In re CARLOS JAMIE AVENA on Habeas Corpus, 12 Cal. 4th 694

Opinion LUCAS, C. J. Carlos Jaime Avena was convicted in 1980 in Los Angeles County Superior Court of the first degree murders of Manuel Solis and Miguel Vasquez. (Pen.

Code, § 187; all further statutory references are to this code unless otherwise indicated.) Multiple-murder and robbery-murder special-circumstance allegations were also sustained. (§ 190.2, subd. (a)(3) & (17).) In addition, petitioner was convicted of robbery, attempted robbery, two counts of assault with a deadly weapon, and two counts of assault with intent to commit murder. (§§ 211, 664/211, 245, subd. (a), & former § 217.) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) Petitioner appealed and also filed a petition for a writ of habeas corpus.

This court determined he stated a prima facie case for relief in his habeas corpus petition and issued an order to show cause. Finding issues of material fact in dispute as to only one of his allegations, we appointed Judge Kathleen Parker, judge of the Superior Court of Los Angeles County, to hold a hearing and file her report with us. We later vacated Judge Parker’s appointment due to her failing health and thereafter appointed John Ouderkirk, judge of the Superior Court of Los Angeles County, to act as our referee. Judge Ouderkirk has now filed his report.

Both petitioner and respondent except to various portions of the referee’s findings. After due consideration, we conclude that the referee’s findings are supported by the evidence and thus reject those claims. After considering those findings, we conclude the order to show cause should be discharged and the writ denied. Facts A. The Crimes On September 12, 1980, petitioner and brothers Victor and Arturo Padua were driving in a white 1971 Mazda. Petitioner sat in the backseat and had a .22-caliber rifle with him. All three had consumed some beer that evening.

While waiting for a stoplight, a brown Ford Galaxy pulled alongside them. When Arturo Padua yelled an insult at the brown car, one of its occupants threw a beer bottle at them, striking the Mazda on the window where petitioner was seated. Petitioner retaliated by shooting at the Ford, which then sped off. Petitioner and the Paduas gave chase. The Ford stopped suddenly, causing petitioner’s Mazda to collide with the rear of the Ford. The Ford again drove away; the Mazda, however, was rendered inoperable. Petitioner and the Paduas pushed it to the side of the road and decided to secure alternative transportation.

It was then they saw a pink Chevrolet Camaro, driven by victims Manuel Solis and Miguel Vasquez. Petitioner and the Padua brothers approached the Camaro and stood on either side of the car. Petitioner was carrying his rifle and Arturo was carrying a piece of wood. Although the exact sequence of events is unclear, petitioner apparently demanded the driver give him his money and the keys to the Camaro. Petitioner then shot into the car, wounding the occupants. Petitioner also apparently grabbed one of the victims, pulled him out of the car, and shot him four times in the chest.

The other victim exited the passenger side of the Camaro whereupon Arturo struck him in the head with the piece of wood. When one of the victims made a vain attempt to flee, petitioner told Arturo to move out of his line of sight, and then he shot the victim twice. Some people on the street, including the victim’s brother, Daniel Solis, witnessing this crime, engaged in some sort of confrontation that included throwing a bottle. The witnesses fled when petitioner began shooting at them. Petitioner and the Paduas then left in the pink Camaro.

Once in the car, petitioner said he was out of ammunition and needed to go home and reload. After reloading, the trio drove the Camaro to a church parking lot, where they set the car on fire, apparently to eliminate their fingerprints. They then walked to 22nd Street and Normandie, near the Santa Monica Freeway. The Paduas went to buy more beer and then returned to petitioner. By this time, it was approximately 11 p.m., and the trio was once again on foot. Victor Padua, apparently having had enough excitement for one night, hid in some bushes near a freeway exit.

When victim Ana Hernandez stopped her yellow Chevette at a stoplight, petitioner and Arturo walked up to either side of the car and attempted to open her door. Petitioner shot into the car door; Arturo may have slammed a beer bottle on the windshield. Hernandez accelerated through the red light to escape; petitioner shot at the escaping Chevette, striking the rear of the vehicle. Officers McCann and Derenia were coincidentally driving by the off-ramp in an unmarked police car at this time and observed the yellow Chevette drive through the red light.

They then saw petitioner standing in the off-ramp with the rifle. Petitioner opened fire on the officers, shooting out the car windows. The officers returned fire, both emptying their revolvers before driving under the freeway, making a U-turn, and returning. Petitioner and Arturo fled on foot, managing to escape capture. A police search of the area revealed several .22-caliber casings on the ground and, eventually, Victor Padua, still hiding in the bushes. Police initially did not connect Victor to the shootings, as he gave a false story.

Finding evidence that Victor had been seen in the company of two other men that night, police questioned him again and this time he told police about petitioner and Arturo. They were arrested and identified by Officers McCann and Derenia. The witnesses of the Solis and Vasquez murders confirmed the shootings, but were too far away to make positive identifications. Hernandez likewise said it was too dark to make a positive identification of her assailants. Victor Padua testified against petitioner at his trial. In addition, petitioner gave a statement to police that was surreptitiously recorded.

This statement largely tracked Victor’s account of the crimes, except that petitioner claimed the driver of the pink Camaro menaced him with a knife and that was why he shot him. The recording was played for the jury. Petitioner also admitted he used a .22-caliber rifle that was loaded by means of a tubular magazine with a capacity of 17 to 20 rounds. He said he bought the rifle on the street for $30. A police expert testified that the .22-caliber shell casings found at the murder scene and on the off-ramp were, with one exception, fired from the same gun.

The expert testified that only three types of rifles could have produced those shell casings. One type, the Marlin Glenfield, was described as a “very common, very popular . . . very low priced [rifle]” that uses a tubular magazine with an 18-round capacity. (One shell casing exhibited characteristics that made it impossible to determine with certainty that it came from the same weapon.) Petitioner’s trial counsel, Marvin Part, waived his opening statement and rested without presenting any defense at the guilt phase of the trial.

Part called only two minor witnesses at the penalty phase of the trial. Following argument, the jury set the penalty at death. B.

The Petition for Writ of Habeas Corpus, the Evidentiary Hearing, and the Referee’s Report In his petition for a writ of habeas corpus, petitioner claimed that his trial counsel Part was constitutionally ineffective for failing to: (1) “Adequately interview petitioner and his immediate family for probative information”; (2) “Arrange for proper investigation of the facts”; (3) “Interview witnesses”; (4) “Present any pretrial motions on behalf of [petitioner], including a motion to suppress . . . [petitioner’s] statement to police”; (5) “Investigate, raise and support the defense of diminished capacity”; (6) “Present his client before the jury in a respectable fashion,” i.e., to ensure that petitioner did not appear before the jury in jail clothes; (7) “Present mitigating evidence at the penalty trial”; and (8) “Argue effectively on behalf of [petitioner] at [the] guilt or penalty phase of the trial.” Finding these allegations, considered together with the exhibits, established a prima facie showing of relief, we issued an order to show cause. (People v.

Duvall (1995) 9 Cal.4th 464, 475 [37 Cal.Rptr.2d 259, 886 P.2d 1252] (hereafter Duvall); In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4 [87 Cal.Rptr. 681, 471 P.2d 1].) After receiving the People’s return and petitioner’s traverse, we concluded that most of the issues raised could be decided on the pleadings because there were no disputed factual matters outside the trial record. (Duvall, supra, at pp. 478-479.) As to petitioner’s claim that Part should have investigated and presented the defense of diminished capacity, however, there were disputed issues of material fact.

