Stanford Law School - Robert Crown Law Library

IN THE SUPREME COURT OF
CALIFORNIA
In re JARVIS J. MASTERS
on Habeas Corpus.
S130495
Marin County Superior Court
10467
August 12, 2019
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
Justice Liu filed a concurring opinion in which Justice Cuéllar
concurred.

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In re MASTERS
S130495
Opinion of the Court by Liu, J.
A jury convicted petitioner Jarvis J. Masters of the first
degree murder of Sergeant Dean Burchfield, a correctional
officer at San Quentin State Prison (Pen. Code, §§ 187, subd. (a),
189; further undesignated statutory references are to the Penal
Code), and conspiracy to commit murder and to commit assault
on correctional staff (§§ 182, 4501). The jury found true the
special circumstance allegation that the murder involved the
knowing and intentional killing of a peace officer engaged in the
performance of his duties (§ 190.2, subd. (a)(7)). The jury
returned a verdict of death, and the trial court sentenced
Masters to death for the murder and to life with the possibility
of parole for the conspiracy. On direct appeal, we affirmed
Masters’s convictions and sentence. (People v. Masters (2016
62 Cal.4th 1019 (Masters).
Masters’s codefendants, Andre Johnson and Lawrence
Woodard, also were convicted of Burchfield’s murder, and they
were sentenced to life imprisonment without possibility of
parole. The Court of Appeal affirmed their convictions and
sentences. (People v. Johnson (1993) 19 Cal.App.4th 778.
In 2005, while his appeal was pending, Masters filed a
petition in this court seeking a writ of habeas corpus. Having
found the petition stated a prima facie case for relief on several
claims, we issued an order to show cause why relief should not
be granted on a subset of the claims raised. After considering
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the return and traverse, we appointed a referee, whom we
directed to take evidence and make certain findings of fact.
Following an evidentiary hearing, the referee filed a report with
this court, and the parties filed their exceptions to it.
We accept most of the referee’s report and findings as
supported by substantial evidence and discharge the order to
show cause.
I. BACKGROUND
Many of the facts of the crime and proceedings in the trial
court that are relevant to Masters’s petition for writ of habeas
corpus are set forth in our opinion on appeal. (Masters, supra,
62 Cal.4th at pp. 1026–1041.) We summarize those facts here.
Masters, Woodard, and other members of the Black
Guerilla Family (BGF) gang were housed in the Carson section
of San Quentin State Prison. According to BGF member Rufus
Willis, the prosecution’s main witness, Masters suggested to
him, Woodard, and other BGF members that they attack prison
guards. Masters, Woodard, and others decided that Sergeant
Dean Burchfield would be the first target of the plot and that
Johnson was to stab him with a prisoner-made weapon. Masters
was to obtain a piece of metal from another BGF member,
sharpen it, and pass it to Johnson. Masters also was to arrange
for an inmate to signal when Burchfield was approaching the
second tier of cells. Johnson, who was housed on the second tier,
was to stab Burchfield when he came to Johnson’s cell. After
the assault, Johnson was to pass the weapon to another BGF
member, who would dispose of it.
On June 8, 1985, Burchfield was stabbed outside
Johnson’s cell during his nightly rounds; he later died of a single
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chest wound. At the time of the assault, Masters was housed on
the fourth tier of cells.
After the murder occurred, Willis tried to contact prison
officials with an offer to provide information in exchange for
release from prison. Charles Numark, an investigator from the
Marin County District Attorney’s Office, initially suggested that
Willis would be released from prison if he cooperated with the
investigation. Specifically, Numark offered to help Willis secure
release on parole if he testified. But the prosecutors, Deputy
District Attorneys Edward Berberian and Paula Kamena, told
Willis he would not be released from prison if he testified against
Masters. Rather, in exchange for Willis’s testimony, they
offered to notify the parole board of his assistance; told Willis he
would be granted immunity for the crimes he had committed in
prison, including his participation in Burchfield’s murder; and
said he would be moved to an out-of-state prison for his
protection. Willis accepted the offer.
Willis gave prison officials several handwritten notes
concerning the murder. Willis testified, and a handwriting
expert confirmed, that at least some of the notes were in
Masters’s handwriting. Willis also asked Masters to write a
report about the murder, which he apparently did. Masters’s
report implicated himself, Johnson, and others in Burchfield’s
murder. In a series of notes written to Willis, Johnson
implicated himself in the murder.
At trial, Masters attacked Willis’s testimony. While in
prison, Willis had committed and ordered the stabbings of
several inmates, distributed illegal drugs, and extorted prison
staff. Masters also presented evidence suggesting that Willis
was angry with the BGF and had planned the attack on
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Burchfield but set up BGF members to be blamed for the
murder.
Another BGF member, Bobby Evans, also testified against
Johnson, Masters, and Woodard. After Burchfield was
murdered, Johnson, Masters, and Woodard were transferred to
the Adjustment Center, the section of the prison where Evans
was housed. According to Evans, each of them separately told
Evans about their respective actions in the assault. Those
accounts generally were consistent with Willis’s testimony.
Specifically, Evans testified that Masters had been transferred
to the Adjustment Center “around” August 1985 and told him
“around” September that he voted in favor of killing Burchfield.
At trial, Masters attacked Evans’s credibility by
presenting evidence of his extensive criminal history. Evans
had been convicted of four burglaries and an attempted robbery,
had stabbed numerous inmates, and had supervised the BGF’s
street crimes. Masters also presented evidence that Evans was
testifying for the prosecution to reduce his sentence in his own
criminal proceedings. During the guilt phase, Evans admitted
that while on parole, he had pleaded guilty to attempted robbery
and was awaiting sentencing in Alameda County. During the
penalty phase, Evans testified that he had been hired on several
occasions to shoot people and had shot six people, though none
died.
Unlike Willis, however, Evans did not testify under a
grant of immunity. Rather, after Evans had pleaded guilty, he
contacted James Hahn, a parole agent for the then-Department
of Corrections (now Department of Corrections and
Rehabilitation), and offered to disclose information in exchange
for protection from the BGF. Hahn made no guarantees but said
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he might be able to do a favor for Evans “sometime down the
line.” According to Evans, before Masters’s trial, he had
provided information to Hahn on only one other occasion.
Evans testified that in an effort to reduce the amount of
time he would serve in state prison, he wanted to spend as much
time as possible before sentencing in local custody. Evans’s
sentencing hearing was repeatedly postponed. During the guilt
phase deliberations, Masters learned that after Evans testified,
Evans had been granted probation at his sentencing hearing.
Hahn testified about actions he took on Evans’s behalf. He
spoke to Evans around 10 times between June 1989 and October
30, 1989, the date Evans first testified in Masters’s case. In
June, Evans told Hahn that he was facing prison time after
pleading guilty in Alameda County to attempted robbery and
that he did not want to return to prison because the BGF had
threatened to kill him. Hahn told Evans he would “take care” of
Evans’s safety and security but could not make any promises
regarding Evans’s Alameda County case or that Evans would
receive any benefit for providing information. Hahn also told
Evans that if he did have to return to prison, Hahn would try to
arrange it so Evans could serve his sentence in another state.
Hahn also said he would try to place Evans and his family in a
witness relocation program. Alameda County prosecutors
testified that at Hahn’s behest they twice requested that
Evans’s sentencing hearing be postponed.
During the penalty phase, the jury learned that an
inmate, David Jackson, was stabbed to death on an exercise
yard at San Quentin. According to Johnnie Hoze, a BGF
member, Masters told him that Masters stabbed Jackson.
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II. HABEAS CORPUS PROCEEDINGS
Masters filed a petition for writ of habeas corpus raising
numerous issues. We found the petition stated a prima facie
case for relief as to some claims that asserted his innocence or
challenged the veracity of the evidence presented at trial, and
we ordered the Director of Corrections and Rehabilitation (now
the Secretary of the Department of Corrections and
Rehabilitation) to show cause why relief should not be granted
because “(1) material false evidence was admitted at the guilt
phase of his trial; (2) newly discovered evidence casts
fundamental doubt on the prosecution’s guilt-phase case; (3
[Masters]’s trial was fundamentally unfair because prosecution
witness Rufus [Willis’s] testimony was unreliable due to
improper coercion by the prosecution[;] (4) the prosecution
violated Brady v. Maryland (1963) 373 U.S. 83 by failing to
disclose the promises of leniency to prosecution witness Bobby
Evans and other facts bearing on [Evans’s] credibility that have
come to light after the judgment was imposed[;] (5) the
prosecution knowingly presented the false testimony of Bobby
Evans[;] (6) [Masters]’s trial was fundamentally unfair because
Bobby [Evans’s] testimony was unreliable due to improper
coercion by the prosecution[;] (7) material false evidence — the
testimony of [Johnnie] Hoze — was admitted at the penalty
phase regarding [Masters]’s participation in the murder of
David Jackson; and (8) newly discovered evidence regarding
Hoze’s testimony casts fundamental doubt on the accuracy and
reliability of the penalty-phase proceedings . . . .”
