or incorrect. We therefore conclude that the record
supports the referee‟s finding on this point.
3. Exceptions to the referee’s findings pertaining to petitioner’s social
history, development, and mental functioning.
a. “The referee erred in rejecting Dr. Riley’s conclusion that
petitioner, as of the time of his trial in 1982, suffered from
longstanding neuropsychological dysfunction.”
At the posttrial reference hearing, petitioner attempted to show through the
testimony of clinical neuropsychologist Nell Riley that petitioner‟s trial counsel
could have presented evidence that petitioner suffered from neuropsychological
dysfunction at the time of the Hassan murders. Dr. Riley testified that in 1997 she
gave petitioner a standard Intelligence Quotient (IQ) test, the results of which
showed that petitioner had a verbal IQ of 92 (which placed him in the 30th
percentile) and a performance IQ of 74 (which placed him in the fourth
percentile). At the time of petitioner‟s capital trial, Riley testified, the scientific
community considered a discrepancy of this magnitude between the verbal IQ and
the performance IQ to be a marker of brain dysfunction.3 She also administered a
series of tests called the Halstead Reitan Battery, which were used at the time of
petitioner‟s trial to measure seven components of brain dysfunction. According to
Dr. Riley, the tests showed petitioner was in the impaired range in all seven
components, and only two out of every 10,000 persons are in the impaired range in
all seven categories.
3 Because petitioner was attempting to show that trial counsel should have
presented evidence of petitioner‟s brain damage, Dr. Riley described the tests that
could have been administered at the time of petitioner‟s trial and the results that
would have been derived from those tests. Different (and presumably more
accurate) tests are now used.
28
In Dr. Riley‟s view, petitioner had neuropsychological deficits in “problem
solving, nonverbal reasoning, attention, and . . . information processing.” These
deficits, she said, caused him to be “unable to draw inferences in ambiguous
circumstances and . . . especially vulnerable to missing or misleading cues
concerning the intentions of other persons”; they also impaired “his ability to
comprehend the whole situation and make decisions.” Dr. Riley cited as possible
causes of petitioner‟s impairments the facts that petitioner was in an automobile
accident when he was a child and his mother‟s physical abuse at the hands of
petitioner‟s father while she was pregnant with petitioner.
To rebut Dr. Riley‟s testimony, the prosecution called forensic psychiatrist
Saul Faerstein and neuropsychologist Charles Hinkin. Drs. Faerstein and Hinkin
both concluded, based on the reports of the six mental health experts who had
examined petitioner before trial (four at CYA, and two on behalf of the defense),
that petitioner does not suffer from brain damage, and that there had been no
reason for Defense Counsel Skyers to have a neuropsychologist examine
petitioner.
Dr. Hinkin disagreed with Dr. Riley‟s testimony that her tests showed that
petitioner suffered from brain damage. He criticized Riley for allowing habeas
corpus counsel to be present during some of the tests, explaining that a third
party‟s presence may alter a subject‟s performance on the tests. And Dr. Hinkin
disagreed with Dr. Riley‟s method of scoring the tests given. He explained that
because Blacks ordinarily perform more poorly than Whites on those tests, it is
preferable to use ethnically corrected norms when scoring the tests, which
Dr. Riley did not do. Once the test results were corrected for ethnicity, he said,
many of Dr. Riley‟s tests showed that petitioner fell within the normal range,
while others showed that he was in the “low average” or “mildly impaired” range
and none showed that he was in the “impaired” range.
29
The referee found that Drs. Riley, Hinkin, and Faerstein were “all
impressive, well qualified witnesses,” but he was persuaded by the reasoning of
prosecution experts Hinkin and Faerstein. The referee expressed doubt that the
three events cited by petitioner as possible causes of his alleged mental
impairments (fetal abuse, head injury in a traffic accident, and physical abuse by
his siblings) could have resulted in such impairments, if they in fact occurred. The
referee noted that none of the six mental health professionals who had examined
petitioner before trial had detected any mental defects, disorders, or significant
impairments, and none had “recommended additional psychological or
neuropsychological testing of petitioner.” The referee therefore concluded that
petitioner had presented “no credible evidence that [he] suffered from any brain
damage or dysfunction at the time of petitioner‟s 1982 trial,” and that Dr. Riley‟s
opinion to the contrary was “not supportable.”
Petitioner takes exception to the referee‟s finding that he had no
neuropsychological impairments at the time of his capital trial. He points out that
none of the four mental health professionals who had evaluated him at CYA
testified at the posttrial reference hearing, nor did Drs. Imperi and Pollack, who
had evaluated petitioner for the defense before trial. Instead, the prosecution
relied on the testimony of Drs. Hinkin and Faerstein, neither of whom had
personally examined petitioner. (See People v. Bassett (1968) 69 Cal.2d 122, 142-
146 [rejecting testimony by prosecution psychiatrists who had not examined the
defendant and who provided essentially no reasons for their conclusion that he did
not suffer from diminished capacity].) Petitioner asserts that because none of the
mental health professionals who examined him at CYA and before trial was a
neuropsychologist, defense neuropsychologist Riley was better able than they
were to determine whether he was neuropsychologically impaired.
30
In response, the Attorney General notes that the parties stipulated that, at
the time of the posttrial reference hearing, the four mental health professionals
who had evaluated petitioner at CYA had no recollection of those evaluations.
The Attorney General argues that even though Drs. Hinkin and Faerstein did not
personally evaluate petitioner, they could reasonably rely on the information in the
reports of those four mental health professionals, as well as Dr. Riley‟s report, in
concluding that petitioner was not neuropsychologically impaired at the time of
the murders, and that therefore the testimony of Drs. Hinkin and Faerstein
supports the referee‟s finding that petitioner was not impaired. The Attorney
General also argues that the reliability of defense expert Riley‟s evaluation was
undermined by the presence of habeas corpus counsel during her evaluation of
petitioner (see In re Spencer (1965) 63 Cal.2d 400, 411 [“Surely the presence and
participation of counsel would hinder the establishment of the rapport that is so
necessary in a psychiatric examination”]), and by Dr. Riley‟s failure to use
ethnically corrected norms in evaluating the results of the neuropsychological tests
she administered to petitioner (although these were not in use at the time of
petitioner‟s trial).
We need not resolve this dispute. We did not ask the referee to decide
whether petitioner was neuropsychologically impaired at the time of his capital
trial, and the answer to that question does not assist us in deciding whether
Defense Counsel Skyers competently assisted him at the penalty phase of trial.
Rather, we asked the referee to decide what mitigating evidence Skyers could have
presented at trial, and we asked how credible that evidence would have been.
With respect to Dr. Riley‟s testimony that petitioner had neuropsychological
impairments, the referee did not answer the first part of our question, but we
assume for the sake of argument that Defense Counsel Skyers could have
presented that evidence at trial. As to the second part of the question, the referee
31
found that Dr. Riley‟s testimony was “not supportable” and implicitly found it not
to be credible.