Accordingly, we referred the matter to a referee for an evidentiary hearing. (Id. at p. 478.) With regard to that issue, we submitted these questions to our referee: “(

a) What did petitioner tell his trial counsel about petitioner’s use of PCP or alcohol (

i) generally, and (ii) on the night of the killings? [*][] (

b) Was there other evidence of petitioner’s use of PCP that counsel failed to discover because his investigation was inadequate, and if so, what was that evidence? HD (

c) Was there evidence that petitioner’s PCP use was a factor in his commission of the offenses? [*fl] (

d) Might the circumstances of petitioner’s PCP use, viewed in light of his background and character, have been considered a mitigating factor by the penalty phase jury (see Pen. Code, § 190.3, subds. (d), (h), & (k))?” After a protracted evidentiary hearing, our referee made the following rulings: Regarding questions (a)(

i) and (a)(ii): “Petitioner told his trial counsel nothing about his use of alcohol or PCP generally. Petitioner did not tell his trial counsel that he used PCP on the night of the killings. Yes, petitioner did tell his trial counsel that he consumed beer on the night of the killings.” In support of these findings, the referee found that petitioner testified that Part asked him if he used drugs on the night of the killings, and that petitioner said he told Part he had ingested phencyclidine (PCP) and marijuana, and drank beer and cognac on the night of the killings.

Petitioner claims he told Part about his drug use during their first meeting at the county jail. “Petitioner claimed to have a virtually verbatim recollection of the portions of his conversation with trial counsel which related to drugs.

However, as to other parts of the conversation, he had very limited recollection.” He further claims he did not tell police about his drugs use because they did not ask him about it, although he claimed that his use during the interrogation of the terms “crazy” and “wrong” meant “being high on drugs.” The referee concluded: “It is reasonable to conclude that the defendant would have volunteered that he was high on drugs if it were true.

It is speculation to say that trial counsel’s missing file would corroborate petitioner’s testimony.” Trial counsel Part testified that he had no specific recollection of his conversations with petitioner, but that he was sure petitioner never mentioned using drugs or PCP. The referee concluded that Part’s testimony was the more credible “because of the circumstantial evidence corroborating his version.

The Referee does not find petitioner to be credible in this area.” Regarding question (b): The referee concluded there was evidence of petitioner’s PCP use that Part failed to discover because his investigation was inadequate.

Specifically, Part should have discovered: (1) “A juvenile court probation report dated April 17, 1978 containing the petitioner’s statement that he had been arrested for auto theft and possession of angel dust”; (2) “An LAPD Form No. 510 filled out on September 15, 1980 when petitioner was arrested indicated in bold handwritten letters that the petitioner was a user of PCP and marijuana.”; (3) “A California Youth Authority ‘Referral Document’ dated July 5, 1978,” indicating petitioner had previously been found to be an abuser of PCP; (4) “ ‘PCP was very epidemic in (the area of the crime)’ and ‘The relationship to PCP was widely a part of the gang membership and activity (in 1980)’ ”; (5) “At the reference hearing various associates and family members of the petitioner testified to their observations of the petitioner’s chronic PCP usage.

This testimony may or may not have been truthful. However, one can assume that if the testimonial evidence was available in 1990, it would have been available in 1981”; (6) “Blood, urine acidification and fat sample tests were available in 1981 to detect usage of PCP.” The referee found that at the time of trial, Part was in possession of the first two documents (the “510” form, and the 1978 juvenile probation report), because they had been provided in discovery.

The third item (the Youth Authority report) could have been discovered with “minimal investigation" and the balance was discoverable with “reasonable investigation.” The referee further concluded that, “Trial counsel’s memory was very weak when asked for any details about what investigation was actually conducted. [<JD Trial counsel’s case file would normally be of assistance in documenting what investigation was conducted.

However, that file is missing and trial counsel could not give a definitive reason why it is missing or a definitive time when it disappeared.” “The Referee finds no justifiable reason for the failure to produce this file in November 1982. Trial counsel’s client, the petitioner, the subject of this voluminous file, had been sentenced to death just nine months earlier.

It should have been produced or trial counsel should have been able to give a definite and plausible reason for its disappearance." Finally, two “criminal defense lawyers with extensive death penalty litigation experience, Charles Gessler and Howard Gillingham, testified that, without any question, based on the information available, they would have investigated Avena’s drug use.” Regarding question (c): The referee noted that “petitioner’s post-conviction assertions that he used PCP on the night of the killings” were not “credible,” and that “[t]here was little credible evidence, worthy of consideration, produced at the hearing to conclude that petitioner used PCP on the night of the killings.” Nevertheless, the referee concluded that “[t]here was evidence that petitioner’s long term PCP use may have been a factor in his commission of the offenses.” For example, two experts, Drs.

Rosenthal and Aniline, testified that taking PCP could affect a person’s behavior hours, days, weeks, even months after ingestion. Doctor Aniline opined that petitioner’s long-term PCP use was the major contributor to petitioner’s behavior on the night of the crimes. The referee cautioned, however, that “[t]here was substantial evidence produced that would tend to discredit this opinion. . . . Regarding question (d): The referee found no evidence that petitioner’s alleged PCP use could be viewed as a mitigating circumstance under

section 190.3, factor (d) (extreme mental or emotional disturbance). There was, however, “some evidence” of past PCP use which might fall within

section 190.3, factor (h) (diminished ability to appreciate criminality). Finally, the referee concluded that “petitioner’s PCP use, viewed in light of his background and character, might have been considered a mitigating factor within the meaning of Penal Code

section 190.3, factor (k). Factor (

k) gives the jury broad discretion to interpret evidence as mitigation.” The referee noted that “[petitioner presented credible evidence that he was raised in a home with an alcoholic father who physically abused the petitioner and petitioner’s mother. The family was poor and petitioner was handicapped by his limited ability to speak English. In addition, the petitioner grew up in a neighborhood where gangs and drugs were prevalent. [<H] There was expert testimony regarding the potentially violent and lasting effects of long term PCP usage.

As previously indicated, there was evidence available that petitioner was such a user of PCP.” C. Petitioner’s Exceptions to the Referee’s Report 1. Did Petitioner Tell His Counsel About His PCP Use on the Night of the Murders? Petitioner’s first and major exception to the referee’s report is to challenge the referee’s conclusion that petitioner did not tell his trial counsel, Marvin Part, that he had used PCP on the night of the killings. Instead, petitioner contends there was substantial evidence that he told Part he used PCP that fateful night. We first address the applicable standard of review.

As a general matter, ‘“[t]he referee’s conclusions of law are subject to independent review, as is his resolution of mixed questions of law and fact. [Citations.] . . . The referee’s findings of fact, though not binding on the court, are given great weight when supported by substantial evidence.

The deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanor of witnesses and their manner of testifying.’ (In re Marquez (1992) 1 Cal.4th 584, 603 [3 Cal.Rptr.2d 727, 822 P.2d 435]; see also In re Jackson (1992) 3 Cal.4th 578, 585 [11 Cal.Rptr.2d 531, 835 P.2d 371]; In re Cordero (1988) 46 Cal.3d 161, 180-181 [249 Cal.Rptr. 342, 756 P.2d 1370].)” (In re Hitchings (1993) 6 Cal.4th 97, 109 [24 Cal.Rptr.2d 74, 860 P.2d 466]; see also In re Ross (1995) 10 Cal.4th 184, 201 [40 Cal.Rptr.2d 544, 892 P.2d 1287] [emphasizing referees can observe demeanor of witnesses]; People v.

Mayfield (1993) 5 Cal.4th 142, 199 [19 Cal.Rptr.2d 836, 852 P.2d 331] [same].) We emphasize that, because petitioner seeks to overturn a final judgment in a collateral attack, he bears the burden of proof. (Duvall, supra, 9 Cal.4th at p. 474.) “ ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’ ” (Ibid., quoting People v.

Gonzalez (1990) 51 Cal.3d 1179, 1260 [275 Cal.Rptr. 729, 800 P.2d 1159], italics in original.) An unusual situation is presented in this case, because the referee who prepared the report did not actually observe the witnesses testify. Instead, it appears the referee simply reviewed the transcript of the hearing. In addition, the parties stipulated that the referee could rely on a defense

summary of the criminal trial in lieu of reading the transcript of the entire trial. Accordingly, it is arguable the deference we would ordinarily give to the referee’s rulings as to questions of fact is inappropriate in this case. Even if we view the evidence de novo, however, we agree with the referee that the evidence supports the finding that petitioner never told counsel Part that he had ingested PCP on the night of the killings. The only evidence to the contrary was petitioner’s own testimony at the evidentiary hearing. His testimony, however, was not particularly credible.

