Supreme Court of California Justia
Docket No. S050142
In re Lucas



Filed 7/26/04



IN THE SUPREME COURT OF CALIFORNIA




In re LARRY DOUGLAS LUCAS,

On

Habeas

Corpus.

) S050142

In People v. Lucas (1995) 12 Cal.4th 415, we affirmed the judgment

against petitioner Larry Douglas Lucas, who is confined in state prison under

sentence of death for the murders of an elderly couple who resided next door to

him. The prosecution’s evidence was that petitioner entered the couple’s home

with the intent to commit a burglary and that he killed the victims when they

discovered him in the course of the burglary. Petitioner’s primary defense was

that he killed the victims while in a drug-induced state of unconsciousness.

Petitioner filed a timely petition for writ of habeas corpus seeking relief on

various grounds, and this court issued an order to show cause on issues limited to

claims of asserted ineffective assistance of counsel at the penalty phase of the trial

and asserted juror misconduct during deliberations at the guilt phase. We

subsequently appointed a referee to conduct an evidentiary hearing and to make

findings upon questions relating to these claims. After the evidentiary hearing, the

referee determined that there was a factual basis for petitioner’s claims with

respect to asserted deficiencies of counsel at the penalty phase of trial and with

respect to asserted misconduct by a juror at the guilt phase.




With respect to the claim of juror misconduct at the guilt phase, we

conclude that the juror statements upon which petitioner based his claim simply

reflected the juror’s background and experiences. Further, even if the statements

might be characterized as misconduct, they did not result in prejudice to petitioner.

With respect to the claim of ineffective assistance of counsel at the penalty

phase, however, we conclude that petitioner’s trial counsel failed to conduct an

adequate investigation in preparation for the penalty phase of the trial. Evidence

readily could have been discovered that would have demonstrated the severe

emotional and physical abuse suffered by petitioner as a preschooler and young

child. In addition, there was readily discoverable evidence establishing that,

beginning at the age of seven years, petitioner was housed in an institution for

abused and neglected children that was staffed by abusive, violent adults, and that

subsequently he was placed in juvenile correctional facilities that were known for

crowding, neglect, and abuse. Trial counsel’s limited investigation was not

consistent with prevailing professional standards at the time of trial and, in

abandoning their investigation, counsel unreasonably failed to recognize

indications that inquiry into petitioner’s social history would disclose substantial

mitigating evidence. Counsel lacked a sufficient basis upon which to make a

reasoned strategic decision to forgo further investigation or for their decision not

to present any evidence at the penalty phase of trial.

The available mitigating evidence was weighty. Petitioner’s sister, several

cousins who lived with him when he was young, an aunt, and a woman who had

been married to petitioner’s cousin in her youth testified consistently concerning

the brutal treatment meted out to petitioner by his mother, his stepfather, and his

stepfather’s mother. Treatment records that were prepared when petitioner was

seven years of age by doctors employed by the county child protective service

2



agency confirm that contemporaneous medical opinion was that petitioner had

been the victim of cruel abuse.

Defense counsel did not present any evidence in mitigation at the penalty

phase. The jury was not afforded any insight into what may have produced

petitioner’s capacity for violence or his drug dependency, nor any basis for

exercising compassion. The jury found itself faced only with evidence of

petitioner’s ruthlessness and violence. Had defense counsel conducted an

adequate investigation, readily available evidence might have been introduced that

would have made the jury aware of petitioner’s childhood experience of rejection

and extraordinary abuse at the hands of his family. In turn, a reasonable

probability exists that the jury would have found in this evidence some

explanation for petitioner’s criminal propensities and some basis for the exercise

of mercy. Had it been made aware of this evidence, there is a reasonable

probability the jury would have reached a different verdict — that “at least one

juror would have struck a different balance.” (Wiggins v. Smith (2003) ___ U.S.

___ [156 L.Ed.2d 471, 123 S.Ct. 2527, 2543] (Wiggins).)

I

A

A jury convicted petitioner Larry Douglas Lucas of two counts of first

1

degree murder (Pen. Code, § 187) and burglary (§ 459), and found true the

special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and

burglary murder (§ 190.2, former subd. (a)(17)(vii), now § 190.2, subd.

(a)(17)(G)). The jury imposed a sentence of death.

1

All further statutory references are to the Penal Code unless otherwise

indicated.

3



Petitioner was represented at trial by James E. Patterson, acting as lead

counsel, and by cocounsel Richard A. LaPan. After a jury trial, petitioner was

convicted of the October 1986 murders of Mary and Edwin Marriott, an elderly

couple who were his neighbors. The following statement of facts is taken in large

part from the description of the evidence at trial that appears in our decision in

petitioner’s automatic appeal. (People v. Lucas, supra, 12 Cal.4th at pp. 433-436.)

The bodies of the victims, Edwin and Mary Marriott, respectively 85 and

75 years of age, were discovered in their home. They had suffered multiple stab

wounds and blunt force trauma. The house had been ransacked, and there were

bloodstains throughout. Physical evidence suggested an intruder had broken the

glass in the rear kitchen door and entered and exited through the kitchen door,

which was secured with a deadbolt lock. Blood drops led from the kitchen to the

driveway of petitioner’s residence next door.

Petitioner’s fingerprints matched those retrieved from a jewelry box and

another small box found inside the victims’ home. A search of petitioner’s home

produced a pair of pants and boxer shorts with blood on them. The blood on the

pants was consistent with petitioner’s blood, while the blood on the boxer shorts

found inside the jeans was consistent with Edwin Marriott’s blood but not with

petitioner’s.

Petitioner testified he had resided next door to the Marriotts for many years.

He said that on October 15, 1986, having received cash from his employer, he

spent the day with two men, Gary Croffoot and Daniel Sandoval. He injected

crystal methamphetamine, cocaine, and heroin in very large quantities. He passed

out and could recall only standing in a dark hall, with faces like “waxy fright

masks” coming at him. He tried to push them away and struck at them. He ran.

He remembered driving, but could not recall where. He woke up at the beach and

found that his hand was stuck with blood to the seat of the car. His right hand was

4



cut across the knuckle of the index finger and on the palm, but he had no

recollection of receiving these injuries. He continued to ingest drugs, returning

home on one occasion to obtain money. He had no recollection of any “problem”

with the Marriotts. He had no reason or desire to kill the Marriotts, and no need to

enter their home to obtain money for drugs. He identified the pants found in his

home as his, but was not certain the boxer shorts found inside them were his.

In rebuttal, police officers testified that after his arrest, petitioner admitted

that a bloody knife found inside the house was his, and he attempted to hide his

wounded hand during the interview with the police. In addition, the officers

testified that, when asked how the window of the Marriotts’ back door was

broken, petitioner told them that he broke the window and removed the glass.

According to the officers, petitioner admitted cutting himself inside the Marriott

home, but did not admit killing the victims.

At the penalty phase of the trial, the prosecution offered evidence of

petitioner’s 1984 violent assault against an eighteen-year-old woman who often

babysat for petitioner’s young children. She testified that, when she approached

petitioner about being paid for her work, he accused her of stealing his marijuana.

When she denied having done so, petitioner seized the young woman by the hair

and pointed a gun at her neck. He hit her in the face and knocked her off the porch

where they had been standing. She went home and called for assistance from the

police. Petitioner approached her again in front of her home and again demanded

his marijuana. She denied having anything that belonged to him. He left but soon

returned with his car, stating, according to her testimony, that he “was going to get

someone to kill me.” On cross-examination, she commented that she had not

wanted to testify against petitioner at the penalty phase, particularly because she

was a friend of petitioner’s wife, and that “it is all forgiven. It is in the past.”

Petitioner was convicted of assault with a deadly weapon for this offense.

5



Petitioner did not introduce any evidence at the penalty phase. The trial

court asked that defense counsel state their reasons for the decision not to present

evidence, and ordered an ex parte hearing for that purpose before Judge Robert W.

Armstrong (hereafter, Armstrong hearing). At the hearing, as will be explained,

petitioner’s lead counsel, Patterson, recorded his reasons for failing to present

mitigating evidence.

The trial court confirmed that Judge Armstrong had determined that

petitioner’s counsel had consulted 12 or 13 witnesses and had put forth a tactical

reason for not calling witnesses at the penalty phase. The trial court also obtained

petitioner’s personal, on-the-record waiver of his right to testify at the penalty

phase, as well as petitioner’s statement that he concurred in counsel’s decision not

to present evidence at that phase of the trial.

Patterson presented closing argument on petitioner’s behalf, stressing the

evidence that indicated his behavior had been influenced by gross intoxication

from drugs, and arguing that, although the jury had determined that petitioner had

formed the requisite criminal intent sufficient to support the guilt verdicts, the

evidence that petitioner was intoxicated and had committed the crimes out of a

craving for drugs nonetheless could form a basis for a penalty less than death.

Patterson urged that the evidence described a person who had acted in a frenzy,

and who, while not legally insane, had not acted in his “right mind.”

The jury returned a verdict of death.

B

Petitioner’s timely petition for writ of habeas corpus alleged, among other

claims, that prejudicial juror misconduct occurred during jury deliberations at the

guilt phase of the trial, in that one juror had stated he had experience with the type

of drugs that petitioner asserted he had taken, but that these drugs did not produce

the effect on the juror that was claimed by petitioner. Petitioner also claimed that

6



his appointed counsel provided ineffective assistance, specifically alleging that the

investigation pursued by counsel was inadequate. Further, petitioner claimed, a

reasonable investigation would have produced ample evidence that he had suffered

severe abuse and neglect as a child and that he had been confined in grossly

inadequate juvenile facilities for abused and neglected children starting at an early

age. He alleged that other available evidence would have demonstrated that he

possessed many positive characteristics but that his behavior had deteriorated in

the months preceding commission of the crimes as a result of his increasing drug

abuse. This court issued an order to show cause limited to the claims of juror

misconduct at the guilt phase and ineffective assistance of counsel at the penalty

phase of the trial.

Respondent Attorney General filed a return to the order to show cause, and

petitioner filed a traverse.

We appointed Patrick Couwenberg, formerly a judge of the Los Angeles

County Superior Court, to serve as referee and conduct an evidentiary hearing.

We requested that he take evidence and make findings on the following four

questions:

“1. What actions did petitioner’s trial attorneys James E. Patterson and

Richard A. LaPan take to investigate potential evidence in mitigation for the

purpose of the penalty phase of trial? What were the results of the investigation?

Was that investigation conducted in a manner to be expected of reasonably

competent attorneys acting as diligent advocates? If not, in what respects was it

inadequate?

“2. If trial counsel’s investigation was inadequate, what additional

information would an adequate investigation have disclosed?

“3. After conducting an adequate investigation of the circumstances in

mitigation of penalty, would reasonably competent attorneys acting as diligent

7



advocates have introduced evidence in mitigation at the penalty phase of trial?

What rebuttal evidence reasonably would have been available to the prosecution?

“4. During guilt phase deliberations, what did [J]uror K[.] say with respect

to his own drug use and his resulting opinion regarding petitioner’s defense, and

under what circumstances and in whose hearing did he make any such statement?”

The referee conducted an evidentiary hearing at which 18 witnesses

testified. The referee admitted into evidence a large volume of documentary

evidence relating to petitioner’s trial, his childhood, and his institutionalization as

an abandoned and neglected child. The referee also received into evidence the

deposition testimony of 13 additional witnesses. The referee’s conclusions

supported petitioner’s allegations in most respects.

The principles governing our decision have been stated many times. As we

recently declared: “ ‘A habeas corpus petitioner bears the burden of establishing

that the judgment under which he or she is restrained is invalid. [Citation.] To do

so, he or she must prove, by a preponderance of the evidence, facts that establish a

basis for relief on habeas corpus. [Citation.]’ ” (In re Cudjo (1999) 20 Cal.4th

673, 687.) We review the findings of the referee under standards that are well

settled. “ ‘Any conclusions of law, or of mixed questions of law and fact, are

subject to independent review. Mixed questions include whether counsel’s

performance was deficient and whether the deficiency prejudiced the defense.

Because the referee can observe the demeanor of the witnesses and their manner

of testifying, findings of fact, though not binding, are entitled to great weight

when supported by substantial evidence.’ ” (In re Scott (2003) 29 Cal.4th 783,

812; see also In re Hamilton (1999) 20 Cal.4th 273, 296-297.) On the other hand,

“this deference is arguably inappropriate when the referee’s factual findings are

based entirely on documentary evidence.” (In re Cudjo, supra, 20 Cal.4th at

p. 688.)

8



As explained below, with limited exceptions, we conclude that the factual

findings of the referee are supported by substantial evidence.

II

With respect to the question of juror misconduct, the evidence at the

reference hearing disclosed that a man who served on the jury at petitioner’s trial,

Juror K., had personal experience with heroin, marijuana, cocaine, LSD, and

amphetamines. Juror K. testified at the reference hearing that he had said at some

point during jury deliberations, when the subject of petitioner’s drug use came up:

“Well, I’m not trying to tell you anything, but I do have some experience in using

drugs, and I’ve seen a lot of people use drugs, and I’ve never seen them do what

this man has done,” that is, “slaughtering his next door neighbors.” On the other

hand, he told one juror, “if I wouldn’t have quit doing what I was doing [referring

to his own drug abuse], it possibly could have been me sitting up there,” even

though, as the juror stated, he was not by nature a violent man. Juror K. did not

notice any response from the other jurors, although in his deposition he stated that

they may have asked him what effect various drugs had on him. Other jurors also

were discussing drugs, and he presumed they had some knowledge of them. Juror

K. was uncertain whether his comments were made during the guilt or the penalty

deliberations. Juror K.’s own opinion was that petitioner’s crimes were not caused

by his drug use.

Another juror, who had served as foreperson, testified that Juror K.’s

statements occupied at most five or 10 seconds. At the reference hearing, this

juror also was unsure whether the statements occurred at the guilt or the penalty

phase of trial, but his earlier declaration indicated they took place during guilt

phase deliberations. He recalled that Juror K. said “he had taken whatever the

drug was, speed-balling, whatever it was that [petitioner] had done, and that, in his

opinion, you know, it didn’t really evoke the type of reaction that [petitioner]

9



maybe was implying or that his attorneys were implying had occurred to him.”

Another juror recalled definitely that the comment came during guilt phase

deliberations, and that Juror K. said “the drugs didn’t affect [petitioner] like it did

him [the juror]. And it gave  it would give him more strength, made him

stronger at the time and kind of like wow man, kind of crazy like.”

The referee found: “Juror K[.] told the other jurors that petitioner’s sole

defense  that he committed the murder, if at all, in a state of extreme

intoxication  was not credible [citation] because, as Mr. K[.] summarized: ‘I’ve

seen a lot of people use drugs, and I’ve never seen them do what this man had

done.’ [Citation.] Mr. K[.]’s statement was premised on his own personal

experience and was not based on the evidence received at trial. [Citation.] On the

basis of his personal experience, Mr. K[.] formed the opinion that petitioner lied

either about the amount of drugs he had taken or about the effect of those drugs on

him. [Citation.] Mr. K[.]’s statements were heard by and discussed with other

jurors. [Citation.] The preponderance of the evidence indicates that Mr. K[.]’s

2

statements were made during the jury’s guilt phase deliberations. [Citation.]”

Petitioner claims that Juror K.’s comments violated his state and federal

constitutional right to trial by an impartial and unbiased jury. He claims that

Juror K., and possibly other members of the jury, based their verdict in part on

extraneous evidence of Juror K.’s experience with controlled substances rather

than on the evidence that was introduced at trial. According to petitioner, the

evidence that during guilt phase deliberations Juror K. referred to his own drug use

and contrasted his experience with that claimed by petitioner was particularly

2

Our resolution of the issue renders it unnecessary to consider respondent’s

exceptions to the referee’s findings.

10



prejudicial because petitioner’s primary defense at the guilt phase was that his

drug and alcohol ingestion rendered him unconscious or at least made it

impossible for him to have formed the mental state necessary for proof of the

crimes.

A juror may commit misconduct by receiving or proffering to other jurors

information about the case that was not received in evidence at trial. (People v.

Nesler (1997) 16 Cal.4th 561, 578.) We have explained, however, that “[i]t is not

improper for a juror, regardless of his or her educational or employment

background, to express an opinion on a technical subject, so long as the opinion is

based on the evidence at trial. Jurors’ views of the evidence, moreover, are

necessarily informed by their life experiences, including their education and

professional work. A juror, however, should not discuss an opinion explicitly

based on specialized information obtained from outside sources. Such injection of

external information in the form of a juror’s own claim to expertise or specialized

knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th

935, 963, italics added.)