Regardless of whether, as petitioner now argues, Dr. Riley‟s reference
hearing testimony was credible, we agree with the referee that Defense Counsel
Skyers had not been incompetent at trial for not discovering it. The referee found
that in preparing for the trial‟s penalty phase, Skyers reviewed the reports of two
psychologists and two psychiatrists who had evaluated petitioner at CYA, and a
report prepared by two psychiatrists who had evaluated him at the request of
Homer Mason, the attorney initially appointed to represent petitioner in his capital
trial. None of the reports found any evidence that petitioner suffered from any
psychiatric impairment. Indeed, the report prepared by Dr. Pollack (described by
prosecution witness Dr. Faerstein as “one of the premier forensic psychiatrists in
the United States”) along with Dr. Imperi, stated that “there does not appear to be
any evidence of mental illness, defect or disorder . . . .” We agree with the referee
that, after reading these reports, a reasonably competent attorney could make a
tactical decision not to retain a neuropsychologist to explore the possibility that
petitioner had suffered from any neuropsychological impairments. Thus,
regardless of the credibility of Dr. Riley‟s reference hearing testimony, Defense
Counsel Skyers‟s failure to locate her (or some other neuropsychologist with
similar views) did not violate petitioner‟s right to representation by competent
counsel. (See In re Fields (1990) 51 Cal.3d 1063, 1075 [“When three experts
concur in a diagnosis, competent counsel might reasonably believe it pointless to
search further in the hope of finding an expert who would offer a different
diagnosis . . . .”]; People v. Williams (1988) 44 Cal.3d 883, 945 [“Competent
representation does not demand that counsel seek repetitive examinations of the
defendant until an expert is found who will offer a supportive opinion”]; see also
People v. Payton (1992) 3 Cal.4th 1050, 1078.)
32
b. “Based on his misunderstanding of what constitutes mitigating
evidence and the relationship of proffered evidence to
petitioner’s functioning and development, . . . the referee . . .
erroneously excluded evidence in mitigation, deemed it
irrelevant, and/or gave it little weight.”
Petitioner challenges a number of the referee‟s evidentiary rulings and
findings, claiming they reflect an unduly narrow view of the scope of mitigating
evidence.
(1) At the posttrial reference hearing, petitioner asked defense psychologist
Deborah Miora about her reliance on a report prepared at CYA that said
petitioner‟s younger half brother Gerald Trabue, Jr. (who, like petitioner, had been
incarcerated at CYA) told an intake officer that Henry Robinson, who for one year
was the stepfather of petitioner and Trabue, had hit Trabue with a stick, a belt, and
shoes. The prosecution objected that petitioner was attempting to introduce, for its
truth, circumstantial hearsay evidence that Robinson had physically abused
petitioner. After a long discussion, the referee sustained the objection. According
to petitioner, the referee ruled that Dr. Miora could not “base any opinions on” the
report in question. Petitioner overstates the scope of the ruling. The referee
simply barred Dr. Miora from describing the details of the CYA report on which
she based her testimony, a ruling that was within the referee‟s discretion. (See
People v. Coleman (1985) 38 Cal.3d 69, 92 [“ „While an expert may state on direct
examination the matters on which he relied in forming his opinion, he may not
testify as to the details of such matters if they are otherwise inadmissible.‟ ”].)
(2) According to petitioner, the referee “limited Dr. Miora‟s discussion of
themes such as poverty, abuse, and other negative impacts on petitioner to only
those he recalled and discussed with Dr. Miora during her interviews with
petitioner.” But the transcript pages he cites contain no such ruling.
33
(3) Petitioner challenges the referee‟s finding that the life history of
petitioner‟s half brother, Gerald Trabue, Jr. was “immaterial to petitioner.”
Petitioner argues that because Gerald, Jr. was born only 11 months after petitioner
and the two of them grew up together, evidence of Gerald‟s childhood sheds light
on petitioner‟s own history. We agree with petitioner that Gerald‟s life history had
some relevance to petitioner‟s childhood development, and that this one-sentence
finding by the referee was erroneous.
(4) Petitioner disputes the referee‟s finding that the documents in
petitioner‟s exhibit No. 141 were irrelevant. This exhibit consisted of news stories
about conditions in South Central Los Angeles after the 1965 riots that occurred in
Watts (a neighborhood in Los Angeles), a report by the American Civil Liberties
Union on police misconduct during the riots, studies by university professors on
demographic changes in Watts and attitudes of members of the Watts community
toward the police, and a timeline of “environmental justice in Los Angeles”
prepared by the Environmental Defense Fund. According to petitioner, the
documents “tended to corroborate the accounts of lay witnesses about conditions
in the community and in youth facilities,” and had “a tendency in reason to
demonstrate the credibility” of petitioner‟s witnesses. But the conditions in Watts
were not at issue at the posttrial reference hearing, and petitioner does not explain
how or why the reports supported the credibility of any of his witnesses. We
therefore agree with the referee‟s finding that the documents were irrelevant.
(5) At the posttrial reference hearing, petitioner proffered reports asserting
police brutality against Blacks during the Watts riots while petitioner (then three
years old) was living there. The referee described the authors of these reports as
“very slanted or biased.” Petitioner argues that even if the authors were biased,
the reports were relevant because they were circumstantial evidence tending to
show that members of petitioner‟s family held views about the police similar to
34
those expressed in the report. Assuming for the sake of argument that this is true,
those views do not mitigate the Hassan murders petitioner committed.
(6) Petitioner challenges a ruling by the referee pertaining to the testimony
of his uncle, E.I. Gaithright, and his mother, Azell. When petitioner tried to
question Gaithright about growing up on a Mississippi farm, picking cotton,
plowing fields and milking cows, the referee sustained the prosecutor‟s objection,
ruling that the testimony was irrelevant. Later, the referee excluded testimony by
Azell about physical abuse she suffered as a child in Mississippi.
Petitioner asserts that the poverty, racism, limited schooling, and violence
experienced by petitioner‟s mother and her siblings while growing up in
Mississippi “was relevant to an understanding of the personal resources [they]
brought to the difficult task of raising a large family in South Central Los Angeles,
and explained why [petitioner‟s mother] may have been hampered in her ability to
provide for and guide her children, why she may . . . [not have] accessed public
resources available to assist her and her family . . . and why she might have been
more hesitant to call upon police for protection from domestic and neighborhood
violence.” Even if that is so, the conditions in which petitioner‟s mother and her
siblings were raised do not mitigate petitioner‟s criminal conduct. “[T]he
background of the defendant’s family is of no consequence in and of itself . . .
because . . . the determination of punishment in a capital case turns on the
defendant‟s personal moral culpability. It is the „defendant’s character or record‟
that „the sentencer . . . [may] not be precluded from considering‟ — not his
family’s.” (People v. Rowland (1992) 4 Cal.4th 238, 279; see also In re Scott
(2003) 29 Cal.4th 783, 821.) Evidence that petitioner‟s mother was a bad parent
(which could evoke sympathy for petitioner) would have been admissible; but
evidence of childhood experiences that might have made her a bad parent (which
could only evoke sympathy for petitioner‟s mother) was not.
35
(7) Petitioner challenges the referee‟s exclusion of proffered testimony that
during the Watts riots his sister, who was then six or seven years old, heard
gunshots, helicopters, and bullhorns advising residents of a dusk-to-dawn curfew,
and saw National Guardsmen with rifles in the street. Petitioner asserts that the
referee‟s exclusion of this testimony “reflects a stunningly narrow view of the
scope of mitigation.” We disagree. Any conceivable probative value of this
testimony was so slight that the referee could properly exclude it on the ground
that it would “necessitate undue consumption of time.” (Evid. Code, § 352.)
Petitioner also claims that the referee improperly precluded defense psychologist
Miora from testifying about how the riots affected petitioner‟s functioning and
development. We discern no such ruling on the page of the hearing transcript he
cites.