To begin with, petitioner had a strong incentive to assert he was intoxicated on PCP so as to lay the groundwork for a claim that Part provided ineffective assistance by failing to present a defense based on diminished capacity. Examining petitioner’s testimony, we agree with the referee that “petitioner claimed to have a virtually verbatim recollection of the portions of his conversation with trial counsel which related to drugs.

However, as to other parts of the conversation, he had very limited recollection.” Specifically, petitioner claimed to remember with clarity portions of a 20-minute conversation he had with counsel Part dining their first meeting, some 11 years earlier. Suspiciously, the only things petitioner remembered about the conversation were:

(1) Part said petitioner’s taped admissions would make the defense difficult, (2) petitioner told Part that on the night of the crimes, he had smoked some PCP-laced cigarettes and some marijuana, and had drunk some beer,

(3) Part said that petitioner’s drug use would not make a difference so “don’t worry about it," and (4) petitioner wanted to see a psychiatrist. When the prosecutor noted that these few topics would not have exhausted the 20 minutes, petitioner repeatedly replied he could not remember the balance of the conversation.

Petitioner explained that he remembered he told counsel about his PCP use the night of the killings because he thought it was “important.” By the time of the hearing, however, he failed to remember the contents of his 1986 declaration, which stated that in this initial interview, he told Part that he had “been beaten up by the cops after [hisj arrest” and that he “had not been advised of [his] rights.” After the prosecutor refreshed petitioner’s recollection, the following colloquy occurred: “Q: [By the prosecutor] So you said you remembered about the PCP because it was important. [f] Why didn’t you tell us about being beaten up by the cops?

That is not important? “A: [Petitioner] I can’t remember everything exactly what I told to Mr. Part during that time, but I think it was important, yes. “Q: And you also failed to tell us about the fact that, T had not been advised of my rights.’ [<j|] Why didn’t you remember to tell us about that? “A: Well, now that you have got it out, I remember. “Q: Now you remember, but you didn’t remember before? “A: No. “Q: Why not? “A: I just didn’t remember.” Standing in contravention to petitioner’s inconsistent testimony is the testimony of trial counsel Marvin Part.

When asked whether petitioner told him he smoked PCP, counsel replied “[n]ot to my recollection.” Part also said petitioner “never” told him he was a regular user of PCP.

Part was then asked some direct questions: “Q: [By the prosecutor] Did he tell you that he was a regular user of PCP? “A: [By Counsel Part] He never told me that. “Q: Did he tell you that he smoked PCP on the night that the murders were committed? “A: No he did not.” Considering the testimony of both petitioner and counsel Part, we find that with an ample incentive to lie, petitioner exhibited a selective memory of the contents of the critical interview, whereas Part forthrightly stated petitioner never told him he was intoxicated on PCP the night of the killings.

Based on this evidence, we agree with the referee that petitioner was not a credible witness and conclude petitioner has failed to carry his burden. Petitioner makes a number of arguments to the contrary, but none is availing. First, he contends that because, shortly after his arrest, he admitted to Part and the police that he had drunk some beer on the night in question, it was unlikely he would have failed to reveal he had smoked some PCP-laced cigarettes. An equally plausible explanation why he failed to admit to PCP use, however, is that he had not smoked any that night.

Second, contrary to petitioner’s suggestion, the fact that he was a known chronic abuser of PCP does not necessarily lead to a conclusion that he “must have” ingested some PCP on the night in question. While it is true his long-term use makes it more likely that petitioner may have used PCP that night (as compared, say, to one who had never used the drug), the mere fact of his frequent past use of PCP falls short of proving that he took some on the night in question.

Third, petitioner asserts that Part, as an experienced criminal trial attorney, would have recognized the relevance of any possible drug use, and “it is therefore reasonable to conclude that Part did ask Avena if he used drugs.” This supposition conflicts, however, with Part’s actual testimony: “Q: Mr.

Part, as you took a look at this case and analyzed the facts as an experienced trial lawyer, did the facts suggest to you that the defendant was smoking PCP? “A: No. “Q: Did the facts suggest to you that the defendant was stoned on a drug to a point where he was not responsible for his actions? “A: No, quite to the contrary.” Part was familiar with the facts of the case and did not anticipate that drug use was an important factor in the crime.

This was a reasonable conclusion inasmuch as petitioner’s decisions (1) to return home to reload his weapon, (2) to later set fire to the pink Camaro to obscure his fingerprints, and (3) to steal another car by stationing himself at the bottom of a freeway off-ramp where he knew cars would come to a stop, are not actions of one whose ability to “ ‘maturely and meaningfully reflect upon the gravity of his contemplated act[s]’ ” (People v. Cruz (1980) 26 Cal.3d 233, 242 [162 Cal.Rptr. 1, 605 P.2d 830], italics omitted) has been substantially diminished by PCP intoxication.

The basis for petitioner’s inference that it is reasonable to assume Part would have asked petitioner about possible drug use is thus unsupported by the record. Petitioner also contends that it was his “habit and custom” to respond truthfully when asked by “authority figures” about his drug use in connection with previous arrests or detentions. Petitioner thus claims his “habit and custom” constitute admissible evidence, under Evidence Code

section 1105, that, on the night of the killings, he told Part of his PCP use. Aside from the rather dubious invocation of Evidence Code

section 1105, petitioner’s “habit and custom” argument is premised on his assumption that Part asked him whether he used drugs. There is no persuasive evidence that Part made such an inquiry. Part’s trial file disappeared sometime between the end of trial and the beginning of petitioner’s subsequent unrelated trial for killing an inmate. Appellate counsel Kraft claims she asked Part several times for the trial file timing this period, but that her requests were ignored. Part testified he could not remember what happened to the file.

The referee found that “trial counsel could not give a definitive reason why [the file] is missing or a definitive time when it disappeared.” “The Referee finds no justifiable reason for the failure to produce this file .... It should have been produced or trial counsel should have been able to give a definite and plausible reason for its disappearance.” In light of the missing file, petitioner contends we should assume

Part intentionally suppressed the file to hide evidence of his ineffective assistance. He asserts Evidence Code

section 413 permits the drawing of inferences adverse to Part due to the missing file. That provision is inapposite for two reasons. First, there was no finding that Part “willfully suppress[ed]” the file. (See People v. Ledesma (1987) 43 Cal.3d 171, 211-213 [233 Cal.Rptr. 404, 729 P.2d 839] [counsel intentionally destroyed file].) Second,

Part is not a “party” to this action. Even assuming for argument that petitioner is correct that

Part intentionally suppressed the trial file, it would be improper to draw an inference due to Part’s alleged misconduct that will ultimately work to the People’s detriment. (See generally, In re Ross, supra, 10 Cal.4th at p. 214 [rejecting a claim that trial counsel’s unexplained loss of the trial files requires the burden of proof be shifted to the People to prove counsel was not ineffective].) Evidence Code

section 413 aside, however, the referee was entitled to consider the possibly suspicious circumstances surrounding the file’s disappearance in determining the facts of this case. After doing so, he concluded: “It is speculation to say that trial counsel’s missing file would corroborate petitioner’s testimony.” We agree. There is no evidence that Part even took notes during the interview in question, that he retained them if he did, or that he placed them in the now-missing file. Although it is somewhat troubling that

Part could not account for his trial file, we conclude petitioner has not shown the file would have had a demonstrable impact on the question of whether petitioner told Part he was intoxicated on PCP on the night of the murders. 2. Was There Other Evidence of Petitioner’s PCP Use That Was Not Discovered by Trial Counsel?

