In re JAMES EDWARD HARDY on Habeas Corpus, 41 Cal. 4th 977

Opinion WERDEGAR, J.— I. Introduction Petitioner James Edward Hardy was convicted in 1983, along with codefendant Mark Anthony Reilly, of the first degree murders of Nancy Morgan and her young son, Mitchell Morgan, and of conspiracy to commit murder to collect life insurance proceeds. (Pen.

Code, §§ 187, 182.) The jury also sustained six special circumstance allegations against both Hardy and Reilly, finding as to each murder that it was committed for financial gain, that the defendants committed a multiple murder and that they killed while lying in wait. (§ 190.2, subd. (a)(1), (3), (15).) The jury set the penalty for both defendants at death. On appeal, this court affirmed, striking one superfluous multiple-murder special circumstance. (People v. Hardy (1992) 2 Cal.4th 86 [5 Cal.Rptr.2d 796, 825 P.2d 781].) Our prior opinion in this matter was not the end of the legal road for petitioner Hardy.

After the United States Supreme Court denied his petition for a writ of certiorari (Hardy v. California (1992) 506 U.S. 987 [121 L.Ed.2d 435, 113 S.Ct. 498]), he filed his first petition for a writ of habeas corpus with this court (In re Hardy, S022153 {Hardy I)). Because the petition alleged facts sufficient to demonstrate a prima facie case for relief from the penalty judgment (People v.

Duvall (1995) 9 Cal.4th 464 [37 Cal.Rptr.2d 259, 886 P.2d 1252]), we issued an order directing respondent to show cause “why petitioner is not entitled to reversal of the penalty judgment because his trial attorney rendered constitutionally ineffective assistance of counsel by failing to call, at the penalty phase of the trial, available witnesses who would have presented evidence of mitigating circumstances.” (Italics added.) After receiving briefing, we directed a referee to hold a hearing and take evidence on two disputed questions of fact.

After receiving additional briefing, we amended the order of reference to add an additional question for the referee’s consideration. Some delay ensued, but the referee eventually held a hearing at which several witnesses testified. The referee filed his report with this court in 1999. Petitioner then filed a second petition for a writ of habeas corpus based on facts adduced at the evidentiary hearing. (In re Hardy, S093694 (Hardy II).) This new petition alleged facts sufficient to demonstrate a prima facie case for relief from the guilt judgment.

Accordingly, we issued a second order to show cause on two interrelated issues. Our order stated: “The petition for writ of habeas corpus, filed December 13, 2000, has been read and considered.

The Director of Corrections is ordered to show cause before this court at its courtroom, when the proceeding is ordered on calendar, why petitioner is not entitled to reversal of his guilt judgment because [1] he is innocent of the capital crimes of which he was convicted, [in that] a third party named Calvin Boyd committed the murders, and [2 that] petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel by failing to present evidence demonstrating petitioner’s innocence.” (Italics added.) We consolidated Hardy I and Hardy II on April 18, 2007, and now reach the following conclusions;

(1) Because petitioner’s allegations in Hardy II are based on facts found by the referee as a result of the evidentiary hearing in Hardy I, a second hearing is unnecessary; (2) petitioner’s allegations, to the extent they were sustained by the referee, fail to demonstrate petitioner is actually innocent of the crimes for which he was convicted because they do not undermine the prosecution’s entire case or point unerringly to innocence; (3) petitioner’s allegations that a third party named Calvin Boyd committed the murders, largely sustained by the referee, demonstrate his trial counsel’s representation was deficient because he failed, without a supportable tactical reason, to investigate reasonably available evidence of third party culpability; (4) such deficient representation nevertheless does not require reversal of the guilt judgment because counsel’s failure to investigate did not undermine the prosecution’s theory that petitioner conspired to commit the murders, and such conspiracy rendered petitioner liable for first degree murder irrespective of the possibility that a third party actually killed the victims; (5) the allegations of third party culpability, as sustained by the referee, require we vacate the penalty judgment because, had the jury entertained a reasonable doubt that petitioner was the actual killer and concluded he was merely a coconspirator, there is a reasonable probability it would have returned a sentence of life instead of death; and (6) in light of the latter conclusion, we discharge the order to show cause in Hardy I and dismiss that petition as moot.

II. Background Clifford and Nancy Morgan lived in Van Nuys and had a son, Mitchell, who was eight years old at the time of the murders. Clifford Morgan (Morgan) devised a plan to kill his wife and son in order to collect on some unusually large life insurance policies he had purchased. He enlisted the assistance of Reilly, a much younger coworker over whom he had acquired some influence. At this time, Reilly and petitioner, as well as many of the witnesses and coconspirators in this case, lived in the same apartment complex on Vose Street in Van Nuys.

The depth and breadth of the ensuing conspiracy to kill the victims need not be recounted here in full; suffice it to say, Reilly agreed to Morgan’s plan and sought a partner for the planned murders. Reilly’s attempt to hire a kickboxer named Marc Costello to kill the victims came to naught. Reilly then turned to fellow Vose Street resident Calvin Boyd and his friend Marcus. Many of the residents of the Vose Street apartment complex were acquainted with Boyd, a key player in petitioner’s present collateral challenge to his convictions, who, unknown to them, was at the time a fugitive from justice.

After much preliminary involvement in the conspiracy, Boyd (according to his trial testimony) declined to participate in the murders of Nancy and Mitchell Morgan due to Reilly’s inability to pay him any money or cocaine in advance. Reilly then turned to petitioner as a third option, believing he could convince him to commit the murders. A few weeks before the murders, Reilly told his friend Joe Dempsey that petitioner might agree to assist in the murders. Sometime later, Reilly told his friend Michael Mitchell that petitioner had agreed to help him.

Debbie Sportsman provided critical evidence against Reilly and about the conspiracy in general. She met Reilly in April 1981 and began an intimate relationship with him. While having dinner with Sportsman and her parents, Reilly mentioned that Morgan wanted to have his wife killed in order to collect on some insurance policies. Sportsman’s mother thought this was “just talk.” As Sportsman later found out, however, Reilly was quite serious. He told her he had agreed to help Morgan find someone to kill his wife.

In return, Morgan had agreed to allow Reilly to live in Morgan’s home and to manage a bar that Morgan intended to open. In May 1981, Morgan moved to Carson City, Nevada, ostensibly for business reasons, but more probably to establish an alibi. Sometime in the night of May 20 to 21, 1981, two persons alleged to be petitioner and Reilly went to Morgan’s Van Nuys home, entered with a key provided by Morgan, cut the chain lock with boltcutters and went to the back bedroom where Nancy slept. Because her husband was away from home, their son, Mitchell, was sleeping in his mother’s bedroom.

The assailants stabbed Nancy and Mitchell Morgan to death. Evidence showed Nancy was stabbed 45 times and her son 21 times, including multiple wounds on his neck. Police found a pillow soaked in blood with several puncture marks, indicating the assailants had stabbed the victims through the pillow. Experts testified that physical evidence suggested at least two persons were responsible for the slayings. The estimated time of death was between 3:30 and 5:30 a.m. The conspiracy began to unravel almost immediately.

After the murders, Reilly admitted his guilt to Sportsman and made numerous other incriminating admissions to her, including that victim Nancy Morgan had said “Please don’t kill me,” that more than one perpetrator was involved, that boltcutters had been used to cut the chain lock on the door (a fact not made public by the police) and that a fish knife had been used in the killings. Boyd testified that shortly after the murders, when he and Reilly were together in the apartment’s laundry room, Reilly admitted that he and petitioner Hardy were the killers.

Boyd also testified that Reilly showed him some boltcutters he had recently purchased. Michael Mitchell, Reilly’s roommate, testified that he came home from a baseball game the night of the murders and went to sleep sometime after 11:00 p.m. At that time, no one else was in the apartment. He got up around midnight and saw petitioner, Reilly, Colette Mitchell (apparently no relation), and possibly a neighbor, Steven Rice, in the apartment. Later that night, he heard male voices in the apartment and some people taking showers.

The next morning, he found wet towels in the bathroom, suggesting someone had taken a shower, but he saw no evidence of blood. Boyd testified that the morning after the murders, sometime after 8:00 a.m., he walked through Steven Rice’s apartment as a shortcut to the street, something he often did. There, he saw Reilly and petitioner sleeping, thereby placing the two men together shortly after die crimes. Boyd also testified he saw Rice and Colette Mitchell in the apartment.