After considering the return and traverse, we appointed a
referee to answer these questions: (1) “Was false evidence
regarding [Masters]’s role in the charged offenses admitted at
the guilt phase of [Masters]’s trial? If so, what was that
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evidence?”; (2) “Is there newly discovered, credible evidence
indicative of [Masters]’s not having been a participant in the
charged offenses? If so, what is that evidence?”; (3) “What, if
any, promises or threats were made to guilt phase prosecution
witness Rufus Willis by District Attorney Investigator Charles
Numark or Deputy District Attorneys Edward Berberian or
Paula Kamena? Was Willis’s trial testimony affected by any
such promises or threats, and, if so, how?”; (4) “Were there
promises, threats or facts concerning guilt phase prosecution
witness Bobby Evans’s relationship with law enforcement
agencies of which Deputy District Attorneys Berberian and
Kamena were, or should have been, aware, but that were not
disclosed to the defense? If so, what are those promises, threats
or facts?”; (5) “Did Deputy District Attorneys Berberian and
Kamena knowingly present false testimony by Bobby Evans? If
so, what was that testimony?”; (6) “What, if any, promises or
threats were made to Bobby Evans by District Attorney
Investigator Numark, Department of Corrections Investigator
James Hahn, or Deputy District Attorneys Berberian and
Kamena? Was Evans’s trial testimony affected by any such
promises or threats, and, if so, how?”; (7) “Did penalty phase
prosecution witness [Johnnie] Hoze provide false testimony
regarding [Masters]’s involvement in the murder of inmate
David Jackson? If so, what was that false testimony?”
At the reference hearing, several BGF members testified,
and other BGF members’ statements were introduced into
evidence. One of the prosecutors from Masters’s trial and
various law enforcement officials testified, as did Masters’s
investigators and trial counsel. Two additional witnesses
testified as experts.
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Two former San Francisco police officers testified about
the investigation of the 1988 killing of James Beasley. The
officers testified that Evans, a BGF member and a key
prosecution witness, was a possible suspect in Beasley’s killing,
but they had never contacted him. They denied forgoing
investigating Evans in exchange for his testimony at Masters’s
trial.
James Hahn had worked for what is now the Department
of Corrections and Rehabilitation. Hahn identified and tracked
gang members, including parolees. Evans was among the gang
members whom Hahn tracked. Prior to Masters’s trial, Evans
had provided Hahn with information on multiple occasions, but
most of it was of little value. Hahn also arranged for Evans to
work for other law enforcement agencies as an informant, and
Evans often was paid for his efforts. The testimony of two
former Oakland police officers generally corroborated the pre-
existing, ongoing working relationship between Evans and
Hahn. Hahn believed that Evans was a “professional liar,” as
he had provided inaccurate information on multiple occasions.
Hahn testified that Evans approached him with
information about Sergeant Burchfield’s murder and that Hahn
made no offer to Evans for his testimony other than to help keep
him secure. After Evans testified at Masters’s trial, Hahn
arranged to have Evans placed on parole in Texas. Evans
wanted to enter the federal witness protection program. Hahn
explained that a person on parole could not enter the program,
so he wrote to Texas’s parole board on Evans’s behalf, noted how
Evans had assisted law enforcement, and urged the board to end
his parole.
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Hahn testified that he became aware that Evans was a
suspect in Beasley’s killing, but he could not recall exactly when
he learned this. Hahn testified that an investigator from San
Francisco had asked him questions about Evans. An Oakland
police officer testified he had told Hahn that Evans was a
suspect. Hahn could not recall whether he informed the
prosecutors that Evans was a suspect in Beasley’s killing.
Edward Berberian, then a Marin County Deputy District
Attorney, prosecuted Burchfield’s murder. Berberian testified
he was not aware of anyone from his office directing Hahn’s
actions in regard to the investigation of Burchfield’s murder.
Berberian testified that he did not make any threats or promises
in exchange for Evans’s testimony at Masters’s trial. David
Gasser, who had served as the prosecution’s investigator,
recalled some mention of Evans being a potential suspect in
Beasley’s killing. Both Hahn and Gasser acknowledged they
were in regular contact with each other during the investigation
of Burchfield’s murder.
Due to concerns about Evans’s health, the referee presided
over Evans’s deposition, which occurred before the reference
hearing. The parties stipulated that Evans’s deposition could be
used as evidence at the reference hearing, and Evans did not
testify at the hearing. During his deposition, Evans stated that
he had never spoken to Masters. Evans said he did not know if
Masters was involved in Burchfield’s murder. Evans
acknowledged he had testified to the contrary at Masters’s trial.
Evans said he had worked regularly as a paid informant
for various law enforcement agencies and had previously
provided information to Hahn. Evans admitted that some of the
information he had provided to Hahn was false.
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Evans said that Hahn and Gasser supplied him with
information about Burchfield’s murder in order for him to
implicate Masters. Evans said Hahn and Gasser assured him
that he would receive a sentence of less than year on his own
pending charges in Alameda County if he testified against
Masters. Evans also said that Hahn, prior to Masters’s trial,
had told him to underplay his informant work so that he could
later resume his work as an informant.
Evans said that he changed his mind about testifying at
Masters’s trial, but then Hahn, Hahn’s partner, and Gasser
threatened Evans with prosecution in numerous cases —
including Burchfield’s murder — if he did not implicate Masters.
Evans also testified that the Alameda County District Attorney
had threatened to charge him under a recidivist statute, with a
possible prison sentence of 18 years, if he did not cooperate.
Evans denied any involvement in Beasley’s killing and
denied being questioned by the police about the killing. Evans
admitted that he knew of Beasley, that he had worked for
Beasley’s son as an “enforcer,” and had received payments from
the son.
Graham McGruer, a former correctional officer, testified
as an expert on California prisons. McGruer had reviewed San
Quentin’s records and concluded that Masters was not sent to
the Adjustment Center until December 1985. (Evans had
testified at Masters’s trial that the two of them discussed
Burchfield’s murder in the center around September 1985.
McGruer testified that an attack on a prison guard would
normally have been ordered only by the highest echelon of a
gang’s leadership. If the attack had not been sanctioned by the
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gang’s leaders, McGruer opined, the leadership quickly and
personally would have investigated the matter.
Willis, a BGF member and the main prosecution witness
at Masters’s trial, invoked his privilege against self-
incrimination at the reference hearing. Willis later indicated he
wished to testify. The referee advised Masters that she would
allow him to call Willis as a witness. Masters declined the
referee’s offer, accepted the referee’s initial ruling that Willis
was unavailable to testify, and instead offered into evidence
prior statements made by him. For example, in 2001, Willis had
declared under penalty of perjury that Masters played no role in
the attack on Burchfield. Willis further declared that Masters
did not author two of the notes that were admitted at trial but
merely copied their contents. Willis also declared that he told
Berberian he did not want to testify at Masters’s trial and that
Berberian told him if he did not testify, he would be returned
“right to San Quentin,” which Willis interpreted as “a death
threat.” In 2002, however, Willis declared that he “never lied
during [Masters’s] trial . . . .” In 2010, Willis recounted to
representatives of the Attorney General his involvement in the
murder conspiracy, some of which was consistent with his trial
testimony.
Robert Leonard, a linguistics professor, testified as an
expert. Dr. Leonard compared how language was used in two
documents that were introduced at Masters’s trial against 14
other documents authored by Masters. Notably, one of the two
documents compared against the others was the report about
Burchfield’s murder that Willis had asked Masters to write.
Dr. Leonard testified that in his opinion it was more likely than
not that these two documents were not authored by the same
person who authored the other 14 documents.
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Woodard, a BGF member and Masters’s codefendant,
testified that he had assumed leadership of the BGF cell in
Carson section after its previous leader was sent to the
Adjustment Center. Woodard testified that in April or May
1985, prior to his assuming command of Carson section, Willis
had suggested that the BGF attack other gangs. Woodard’s
predecessor and Willis then changed the plan to attack
Burchfield. Masters was present when this new plan was
discussed but disagreed with it. Woodard testified that after he
had assumed command, he relieved Masters of his
responsibilities in the BGF due to Masters’s disagreement with
the plan to attack Burchfield. Woodard also testified that he
had punished Masters by assigning him to perform extra
exercise and to write an essay about his insubordination.