Despite petitioner having failed to carry his burden of establishing that he told Part he was under the influence of PCP on the night of the killings, the referee ruled that there was other evidence—reasonably available but not obtained by Part—that showed as a general matter that petitioner was a chronic user of PCP. Further, the referee found Part’s investigation was “inadequate,” and that with “minimal investigation," Part would have discovered the following: (

a) a 1978 juvenile probation report stating petitioner had been arrested for “auto theft and possession of angel dust”; (

b) a Los Angeles Police Department form 510 that indicated that when petitioner was arrested, the arresting officer believed petitioner was a PCP user; (

c) a 1978 California Youth Authority “referral document” indicating petitioner used PCP; (

d) evidence that petitioner was a gang member, and that PCP use was “widely a part of gang membership and activity [in 1980]’’; and (

e) the testimony of some friends and his mother, who would have testified to petitioner’s frequent use of PCP during the weeks preceding the murders. In addition, the referee concluded that scientific tests to detect PCP usage were available at the time of petitioner’s 1981 trial. Petitioner does not, with one exception noted below, challenge these findings by the referee. He does argue, however, that the referee erred by failing to make findings regarding two additional items of evidence he claims Part should have discovered.

First, petitioner contends the referee should have found that Part was ineffective for failing to discover the 1982 probation report that was prepared in the instant case. Petitioner claims the report contains several references to his prior PCP use. We agree with respondent, however, that

Part cannot be held responsible for failing to discover (and use at trial) a document that was not prepared prior to the trial. We also reject petitioner’s second contention that the referee should have found that Part was ineffective for failing to discover the transcript of petitioner’s September 15, 1980, interrogation by police.

He contends “[a] careful review of the tape and the transcript demonstrates that [his] lack of memory and confusion for the events of September 12, 1980, are consistent with the symptoms of someone who was under the influence of PCP.” It is doubtful Part was unaware of the transcript of this crucial interview, inasmuch as petitioner made several incriminating statements to police in that interview. Even assuming Part was unaware of the transcript, however, we disagree with petitioner that the referee should have cited the transcript of this interview as evidence demonstrating petitioner’s drug use.

After reviewing the transcript, we do not find that petitioner’s responses to interrogation questions were “consistent” with his being on PCP. Our review reveals petitioner was fairly lucid and that he gave responsive answers to questions. Admittedly he was hesitant at times, but this was understandable given the seriousness of the charges against him. His inability (or perhaps, unwillingness) to recall some details of the night in question is not surprising; it may simply have been a manifestation of his desire for self-preservation.

Moreover, we note that the police did not ask petitioner whether he was intoxicated on PCP on either the night of the crimes or at the time of the interrogation. In sum, we reject petitioner’s argument that the transcript of this interview comprised evidence of petitioner’s drug use. As stated above, in regards to petitioner’s friends and his mother who testified at the evidentiary hearing regarding petitioner’s PCP use in general, the referee found that “[t]his testimony may or may not have been truthful.

However, one can assume that if the testimonial evidence was available in 1990, it would have been available in 1981.” Petitioner excepts to the referee’s conclusion that the witnesses “may or may not have been truthful.” It is possible that, without having heard the witnesses testify in person, Judge Ouderkirk felt unable to determine their veracity and thus used the noncommittal “may or may not” phraseology. We note that on the one hand, friends and family would have an incentive to testify favorably to petitioner.

Their recounting of petitioner’s chronic PCP use, however, is consistent with both the probation report prepared in this case, and with the California Youth Authority’s “referral document” for his 1978 assault. This consistency with unrelated law enforcement documents lends credence to their testimony. On the other hand, Part expressly testified that petitioner never told him he was a PCP user, and further testified that petitioner never supplied him with the names of the friendly witnesses who ultimately testified at the evidentiary hearing.

This testimony suggests a finding that the later testimony of the friends and family members may not have been truthful. Like Judge Ouderkirk, we also did not hear the testimony presented at the evidentiary hearing, and thus are as handicapped as our referee in determining the veracity of the witnesses from the cold record.

We need not, however, make a definitive decision on that issue, because even assuming for argument that we were to sustain petitioner’s exception in this regard and conclude the witnesses all testified truthfully, their testimony that petitioner often used PCP adds little to what we already know. First, assuming the witnesses testified truthfully, we may conclude there was sufficient evidence available pretrial showing petitioner was a chronic abuser of PCP. This information could, in turn, have led Part to further investigate whether petitioner was under the influence of PCP on the night in question.

There was, however, already ample evidence available showing petitioner was a frequent user of PCP, including the police report and prior Youth Authority documents. Thus, the testimony of petitioner’s friends and his mother was cumulative to that evidence. Moreover, the referee concluded, based on substantial evidence, that “[t]here was little credible evidence, worthy of consideration, produced at the hearing to conclude that petitioner used PCP on the night of the killings.” Thus, we may assume that had

Part investigated the point prior to trial, he would not have uncovered any additional information in that regard. Second, if we assume the witnesses testified truthfully, we might conclude that petitioner’s chronic PCP use may have had an effect on his mental faculties—short of a legally recognizable diminished capacity—and thereby helped induce the crime.

The referee already concluded, however, that “[t]here was evidence that petitioner’s long term PCP use may have been a factor in his commission of the offenses.” Crediting the testimony of these witnesses, then, would not have affected the referee’s conclusion. Finally, if we assume these witnesses testified truthfully about petitioner’s long-term PCP use, such drug abuse could have comprised mitigating evidence at the penalty phase. The referee already concluded, however, that other evidence of petitioner’s drug use might have been considered by the jury as mitigating evidence under

section 190.3, factor (k). In sum, we need not decide whether the witnesses testified truthfully at the hearing regarding petitioner’s alleged PCP use, because even assuming for argument that we were to sustain petitioner’s exception in this regard and conclude the witnesses testified truthfully, their testimony that petitioner frequently used PCP would add little to the referee’s findings. 3. Was Petitioner’s PCP Use a Factor in the Commission of the Crimes?

Aside from the question whether petitioner told Part that he was under the influence of PCP on the night of the crimes, we asked our referee whether there was any other evidence that PCP use was a “factor” in the commission of the crimes.

The referee concluded that (1) petitioner’s assertions that he was under the influence of PCP that night were not credible; (2) there was “little credible evidence, worthy of consideration . . . that petitioner used PCP on the night of the killings; and (3) there was, however, “evidence that petitioner’s long term PCP use may have been a factor in his commission of the offenses.” Petitioner first takes exception to the referee’s conclusion that there was no credible evidence that he was under the influence of PCP on the night of the crimes.

The only evidence of this alleged fact was generated from petitioner himself, first in his statements to the probation officer which appear in the probation and sentencing report, then in his testimony at the evidentiary hearing, and finally in Dr. Rosenthal’s testimony. As stated earlier, petitioner had a motive to claim he was under the influence of PCP at the time of the crimes, so we must view his testimony with this in mind. Victor Padua, petitioner’s accomplice on September 12, 1980, testified that he had often smoked PCP-laced cigarettes with petitioner.

In addition, Padua testified that when he picked up petitioner that night, he “seemed to be” under the influence of PCP, although Padua admitted he could not recall whether he smoked any PCP with petitioner that night. We note that Padua, more than 10 years after the crimes, may also have a motive to testify so as to assist his friend avoid the death penalty. We thus must consider this fact when evaluating his testimony.

A defense investigator, Edward Sanchez, testified that Arturo Padua, the other possible percipient witness that night, and Ivania Cantarero, petitioner’s then girlfriend, told him that petitioner had smoked PCP the night of the crimes. Neither person testified at the hearing below, however, or ever told this information to police. Finally, Dr. Rosenthal testified that petitioner used PCP the night of the crimes.

Rosenthal admitted, however, that he received this information from petitioner himself, from Arturo Padua, and from petitioner’s relatives, and that he simply accepted their statements as true for purposes of his diagnosis. On this showing, we agree with the referee that there was little credible evidence showing petitioner was under the influence of PCP the night of the crimes. Bearing in mind that petitioner bore the burden of proof (Duvall, supra, 9 Cal.4th at p. 474), we find that this evidentiary showing was insufficient to support a finding that petitioner was intoxicated on PCP the night of the crimes.