Morgan’s purchase of an unusually large amount of life insurance shortly before the murders was suspicious, as were his statements to a neighbor shortly before the murders that his wife was worth more dead than alive and he expected she would die before him. A web of circumstantial evidence, not relevant to the instant collateral attack, linked Reilly to Morgan. In addition, Reilly could not explain how a stain of human blood came to be on his shoe. No physical evidence, such as blood, hair, fingerprints or footprints linked petitioner to the murders.

Colette Mitchell, petitioner’s girlfriend at the time, gave testimony that was important in connecting him to the crimes. She had initially given petitioner an alibi, testifying at the preliminary hearing that she was with him the entire night of the murders. By the time of trial she had changed her story and admitted she had perjured herself at the preliminary hearing. Although she often claimed she could not remember many of the details of the events in question and admitted she intentionally tried to forget things about the case, she no longer was sure petitioner was with her the entire night of the murders.

She testified at trial under a grant of immunity, but admitted that even after receiving immunity and consulting an attorney, she contacted petitioner in jail intending to assist him. Nevertheless, Colette testified to the following: On the night of the murders, she was working at a restaurant. Reilly, petitioner and Steven Rice met at the restaurant shortly after 9:00 p.m., and Colette served them drinks. The four then returned to the Vose Street apartments around 10:00 p.m. to “party” and use cocaine. They also used a beer bong.

Colette admitted to doing several large lines of cocaine and drinking at least three beers using the beer bong. She quarreled with petitioner, left Reilly’s apartment and went to Rice’s apartment next door. Sometime between midnight and 2:00 a.m., she and Rice went out and purchased more beer. After she returned, petitioner sought her out at Rice’s apartment and told her not to leave him because he “needed her” that night.

Although she had consumed an unusually large amount of cocaine, which usually had the effect of keeping her awake, she testified she fell asleep or passed out in Rice’s apartment sometime thereafter and did not awaken until around 11:00 a.m. the next morning. Hardy was asleep next to her, and Reilly was asleep on the sofa. Colette testified she misled police by telling them she was with petitioner the entire night. Although immediately after the crimes she was sure she had been with both Reilly and petitioner the entire night, she had changed her mind by the time of trial.

At trial, she claimed she was either asleep or passed out for much of the night and thus did not know if petitioner left the apartment or not. Reilly told her once that he and petitioner had left the apartment while she was asleep, but another time told her they had not left. When speaking with petitioner after the murders, they discussed his alibi “all the time.” Some of Colette’s testimony implicated petitioner directly in the murders. For example, prior to the murders, petitioner led her to believe he was going to steal something from someone to enable an unnamed person to collect on an insurance policy.

Petitioner told her at least twice that he had been to the victims’ home the night of the murders. First, he told her “that he went to the house and that the people were still alive because he heard them snoring.” Later he told her “that he went to the house and that they [had] already been dead, killed.” Another time, he told her, “I’ll say one thing; we were at the house.” These statements were contradicted by other of petitioner’s statements to her, such as that “he didn’t do it.” In addition, although Reilly admitted to Colette that he knew the identity of the killers, petitioner disclaimed such knowledge.

When she asked Reilly directly whether petitioner was the killer, Reilly told her, “No.” When she asked petitioner himself, he also answered in the negative. On cross-examination, Colette admitted petitioner had never told her he actually killed either victim. Colette recounted other statements petitioner had made that, although not directly implicating him in the murders, suggested he was at least a coconspirator. For example, he told her the crime was to be accomplished by cutting a chain, entering the back door and then making it appear as if a robbery had occurred.

Petitioner was to receive a portion of $40,000 or $50,000, but in fact received only $1,000. She remembered the $1,000 because she put the stack of bills in a particular cedar box.

Petitioner told her that Morgan was not worried about the delay the trial caused because his insurance proceeds were earning 12.75 percent interest; the less she knew about the crimes, the better off she would be; Reilly was in charge of the situation; people who said the murder was committed by more than one person were wrong because petitioner “ ‘[knew] for a fact it was one’ ”; petitioner took something from Morgan’s home to make it look like a robbery; and the killers used boltcutters.

Colette also testified Reilly had told her that Boyd and his friend Marcus were supposed to commit the crimes but backed out because Reilly declined to go with them. Petitioner’s connection to a rifle and some shoes also provided evidence of his participation in the conspiracy. Morgan had reported several items missing in the attack, including an Ml carbine World War E-era rifle. Colette testified that petitioner, although in pretrial detention, asked her to ask his brother, John Hardy, to retrieve and dispose of an Ml carbine rifle in Reilly’s apartment.

She complied, and John Hardy thereafter retrieved the rifle and took it to his girlfriend’s house. He later turned it in to police. In addition, Colette testified petitioner told her police had discovered a footprint at the crime scene and asked her to retrieve and destroy some of his shoes. She did so, throwing the shoes in the garbage. Petitioner, Reilly and Morgan were tried together in Los Angeles County Superior Court. Petitioner was represented by Los Angeles County Deputy Public Defender Michael Demby.

At trial, Morgan denied conspiring with Reilly to commit the murders, but testified that while in pretrial detention, Reilly admitted he had attempted to find someone who would kill Morgan’s wife, but had failed in the attempt and then let the matter drop. On Demby’s advice, petitioner did not testify. In fact, Demby presented no evidence at the guilt phase of the trial, but rested on the state of the People’s evidence. Reilly also declined to testify.

Petitioner and Reilly were convicted of two counts of first degree murder (§ 187), one count of conspiracy to commit murder to collect life insurance proceeds (§ 182) and several special circumstance allegations (§ 190.2, subd. (a)(1), (3), (15)). Morgan was also convicted of capital murder charges, but after the guilt phase, the trial court severed his case from petitioner and Reilly’s penalty trial due to his failing health. Morgan, the apparent mastermind of the deadly conspiracy, died of bone cancer before the penalty phase of his separate trial could be held.

At petitioner’s penalty phase, the prosecution introduced into evidence three photographs of the crime scene, including the victims, that had been excluded from the guilt phase. In addition, the prosecution presented evidence of a 1980 domestic disturbance in which police had found petitioner marching with a rifle, military style, apparently unaware of his surroundings. At the request of the police, petitioner put the rifle as well as two knives on the ground, but then brandished a nunchaku and assumed a martial arts fighting stance.

He stayed in that stance for five or 10 minutes, but eventually agreed to lay down his nunchaku if one of the officers would holster his revolver. The matter ended peacefully, and petitioner explained he had been in a quarrel with his family. The rifle was not loaded. Petitioner later pleaded guilty to two misdemeanors and was placed on probation. (People v. Hardy, supra, 2 Cal.4th at pp. 126-127.) Petitioner’s mother, Carolyn Hardy, testified at the penalty phase and recalled that petitioner had had a fight with his brother John, punching him and tearing a gold chain off his neck.

When Carolyn called the police, petitioner kicked down her door. She also testified that the nunchaku belonged to Robert, petitioner’s other brother. Robert had threatened to commit suicide, but petitioner did not believe him. When Robert in fact committed suicide, petitioner blamed himself and jumped off a cliff, breaking both his legs. (People v. Hardy, supra, 2 Cal.4th at p. 127.) Petitioner’s mother believed he needed psychiatric help. In mitigation, Carolyn Hardy recalled that when petitioner was a teenager, he “participated in a program called Outward Bound, which involved camping and hiking in Colorado.

He was chosen for the program because of his high scholastic potential.” (People v. Hardy, supra, 2 Cal.4th at p. 127.) Defense counsel presented no other mitigating evidence. During closing argument, counsel argued the jury should return a verdict of life due to a lingering doubt about petitioner’s guilt. III. Hardy I Petitioner filed his petition for a writ of habeas corpus in Hardy I with this court on July 26, 1991, and filed a set of supplemental allegations on February 24, 1992.

In those filings, petitioner alleged his trial attorney was constitutionally ineffective in three ways: (1) for failing to call available witnesses at the penalty phase who would have provided mitigating evidence; (2) for failing to investigate to determine whether such witnesses existed; and (3) for making an unreasonable tactical decision to rely solely on a lingering doubt defense at the penalty phase. For example, petitioner alleged in Hardy I that several family members and friends, if called, would have testified to his positive attributes and difficult upbringing.