(8) Petitioner asserts that the referee “improperly rejected a large body of
mitigating life history information on the ground that the family had not offered it
to trial counsel.” (Italics added.) It is unclear what petitioner means by
“rejected.” He may be arguing that the referee excluded relevant mitigating
information on the ground that members of the family did not tell trial counsel
about it; or perhaps he is arguing that the referee found that relevant mitigating
information admitted into evidence at the posttrial reference hearing was not
credible because family members did not tell trial counsel about it. In either event,
petitioner makes no citation to either the record or the referee‟s report to support
his assertion. We therefore reject it.
(9) Petitioner questions the referee‟s finding that if members of his family
had testified on his behalf at the penalty phase of his capital trial, the jury might
not have believed them because his mother Azell, his sister Rita, and his brother
Reggie had testified on petitioner‟s behalf at the guilt phase, and the jury
implicitly rejected their testimony when it convicted him of murdering Bobby and
36
Eric Hassan. (See p. 4, ante.) Petitioner states that Defense Counsel Skyers could
have called other family members to testify on his behalf, and that in any event the
jury might have believed testimony of Azell, Rita, and Reggie about petitioner‟s
childhood experiences even after rejecting their guilt phase testimony. But the
referee found only that reasonably competent counsel might have decided for
tactical reasons not to call Azell, Rita, and Reggie to testify at the penalty phase
after the jury had already rejected their guilt phase testimony. Petitioner makes no
showing of error in the referee‟s finding.
(10) In his report, the referee stated, with regard to a declaration signed by
psychologist Miora: “The 154 page „Petitioner‟s Life History‟ Core of
„Dr. Miora‟s‟ 213 page . . . declaration . . ., created by petitioner’s counsel and not
the witness, reflects a biased and highly selective „spin‟ of the reference hearing
evidence and exhibits.” (Fn. deleted.) Petitioner asserts that this statement
“erroneously and falsely accused habeas counsel of professional misconduct for
aiding in the preparation of a declaration intended as a proffer of evidence.” We
perceive no accusation of misconduct. The referee simply noted the fact, which
petitioner does not dispute, that defense expert Miora‟s declaration, filed by
petitioner as an offer of proof describing her anticipated testimony at the posttrial
reference hearing, was prepared primarily by habeas corpus counsel. The referee
did not suggest that habeas corpus counsel committed misconduct by personally
drafting the offer of proof instead of asking Dr. Miora to do so. Although the
referee found the declaration to be a “biased and highly selective „spin‟ of the
reference hearing evidence and exhibits,” that finding is not an accusation of
misconduct; rather, it is an explanation as to why the referee found the declaration
unpersuasive.
37
C. What investigative steps, if any, would have led to the mitigating
evidence described in the previous question? In 1982, when
petitioner’s case was tried, would a reasonably competent attorney
have tried to obtain such evidence and to present it at the penalty
phase?
1. Referee’s findings
The referee found that the evidence just described could have been obtained
by “retaining . . . an evidence and penalty phase investigator.”
With regard to whether a reasonably competent attorney would have tried
to obtain the evidence described above, the referee found that a reasonably
competent attorney would have: (1) retained an investigator and conducted
interviews to try to establish alibis for the murder of Teheran Jefferson and the
Taylor crimes; (2) interviewed CYA staff about petitioner‟s adjustment while
incarcerated there; (3) reviewed petitioner‟s school records; (4) reviewed the CYA
medical reports; (5) interviewed all members of petitioner‟s immediate family to
prepare a social history; (6) investigated petitioner‟s involvement in the Raymond
Avenue Crips; (7) determined whether petitioner was drug dependent and whether
that dependence had any relevance in mitigation; (8) investigated petitioner‟s
employment history; (9) reviewed petitioner‟s criminal history; (10) reviewed
petitioner‟s history as a juvenile offender; (11) consulted forensic, fingerprint,
firearms, and gang experts, and consulted with doctors as to petitioner‟s mental
status; (12) reviewed the transcripts of the preliminary hearing and trial of Evan
Mallet, who was convicted as one of the perpetrators of the Taylor crimes; and
(13) investigated to determine whether there was any other mitigating factor or
theme.
The referee found that before petitioner‟s capital trial, Defense Counsel
Skyers reviewed petitioner‟s school records and CYA medical records, as well as
38
petitioner‟s criminal history and history as a juvenile offender, and that Skyers did
an investigation to determine whether there was some mitigating factor or theme
he could present to the jury. He also interviewed some, but not all, of the
members of petitioner‟s immediate family, and he reviewed an evaluation of
petitioner‟s mental status that was obtained by Homer Mason, who had initially
represented petitioner. Skyers did not perform the other investigative steps
described above: He did not investigate the Taylor and Jefferson murders; he did
not interview pertinent CYA employees; he did not interview some members of
petitioner‟s immediate family; he did not investigate petitioner‟s gang
involvement; he did not determine whether petitioner was drug dependent; he did
not interview petitioner‟s employers; he did not consult forensic, fingerprint,
firearms, and gang experts; and he did not review the transcripts of Mallet‟s
preliminary hearing and trial.
With respect to what evidence a reasonably competent attorney would have
presented at trial, the referee found:
(1) Reasonable counsel would not have presented an alibi for the murder of
Teheran Jefferson, as such evidence was not presented at the posttrial reference
hearing.
(2) Reasonable counsel would not have presented an alibi defense for the
crimes committed in the Taylor home, because the alibi witnesses at the posttrial
reference hearing were not credible, and because alibi witness Marcus Player
would not have cooperated with the defense at the time of trial.
(3) Reasonable counsel would not have presented evidence of petitioner‟s
good adjustment at CYA, because the prosecution would have been able to rebut
that evidence with evidence that while petitioner was at CYA he committed “acts
of misconduct,” and soon after his release from CYA he murdered Bobby and Eric
Hassan.
39
(4) Reasonable counsel would not have presented evidence contained in
the CYA medical reports, because those reports revealed no evidence of mental
illness.
(5) Reasonable counsel would have presented, if the evidence was
disclosed to him, evidence of the love and affection that petitioner‟s family
members had for petitioner, of the difficulties petitioner‟s mother encountered in
raising a large family as a single mother with a limited income, of the absence of a
father figure in petitioner‟s life when he was a child, of the impact of the death of
Gerald Trabue, Sr. (who acted like a father toward petitioner until he was killed in
an automobile accident when petitioner was six years old), and of the difficulties
petitioner experienced in school. Although petitioner also presented evidence at
the posttrial reference hearing that his family suffered from extreme poverty,
malnutrition, and inadequate clothing, the referee made no findings with regard to
whether reasonable counsel would have presented such evidence, possibly because
the referee found that this evidence was not credible and that petitioner‟s family
was unwilling to disclose those matters at the time of petitioner‟s capital trial.
(6) Reasonable counsel would not have presented evidence about
petitioner‟s gang membership, as the reference hearing testimony confirmed that
petitioner had been an active, hardcore gang member from the age of 12.
(7) Reasonable counsel would not have presented evidence of petitioner‟s
substance abuse, because such evidence was lacking, although he did smoke
marijuana.
(8) Reasonable counsel would not have presented evidence of petitioner‟s
probation and parole history, which was unfavorable to petitioner.
(9) Reasonable counsel would not have presented evidence of petitioner‟s
history as a juvenile offender, because it included acts of violence and a burglary,
and thus was unfavorable to petitioner.
40
The Attorney General does not dispute the referee‟s findings described
above. Petitioner has two exceptions, which we address below.
2. Petitioner’s exceptions to referee’s findings
a. “The referee erroneously attributes Skyers’s failure to uncover
mitigating evidence to a family member conspiracy to keep
information from him.”