We therefore overrule petitioner’s exception on this point. Petitioner does not take exception to the referee’s finding that petitioner’s overall PCP use may have been a factor in the crimes. In support of this finding, the referee cited the hearing testimony of Drs. Rosenthal and Aniline. The gist of their testimony was that ingesting PCP may affect one’s behavior “hours, days, weeks, even months after ingestion.” The referee also noted, however, that there was “substantial evidence produced that would tend to discredit” the opinions of the two doctors.

Petitioner strongly excepts to this latter finding, noting respondent failed to present any medical evidence of its own. As with the determination of the veracity of petitioner’s friends and mother, however, Judge Ouderkirk did not resolve the dispute, but merely concluded that there was evidence that “would tend to discredit” the testimony of Drs. Rosenthal and Aniline. That conclusion is supported by evidence in the record. For example, Dr. Rosenthal himself testified that the effect of PCP was quite “varied” and can cause all manner of behavioral changes.

Although at one point he opined that he had “little doubt” that petitioner acted under the influence of PCP, he later admitted he could not “be absolutely sure that PCP . . . was a factor in this crime.” Further contrary evidence came in the form of testimony from petitioner’s friends and his mother. For example, Maria Rodriguez testified she had frequently observed petitioner use PCP, and had used PCP with petitioner over 300 times.

She testified that when he used PCP, he acted like a zombie, would stare and mumble, behavior completely at odds with petitioner’s violent, rampaging actions that comprised the crimes in this case. Myma Gonzalez, petitioner’s girlfriend between 1977 and 1980, testified she had seen petitioner high on PCP, and confirmed that he became quiet and had difficulty speaking and walking. She never saw him act violently while under the influence of PCP, although once he pushed her. These observations of petitioner while under the influence of PCP were largely confirmed by petitioner’s mother.

Although the People did not present any expert medical evidence, they presented the testimony of Officer Warren Pickens, one of the senior officers in charge of the investigation of petitioner’s crimes. Pickens testified that he had been involved in over 500 homicide investigations, and had participated in the arrest and investigation of persons who had taken PCP. He stated that when he questioned Victor Padua and petitioner, they both denied using PCP.

He testified that he saw nothing in the facts of the crimes that suggested the use of PCP, and explained that when he questioned petitioner two days after the crimes, he would have expected petitioner to exhibit loss of memory, lethargy, difficulty speaking, an unresponsive affect, and a blank stare. Officer Pickens observed none of these symptoms in petitioner. Considering this evidence, we find substantial evidence to support the referee’s finding that there was evidence “produced that would tend to discredit” the expert opinions that petitioner’s long-term PCP use was a factor in his crimes.

The mere fact that PCP has a variable effect on users, and that observations of petitioner’s past usage revealed he became quiet, passive, and had difficulty walking while under the drug’s influence, supports the referee’s finding.

Moreover, Pickens testified that petitioner did not exhibit any symptoms of having been under the influence of PCP and expressly denied having smoked any “sherms.” Although the evidence was not overwhelmingly in support of this conclusion (e.g., Maria Rodriguez also testified that petitioner sometimes acted differently when under the influence of PCP, and was unable to sit still), there was nevertheless substantial evidence to support the referee’s finding. We thus reject petitioner’s exception to this portion of the referee’s findings. D.

Respondents Exceptions to the Referee’s Report As noted above, our second question asked the referee to determine whether “there [was] other evidence of petitioner’s use of PCP that counsel failed to discover because his investigation was inadequate, and if so, what was that evidence?” (Italics added.) The referee responded in the affirmative, explaining that counsel’s “investigation was inadequate.” (Italics added.) Respondent questions the meaning of the word “inadequate,” both in our question and in the referee’s response.

If the use of the word “inadequate” suggests the referee was to make, or made, a legal decision on the reasonableness of Part’s representation, respondent takes exception to the referee’s finding. To the extent respondent is merely claiming that this court has the ultimate responsibility to say whether Part’s performance was inadequate as a matter of law, we agree. That is not to say, however, that it is inappropriate for the referee to have expressed an opinion as to whether Part’s investigation was inadequate.

Such conclusions of law by the referee, however, are subject to independent review by this court and are not given the ordinary deference we show to factual findings by a referee. (In re Ross, supra, 10 Cal.4th at p. 201.) Respondent also “respectfully questions” the referee’s restatement of the testimony of Attorneys Gessler and Gillingham, defense attorneys who testified as experts for petitioner and opined that competent counsel would have investigated petitioner’s potential drug use. Gessler also stated he would have interviewed family members.

Respondent argues that “What some hypothetical competent counsel would have done in hindsight... is of marginal relevance and intrudes upon the legitimate function of this [court].” It is unclear whether respondent is objecting to this part of the referee’s findings.

We note that reliance on attorney experts is commonplace (see In re Neely (1993) 6 Cal.4th 901, 914 [26 Cal.Rptr.2d 203, 864 P.2d 474] [defense attorney testified as an expert in evaluating trial counsel’s failure to investigate the case]; In re Fields (1990) 51 Cal.3d 1063, 1077 [275 Cal.Rptr. 384, 800 P.2d 862] [same]; In re Jackson (1992) 3 Cal.4th 578, 662-663 [11 Cal.Rptr.2d 531, 835 P.2d 371] [defense attorneys testified as experts in evaluating tactics of defendant’s trial attorney]; see also People v.

Mayfield, supra, 5 Cal.4th 142, 208, fn. 16 [prosecution attorney testified as an expert that San Bernardino County venirepersons would be unlikely to look on illicit drug use as a factor in mitigation]), and we may consider such evidence, although we are not bound by it. (In re Ross, supra, 10 Cal.4th at pp. 214-215.) In any event, respondent did not object to the testimony of either Gessler or Gillingham on grounds of relevance and thus waived this objection. E. The Merits of Petitioner’s Claims Petitioner claims his trial counsel, Part, was constitutionally ineffective in a variety of ways.

We have previously explained that, “[i]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ (Stricklands Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052]; Ledesma, supra, 43 Cal.3d at pp. 215-216.) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692 [80 L.Ed.2d at pp. 695-696]; Ledesma, supra, at pp. 217-218.) Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland, supra, at p. 694 [80 L.Ed.2d at pp. 697-698].)” (People v. Jennings (1991) 53 Cal.3d 334, 357 [279 Cal.Rptr. 780, 807 P.2d 1009].) In a recent case, the United States Supreme Court addressed the unusual situation of trial counsel failing to make a valid objection at trial, where the precedent for the objection was later overruled. (Lockhart v..

Fretwell (1993) 506 U.S. 364 [122 L.Ed.2d 180,113 S.Ct. 838]; (hereafter Fretwell).) In that case, the high court, when applying the second prong of the Strickland test, noted that the test for “prejudice” is not solely one of outcome determination.

Instead, the pertinent inquiry is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” (Id. at p. 372 [122 L.Ed.2d at p. 191].) “Thus, an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” (Id. at p. 369 [122 L.Ed.2d at p. 189], fn. omitted.) “In evaluating defendant’s showing [a court accords] great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel “to defend himself or herself against a claim of ineffective assistance after trial rather than to defend his or her client against criminal charges at trial. . . .’” ” (In re Fields, supra, 51 Cal.3d 1063, 1069-1070, quoting In re Cordero (1988) 46 Cal.3d 161, 180 [249 Cal.Rptr. 342, 756 P.2d 1370] and People v.

Ledesma, supra, 43 Cal.3d at p. 216.) “ ‘However, “deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.” ’ ” (51 Cal.3d at p. 1070; see also People v.

Karis (1988) 46 Cal.3d 612, 621 [250 Cal.Rptr. 659, 758 P.2d 1189].) Finally, we note that a criminal defendant can “reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.” (People v. Ledesma, supra, 43 Cal.3d at p. 215.) We now address the merits of petitioner’s claims, keeping in mind that we found disputed issues of material fact as to only one question: petitioner’s alleged PCP usage. In so doing, we take judicial notice of the trial record in petitioner’s direct appeal, People v.