Petitioner alleged that his father was schizophrenic and had physically abused him as a child, one time holding him out of a 12th floor window and threatening to drop him. After his father’s hospitalization, petitioner alleged he assumed the role of father figure to his siblings and the family lived in a poor area of Newark, New Jersey. Declarations accompanying the petition in Hardy I alleged that petitioner was a caring and considerate child who did well in school and that he did not finish high school, leaving school at age 16 to marry Patricia May, the mother of his child.

The declarants asserted petitioner had a second child before divorcing, and that later in life, petitioner was a devoted and loving father. These declarants stated it was inconceivable petitioner could have murdered a child. In addition to the suicide of petitioner’s brother, the petition in Hardy I revealed two other major incidents that greatly affected him. First, Tina, his live-in lover whom he planned to marry, was killed in a car accident.

Declarations filed in support of the petition in Hardy I state that after Tina died, petitioner “didn’t want to do anything with his life [and] had no ambition for a long time.” A second incident involved petitioner’s involuntary commitment to a state mental hospital after a drug-induced psychotic episode. The tentative diagnosis of mental health professionals was chronic undifferentiated schizophrenia.

Petitioner’s children, who were ages 11 and eight at the time of trial, declared that they would have testified they loved petitioner, that he was a “very good and caring father,” and that they would have asked the jury to spare their father’s life. Petitioner alleged Demby provided no reason why he did not call the children to testify at the penalty phase. In his supplemental allegations, petitioner alleged his trial attorney should have presented evidence that petitioner, then working as a municipal bus driver, had acted heroically when he intervened to stop the robbery of an elderly woman on his bus.

Petitioner allegedly sustained serious injuries as a result. After receiving appropriate briefing, this court issued an order directing the Director of Corrections to show cause “why petitioner is not entitled to reversal of the penalty judgment because his trial attorney rendered constitutionally ineffective assistance of counsel by failing to call, at the penalty phase of the trial, available witnesses who would have presented evidence of mitigating circumstances.” (Italics added.) We then referred the matter to a referee to resolve disputed allegations of fact.

Our order of reference, as later amended for reasons unnecessary to relate here, provided: “

(1) Did petitioner Hardy engage in

an act of heroism while employed as a driver for the Southern California Rapid Transit District? [f]

(2) Was defense counsel Michael Demby made aware of the facts surrounding the incident? H]

(3) What were Mr. Demby’s reasons why he did not present evidence of this incident, or the uncontradicted evidence of other available witnesses who would have provided mitigating evidence at the penalty phase of the trial? [f]

(4) Were Mr. Demby’s reasons supportable?” After an evidentiary hearing, the referee filed his report on September 21, 1999. Petitioner then filed his petition for a writ of habeas corpus in Hardy II, alleging—based on facts adduced at the hearing for Hardy I—that he was entitled to relief not just from his penalty judgment but from his guilt judgment as well. Based on some of the allegations in the Hardy II petition, we issued an order to show cause on February 14, 2001, and have held Hardy I in abeyance.

As we explain post, because we conclude petitioner is entitled to relief from his penalty judgment based on the allegations in his Hardy II petition, we address that petition here and dismiss the Hardy I petition as moot. IV. Hardy II A. Preliminary Issues 1.

A Second Evidentiary Hearing Is Unnecessary Although petitioner presented numerous allegations in Hardy II attacking both his guilt and penalty judgments, we issued an order to show cause as to only two interrelated claims: Is petitioner “entitled to reversal of his guilt judgment because [1] he is innocent of the capital crimes of which he was convicted, [in that] a third party named Calvin Boyd committed the murders, and [2] because petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel by failing to present evidence demonstrating petitioner’s innocence[?]” Issuance of the order indicates we concluded petitioner’s allegations on these issues state a prima facie case for relief.

We have also concluded that the allegations were made without substantial delay; the petition asserts that its allegations are timely, and respondent does not allege otherwise. Respondent denies the facts alleged in the Hardy II petition, and petitioner reasserts his factual allegations in his traverse; hence, we normally would order an evidentiary hearing before a referee to determine the truth of the disputed allegations of facts: “[I]f the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing. (Pen.

Code, § 1484.) Because appellate courts are ill-suited to conduct evidentiary hearings, it is customary for appellate courts to appoint a referee to take evidence and make recommendations as to the resolution of disputed factual issues.” (People v.

Romero (1994) 8 Cal.4th 728, 739-740 [35 Cal.Rptr.2d 270, 883 P.2d 388].) Following receipt of the referee’s report, we would entertain the parties’ exceptions to its accuracy. (See In re Malone (1996) 12 Cal.4th 935, 941 [50 Cal.Rptr.2d 281, 911 P.2d 468]; In re Avena (1996) 12 Cal.4th 694, 709-710 [49 Cal.Rptr.2d 413, 909 P.2d 1017]; In re Branch (1969) 70 Cal.2d 200, 203 [74 Cal.Rptr. 238, 449 P.2d 174].) Under unusual circumstances, however, this court may decline to order a hearing and simply decide the case.

For example, “[i]f the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. [Citations.] Conversely, consideration of the written return and matters of record may persuade the court that the contentions advanced in the petition lack merit, in which event the court may deny the petition without an evidentiary hearing.” (People v.

Romero, supra, 8 Cal.4th at p. 739.) Apparently invoking this latter option, respondent asserts the instant petition “may be denied without an evidentiary hearing.” We agree an evidentiary hearing is not required to resolve the issues raised in the present petition, but for a different reason. The circumstances of this case are unusual, in that our referee has already held one evidentiary hearing (albeit in response to allegations in the petition for Hardy

I) and petitioner’s present factual allegations are based on both evidence presented at that hearing that has already been evaluated by the referee, and on witnesses who testified at the hearing whom the referee has already found credible. Stated differently, petitioner has already presented evidence in a contested hearing, and the referee has already determined the truth of facts alleged, including the credibility of various witnesses. Moreover, as we explain post, we largely reject respondent’s exceptions to the accuracy of the referee’s conclusions.

Respondent’s denials in Hardy II of the same facts alleged and found true in Hardy I cannot undermine the referee’s considered factual conclusions at this late date. Holding a second evidentiary hearing on those facts would also be futile. Respondent had an adequate opportunity to examine the witnesses who testified at the hearing in Hardy I. Indeed, one witness was ordered returned from Kentucky to permit respondent to cross-examine him.

Although respondent contends it did not cross-examine petitioner’s witnesses (e.g., Raynall Burney, James Moss, Rickey Ginsburg and Michael Small) “with an interest and motive similar to that which respondent has in the present habeas corpus proceeding,” it does not persuasively explain in what different fashion it would have conducted its cross-examination.

Although respondent objected to the examination of these witnesses on the ground that questions of factual innocence were beyond the scope of the reference order, the referee overruled the objection. (See discussion, post.) Accordingly, respondent had every incentive to aggressively question these witnesses at the evidentiary hearing in Hardy I. Nor is it likely respondent could show how it would have conducted its cross-examination differently. The third question in our amended order of reference for Hardy I stated: “

(3) What were Mr. Demby’s reasons why he did not present... the uncontradicted evidence of other available witnesses who would have provided mitigating evidence at the penalty phase of the trial?” Evidence of Boyd’s culpability would have constituted strong mitigating evidence for the penalty phase, supporting defense counsel’s strategic choice to rely on a lingering doubt defense; thus, respondent had ample incentive to demonstrate why counsel would have been justified in not presenting this evidence.

Moreover, the record reveals no lack of effort on respondent’s part to discredit petitioner’s witnesses on cross-examination. Accordingly, to the extent petitioner’s present claims for relief are based on facts already litigated and determined by the referee, respondent’s continued disputation of those facts is fruitless, and no reason appears to justify the holding of an additional, superfluous evidentiary hearing. 2. Was Evidence of Third Party Culpability Outside the Scope of Our Reference Order?

In response to the referee’s report in Hardy I, respondent—before this court issued its order to show cause in Hardy //—filed its exceptions to the report.

Respondent raises among those exceptions an important threshold question: Was evidence of Boyd’s possible guilt of the murders outside the scope of our order of reference in Hardy II Recalling that our order to show cause in Hardy I concerned the penalty phase only, respondent, as it did before the referee, argues that “nothing in the habeas corpus petition [in Hardy /] or the supplemental pleadings thereto filed by petitioner set forth a claim of factual innocence [and] this Court obviously did not have a factual innocence claim before it for consideration when it filed the amended reference order in July of 1994.” As we explain, we conclude the referee did not err in ruling the issue was within the scope of our reference order.