“Jurors bring to their deliberations knowledge and beliefs about general

matters of law and fact that find their source in everyday life and experience.”

(People v. Marshall (1990) 50 Cal.3d 907, 950.) This experience may stem from

education or employment, but sometimes it comes from other personal

experiences. We previously have explained that illicit drugs and their effects have

become a matter of common knowledge or experience, and that “[j]urors cannot

be expected to shed their backgrounds and experiences at the door of the

deliberation room.” (People v. Fauber (1992) 2 Cal.4th 792, 839; see also Price v.

Kramer (9th Cir. 2000) 200 F.3d 1237 [in a civil rights action claiming police

brutality, jurors did not commit misconduct during deliberations when they related

their own negative experiences with the police].) Rather, “jurors are expected to

11



bring their individual backgrounds and experiences to bear on the deliberative

process.” (People v. Pride (1992) 3 Cal.4th 195, 268.) “ ‘ “ Jurors bring to their

deliberations knowledge and beliefs about general matters of law and fact that find

their source in everyday life and experience.” ’ ” (People v. Lewis (2001) 26

Cal.4th 334, 389.)

Juror misconduct generally raises a rebuttable presumption of prejudice, but

“[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed,

if the entire record in the particular case, including the nature of the misconduct or

other event, and the surrounding circumstances, indicates there is no reasonable

probability of prejudice, i.e., no substantial likelihood that one or more jurors were

actually biased against the defendant.” (In re Hamilton, supra, 20 Cal.4th at p.

296, italics omitted.)

We have explained that the following standards govern our review of

claims that jurors have been exposed to extraneous evidence: “To summarize,

when misconduct involves the receipt of information from extraneous sources, the

effect of such receipt is judged by a review of the entire record, and may be found

to be nonprejudicial. The verdict will be set aside only if there appears a

substantial likelihood of juror bias. Such bias can appear in two different ways.

First, we will find bias if the extraneous material, judged objectively, is inherently

and substantially likely to have influenced the juror. [Citations.] Second, we look

to the nature of the misconduct and the surrounding circumstances to determine

whether it is substantially likely the juror was actually biased against the

defendant. [Citation.] The judgment must be set aside if the court finds prejudice

under either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653; see also People v.

Danks (2003) 32 Cal.4th 269, 302-303.)

We observe that a juror’s statement that a defendant’s sole defense is not

credible does not, of course, by itself constitute misconduct. In the present case,

12



the evidence does not suggest that Juror K. brought highly technical information

before the jury. Unlike the juror in question in In re Malone, supra, 12 Cal.4th

935, 963, for example, Juror K. did not hold himself out as an expert in a technical

matter on the basis of his education or occupation, but merely related his own

experience. Under the circumstances, Juror K.’s apparently brief comments

merely reflected his own experience as it related to the evidence received at the

trial and the inferences that petitioner sought to have the jurors draw from that

evidence. His experience, although not shared by the majority of persons, is fairly

common. Indeed, Juror K.’s background and experience were revealed during the

process of jury selection, when he acknowledged that he was a former addict and

alcoholic.

Even if Juror K.’s comments are viewed as constituting misconduct, there

is no substantial likelihood that he or any other juror was biased. His comments

were not inherently and substantially likely to exercise an improper influence on

the jury, nor were they indicative of actual bias on his part. Taking into account

the general awareness of persons in our society of the effect of various controlled

substances, the mild and brief nature of the remarks, the tentative spirit in which

they clearly were offered, and the lack of insistence by Juror K. that his experience

should convince other jurors to discredit petitioner’s defense, we conclude it is not

substantially likely that any juror actually was biased by the comments of Juror K.

III

Petitioner also claimed entitlement to relief on habeas corpus because, as he

alleged, his trial counsel provided constitutionally inadequate representation at the

penalty phase of trial. He based his claim primarily on trial counsel’s failure to

conduct a thorough investigation prior to the penalty phase.

13



A

In summary, readily discoverable evidence presented at the reference

hearing established that petitioner was born in Ohio in 1949, and his mother

Margaret, an unwed teenager, gave him up for adoption at birth. He was placed in

foster care, but his mother had second thoughts. When he was approximately one

and a half years of age, she requested his return to her care but failed to appear to

reclaim him. Ultimately, when he was two and a half to three years of age, after

he had been in five foster homes, she did reclaim him and brought him to live with

her and her new husband, Edward Lucas, in Montgomery County, Ohio. School

records indicate that petitioner appeared for school in the first grade, beaten black

and blue. When he was seven years of age, petitioner was placed in the care of a

facility for abused and neglected children located in Montgomery County, Ohio.

Records dating from that time indicate staff doctors who were employed by the

county juvenile facilities and treated petitioner believed that he had been subjected

to extreme abuse and that he was psychologically very damaged. Petitioner’s care

and treatment in public facilities for abused and neglected children appeared in

public records that were still available at the time of trial. Several doctors and

other persons who had treated petitioner as a child also were still available and

provided deposition testimony concerning the abuse he had received at the hands

of his family as a young child and the resulting damage to his character and

personality.

Petitioner’s sister, other relatives, and other persons who easily could be

traced and had contact with petitioner’s family while petitioner was a child

testified at the evidentiary hearing and also stated in depositions and declarations

that, as a young child, petitioner had been singled out for physical and emotional

abuse, both by his parents and by his stepfather’s mother, with whom he

frequently resided. Between the ages of three and seven years, he was beaten

14



regularly, given inadequate food, dressed in rags during Ohio winters, forced to

sleep under the bed, disciplined by being burned with a cigarette and by the

administration of chili peppers to his genitals, and excoriated because of the

circumstances of his birth. His sister was not subject to abuse; petitioner often

was fed solely on her leftovers.

Petitioner’s trial counsel did not discover this evidence.

B

(1)

Our first question to the referee asked that he take evidence on, and

determine, what actions were taken by defense counsel to investigate in

preparation for the penalty phase of the trial, what results were produced by this

investigation, and whether the investigation was conducted in a manner to be

expected of reasonably competent counsel.

As the referee found, in preparation for the penalty phase petitioner’s lead

counsel, James Patterson, spoke with or interviewed petitioner, his wife, Darlene

Lucas, his mother, Margaret Lucas, and his sister, Gwendolyn Sue Burgess.

According to Patterson, petitioner was “not a great communicator,” although

Patterson learned that petitioner had a history of drug abuse and had served time in

prison for prior convictions. Patterson spoke with him only briefly concerning his

childhood. Petitioner did not disclose that he had been abused or had had an

unhappy childhood, although petitioner reported he had experienced a good deal

of trouble and had run away from home. Patterson intended to present testimony

by Darlene Lucas concerning her married life with petitioner and petitioner’s good

qualities, although she consistently expressed reluctance to testify and stated that

petitioner had struck her and that she had ordered him to leave the home after he

stole the family’s welfare checks to buy drugs. Patterson questioned petitioner’s

mother, Margaret Lucas, concerning petitioner’s youth. She reported that

petitioner had been placed with different families and relatives while he was

15



growing up, because he was a problem child who was difficult to control.

Patterson did not attempt to contact the relatives with whom petitioner had resided

as a child. Margaret also informed Patterson of petitioner’s prior convictions,

including one of which the prosecution was unaware.

Patterson testified at the reference hearing that his trial notes indicated that

he had interviewed petitioner’s sister, Gwendolyn Burgess, six days prior to the

commencement of the penalty phase of the trial and that she had told him during

this telephone interview that petitioner had been a runaway as a child, that he “did

not have a normal childhood,” and that he had been “punished by a grandmother

who kept him under the bed for three days for bedwetting.” Patterson believed

that the incident in which petitioner had been disciplined for bedwetting was too

remote in time and did not necessarily constitute abuse. Indeed, he considered the

evidence trivial compared with the brutality of the charged crimes. Patterson’s file

notes of this telephone interview also indicate that Gwendolyn informed Patterson

that petitioner had been in and out of juvenile facilities since he was six years of

age, that he repeatedly ran away from school as a child, and that he had been

treated unfairly. Her view was that “Lucas should be allowed to live because he

has been treated unfairly by the system, [i.e.] no[] rehabilitation[] from age six on

although in State custody.” Patterson’s notes of their conversation also indicate

Gwendolyn told him that petitioner was “no trouble” unless he was using drugs,

and that he was a good father.

At the reference hearing, Gwendolyn testified she had had one telephone

contact with Patterson. She provided Patterson with many examples of

petitioner’s good qualities, and also informed him of various aspects of

petitioner’s social history, including that petitioner had been in and out of juvenile

institutions from the age of six years and had been a runaway. She testified that

Patterson informed her he would not use this evidence, because it would make

16



petitioner look like a career criminal, that her information was not helpful, and that

she would not be called to testify at the penalty phase. He did not ask her for the

names of other persons who were familiar with petitioner’s social history and, in

general, did not appear interested in Gwendolyn’s remarks. Gwendolyn testified

that she could have directed Patterson to many other family members who could

have testified regarding the abuse suffered by petitioner as a child. She also

testified that she could have directed Patterson to petitioner’s friends, who could

have testified regarding his humanity and favorable qualities.

Evidence at the reference hearing also indicated that petitioner’s younger

brother, Dennis Lucas, attempted to speak to Patterson concerning petitioner’s

increasing drug use prior to the crime, but that Patterson brushed him off. Similar

testimony came from Dennis’s wife, Sara Lucas. Patterson explained that he

found Dennis’s evidence unhelpful because of a report from a defense expert, Dr.

Siegel, based on a test for drug residue taken many months after the crime.

Patterson also contacted other witnesses listed at the Anderson hearing,

namely, petitioner’s most recent employer, his pastor, a mail carrier, a court

bailiff, a public defender who once represented petitioner, and Daniel Sandoval

and Randy Croffoot, acquaintances. Patterson reviewed petitioner’s 1974 and

1984 probation reports, and retained Dr. William Vicary, a psychiatrist; Dr. David

Johnson, a hypnotist; and Dr. Ronald Siegel, a forensic psychopharmacologist

who analyzed petitioner’s pubic hair for drug content.

Dr. Siegel reported to Patterson that a hair sample provided by petitioner

did not confirm that petitioner had been increasing his drug usage in the months

preceding the murder. Patterson consulted Dr. Johnson in the hope that his

examination of petitioner under hypnosis might support a psychological defense,

but Dr. Johnson found that despite petitioner’s claim that he could not recall the

17



crimes other than as a confused “dream state,” under hypnosis petitioner recalled

details of the crimes.

Patterson explained that Dr. Vicary, a psychiatrist, was retained primarily

for the guilt phase defense, not to evaluate events from 25 years earlier. Patterson

recalled that Dr. Vicary’s report indicated he believed petitioner had committed

the crimes in order to obtain money to buy drugs.

Dr. Vicary’s report, dated subsequent to the commencement of the

evidentiary portion of the guilt phase, recounted petitioner’s lengthy history of

alcohol and drug abuse and noted that petitioner had a prior criminal record. With

respect to the charged murders, Dr. Vicary found that petitioner possessed the

intent to kill and that he killed in part because the victims knew him and could

have identified him. In his report, Dr. Vicary stated that he believed petitioner

was aware of the nature and consequences of his acts despite his intoxication.

Dr. Vicary’s written report added that there were some mitigating factors in

the case. It stated that petitioner had a traumatic family background in that his

stepfather and his maternal grandfather had been alcoholics. The report added that

petitioner suffered some mental deterioration prior to the offenses due to his drug

and alcohol abuse, and that he was suffering from acute intoxication at the time of

the crimes. Finally, the report added that petitioner had behaved well in jail and

was “capable of constructive activity and amicable relationships when sober.” At

the reference hearing, Dr. Vicary testified that no one in the defense team had

contacted him to follow up on his remarks concerning mitigating evidence. Also

admitted into evidence at the reference hearing was a July 30, 1987 letter that Dr.

Vicary wrote to Cocounsel LaPan in which Dr. Vicary stated that he would

interview petitioner again for the purpose of gathering data for the penalty phase,

and that he would submit an additional report if needed. Dr. Vicary testified at the

reference hearing that he also telephoned LaPan to tell him that he believed there

18



were “mitigating elements” in the case, and that if LaPan possessed relevant

information, particularly family background evidence, LaPan should inform him.

LaPan directed Dr. Vicary to proceed with the additional interview. Dr. Vicary

conducted another interview but did not convey the results to counsel, because he

assumed they were conducting further investigation into factors in mitigation and

would contact him when they needed him. In this last interview with petitioner,

Dr. Vicary testified, petitioner stated he had been physically abused as a child by

his mother. When Dr. Vicary contacted Patterson’s office to determine when

additional information would be forthcoming from counsel, he was informed that

the case had concluded.

The referee found that the results of counsel’s investigation were as

follows:

“Darlene Lucas, petitioner’s wife, refused to testify at either the guilt or

penalty phases of petitioner’s trial. Petitioner refused to testify at the penalty

phase.” From the probation reports and from petitioner’s mother and sister,

Patterson possessed evidence indicating that “[p]etitioner had been in and out of

juvenile facilities as a child, that petitioner frequently ran away from home and

school, and that “he was punished for bedwetting by being forced to remain under

his bed for up to three days at a time.” Furthermore, the referee found, Patterson

was aware that “[p]etitioner had been placed with different families and different

relatives while he was growing up and had a difficult relationship with his

mother.”

Referring to witnesses who had been mentioned at the Armstrong hearing,

the referee found that petitioner’s pastor “would not be able to testify to

petitioner’s contrition or conversion, that petitioner was concerned about his

children, and that petitioner was only an irregular churchgoer whose attendance

had declined in the months before the murders.” Petitioner’s letter carrier

19



informed counsel “that petitioner was a nice person who gave her cold drinks on

hot days and seemed like a good neighbor.” Petitioner’s employer told trial

counsel that petitioner was conscientious, honest, and a good employee except

when under the influence of drugs. A bailiff informed trial counsel that “petitioner

was a good prisoner who gave no trouble to his jailers.”

“From Messrs. Sandoval and Croffoot, trial counsel learned about

petitioner’s drug abuse on the day of the murders. [Citation.]

“From petitioner’s 1974 probation report, trial counsel learned petitioner

was born in Cincinnati, Ohio. [Citation.] The identity of his biological father was

not known. [Citation.] At the age of eight he was placed out of his home as a

result of ‘runaway, incorrigibility, and dependency neglect.’ [Citation.] At the

age of ten he was declared a ward of the court because of ‘incorrigibility’ and sent

to St. Michael’s School in Scranton, Pennsylvania. [Citation.]”

In addition, the referee found that counsel was aware that “[p]etitioner had

a traumatic family background. [Citation.] His father and maternal grandfather

had histories of alcohol abuse. [Citation.] He himself had a history of alcohol and

drug abuse. [Citation.]”

According to the referee, “Mr. LaPan [cocounsel] undertook no

investigation of potential evidence in mitigation.” Further, “Mr. Lupori,

petitioner’s investigator, undertook no investigation of potential evidence in

mitigation.”

At the reference hearing, Patterson explained his strategy. His hope was to

give “a human face” to petitioner, to show his redeeming qualities, and to recount

his descent into drug abuse. Patterson intended to call petitioner as a witness to

testify concerning his remorse and his intoxication at the time of the crimes.