Woodard testified that the weapon used to stab Burchfield
was crafted on the second tier. Woodard also testified that
Masters was not good at making weapons. Woodard testified
that he ordered Masters and their codefendant Andre Johnson
to neither discuss the case nor testify at trial. Woodard
threatened to kill Masters if he did not obey, and the two had
some physical altercations while their trial was proceeding.
Michael Rhinehart, a BGF member who was housed on the
second tier in Carson section, testified that he learned of the
plan to attack a prison guard from Woodard, Willis, and another
BGF member, Harold Richardson. Rhinehart testified that his
own participation in the attack was limited to passing notes and
that Masters did not participate at all. Rhinehart testified that
Masters had voted against the plan to assault a guard. As a
result of Masters’s opposition, Rhinehart said, Woodard became
hostile toward Masters. Rhinehart denied any participation in
passing the weapon to Johnson but claimed it was made on the
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second tier. Rhinehart testified that he told Evans the details
of Burchfield’s murder.
Welvie Johnson (“Welvie”) was the overall third-in-
command of the BGF gang and a “shot caller,” that is, part of
the process that could authorize BGF attacks. Welvie did not
know Masters before the attack on Burchfield, and he testified
the attack was not sanctioned by the BGF’s governing body. The
governing body investigated Burchfield’s murder, and Welvie
learned of no information indicating that Masters was involved.
Welvie also testified that a “short-timer” like Johnson would not
have been selected to carry out the attack. Welvie further
testified it would have been a breach of BGF protocol to pass a
weapon between tiers or to allow a non-BGF member to pass a
weapon. Welvie testified that he had been questioned by Hahn
about Burchfield’s murder, and Hahn confirmed this. Welvie
denied that he had previously told prison officials that Woodard
ordered Johnson and Masters to attack Burchfield, and he did
not recall telling officials that Masters had killed David Jackson.
Hoze, a BGF member who testified at Masters’s trial, was
subpoenaed to testify at the reference hearing but ultimately
was not called as a witness. Statements previously made by
Hoze exonerating Masters in Jackson’s killing were received
into evidence.
Correctional officers had interviewed Richardson in 1986
about his involvement in gang activities, including Burchfield’s
murder. (See Masters, supra, 62 Cal.4th at p. 1054.) In his
statements to correctional officers, Richardson implicated
himself in the attack but did not mention Masters. (See id. at
pp. 1054–1058 [ruling that the trial court did not abuse its
discretion by excluding these statements because they contained
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inadmissible hearsay].) Richardson did not testify at the
reference hearing. Reports detailing Richardson’s interview, as
well as a letter written by Richardson to a prison official, were
admitted into evidence at the reference hearing. During the
course of these proceedings, Masters submitted to this court
additional reports from prison officials about Richardson’s
debriefing.
III. REFEREE’S REPORT
The referee found, as a general matter, that it was likely
that some false testimony was offered at Masters’s trial. The
referee specifically found that the prosecution’s key witnesses,
Willis and Evans, had recanted their trial testimony. But the
referee also found that both were “liars with highly unreliable
and selective memories. [¶] . . . [¶] Evans and Willis are utterly
lacking in credibility. Both are career criminals whose word,
under oath or otherwise, means nothing. Both are well-known
snitches. Both would say anything to save their own hide — and
both have so admitted. Both are manipulative and unreliable.”
(Again, Willis did not testify at the reference hearing, and the
referee presided over Evans’s deposition, which was presented
in lieu of his testifying at the reference hearing.
The referee further found that every BGF member who
testified at the reference hearing had lied during Masters’s trial,
this proceeding, or both. “All of them, as members of the same
prison gang, have a motive now to give testimony favorable to
Masters,” the referee found.
The referee also noted that the testimony of the BGF
members at the reference hearing often was contradictory. For
example, there was no clear agreement among the witnesses as
to who was in charge, who ordered and organized Burchfield’s
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killing, why the killing was ordered, who made the weapon, who
stabbed Burchfield, and whether there was a backup plan.
The law regarding our review of the referee’s report is
settled. “ ‘The referee’s factual findings are not binding on us,
and we can depart from them upon independent examination of
the record even when the evidence is conflicting. [Citations.]
However, such findings are entitled to great weight where
supported by substantial evidence. [Citations.]’ [Citations.] ‘On
the other hand, any conclusions of law or resolution of mixed
questions of fact and law that the referee provides are subject to
our independent review.’ ” (In re Cowan (2018) 5 Cal.5th 235,
243–244 (Cowan).
“ ‘[T]he referee is entitled to discredit portions of a
witness’s testimony while finding the witness credible in other
particulars. [Citation.] Thus, the fact that the referee expressly
or impliedly disbelieved a witness in some respects, or that
portions of a witness’s testimony seem unlikely on their face,
does not mean that any finding based solely or primarily on the
same witness’s testimony on other matters is without
substantial support.’ [Citation.] ‘Deference to the referee is
particularly appropriate on issues requiring resolution of
testimonial conflicts and assessment of witnesses’ credibility,
because the referee has the opportunity to observe the
witnesses’ demeanor and manner of testifying.’ ” (Cowan, supra,
5 Cal.5th at pp. 244–245.
A. Question One
Our first question to the referee asked, “Was false
evidence regarding [Masters]’s role in the charged offenses
admitted at the guilt phase of [Masters]’s trial? If so, what was
that evidence?”
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1. Referee’s findings
The referee’s answer to this question focused on Willis and
Evans. Although Willis did not testify at the reference hearing,
the referee found that he initially recanted his trial testimony
but then later recanted his recantation. The referee further
found that Willis was neither coerced into testifying against
Masters nor coerced into recanting his testimony. The referee
ultimately did not believe Willis’s recantation of his trial
testimony: “The jury saw Willis testify. They knew of his
murder conviction. They knew he was given immunity. They
heard about his disappointment in not being released from
prison in exchange for giving State’s evidence. The jury was in
the very best position to evaluate him as a witness.”
The referee similarly found Evans’s testimony at his
deposition to be “spectacularly unreliable.” Specifically, the
referee disbelieved Evans’s testimony that Hahn had coerced
him into implicating Masters.
2. Masters’s exceptions
Masters takes exception to the referee’s findings.
Preliminarily, he contends that Willis at most only partially
disavowed his initial recantation. More importantly, Masters
contends the totality of Willis’s statements about Burchfield’s
murder shows that Willis has been so inconsistent that none of
his statements is worthy of belief and therefore cannot be the
basis for Masters’s conviction. Masters also notes that the
referee found that some false evidence likely had been admitted
at his trial and that Willis and Evans were both liars. From
this, Masters concludes that Evans’s and Willis’s trial testimony
implicating him in the conspiracy to attack Burchfield was false.
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Masters’s exceptions lack merit. “It has long been
recognized that ‘the offer of a witness, after trial, to retract his
[or her] sworn testimony is to be viewed with suspicion.’ ” (In re
Roberts (2003) 29 Cal.4th 726, 742.) We agree with the referee
that there is no sound reason to credit Willis’s recantation of his
trial testimony. (See id. at p. 743 [declining to “disturb the
jury’s verdict based upon a recantation that must be viewed with
suspicion and was subsequently disavowed”].) To the extent
Masters relies on Willis’s other posttrial statements that are
inconsistent with his trial testimony, we agree with the referee
that those statements are unbelievable due to Willis’s lack of
credibility.
Masters also contends that Willis’s trial testimony about
the two notes that he said Masters sent to him was false. But
at trial Willis testified that he sent notes to Masters, requesting
him to write reports about the attack. Willis further testified at
trial that Willis received two notes in response, both of which
were written in Masters’s handwriting. There is no evidence
suggesting that Willis’s testimony on this subject was false.
Masters nonetheless contends that Willis’s testimony
falsely implied that Masters authored the notes. The referee
accepted, and we accept as well, Dr. Leonard’s opinion that it
was more likely than not that these two documents were not
authored by the same person who authored the other 14
documents offered at the reference hearing. But the referee also
found that whether Masters wrote the two notes in his own
words or in the words of another did not exonerate him from the
conspiracy to attack Burchfield.
Overall, the referee found that the jury had sufficient
information to gauge Willis’s credibility. We agree. Masters
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here mounts a generalized attack on Willis’s credibility, but this
general attack does not render false any particular aspect of
Willis’s trial testimony about Masters’s role in the murder of
Burchfield.
Evans, in his deposition, also retracted his trial testimony.