At the outset of the evidentiary hearing in Hardy /, respondent objected to third party culpability evidence it anticipated petitioner would present, arguing that such evidence was not within the terms of our amended reference order. The referee declined to rule on the motion, wishing to see the direction the evidence would take, but later raised the issue sua sponte, essentially having respondent renew its objection.

After hearing from both sides, the referee ruled he would not strike the evidence, explaining: “I am going to deny [respondent’s] motion to strike [the evidence] because I think it [is] relevant to the lingering doubt issue.” The referee stated, however, that the evidence of third party culpability was beginning to appear cumulative and he reserved the right to control the evidence on that ground. Petitioner in Hardy I alleged his trial attorney was ineffective at the penalty phase for failing to present available mitigating evidence. He claimed Demby should have presented evidence that he engaged in

an act of heroism, coming to the aid of a bus passenger being robbed, at great peril to himself, and evidence of his Outward Bound experience as a teenager. After referencing those issues, this court’s order asked the referee to determine Demby’s reasons for not presenting this available mitigating evidence and whether his reasons were “supportable.” In order for the referee to decide whether Demby’s reasons were supportable, the referee was required to assess the overall strength of the mitigating evidence available to counsel.

If strong mitigating evidence was available (e.g., family history, mental illness), counsel’s decision to forgo it was more likely unreasonable. Similarly, if the available evidence supporting lingering doubt was weak, Demby’s tactical decision to rely solely on that defense at the penalty phase would be questionable.

On the other hand, if persuasive evidence of third party culpability was reasonably available, Demby’s failure to discover and present such evidence would tend to suggest his strategic decision to rely solely on a lingering doubt defense was an ill-considered choice, unsupported by a reasonable investigation. Accordingly, we conclude evidence of third party culpability was properly admitted and considered by the referee, as it was within the scope of our order of reference.

We turn now to petitioner’s allegations in this proceeding and an assessment of the referee’s findings following the contested evidentiary hearing in Hardy I. B. The Allegations Petitioner makes a number of allegations in support of his twin claims that (1) he is innocent, and (2) his trial counsel was constitutionally ineffective for failing to discover and present reasonably available evidence of Boyd’s involvement in the murders, which could have created a reasonable or a lingering doubt as to petitioner’s guilt.

The applicable law is settled. “[W]e give great weight to those of the referee’s findings that are supported by substantial evidence. (In re Cox (2003) 30 Cal.4th 974, 998 [135 Cal.Rptr.2d 315, 70 P.3d 313]; In re Johnson (1998) 18 Cal.4th 447, 461 [75 Cal.Rptr.2d 878, 957 P.2d 299]; In re Ross (1995) 10 Cal.4th 184, 201 [40 Cal.Rptr.2d 544, 892 P.2d 1287].) This is especially true for findings involving credibility determinations.

The central reason for referring a habeas corpus claim for an evidentiary hearing is to obtain credibility determinations (In re Scott (2003) 29 Cal.4th 783, 824 [129 Cal.Rptr.2d 605, 61 P.3d 402]); consequently, we give special deference to the referee on factual questions ‘requiring resolution of testimonial conflicts and assessment of witnesses’ credibility, because the referee has the opportunity to observe the witnesses’ demeanor and manner of testifying’ (In re Malone[, supra,] 12 Cal.4th [at p.] 946 . . .). “Though we defer to the referee on factual and credibility matters, in other areas we give no deference to the referee’s findings.

We independently review prior testimony (In re Cox, supra, 30 Cal.4th at p. 998, fn. 2), as well as all mixed questions of fact and law (In re Ross, supra, 10 Cal.4th at p. 201).

Whether counsel’s performance was deficient, and whether any deficiency prejudiced the petitioner, are both mixed questions subject to independent review. (Ibid.) Ultimately, the referee’s findings are not binding on us (In re Malone, supra, 12 Cal.4th at p. 946; In re Ross, at p. 201; In re Marquez (1992) 1 Cal.4th 584, 603 [3 Cal.Rptr.2d 727, 822 P.2d 435]); it is for this court to make the findings on which the resolution of [petitioner’s] habeas corpus claim will turn (In re Visciotti (1996) 14 Cal.4th 325, 349 [58 Cal.Rptr.2d 801, 926 P.2d 987]; see In re Scott, supra, 29 Cal.4th at p. 824).” (In re Thomas (2006) 37 Cal.4th 1249, 1256-1257 [39 Cal.Rptr.3d 845, 129 P.3d 49].) Respondent is entitled to challenge the referee’s findings, both on the ground that they are not supported by substantial evidence and for accuracy, and it does so in its brief filed after the hearing in Hardy I.

The grounds for these exceptions are largely duplicated in respondent’s return in Hardy II, wherein it denies most of the allegations in the Hardy II petition. Unless otherwise stated, we consider these objections together. With these rules in mind, we examine petitioner’s factual allegations. 1. Boyd’s Admissions Petitioner alleges Calvin Boyd made incriminating admissions to several people, strongly suggesting he had participated in the murders. As we describe below, various witnesses testified at the evidentiary hearing and, although Boyd refuted their claims, the referee found Boyd was not a credible witness.

Respondent takes exception to the referee’s findings as to these witnesses on the ground that Boyd testified and contradicted them, but the referee made credibility determinations to which we defer because they are supported by substantial evidence. Accordingly, we overrule respondent’s exceptions. Evidence of Boyd’s incriminating admissions, coupled with other evidence, could have convinced a reasonable jury to entertain some doubt as to the extent of petitioner’s participation in the murders. a. Raynall Burney Raynall Burney was a resident of the Vose Street apartments at the time of the murders.

Petitioner alleges that “[sjhortly before the killings, Raynall Burney overheard Boyd say that he was looking for a hit man; Boyd later told Burney that he should say nothing about the conversation about the hit man.” These allegations are supported by Burney’s testimony at the evidentiary hearing that he heard Boyd tell a friend that “someone had asked him if he knew someone that could do a hit for this certain individual, and that they would get paid for doing it.” Later, Burney overheard Boyd tell the same person not to mention the conversation to anyone.

The referee specifically credited Burney’s testimony, concluding that “[i]n testifying at the reference hearing, Boyd made a number of statements which were shown to be false[, including] . . . that he did not tell . . .

Raynall Burney . . . that he had participated in the planning and/or the carrying out of the murders in this case.” The referee also concluded that although Boyd denied making the statements overheard by Burney, “Boyd generally lacked credibility.” (Italics added.) Respondent, in its return, denies Burney actually overheard Boyd make such comments, relying on Boyd’s testimony in which he denied participation in the murders and claimed that, on the night of the murders, he was in his apartment, having passed out from consuming too much alcohol. The referee, however, reasonably found Boyd was not credible.

Respondent takes exception to the referee’s finding that Burney was credible on the grounds that Burney had suffered a 1983 felony conviction for oral copulation and had failed to come forward with his evidence at the time of trial. The referee was aware of Burney’s felony conviction, but determined he was nevertheless truthful. In addition, Burney explained in his declaration why he did not come forward earlier—he was not aware petitioner faced the death penalty and would have come forward had he known—and he testified at the hearing that everything in his declaration was true.

As the referee “ha[d] the opportunity to observe the witnesses’ demeanor and manner of testifying” (In re Malone, supra, 12 Cal.4th at p. 946), information unavailable to this court, and his conclusion is supported by substantial evidence, we defer to his credibility determination (In re Thomas, supra, 37 Cal.4th at p. 1256). Respondent also takes exception to the referee’s finding that Burney was a credible witness on the ground that his testimony was hearsay. Respondent forfeited this claim for our review by failing to object on this ground at the hearing.

Nor does it appear respondent objected to Burney’s declaration. Were we to overlook this forfeiture and address the claim, we would find Boyd’s comment, overheard by Burney, that someone asked Boyd “if he knew someone that could do a hit for this certain individual, and that they would get paid for doing it,” was admissible under the coconspirator exception to the hearsay rule. “Hearsay evidence is of course generally inadmissible. (Evid.