When petitioner’s wife refused to testify, petitioner also refused, leaving Patterson

with only the witnesses named at the Armstrong hearing. These witnesses,

20



Patterson explained at the reference hearing as he had at the Armstrong hearing,

could present evidence of only minimal value, and he believed it would be worse

to offer these witnesses than to present no evidence at all. Patterson did not pursue

further inquiry into evidence provided by petitioner’s sister, Gwendolyn, the

probation report, or Dr. Vicary. Patterson did not secure Montgomery County

juvenile records or otherwise seek to follow up the lead provided by evidence of

petitioner’s dependency record; he felt it sufficed that he had questioned petitioner

on the matter. In any event, his plan was to have petitioner testify at the penalty

phase regarding these matters. Patterson explained that the heart of his strategy

for the penalty phase was to reveal petitioner’s problems with drugs and show

petitioner’s remorse and humanity through the testimony of petitioner and his

wife; in comparison, Patterson considered the question whether petitioner was

born out of wedlock to be “trivial.” Although Patterson did not pursue

documentary evidence or other leads regarding petitioner’s childhood, he intended

for petitioner to testify at the penalty phase regarding his childhood. Still,

Patterson believed it was a “long stretch” to believe that such things as being

punished by a grandmother who kept him under the bed for three days for

bedwetting would lead petitioner to murder his neighbors, and Patterson

considered this circumstance trivial compared with the facts of the crimes. He did

not pursue Dr. Vicary’s report, because he believed that LaPan was handling the

contact with Dr. Vicary. At the same time, Patterson did not agree that all the

evidence listed by Dr. Vicary actually was mitigating; rather, he believed the

thrust of Dr. Vicary’s report was devastating both at the guilt and the penalty

phases, because it related that petitioner knew what he was doing and committed

the crimes in order to obtain money for drugs. In addition, Patterson did not

consider particularly mitigating the evidence that petitioner’s stepfather and

maternal grandfather were alcoholics. He believed that evidence that petitioner’s

21



mother placed petitioner with other persons during his childhood was too remote

in time to pursue, and he also observed that petitioner’s mother told him she had

placed him with other families because she could not control him.

The referee outlined inadequacies in the investigation. He determined that

“[t]rial counsel relied solely on petitioner’s anticipated testimony at the penalty

phase. Trial counsel made no effort to obtain records pertinent to petitioner’s birth

[citation], childhood institutionalization in Ohio and Pennsylvania [citation] or

adolescent institutionalization in California [citation]. Counsel made no effort to

confirm or otherwise follow up on information in their possession indicating that

petitioner was physically and emotionally abused as a child. [Citation.]”

The referee also found that “[t]rial counsel did not adequately follow up on

his interview with Gwendolyn Sue Burgess, petitioner’s sister,” or with

petitioner’s brother or sister-in-law. Referring to expert testimony in addition to

the evidence noted above, the referee believed that “[t]rial counsel’s investigation

was not conducted in a manner to be expected of reasonably competent attorneys

acting as diligent advocates.” Petitioner’s expert, Michael Burt, a supervising

attorney for the death penalty unit in the San Francisco Public Defender’s Office,

outlined standards in effect for defense of capital defendants at the time of trial,

including a general duty to perform a thorough social history of the accused from

various sources well in advance of the penalty phase of trial. The prosecution

expert, Judge Robert Parkin, a retired judge and former criminalist and prosecutor,

agreed with this characterization of the general standard at the time of trial,

although he expressed some ambivalence concerning the ultimate question

whether Patterson had performed adequately.

With respect to the findings concerning Patterson’s investigation and the

information it produced, respondent objects that the referee omitted evidence and

reached faulty conclusions.

22



Respondent objects that the referee did not list Dennis and Sara Lucas

(petitioner’s brother and sister-in-law) as persons counsel had spoken to in

connection with counsel’s investigation of the case in mitigation. Dennis and Sara

Lucas denied that Patterson had spoken to them except to brush them off when

they offered information. In addition, Patterson did not list them at the Anderson

hearing as persons he had contacted. The referee acknowledged that Patterson had

had some contact with Dennis and Sara Lucas, but concluded he had not followed

up on that contact. We accept the referee’s conclusion.

Respondent also objects that the referee did not note that on the eve of the

penalty phase of trial, Patterson subpoenaed or attempted to serve a subpoena on

Darlene Lucas, Margaret Lucas, Sara Lucas, Dennis Lucas, Verl Lindley, Dan

Perez, and Mollie Santistevan. Petitioner essentially concedes the point, although

he stresses the tardiness of this action by Patterson.

Respondent takes exception to the referee’s conclusion that neither

Cocounsel LaPan nor investigator Lupori conducted any investigation of potential

mitigating evidence for the penalty phase.

The evidence before the referee adequately supports the conclusion that

Patterson carried primary responsibility for both phases of trial and that Lupori

and LaPan were not instructed by him to assume responsibility and did not

actually assume substantial responsibility for penalty phase investigation. LaPan

testified he was not responsible for investigating, developing, or presenting

3

mitigating evidence at the trial. Lupori testified he was not asked by counsel to


3

As respondent points out, however, LaPan did testify that he suggested the

appointment of the hypnotist, although Patterson’s testimony indicated that the
hypnotist was appointed primarily to evaluate a guilt phase defense of
unconsciousness. Patterson testified that he had this doctor appointed in order to
evaluate petitioner’s claim prior to the guilt phase that petitioner had nothing but a

(footnote continued on following page)

23



collect mitigating evidence, although if such evidence “came in collaterally” he

would give the information to counsel. He testified that 99 percent of his work

related to the guilt phase, and the remaining 1 percent involved serving subpoenas

on the potential penalty phase witnesses named at the hearing held before Judge

Armstrong when Patterson announced he would not call any witnesses for the

4

defense at the penalty phase. In sum, the record reflects that Lupori’s

investigation of potential evidence in mitigation was negligible.


(footnote continued from preceding page)

hazy recollection of the crimes. As respondent also contends, LaPan testified that
he had read Dr.Vicary’s report, although there is no evidence suggesting that he
followed up on any of the evidence noted in that report. Rather, LaPan’s
testimony was that it was subsequent to his involvement in this trial that he first
understood that Dr. Vicary’s report contained indications of potential mitigating
evidence that should have been investigated. According to Dr. Vicary, neither
LaPan nor Patterson ever contacted him to supply the additional information or
inquire regarding the further interview Dr. Vicary had conducted with petitioner.
When Dr. Vicary telephoned Patterson’s office to inquire when Vicary would
receive the additional information, he was informed that the case had concluded.
As respondent also points out, LaPan testified that he urged petitioner to testify at
the penalty phase in order to show his remorse and humanity. Additionally, as
respondent states, LaPan prepared a motion requesting that the jury be taken to see
death row and compare it to the cells housing other prisoners at San Quentin
Prison. Although these efforts constitute preparation, they do not appear to fall
within the category of investigation. We believe that the referee’s conclusion was
substantially accurate — LaPan’s investigation of potential mitigating evidence
was at most minimal.
4

Although, as respondent asserts, Lupori did interview petitioner twice,

Lupori did not testify that these interviews sought potential mitigating evidence
for the penalty phase of trial. Respondent does not point to anything in the record
suggesting otherwise. As respondent asserts, Lupori did try, unsuccessfully, to
track down evidence of petitioner’s treatment at a local health center for a kidney
infection or possible drug withdrawal. Lupori testified he was told by the relevant
health facility that there was no indication petitioner had come in for treatment,
although counsel for petitioner in the present habeas corpus proceeding secured
the relevant record, which reflected a visit by petitioner two months prior to the

(footnote continued on following page)

24



Respondent takes exception to the referee’s findings regarding the results of

Patterson’s penalty phase investigation. Respondent complains the referee failed

to include in his findings the statement by petitioner’s mother that she told

Patterson that she placed petitioner with different families when he was a child,

because petitioner was a “problem,” “hard to control,” and “in trouble all the

time.” The referee did not attempt to summarize all of the witness’s testimony,

but we agree that Patterson did state that petitioner’s mother made the quoted

statements to him. As respondent also points out, petitioner’s mother informed

Patterson that petitioner had an out-of-state felony conviction of which Patterson

and the prosecutor had been unaware.

Respondent also takes exception to the referee’s “incomplete” finding that

one of the products of Patterson’s investigation was the information establishing

that petitioner had a traumatic family background. The finding is based on Dr.

Vicary’s report, which states: “There are some mitigating factors in this case.

They can be discussed as follows . . . Traumatic Family Background . . . . The

defendant’s father was an alcoholic, a grandfather was also an alcoholic who had

arrests for public intoxication.” Respondent objects that the referee’s finding is

incomplete because it omits Patterson’s testimony that he knew of this information

but did not believe it constituted evidence of a traumatic background. The record

does reflect that Patterson held this opinion.

Respondent also asserts that the referee’s finding concerning the results of

Patterson’s investigation was incomplete because it did not note other statements


(footnote continued from preceding page)

commission of the crimes. The medical record indicated that petitioner
complained of having lost 24 pounds during the preceding two weeks.

25



in Dr. Vicary’s report to Patterson. That report characterized petitioner’s

psychiatric history as “modest” and stated that petitioner had only one psychiatric

evaluation as a child due to “some behavior problems,” that he had juvenile arrests

for running away, possession of a knife, and assaults, and also that it was Dr.

Vicary’s opinion that petitioner knowingly murdered the victims in order to obtain

money for drugs. The record supports this contention with respect to the contents

of Dr. Vicary’s report.

As respondent contends, the referee’s conclusion is incomplete in that the

record indicates that Patterson consulted Dr. Siegel, a forensic

psychopharmacologist, whose test on petitioner’s hair indicated to that expert that

petitioner had not increased his drug use in the months preceding the murders, but

we also observe that this test was performed many months after the commission of

the crimes. Petitioner’s witness, Dr. Clark, accepted as an expert in the areas of

psychiatry, substance abuse and toxicology, addiction, and medicine and trauma,

testified that both at the time of trial and the time of the reference hearing, it was

understood among experts in the field that the hair test discloses drug usage only

during the 90 days preceding the test, whereas the test in petitioner’s case was

performed at least seven months after the crimes.

As respondent contends, Patterson also consulted Dr. Johnson, a hypnotist,

who reported that petitioner recalled the details of the murders. We add only that

the reports obtained from both Dr. Johnson and Dr. Siegel related primarily to

guilt phase issues.

Respondent takes exception to several of the referee’s findings concerning

the manner in which Patterson’s investigation was inadequate.

Respondent questions the referee’s finding that trial counsel relied solely

upon petitioner’s anticipated testimony as the source of potential mitigating

evidence for the penalty phase. The record indicates Patterson testified that he

26



expected that petitioner’s wife also would testify, that her resistance to testifying

would be overcome, and that he would be calling a number of other witnesses to

testify concerning petitioner’s positive qualities and problems with drugs. As

noted at the Armstrong hearing and the reference hearing, Patterson considered

calling Margaret Lucas, Bert Linley, Dan Perez, Larry Beyersdorf, Dave Rannow,

Molly Santisteven, Daniel Sandoval, Gary Croffoot, and Drs. Vicary, Johnson and

Siegel. As petitioner suggests, however, there also was evidence that petitioner’s

wife made it clear from the outset that she would not testify at the guilt or penalty

phases and that Patterson told her that her testimony would not be required. We

accept the referee’s determination that she refused to testify at either phase of the

trial.

Next, respondent takes exception to the referee’s finding that Patterson

“made no effort to obtain records pertinent to petitioner’s birth” or experience in

juvenile facilities. Respondent objects that the referee failed to recognize that

Patterson had asserted tactical reasons for this omission, in that Patterson believed

that the best way to present mitigating evidence was through petitioner and his

wife and that petitioner’s mother was a dangerous witness in that she might blurt

out the circumstance that petitioner had a prior escape conviction. We agree that

Patterson offered these reasons at the reference hearing to explain his failure to

investigate, but this circumstance does not answer the question whether

Patterson’s ostensible reasons rendered his failure to investigate further a

reasonable tactic or strategy.

Respondent takes exception to the referee’s finding that Patterson did not

investigate further after receiving information suggesting that petitioner had been

physically and emotionally abused as a child. Respondent points to Patterson’s

testimony that he did ask Margaret Lucas, Darlene Lucas, and petitioner to tell

Patterson about petitioner’s childhood. The referee may not have credited this

27



assertion but, more significantly, Patterson did not claim that he inquired of these

persons specifically about instances of abuse.

Respondent evidently concedes that Patterson did not “follow up on

Gwendolyn’s information that petitioner had been in and out of juvenile facilities

as a child, had run away repeatedly from home and school, was a bed wetter to

adulthood, and was once punished for bed wetting by being forced to remain under

his bed for three days.” Respondent again points to Patterson’s ostensible reasons

for not pursuing the leads provided by Gwendolyn, namely, that petitioner’s

experience in juvenile facilities would cause the jury to believe that petitioner was

a “career criminal,” that the bedwetting punishment was too remote in time and

did not necessarily constitute abuse, and that bedwetting was trivial compared with

the charged crimes. Patterson did offer these reasons for failing to investigate

further, but it is questionable whether his decision not to do so was reasonable.

With respect to the referee’s finding (citing testimony by defense experts

Burt, noted above, and one Dr. Haney, a lawyer and social psychologist) that the

investigation was not conducted in a manner to be expected of reasonably

competent attorneys, respondent requests that this court recognize that these two

experts are “well-traveled professional opponents of capital punishment” whose

opinions thus should count for little, if anything. Respondent also refers to our

observation that little weight should be given to an attorney’s opinion that asserted

ineffective assistance of counsel was prejudicial, because it is the court’s function

to determine the issue of prejudice. (In re Ross (1995) 10 Cal.4th 184, 215.) The

basic message of the witnesses — that the prevailing professional norm in capital

defense at the time of trial was that defense counsel should secure an independent,

thorough social history of the accused well in advance of trial — was confirmed

by respondent’s own expert witness, retired Judge Parkin, and is consistent with

28



standards referred to by the United States Supreme Court in Wiggins, supra, ___

U.S. at pages ___ [123 S.Ct. at pages 2536-2537] and other cases.

Respondent asserts that the referee failed to note that, although

respondent’s expert, Judge Parkin, testifying on the ultimate question of counsel’s

constitutional adequacy, initially believed that counsel had not provided effective

assistance, he later expressed some ambivalence. It is apparent to this court that

Judge Parkin was ambivalent. Originally, he gave the opinion that Patterson had

not made an informed decision with respect to his penalty phase strategy because

he failed to investigate adequately. Subsequently, Judge Parkin acknowledged

that Patterson had done more than Judge Parkin first believed, having spoken with

petitioner about his background, consulted the 1974 probation report, and

conferred with petitioner’s family and friends concerning potential penalty phase

testimony. This information modified Judge Parkin’s previous opinion to the

extent that “it provided that he had — at least had more information than I thought

he did in reaching the decision not to go forward with the evidence. [¶] I think it

would have been better had he gotten the information from Ohio, and he would

have had probably a much fuller picture. I’m not sure how much he weighed what

he saw in that probation report, but at least he had that information to consider

when he did reach the decision that he did reach.” Judge Parkin still believed,

however, that Patterson, in light of the information available to him, was on notice

that further investigation of petitioner’s social history was necessary, that

minimum standards at the time of trial required preparation well in advance of the

penalty phase and investigation into every aspect of the client’s life, and that

Patterson’s investigation was not conducted in a manner to be expected of a

reasonably competent attorney.

(2)

Our second question asked the referee to determine what information

would have been uncovered by a reasonably adequate investigation.

29



As the evidence at the reference hearing demonstrated, various readily

available official public records confirmed that petitioner was born on

November 20, 1949 in Glendale, Ohio; that he was born out of wedlock; that at

birth he was surrendered by his mother, Margaret, for adoption; that in August

1950 she requested his return to her care but failed to appear to claim him or to

respond to the county welfare board’s communications; that he had been in five

foster homes in his first two and a half years; that after county authorities sought

permanent custody of petitioner, Margaret’s new husband, Edward Lucas,

objected and in July 1952 petitioner was released to Margaret and Edward’s home

in Dayton, Ohio; and that Dayton school officials complained many times to local

juvenile welfare officials that, when petitioner was in first grade in 1955, he

appeared at school beaten black and blue, with welts on his body. School

authorities expelled him from first grade in November 1955 because he was

disruptive and ran away.

These records reflect that, through the auspices of the Montgomery County,

Ohio juvenile dependency court, petitioner received counseling services in 1956

from the Dayton Child Guidance Center, whose counselors believed he should be

removed from his abusive home. Public records indicate that a citizen complaint

regarding the abuse suffered by petitioner was sent to juvenile welfare authorities

in April 1957.

These records also disclose that in June 1957, when petitioner was seven

years of age, his mother brought him to the Montgomery County Children’s

Services Agency, requesting that it take custody of petitioner and reporting that

she could not control him. A report prepared for the purpose of the ensuing

dependency proceeding indicates that he had been beaten severely by his parents.

Dayton Guidance Center psychiatrists and child welfare workers recommended

that petitioner be removed from his home for his own protection. Temporary

30



custody of petitioner as a dependent child was granted to the Montgomery County

Child Welfare Board on September 13, 1957, and he was placed in Shawen Acres,

a home for abused and neglected children, where his family rarely visited him.