The referee found that “nondisclosure of family history by petitioner or
members of his immediate family was purposeful and that no attorney or
investigator could have developed the family mitigation . . . presented [at the
posttrial reference hearing] in view of the failure to disclose.” The referee later
observed: “[E]ven if petitioner‟s present claims of mitigating evidence available
to present at petitioner‟s trial in 1982 are credible, the failure of petitioner‟s trial
counsel to uncover and present such mitigating evidence is not the product of any
deficient performance by trial counsel; rather, it is the product of the Champion
family not disclosing family business to petitioner‟s trial counsel, Ronald Skyers.”
Petitioner asserts that the referee found a “conspiracy” by members of his
family to withhold information from Defense Counsel Skyers. He argues that it
was his counsel‟s obligation to seek out relevant information about petitioner‟s
upbringing, and that the blame for failing to discover it should be attributed not to
petitioner‟s family but to his counsel.
We agree with petitioner that to conduct a reasonably competent
investigation, defense counsel in a capital case must often explain to family
members that “negative” information about the defendant‟s childhood is often a
crucial part of the defense‟s penalty presentation in a capital case, and therefore
the family should not withhold such information. Here, Defense Counsel Skyers‟s
reference hearing testimony contains no indication that he explained this to
petitioner‟s family. (See In re Lucas (2004) 33 Cal.4th 682, 729-730 [the
41
petitioner‟s failure to reveal that he had been abused as a child did not excuse trial
counsel‟s “perfunctory investigation” because the petitioner would not have
understood the significance of such information and counsel “did not press [the]
petitioner to reveal information concerning such matters”].) Had Skyers done so,
it is unlikely that petitioner‟s family would have withheld such information, in
view of the referee‟s finding that they loved petitioner and the evidence that they
pooled their resources, using money they could ill afford to spend, to hire Skyers
to represent petitioner.
That said, petitioner‟s assertion that the referee found a family “conspiracy”
to withhold evidence overstates the referee‟s findings. The referee found no
conspiracy; rather, he correctly observed that at the time of petitioner‟s capital trial
the members of his family chose not to mention negative aspects of petitioner‟s
upbringing to Defense Counsel Skyers. This circumstance necessarily made it
more difficult for Defense Counsel Skyers to discover such information for use at
the trial‟s penalty phase.
b. “The referee erred in failing to fully credit the Strickland
expert’s opinions.”
At the posttrial reference hearing, petitioner called Jack Earley, an
experienced criminal defense attorney, who testified that in 1982, when petitioner
was tried for the Hassan murders, a reasonably competent attorney would have
conducted a far more thorough investigation than that done by Defense Counsel
Skyers. The Attorney General‟s cross-examination, which took up more than 800
pages of transcript, focused on a different question: whether a reasonably
competent attorney would have presented, at trial, the evidence that was gathered
by petitioner‟s habeas corpus counsel and introduced at the posttrial reference
hearing.
42
The referee generally agreed with Attorney Earley that Defense Counsel
Skyers‟s penalty phase investigation fell below the standard of a reasonably
competent attorney in 1982. But the referee concluded that a reasonably
competent attorney would not have presented, at the penalty phase of petitioner‟s
trial, the bulk of the evidence petitioner produced at the posttrial reference hearing.
Petitioner takes exception to the referee‟s finding, challenging both its form and its
substance.
As to its form, the referee‟s report has a long and detailed critique of
Earley‟s testimony. As petitioner points out, this critique was copied almost
verbatim from proposed findings of fact prepared by the Attorney General.
Petitioner cites some decisions in civil cases that have criticized trial courts for
using findings of fact prepared by a party (see, e.g., Anderson v. Bessemer City
(1985) 470 U.S. 564, 572 [“We . . . have criticized courts for their verbatim
adoption of findings of fact prepared by prevailing parties . . . .”]) and petitioner
argues that this criticism should also apply to referees in habeas corpus reference
hearings. He also relies on a decision of the Indiana Supreme Court in a criminal
case, which states: “[W]e do not prohibit the practice of adopting a party‟s
proposed findings. But when this occurs, there is an inevitable erosion of the
confidence of an appellate court that the findings reflect the considered judgment
of the trial court.” (Prowell v. State (Ind. 2001) 741 N.E.2d 704, 709.)
Petitioner‟s argument here is, in essence, the reverse of the argument he
made in a previously discussed exception. There, he defended a declaration
signed by one of his expert witnesses (psychologist Miora) but authored in part by
his habeas corpus counsel. (See pt. II.B.3.b., ante.) Here, he criticizes the referee
for signing a report that was authored in part by the Attorney General.
In our view, a referee‟s report, like an expert witness‟s declaration, may
properly contain materials drafted by counsel. But because lawyers are advocates
43
and not arbiters, their work may lack the impartiality of a report done personally
by the referee. Here, the referee‟s report describes psychologist Miora‟s
declaration (drafted by petitioner‟s habeas corpus counsel) as “a biased and highly
selective „spin‟ of the reference hearing evidence and exhibits.” We do not quarrel
with that description; an objective reader might come to a similar conclusion with
respect to that portion of the referee‟s report that discussed Attorney Earley‟s
reference hearing testimony and was drafted by the Attorney General.
In any event, the referee‟s critique of Attorney Earley‟s testimony about
which petitioner complains pertains almost entirely to the testimony Earley gave
on cross-examination by the Attorney General, as to whether a reasonably
competent attorney would have presented, at the penalty phase of petitioner‟s
capital trial, the evidence that habeas corpus counsel presented at the posttrial
reference hearing. This portion of Earley‟s testimony was of relatively little value,
for two reasons. First, Earley was not present during and did not read the
testimony of the witnesses at the reference hearing, nor did he read all of the
transcripts of the trials of petitioner and Evan Mallet, thereby limiting his ability to
determine what evidence a reasonably competent attorney would have presented at
trial. Second, although Earley gave helpful testimony on the type of investigation
that was customarily conducted more than 30 years ago, when petitioner‟s trial
occurred, the question of which evidence a reasonably competent trial counsel
should have presented is primarily a question of law for this court to decide.
With regard to the substance of the referee‟s finding in question, petitioner
defends Attorney Earley‟s reference hearing testimony on direct examination
describing the type of investigation that, in Earley‟s view, a reasonably competent
trial attorney would have undertaken. It is unclear why petitioner sees a need to
defend this portion of Earley‟s testimony, because the referee generally agreed
with it.
44
The referee found that some of Attorney Earley‟s opinions at the posttrial
reference hearing were “flawed because he employed a standard of whether he
would or would not have taken certain action, rather than the appropriate and
applicable standard of whether reasonably competent trial counsel would or would
not have taken the action.” Petitioner takes exception, asserting that Earley‟s
testimony reflected the correct legal standard. Because the referee did not specify
the portions of Earley‟s extensive reference hearing testimony that the referee
viewed as relying on an inappropriate standard, we cannot assess the accuracy of
the referee‟s finding, and we see no need to do so because the referee‟s vague
finding on this point does not affect our resolution of petitioner‟s claim of
incompetent representation at trial by Defense Counsel Skyers.
D. What circumstances, if any, weighed against the investigation or
presentation of the mitigating evidence not presented by counsel at
trial? What evidence damaging to petitioner, but not presented by
the prosecution at the guilt or penalty trials, would likely have been
presented in rebuttal if petitioner had introduced this evidence?