Avena (S004422, app. pending). (Evid. Code, § 452, subd. (d)(1).) 1. Alleged Failure to Investigate and Present a Diminished Capacity Defense Petitioner’s primary claim is that Part should have investigated and presented a defense of diminished capacity based on petitioner’s alleged PCP intoxication during the crimes. Although the defense of diminished capacity is now abolished (People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588]; §§25, 28; see generally, 1 Witkin & Epstein, Cal.

Criminal Law (2d ed. 1988) Defenses, §§ 208-211, pp. 238-243), it was extant when petitioner committed his crimes. “Diminished capacity [was] a defense to all specific intent crimes.” (People v. Cruz, supra, 26 Cal.3d 233, 242.) It provided that “A person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect, or intoxication, and in such case his killing, unless justified or excused, is voluntary manslaughter.” (People v.

Conley (1966) 64 Cal.2d 310, 318 [49 Cal.Rptr. 815, 411 P.2d 911] , italics added.) “ ‘The true test is not the duration of the time as much as it is the extent of the reflection.' . . . [T]he true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.” (People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], italics in original; see generally, People v. Saille, supra, 54 Cal.3d at pp. 1109-1111.) It is undisputed that Part failed to investigate this defense.

As the referee found, however, petitioner never told Part that he was “high” on PCP the night of the crimes, and we have reached the same conclusion based on our independent review. Petitioner’s argument is thus reduced to a claim that, based on other available evidence, Part should have investigated a diminished capacity defense arising from petitioner’s alleged PCP use.

It is here that petitioner stands on firmer ground, for the referee found there was evidence of petitioner’s habitual PCP usage available to Part (the juvenile probation report, the Los Angeles Police Department arrest form, and the Youth Authority referral document), that should have spurred him to conduct an investigation. Had Part done so, he would have discovered the evidence now contained in the declarations accompanying petitioner’s application for a writ of habeas corpus.

Specifically, those declarations show: (1) petitioner smoked PCP-laced cigarettes (“sherms”) with Arturo Padua “on a regular basis for at least six months to a year before September 12, 1980 [the day of the crimes]. [They] smoked them 3 to 4 times a month, usually on the weekends.” This is consistent with the declaration of Arturo Padua.

(2) Petitioner’s girlfriend, Ivania Cantarero, stated petitioner “used PCP and marijuana on an average of once a week.”

(3) Both petitioner’s mother (Marianna Avena) and his sister (Elizabeth Avena) state generally that petitioner “was using drugs, including PCP.” Ultimately, however, Part’s unjustified failure to investigate petitioner’s alleged PCP use was not prejudicial and therefore does not warrant relief. This is so because the evidence Part failed to uncover, taken together, is insufficient to establish a defense of diminished capacity. The primary failing of this evidence is that it fails to establish that petitioner was under the influence of PCP on the night the crimes occurred.

Instead, this evidence merely demonstrates that petitioner habitually ingested PCP. People v. Pensinger (1991) 52 Cal.3d 1210 [278 Cal.Rptr. 640, 805 P.2d 899] is instructive. In that case, there was evidence the defendant drank several beers and some shots of hard liquor, all between three or four in the afternoon and 8:30 that night. One witness testified that the defendant had been drinking and shooting Quaalude, although there was no expert evidence on the effect of the Quaalude. Although the defendant testified, he did not claim he was intoxicated.

Other witnesses reported that the defendant did not seem intoxicated. (Id. at pp. 1241-1242.) We held that “[t]his evidence does not amount to substantial evidence that defendant lacked the capacity to form the requisite mental states . . . .” (Id. at p. 1241.) More to the point, we explained that “[n]ormally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction on diminished capacity. [Citations.]” (Ibid., italics added.) The evidence in Pensinger at least showed the defendant in that case consumed some amount of drugs and alcohol on the day of his crimes.

In petitioner’s case, we have no credible evidence that he smoked PCP on the day in question. In addition, even if we assume he did use drugs on the day in question, there is no evidence showing how much he ingested or the degree of intoxicating effect, if any, it had on him. Instead, we have only evidence that petitioner often smoked PCP in the weeks and months preceding the crimes, and expert evidence that such use can cause an adverse reaction. By his own testimony, however, Dr. Aniline admitted each person’s reaction to PCP is different. Dr. Rosenthal essentially corroborated this opinion.

This is manifestly insufficient to support a diminished capacity defense at trial. Petitioner relies on expert testimony that suggests that PCP is stored in the body’s tissues and that this residue can produce violent behavior up to several months later. Dr. Aniline testified at the evidentiary hearing that in light of petitioner’s chronic abuse of PCP, “the usage that night is of . . . minor importance. It adds or if it turned out to be true, it would add and contribute to the opinion that PCP played a role. You would have both the current as well as past history.

The history [of past PCP abuse] was, in my opinion, ... the major contributing factor here.” Dr. Aniline agreed that PCP use had affected persons “days and even weeks after they took the drug.” As a result of petitioner’s long-term PCP use and alleged use on the night of the crime, Dr. Aniline first concluded petitioner’s ability to form an intent to kill “might have been impaired." (Italics added.) He then stated more definitely that petitioner’s capacity to “appreciate the criminality of his conduct” was “impaired." We are perplexed by Dr. Aniline’s testimony and find his opinions somewhat self-contradictory.

Although the gist of his expert opinion was that petitioner could not meaningfully and maturely reflect on his crimes, he stated other opinions that were seemingly at odds with this primary thesis. For example, on cross-examination, he admitted he had not read petitioner’s confession in this case, which included petitioner’s clear memory of the events. In addition, Dr. Aniline noted that a person’s response to PCP intoxication is highly individual, and that a person so intoxicated could still drive a car and hold down a job that entailed known tasks.

Such behavior under the influence of PCP seems inconsistent with the impaired mental state required for a successful diminished capacity defense. In sum, we find Dr. Aniline’s opinions in this regard self-contradictory and entitled to little weight. Dr. Rosenthal’s expert testimony was essentially the same as Dr. Aniline’s testimony. Dr. Rosenthal explained that the symptoms of PCP intoxication vary with the individual, but that such persons are often “very much out of touch with reality. They are out of control, agitated, compulsive. They may be hallucinating.

They may have delusional thoughts.” If petitioner was so intoxicated, “he would be unable to form intent or think rationally. His thinking would be disorganized, impulsive. He would be reacting from moment to moment.” He stated that from “everything” that he had reviewed, “there was little doubt that [petitioner] was under the influence of PCP [on the night of the murders].” He also testified that the effects of habitual PCP abuse can be felt for weeks and months. Taken together, we cannot say the evidence amassed by petitioner, even considering the testimony Drs.

Aniline and Rosenthal, is sufficient to support a viable diminished capacity defense. The glaring omission is any credible evidence that he actually took some PCP on the night of the crimes. Moreover, there is no evidence showing how the drug affected him that night.

Standing in the place of such evidence is petitioner’s expert opinion evidence that residue amounts of PCP stored in petitioner’s body tissues through weeks of chronic drug abuse, perhaps combined with more recent ingestion of the drug, may have caused him to behave in a violent manner, and that this combination may have so affected his mental faculties such that he could not maturely and meaningfully reflect on his criminal actions. Such a conclusion is contradicted by petitioner’s seemingly goal-directed behavior that night, which exhibited a much higher degree of mental functioning than Dr. Aniline and Dr.

Rosenthal would have us believe. For example, petitioner participated in the pursuit of the brown Ford Galaxy, shooting at it in retaliation for the thrown beer bottle. When the Mazda in which petitioner was riding became inoperable, he formed a plan to secure alternative transportation by stealing the pink Camaro driven by the murder victims. As one of the victims fled, petitioner asked one of the Paduas to step aside and out of the line of fire. He then returned home in order to reload his rifle.

Later, he decided to abandon the Camaro because it bore incriminating evidence; the plan included setting the car ablaze to conceal fingerprints. Finally, seeking yet another car, petitioner stationed himself at the bottom of the freeway off-ramp, realizing that a car would eventually exit the freeway and come to a stop where its occupants would be most vulnerable to a forcible theft of their vehicle.