His behavior and the recommendation of his psychiatrist caused him to be

transferred (still under the court’s dependency jurisdiction) to St. Michael’s

School for Boys in Pennsylvania in June 1959, but he was asked to leave that

institution in 1961 because of poor behavior. He was returned to his family but

frequently ran away. He was detained in the Juvenile Detention Center in Dayton

as a runaway and “incorrigible.” He returned to his family but was detained again

for theft. In 1962, at the age of 12 years, he was adjudged a delinquent child and

was committed to the Ohio Boys Industrial School, a high security juvenile facility

housing the most serious juvenile offenders. At the age of 14 years he was sent to

California to join his family and shortly thereafter was made a ward of the court

and placed on probation in California for curfew violations. Probation was

revoked because he ran away from home, and he was placed in a juvenile

correctional camp. After running away from the camp, he was placed in a

California Youth Authority (CYA) facility. Upon his release, he suffered

revocation of parole for auto theft and running away from home. Petitioner was

incarcerated at CYA facilities from February to July, 1965, from November 1965

to July 1966, and from December 1966 to December 1967 and from December

1967 to March 1969.

The nature of the abuse referred to in these readily accessible records was

explained by witnesses who lived with or near petitioner when he was between the

ages of four and eight years, and who easily could have been located by defense

counsel. For the most part, these witnesses were members of petitioner’s family

or were related by marriage. In summary, they testified that Edward and Margaret

drank to excess and became physically and verbally abusive to one another and to

31



petitioner when he was a child. Petitioner was treated as an outcast within the

family because he had been born out of wedlock. He frequently was beaten by his

parents. His mother sent him and his younger sister Gwendolyn to live with

Edward’s mother, Bernice Lucas, for long periods. Bernice treated Gwendolyn

well but beat petitioner regularly, taunted him because of the circumstances of his

birth, subjected him to cruel discipline, and failed to feed and clothe him

adequately.

For example, in testimony confirmed in great circumstantial detail by other

contemporaneous witnesses, Helen Garcia testified that as a young adult she spent

a great deal of time with the Lucas family when petitioner was between the ages of

four and eight years, because she was then married to petitioner’s cousin and

resided near petitioner’s grandmother Bernice. Garcia testified that Margaret and

Edward’s marriage was tempestuous and violent and that they engaged in physical

violence in the presence of their children, that Edward was a mean, violent

alcoholic, and that petitioner was taunted and ill-treated because of the

circumstances of his birth. During this period, petitioner lived mostly with

Bernice. Garcia frequently observed petitioner being subjected to beatings by

Margaret, Bernice, and occasionally other relatives. For example, she observed

Margaret beating petitioner with a belt for taking cookies.

Garcia testified that Bernice hated petitioner, beat him, and starved him.

Every time Garcia saw Bernice and petitioner together, Bernice was beating him,

yelling at him, and abusing him as a “bastard.” Sometimes Bernice beat him with

a belt or slipper, and sometimes she kicked him. Bernice required petitioner to

sleep on the floor behind a stove, under a bed, or on bare springs out on the porch

as punishment for bedwetting. Bernice refused to permit him to eat with the rest

of the family and required him to eat his sister’s leftovers. Bernice dressed

petitioner in tattered clothing in both summer and winter.

32



Garcia observed that petitioner avoided and seemed afraid of both Margaret

and Bernice. Garcia observed burns on petitioner’s arm, stripes and bruises on his

back from beatings, and sores on his feet that matched the holes in his shoes; she

also had heard that Bernice had rubbed chili on petitioner’s genitals in response to

a bedwetting incident.

Garcia sometimes provided babysitting for petitioner and observed that he

appeared starved, hoarded food, and expected her to beat him when she found he

had hidden a supply of food. Garcia testified that in contrast to the treatment

given petitioner, his younger half sister Gwendolyn, who also resided with

Bernice, was well treated. In one incident that Garcia recalled from December of

1956, petitioner, then age seven years, appearing at the window of Garcia’s home

early in the morning in thin, ripped clothing, stated that his grandmother had

thrown him out of the house for wetting his bed. He was shivering and his feet

were cracked and bleeding. After fruitless appeals to Margaret, to Garcia’s

husband, and even to Bernice, Garcia telephoned the local child protective

services agency to report petitioner’s situation. She called the agency again a few

months later, in 1957, when she observed a burn on petitioner’s arm. Garcia was

aware that soon thereafter, petitioner was removed from the home and placed in a

home for abused and neglected children, Shawen Acres. He remained in various

institutions, and thereafter Garcia learned that petitioner’s parents and siblings had

left Ohio without him. She saw petitioner again in 1983 at a family wedding. Ms.

Garcia declared: “I recall the treatment of [petitioner] when he was young. What

that kid went through! Larry’s childhood was unbelievable. I think an animal

might have been treated better than he was. If there was ever a case of how you

treat kids when they are little affecting how they are as adults, it is [petitioner’s]

case.” Garcia’s sister, Sylvia Robertson, confirmed many of the same instances of

abuse and neglect reported by Garcia. Robertson considered petitioner’s

33



situation pathetic at the time and observed him eating like a starving animal when

he visited Garcia. Robertson stated that defendant had nothing good in his life as a

young child, and no one to protect him.

Gwendolyn Burgess, petitioner’s younger sister, added that their mother

Margaret shunned petitioner when he was a child, that he began running away at

the age of six years, that Gwendolyn believed petitioner had witnessed his mother

signing him over to juvenile welfare authorities, and that petitioner thereafter lived

in juvenile facilities for much of his childhood. Gwendolyn confirmed that

Bernice kept petitioner under a bed for three days as punishment for bedwetting,

and that petitioner always was blamed in the family when anything went wrong,

while she, Gwendolyn, was favored and treated well. Her father and her maternal

grandfather were alcoholics. Petitioner had a drinking problem before he began to

consume drugs. Gwendolyn confirmed petitioner’s physical and emotional abuse

at the hands of Edward, Margaret, and Bernice. Gwendolyn recalled that when

she and petitioner resided with Bernice as children, Gwendolyn used to bring him

food when he was confined under his bed for bedwetting. Gwendolyn added that

Edward and Margaret engaged in screaming matches and violent altercations in

the presence of the children. When Edward caught petitioner smoking, he forced

petitioner to eat a pack of cigarettes. Edward told her that petitioner’s natural

father had been incarcerated and subsequently was executed.

Accounts of petitioner’s abuse also were confirmed by the deposition

testimony and declaration of his cousins. Richard Welch, a cousin who is two

years older than petitioner and also lived with Bernice during the period referred

to by Garcia, specified that petitioner suffered frequent beatings at the hands of

Bernice, Margaret, and Edward, especially when Edward was intoxicated.

Richard observed Margaret punish petitioner by burning him with a cigarette.

According to Richard, petitioner exhibited fear of his parents as a child.

34



Jacqueline Lamb, petitioner’s older cousin who lived with petitioner at Bernice’s

house when petitioner was a young child, also confirmed in her declaration that

petitioner was treated cruelly as a young child, forced to sleep on the floor behind

the stove, and beaten. She said that Bernice treated petitioner “like a dog” and

that, unlike the other children who resided with her, petitioner had no protector.

When Edward visited he brought treats for Gwendolyn or took her out to eat, but

he only abused petitioner. During her less frequent visits, Margaret pushed

petitioner away from her and cursed him. Jacqueline recounted seeing Bernice

rubbing chili powder on petitioner’s buttocks and genitals to punish him for

bedwetting. Jacqueline saw petitioner later when he was 11 or 12 years of age,

when he was living with his parents, and she observed that he was “thin as a rail”

and covered with bedsores. She stole food to give to him. Another of petitioner’s

cousins, Larry Lambert, who was born in 1936 and resided near petitioner’s

family, stated that he recalled hearing petitioner’s mother Margaret telling

petitioner, when he was a young child, that she wished he were dead and that she

had never wanted him. Margaret punished petitioner’s bedwetting by making him

lie all day in a wet bed and by withholding food. Petitioner had bedsores as a

consequence. Margaret beat petitioner frequently when he was between four and

six years of age. Petitioner was sent to school dressed in filthy clothing and shoes

with holes in them, although the family had enough money for basic purchases.

Similarly, an aunt, Mildred Welch, who was acquainted with petitioner’s mother

Margaret before petitioner was born, testified that Margaret did not want

petitioner. The aunt observed Bernice’s cruelty to petitioner on account of the

circumstances of his birth, saw Bernice whip him regularly, and saw her direct that

petitioner sleep on the floor behind a coal stove. Mildred observed Bernice rub

chili pepper on petitioner’s buttocks and genitals as a punishment for urinating on

himself. When petitioner was a young child and residing with his parents, Mildred

35



saw that petitioner had a long, deep, and infected wound on the back of his head.

Mildred confronted Edward about the injury, and he responded, “By God I beat

the piss out of him! He wouldn’t mind me.” Petitioner always seemed very thin,

looked as if he did not get enough to eat, and begged for food when he visited her

after she moved into her own home.

Connie Cruea, who had been a student teacher in petitioner’s elementary

school in 1956, stated in her declaration that she recalled that at that time,

petitioner was thin and unkempt and came to school bearing bruises.

Dennis Lucas, petitioner’s younger brother, stated in his deposition that

both Margaret’s father and Edward were alcoholics, that petitioner was a

protective, loving older brother (10 years Dennis’s senior), that petitioner’s wife

pressured him into experimenting with cocaine, that drugs changed petitioner

significantly, and that his drug use spiraled very suddenly and his condition

worsened quickly in the month or several weeks before he was arrested for the

murders.

At the evidentiary hearing, petitioner proffered videotaped (and transcribed)

deposition testimony of various witnesses, including psychiatrists and

psychologists who had treated or observed petitioner in various juvenile facilities

and persons who were aware of the abuse that was endemic in the institutions in

which petitioner had been placed as a child.

Dr. Howard Fink, who served as chief psychologist at the Dayton Child

Guidance Center when petitioner was treated there in 1957, testified in his

deposition that records dating from the 1950’s indicated that petitioner’s history

was one of early rejection, abandonment, neglect, and abuse by his family. He

believed that the abuse petitioner had received constituted “the kind of care that

fosters pathology later on.” He confirmed that petitioner had been removed from

the family home because of mistreatment and neglect. Dr. Fink believed that

36



petitioner was so damaged by abuse by the time he was removed from his home at

the age of seven years that it was already too late to help him.

Dr. Daniel Waldstein, a psychologist who treated petitioner at the Dayton

Child Guidance Center when petitioner was nine years of age, testified in his

deposition that children of grossly abusive and neglectful parents were removed

from their homes and sent to Shawen Acres. Petitioner’s mother was extremely

unreliable about visiting petitioner at Shawen Acres.

Dr. Earl Mayo, a Dayton psychologist who worked for the juvenile court,

evaluated petitioner in 1962 and at that time reported evidence of gross neglect

and early maternal rejection and mistreatment. He referred to petitioner’s “life

long pattern of deprivation” and “grossly deprived background” and stated that,

because of this experience, petitioner’s behavior vacillated between extreme

dependency and episodes of paroxysmal aggression and hostility. In 1962, Dr.

Mayo diagnosed petitioner as having a severe “adjustment reaction of childhood”

arising from parental mistreatment and institutional failure.

Dr. Martha Ebrecht, a Dayton psychiatrist who worked for the Dayton

Guidance Center, evaluated petitioner in 1962 and concluded that petitioner had

been beaten and rejected by his parents.

Petitioner’s probation counselor at the Juvenile Detention Center in Dayton,

Darold Askeland, recalled the unusual degree of psychological damage inflicted

on petitioner at a young age. He also recalled seeing petitioner eating like a

“starved animal,” a circumstance Askeland interpreted as an indication of earlier

abuse and neglect. Petitioner’s mother never visited him at the detention center.

Askeland determined that petitioner needed psychiatric treatment in a residential

treatment facility, but he was not admitted to such a center. He presented severe

behavior problems such as running away and stealing, without being mentally ill.

It was this behavior that secured his transfer to the Boys’ Industrial School, a

37



placement for which Askeland considered petitioner to be too young. Askeland

reported that petitioner was focused on gratifying his own needs, did not know or

care about the difference between right and wrong, was impulsive, and could not

tolerate frustration.

Concerning conditions at the institutions in which petitioner had been

confined, a 13-year resident at Shawen Acres, Oran Fisher, who was an older

resident while petitioner was residing there, testified that the place was “mean,”

that the supervisors abused the residents, including Fisher, with grotesque

punishment for trivial offenses or for no offense at all, and that some residents

were subject to sexual abuse. He recounted an appalling tale of extreme cruelty

and abuse on the part of adults who resided with and supervised the children, and

testified that abuse was commonplace, as was sexual abuse of children by older

children. He recalled petitioner as a problem child who would not “go along with

the program” but just wanted to “do what he wanted to do.” Petitioner’s cousin,

Larry Lambert, also stated in his declaration that he had been housed at Shawen

Acres after his mother died, and that it was an unpleasant place where sexual

abuse of children occurred. A former inmate at one of the CYA facilities in

which petitioner had been confined spoke of the abysmal conditions there and of

physical and sexual abuse that was commonplace at that institution during the

period of petitioner’s confinement.

In addition, Dr. Christ George, a former director of education at the Boys’

Industrial School from 1966-1972, testified in his deposition that the facility’s goal

was punishment, not rehabilitation, and that it was a grossly overcrowded

warehouse of children without adequate educational or vocational programs. A

statement by Dr. Clemens Bartollas, who had studied conditions at the Boys’

Industrial School during the 1960’s, indicated that the treatment of inmates was

“repressive,” “brutal,” and “sadistic,” that young “status offenders” were housed

38



with serious criminals, that he knew of instances of sexual abuse, torture, flogging,

and terrorizing of inmates by guards who operated in “goon squads,” and that

there was racially motivated violence against inmates. As a person who was

aware of the conditions at the time petitioner resided at that facility and who had

spent his career beginning in 1969 in the Ohio juvenile justice system, Dr.

Bartollas’s opinion was that an inmate who was 12 or 13 years of age when he

arrived would have a “horrible time” with other inmates and would be terrorized

by staff and inmates alike. There also was evidence that when the Ohio Youth

Services Advisory Board examined conditions at the Boys’ Industrial School in

1964, it reported to the Ohio Governor that conditions there were “deplorable,”

calling it an “overcrowded, human warehouse” without resources for any effort at

rehabilitation.

In addition, various mental health experts testified, on the basis of their

review of the documentary record and their recent evaluations of petitioner, that

the severe abuse and abandonment suffered by petitioner at the hands of his family

caused various forms of psychological damage that affected him in childhood and

adulthood, including exaggerated dependency needs, poor impulse control,

alienation, feelings of worthlessness, and vulnerability to drug and alcohol abuse.

These experts also identified signs of mild brain damage or organic brain

dysfunction and attention deficit disorder.

As to the subject of favorable aspects of petitioner’s character, petitioner’s

employer would have testified that petitioner’s behavior changed radically as he

increasingly came under the influence of drugs, and that he was highly intoxicated

on the evening of the murders. Friends and members of petitioner’s family would

have testified that petitioner had been a good friend, a reliable and kindly brother

and father, a Good Samaritan, and a reliable worker until approximately six

months before the commission of the crimes, when he began to abuse cocaine and

39



amphetamines and entered a downward spiral of mental and physical

disintegration and personality change.

Having reviewed the above evidence, the referee found that credible

evidence in mitigation was “independently available from multiple sources.”

Regarding petitioner’s childhood, the referee declared: “Adequate investigation

would have disclosed the existence of evidence that petitioner was physically and

emotionally abused as a child and spent much of his life in institutions in which he

suffered abuse and neglect. As a result, he developed mental and emotional

disabilities that affected his behavior at the time of the offenses of which he was

convicted.”

The referee found specifically that reasonably adequate investigation would

have disclosed that as a child, petitioner lived in poverty in unsanitary conditions,

that his parents engaged in physical and emotional abuse, and that his stepfather,

Edward Lucas, was a violent alcoholic. The referee concluded that petitioner was

beaten by Edward, Darlene, and Bernice Lucas, that Bernice hated him, that she

forced petitioner “to sleep either on the floor behind the stove or on an outdoor

porch on uncovered bedsprings. [Citation.] As punishment for bedwetting,

[Bernice] rubbed chili peppers on his genitals.” The referee also referred to

evidence reflecting that as a child, “petitioner had whip marks and blisters on his

back from the beatings he received [citation], burns on his body consistent with

having been pushed into a stove [citation], and multiple cigarette burns on his

arms and hands.” The referee also determined that a reasonably competent

investigation would have disclosed that as a child, petitioner was afraid of Darlene

and Bernice, and that he was not given enough food. Furthermore, the referee

found, reasonable investigation would have produced evidence establishing that

petitioner suffered abandonment, severe trauma, and extreme neglect as a child.