Code, § 1200.) Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents ‘independent evidence to establish prima facie the existence of . . . [a] conspiracy.’ [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established; ‘(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.’ ” (People v.

Hardy, supra, 2 Cal.4th at p. 139.) Evidence Code

section 1223 provides in pertinent part; “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [|] (

a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [and] [][] (

b) The statement was made prior to or during the time that the party was participating in that conspiracy.” The information, as amended, alleged that Morgan, Mark Reilly and petitioner “conspire[d] together and with other persons including but not limited to Colette Mitchell, Ron Leahy, Calvin Boyd and Debbie Sportsman, to commit the crime of [mjurder for the purpose of collecting life insurance proceeds upon the life of Nancy Carol Morgan and Mitchell Raymond Morgan and to do so by defrauding the Equitable Life Assurance Company and the Provident Alliance Life Assurance Company.” (Italics added.) There was thus no question at trial that Boyd was a coconspirator, i.e., that he was “participating in a conspiracy.” Boyd’s comment, overheard by Burney, plainly betrays planning behavior in furtherance of the conspiracy (see People v.

Brawley (1969) 1 Cal.3d 277, 288 [82 Cal.Rptr. 161, 461 P.2d 361] [statements construed as attempts to recruit a person to join the criminal scheme are in furtherance of the conspiracy]) and thus would not have been barred by the hearsay rule had respondent objected on that ground. Accordingly, we overrule respondent’s exceptions and adopt the referee’s finding on this point.

Respondent next takes exception to the referee’s conclusion that “[t]he testimony of Raynall Burney indicated that, shortly before the killings, Burney overheard Boyd say that he was looking for a hit man.” (Italics added.) Respondent argues that Burney’s testimony indicates only that he overheard Boyd say that someone had asked him (i.e., Boyd) if he knew a hit man, not that Boyd was himself searching for one. We agree and sustain this exception. b.

Rickey Ginsburg Petitioner alleges that “a few days before the killings, Boyd and Marcus tried to recruit Ollie Epps, another one of Boyd’s friends, to help with the killings.” This allegation is supported by the testimony of Rickey Ginsburg, who at the time of the crimes resided with his mother at the Vose Street apartments. Ginsburg testified that Epps, his mother’s boyfriend, told him that Boyd and Marcus had attempted to recruit him, but he had declined. Respondent denies the allegation, relying on Boyd’s testimony denying he had asked anyone to commit the murders.

Other than to conclude Boyd was generally not credible, the referee made no specific findings regarding Boyd’s alleged attempt to recruit Epps. Accordingly, we assign this fact no weight.

Petitioner also alleges that after the murders, Ginsburg “overheard Boyd say to Ollie Epps that he (Boyd) had ‘tripped upon the kid and grabbed a pillow and put it over his face and stabbed him.’ ” This allegation is supported by Ginsburg’s testimony that, sometime after the murders, he was shooting pool with Boyd, Epps and others, and he heard Boyd tell Epps: “Yes, man, I went in to do the lady in and Marcus and I were stumbling through the house, and I went through one room, I tripped upon the kid and grabbed a pillow and put it over his face and stabbed him.” The referee found the allegation to be true, concluding that, “[i]n testifying at the reference hearing, Boyd made a number of statements which were shown to be false[, including] . . . that he did not tell . . .

Ollie Epps [or] Rick Ginsburg . . . that he had participated in the planning and/or the carrying out of the murders in this case.” (Italics added.) Respondent denies Ginsburg actually overheard Boyd make these incriminating comments; in support, respondent argues that Boyd testified and denied participation in the murders, Ginsburg’s credibility is suspect because he has a felony conviction for selling cocaine, Ginsburg failed to give police this information when they interviewed him around the time of tire crimes, and Ginsburg never told his mother about the incident although for him to conceal such important information from her would have been unusual.* Respondent also formally takes exception to the referee’s findings, arguing Ginsburg’s testimony was not credible.

Although Boyd denied making the statements overheard by Ginsburg, the referee found that “Boyd generally lacked credibility.” (Italics added.) The referee also specifically credited Ginsburg’s testimony on this point. This was a classic credibility determination to which we defer, inasmuch as the referee’s conclusion on this point is supported by substantial evidence, namely, Ginsburg’s own testimony. We thus overrule respondent’s exceptions and adopt the referee’s findings. Petitioner also alleges that after the murders, Boyd told Ginsburg in a threatening manner to tell the police he knew nothing about them.

This allegation is supported by Ginsburg’s testimony that sometime after he was interviewed by the police, Boyd confronted him and said: “ ‘And what did you tell them? And what do you know? And now you know nothing.’ ” Ginsburg took these comments to be a threat. The referee found “[t]he evidence showed that, at some point after the killings, . . .

Boyd told Ginsburg [in a threatening manner that] he should tell the police that he knew nothing about the killings.” As noted, the referee specifically credited Ginsburg’s testimony and found “Boyd generally lacked credibility.” Respondent impliedly denies this allegation in its return, alleging: “Boyd did not tell . . . Rickey Ginsburg . . . that he committed one or both of the murders.” We may assume respondent’s attack on Ginsburg’s credibility applies here as well. Respondent also takes exception to the referee’s finding that Boyd threatened Ginsburg.

The referee, however, reasonably weighed Ginsburg’s credibility against that of Boyd and, inasmuch as Ginsburg testified specifically that Boyd threatened him, substantial evidence supports the referee’s finding. We thus overrule respondent’s exception. Respondent’s further exception to the referee’s description of the exact nature of the threat is meritless: That Boyd said, “ ‘And now you know nothing,’ ” in context, was reasonably construed as a threat. Respondent also takes exception to the referee’s finding regarding Ginsburg because his testimony recounting Boyd’s threat was inadmissible hearsay.

It is unclear whether respondent properly objected on this ground. Although respondent made a continuing hearsay objection during Ginsburg’s testimony, that objection could be construed as applying only to Ginsburg’s testimony regarding the comments of Ollie Epps. As the matter is unclear from the record, however, we give respondent the benefit of the doubt and conclude the issue is preserved for our review. (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6 [39 Cal.Rptr.2d 547, 891 P.2d 93], overruled on another point in People v.

Combs (2004) 34 Cal.4th 821, 860 [22 Cal.Rptr.3d 61, 101 P.3d 1007].) Turning to the merits of the hearsay question, we conclude Boyd’s threat to Ginsburg falls under the coconspirator exception to the hearsay rule. (See discussion, ante, at pt. IV.B.l.a.) Although the threat was made after the crimes had occurred, there is no question Boyd’s statement was made “while” he was engaged in the conspiracy. As we explained on appeal: “The conspiracy did not . . . end with the death of the insureds.

Instead, for purposes of this case, it continued until the coconspirators received the insurance proceeds [citation], or Morgan was convicted of unjustifiable homicide of the victims, thus disabling him from legally collecting the insurance proceeds. [Citation.] Because the insurance companies had not yet paid out at the time of trial, the conspiracy was a continuing one, permitting the introduction of hearsay statements made during the time between the crime and the trial, pursuant to Evidence Code

section 1223.” (People v. Hardy, supra, 2 Cal.4th at p. 144, fn. omitted.) Respondent contends Boyd’s threat to Ginsburg was not uttered in furtherance of the objective of the conspiracy. Although respondent’s argument lacks detail, we conclude Boyd’s threat not to reveal his name to the police was a clear attempt to avoid detection and thus protect the aims of the conspiracy. (See People v.

Sully (1991) 53 Cal.3d 1195, 1231 [283 Cal.Rptr. 144, 812 P.2d 163] [statements fell within the coconspirator exception because they “could reasonably be viewed as an attempt to commit a potential witness to silence, thereby concealing the murder”].) We thus conclude that, assuming respondent preserved this issue, the referee properly admitted the evidence over the hearsay objection. As the referee’s conclusions with regard to Ginsburg are supported by substantial evidence, they are entitled to deference and we adopt them. c.

James Moss Petitioner alleges that after the murders, James Moss had a conversation with Boyd in which Boyd said he was angry with petitioner because petitioner had failed to show up for something, that Boyd had to go in his place, that Marcus had to drive the getaway car, and that Boyd later told Moss to forget the conversation. Moss, who now lives in Tennessee, testified that he lived at the Vose Street apartments in 1981 and knew Boyd as well as Boyd’s wife, Arzetta Harvey.