But the referee had the opportunity to observe Evans’s
demeanor and, as noted, found his recantation to be “wholly
incredible.” We accept the referee’s finding regarding Evans’s
lack of credibility and her ultimate finding rejecting Evans’s
recantation.
Masters notes that the trial testimony concerning Evans
and Hahn’s pre-existing, ongoing working relationship was
incomplete. The referee found this contention “appear[s] to be
true,” and the Attorney General concedes that Evans did lie at
Masters’s trial about the number of meetings he had with Hahn.
But the referee further found that “Evans had many contacts
with Hahn, although it is unlikely that Evan gave useful
information to Hahn more than a few times.” We accept the
finding that Evans testified falsely at Masters’s trial regarding
his relationship with Hahn. This finding, however, goes to
Evans’s general credibility, which defense counsel vigorously
attacked at trial. (Post, at p. 29.) And Evans’s false testimony
about his relationship with Hahn does not render false any
particular aspect of Evans’s trial testimony concerning
Masters’s role in the attack on Burchfield.
Masters further notes that Evans testified at trial that the
two of them discussed the attack on Burchfield around
September 1985 in the Adjustment Center. The evidence
adduced at the reference hearing showed that Masters was not
transferred to the Adjustment Center until December 1985.
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From this, Masters infers that Evans’s trial testimony about it
was false. But even if Evans’s testimony about the timing of the
conversation was false, this does not necessarily mean his
testimony about the content of the conversation was false. In
any event, Masters’s trial counsel was aware of this discrepancy
as to when the conversation occurred and argued this point to
the jury during guilt phase closing arguments.
Masters also notes that Rhinehart and Woodard testified
at the reference hearing that Masters was not involved in the
conspiracy to attack Burchfield. But the referee discounted the
testimony of all BGF members because all of them had lied at
some point and now had a motive to testify in Masters’s favor.
We accept the referee’s finding regarding their credibility, as she
observed their testimony at the reference hearing and was in the
best position to assess their credibility.
Masters also points to other evidence that demonstrates
his innocence and thereby suggests that false evidence of his
guilt was presented at his trial. Masters’s theory of the case is
that he was not involved with Burchfield’s murder and that
Harold Richardson was Woodward and Johnson’s other main
coconspirator. In support of this contention, he relies in part on
statements made by Richardson during his debriefing. At
Masters’s trial, however, the court did not abuse its discretion
in excluding Richardson’s statements implicating himself
because they were unreliable hearsay. (Masters, supra,
62 Cal.4th at pp. 1054–1058.) We are not now persuaded by
Masters’s contention that Richardson’s unreliable hearsay
statements indicate that false evidence was presented at trial;
indeed, the unreliability of Richardson’s statements is the
reason we upheld the trial court’s exclusion of them.
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In sum, we accept the referee’s findings with respect to the
first question because they are supported by substantial
evidence.
B. Question Two
Our second question to the referee asked, “Is there newly
discovered, credible evidence indicative of [Masters]’s not
having been a participant in the charged offenses? If so, what
is that evidence?”
Newly discovered, credible evidence, in the context of our
second question, means “evidence that has been discovered after
trial, that could not have been discovered prior to trial by the
exercise of due diligence, and is admissible and not merely
cumulative, corroborative, collateral, or impeaching.” (§ 1473,
subd. (b)(3)(B), as amended by Stats. 2016, ch. 785, § 1, eff. Jan.
1, 2017.
1. Referee’s findings
The referee answered the first part of this question in the
negative. The prosecutors at trial argued that the murder
weapon was delivered from the fourth tier in the prison (where
Masters was housed) to the second tier (where Johnson was
housed). Several BGF members testified at the reference
hearing that it would have been less dangerous to fabricate the
murder weapon on the same tier as Johnson and then pass it to
him. The referee found that even if it would have been less
dangerous to fabricate the weapon on the same tier, it does not
follow that this is what actually happened.
With respect to Dr. Leonard, the linguistics expert, the
referee found him to be a convincing witness, but she also found
that his testimony was not “new.” The referee ultimately
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concluded that Dr. Leonard’s testimony did not exonerate
Masters because the notes in Masters’s handwriting indicated
his involvement in the conspiracy to attack Burchfield
regardless of whether he was the source of the notes’ contents.
Both parties take exception to the referee’s findings.
2. The Attorney General’s exceptions
As mentioned above, Willis had stated posttrial that
Masters did not author two of the notes that were admitted into
evidence at trial. To bolster this contention, Masters offered the
testimony of Dr. Leonard at the reference hearing. The
Attorney General, pursuant to People v. Kelly (1976) 17 Cal.3d
24, moved to exclude Dr. Leonard’s testimony on the ground
that his analytical technique of determining a document’s
author had not been sufficiently accepted by the scientific
community or the courts. The referee denied the motion, ruling
that Kelly did not apply to this type of evidence. The Attorney
General takes exception to the referee’s ruling.
The referee accepted Dr. Leonard’s testimony as credible
but nonetheless found that Masters had participated in the
conspiracy. As explained further below, because the referee’s
consideration of this evidence did not benefit Masters, we need
not decide whether the referee erred by not conducting a Kelly
hearing.
3. Masters’s exceptions
Preliminarily, Masters takes exception to the referee’s
exclusion of evidence indicating that Willis “framed” him. In a
2005 letter from Willis to Masters’s habeas corpus counsel,
Willis wrote, “Why [Masters’s trial] lawyers never looked
through my property in San Quentin — Hint Hint.” Masters
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sought to have his habeas corpus counsel testify about the
conversation that counsel had with Willis about this topic, but
the referee did not permit the testimony. Masters then made an
offer of proof that Willis had told Masters’s habeas corpus
counsel that he hid some notes in his prison-issued portable
television. Willis also told Masters’s habeas corpus counsel that
the hidden notes were the original notes that he later directed
Masters to copy into his own handwriting. And Willis told
Masters’s habeas corpus counsel that the television set and the
notes it contained later disappeared.
The proffered evidence indicated Willis had instructed
Masters to copy notes that Willis had authored, which was
consistent with Dr. Leonard’s testimony. But even if we were to
assume that habeas corpus counsel had testified about what
Willis told him, Willis’s credibility remains the ultimate issue.
We agree with the referee that Willis was not credible, and his
statements do not become more credible when conveyed through
a layer of hearsay. Thus, even if the referee abused her
discretion by excluding this evidence, it was harmless because
we agree with the referee’s determination that Willis was not
credible.
a. Notes’ authorship
Masters takes exception to the referee’s characterization
that Dr. Leonard’s testimony was not new evidence. Dr.
Leonard’s testimony about the authorship of the two notes was
presented for the first time at the reference hearing, but the
notes themselves were introduced at Masters’s trial. The
Attorney General observes that “authorship analysis,” that is, a
stylistic comparison of questioned writings and utterances to
known exemplars, predates Masters’s 1989 trial. (E.g., United
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States v. Clifford (3d Cir. 1983) 704 F.2d 86, 90; United States v.
Hearst (9th Cir. 1977) 563 F.2d 1331, 1349–1350; but cf.
Coulthard, Author Identification, Idiolect, and Linguistic
Uniqueness (2004) 25 Applied Linguistics 431 [noting little
growth in forensic linguistics as a discipline until the 1990s].
The Attorney General contends that Masters was not diligent in
presenting this linguistic evidence in these habeas corpus
proceedings: Although Masters in 1998 had received, from a
different expert, a preliminary linguistic analysis regarding the
two notes, he neither included this expert’s analysis as an
exhibit to, nor did he discuss its contents in, his petition for writ
of habeas corpus filed in 2005.
As we explain further below, regardless of whether Dr.
Leonard’s testimony constituted new evidence, and regardless
of whether Masters was diligent in discovering and presenting
it, it ultimately does not benefit Masters. Masters specifically
takes exception to a portion of the referee’s report in which she
wrote, “Dr. Leonard’s testimony does not exonerate [Masters].
It may suggest that Masters was not a planner or leader of the
conspiracy, but Masters was not tried as the planner or leader
of the conspiracy; he was tried as the knife-sharpener and
messenger.” The evidence presented at Masters’s trial arguably
suggests he was a planner and leader. But even if we were to
assign no weight to the referee’s suggestion that Masters only
relayed messages and helped fabricate the weapon, we conclude
that substantial evidence supports the referee’s ultimate
conclusion that the notes’ authorship is not material because
Masters’s purported lack of authorship does not exonerate him.
(Post, at pp. 42–43.
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b. Weapon’s fabrication
Masters also takes exception to the referee’s finding
regarding who fabricated the weapon used to stab Burchfield.