As for the effect of this abuse on petitioner, the referee found that reasonable

40



investigation would have produced evidence demonstrating that “[t]here was a

direct connection between the trauma suffered by petitioner as a child and his

development and conduct as an adult.”

Regarding petitioner’s institutionalization, the referee found that he was

housed in Shawen Acres, a home for abused and neglected children. The referee

added that: “Petitioner was physically, sexually, and emotionally abused by his

Shawen Acres cottage parents.” Further, “in 1957 petitioner was a patient at the

Child Guidance Center.” The referee also found that “Petitioner was committed to

the permanent custody of the State of Ohio on June 1962 and placed in the Boys’

Industrial School, a juvenile corrections facility in Lancaster, Ohio.” The referee

added that petitioner was released from the Boys’ Industrial School in 1964 and

was incarcerated in various CYA facilities from 1965 to 1969. In addition, “[t]he

atmosphere at the various institutions in which petitioner was incarcerated is

characterized by intimidation, violence, and sexual and physical abuse. [Citation.]

While housed at [the Youth Authority facility at] Preston, petitioner attempted

suicide. [Citation.]”

The referee found that “a number of witnesses described petitioner as kind

and thoughtful and a good family person whose behavior deteriorated” due to drug

abuse.

Respondent takes exception to a number of the referee’s findings with

respect to the additional evidence that would have been disclosed by an adequate

investigation. Respondent contends that the referee erred in finding that evidence

was available to Patterson indicating that as a small child, petitioner had “whip

marks and blisters on his back from the beatings he had received [citations], burns

on his body consistent with having been pushed into a stove [citations], and

multiple cigarette burns on his arms and hands [citations].” Respondent takes

41



exception “to the extent that Helen Garcia did not know what caused the red marks

and blisters she saw on a single occasion on petitioner’s back.”

The exception is not well taken. Garcia legitimately inferred from her

observation of the many beatings received by petitioner that the source of the

5

marks on his back was a beating. Richard Welch also testified that he observed

petitioner’s mother discipline petitioner by burning his skin with a cigarette.

Respondent also takes exception to the referee’s finding that petitioner

“was physically, sexually, and emotionally abused by his Shawen Acres cottage

parents.” Respondent is correct that, in support of this conclusion, the referee

cited the deposition of Oran Fisher who, although he asserted that many of the

adult supervisors at Shawen Acres were grossly abusive and that he himself had

suffered abuse, did not state that he had seen petitioner being abused. In his

declaration, Larry Lambert also stated he had heard that residents were sexually

abused by Shawen Acres staff, but he also did not recount any incident specifically

involving petitioner. The referee legitimately could infer, however, from Fisher’s

account of the severe abuse meted out to any inmate who did not obey the abusive

adult supervisors at Shawen Acres, that petitioner suffered abuse for his failure to

“go along with the program.”

5

As noted, Garcia stated that she saw Darlene beat petitioner with a belt for

taking cookies, that Bernice hated petitioner and beat him every time Garcia saw
them together, that Bernice used to hit him with a belt, a slipper, a spatula, and
anything she had around, reviling him as a “bastard,” that when petitioner fled to
her home, Garcia saw that he had red stripes in a criss-cross pattern and blisters on
his back from being beaten, that she observed Bernice hit petitioner’s buttocks,
back, legs, and head, that Garcia saw a burn on his arm that she believed was
inflicted on one of the frequent occasions when Bernice beat petitioner while he
was in close proximity to a heating stove, and that Garcia finally reported a burn
she saw on petitioner’s arm to the local child protective services.

42



Respondent takes exception to the finding that the institutions in which

petitioner was incarcerated were characterized by an atmosphere of intimidation,

violence, and sexual abuse. The exception is not well taken. As respondent notes,

Abu Quadir El-Amin, who had been an inmate at a CYA facility where petitioner

was incarcerated, did not observe any person abusing petitioner. The witness

stated, however, that sexual and physical abuse of inmates by other inmates was

common. Documentary evidence of the harsh conditions at various CYA facilities

also was introduced. In addition, as noted, Oran Fisher testified in his deposition

that he had been a resident at Shawen Acres when petitioner was there; that he,

Oran, himself suffered physical, sexual, and emotional abuse at the hands of his

Shawen Acres cottage parents; that it was a “mean place to be”; that he believed

such abuse by adult supervisors to be commonplace; and that older children also

physically and sexually abused younger children there. As has been noted, Larry

Lambert declared he was aware that staff at Shawen Acres had behaved abusively

during the period of petitioner’s residence there. In addition, there was evidence

from Drs. Christ George and Clemens Bartollas regarding the deprivation and

overcrowding that was characteristic of the Boys’ Industrial School when

petitioner was there and of the brutality and sexual abuse visited upon inmates by

staff and other inmates. In addition, there was evidence that the Ohio Youth

Services Advisory Board described conditions at the Boys’ Industrial School as

deplorable during the period of petitioner’s incarceration there. Respondent is

correct, however, that the weight of such evidence, were it admitted at a penalty

phase proceeding, would be diminished substantially if the proponent could not

establish personal experience of abuse or hardship.

Respondent takes exception to the finding that petitioner attempted suicide

while at the Preston CYA facility. We agree that the finding is not based on

substantial evidence.

43



Respondent also takes exception to the referee’s finding that numerous

witnesses at the evidentiary hearing described petitioner as “kind and thoughtful

and a good family person whose behavior deteriorated after he began using

drugs.” Respondent objects that this finding fails to reflect the witnesses’

unawareness of petitioner’s criminal history or their decision “to minimize

petitioner’s selfish conduct.” It is true that the testimony of these witnesses might

carry less weight than it otherwise would, had the witnesses not been ignorant of

the charged offenses or of petitioner’s many other crimes. It is true, nonetheless,

as the referee found, that there were a number of witnesses who could have

testified about petitioner’s kindness and other good qualities. Such evidence, of

course, could have opened the door to very damaging rebuttal.

(3)

Our third question asked whether competent counsel, after

conducting an adequate investigation, would have introduced evidence in

mitigation at the penalty phase of the trial, especially considering the potential for

rebuttal evidence that reasonably would have been available to the prosecution.

With respect to the question whether counsel reasonably might decide not

to present evidence of childhood abuse, institutional failure, and petitioner’s

positive qualities because of the potential for rebuttal evidence, as the referee

found there was additional rebuttal evidence in the form of petitioner’s prior

convictions, including a Wisconsin conviction for robbery and escape of which the

prosecutor was unaware. The former prosecutor who had represented the state at

petitioner’s trial declared that if petitioner had introduced evidence at the penalty

phase suggesting he had been victimized as a child, the prosecutor would have

sought to introduce evidence demonstrating how petitioner had victimized others

throughout his life. He also would have proffered evidence of petitioner’s petty

theft and marijuana offenses to rebut any evidence that petitioner was a nice

person.

44



The potential rebuttal also included evidence that from a very early age,

petitioner demonstrated lack of conscience, a propensity for violence, and defiance

of authority that did not respond to psychotherapy and that he committed criminal

offenses as a juvenile, was subject to temper tantrums and uncontrollable rages as

a child, was destructive, and sought only to please himself. Documentary

evidence was admitted showing that petitioner’s mother placed defendant with the

Montgomery County Children’s services in 1957 because she could not handle

him. He was expelled from first grade in part because of his temper and his

violence toward other children. As a young child he stole, ran away, and set fires.

A psychologist’s report filed with the Montgomery County juvenile welfare

agency in 1962 described petitioner as the product of a grossly deprived

background, but reported he was subject to “paroxysmal aggression.” Treating

psychiatrists labeled petitioner a “psychopath” in 1959 and a “sociopath” in 1962.

Also of note is that, despite the evidence of petitioner’s mother’s cruelty to him

when he was a child, it appears that petitioner and his family were residing with

her at the time of the murders.

With respect to the question of what rebuttal evidence reasonably would

have been available to the prosecution, the referee found as follows:

“Petitioner had been convicted in 1966 for grand theft auto, burglary, and

carrying a concealed weapon; in 1969 for burglary; for carrying a concealed

weapon; in 1973 for passing bad checks, auto tampering and possession of a

controlled substance; and in 1979 for obstruction of justice. He had been arrested

in 1970 for petty theft and in 1983 for battery on his wife. [Citation.] He had also

been convicted for assault with a deadly weapon, resisting arrest, and battery on a

police officer. [Citation.]” The referee added that evidence concerning

petitioner’s childhood experience might have led to the admission of evidence of

petitioner’s 1973 robbery and escape convictions in Wisconsin.

45



The referee also found that rebuttal evidence could have included evidence

that “[p]etitioner struck his wife twice over the course of their marriage.” Further,

“[I]n the months immediately preceding the murder of the Marriotts, petitioner

took his wife’s welfare check, a camera, and two rings in order to buy drugs.”

Finally, the referee found there was potential rebuttal evidence that “[p]etitioner

was diagnosed at the approximate age of 10 by Dr. James Cunningham, medical

director of the Dayton Child Guidance Center, as a ‘psychopath’ or ‘sociopath.’ ”

The referee concluded that “[r]easonably competent attorneys acting as

diligent advocates would have introduced the evidence in mitigation that an

adequate investigation would have disclosed. Trial counsel’s decision not to

introduce evidence in mitigation had no sound strategic or tactical basis.” Our

own view, however, is that much of the rebuttal evidence could cause competent

counsel not to present evidence of institutional failure and positive character traits,

although we do not believe such evidence would be admissible to rebut

petitioner’s experience of rejection and abuse at the hands of his family.

Respondent takes exception to the referee’s conclusions, contending that

Patterson’s strategy was reasonable in light of the information he had available to

him, that Patterson intended to present witnesses to offer testimony concerning

petitioner’s humanity and his drug use, but that when petitioner and his wife

refused to testify, Patterson reasonably decided — with petitioner’s

concurrence — not to present evidence.

The question we posed, however, was whether, assuming trial counsel’s

investigation was inadequate (as assumed in our question No. 2), competent

counsel would have introduced the additional information that would have been

disclosed by an adequate investigation.

Respondent takes exception to the referee’s findings with respect to the

rebuttal evidence that reasonably would have been available to the prosecution.

46



Respondent correctly notes that petitioner’s Wisconsin convictions occurred in

1976, and that the convictions were for escape and robbery. Respondent also is

correct in observing that the 1974 probation report indicates petitioner not only

was arrested but pleaded guilty to petty theft in 1970. In addition, respondent is

correct with regard to the age at which petitioner was diagnosed as a psychopath

or sociopath, that a 1962 report noted that petitioner was 12 years of age when

diagnosed as antisocial and as “sociopathic personality [a]nti-social type.”

As respondent also states, the referee’s report omitted some potential

rebuttal evidence. We agree with respondent that there was evidence that “tended

to show that petitioner was institutionalized because he was a deeply-disturbed

child who set fires, attacked children and adults, was stealing from stores,

constantly ran away from home and school [and institutional placements], and was

generally uncontrollable.” As respondent points out and our review of the record

confirms, as a child petitioner did receive some psychiatric treatment after the age

of seven years but failed to respond, was subject to temper tantrums and rages, did

not respond to efforts to teach him self-control, and was considered lacking in

conscience and beyond help by some mental health professionals.

In addition, as respondent notes, Judge John Watson, formerly a deputy

district attorney and the prosecutor at petitioner’s trial, testified that if defense

counsel had presented evidence to demonstrate that petitioner had been the victim

of childhood abuse, the prosecution would have sought to introduce evidence

regarding petitioner’s early antisocial behavior. Judge Watson also testified that if

petitioner had introduced such evidence of childhood abuse, and assuming that at

the time of trial he possessed or could have secured copies of petitioner’s

probation reports, the prosecution would have used these reports in rebuttal

because they contained an indication that petitioner had informed his probation

officer that he had a “normal family life.”

47



B

The general principles that are applicable to petitioner’s claim that he

received constitutionally inadequate representation are settled. As we recently

have summarized: “Petitioner had the right to the effective assistance of counsel at

trial, and thus was ‘entitled to the reasonably competent assistance of an attorney

acting as his diligent and conscientious advocate.’ [Citation.] A defendant

claiming ineffective representation bears the burden of proving by a

preponderance of the evidence both (1) that counsel’s performance was deficient,

i.e., that the representation fell below an objective standard of reasonableness, and

(2) that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result would have been more favorable to defendant, i.e., a probability

sufficient to undermine confidence in the outcome. [Citations.]” (In re Ross,

supra, 10 Cal.4th at p. 201; see Strickland v. Washington (1984) 466 U.S. 668,

688, 694 (Strickland).)

C

With respect to the question of what constitutes an “objective standard of

reasonableness” for attorney performance, the United States Supreme Court

recently explained: “We have declined to articulate specific guidelines for

appropriate attorney conduct and instead have emphasized that ‘[t]he proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.’ ” (Wiggins, supra, ___ U.S. at p. ___ [123 S.Ct. at p. 2535],

italics added.) But “before counsel undertakes to act, or not to act, counsel must

make a rational and informed decision on strategy and tactics founded upon

adequate investigation and preparation.” (In re Marquez (1992) 1 Cal.4th 584,

602.)

Although “a court must indulge a ‘strong presumption’ that counsel’s

conduct falls within the wide range of reasonable professional assistance” (Bell v.

48



Cone (2002) 535 U.S. 685, 702), nonetheless, counsel’s alleged tactical decisions

must be subjected to “meaningful scrutiny.” (In re Avena (1996) 12 Cal.4th 694,

722.) Tactical decisions must be informed, so that before counsel acts, he or she

“ ‘will make a rational and informed decision on strategy and tactics founded on

adequate investigation and preparation.’ ” (Ibid.; see also In re Jones (1996) 13

Cal.4th 552, 564-565.)

As the United States Supreme Court has instructed: “strategic choices made

after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words, counsel has a

duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness

in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” (Strickland, supra, 466 U.S. at pp. 690-691.)

In determining whether counsel’s performance in petitioner’s case was

constitutionally deficient, we are guided principally by the high court’s opinion in

Wiggins, supra, ___ U.S. ___ [123 S.Ct. 2527]. In that case, after a Maryland

state court trial, Wiggins was convicted of robbing an elderly woman and

drowning her in the bathtub of her apartment. The case proceeded to a sentencing

hearing before a jury, and defense counsel moved to bifurcate the hearing in order

to demonstrate, first, that the defendant was not personally responsible for the

victim’s death. If they were unsuccessful, defense counsel proposed, then they

would present evidence in mitigation. Counsel did not wish to “dilute” the

evidence related to the issue of culpability by introducing the mitigation evidence.

49



The trial court denied the motion for bifurcation and counsel decided not to

present evidence in mitigation.

Defense counsel informed the trial court what evidence in mitigation they

would have presented had the court agreed to bifurcation. Counsel “explained that

they would have introduced psychological reports and expert testimony

demonstrating Wiggins’ limited intellectual capacities and childlike emotional

state on the one hand, and the absence of aggressive patterns in his behavior, his

capacity for empathy, and his desire to function in the world on the other.

[Citation.] At no point did [counsel] proffer any evidence of petitioner’s life

history or family background.” (Wiggins, supra, ___ U.S. at p. ___ [123 S.Ct. at

p. 2532].)

The defendant challenged the conviction on the ground that he had received

ineffective assistance of counsel. The high court explained that its focus was not

on whether counsel should have presented a case in mitigation, but on “whether

the investigation supporting counsel’s decision not to introduce mitigating

evidence of [the defendant’s] background was itself reasonable.” (Wiggins, supra,

___ U.S. at p. ___ [123 S.Ct. at p. 2536], italics omitted.)

In reviewing the adequacy of defense counsel’s legal representation at the

penalty phase, the high court explained that defense counsel had turned to three

sources for investigation. First, a psychologist tested the defendant and identified

some cognitive difficulties and evidence of personality disorder. The

psychologist’s report did not reveal anything about the defendant’s life history.