Moss testified that sometime after the crimes, after he had learned of Reilly’s arrest for the murders, Moss, Boyd and Marcus were milling around the swimming pool at the apartment complex when Boyd said he was angry because petitioner had not shown up to do something he was supposed to do and Boyd had to go in his place.

Boyd criticized petitioner’s courage, saying he “was too chicken shit to go along.” Boyd was angry because “he needed his part of the money to get the drugs that he wanted and needed.” Marcus added that petitioner “mess[ed] the whole thing up because he didn’t go, [and] that if they got caught, [petitioner] would get away free because he did not—you know, he did not go, he did not show up to do what they was supposed to do.” Boyd echoed this sentiment, saying that if Boyd were arrested, petitioner would “walk away free because he did not do anything.” Marcus said that as a result of petitioner’s failure to show up, he (Marcus) had to drive the getaway car.

Sometime after the poolside conversation, Boyd told Moss to forget it had taken place. Moss admitted on cross-examination that, at the time, he did not know what Boyd and Marcus were talking about and did not know they may have been referring to the murders. Boyd specifically denied Moss’s account of the alleged conversation.

The referee specifically credited James Moss’s testimony on this point, concluding that, “[i]n testifying at the reference hearing, Boyd made a number of statements which were shown to be false[, including] . . . that he did not threaten, bully, pressure or otherwise try to intimidate any of the Vose Street residents . . . [and] that he did not tell . . .

James Moss that he had participated in the planning and/or the carrying out of the murders in this case.” Respondent denies that Moss heard Boyd make these incriminating comments, noting that Moss admitted he did not know what Boyd was talking about and that Moss had a motive to testify falsely because his present wife, then 21 years old, had had a one-day affair with Boyd’s stepson, who was only 15 or 16 years old at the time. In addition, respondent alleges Moss’s failure to come forward until now undermines his credibility. Respondent takes exception to the referee’s findings on these same grounds.

The referee concluded that although Boyd denied making the statements reported by Moss, “Boyd generally lacked credibility.” The referee’s decision to credit Moss’s testimony and not Boyd’s is a credibility determination to which we must defer if supported by substantial evidence. We conclude that it is, namely, the testimony of James Moss himself and that of Sandra Harris Moss, who testified that she had immediately apologized to Arzetta Harvey about her affair with Harvey’s son and that their friendship was back to normal within 24 hours.

Respondent takes exception to the referee’s finding concerning Moss’s testimony recounting Boyd’s admissions, contending the comments were inadmissible hearsay. Respondent failed to object on this ground and thus failed to preserve the issue for our review. Were we to overlook this forfeiture and address the claim, we would find Boyd’s comment, warning Moss that he should forget the conversation he had heard, was admissible under the coconspirator exception to the hearsay rule. (See discussion, ante, at pt.

IV.B.l.a.) Like the threat to Ginsburg, Boyd’s warning to Moss was an attempt to shield the conspiracy from discovery. (People v. Sully, supra, 53 Cal.3d at p. 1231.) Boyd’s other comments, overheard by Moss, that petitioner had not shown up for something he was supposed to do, that Boyd went in his place, that petitioner “was too chicken shit to go along,” and that Boyd “needed his part of the money to get the drugs that he wanted and needed” require a different analysis for they do not appear to have been uttered in furtherance of the conspiracy.

We find, however, that these comments were admissible because they recounted Boyd’s prior inconsistent statements. Evidence Code

section 1235 provides in part: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . . .” Boyd testified at trial that he did not kill the victims, had not agreed to kill the victims, was never asked to do it, had never told Reilly “that Marcus had backed out” or that he (Boyd) would do the killing, and that no agreement existed whereby he was to receive money in return for the murders.

At the evidentiary hearing, he similarly maintained he was completely innocent of the murders and uninvolved in the conspiracy. In light of these denials, James Moss’s testimony was admissible under Evidence Code

section 1235 as evidence of Boyd’s prior inconsistent statements. Even if respondent had preserved this issue, therefore, the referee would properly have admitted the evidence over the hearsay objection. We thus overrule respondent’s exceptions and adopt the referee’s conclusions regarding James Moss’s evidence. d. Michael Small/Sandra Harris Moss Petitioner alleges that sometime after the murders, Boyd told Michael Small he had killed a child and would do it again; that he took a pillow, put it over the child’s face and stabbed him through the pillow; and that he expected to receive a large sum of money.

These allegations are supported by the testimony of both Small and Sandra Harris Moss, then known as Sandra Harris. Small, now a minister living in Kentucky, testified that he lived at the Vose Street apartments in 1981 and was friends with Arzetta Harvey’s son (Boyd’s stepson). Small observed an altercation between Boyd and Raynall Burney in which Boyd drew a knife and said: “I play for keeps. I have already taken out one young kid. I can do the same.” Boyd made these statements after the Nancy and Mitchell Morgan murders.

A few days later, Small asked Boyd whether his comments were true and Boyd replied in the affirmative, explaining: “I took the pillow and I put it over him and I just stabbed him.” The conversation was “[v]ery vivid” in Small’s memory. At one point, Boyd said he expected to receive a “large sum” of money, but later said the money he was expecting to receive “wasn’t there.” Sandra Harris Moss testified that Arzetta Harvey, Boyd’s wife, told her Boyd was expecting to receive some insurance money, although in her testimony Harvey denied the account.

Boyd denied making the statements to Small or making any statements with regard to insurance proceeds. At the hearing, respondent emphasized that there was a discrepancy between Small’s declaration (introduced without objection) and his testimony, in that his declaration made no mention of Boyd’s admitting to killing a child. Small explained that he had told the defense investigator who prepared the declaration that, in light of the many years that had passed, he might still remember some additional facts. Respondent fully cross-examined Small regarding the discrepancy.

Regarding why he did not immediately come forward with his evidence, Small testified that he initially declined to go to the police because he feared Boyd, that he then left the state for a few months for a military commitment, and that when he returned to California, he heard nothing more about the murders.

The referee specifically credited Small’s testimony on these points and concluded Boyd’s denials were not credible, stating that “[i]n testifying at the reference hearing, Boyd made a number of statements which were shown to be false[, including] . . . that he did not threaten, bully, pressure or otherwise try to intimidate any of the Vose Street residents . . . [and] that he did not tell. . .

Michael Small. . . that he had participated in the planning and/or the carrying out of the murders in this case.” (Italics added.) The referee also found Arzetta Harvey’s testimony (denying she had told Sandra Harris Moss that Boyd was coming into some insurance money) “to be unreliable.” Respondent in its return denies these allegations concerning Boyd’s statements to Small and also takes exception to the referee’s findings, on a number of grounds.

First, respondent argues the discrepancy between Small’s declaration and his hearing testimony, as well as his failure to come forward earlier, indicates he was not credible. Small addressed these points in his testimony. Respondent adds that Small’s credibility is further undermined because Burney in his testimony never mentioned that Boyd said he had killed a child by stabbing him.

Although Raynall Burney’s failure to mention that Boyd had admitted to killing a child tends to undermine Small’s testimony, this is the type of credibility assessment we commit to the referee, and he specifically found Boyd was not truthful when he denied telling Small about his involvement in the murders. Because the referee’s credibility determination is supported by substantial evidence, namely Small’s own testimony and his declaration, it is entitled to deference. (In re Thomas, supra, 37 Cal.4th at p. 1256.) Accordingly, we overrule respondent’s exceptions.

Second, respondent takes exception to the referee’s acceptance of Small’s testimony, on grounds his credibility was undermined by (1) his claim he was an “ordained” minister of the Jehovah’s Witnesses faith, when in fact his Kingdom Hall does not use that title, and (2) when he was 17 years old, he obtained an identification card from the Department of Motor Vehicles with a false birth date. These matters were fully aired at the hearing, with Small explaining the circumstances of each, and we assume the referee considered them in weighing Small’s credibility against that of Boyd.

Because the referee’s credibility determination is supported by substantial evidence, namely Small’s own testimony, it is entitled to deference. (In re Thomas, supra, 37 Cal.4th at p. 1256.) Accordingly, we overrule these exceptions. Third, respondent takes exception to the referee’s findings with regard to Small’s testimony, on the ground that evidence Small was afraid of Boyd, that Boyd “lived the life of a gangster,” and that other Vose Street residents were afraid of Boyd was inadmissible evidence of Boyd’s bad character.