Thus, petitioner’s actual conduct that night, when compared to the weak and tenuous evidence that PCP intoxication may have prevented the mature and meaningful reflection on the gravity of his crimes, convinces us there was no viable diminished capacity defense available to petitioner and thus no prejudice from Part’s failure to explore one.

Although we do not condone or excuse Part’s inexplicable failure to investigate the availability of a diminished capacity defense, especially given evidence of petitioner’s past drug use as revealed in documents available to Part, we conclude petitioner has not demonstrated Part’s inaction prejudiced him under either of the tests laid down in Strickland and Fretwell.

Stated another way, there is no reasonable probability that, but for counsel’s unprofessional error in failing to locate and present to the jury expert and lay evidence regarding petitioner’s alleged PCP intoxication, petitioner would have enjoyed a more favorable outcome of the trial (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at pp. 697-698]), and counsel’s allegedly deficient performance in failing to present this evidence did not render the result of the trial unreliable or fundamentally unfair. (Fretwell, supra, 506 U.S. at p. 372 [122 L.Ed.2d at p. 191].) 2. United States v.

Cronic Petitioner, pointing to the minimal nature of Part’s representation, contends he is entitled to reversal without having to show prejudice. In support, he cites United States v. Cronic (1984) 466 U.S. 648 [80 L.Ed.2d 657, 104 S.Ct. 2039] (hereafter Cronic).

In other words, he asserts that the minimal assistance Part provided must be presumed to have been ineffective. “We recognize that in some cases ineffective assistance must be presumed ‘without inquiry into the actual conduct of the trial’ because ‘the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small’ that the cost of litigating the issue is unjustified.” (People v.

Bonin (1989) 47 Cal.3d 808, 844 [254 Cal.Rptr. 298, 765 P.2d 460], quoting Cronic, supra at pp. 659-660 [80 L.Ed.2d at p. 668].) As in Bonin, we conclude this case does not come within Cronic’s exception to the rule requiring a showing of prejudice laid down in Strickland v. Washington, supra, 466 U.S. 668. In Cronic, the high court explained that: “The right to the effective assistance of counsel is . . . the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.

When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” (Cronic, supra, 466 U.S. 656-657 [80 L.Ed.2d at p. 666], fns. omitted.) Thus, “[t]here are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. [<]|] Most obvious, of course, is the complete denial of counsel. . . .

Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Id. at pp. 658-659 [80 L.Ed.2d at pp. 667-668], italics added, fns. omitted.) It is this latter language on which petitioner relies. To limit this otherwise broad language, however, the high court made some revealing comments in footnotes.

First, it gave some examples: “The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Cronic, supra, 466 U.S. at p. 659, fn. 25 [80 L.Ed.2d at p. 668].) After briefly describing Davis v.

Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347, 94 S.Ct. 1105], in which counsel was prevented from cross-examining a crucial prosecution witness, the Cronic court opined: “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” (Cronic, supra, 466 U.S. at p. 659, fn. 26 [80 L.Ed.2d at p. 668], italics added.) An examination of the trial reveals that Part’s trial representation was minimal at best.

He waived opening argument at the guilt phase, called no defense witnesses, and did not address either the two murders or the two special circumstance allegations in a brief closing argument. Instead, he limited himself to commenting on the state of the evidence for the assault with intent to murder charges: He was, however, neither “totally absent” nor “prevented” from assisting petitioner at trial. Nor can we say that outside influences prevented Part from providing more vigorous legal assistance.

The high court recognized that such outside influences can sometimes render it impossible for any lawyer to provide constitutionally adequate assistance. (Cronic, supra, 466 U.S. at pp. 659-660 [80 L.Ed.2d at pp. 668-669].) Petitioner’s argument, however, is not that there were such outside influences, but that Part himself failed to work hard enough. This case thus falls outside the small exception carved out by Cronic. As that case itself recognized, “the Sixth Amendment does not require that counsel do what is impossible or unethical.

If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” (Id. at pp. 656-657, fn. 19 [80 L.Ed.2d at p. 666].) Although we are disturbed by how little Part appears to have done at trial, it is undisputed that he was faced with a defendant with no apparent defense who had confessed to two first degree murders as well as a series of other serious crimes. In sum, we find petitioner has not proven that he was prejudiced by Part’s alleged failings.

Accordingly, Part did not provide constitutionally ineffective legal assistance by failing to investigate and present a defense of diminished capacity at trial. 3. Failure to Challenge the Admissibility of Petitioner’s Confession on Miranda Grounds Petitioner next contends that Part was ineffective for failing to investigate the voluntariness of his confession and make a pretrial motion to suppress the taped confession based on the interrogating police officers’ alleged failure to read petitioner his Miranda rights. (Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] (hereafter Miranda).) By incorporating his declaration into his petition for a writ of habeas corpus, petitioner alleges that he told Part during their very first interview that he had not been “Mirandized’ before officers interrogated him; this interrogation led to the taped confession that was admitted against him at trial. Another declaration states that Part told appellate counsel that he knew police had a taped confession but he “did not seek to have it transcribed or analyzed to see what was said on it.

He did not listen to it with petitioner; nor did he ever let petitioner listen to it.” Both these declarations alleged that petitioner never heard the tape of the confession before it was played during the Evidence Code

section 402 hearing in the middle of trial. The record suggests Part first learned of the Miranda claim in the middle of trial. No Miranda warnings were apparent on the taped confession, although police testified and explained that petitioner did not want any part of the interrogation written down so they started the tape surreptitiously after they had read him his Miranda rights. Without deciding whether Part was constitutionally remiss for failing to investigate this issue, we conclude that, assuming for argument that Part’s investigation was inadequate, there was no prejudice. Although Part did not make a pretrial motion to suppress, the matter was litigated in the Evidence Code

section 402 hearing prior to the confession being admitted at trial and played for the jury. At the hearing, petitioner testified and affirmed that he was never read his rights. Both Officers Pickens and Fesperman testified at the hearing and stated they informed petitioner of his Miranda rights and that he waived them. There was one portion of the taped confession in which

Part claimed petitioner stated, “I want to talk to a lawyer,” but the tape was not clear as to the words “to a lawyer.” The trial judge listened to the tape several times and ruled petitioner merely said “I want to talk” and did not mention the word “lawyer.” Thus, although Part did not make a pretrial motion, the in limine motion to suppress gave petitioner the opportunity to litigate the admissibility of the confession.

After hearing this testimony and the arguments of the parties, the trial court noted that this was a question of credibility and ruled that the confession “was freely and voluntarily given and that the defendant was advised of his rights.” The court thus implicitly credited the officers’ testimony and disbelieved petitioner’s testimony. As petitioner does not now adduce any additional evidence on the subject, we conclude that even had

Part investigated the issue and moved before trial to suppress the confession, the result would have been the same. Petitioner was thus not prejudiced by the omission. 4. Failure to Make a Pitchess Motion As a subsidiary claim, petitioner alleges that Part was constitutionally ineffective for failing to make a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]) to challenge Officer Pickens, who petitioner claims beat him during the interrogation. Petitioner alleges in a declaration that “I had been beaten up by the cops after my arrest. . . [Part] told me it would be hard to prove.” Petitioner also testified at the Evidence Code

section 402 hearing on the voluntariness of his confession that police beat him. He reported he was grabbed by the testicles and slapped. Petitioner testified he answered “yes” to the officers’ questions “because I was afraid that they were going to start to beat me up again.” Petitioner’s version of the interrogation was specifically denied by Officer Pickens. The trial court ruled in the People’s favor by finding petitioner’s statements were voluntary, thereby implicitly finding that they were not made to avoid a beating. As with his Miranda claim, however, petitioner does not present any evidence—other than his bare assertion—that adds to what was already presented at the Evidence Code

section 402 hearing. He does not show, for example, what Part would have discovered had he made a Pitchess motion. In his traverse, petitioner complains that he had no opportunity to move for discovery because the trial court lost jurisdiction by the time appellate/ habeas corpus counsel began their representation and first raised this issue.