Preliminarily, whether this evidence is new is debatable, as
Masters does not explain why these witnesses could not have
testified at his trial. We nonetheless will assume these
witnesses would have invoked their constitutional privilege
against self-incrimination at Masters’s trial and therefore could
not have been compelled to testify. Regardless, newly
discovered evidence must be credible (§ 1473, subd. (b)(3)(A)),
and the referee found these witnesses were not credible.
Even if we were to assume the testimony about the
possibility that the weapon was fabricated completely on the
second tier might be newly discovered evidence, there was no
credible evidence that it actually was sharpened there.
Rhinehart, for example, testified that the weapon never left the
second tier, that Johnson and the source of metal for the weapon
were housed on one side of him, and that the person who
sharpened the metal was housed on the other side of him. Yet
Rhinehart also testified that he did not observe its fabrication
or participate in passing it to Johnson. And, as the referee
noted, Masters’s witnesses named numerous possible
fabricators of the weapon. Because the evidence at the reference
hearing amounted only to speculation pointing in many
different directions, we accept the referee’s ultimate finding that
Masters has not provided new, credible evidence that someone
else fabricated the weapon used to stab Burchfield.
c. Other evidence
Masters notes the referee made other findings that were
indicative of new evidence having been presented, such as
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Evans’s having lied at trial and Willis’s posttrial declaration and
statements, and he therefore contends this evidence should have
been included in the answer to this question. Again, newly
discovered evidence must be credible (§ 1473, subd. (b)(3)(A)),
and the referee found Willis and Evans were not credible. The
same is true for the testimony of the other BGF witnesses who
testified at the reference hearing.
Masters correctly notes that the referee found Evans’s
trial testimony about his relationship with Hahn was false.
Because the referee found Evans credible on this discrete topic,
we agree with Masters that this portion of the Evans’s
deposition can constitute newly discovered evidence. As we
explain more fully below, however, it is ultimately unavailing.
(Post, at pp. 40–41.
Similarly, Masters contends Richardson was the actual
mastermind behind the conspiracy to murder Burchfield, and in
support he cites correctional officers’ reports concerning
statements made by Richardson that previously had been
redacted and thus were unknown and unavailable to Masters at
time of his trial. Masters also notes the new evidence about
Evans’s possible involvement in Beasley’s killing. As we explain
more fully below, none of this evidence, even if new, entitles
Masters to relief.
C. Question Three
Our third question to the referee asked, “What, if any,
promises or threats were made to guilt phase prosecution
witness Rufus Willis by District Attorney Investigator Charles
Numark or Deputy District Attorneys Edward Berberian or
Paula Kamena? Was Willis’s trial testimony affected by any
such promises or threats, and, if so, how?”
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1. Referee’s findings
The referee found that Numark, Berberian, and Kamena
did not make any undisclosed promises or threats to Willis. As
noted, Willis did not testify at the reference hearing, but
Masters introduced statements Willis had made previously.
The referee found that Willis was manipulative and
untrustworthy, and that any new claims of undisclosed
prosecutorial promises or threats were unsubstantiated.
2. Masters’s exceptions
Masters takes exception to the referee’s findings with
respect to Berberian and Numark. Masters notes that Willis in
2010 stated that Berberian threatened to not honor a prior
agreement to release him from prison if he did not testify. Willis
also stated that after he had been released on parole, Berberian
threatened to return him to San Quentin. And Masters observes
that Berberian testified at the reference hearing but did not
affirmatively refute Willis’s accusations. Masters further notes
that Willis stated that Numark promised him he would take
steps to ensure no one would oppose Willis’s parole. Masters
does not dispute that there was no evidence of Kamena’s having
made any promises or threats to Willis.
Masters’s exceptions lack merit. With respect to
Numark’s efforts to shorten Willis’s incarceration, it was
disclosed at Masters’s trial that Numark had offered to help
Willis secure his release from prison, but this offer was retracted
before Masters’s trial. Thus, to the extent Numark’s offer to
help affected Willis’s trial testimony, the jury was aware of the
investigator’s efforts. Masters is correct that our question was
not limited to undisclosed threats or promises, but the jury was
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able to assess the effect, if any, of Numark’s offers on Willis’s
decision to implicate Masters.
In support of his claim that Berberian had threatened to
return Willis to prison, Masters presented Willis’s prior
statements of what Berberian purportedly said to him. The
referee found Willis’s claims to be unbelievable, and we agree
with this finding.
Moreover, the evidence of the purported threats is a web
of hearsay. (Evid. Code, § 1200.) Masters contends that
Berberian’s failure to refute Willis’s claims about the threats
constitutes an adoptive admission, which is an exception to
hearsay rule. (Id., § 1221.) According to Masters, because there
was no affirmative refutation of Willis’s claims by Berberian,
who did testify at the reference hearing, Berberian has adopted
the statements attributed to him by Willis. But even if we were
to assume Willis’s statements concerning Berberian’s purported
threats were admissible under section 1221, that section
governs only the admissibility of certain out-of-court
statements, not the weight the factfinder may accord to them.
(See People v. Turner (1994) 8 Cal.4th 137, 190–191; CACI No.
213 [the jury “may consider that statement as evidence against”
the party against whom the statement was offered under
specified conditions (italics added)]; see also CALCRIM No.
357.) The referee found that Willis was untrustworthy, and by
extension, she found the claims of prosecutorial threats to be
unsubstantiated. We agree with these findings.
In sum, the jury was aware of the discussions between
Numark and Willis, as well as the terms of the immunity
agreement between Willis and Berberian. To the extent
Masters contends the totality of the circumstances nonetheless
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indicates Numark, Berberian, and Kamena made some sort of
undisclosed threat or promise to Willis, substantial evidence
supports the referee’s contrary finding.
D. Question Four
Our fourth question to the referee asked, “Were there
promises, threats or facts concerning guilt phase prosecution
witness Bobby Evans’s relationship with law enforcement
agencies of which Deputy District Attorneys Berberian and
Kamena were, or should have been, aware, but that were not
disclosed to the defense? If so, what are those promises, threats
or facts?”
1. Referee’s findings
The referee answered the first part of this question in the
negative. The referee found that Evans had more extensive
contacts with Hahn than were disclosed at trial, but that
Berberian and Kamena did not know about these contacts. The
referee also found that the evidence of the contact between
Evans and Hahn was not material because Masters was aware
of Evans’s lack of credibility and had extensively urged the jury
not to believe him.
2. Masters’s exceptions
Masters again takes exception to the referee’s finding
regarding Evans’s contacts with Hahn. Masters first contends
that Evans was, in essence, a professional informant who
worked regularly with Hahn. Although the referee did not
expressly characterize Evans as such, she agreed that Hahn and
Evans’s working relationship was underplayed at Masters’s
trial. Masters also contends that Hahn was a member of the
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prosecution team and, for that reason, Berberian’s and
Kamena’s actual knowledge is immaterial because Hahn’s
knowledge is imputed to them.
Masters similarly contends the prosecution team should
have known about Evans’s possible involvement in James
Beasley’s killing. As the testimony of Hahn and others
indicates, Hahn knew Evans was a suspect in Beasley’s killing.
In addition, one of the prosecutors’ investigators, David Gasser,
recalled some discussion about Evans’s possible involvement in
Beasley’s killing. Masters therefore again contends that Hahn’s
knowledge is imputed to Berberian and Kamena.
As Masters does not dispute that Berberian and Kamena
did not actually know the extent of Hahn’s working relationship
with Evans or Evans’s status as a suspect in Beasley’s killing,
we accept the referee’s finding that the prosecuting attorneys
lacked actual knowledge of any promises, threats, or facts
concerning Evans that were not disclosed to Masters or
otherwise discovered during his trial. With respect to facts that
can be imputed to Berberian and Kamena, we address those
contentions below.
E. Question Five
Our fifth question to the referee asked, “Did Deputy
District Attorneys Berberian and Kamena knowingly present
false testimony by Bobby Evans? If so, what was that
testimony?”
The referee found that Berberian and Kamena did not
knowingly present false testimony by Evans at Masters’s trial.
At the reference hearing, Masters conceded there was no
evidence to support this contention.
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Neither party makes an exception to the referee’s finding,
and we accept it.
F. Question Six
Our sixth question to the referee asked, “What, if any,
promises or threats were made to Bobby Evans by District
Attorney Investigator Numark, Department of Corrections
Investigator James Hahn, or Deputy District Attorneys
Berberian and Kamena? Was Evans’s trial testimony affected
by any such promises or threats, and, if so, how?”