1. Referee’s findings
The referee found that these circumstances weighed against investigation
by trial counsel of the additional evidence proposed by petitioner: (1) Petitioner‟s
family members did not disclose adverse family history to Defense Counsel
Skyers; (2) alibi witness Marcus Player was not available to Defense Counsel
Skyers; (3) it is unknown whether Evan Mallet, who was convicted at a separate
trial of the Taylor crimes, was available or willing to testify on petitioner‟s behalf;
(4) it is unknown whether Lewis Champion III, one of petitioner‟s brothers, was
available or willing to testify on petitioner‟s behalf; (5) the psychiatric evidence
available to Defense Counsel Skyers suggested that there was no need for him to
hire an expert to conduct a neuropsychological examination; (6) it is “highly
unlikely” that alibi witnesses who were members of the Raymond Avenue Crips
45
(Marcus Player, Wayne Harris, and Earl Bogans) were available or willing to
testify; and (7) there is “insufficient evidence from which to conclude that . . .
Robert Simms‟ fingerprints were available.”
The referee found that these circumstances weighed against the
presentation at trial of the additional evidence proposed by petitioner at the
posttrial reference hearing: (1) “[K]ey family members” lacked credibility
because the jury had rejected their guilt phase testimony, and the prosecution had
access to records from CYA and petitioner‟s school that contained statements
from petitioner and his mother contradicting certain testimony offered by members
of petitioner‟s family at the reference hearing. (2) The defense lacked
documentary support for claims that petitioner had brain damage resulting from
fetal abuse, traffic accident head trauma, or head injuries resulting from beatings
by other family members. (3) As to testimony by members of petitioner‟s family
that as a child he suffered from extreme poverty and malnutrition and lacked
clothing (testimony that the referee found not to be credible), the defense at trial
would have needed to “modify” that testimony to testimony that was “consistent
with the . . . evidence” — that petitioner‟s mother was a single parent who
struggled, financially and emotionally, to provide support and care to a large
family. (4) Psychiatric and psychological reports from CYA contradicted
petitioner‟s evidence that he suffered from mental defects or disorders. (5) No
family members, relatives, friends, or neighbors, of petitioner were willing to say
that he suffered from any type of mental impairment. (6) The prosecution at trial
could have presented additional evidence of petitioner‟s gang membership and
violent history. (7) The prosecution could have countered some of the mitigating
evidence with petitioner‟s prior statements to CYA authorities and law
enforcement.
46
With regard to rebuttal evidence that the prosecution would likely have
presented if the defense, at petitioner‟s capital trial, had introduced the mitigating
evidence presented at the posttrial reference hearing, the referee made these
findings:
(1) If the defense at trial had presented alibi evidence pertaining to the
Taylor crimes, the prosecution could have elicited testimony from two of
petitioner‟s alibi witnesses — Wayne Harris and Earl Bogans — that they,
petitioner, and the third alibi witness (Marcus Player) were all members of the
Raymond Avenue Crips, and that testimony would have contradicted petitioner‟s
guilt phase testimony at trial that he and the others were not gang members. The
prosecution could have shown that at the time of petitioner‟s trial, alibi witness
Marcus Player was awaiting trial on a murder charge. The prosecution could have
elicited testimony from alibi witness Harris that Harris went to petitioner‟s home,
where he saw codefendant Ross, after being questioned by sheriff‟s deputies on
the night of the Taylor crimes. If psychologist Miora had testified at trial as a
defense expert, the prosecution on cross-examination could have elicited from her
the information that Ross was one of petitioner‟s best friends. (Evidence linking
petitioner to Ross would have supported the prosecution‟s argument that petitioner
was one of the perpetrators of the Taylor crimes, because there was overwhelming
evidence that Ross was one of the perpetrators.)
(2) If the defense at trial had presented evidence that petitioner grew up in
poverty, that he suffered malnutrition, that he was physically abused by his
siblings, that he was a follower, and that he had neuropsychological deficits, the
prosecution could have rebutted this evidence with testimony from petitioner‟s
alibi witnesses (Harris, Bogans, and Player), all of whom testified at the posttrial
reference hearing that petitioner was not a follower, that he did not live in poverty,
that he did not appear malnourished, that he never complained of physical abuse
47
by his siblings, and that he showed no signs of mental problems. Similarly, if the
defense had called Gary Jones, who testified about his childhood friendship with
petitioner, the prosecution could have elicited testimony from Jones that petitioner
did not suffer from poverty, malnutrition, and physical abuse as a child.
(3) The prosecution at trial could have used, to rebut testimony that
petitioner suffered brain damage in utero, the statements of petitioner‟s mother to
school authorities that she had a normal childbirth. The prosecution could have
used the statements of petitioner‟s mother to CYA authorities that all was well at
petitioner‟s home, as well as petitioner‟s statements to CYA authorities that he had
a “regular family,” to rebut testimony that petitioner was abused by his siblings.
The prosecution could have used petitioner‟s statements to CYA authorities that
he was not a follower or easily influenced by others to rebut evidence that he did
not play a leading role in the murders.
(4) A “mitigation expert . . . [testifying about] positive CYA adjustment,
child development/functioning, increasing community dangers, lack of gang
involvement and lack of association with Raymond Avenue [Crips] gang
members, might be questioned about petitioner‟s violent history, gang
membership or petitioner‟s prior statements.”
(5) Petitioner “had an extensive, violent criminal arrest record” which
“might [have] become admissible to impeach a witness or impeach the basis of
petitioner[‟s] mitigation expert‟s opinion.” The prosecution at trial could also
have presented additional details of the two robberies petitioner committed as a
juvenile, facts that were not all presented to the jury.
(6) The prosecution could have responded to defense efforts to minimize
the extent of petitioner‟s participation in the Raymond Avenue Crips with
“evidence showing the degree and extent of petitioner‟s involvement in gangs.”
48
(7) If the defense had presented evidence that petitioner lived in an
increasingly dangerous neighborhood as a teenager, the prosecution could have
responded with evidence that petitioner was a gang member from the age of 12
and that his gang, the Raymond Avenue Crips, committed most of the violent
crimes that made the neighborhood dangerous.
(8) The prosecution at trial could have used petitioner‟s arrest records to
show petitioner‟s “extended association” with Evan Mallet, Michael Player, and
Craig Ross, all of whom participated in the Taylor crimes.
(9) If the defense at trial had presented evidence that petitioner was
amenable to rehabilitation in a structured setting, the prosecution could have
introduced petitioner‟s statements to a CYA psychologist that he was not easily
influenced by others and that he committed crimes for “fast money” and because
he “could get away with things,” and the prosecution could have pointed out that
petitioner participated in the murders of Bobby and Eric Hassan less than two
months after his release from CYA. The prosecution could also have presented
evidence that, while at CYA, petitioner led a race-based riot and assaulted another
inmate.
2. Attorney General’s exceptions to referee’s findings
a. Petitioner’s difficulties in school
The referee found: “The only areas . . . that should have been presented if
disclosed are: . . . family members‟ love and affection [for] petitioner; his traits of
being loving toward them and his protective nature; Mrs. Champion‟s difficulties
in being a single parent and raising a large family with very limited income; the
absence of a father figure . . .; the impact that Trabue Sr.‟s death had on the
family; and petitioner‟s school difficulties.” According to the referee, the
“nondisclosure of relevant family history” by petitioner‟s family “precluded
49
attorney Skyers from considering these mitigation themes.” The referee also
found, however, that Skyers should have independently reviewed petitioner‟s
school records and interviewed his teachers.
The Attorney General takes exception to these findings to the extent they
“might be interpreted as a finding that Skyers was deficient for not presenting
[evidence that petitioner had] „school difficulties‟ at the penalty phase.” The
Attorney General points out that the referee found that “when petitioner put his
mind to his education, he could be successful,” but “when he preferred to
participate with his gang beginning at age 12 or 13 . . . his school work suffered.”