Second, counsel possessed a presentence investigation report prepared by the

division of probation and parole. This report contained a “one-page account of

[the defendant’s] ‘personal history’ noting his ‘misery as a youth,’ quoting his

description of his own background as ‘ “disgusting,” ’ and observing that he spent

most of his life in foster care.” (Wiggins, supra, ___ U.S. at p. ___ [123 S.Ct. at

50



p. 2536].) Third, defense counsel also secured Baltimore City Social Services

Department records of the defendant’s various foster care placements.

The United States Supreme Court determined that counsel’s decision not to

expand the investigation into the defendant’s life history beyond what had been

discovered in the probation report and the social services report “fell short of the

professional standards that prevailed in Maryland in 1989.” (Wiggins, supra, ___

U.S. at p. ___ [123 S.Ct. at p. 2536].) “[S]tandard practice in Maryland in capital

cases at the time of Wiggins’ trial included the preparation of a social history

report.” (Ibid.) “Counsel’s conduct similarly fell short of the standards for capital

defense work articulated by the American Bar Association (ABA) — standards to

which we long have referred as ‘guides to determining what is reasonable.’

[Citations.] The ABA Guidelines provide that investigation into mitigating

evidence ‘should comprise efforts to discover all reasonably available mitigating

evidence . . . .’ [Citation.] Despite these well-defined norms, however, counsel

abandoned their investigation of petitioner’s background after having acquired

only rudimentary knowledge of his history from a narrow set of sources. Cf.

[ABA Guidelines] 11.8.6, p. 133 (noting that among the topics counsel should

consider presenting are medical history, educational history, . . . family and social

history, [and] prior . . . juvenile correctional experience . . . .)” (Wiggins, supra,

___ U.S. at pp. ___ [123 S.Ct. at pp. 2536-2537].)

In Wiggins, supra, ___ U.S. at page ___ [123 S. Ct. at page 2537], the

limited investigation into potential evidence in mitigation not only was

unreasonable under then-current general standards for investigation, it “was also

unreasonable in light of what counsel actually discovered” in the defendant’s

background. The department of social services report revealed that the

defendant’s mother was an alcoholic, that defendant “was shuttled from foster

home to foster home and displayed some emotional difficulties while there; he had

51



frequent, lengthy absences from school; and, on at least one occasion, his mother

left him and his siblings alone for days without food.” (Ibid.) The United States

Supreme Court determined that “any reasonably competent attorney would have

realized that pursuing these leads was necessary to making an informed choice

among possible defenses . . . .” (Ibid.)

The high court also pointed to the efforts counsel did undertake at the

penalty phase proceedings. The record disclosed that counsel’s “failure to

investigate thoroughly resulted from inattention, not reasoned strategic judgment.

Counsel sought, until the day before sentencing, to have the proceedings

bifurcated into a retrial of guilt and a mitigation stage. . . . In other words, prior to

sentencing, counsel never actually abandoned the possibility that they would

present a mitigation defense. Until the court denied their motion [for bifurcation],

then, they had every reason to develop the most powerful mitigation case

possible.” (Wiggins, supra, ___ U.S. at pp. ___ [123 S.Ct. at pp. 2537-2538].)

The high court also rejected the idea propounded by the Maryland Court of

Appeals that “because counsel had some information with respect to petitioner’s

background — the information in the PSI [probation report] and the DSS records

[social service agency records] — they were in a position to make a tactical choice

not to present a mitigation defense. [Citation.] In assessing the reasonableness of

an attorney’s investigation, however, a court must consider not only the quantum

of evidence already known to counsel, but also whether the known evidence

would lead a reasonable attorney to investigate further. Even assuming [counsel]

limited the scope of their investigation for strategic reasons, Strickland does not

establish that a cursory investigation automatically justifies a tactical decision with

respect to sentencing strategy. Rather, a reviewing court must consider the

reasonableness of the investigation said to support that strategy.” (Wiggins, supra,

___ U.S. at p. ___ [123 S.Ct. at p. 2538].)

52



The United States Supreme Court declared that, in light of what was

revealed in the probation and social services agency reports, “counsel chose to

abandon their investigation at an unreasonable juncture, making a fully informed

decision with respect to sentencing strategy impossible.” (Wiggins, supra, ___

U.S. at p. ___ [123 S.Ct. at p. 2538].) The court concluded: “Counsel’s

investigation into Wiggins’ background did not reflect reasonable professional

judgment. Their decision to end their investigation when they did was neither

consistent with the professional standards that prevailed in 1989, nor reasonable in

light of the evidence counsel uncovered in the social services records — evidence

that would have led a reasonably competent attorney to investigate further.

Counsel’s pursuit of bifurcation until the eve of sentencing and their partial

presentation of a mitigation case suggest that their incomplete investigation was

the result of inattention, not reasoned strategic judgment. In deferring to counsel’s

decision not to pursue a mitigation case despite their unreasonable investigation,

the Maryland Court of Appeals unreasonably applied Strickland.” (Id. at pp. ___

[123 S.Ct. at pp. 2541-2542].)

As in the Wiggins case, our primary focus is not on evaluating whether, in

light of the evidence in their possession, counsel properly decided not to present

evidence in mitigation. “Rather, we focus on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence of [petitioner’s]

background was itself reasonable.” (Wiggins, supra, ___ U.S. at p. ___ [123 S.Ct.

at p. 2536].) After careful scrutiny of the record, we conclude counsel’s

representation fell below an objective standard of reasonableness.

Lead counsel’s failure to investigate petitioner’s early social history was

not consistent with established norms prevailing in California at the time of trial,

norms that directed counsel in death penalty cases to conduct a reasonably

thorough independent investigation of the defendant’s social history — as agreed

53



by respondent’s own expert and as reflected in the ABA standards relied upon by

the court in the Wiggins case. Patterson also fell short of professional norms in his

failure to proceed in a timely fashion with his investigation; this failure left him

without recourse when his penalty phase strategy was upset by the refusal of

petitioner and his wife to testify. Furthermore, defense counsel acted

unreasonably in failing to conduct a thorough investigation of facts relating to

petitioner’s social history, considering the suggestive evidence in their possession,

including a probation report and the statements of petitioner’s sister, both of which

should have alerted counsel to the need for further investigation. In addition,

counsel’s failure to pursue suggestive information in Dr. Vicary’s report regarding

petitioner’s history also appears inconsistent with then-existing standards, which

emphasized the importance of uncovering evidence of childhood trauma.

We also examine the reasonableness of the investigation in light of defense

counsel’s actual strategy, as the Wiggins case directs us to do. As in Wiggins, it

does not appear that counsel’s failure to investigate was the result of a “reasoned

strategic judgment.” (Wiggins, supra, ___ U.S. at p. ___ [123 S.Ct. at p. 2537].)

Patterson’s strategy for the penalty phase appears to have been confused. The

prime focus of the intended defense seems to have been petitioner’s potential

testimony regarding his difficulties with drug abuse, but that evidence already had

been presented to the jury during the guilt phase. Counsel apparently lacked any

evidence to explain the genesis of petitioner’s problems with drugs. Patterson

testified at the reference hearing that he intended to demonstrate petitioner’s

humanity and problems with substance abuse to the jury, relying primarily upon

the testimony of petitioner and his wife, but on the other hand it also appears that

petitioner’s wife made it clear from the beginning of the case that she did not want

to testify on petitioner’s behalf and that she also had rather damning things to say

to counsel about petitioner.

54



Patterson’s assertion that he intended to have petitioner inform the jury of

his troubled childhood is surprising, because counsel seemed to have had little

notion of the nature of the events that had occurred in petitioner’s childhood and

had not conducted an investigation sufficient to determine whether such testimony

would invite damning rebuttal evidence. Patterson’s testimony indicates that he

had not rejected social history as an element of the case in mitigation, a

circumstance rendering even more inexplicable his failure to thoroughly

investigate petitioner’s social history. At the same time, Patterson’s testimony

indicates he did not regard evidence of child abuse or alcoholism in the family as

particularly mitigating — an apparently idiosyncratic view not commonly shared

by contemporary capital defense attorneys. Finally, Patterson’s investigation took

place at a very late stage of the proceedings, and as noted above its combined

tardiness and superficiality rendered Patterson unable to respond to the apparently

unexpected failure of his penalty phase strategy.

Patterson sought to explain his lack of investigation, stating his view that

evidence concerning the abuse suffered by petitioner as a child would not make

any difference or would not be helpful, because it would lead to the admission of

evidence that petitioner had begun his criminal career as a small child — that he

was a “career criminal.” Counsel asserted that he made a tactical decision not to

pursue this line of inquiry, but a tactical decision may be unreasonable if based

upon inadequate investigation. (In re Jones, supra, 13 Cal.4th at pp. 564-565.)

Counsel have an obligation to “pursue diligently those leads indicating the

existence of evidence favorable to the defense.” (In re Neely (1993) 6 Cal.4th

901, 919.)

Although “[i]n some cases, counsel may reasonably decide not to put on

mitigating evidence, . . . to make that decision counsel must understand what

mitigating evidence is available and what aggravating evidence, if any, might be

55



admissible in rebuttal.” (In re Marquez, supra, 1 Cal.4th at p. 606.) As we stated

in the Marquez case, in which we found counsel’s cursory investigation of the

defendant’s background and family in Mexico to be constitutionally inadequate, a

thorough investigation is the foundation for a sound trial strategy. In that case we

agreed with the referee, who rejected counsel’s claim that he had curtailed

investigation because “ominous signs” caused him to fear that further information

could harm the defendant’s case; we also agreed that “reasonably competent

counsel would not have stopped at the first sign that an investigation might

produce harmful evidence. [Reasonably competent] [c]ounsel would continue

until counsel learned the nature and strength of that evidence and could weigh it

against the mitigating evidence counsel had discovered.” (Id. at pp. 605-606.)

The evidence received at the reference hearing in the present case indicates that

counsel did not have a clear or reasonably complete understanding of what

mitigating evidence was available or what evidence might be admitted to rebut

such mitigating evidence, and that counsel curtailed their investigation out of a

vague fear that it might disclose damaging evidence. In so proceeding, counsel

failed to perform in a reasonably competent manner.

In In re Jackson (1992) 3 Cal.4th 578, we found counsel’s investigation

inadequate, when, after consultation with the defendant’s father and his

grandmother, counsel learned the defendant had had a difficult childhood and may

have been abused, but decided to investigate no further because he feared any

mitigating evidence would subject the defendant to aggravating rebuttal evidence

of prior violent conduct. (Id. at pp. 610-612.) This approach, based upon such a

vague fear, was in substance the one adopted by counsel in the present case.

The high court’s decision in Williams v. Taylor (2000) 529 U.S. 362

(Williams) confirms our view that counsel’s tardy and incomplete investigation

was constitutionally inadequate. In that case, the defendant confessed he had

56



killed the victim with a mattock when the victim refused a loan of a few dollars.

At the sentencing hearing in the defendant’s capital trial, aggravating evidence

indicated he had suffered prior convictions for armed robbery and burglary and

had committed two violent assaults subsequent to the capital murder. In one, the

defendant started a fire in a home and then attacked and robbed the elderly victim.

In another, the defendant committed a brutal assault on an older woman who was

left, as a consequence, in a “vegetative state.” (Id. at p. 368.) In mitigation,

counsel presented the testimony of the defendant’s mother, two neighbors who

stated defendant was not a violent person, and a psychiatrist who recounted the

circumstances of defendant’s confession and defendant’s claim to have removed

the bullets from his gun in order to avoid hurting a robbery victim. In closing

argument, defense counsel stressed that the defendant had turned himself in.

Defense counsel’s performance was constitutionally inadequate, the high

court determined, because counsel failed to discover and present evidence that the

defendant had been subjected to abandonment and abuse as a child and that he was

borderline mentally retarded. Defense counsel, like counsel in the present case,

had been tardy in preparing for the sentencing phase of trial and, because of a

misunderstanding of the law, “[t]hey failed to conduct an investigation that would

have uncovered extensive records graphically describing [the defendant’s]

nightmarish childhood . . . . Had they done so, the jury would have learned that

[the defendant’s] parents had been imprisoned for the criminal neglect of [the

defendant] and his siblings, that [the defendant] had been severely and repeatedly

beaten by his father, that he had been committed to the custody of the social

services bureau for two years . . . and then . . . returned to his parents’ custody.”

(Williams, supra, 529 U.S. at p. 395, fn. omitted.)

The high court acknowledged that some of the additional evidence was not

favorable. The defendant had been committed to juvenile institutions for such

57



crimes as aiding and abetting larceny and breaking and entering. But “the failure

to introduce the comparatively voluminous amount of evidence that did speak in

[the defendant’s] favor was not justified by a tactical decision to focus on [the

defendant’s] voluntary confession. Whether or not those omissions were

sufficiently prejudicial to have affected the outcome of sentencing, they clearly

demonstrate that trial counsel did not fulfill their obligation to conduct a thorough

investigation of the defendant’s background. See 1 ABA Standards for Criminal

Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980).” (Williams, supra, 529 U.S. at

p. 396.)

As the court in Williams, supra, 529 U.S. 362 pointed out, long-standing

professional standards direct that investigation into the background of persons

charged with capital crimes ordinarily be undertaken, for the purpose of the

penalty phase of trial. (Id. at p. 396.) Patterson’s view that evidence of childhood

abuse and institutionalization would be unhelpful seems to demonstrate a lack of

appreciation of the purpose of the penalty proceedings. We have quoted with

approval the comment of a federal court that “ ‘[t]he major requirement of the

penalty phase of a trial is that the sentence be individualized by focusing on the

particularized characteristics of the individual. . . . [T]rial counsel failed to

provide the jury with the information needed to properly focus on the

particularized characteristics of this petitioner.’ ” (In re Marquez, supra, 1 Cal.4th

at pp. 607-608, quoting Armstrong v. Dugger (11th Cir. 1987) 833 F.2d 1430,

1433.)

Although respondent points to defense counsel’s asserted tactical decision

that, in light of the brutality of the capital murders, there was little mitigating value

in evidence that petitioner’s stepfather had been an alcoholic or that as a child

petitioner had been punished for bedwetting by being forced to stay under a bed

for three days, it is evident that Patterson was not sufficiently informed concerning

58



the circumstances of petitioner’s childhood to make the “tactical” determination

6

that he did.

In sum, we believe it would be as unreasonable to approve the superficial

and tardy investigation into petitioner’s social history that occurred in the present

case as it would have been to accept the limited investigations conducted in

Wiggins, supra, ___ U.S. ___ [123 S.Ct. 2527]; Williams, supra, 529 U.S. 362; In

re Jackson, supra, 3 Cal.4th 578; or In re Marquez, supra, 1 Cal.4th 584.

Counsel’s failure to investigate adequately cannot be excused under contemporary

professional standards, and indications in the material available to counsel that

powerful mitigation evidence of childhood trauma could be uncovered made it all

the more unreasonable to conduct such an incomplete investigation into

petitioner’s social history. Counsel’s stated intention to elicit from petitioner,

himself, evidence concerning his childhood provides no excuse for counsel’s

failure to investigate; indeed, it demonstrates the unreasonableness of counsel’s

failure to investigate.

Respondent objects that petitioner’s asserted failure to cooperate with

counsel excused counsel’s failure to conduct any significant investigation of

petitioner’s background and social history. Respondent points out that in his first

interview with Dr. Vicary, petitioner did not disclose that he had been abandoned

and abused as a child. This nondisclosure did not constitute failure to cooperate,

however, particularly in the absence of any indication that Dr. Vicary pressed

6

We do not find merit in petitioner’s assertion that failure to investigate and

present all reasonably available mitigating evidence constitutes ineffective
assistance of counsel per se. Contrary to petitioner’s claim, the high court
continues to call for a case-by-case analysis applying the Strickland test.
(Williams, supra, 529 U.S. at pp. 391, 395.)

59



petitioner to reveal such evidence. Counsel had other indications, including

statements in the probation report and statements made by petitioner’s sister

Gwendolyn, that petitioner’s childhood experiences had been unusually harsh.

Petitioner did not direct counsel not to contact petitioner’s relatives and friends,

nor did he direct counsel not to investigate the circumstances of petitioner’s

childhood in Ohio. Furthermore, contemporary professional standards required

counsel to conduct an adequate investigation of petitioner’s background even if

petitioner himself failed to come forward with evidence of his difficult history. It

was counsel, not petitioner, who should have decided what information was

relevant to the case in mitigation.