1. Referee’s findings
The referee found that there was no evidence that
Berberian, Kamena, or Numark had made any threats or
promises to Evans, and Masters conceded there was no evidence
to support these contentions. At the reference hearing, Masters
contended that Hahn promised Evans that if he testified against
Masters, then Hahn would ensure that Evans would not be
implicated in Beasley’s killing. The referee found that the
evidence presented did not support this contention.
2. Masters’s exceptions
Masters takes exception to the referee’s finding only with
respect to Hahn. Preliminarily, Masters contends that the
referee erred by not considering prior statements made by
Evans in other proceedings that were consistent with his
deposition testimony here. We have reviewed these statements,
and they generally are consistent with Evans’s deposition
testimony. But even if we were to assume they should have been
admitted during the reference hearing, it is doubtful they would
have altered the referee’s finding that Evans had not been
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truthful in his deposition testimony, which the referee described
as “spectacularly unreliable.”
Masters concedes there is “no direct evidence” that Hahn
promised Evans that he would not be implicated in Beasley’s
killing if he testified against Masters. Rather, Masters contends
that Evans was the primary suspect in Beasley’s killing but was
no longer considered a suspect after he implicated Masters. As
such, “one of the most plausible explanations” for this shift,
according to Masters, was Hahn’s involvement. The officers
investigating Beasley’s killing, however, expressly denied that
they stopped investigating Evans in exchange for his testimony
at Masters’s trial, and the referee found this testimony credible.
We accept the referee’s credibility findings as well as the
referee’s ultimate finding that Hahn did not influence the
investigation of Beasley’s killing.
Masters also contends that Hahn’s threats or promises to
Evans were not limited to the Beasley investigation. Rather,
Masters contends that Evans and Hahn had a pre-existing,
ongoing relationship in which Evans supplied Hahn and other
law enforcement agencies with information. Masters further
contends any threats or promises made to Evans ought to be
viewed in the context of the expectation of their working
relationship continuing past Evans’s testifying against Masters.
But besides this generalized expectation of their working
relationship continuing past Masters’s trial, he presented no
evidence of any specific promises made by Hahn to Evans that
were not otherwise disclosed or discovered during the course of
Masters’s trial.
Masters further contends that the jury had incomplete
information about the threats made against Evans. Although
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Evans testified at Masters’s trial that he had pleaded guilty to
attempted robbery in exchange for serving no more than
16 months, in his deposition he said he was facing 18 years in
prison if he did not testify against Masters. But the only source
of evidence indicating that Evans was threatened with a much
longer sentence was Evans. Because the referee found Evans to
be an unbelievable witness, we accept the referee’s finding that
Evans received no threat or promise that was not otherwise
disclosed or discovered during Masters’s trial.
G. Question Seven
Our seventh and final question to the referee asked, “Did
penalty phase prosecution witness [Johnnie] Hoze provide false
testimony regarding [Masters]’s involvement in the murder of
inmate David Jackson? If so, what was that false testimony?”
The referee found no basis to believe that Hoze testified
falsely at Masters’s trial. Although Hoze did not testify at the
evidentiary hearing, the referee reviewed his numerous
previous inconsistent statements about Masters’s involvement
in Jackson’s murder. The referee’s review of Hoze’s statements
led her to conclude that “Hoze recant[s] and [unrecants] with
alarming frequency” and “admits he has a motive to do so . . . .
His recantations [of his trial testimony] are not believable.”
Neither party makes an exception to the referee’s finding,
and we agree with it.
IV. DISCUSSION
“Because a petition for a writ of habeas corpus is a
collateral attack on a presumptively final criminal judgment,
‘the petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them.’ [Citation.] To
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obtain relief, the petitioner must prove by a preponderance of
the evidence the facts that establish entitlement to relief.”
(Cowan, supra, 5 Cal.5th at p. 243.
A. False Evidence
In his habeas corpus petition, Masters contends false
evidence was presented at his trial. We deny relief on this claim.
Habeas corpus relief is available if “[f]alse evidence that is
substantially material or probative on the issue of guilt or
punishment was introduced against a person at a hearing or
trial relating to his or incarceration.” (§ 1473, subd. (b)(1).
“Determining that the evidence was false clears the first hurdle
to relief. ‘The statute and the prior decisions applying section
1473 make clear that once a defendant shows that false evidence
was admitted at trial, relief is available under section 1473 as
long as the false evidence was “material.” ’ [Citation.]
Materiality is shown if there is a reasonable probability the
result would have been different without the false evidence.” (In
re Figueroa (2018) 4 Cal.5th 576, 588–589.) “This required
showing of prejudice is the same as the reasonably probable test
for state law error established under People v. Watson (1956) 46
Cal.2d 818, 836. [Citation.] We make such a determination
based on the totality of the relevant circumstances.” (In re
Richards (2016) 63 Cal.4th 291, 312–313.
1. Willis, Evans, and other BGF members
Masters contends that Willis and Evans testified falsely at
his trial. As noted, the referee found that Willis and Evans had
generally recanted their trial testimony but that both were
chronic liars. As such, the referee did not believe their
recantations. The referee presided over Evans’s deposition, and
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we have accepted her findings regarding his credibility. We
independently reviewed Willis’s statements and have agreed
with her finding regarding his credibility. Habeas corpus is an
attack on a presumptively final judgment, and neither Masters’s
generalized arguments about Willis’s and Evans’s credibility nor
his generalized arguments that he was falsely accused are
sufficient to warrant relief. Those arguments do not show the
falsity of any specific evidence of his involvement in the
conspiracy. The referee similarly rejected the testimony of the
other BGF members who testified at the reference hearing in
support of Masters, and we have accepted her findings on these
matters as well.
The referee did find that the trial testimony concerning
Evans and Hahn’s pre-existing, ongoing working relationship
was false because it failed to adequately describe the nature and
extent of their relationship, and we have accepted this finding.
As an initial matter, we note the referee found that Evans had
more extensive contacts with law enforcement than was
disclosed at trial, but she did not expressly find that Hahn’s trial
testimony was false. And it does not appear that Hahn, at any
time during Masters’s trial, was questioned about the extent of
his relationship with Evans before June 1989.
The jury knew that Hahn tracked parolees such as Evans,
which suggests that Hahn was aware of Evans’s criminal history
and his propensity to not tell the truth. The jury also knew that
Evans was a violent felon, had contacted Hahn and offered to
disclose information about Burchfield’s murder, and was
testifying to receive a benefit for his cooperation, that is, a
possible reduction in his own sentence to be facilitated by
Hahn’s intervention.
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With respect to Evans’s trial testimony regarding the
nature and extent of his previous contacts with Hahn, Evans
testified that before he met with “the District Attorney,” he had
met Hahn only “[o]ne time prior.” But Evans also testified,
before Masters’s trial, that he (or, in one instance, his wife) had
provided Hahn with incriminating information about a
correctional officer and, in separate incidents, about two BGF
members other than Johnson, Masters, and Woodard. The jury
further knew that Evans wanted to avoid going to prison
because his “life had been threatened” by the BGF and that
Hahn was aware that Evans feared retaliation by the BGF.
Evans also testified that Hahn had put some money on his books
in a correctional facility and had given him money for cigarettes.
In sum, the jury heard that Evans, before testifying at Masters’s
trial, had provided Hahn with information on multiple occasions
in addition to the information about Burchfield’s murder, and
that Hahn had given Evans money.
The evidence at the reference hearing showed that Evans,
before coming forward about Burchfield’s murder, had often
been paid by various law enforcement agencies for his informant
work, including work that had been arranged by Hahn. The
evidence also showed that Hahn knew Evans previously had
provided false information, but nonetheless made efforts to
ensure Evans would testify at Masters’s trial. Masters further
suggests that Evans had an expectation to continue his work as
an informant after Masters’s trial. Although this additional
information sheds further light on Evans’s credibility, it is not
so different from the evidence adduced at trial, which provided
the jury ample knowledge about Evans for purposes of assessing
his credibility.
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Masters contends that the jury did not know that Evans
had served as an informant before Evans disclosed information
about Burchfield’s murder to Hahn. But the jury was aware
that Evans had provided information, including information
about members of his own gang, to law enforcement. And, as
the referee noted, Masters “staged an unsparing attack on
Evans” and his credibility at trial. Indeed, Masters’s counsel
specifically argued to the jury that Evans had “snitched” on
others besides Johnson, Masters, and Woodard.
Moreover, Willis was the primary witness against
Masters, as he had personal knowledge about the conspiracy;
“Evans’s testimony served only to confirm Willis’s testimony.”
(Masters, supra, 62 Cal.4th at p. 1068.) The notes in Masters’s
handwriting further implicated him. In addition, there was no
material falsity regarding the benefits Evans actually received
in exchange for his testimony at Masters’s trial. (See id. at
pp. 1036–1037, 1064–1068.