She also notes that the referee found that the prosecution could have “neutralized”
evidence of petitioner‟s difficulties in school with evidence of petitioner‟s gang
involvement and school records indicating that petitioner “could do well when he
applied himself.” Thus, the Attorney General argues, had Defense Counsel Skyers
presented evidence of petitioner‟s “school difficulties” at the penalty phase of trial,
the prosecution would have been able to counter that evidence with evidence that
those difficulties resulted from choices petitioner made, not from limitations on his
ability, and Defense Counsel Skyers made a reasonable tactical decision not to
present evidence of petitioner‟s “school difficulties.”
The Attorney General‟s argument is unpersuasive. As the referee
explained, Defense Counsel Skyers could have presented psychiatric evidence that
petitioner suffered from “a low IQ, low intellectual functioning, reading and
learning difficulties, attention deficits . . . , deficiency in ability to conceptualize,
[and] low self esteem.” A jury could reasonably have concluded that petitioner‟s
poor performance in school was attributable at least in part to those deficits.
Petitioner‟s membership in the Raymond Avenue Crips (of which the jury was
already aware) and comments in petitioner‟s school records that he could do well
50
when he applied himself are not persuasive reasons for defense counsel‟s failure to
present such evidence at the penalty phase of the trial.
The Attorney General argues that if petitioner had presented evidence at the
penalty phase of trial that his school difficulties resulted from extreme poverty or
from brain damage caused by fetal abuse, sibling abuse, or head injury, the
prosecution could have responded with “devastating rebuttal” by showing that
petitioner‟s family was not impoverished and that there was no credible evidence
that petitioner ever suffered an injury likely to lead to brain damage. But the
referee did not find that Defense Counsel Skyers should have presented such
evidence; rather, as explained above, he found that Skyers should have presented
evidence that petitioner‟s school difficulties resulted from “a low IQ, low
intellectual functioning, reading and learning difficulties, attention deficits . . . ,
deficiency in ability to conceptualize, [and] low self esteem.” The Attorney
General does not mention any “devastating rebuttal” that the prosecution could
have presented to counter such evidence.
According to the Attorney General, to the extent evidence about petitioner‟s
school difficulties required disclosures from petitioner and his family, a
reasonably competent attorney could not be expected to discover that evidence.
But we see no reason why Defense Counsel Skyers would have required the
cooperation of petitioner‟s family to obtain such evidence. Moreover, the
reluctance of petitioner‟s family to disclose to Skyers the negative aspects of his
family background may have stemmed from a desire not to say anything that
might harm petitioner, who, the referee found, was loved by his family. If defense
counsel had explained to the family that these negative aspects could be beneficial
to petitioner, it is likely that his family would have been willing to discuss them.
51
b. Testimony of petitioner’s mother and sister
The referee found that “the best practice for trial counsel would have been
to” call the members of petitioner‟s family at the penalty phase to testify to their
love for petitioner, and that Gary Jones‟s “recollection as to his childhood
experience with petitioner should have been presented.” According to the referee,
“some of the best moments for petitioner at the reference hearing” occurred when
petitioner‟s mother “described her feelings about her son” and when petitioner‟s
childhood friend Jones “described his feelings about petitioner.”
The Attorney General points out that a reviewing court may not resolve a
claim that a defendant‟s trial counsel was ineffective by determining what would
have been the “best practice,” because, as the high court has said, “[t]here are
countless ways to provide effective assistance in any given case” (Strickland v.
Washington (1984) 466 U.S. 668, 689) and “a court must indulge a strong
presumption that counsel‟s conduct falls within the wide range of reasonable
professional assistance” (ibid.). The Attorney General notes that a reviewing court
must decide whether the attorney‟s representation “fell below an objective
standard of reasonableness under prevailing professional norms” (People v. Mai
(2013) 57 Cal.4th 986, 1009), not whether the attorney engaged, in the referee‟s
words, in the “best practice.” But we construe the referee‟s finding in question as
simply telling this court which portions of the evidence presented at the posttrial
reference hearing would, in his view, have been useful for presentation by the
defense at trial. We accept the referee‟s finding for this limited purpose.
52
3. Petitioner’s exception to referee’s findings: “No evidence
damaging to petitioner, but not presented by the prosecution at the
guilt or penalty trials, would likely have been presented in rebuttal
if petitioner had introduced at trial the mitigating evidence
adduced at the reference hearings; nor were there other
circumstances which would have led reasonable counsel to not
present this mitigating evidence.”
Petitioner asserts that, contrary to the referee‟s findings described above
(see pt. II.D.1., ante), the prosecution at trial would not have introduced any
evidence damaging to him if he had introduced at trial the mitigating evidence he
presented at the posttrial reference hearing, and there were no other circumstances
that would have caused a reasonable counsel not to present that evidence. As
explained below, we disagree.
Petitioner argues that the prosecution at trial would not have presented any
evidence in rebuttal if trial counsel had presented an alibi defense to the Taylor
crimes. Petitioner accepts the referee‟s finding that petitioner‟s three crucial alibi
witnesses (Marcus Player, Earl Bogans, and Wayne Harris) were problematic for
the defense because they, like petitioner, were members of the Raymond Avenue
Crips street gang, and because their testimony contradicted that of petitioner‟s.
Petitioner insists, however, that an alibi defense could have been presented based
on his own testimony and the “corroborating reference hearing testimony of law
enforcement officers.” Not so. The officers did not corroborate petitioner‟s
testimony that he was at home at the time of the Taylor crimes, and they did not
corroborate his testimony that he was not in the brown Buick car. Such
corroboration could only have come from witnesses Player, Bogans, and Harris,
all of whom, the referee found, lacked credibility. (See pt. II.B.1, ante.)
Petitioner argues that even if the referee is correct that if the defense at trial
had called alibi witnesses Player, Bogans, and Harris to testify, the prosecution
could have used these defense witnesses to corroborate its claim that petitioner
53
was a member of the Raymond Avenue Crips street gang, the harm to petitioner
that would have resulted from the prosecutor‟s use of the witnesses in this fashion
was minor compared to the risk that the jury would find that petitioner was one of
the perpetrators of the Taylor crimes. If Player, Bogans, and Harris could have
given persuasive testimony that petitioner was innocent of the Taylor crimes, we
agree with petitioner that the defense should have presented that testimony, even if
the jury would have also heard additional evidence that petitioner was a member
of the Raymond Avenue Crips street gang. But, as the referee found, the
testimony of petitioner‟s alibi witnesses was not credible.
According to petitioner, the referee made a finding that if petitioner had at
trial presented an alibi defense pertaining to the Taylor crimes, the prosecutor
might have called Evan Mallet, who had been convicted of committing those
crimes, to testify in rebuttal. Petitioner disagrees with this alleged finding,
asserting that “no reasonable prosecutor would have called Mallet.” We agree
with petitioner that it is highly unlikely that the prosecution would have called
Mallet to testify, but we discern no contrary finding by the referee: No mention of
Mallet appears in the referee‟s summary of the rebuttal evidence that the
prosecution could have presented at trial, and the pages of the referee‟s report
from which petitioner perceives such a finding merely describe Attorney Earley‟s
posttrial reference hearing testimony when he was cross-examined about the
possibility that the prosecution might have called Mallet to testify at trial.
The referee found that if at trial the defense had presented evidence of
petitioner‟s potential for institutional adjustment if sentenced to life imprisonment
without possibility of parole, the prosecution could have countered with evidence
that, while at CYA, petitioner led a race-based riot and assaulted another inmate.