We reject respondent’s assertion that petitioner’s failure to inform defense

counsel that he, petitioner, had been abused as a child constitutes a lack of

cooperation excusing defense counsel’s perfunctory investigation. As noted

above, it was counsel’s obligation to initiate investigation into petitioner’s

background. Further, the accused would not necessarily understand the

significance of the information that would be uncovered by such an investigation.

We observe that Patterson did not press petitioner to reveal information

concerning such matters as child abuse — indeed, he apparently viewed such

information as having minimal use at the penalty phase.

Respondent also contends that Patterson’s failure to investigate petitioner’s

background may be excused because petitioner lied to counsel and to investigator

Lupori about his, petitioner’s, involvement in the crimes. We fail to comprehend

how this circumstance would excuse counsel from seeking to discover potential

mitigating evidence for the purpose of the penalty phase of trial. Respondent also

relies upon the failure of petitioner’s mother to mention that she had abused her

son and abandoned him — but she was hardly a likely source of such information,

and in any event there were other indications of a history of abuse that should have

60



put counsel on notice that further investigation was needed, including the 1974

probation report and the statements of petitioner’s sister, Gwendolyn.

Respondent also asserts that counsel had a tactical reason not to inquire into

petitioner’s experience in juvenile facilities in Ohio. Respondent points to

counsel’s fear that evidence of juvenile offenses might cause the jury to view him

as a “career criminal.” But counsel did not gather enough information to make an

informed assessment — Patterson did not know whether petitioner had been in a

juvenile facility as a dependent and neglected child or as a criminal offender. The

statement of petitioner’s sister Gwendolyn that petitioner had been in and out of

juvenile facilities from the age of seven years should have alerted counsel to the

strong likelihood that petitioner had been sheltered as an abused and neglected

child — a clear source of mitigating evidence. Nor did counsel possess sufficient

information to make a reasonable determination whether evidence of petitioner’s

experience as a child would subject him to damaging rebuttal, or whether the

weight of such mitigating evidence outweighed the potential for harmful rebuttal.

Moreover, to the extent counsel relied upon petitioner to testify regarding

mitigating circumstances in his background, counsel’s strategy was imprudent in

the absence of a more thorough investigation of that background.

Respondent contends that counsel’s investigation was adequate in light of

his strategy to demonstrate petitioner’s “human face” and to stress that petitioner

committed the crimes during a period of escalating drug abuse and intoxication.

As respondent concedes, however, this strategy unraveled when counsel received

the reports of his three experts and when petitioner and his wife refused to testify.

Counsel had not investigated sufficiently to be able to formulate and mount an

alternative case in mitigation. Further, additional investigation into petitioner’s

background would have been consistent with counsel’s asserted penalty phase

strategy, especially because it could have explained the genesis of petitioner’s

61



drug dependency. The background evidence of which counsel was aware should

have suggested that further investigation could produce evidence that would be

strongly supportive of both strategies, without exposing petitioner to the dangers

of cross-examination.

Respondent claims that counsel “did enough investigation of petitioner’s

past to know that petitioner’s history of violent criminality extended throughout

his life. He weighed the evidence of petitioner’s juvenile history against the

heinous nature of the crimes he was charged with, and made a strategic decision

that the juvenile evidence was too trivial and remote, and tended to depict

petitioner as a career criminal.” If counsel believed that petitioner’s history of

violent criminality extended throughout his life, his belief was incorrect —

petitioner’s early experience in juvenile facilities was as an abused and neglected

child of the age of seven years, not as a violent criminal. Counsel did not have

sufficient information concerning the mitigating aspects of petitioner’s juvenile

history to weigh it against the aggravating circumstances of the capital murders

and petitioner’s record of criminal convictions, and thus did not investigate

sufficiently to make an informed and reasonable tactical decision.

D

To establish prejudice, a “defendant must show that 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.” (Strickland, supra, 466 U.S.

at p. 694.)

In the present case, copious, reliable evidence was readily available to show

that petitioner had been abandoned as an infant and brutally rejected as a child,

that he had been the focus of intense and cruel emotional and physical abuse

during his formative years, that he had been rejected by his mother and relegated

62



to the local juvenile social services agency by her when he was only seven years

of age, that she and other members of the family failed to visit him with any

frequency or regularity during his lengthy periods of out-of-home placement at a

home for abused children that itself was marked by harsh conditions and abusive

staff, and that at the age of 12 years he had been incarcerated for minor offenses

and for status offenses (such as being incorrigible and being a runaway) in a high

security prison that offered deplorable conditions and housed the state’s most

serious and violent juvenile offenders. This mitigating evidence was weighty —

particularly the evidence of the rejection and extraordinary abuse petitioner

suffered at the hands of his family when he was a young child. (See, e.g., In re

Ross, supra, 10 Cal.4th at p. 205; In re Marquez, supra 1 Cal.4th at pp. 607-609.)

Such evidence may be the basis for a jury’s determination that a defendant’s

relative moral culpability is less than would be suggested solely by reliance upon

the crimes of which he stands convicted and the other aggravating evidence.

Had the jurors been provided with such evidence, they would not have been

left to consider inexplicable acts of violence, but would have had some basis for

understanding how it was that petitioner became the violent murderer he was

shown to be at the guilt phase. There exists genuine pathos in the considerable

evidence that petitioner was a person who was put up for adoption at birth and

reclaimed after five foster home placements at the age of two and a half years, and

that as a small child, petitioner was singled out for severe beatings by his mother,

his stepfather, and his grandmother, humiliated by being excluded from family

meals, fed and clothed inadequately, subjected to bizarre discipline, and finally

rejected and excluded from the family altogether and relinquished to the

questionable care of state institutions for neglected children at the age of seven

years. Such evidence naturally would have given rise to greater understanding, if

not also to sympathy. In the words of Dr. Fink (the psychologist who treated

63



petitioner as a child), laypersons long have understood, without relying upon

psychological theory, that “as the twig is bent, so grows the tree.”

We recognize the aggravated nature of the crimes, namely, the brutal and

calculating attack on two frail, helpless elderly neighbors who could not have

resisted the burglary and theft committed by petitioner, his flight, and his

unsuccessful attempt to excuse himself with claims that he had been in a dream

state. The circumstances of the crimes and of petitioner’s prior attack on the

young babysitter demonstrate deep moral culpability.

In addition, we acknowledge that there was a potential for the admission of

powerful rebuttal evidence if testimony concerning petitioner’s good character had

been introduced, possibly opening the door to the introduction of evidence of

petitioner’s record of repeated juvenile offenses, poor behavior in juvenile

facilities, and “revolving door” incarcerations. Evidence of petitioner’s good

relationships with various family members and friends, as well as his reputation as

a good family man who loved his wife and children, could have been rebutted with

evidence that he had struck his wife on two occasions during disputes, that he stole

her welfare checks in order to purchase drugs, and that this conduct on his part

was consistent with a lifetime pattern of taking what he wanted, lack of

conscience, and violence when crossed. Good character evidence also potentially

could have led to the discovery of adult robbery and escape convictions of which

the prosecution had been unaware. A jury might have relied upon these acts as

constituting a basis for deciding that society should be guaranteed protection

against petitioner, especially in light of the evidence establishing that from his

early childhood on, petitioner habitually ran away from home and escaped from

juvenile placements. If petitioner had produced evidence that various juvenile

institutions had failed to provide adequate services to him, the prosecution could

have countered with evidence that from the time of his early childhood, efforts had

64



been made to provide petitioner with therapy, but that he could not be helped and

did not change — indeed, that he suffered from antisocial personality disorder or

had been diagnosed as a psychopath at an early age and ultimately was considered

untreatable.

Respondent has offered no theory, however, under which the compelling

and disturbing evidence that petitioner was abandoned in infancy and, after being

reclaimed, was beaten and subjected to grotesque abuse by his mother, stepfather,

and grandmother in early childhood, legitimately could have opened the door to

damaging rebuttal evidence. “[T]he scope of rebuttal must be specific, and

evidence presented or argued as rebuttal must relate directly to a particular

incident or character trait defendant offers in his own behalf.” (People v.

Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24.) Evidence that a defendant suffered

abuse in childhood generally does not open the door to evidence of defendant’s

prior crimes or other misconduct. (In re Jackson, supra, 3 Cal.4th at pp. 613-614;

People v. Ramirez (1990) 50 Cal.3d 1158, 1191-1193.) We do not believe that

evidence of specific acts of abuse inflicted on petitioner in early childhood would

permit rebuttal with evidence of his subsequent misconduct or his psychiatric

diagnosis in later childhood. And evidence and argument intended to demonstrate

that petitioner justifiably was abused in the manner he was, because he was a bad

boy at the age of five or six years, would be unlikely to carry much weight in the

prosecution’s favor with the jury.

The United States Supreme Court in Wiggins described the process of

assessing prejudice as follows: “In assessing prejudice, we reweigh the evidence

in aggravation against the totality of available mitigating evidence.” (Wiggins,

supra, ___ U.S. at p. ___ [123 S.Ct. at p. 2542].) In Wiggins, the high court

determined that counsel’s failure to perform an adequate investigation into

potential evidence in mitigation was prejudicial in light of the available evidence

65



of privation and abuse suffered by the petitioner during his first six years of life,

gross abuse he suffered in later foster care and juvenile incarcerations, and his

homelessness and reduced mental capacity. The court declared that this was “the

kind of troubled history we have declared relevant to assessing a defendant’s

moral culpability” (ibid.), and added the observation that persons in our society

believe that “ ‘ “defendants who commit criminal acts that are attributable to a

disadvantaged background . . . may be less culpable than defendants who have no

such excuse.” ’ ” (Ibid.) The high court also found that, evaluating “the totality of

the evidence — ‘both that adduced at trial, and the evidence adduced in the habeas

proceeding[s]’ ” (id. at p. ___ [123 S.Ct. at p. 2543], italics omitted), there was a

reasonable probability that the jury would have reached a different verdict had it

been aware of the mitigating evidence, “[g]iven both the nature and the extent of

the abuse petitioner suffered.” (Id. at p. ___ [123 S.Ct. at p. 2542].) The court

explained that although it may have been “strategically defensible” for counsel to

emphasize evidence that the petitioner did not kill the victim with his own hand,

such a strategy could have been combined with a strategy of demonstrating the

abuse that the petitioner had suffered in his youth. (Ibid.) The jury was aware of

only one factor in mitigation — that Wiggins did not have any prior convictions.

“Had the jury been able to place petitioner’s excruciating life history on the

mitigation side of the scale, there is a reasonable probability that at least one juror

would have struck a different balance.” (Id. at p. ___ [123 S.Ct. at p. 2543].)

On balance, we believe the same result should obtain in the present case.

Our review of the record indicates that the quality of the readily available

mitigating evidence relating to childhood abandonment and abuse was high and

that its nature was forceful. In support of the conclusion that counsel’s omissions

were prejudicial, we turn again to the high court’s decision in Williams, supra, 529

U.S. 362. There, the court found to be prejudicial trial counsel’s failure to

66



investigate and present evidence regarding the defendant’s dire experience of

abuse as a child, even in light of evidence of the defendant’s multiple prior violent

crimes against vulnerable victims, and even though counsel did present some

mitigating evidence. Although in that case the prosecution presented evidence in

aggravation that strongly suggested that the defendant would present a serious risk

of future violent crime, “the graphic description of [the defendant’s] childhood,

filled with abuse and privation, or the reality that he was ‘borderline mentally

retarded,’ might well have influenced the jury’s appraisal of his moral culpability.

[Citation.] . . . . Mitigating evidence unrelated to dangerousness may alter the

jury’s selection of penalty even if it does not undermine or rebut the prosecution’s

death eligibility case.” (Id. at p. 398.) The same considerations support a

conclusion that counsel’s omissions in the present case were prejudicial.

We also are assisted in assessing prejudice by comparing this case to In re

Marquez, supra, 1 Cal.4th 585, in which we granted relief based upon counsel’s

failure to investigate and present evidence in mitigation at the penalty phase of

trial. Counsel contacted the defendant’s parents and sisters, but did not investigate

his character and background for the purpose of presenting evidence in mitigation

at the penalty phase. The only mitigating evidence offered to the jury was brief

guilt phase testimony describing the poverty of the Mexican village in which

Marquez was raised. We found prejudice in the circumstance that substantial

mitigating evidence, not cumulative to any evidence received at the guilt phase,

was available and would have afforded the jury a view of petitioner’s childhood

and adolescence in Mexico, his positive qualities, and the affectionate regard in

which he was held by friends and relatives.

In Marquez we characterized the aggravating evidence as relatively spare.

Although the defendant stood convicted of first and second degree murders in

incidents two years apart, as well as burglary and robbery, there was no proof of

67



prior convictions or uncharged crimes. We concluded that it was reasonably

probable a jury would believe life in prison without possibility of parole was a

sufficient punishment. We said: “We cannot put confidence in the verdict of a

jury that decided the case without hearing the substantial mitigating evidence that

competent counsel could and should have presented.” (In re Marquez, supra, 1

Cal.4th at p. 609.)

Although the aggravating evidence in the present case cannot be called

spare, given the brutality of the charged offenses, the vulnerability of the victims,

and the existence of a prior violent assault, petitioner has submitted mitigating

evidence in multiple categories: childhood hardship and abuse, early

institutionalization, and positive human qualities. The readily available mitigating

evidence of childhood abandonment and abuse undeniably is particularly

significant. As noted, the United States Supreme Court has recognized that

evidence of matters such as turbulent family background and childhood abuse is of

particular relevance to a jury’s consideration of whether to impose the death

penalty. (See e.g., Wiggins, supra, ___ U.S. ___ [123 S. Ct. at p. 2542]; Eddings

v. Oklahoma (1982) 455 U.S. 104, 107, 109-113; see also Burger v. Kemp (1987)
483 U.S. 776, 789, fn. 7, and cases cited.)

We must inquire whether there is a reasonable probability — defined as a

probability “sufficient to undermine confidence in the outcome” (Strickland,

supra, 466 U.S. at p. 694) — that the evidence of petitioner’s childhood of

deprivation and abuse would have produced a different verdict. We believe such a

reasonable probability exists. A significant potential exists that this evidence

would produce sympathy and compassion in members of the jury and lead one or

more to a more merciful decision. The potential that the evidence would reduce

petitioner’s moral culpability in the eyes of members of the jury also is significant,

even weighed against potential rebuttal evidence. We conclude that petitioner has

68



carried his burden of establishing that there is a reasonable probability that the

verdict would have been different had counsel presented the evidence that would

have been developed by a reasonably competent investigation into petitioner’s

background.

Respondent objects that prejudice has not been established, because defense

counsel would not have presented the evidence concerning petitioner’s

background that was disclosed during the habeas corpus proceeding. Respondent

points out that Patterson asserted that once petitioner and his wife decided not to

testify, Patterson made a strategic choice that it would be best not to present any

evidence in mitigation. A similar claim was rejected as unpersuasive in Wiggins,

supra, ___ U.S. ___ [123 S.Ct. 2527], because defense counsel’s strategy at the

penalty phase was unreasonable in light of counsel’s ignorance of the potential

evidence in mitigation. As the high court stated, “counsel were not in a position to

make a reasonable strategic choice as to whether to focus on Wiggins’ direct

responsibility, the sordid details of his life history, or both, because the

investigation supporting their choice was unreasonable.” (Id. at p. ___ [123 S.Ct.

at p. 2543].) Here, as in Wiggins, it is evident that defense counsel had not

determined that evidence of petitioner’s childhood should be excluded entirely.

Patterson stated that he intended to have petitioner himself testify regarding such

matters. Nor does petitioner’s concurrence in counsel’s “strategic” decision not to

present evidence at the penalty phase change our conclusion with respect to

prejudice, in light of counsel’s failure to conduct a reasonably adequate

investigation in advance of settling upon a strategy and advising their client of that

strategy.

IV

For the foregoing reasons, we conclude that, although petitioner has failed

to establish juror misconduct that would warrant setting aside the verdicts

69



rendered at the guilt phase of the proceedings, the evidence presented at the

reference hearing demonstrates, as claimed by petitioner, that his trial counsel’s

failure to perform an adequate investigation of available evidence in mitigation for

possible use at the penalty phase constitutes performance that falls below an

objective standard of reasonableness. This failure was prejudicial. Accordingly,

7

we grant the petition with respect to the latter claim.