In sum, the false evidence at Masters’s trial provided the
jury with an incomplete account of Evans and Hahn’s
relationship. But there was ample evidence at trial that
provided the jury with strong reasons to question Evans’s
credibility and to view his testimony with caution or suspicion.
The totality of the circumstances does not make it reasonably
probable that the jury would have returned a different verdict
had it known the full scope of the relationship between Evans
and Hahn, including any possible expectation regarding future
informant assignments.
In his habeas corpus petition, Masters contends that Hoze
testified falsely during the penalty phase. The referee found no
basis for believing Hoze testified falsely at Masters’s trial, and
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Masters does not dispute this finding. Because we agree with
the referee’s finding, Masters is not entitled to relief on this
basis.
2. Authorship of the notes
Masters also contends that the evidence at trial that he
authored the two notes attributed to him was false. Again,
Willis testified at trial that he sent Masters a note requesting
written details about the murder. Willis then received a note in
Masters’s handwriting but signed with an ambiguous code
name. This note discussed some aspects of the murder. Willis
then sent Masters another note requesting another report, and
Willis received a second note, again in Masters’s handwriting,
which contained more details about the attack. The second note
was signed with a code name assigned to Masters. Willis’s
testimony, when coupled with the testimony of the handwriting
expert, suggests that Masters physically wrote the
incriminating notes, even though Willis did not observe Masters
having done so. The timing of Willis’s requests and Masters’s
responses, moreover, also supports the inference that Masters
had enough time to compose the contents of the notes, that is,
he was not merely copying notes that someone else had
composed. (See Masters, supra, 62 Cal.4th at p. 1030.) And
Willis testified at Masters’s trial that Masters had written other
letters about Burchfield’s murder that Willis later destroyed.
But Willis also testified that the BGF sometimes had its
members copy notes that originated from another author. At
the reference hearing, Masters produced Willis’s prior
statements in which he said Masters did not author these two
notes.
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Opinion of the Court by Liu, J.
Masters does not now show that any of the trial testimony
or evidence concerning these two notes was false. Notably,
Willis never testified at trial that Masters authored the notes.
Although the jury could have inferred from Willis’s trial
testimony that Masters authored the contents of the notes,
Masters does not show that Willis’s testimony about his
receiving the two notes, in Masters’s handwriting, was false.
Nor does Masters now dispute the trial evidence that showed
that the notes were in his handwriting. Rather, Masters’s claim
is that the evidence adduced at the reference hearing, including
Dr. Leonard’s expert opinion, casts doubt on any inference that
Masters authored the contents of the notes.
Ultimately, even assuming this evidence showed the
falsity of any suggestion in Willis’s trial testimony that Masters
authored the notes’ contents, the fact that Masters did not
author the notes, if accurate, does not lead us to conclude there
was a reasonable probability of a different outcome. The jury
knew that BGF members sometimes copied notes authored by
others. Even if Masters only copied notes composed by others,
this would not mean their contents were false, and Masters has
not provided any credible evidence to show that their contents
were false. Further, as the referee observed, even if Masters
merely copied the notes, his doing so could reasonably be viewed
as evidence that he participated in the conspiracy to murder
Burchfield.
B. Newly Discovered Evidence
In his habeas corpus petition, Masters contends that
newly discovered evidence casts doubt on the verdicts at both
the guilt and penalty phases of his trial. Habeas corpus relief
based on newly discovered evidence may be granted when “[n]ew
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In re MASTERS
Opinion of the Court by Liu, J.
evidence exists that is credible, material, presented without
substantial delay, and of such decisive force and value that it
would have more likely than not changed the outcome at trial.”
(§ 1473, subd. (b)(3)(A).
In support of this claim, Masters presented the following
evidence: (1) Willis’s, Evans’s, and Hoze’s posttrial recantations
of their trial testimony; (2) testimony that Masters did not
fabricate the weapon used to kill Sergeant Burchfield; (3
Dr. Leonard’s testimony that Masters did not author the notes
introduced at his trial; (4) Evans’s possible involvement in
Beasley’s killing; and (5) statements concerning Harold
Richardson, which previously were unknown to Masters. We
conclude that none of this evidence, individually or collectively,
would have more likely than not changed the outcome at trial.
Preliminarily, we note that Masters contends some of the
evidence that he presented at the reference hearing supports his
claims for both false evidence and newly discovered evidence.
Newly discovered evidence does not necessarily mean that false
evidence was presented at trial. But under the circumstances
before us, we accept Masters’s contention that at least some of
his evidence supports both types of claims.
1. Witnesses’ recantations
At the reference hearing, Masters presented evidence of
Willis’s, Evans’s, and Hoze’s posttrial recantation of their trial
testimony. With respect to Willis and Evans, the referee
observed that she “cannot find that there is any ‘new evidence’
now — there is only ‘different evidence’ from the same
witnesses, in the form of their recantations and unreliable
memories.” Willis’s and Evans’s posttrial recantations are,
strictly speaking, new. But the referee’s comments make clear
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In re MASTERS
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that she was finding these witnesses not credible; she also found
Hoze not credible.
Regardless of how the referee characterized the posttrial
statements of these witnesses, she did not believe their
recantations. We have accepted the referee’s findings regarding
Evans’s credibility, and we agree with her findings regarding
Willis’s and Hoze’s credibility. (§ 1473, subd. (b)(3)(B) [newly
discoverable evidence must be credible].) At best, Masters has
demonstrated that these witnesses generally are liars, but he
does not offer any persuasive reason to credit their recantations
over their trial testimony.
As we have accepted Masters’s contention that Evans’s
testimony about his relationship with Hahn was false, we accept
his contention that Evans’s recantation on this topic also
constitutes newly discovered evidence. However, just as we
have found no reasonable probability of a different result at trial
absent this false evidence, we also conclude that Masters has
not shown that this newly discovered evidence would have more
likely than not changed the outcome at his trial. Again, the trial
evidence already gave the jury ample reason to doubt Evans’s
credibility. Further, the inconsistency in Evans’s statements is
notable. In the context of a motion for a new trial based on
newly discovered evidence, for example, we have said “ ‘the trial
court may consider the credibility as well as materiality of the
evidence in its determination [of] whether introduction of the
evidence in a new trial would render a different result
reasonably probable.’ ” (People v. Delgado (1993) 5 Cal.4th 312,
329; see Evid. Code § 780, subd. (h) [when assessing a witness’s
credibility, the trier of fact may consider a witness’s prior
inconsistent statements].) Similarly here, Evans’s new
statements about his preexisting relationship with Hahn need
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Opinion of the Court by Liu, J.
not be considered in a vacuum but may be considered in light of
his prior inconsistent statements on this topic.
2. Weapon’s fabrication
At the reference hearing, several witnesses testified about
the fabrication of the weapon used to kill Burchfield. But the
referee found none of them credible, we have accepted the
referee’s finding in this matter, and therefore their testimony
cannot constitute newly discovered evidence.
In addition to their lack of credibility, Masters’s witnesses
named multiple possible fabricators, but they could not all have
fabricated the weapon used to kill Burchfield. Given the
inconsistencies in and between their testimony, it is not more
likely than not that the evidence now presented about the
weapon’s fabrication would have changed the outcome of the
trial. Moreover, Masters’s participation in the conspiracy was
not limited to helping fabricate the weapon.
3. Authorship of the notes
Masters contends that Dr. Leonard’s testimony that
Masters did not author the contents of the two incriminating
notes introduced at his trial constitutes new evidence. As noted,
evidence was introduced at Masters’s trial that two notes about
the attack were written in his handwriting, and Willis testified
at trial that notes were sometimes copied by several people to
obscure the identity of their authors. (Masters, supra, 62
Cal.4th at p. 1031.
Masters contends that Dr. Leonard’s testimony helps
show that he did not plan or carry out the plan to attack
Burchfield. But evidence that Masters did not author the notes
does not necessarily mean he did not plan or participate in the
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attack on Burchfield. Rather, a reasonable jury could have
believed that although Masters copied and did not author the
notes, he still participated in the planning of the attack and
sharpened the weapon that was used. Because the accuracy of
the contents of these notes under these circumstances is not
necessarily dependent on who authored them, we cannot say
Dr. Leonard’s testimony about the authorship of the notes more
likely than not would have changed the outcome of Masters’s
trial.