Because respondent did not object to Small’s testimony on this ground, it has forfeited the claim in this court. In any event, the testimony was admissible to show Small’s state of mind, which was relevant to show his fear of Boyd and thus his reluctance to come forward until years later. We thus overrule this exception.

Fourth, respondent takes exception to the referee’s finding that Boyd ever told anyone he was expecting to receive money from some insurance proceeds or that Harvey had mentioned anything about such money to Sandra Harris Moss, arguing that no evidence supports the proposition that Boyd told this to Small personally. Respondent is mistaken, as Small so testified. We thus overrule this exception. Fifth, respondent takes exception to the referee’s finding that Arzetta Harvey told Sandra Harris Moss that she and Boyd expected to get some insurance money “soon.” The referee’s

interpretation of the evidence is reasonable; Sandra Harris Moss testified that Harvey had said she and Boyd were “coming into some insurance money,” and, in context, Moss reasonably understood the use of the colloquial phraseology to mean “soon” and not at some distant future time. We thus overrule this exception. Sixth, respondent takes exception to the referee’s finding crediting Small’s testimony recounting Boyd’s admissions, contending the comments were inadmissible hearsay. Respondent failed to object on this ground and thus failed to preserve the issue for our review.

Were we to overlook this forfeiture and address the claim, we would find Boyd’s comments that (1) with a drawn knife, he told Raynall Burney (overheard by Small): “ T play for keeps. I have already taken out one young kid. I can do the same’ (2) he told Small: “I took the pillow and I put it over him and I just stabbed him”; and (3) he told Small he (Boyd) expected to be receiving a large sum of money, all were admissible under Evidence Code

section 1235 because they recounted Boyd’s prior inconsistent statements. (See discussion, ante, at pt. IV.B.l.c.) We thus conclude that, even had respondent preserved this issue, the referee would properly have admitted the evidence over the hearsay objection. As the referee’s conclusions concerning the testimony of Michael Small and Sandra Harris Moss are supported by substantial evidence, namely, the testimony of Small himself as well as that of Sandra Harris Moss, we overrule respondent’s exceptions and adopt the referee’s conclusions. e.

Michael Mitchell Petitioner alleges that a few days after the murders, Boyd demanded from codefendant Reilly a share of the insurance proceeds. This allegation is supported by the testimony of Michael Mitchell, who testified that he was Reilly’s roommate at the Vose Street apartments in 1981. Mitchell answered in the affirmative when he was asked whether Reilly told him a few days after the murders “that [Boyd] had actually threatened him because he wanted his cut for the killing.” Respondent denies these allegations.

The referee made no specific findings as to this particular alleged threat Boyd issued to Reilly, or whether Mitchell was telling the truth, although he made the related finding that “Boyd told [Michael] Small that he expected to receive a large sum of money,” that Boyd was not credible when he denied threatening or trying to intimidate any Vose Street residents, and that “Boyd generally lacked credibility.” Because the referee failed to make a specific finding with regard to the allegation based on Michael Mitchell’s testimony, we are left with disputed factual allegations, the resolution of which would require another evidentiary hearing.

Accordingly, for purposes of the present case, we will ignore the allegation based on Michael Mitchell’s testimony at the evidentiary hearing. f. Steven Rice In 1981, Steven Rice lived at the Vose Street apartments in an apartment next to Reilly’s. Rice was allowing petitioner to live with him rent free. Petitioner alleges that “at some point after the killings,” Boyd entered Rice’s apartment, began beating Rice, and warned him that he should not mention Boyd’s name to the police or Boyd would kill him. These allegations are supported by Rice’s testimony.

Rice, who now lives in Utah, testified he was friends with the Hardy family and lived in the Vose Street apartment with petitioner in 1981. He testified that about two weeks after the murders, Boyd entered his apartment while he was sleeping, began hitting him in the face, and told him not to mention his name to the police “or he was going to kill my white ass.” Boyd denied threatening Rice in this manner.

The referee found “[t]he evidence showed that, at some point after the killings, Boyd came into Steve Rice’s apartment while he was asleep and began hitting Rice, telling him ‘he better not mention his name [to the police] or he was going to kill [Rice’s] white ass.’ ” As noted, the referee specifically found Boyd lied when he denied threatening and intimidating the Vose Street residents and that he “generally lacked credibility.” Respondent denies Boyd ever threatened Rice not to go to the police and also raises a number of exceptions to the referee’s findings regarding Rice.

First, respondent takes exception to the referee’s findings on the ground that Rice never mentioned to the police investigating the murders that Boyd had threatened him, although he had opportunities to do so. Although that fact tends to undercut Rice’s credibility, we note Rice testified that Boyd threatened him with harm should he reveal Boyd’s involvement. In addition, Rice states in his declaration that he complained several times to the police about Boyd’s attempt to retaliate against him, and the police did nothing in response.

In agreeing with Rice and not Boyd, the referee made a classic credibility determination that is entitled to deference if supported by substantial evidence. Because the referee’s decision is supported by Rice’s own testimony and his declaration, we overrule this exception. Second, respondent takes exception to the referee’s findings on the ground that Rice’s testimony regarding Boyd’s assault on him was inadmissible evidence of bad character. (Evid. Code, § 1101.) Respondent did not object on this ground at the hearing and thus forfeited its consideration in this court.

In any event, Rice’s testimony was admissible under the coconspirator exception to the hearsay rule because it was an attempt to keep the conspiracy from being discovered and its ends thwarted, while it was still an ongoing enterprise. (See discussion, ante, at pt. IV.B.l.a.) Third, respondent takes exception to the referee’s finding that when Demby interviewed Rice, he “repeatedly told Mr. Demby that after the killings, Boyd had physically attacked him and ordered him not to mention his (Boyd’

s) name to the police.” (Italics added.) We have reviewed the transcript of the interview (which was admitted without objection) and are satisfied the referee’s conclusion on this point is accurate. We thus overrule this exception. As the referee’s conclusions regarding Rice’s evidence are supported by substantial evidence, namely the testimony of Rice himself as well as his declaration and the transcript of his interview with defense counsel, the referee’s conclusions are entitled to deference, and we adopt them. 2.

Boyd Habitually Carried a Knife Similar to the Murder Weapon In addition to Boyd’s numerous incriminating statements, petitioner also presented evidence that Boyd habitually carried and brandished a knife similar to the murder weapon. The victims were killed with a knife approximately six inches long and one-half inch wide. Petitioner alleges that had trial counsel conducted a reasonable investigation, he would have discovered that Boyd habitually carried a knife of substantially similar dimensions as the murder weapon. The testimony of several witnesses supports this allegation.

For example, Rickey Ginsburg testified Boyd habitually carried a knife about seven inches long. Wesley Frank, another resident of the Vose Street apartments in 1981, testified Boyd carried a dagger, sharp on one side only, but stopped wearing it after the murders. Raynall Burney testified Boyd kept a knife in his back pocket or on his belt. He saw Boyd with a switchblade-style knife about six inches long and one-half inch wide. Also testifying that Boyd habitually carried a knife were Steven Rice, Michael Mitchell, Michael Small, James Moss and Sandra Harris Moss.

Respondent denies that Boyd carried a knife of the same dimensions as the murder weapon. It emphasizes the difference between a single-bladed knife and a stiletto (which is sharp on both sides of the blade), and asserts the expert testimony at petitioner’s trial indicated the victims were killed with a stiletto. Although expert testimony indicated the victims were killed by the same or similar knives and it appeared from the wounds the knife was sharp on both sides of the blade, the referee made no finding on whether the knife Boyd carried was of the same dimensions or characteristics as the murder weapon.

The referee did conclude, however, that Boyd carried a knife around the time of the murders and that Boyd’s testimony “that he did not possess [or] carry ... a knife timing the time he lived at the Vose Street apartments” was false. Moreover, only Wesley Frank specified that the knife he saw Boyd carrying was sharp on one side only. None of the other witnesses related this detail, although some reported the length and width of the blade as being consistent with the murder weapon.

Respondent also takes exception to the referee’s finding that Boyd habitually carried a knife, arguing evidence he did so was improperly admitted at the hearing because it was evidence of his bad character. Respondent did not object to the evidence on that ground and must be held to have forfeited the claim in this proceeding. Respondent’s further exception that a drawing of the knife used at the hearing was not drawn to scale must suffer the same fate. Accordingly, we overrule respondent’s exceptions.