We reject, however, the implicit suggestion that we should overturn a long-final criminal judgment without evidence that counsel’s alleged ineffectiveness had some effect on the judgment. “We presume the regularity of proceedings that resulted in a final judgment [citation], and ... the burden is on the petitioner to establish grounds for his release.” (Duvall, supra, 9 Cal.4th at p. 474.) Although petitioner lost the opportunity for discovery when the trial court relinquished jurisdiction in the case, his burden to establish the grounds for collateral relief remained.

Moreover, discovery may be available in a habeas corpus proceeding if, as here, an order to show cause has issued. (People v. Gonzalez, supra, 51 Cal.3d at p. 1261.) There being no showing of possible prejudice, we reject petitioner’s claim that Part was constitutionally ineffective for failing to file a Pitchess motion. 5. Waiver of Petitioner’s Right to Appear at Trial in Civilian Clothes During trial, Part expressly waived petitioner’s right not to appear before the jury in jail clothes. Part noted on the record that he had tactical reasons for doing so.

He explained this decision in his declaration accompanying the return to the order to show cause: “[I]t has been my belief, tactic, and custom that I would rather have a defendant appear in jail clothes than in civilian clothes. I feel that this evokes some measure of sympathy for the defendant.” In her declaration, appellate counsel Eleanor Kraft alleges that she spoke with Part, and that he told her he preferred petitioner appear in jail clothes because “Blacks and Mexicans . . . don’t know how to dress right.

They dress too loud and with the wrong colors and that would make things worse.” In his declaration, Part strongly and expressly denies making these statements. Ordinarily, such a clear factual dispute would require a reference. We declined to include this issue in our reference order, however, because petitioner failed to demonstrate any prejudice. A criminal defendant has the right to appear before the jury in civilian clothes instead of jail garb, and violation of this right is of federal constitutional dimension requiring application of the Chapman standard (Chapman v.

California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; see generally, People v. Taylor (1982) 31 Cal.3d 488 [183 Cal.Rptr. 64, 645 P.2d 115].) The right, however, may be waived by counsel. (31 Cal.3d at pp. 495-496.) Even assuming for argument, however, that Part’s reasons for waiving the right for petitioner were unreasonable, petitioner makes no effort to demonstrate any prejudice flowing from the alleged error.

Given that petitioner confessed his culpability in a taped confession, and was identified as the killer by coparticipant Victor Padua, we conclude that Part’s tactical decision to have petitioner appear before the jury in jail clothes, even if unsound, was not prejudicial. 6. Failure to Investigate and Present Available Mitigating Evidence at the Penalty Phase Petitioner contends that Part was constitutionally ineffective in his legal representation because he failed to investigate and present available mitigating evidence at the penalty phase of the trial.

This evidence comes under two broad headings: failure to call family and friends for evidence of his good character; and failure to call witnesses who would have testified that petitioner acted in self-defense when he killed Ruben Alfaro while in pretrial detention. a. Reliance on Deere As an initial matter, we reject petitioner’s reliance on People v. Deere (1985) 41 Cal.3d 353 [222 Cal.Rptr.2d 13, 710 P.2d 925] for the proposition that failure to present mitigating evidence alone necessarily constitutes ineffective assistance of counsel.

Subsequent to the filing of petitioner’s habeas corpus petition, we “disapproved of the suggestion in Deere . . . that counsel necessarily provides constitutionally inadequate representation when he or she accedes to a client’s wishes and declines to present available mitigating evidence at the penalty phase of a capital trial. [Citation.] At least in the absence of evidence showing counsel failed to investigate available mitigating evidence or advise defendant of its significance [citation], we cannot say” a defendant’s trial attorney necessarily provides ineffective assistance of counsel by failing to present available mitigating evidence. (People v.

Sanders (1990) 51 Cal.3d 471, 526 [273 Cal.Rptr. 537, 797 P.2d 561], fn. omitted.) Thereafter, we clarified that counsel’s decision to decline presenting mitigating evidence at a penalty phase of a capital trial is tested by the same standard applicable to allegations of ineffective assistance of counsel. (See In re Ross, supra, 10 Cal.4th at pp. 189 [“Petitioner presented no witnesses at the penalty phase”], 204 [applying Strickland v. Washington to the alleged misconduct].) That is, not only incompetence but also prejudice must be shown. b.

Good Character Evidence In support of his claim that Part failed to present available mitigating evidence in the form of good character evidence, petitioner presents three declarations:

(1) Marianna Avena, petitioner’s mother, declared that she was aware of his drug use, and that he intervened and protected her when her husband attempted to assault her, but that petitioner always respected her husband. In addition, she declared that she loves her son, that he loves her and his brothers and sisters, and that she was never contacted by Part or a defense investigator;

(2) Elizabeth Avena, petitioner’s sister, declared that she was aware of her brother’s drug problem, that she loved her brother, that she attempted to enter the courtroom but the bailiff told her to leave, and that she was never contacted by Part or asked to testify; and,

(3) Ivania Cantarero, petitioner’s girlfriend, declared that she was aware of petitioner’s drug problem, that he was never violent under the influence of drugs, that he never mistreated her, that someone from the defense contacted her and that she revealed at that time her juvenile arrest for assault, but that it had been dismissed, that she was not allowed in the courthouse because she was a potential witness, and that if called to testify, she would have recounted petitioner’s loving relationship with her and with his family.

Respondent argues that calling petitioner’s mother and sister to testify would have “opened the proverbial can of worms." Respondent suggests that such testimony would have led to damaging cross-examination that would have revealed petitioner’s gang affiliation as well as his alleged assault on his father.

Calling Cantarero, respondent argues, would have left her vulnerable to impeachment concerning her juvenile arrest for assault. (See In re Jackson, supra, 3 Cal.4th 578, 614-615 [in determining whether to present mitigating evidence, defense counsel properly may consider the detrimental consequences that may result from the introduction of such evidence]; In re Ross, supra, 10 Cal.4th at pp. 206-209 [proposed mitigating evidence would have been impeached]; People v.

Miranda (1987) 44 Cal.3d 57, 121 [241 Cal.Rptr. 594, 744 P.2d 1127] [trial counsel could decline to present certain mitigating evidence for fear of rebuttal].) In his traverse, petitioner takes strong exception to these arguments. c. Evidence of the Alfaro Killing Petitioner also alleges that Part provided ineffective assistance by failing to investigate the circumstances surrounding petitioner’s killing, while in pretrial detention, of fellow inmate Ruben Alfaro.

Evidence presented at trial shows that in September 1981, while defendant was in pretrial detention for the offenses for which he was eventually convicted and sentenced to death, deputies noticed a commotion while prisoners were returning from lunch. Deputy Oki, who was in a caged security area, observed defendant stabbing another inmate, Ruben Alfaro, with a shank (i.e., a jail-made knife). Alfaro was lying with his back on the floor and defendant stabbed him three or four times in the chest. Another inmate, Jesus Gonzalez, was also stabbing Alfaro. Oki was only four or five feet from the altercation.

Deputy Minnis was Oki’s partner and he also observed the attack. He specifically noticed the blood-covered shank in defendant’s hand. When Minnis yelled out, defendant and Gonzalez fled; defendant discarded the shank. Minnis detained defendant and it was later discovered defendant was wearing a towel wrapped around his midsection, a known protective tactic used by jail inmates who anticipate participating in a knife fight. Gonzalez was detained by Deputy Baylis, who had observed Gonzalez running from the scene; Gonzalez later admitted ownership of a long shank found near the knife attack.

Alfaro died from his wounds. An autopsy revealed the cause of death was blood loss due to multiple stab wounds. The stab wounds were consistent with defendant’s shank. Two days before the Alfaro homicide, Deputy Bauder observed defendant exhibited several puncture-type wounds on his left temple, neck, and chest. Defendant told Bauder that an unidentified “black guy had tried to get him.” A search of the room in which defendant had been held turned up 5 shanks but no witnesses among the 80 or 90 inmates. Evidence that petitioner killed Alfaro doubtlessly comprised potent aggravating evidence at trial.

Petitioner claims that had

Part conducted an adequate investigation, he would have found that petitioner acted in self-def

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