Petitioner asserts that the CYA misconduct was insignificant because it occurred
early in his confinement at CYA, and that his behavior at CYA improved over
54
time. According to petitioner, even if the prosecutor had introduced evidence that
petitioner “was not 100% successful at CYA,” the defense could have countered
that testimony with expert witnesses of its own. But petitioner‟s argument does
not show that the referee was wrong in finding that if at trial the defense had
introduced evidence that petitioner would adjust well to incarceration, the
prosecution could have countered this with evidence of petitioner‟s misconduct at
CYA.
With regard to petitioner‟s upbringing and social history, petitioner
disagrees with the referee‟s finding that if he had presented evidence at trial that as
a child he suffered from poverty, malnutrition, and physical abuse by his siblings,
the prosecution could have rebutted this evidence with testimony to the contrary
from petitioner‟s alibi witnesses (Harris, Bogans, and Player) and petitioner‟s
childhood friend (Gary Jones). Petitioner asserts that “it is highly unlikely that the
prosecutor would have called [these witnesses] to testify as to petitioner‟s
upbringing.” We agree with petitioner that the prosecutor at trial would not have
initiated calling those witnesses himself. But that is not what the referee found.
Rather, the referee explained that had the defense called these witnesses to testify
at trial, the prosecutor might have questioned them on cross-examination about the
circumstances of petitioner‟s upbringing, much as the Attorney General did at the
posttrial reference hearing. We perceive no error in the referee‟s finding.
Petitioner challenges as “ludicrous” the referee‟s finding that at trial the
prosecution could have presented a statement of petitioner‟s mother to school
authorities that petitioner‟s birth was normal (if the defense had claimed that
petitioner suffered brain damage from fetal abuse), and her statement to CYA
authorities that all was well at home as well as petitioner‟s statement to CYA
authorities that he had no major problems at home (if the defense had claimed that
petitioner was abused by his siblings). We agree with the referee that at trial the
55
prosecution could have used these statements by petitioner and his mother to
refute a defense penalty phase claim that petitioner suffered fetal brain damage or
that he was physically abused at home.
E. Did petitioner do or say anything to hinder or prevent the
investigation or presentation of mitigating evidence at the penalty
phase, or did he ask that any such evidence not be presented? If so,
what did he do or say?
The referee found that petitioner did nothing to hinder or prevent the
investigation of mitigating evidence at the penalty phase of trial, and that he did
not ask that any such evidence not be presented. Neither party takes exception to
these findings.
III. DISCUSSION
Because a habeas corpus petition is a collateral attack on a presumptively
valid judgment, “ „the petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them.‟ ” (In re Price, supra, 51 Cal.4th
547, 559.) Even when, as here, this court finds that a habeas corpus petition states
a prima facie showing that the petitioner is entitled to relief, the petitioner must
still “ „prove, by a preponderance of the evidence, facts that establish a basis for
relief on habeas corpus.‟ ” (In re Cudjo (1999) 20 Cal.4th 673, 687; see also In re
Bacigalupo (2012) 55 Cal.4th 312, 333.) “Because the referee observes the
demeanor of the witnesses as they testify, we generally defer to the referee‟s
factual findings and „give great weight‟ to them when supported by substantial
evidence.” (Bacigalupo, supra, at p. 333.)
Petitioner here claims that defense counsel‟s performance at the penalty
phase of trial violated petitioner‟s right, under both the federal Constitution‟s Sixth
Amendment and the California Constitution‟s article I, section 15, to the effective
assistance of counsel. To obtain relief, he “must prove „ “that counsel‟s
representation fell below an objective standard of reasonableness under prevailing
56
professional norms, and that counsel‟s deficient performance was prejudicial, i.e.,
that a reasonable probability exists that, but for counsel‟s failings, the result would
have been more favorable to the defendant.” ‟ ” (In re Crew (2011) 52 Cal.4th
126, 150.) A reasonable probability, the high court has said, “is a probability
sufficient to undermine confidence in the outcome.” (Strickland v. Washington,
supra, 466 U.S. 668, 694.)
As we have already explained, we agree with the referee that Defense
Counsel Skyers was not incompetent at trial for not retaining a neuropsychologist
to investigate the possibility that petitioner had neuropsychological deficits (see pt.
II.B.3.a., ante), that petitioner has not shown that Skyers could have discovered
that Robert Simms‟s fingerprints were found at the Taylor home (see pt. II.B.2.c.,
ante), and that alibi witness Marcus Player (who was facing a murder charge at the
time of petitioner‟s trial) would not have talked to a defense investigator and thus
could not have been used by the defense at trial (see pt. II.B.2.b., ante). We must
now decide whether, based on the remaining evidence that petitioner presented at
the posttrial reference hearing, petitioner is entitled to relief.
Pertinent here is this observation by the United States Supreme Court: “[A]
court need not determine whether counsel‟s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” (Strickland v. Washington, supra, 466 U.S. 668, 697.) Here,
as in the case of the attorney who represented petitioner‟s codefendant, Craig
Anthony Ross (see In re Ross (1995) 10 Cal.4th 184, 204 (Ross)), we need not
decide whether Defense Counsel Skyers competently represented petitioner at
trial, because any inadequacy did not prejudice petitioner. Our reasons follow.
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We first consider the evidence that, according to petitioner, Defense
Counsel Skyers should have discovered and presented in response to the
aggravating evidence presented by the prosecution. Significantly, none of this
evidence pertained to the circumstances of the murders of Bobby and Eric Hassan
of which petitioner was convicted. Those murders were egregious: The victims,
one of them a 14-year-old handicapped boy, were each shot in the head,
execution-style, while lying on a bed. Nor did petitioner present any mitigating
evidence pertaining to the robbery and the aggravated assault that he committed as
a juvenile, as to which the prosecution presented aggravating evidence at the
penalty phase of petitioner‟s trial. In the latter offense, petitioner personally
displayed callousness and brutality, kicking the victim and cutting him with a
knife.
As to the Taylor crimes, petitioner could have presented an alibi defense at
trial. But the referee found the testimony by petitioner‟s alibi witnesses not
credible, a finding with which we agree. Furthermore, had their testimony been
presented at trial, it would have contradicted the guilt phase testimony of
petitioner and his mother that petitioner was at home when the Taylor crimes were
committed, and it would have contradicted petitioner‟s trial testimony that he was
not a member of the Raymond Avenue Crips. Thus, there is not a reasonable
probability that the outcome of the penalty phase of petitioner‟s capital trial would
have been different had defense counsel presented that evidence.
We now consider the evidence pertaining to petitioner‟s social history,
development, and functioning. We begin by summarizing the evidence presented
at the posttrial reference hearing.
Through testimony by petitioner‟s mother and uncle, by three of
petitioner‟s sisters, by his childhood friend Gary Jones, and by psychologist
Deborah Miora, petitioner presented this evidence at the reference hearing:
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Petitioner was born on August 26, 1962. His father, Lewis Champion II,
verbally and physically abused petitioner‟s mother, Azell Champion. When Azell
became pregnant with petitioner, Lewis II said he did not want any more children,
and he repeatedly hit and kicked Azell to try to kill the fetus.
Shortly before petitioner‟s birth, his parents separated, and within a few
months Azell became involved with Gerald Trabue, Sr.; the couple later had two
children. Trabue, who owned an electronics business, was a good provider and
was kind to Azell‟s children. But when petitioner was six years old, the family car
was hit by a driver who ran a red light. Everyone in the family car was hurt;
Trabue‟s injuries were so serious that he died two weeks later. Petitioner broke
his collarbone and suffered a head injury. His mother became depressed after
Trabue‟s death.