There being substantial, indeed overwhelming, evidence to support the referee’s finding that Boyd habitually carried a knife around the time of the murders, we adopt it. 3. Boyd Had Previously Committed Several Assaults with a Knife Petitioner alleges that had trial counsel conducted a reasonable investigation, he would have discovered that Boyd, on numerous occasions, threatened various people with a knife and admitted having stabbed people in the past. Thus, petitioner alleges, Boyd several times threatened his wife, Arzetta Harvey, with a knife.

This allegation is supported by Harvey’s testimony admitting Boyd threatened her with a knife and that he once put a knife to her throat and threatened to kill her. Harvey’s son testified that Boyd, during an argument, brandished a knife, chased Harvey and threw a knife at her. Raynall Burney described a different incident; he saw Boyd arguing with Harvey and then point the knife at her side in a threatening manner.

The record also supports petitioner’s further allegations that Boyd once brandished a knife at Raynall Burney, as well as at a group of people gathered around the swimming pool at the Vose Street apartments, including Michael Small and others, and that Boyd bragged he previously had cut someone’s throat. Although Boyd denied these incidents, the referee ruled generally in petitioner’s favor on this point.

Respondent does not specifically deny that any of these events occurred but contends that because the victims were killed with a two-bladed knife, the testimony recounting incidents in which Boyd threatened Burney, Harvey and Small with a knife was “irrelevant and immaterial.” Respondent also takes exception to the referee’s findings, arguing they are incorrect and based on inadmissible evidence, being merely evidence of Boyd’s bad character. Respondent did not object on these grounds at the reference hearing and thus failed to preserve the issue for review in this court.

Accordingly, we overrule respondent’s exception to these latter statements. There being substantial evidence (in the form of testimony by Harvey, her son, Burney and Small) to support the referee’s finding that Boyd threatened people with, and brandished, a knife on several occasions, and because respondent forfeited the evidentiary objections it now presents, we adopt the referee’s conclusions. 4.

Boyd Had a Reputation for Violence and Threatening Behavior Relying on many of the same facts, petitioner alleges that had trial counsel conducted a reasonable investigation, he would have discovered that Boyd had a reputation for violence and a history of violent and threatening behavior. With the exception of evidence relevant to Harvey’s and her son’s states of mind (Evid. Code, § 1101, subd. (c)), such evidence would have been inadmissible at trial on the question of Boyd’s character {id., § 1101), and thus counsel cannot have been ineffective for failing to discover and present it. 5.

Boyd Had Cuts on His Hands After the Killings Petitioner alleges that had trial counsel conducted a reasonable investigation, he would have discovered that shortly after the murders, Boyd had numerous cuts on his hands and told a false story in an attempt to explain them.

Testimony at the evidentiary hearing supports this allegation: James Moss testified that shortly after the murders, when he overheard Boyd and Marcus make incriminating comments about their complicity in the murders, he noticed Boyd’s hands were “partially wrapped” and he had cuts on his hands and “puncture wounds up around the knuckles.” The cuts looked like they could have been made by a knife.

Steven Rice testified that shortly after the murders, he noticed Boyd had a cut on his knuckles as if he had “punched something.” Sandra Harris Moss testified that shortly after Reilly was arrested, she noticed Boyd had a long cut on his right hand, near the knuckle, that looked infected. Boyd told her he had injured it working with a friend on a car engine.

Boyd testified he did not recall having any cuts on his hands in the days following the murders and denied having injured himself working on a car, admitting, “I was never a mechanic.” Arzetta Harvey testified she did not recall seeing any cuts on Boyd’s hands around the time of the murders.

The referee noted that “several witnesses noticed cuts on Boyd’s hands” in the days following the crimes and concluded Boyd’s denial that he had cuts on his hands was not credible and was, in fact, “false.” Respondent denies petitioner’s factual allegations, relying on Boyd’s and Harvey’s testimony at the evidentiary hearing, and further contends that even if Boyd had the alleged cuts, it does not prove he was the murderer or that petitioner was innocent of the murders, as there was no evidence indicating the circumstances under which Boyd had sustained the cuts or whether the victims’ killers had cut their hands during the crimes.

Respondent takes exception to the referee’s findings on the same grounds. Although having cuts on his hands just after the brutal double murder and telling a falsehood as to their origin does not prove definitively that Boyd was the murderer, this evidence is certainly relevant, especially as to Boyd’s state of mind and, coupled with other evidence such as his incriminating admissions, could have convinced the jury to entertain some doubt as to the scope of petitioner’s involvement in the murders. We thus overrule respondent’s exceptions.

Substantial evidence (i.e., the testimony of James Moss, Steven Rice and Sandra Harris Moss) supports the referee’s findings regarding the cuts on Boyd’s hands. Accordingly, those findings are entitled to deference, and we adopt them. 6. Boyd’s Alibi Was False Boyd had an alibi for the night of the murders: His wife, Arzetta Harvey, testified at the preliminary hearing that she had purchased some bedroom furniture from her friend, Sandra Harris Moss, and moved it to her apartment on May 20, 1981, the day before the victims were murdered.

Harvey testified at the preliminary hearing that Boyd came home drunk that night and passed out on the new bed around 11:00 p.m. (Recall the victims were killed in the early morning hours on May 21, 1981.) Boyd himself testified that someone must have slipped him an intoxicating substance that night without his knowledge, resulting in his passing out. Petitioner alleges that had trial counsel conducted a reasonable investigation, he would have discovered Boyd’s alibi was false.

Testimony at the evidentiary hearing supports this allegation: Sandra Harris Moss testified that on the day she sold her bedroom furniture to Harvey and helped her move it into her bedroom, she saw Boyd on the bed late that evening, but contrary to Harvey’s preliminary hearing testimony, the night she saw Boyd on the bed could have been any night, and she did not know whether it was the night of the murders. Suspiciously, after the murders, Harvey put pressure on Moss nearly every day to say the night she saw Boyd on the bed was the night of the murders.

Harvey, at that time Moss’s good friend, had never pressured Moss about anything, but uncharacteristically brought up this subject every day “like a ritual.” Moss “felt as though [Harvey] was pressuring me and brainwashing me to remember that the night that I sold her the bedroom set and the night that we moved the bedroom set was the night that [Boyd] was at home laying [on] the bed.” Arzetta Harvey’s son testified consistent with Moss’s account, asserting that Boyd asked him to lie to the police and tell them that he (Boyd) was home the night of the murders.

Harvey denied badgering Moss to give Boyd an alibi, but admitted at the evidentiary hearing that she did not know if she had bought the bedroom set around the time of the murders or not. Other evidence undermined Boyd’s alibi as well. Although Boyd claimed he had passed out in his and Harvey’s apartment the night of the murders, three witnesses reported seeing him in the common areas of the apartment complex that evening.

Wesley Frank, a resident of the Vose Street apartments, testified that on the evening of May 20, 1981, he saw Boyd and Marcus at the Vose Street apartment complex around 8:00 or 9:00 p.m., standing in a stairway and talking. Later, between 10:00 and 11:00 p.m., he heard Marcus start up his motorcycle and then heard Marcus and Boyd arguing. Boyd said: “ T don’t want to get on the back of the bike. I’ll fall off.’ ” Nevertheless, Frank saw the two men leave on the motorcycle with Boyd on the back. They were dressed in dark clothing and appeared sober.

In addition, Rickey Ginsburg testified he saw Boyd and Marcus in the late evening that same night, between two buildings of the apartment complex. They asked to borrow his car but Ginsburg declined, instead loaning them some money. Finally, Colette Mitchell, petitioner’s then girlfriend, told police she was in Reilly’s Vose Street apartment that critical night and saw Boyd walk by Reilly’s apartment window around 11:00 p.m.

The referee concluded the evidence presented at the hearing “undermined Boyd’s purported alibi for the night of the killings and supported petitioner’s contention that Boyd was the killer.” Critically, the referee specifically found Boyd’s testimony “that he did not leave the Vose Street apartments with Marcus on the night of the murders” was false and that Arzetta Harvey’s testimony about Boyd’s alibi was “unworthy of belief.” Respondent denies the allegation that Boyd’s alibi was false, relying on Boyd’s denial and Harvey’s testimony. The referee sp

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