Our order to show cause was limited to the issues discussed in this opinion,

and petitioner’s other claims will be resolved by separate order, as is our practice.

(See In re Scott, supra, 29 Cal.4th 783.)

DISPOSITION

The petition for writ of habeas corpus is granted insofar as it is based upon

counsel’s constitutionally inadequate representation of petitioner at the penalty

phase of the trial, and the judgment of the Los Angeles County Superior Court in

People v. Larry Douglas Lucas, No. A-471259, therefore is vacated insofar as it

imposes a sentence of death. Upon finality of our opinion, the Clerk of the

Supreme Court shall remit a certified copy of the opinion and order to the Los

Angeles County Superior Court for filing, and respondent Attorney General shall

serve another copy thereof on the prosecuting attorney in conformity with Penal

7

Respondent complains that the referee abused his discretion by denying

counsel for respondent informal access to petitioner’s trial counsel prior to the
reference hearing even though respondent already had discussed the case with
them and had secured declarations from them. We do not reach the issue of the
referee’s asserted abuse of discretion because, even assuming an abuse of
discretion, respondent has failed to establish prejudice.

70



Code section 1382, subdivision (a)(2). (See In re Jones, supra, 13 Cal.4th at

p. 588.)

GEORGE, C.J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.












71



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Lucas on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S050142
Date Filed: July 26, 2004
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________




Attorneys for Appellant:



Cooley Godward Castro Huddleston & Tatum, Cooley Godward, Paul A. Renne, Steven L. Friedlander,
Eric R. Fleming, Robert M. Galvan, Noel C. Johnson, Tracy S. Kaplan, Jeffrey T. Lindgren, Julie C.
Lythcott-Haims, Charles M. Schaible, David E. Garrett, Sarah L. Kowalski and Whitty Somvichian for
Petitioner Larry Douglas Lucas.

__________________________________________________________________________________

Attorneys for Respondent:



Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief
Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Kenneth C. Byrne,
Robert S. Henry, Susan Lee Frierson and Mary Sanchez, Deputy Attorneys General, for Respondent State
of California.





72



Counsel who argued in Supreme Court (not intended for publication with opinion):

Steven L. Friedlander
Cooley Godward
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
(415) 693-2000

Mary Sanchez
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2368

73

Opinion Information
Date:Docket Number:
Mon, 07/26/2004S050142

Parties
1Lucas, Larry Douglas (Petitioner)
San Quentin State Prison
Represented by Paul A. Renne
Cooley Godward Castro et al.
One Maritime Plaza, 20th Floor
San Francisco, CA

2Lucas, Larry Douglas (Petitioner)
San Quentin State Prison
Represented by Steven L. Friedlander
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA

3Department Of Corrections (Non-Title Respondent)
Represented by Attorney General - Los Angeles Office
Mary E. Sanchez, Deputy Attorney General
300 South Spring St., Suite 500
Los Angeles, CA


Disposition
Jul 26 2004Opinion: H.C. granted, judgment vacated, remanded

Dockets
Nov 21 1995Petition for writ of (AA-related) Habeas Corpus filed
  (190 Pp.)
Nov 21 1995Filed:
  2 Vols. of Exhibits in support of Petn.
Dec 11 1995Informal response requested
  Letter sent to respondent requesting informal response (Rule 60); due 1-10-96. Any reply due within 20 days of service & filing of response.
Jan 4 1996Application for Extension of Time filed
  To file Informal Response.
Jan 5 1996Extension of Time application Granted
  To 3-11-96 To file Informal Response.
Mar 11 1996Informal Response filed (AA)
 
Mar 25 1996Application for Extension of Time filed
  To file reply To Informal Response.
Mar 26 1996Extension of Time application Granted
  To 5-6-96 To file reply To Informal Response.
May 6 1996Reply to Informal Response filed (AA)
  117 pp. excluding Exhibit
Apr 30 1997Order to show cause issued
  The director of The Dept. of corrections Is Ordered to Show Cause in this Ct., when The Matter Is Placed on Calendar, Why The Relief Prayed for Should not be granted (1) on the Ground that Petnr received Ineffective Assistance of Counsel At the Penalty Phase of the Trial, as Alleged in Petnr's Petn for Writ of H.C., claims C, D, & H, and (2) on the Ground of Jury Misconduct At the Guilt Phase of the Trial, as Alleged in Petnr's Petn for Writ of H.C., Claim S. (See People V. Miranda (1987) 44 Cal.3d 57, 119, Fn. 37.) the Written return Is to be Served & filed in this Ct. on or Before 5-30-97. Votes: George, C.J., Mosk, Kennard, Werdegar & Brown, J.J.
May 29 1997Application for Extension of Time filed
  To file return To Osc.
May 29 1997Extension of Time application Granted
  To 7-29-97 To file Return.
Jul 22 1997Application for Extension of Time filed
  To file return To Osc.
Jul 23 1997Extension of Time application Granted
  To 9-29-97 To file return To Osc.
Sep 23 1997Application for Extension of Time filed
  To file return To Osc.
Sep 24 1997Extension of Time application Granted
  To 11-13-97 To file return To Osc.
Nov 10 1997Application for Extension of Time filed
  To file return To Osc.
Nov 12 1997Extension of Time application Granted
  To 12-15-97 To file return To Osc.
Dec 10 1997Application for Extension of Time filed
  To file return To Osc.
Dec 15 1997Extension of Time application Granted
  To 1-14-98 To file return To Osc.
Jan 9 1998Application for Extension of Time filed
  To file return To OSC
Jan 14 1998Extension of Time application Granted
  To January 29,1998 To file return To OSC
Jan 29 1998Written return filed
  (98 Pp. Excluding Exhibits).
Feb 23 1998Application for Extension of Time filed
  By Petnr to file Petnr's Traverse
Feb 27 1998Extension of Time application Granted
  To 5-1-98 To file Traverse.
Apr 9 1998Application for Extension of Time filed
  To file Traverse.
Apr 15 1998Extension of Time application Granted
  To 7-1-98 To file Traverse.
May 22 1998Note:
  H.C. Funds request filed this Date Under A.A. No. S004788.
Jun 11 1998Application for Extension of Time filed
  To file Traverse.
Jun 16 1998Extension of Time application Granted
  To 8-31-98 To file Petitioner's Traverse To return To OSC
Aug 20 1998Application for Extension of Time filed
  To file Traverse.
Aug 24 1998Extension of Time application Granted
  To 9-30-98 To file Petnr's Traverse To the return To the OSC
Sep 30 1998Traverse to return filed
  (182 Pp.)
Sep 30 1998Filed:
  One Vol. of Exhibits to Traverse.
Jun 16 1999Reference hearing ordered
  In the Matter of Larry Douglas Lucas on Habeas Corpus, S050142 (Superior Court of Los Angeles Co., No.A-471259, John A. Torribio, Judge) Good Cause appearing, it Is Ordered that the Presiding Judge of the L.A. County Superior Court Shall Select A Judge of that Court to Sit as A Referee In this Proceeding and that the Court Shall Promptly Notify this Crt. of the Referee Selected. After appointment by this Court, the Referee,After Proper Notice to the parties, Is directed to Hold an Evidentiary Hearing and to Make Findings Upon the Following Questions: (1) What Actions did Petitioner's Trial Attorneys James E. Patterson and Richard A. LA Pan Take to Investigate Potential Evidence in Mitigation for The Purpose of The Penalty Phase of Trial? What were The Results of The Investigation? Was that Investigation Conducted in A Manner to be Expected Of Reasonably Competent Attorneys Acting as Diligent Advocates? If Not, in What Respects Was it Inadequate? (2)If Trial Counsel's Investigation Was Inadequate, What Additional Information would an Adequate Investigation have Disclosed? (3) After Conducting an Adequate Investigation of the Of the Circumstances in Mitigation Of Penalty, would Reasonably Competent Attorneys Acting as Diligent Advocates have Introduced Evidence in Mitigation At the Penalty Phase of the Trial? What Rebuttal Evidence Reasonably would have been Available to the Prosecution? (4) During Guilt Phase Deliberations,What did Juror Kath Say with Respect to His own Drug Use and His Resulting opinion Regarding Petitioner's Defense,and Under What Circumstances and in Whose Hearing did He Make Any Such Statement? it Is further Ordered that the Referee Prepare and Submit to this Court A Report of the Proceedings Conducted Pursuant to this appointment, of the Evidence Adduced, & of the Findings of Fact Made.
Jul 14 1999Referee appointed
  Hon. Patrick Cowenberg of the Los Angeles County Superior Court appointed to serve as the referee.
Sep 27 1999Motion filed
  By Resp to Clarify the Scope of Evidentiary Hrg.
Sep 29 1999Filed:
  Amended Proof of Service to motion to Clarify Scope of Evidentiary Hearing.
Oct 8 1999Filed:
  Petitioner's Memorandum of Pts. and Auths. in Opposition to Resp's motion for Clarification.
Nov 22 1999Motion filed
  By Resp. for Expedited Ruling to Lift Order denying Counsel for Resp the Right to Interview Petnr's Trial Counsel.
Nov 23 1999Order filed:
  Resp's motion for Clarification of the Scope of the Reference Hearing, filed 9/27/99, Is denied.
Dec 1 1999Received letter from:
  Petnr, dated 11-30-99, Regarding Resp's motion for Expedited Ruling Etc. Counsel intends to file Opposition no Later Than 12-7-99.
Dec 6 1999Received letter from:
  Resp, dated 12-3-99, in response to Petnr's letter of 11-30-99.
Dec 7 1999Filed:
  Petnr's Memo of Pts & Auths in Opposition to motion for Expedited Ruling Etc.
Jan 14 2000Received letter from:
  AG dated 1-14 Re: Recent Decision by the 4th Dist which Is Relevant to Resp's Pending motion for Expeditied Ruling.
Jan 25 2000Order filed:
  Resp's motion entitled A motion "to Lift the Order denying Counsel for Resp the Right to Interview Petitioner's Trial Counsel" Is denied without Prejudice to Raising the issue in this Court After the Referee Submits His Report.
Feb 9 2000Note:
  H.C. Funds request filed Under Related H.C. No. S004788.
Apr 26 2000Note:
  Order filed in No. S004788 Re: Related H.C. Funds Request.
Jun 15 2001Referee's report filed
  "Findings of Fact and Conclusions of Law."
Jun 15 2001Letter sent to:
  counsel: parties are invited to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 7-16-2001. Responses, if any, should be served and filed 30 days thereafter.
Jul 3 2001Application for Extension of Time filed
  by resp to file exceptions to report of referee and brief on the merits. (1st request)
Jul 5 2001Extension of Time application Granted
  to resp to 8-15-2001 to file exceptions to the report of referee and brief on the merits.
Aug 13 2001Application for Extension of Time filed
  by resp to file exceptions to report of referee and brief on the merits. (2nd request)
Aug 15 2001Extension of Time application Granted
  to the parties to 8-27-2001 to file exceptions to the report of the referee and briefs on the merits.
Aug 24 2001Exceptions/briefing filed re referee's report
  Respondent's Brief on the Merits (78 Pp.)
Aug 27 2001Exceptions/briefing filed re referee's report
  Petitioner's brief on the merits. (30 Pp.)
Aug 27 2001Exceptions/briefing filed re referee's report
  Petitioner's response to the referee's findings of fact. (59 Pp.)
Aug 27 2001Filed:
  Suppl. declaration of service for petnr.'s brief on the merits and response to referee's findings of fact.
Sep 4 2001Application for Extension of Time filed
  By petnr. to file opposing brief. (1st request)
Sep 13 2001Extension of Time application Granted
  To 10/26/2001 to file petnr.'s response to resp.'s exceptions to referee's report and brief on the merits.
Sep 19 2001Application for Extension of Time filed
  to file response to petnr.'s exceptions to the referee's report. (1st request)
Sep 26 2001Extension of Time application Granted
  to 10/26/2001 to resp. to file response to petnr.'s exceptions to referee's report and brief on merits.
Sep 28 2001Filed:
  record from evidentiary hearing. (includes 16 vols. R.T. (1,199 pp.); two superior court evidentiary hearing files and two boxes of exhibits)
Oct 25 2001Response brief re referee's report (awaiting more)
  [respondent's - 16 pp.]
Oct 26 2001Response brief re referee's report (fully briefed)
  "Petitioner's Answering Brief". (48 pp.)
Apr 5 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 24, 2004, in San Francisco, or for the June calendar, to be held the week of June 1 in Los Angeles.
Apr 28 2004Case ordered on calendar
  5-26-04, S.F. @ 9:00 a.m.
May 13 2004Filed letter from:
  respondent, dated 5/13/2004, re additional authorities.
May 14 2004Filed:
  Petitioner's submission of additional authorities.
May 17 2004Filed:
  (supplemental) proof of service of petitioner's submission of additional authorities.
May 17 2004Filed:
  corrected proof of service of petitioner's submission of additonal authorities.
May 18 2004Filed:
  letter from attorney Renne, dated 5-18-2004, regarding attorney Steven Friedlander presenting oral argument on behalf of petitioner.
May 26 2004Cause argued and submitted
 
Jul 26 2004Opinion filed: H.C. granted; judgment vacated
  Upon finality of our opinion, the Clerk of the Supreme Court shall remit a certified copy of the opinion and order to the Los Angeles County Superior Court for filing, and respondent Attorney General shall serve another copy thereof on the prosecuting attorney in conformity with Penal Code Section 1382, subdivision (a)(2). Majority Opinion by George, CJ., ----- Joined by Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Aug 4 2004Received:
  Letter from Supervising Deputy Attorney General Mary Sanchez, dated 8/2/2004, requesting that the names of the "Attorneys for Respondent" on pp. 72 of Slip Opinion include the following names: Robert R. Anderson, Chief Asst. Atty. Gen., Pamela C. Hamanaka, Sr. Asst. Atty. Gen., and John R. Gorey, Dep. Atty. Gen.
Aug 26 2004Letter sent to:
  counsel advising that the opinion filed on 7-26-2004 is now final.
Sep 1 2004Order filed: remaining habeas corpus issues denied
  Except as ordered by this court in our opinion filed July 26, 2004, the petition for writ of habeas corpus is denied as follows: Claims A, F, G, J, K, L, T, W, Z, AA, and AB, to the extent they are directed at the guilt phase of trial, are denied on the merits. That portion of claim M asserting that admission of photographs into evidence at the guilt phase of trial was a violation of Evidence Code section 352 and of the constitutional right to due process of law is rejected because it was raised and rejected on direct appeal. (In re Waltreus (1965) 62 Cal.2d 218, 225; In re Harris (1993) 5 Cal.4th 813, 829-841.) In all other respects pertinent to the guilt phase, the claim is rejected because it could have been, but was not, raised on direct appeal. (In re Dixon (1953) 41 Cal.2d 756, 759; In re Harris, supra, 5 Cal.4th at pp. 825, fn. 38, 829-841.) The claim also is denied on the merits. That portion of claim N asserting that a violation of petitioner's Sixth and Fourteenth Amendment rights occurred at the guilt phase is rejected because it was raised and rejected on direct appeal. (In re Waltreus, supra, 62 Cal.2d at p. 225; In re Harris, supra, 5 Cal.4th at pp. 829-841.) The remaining elements of this claim are rejected because they could have been, but were not, raised on direct appeal. (In re Dixon, supra, 41 Cal.2d at p. 759; In re Harris, supra, 5 Cal.4th at pp. 825, fn. 38, 829-841.) The claim also is denied on the merits. Except to the extent it alleges ineffective assistance of counsel during voir dire and to the extent it claims error at the guilt phase, claim P is rejected because it was raised and rejected on direct appeal. (In re Waltreus, supra, 62 Cal.2d at p. 225; In re Harris, supra, 5 Cal.4th at pp. 829-841.) The claim also is denied on the merits. Claim AC, to the extent it refers to claims that were raised and rejected on direct appeal, is barred by In re Waltreus, supra, 62 Cal.2d at page 225. (See also In re Harris, supra, 5 Cal.4th at pp. 829-841.) It also is denied on the merits. In light of this court's judgment dated July 26, 2004, vacating petitioner's death judgment, all remaining claims and subclaims are denied as moot. Brown, J., would deny the petition solely on the merits.

Briefs
Jan 29 1998Written return filed
 
Sep 30 1998Traverse to return filed
 
Oct 26 2001Response brief re referee's report (fully briefed)
 
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