Within a year after Trabue‟s death, Azell married Henry Robinson, with
whom she had another child, but the marriage lasted less than a year. Thereafter,
petitioner had no adult male figure in the home.
After Trabue‟s death, Azell worked outside the home to support her family,
and she was unable to look after the children during the day. 4 Petitioner‟s sister
Linda and his brother, Lewis III (six years older than petitioner), cared for the
younger children. Lewis III hit the other children with belts and an extension
cord, resulting in calls to the police. When Lewis III was 16 years old, he entered
the Job Corps for four to seven months. After he returned, he began using
phencyclidine (PCP), and the frequency and severity of his physical abuse of the
4 The two children of Azell and Trabue received money from the settlement
of a wrongful death action filed on their behalf after Trabue‟s death. Azell
received no money in the action, apparently because she and Trabue were
unmarried. She did, however, receive an unspecified amount of money as benefits
from a policy insuring Trabue‟s life.
59
younger children, including petitioner, increased. He destroyed family pictures
and furniture, put holes in the wall, and knocked out windows. On several
occasions, the police took him to the state mental hospital in Norwalk for
observation, after which he was released.
Petitioner‟s second oldest brother, Reginald, was a disturbed child who,
after he grew up, was diagnosed with schizophrenia and bipolar mood disorder,
and ended up in prison for shooting his brother-in-law. He also assaulted
petitioner when they were children.
Petitioner grew up in South Central Los Angeles. He was teased because
his skin was very dark and his clothes were old, and he had low self-esteem. He
performed poorly in elementary school, and his school reports mention that he was
distracted by problems at home.
At the age of 15 years, after participating in the robbery of three persons at
a Greyhound Bus depot, petitioner was committed to a camp. The next year, after
petitioner assaulted Jose Bustos with a knife (see pp. 4-5, ante), the juvenile court
committed him to CYA. The Hassan murders occurred two months after his
release on parole.
Petitioner contends that if defense counsel at trial had presented the
evidence described above, there is a reasonable probability that the jury would not
have imposed a death sentence at the penalty phase of petitioner‟s capital trial.
We disagree. The referee found that the testimony at the posttrial reference
hearing that petitioner grew up in extreme poverty was not credible (see pt. II.B.1,
ante), and he found that the reference hearing testimony that petitioner was beaten
by his older brothers was “not true,” although he found that petitioner‟s brother
Lewis‟s attempts to discipline petitioner may at times have been “inappropriate.”
And if the defense at trial had called petitioner‟s reference hearing witnesses
Harris and Bogans to give alibi testimony for the Taylor crimes, or if it had called
60
petitioner‟s friend Gary Jones to testify about petitioner‟s good character as a
child, the prosecution at trial could have used these witnesses to rebut the evidence
of poverty and abuse.
Petitioner argues that the jury at his capital trial might have credited the
posttrial reference hearing testimony by members of his family that he was
physically abused by his oldest brother Lewis, if defense counsel had presented
such testimony at the penalty phase of his trial. Pertinent here is this court‟s
decision in Ross, supra, 10 Cal.4th 184. In Ross, petitioner‟s codefendant, Craig
Ross, claimed his attorney was incompetent for not presenting mitigating evidence
at the penalty phase. At Ross‟s posttrial habeas corpus reference hearing, he
presented evidence of physical abuse as a child by his stepfather, and he argued
that his trial attorney should have presented this evidence at the penalty phase of
trial. This court found that if Ross‟s trial attorney had done so, the prosecution
could have rebutted it with “a psychiatric report prepared when [Ross] was 15
years old,” stating that Ross had told the psychiatrist that “he liked and got along
well with” his stepfather, who had not abused him. (Id. at p. 206.) Similarly, if
petitioner‟s mother had testified at the penalty phase that petitioner had been
physically abused by his brothers as a child, the prosecution could have responded
with evidence that (1) petitioner‟s mother had told a CYA parole officer that her
children “all relate[d] well to each other, respect[ed] the parent, and [were] helpful
at home” and that the family was “normal in all respects”; and that (2) petitioner
had told a CYA psychiatrist he had a “regular family” with “the usual sibling
rivalry” and his family relationships were not a “major problem.”
Petitioner asserts that reasonable jurors could well have concluded that his
“development and functioning [were] adversely affected by living in a community
plagued by violence.” He notes that he “was not raised in a reasonably safe,
relatively affluent community with good schools, by people with the advantages of
61
education, steady employment, sound mental health, and access to resources . . . .”
He contends that “[a] reasonable juror could decide that children being beaten by
persons from rival neighborhoods, gunfire in the streets, and the perception . . .
that the police were not on one‟s side represents a very substantial set of obstacles
to healthy development.” But this can also be said of codefendant Ross, who grew
up in the same neighborhood and who, at his own reference hearing, presented
testimony that he “lived in a violent neighborhood [and] that his failure to be
rehabilitated was partly the fault of institutional authorities.” (Ross, supra, 10
Cal.4th at p. 205.) This court held that Ross was not prejudiced by his attorney‟s
failure to present this evidence at trial. (Id. at p. 213.)
The remaining evidence presented by petitioner at the posttrial reference
hearing paints the picture of a childhood that was marred by tragedy (the death of
Gerald Trabue, Sr., petitioner‟s stepfather), after which petitioner‟s mother
struggled financially. And petitioner struggled with the challenges of a below-
average intelligence, reading and learning difficulties, and attention deficits. None
of the evidence, however, was so weighty that it was likely to affect the trial jury‟s
determination that the brutal Hassan murders committed by petitioner and his
confederates, when combined with petitioner‟s prior history of robbery and
aggravated assault, warranted the death penalty.
In Ross, this court held that defense counsel‟s failure at trial to present, at
the penalty phase of trial, certain evidence comparable to the evidence in question
here on behalf of Ross (petitioner‟s codefendant) did not prejudice Ross. The
decision noted that Ross participated in “the cold-blooded killing of a father and
fourteen-year-old son, who were shot while lying on a bed, one with his hands tied
behind his back.” (Ross, supra, 10 Cal.4th at p. 213.) The killings were “gang-
conducted robbery murders, not sudden explosions of angry violence or
psychopathic serial killings.” (Ibid.) The same can be said of petitioner here.
62
And, as this court observed in Ross: “Although the additional mitigating evidence,
had it been presented, might have evoked sympathy, there was no compelling
connection between that evidence and the crimes of this case.” (Ibid.)
CONCLUSION AND DISPOSITION
Because our order to show cause and reference order were limited to the
claim of ineffective assistance of counsel at the penalty phase of petitioner‟s
capital trial, we do not address any other claim raised in the petition for writ of
habeas corpus. The remaining claims will be resolved by a separately filed order.
(See In re Boyette (2013) 56 Cal.4th 866, 898.)
The order to show cause is discharged.
KENNARD, J.*
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
* Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
63
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Champion
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S065575
Date Filed: April 14, 2014
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Francisco P. Briseno, Referee
__________________________________________________________________________________
Counsel:
Karen Kelly, under appointment by the Supreme Court, for Petitioner Steve Allen Champion.
Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General,
Sharlene A. Honnaka, Robert S. Henry and Steven E. Mercer, Deputy Attorneys General, for Respondent
State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Karen Kelly
P.O. Box 6308
Modesto, CA 95357
(209) 552-0988
Steven E. Mercer
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1344