Evidence that someone other than Masters authored the
notes supports Masters’s theory that Willis framed him. It is
also consistent with the possibility that Masters was coerced
into falsely confessing that he planned Burchfield’s murder. But
evidence that Masters did not author the notes does not
establish that their contents were false. Moreover, the jury
already had reason to doubt Willis’s credibility, and Masters’s
trial counsel argued to the jury that Willis “doctor[ed] up” the
notes and specifically suggested that Willis had provided
Masters with a draft for him to copy. In other words, the jury
had grounds for doubting Masters’s authorship of the notes but
nonetheless convicted him.
At trial, the case against Masters rested to a significant
degree on Willis’s credibility. Through a variety of sources,
Masters now attempts to further undermine the credibility of
Willis’s testimony. But even with these additional bases for
doubting his credibility, we are not persuaded it is more likely
than not that the outcome of the trial would have been different,
especially since Willis’s credibility was litigated extensively at
trial.
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4. Beasley’s killing
Evans’s possible involvement in Beasley’s killing likely
constitutes new evidence because we accept the premise that
Masters, at the time of his trial, reasonably could not have been
expected to know the details of an unrelated homicide or Evans’s
status as a possible suspect. Nonetheless, the officers
investigating Beasley’s killing testified that they did not forgo
investigating Evans in exchange for his trial testimony, the
referee credited this testimony, and we have accepted this
finding. Further, in light of what the jury already knew about
Evans’s violent criminal past, Masters fails to show that Evans’s
possible involvement in Beasley’s killing would have more likely
than not changed the outcome at his trial.
5. Richardson’s statements
Before his trial, in an effort to sever his trial from
Johnson’s and Woodard’s, Masters unsuccessfully sought to rely
on partially redacted statements made by Richardson about
Burchfield’s murder; at his trial, the prosecutor sought to
exclude these statements. In these statements, Richardson
implicated himself and did not mention Masters. The trial court
excluded Richardson’s statements as unreliable hearsay, and we
ruled that the trial court did not abuse its discretion in doing so.
(Masters, supra, 62 Cal.4th at pp. 1054–1058.) At the reference
hearing, to bolster Richardson’s credibility and otherwise cast
doubt on the prosecution’s case, Masters relied on an unredacted
version of Richardson’s statements as well as correctional
officers’ reports concerning statements made by Richardson.
During these proceedings, Masters provided us with additional
and more complete reports, authored by correctional officers,
concerning Richardson’s statements.
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The unredacted portions of Richardson’s statements and
some of the related reports are not new evidence; Masters had
access to them at his trial. The redacted portions and the
reports not disclosed previously to him are new to Masters,
however, as he did not have access to them at trial. We have
reviewed these additional materials, including the materials
recently supplied directly to us by Masters. Even if we were to
assume that this additional evidence would have been
admissible at trial, it enhances only slightly Richardson’s
credibility, and none of it would have altered our conclusion that
Richardson’s statements were not sufficiently trustworthy.
At the time of his trial, Masters was aware of most of
Richardson’s statements to prison officials, and the trial court
excluded them as unreliable hearsay. As the trial court
observed, Richardson did not speak to prison officials about
Burchfield’s murder until more than a year after the attack had
occurred. Richardson thus had ample opportunity to glean the
relevant details from others and then pass them off to prison
officials as his own personal knowledge. Masters now presents
no new information from Richardson about Burchfield’s murder;
instead, he relies on additional, generalized information from
others about Richardson that, at most, somewhat bolsters
Richardson’s credibility. In light of the totality of the evidence
at trial, Masters has not shown that this additional information
from the reports concerning Richardson’s debriefing, even if
somehow admissible at his trial, would have more likely than
not changed its outcome.
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C. Prosecutorial Misconduct
In his habeas corpus petition, Masters contends that
various actions by the prosecutors rendered his trial unfair. We
reject these contentions.
“In California, the law regarding prosecutorial misconduct
is settled: ‘When a prosecutor’s intemperate behavior is
sufficiently egregious that it infects the trial with such a degree
of unfairness as to render the subsequent conviction a denial of
due process, the federal Constitution is violated. Prosecutorial
misconduct that falls short of rendering the trial fundamentally
unfair may still constitute misconduct under state law if it
involves the use of deceptive or reprehensible methods to
persuade the trial court or the jury.’ ” (Masters, supra, 62
Cal.4th at p. 1052.
1. Threats or promises of leniency
Masters contends that his trial was fundamentally unfair
because Willis’s testimony was unreliable due to improper
coercion by the prosecution. Specifically, Masters alleges that
Berberian threatened that if Willis’s testimony did not implicate
Masters, Willis would be returned to San Quentin, where he
feared he would be killed by other inmates.
Offering witnesses immunity in return for testifying or
“confronting [witnesses] with the predicament” they are in is not
necessarily improper coercion. (People v. Badgett (1995) 10
Cal.4th 330, 355.) Such conduct is acceptable so long as it is
with the understanding that the witness’s gaining the benefit or
avoiding the punishment is conditioned on the witness’s
testifying “fully and fairly.” (Ibid.) It is unacceptably coercive,
however, for an agreement to require that the witness testify
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consistently with a previous statement to the authorities. (Id.
at p. 358.) “ ‘ “[A] defendant is denied a fair trial if the
prosecution’s case depends substantially on accomplice
testimony and the accomplice witness is placed, either by the
prosecution or the court, under a strong compulsion to testify in
a particular fashion.” [Citation.] Thus, when the accomplice is
granted immunity subject to the condition that his testimony
substantially conform to an earlier statement given to police
[citation], or that his testimony result in defendant’s conviction
[citation], the accomplice’s testimony is “tainted beyond
redemption” [citation] and its admission denies defendant a fair
trial. On the other hand, although there is a certain degree of
compulsion inherent in any plea agreement or grant of
immunity, it is clear that an agreement requiring only that the
witness testify fully and truthfully is valid.’ ” (Ibid.
Although Willis had stated that Berberian threatened to
return him to San Quentin if he did not testify at Masters’s trial,
the referee found that Willis’s statement was unconvincing. We
agree with this finding, and no other credible evidence was
presented showing that Berberian made such a threat. To the
extent Masters contends that Numark promised Willis his
release in exchange for the incriminating notes in Masters’s
handwriting, Berberian had made clear that there would be no
agreement involving Willis’s release.
Similarly, Evans stated at his deposition that he was
threatened with being prosecuted in numerous cases and
charged under a recidivist statute if he did not implicate
Masters. As with Willis, the referee rejected Evans’s statements
as unbelievable. We have accepted this finding, and no other
credible evidence was presented showing that Evans ever was
improperly coerced into testifying against Masters.
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2. Exculpatory material
Masters contends the prosecutors failed to disclose threats
or promises of leniency made to Evans or other facts that might
have affected his credibility with the jury.
“ ‘ “In Brady [v. Maryland (1963) 373 U.S. 83], the United
States Supreme Court held ‘that the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.’ [Citation.] The high court has since held
that the duty to disclose such evidence exists even though there
has been no request by the accused [citation], that the duty
encompasses impeachment evidence as well as exculpatory
evidence [citation], and that the duty extends even to evidence
known only to police investigators and not to the prosecutor
[citation]. Such evidence is material ‘ “if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” ’
[Citation.] In order to comply with Brady, therefore, ‘the
individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf
in the case, including the police.’ ” ’ [Citation.] As such, the
prosecutor has a duty to ‘disclose to the defense and jury any
inducements made to a prosecution witness to testify and must
also correct any false or misleading testimony by the witness
relating to any inducements.’ [Citation.]
“For a defendant to obtain relief under Brady, ‘ “ ‘[t]he
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
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Opinion of the Court by Liu, J.
willfully or inadvertently; and prejudice must have ensued.’
[Citation.] Prejudice, in this context, focuses on ‘the materiality
of the evidence to the issue of guilt and innocence.’ [Citations.]
Materiality, in turn, requires more than a showing that the
suppressed evidence would have been admissible [citation], that
the absence of the suppressed evidence made conviction ‘more
likely’ [citation], or that using the suppressed evidence to
discredit a witness’s testimony ‘might have changed the
outcome of the trial’ [citation]. A defendant instead ‘must show
a “reasonable probability of a different result.” ’ [Citation.]”
[Citation.] We independently review the question whether a
Brady violation has occurred, but give great weight to any trial
court findings of fact that are supported by substantial evidence.
[Citation.]’ ” (Masters, supra, 62 Cal.4th at pp. 1066–1067.
Preliminarily, the parties dispute whether Hahn was a
member of the prosecution team. As we noted in Masters’s
automatic appeal, a prosecutor has a duty to learn of any
possible inducements made by law enforcement officers or other
agents of the state, provided that these agents are acting on the
prosecutor’s behalf in the case. (See Masters, supra, 62 Cal.4th
at p. 1067.) And we had assumed under these circumstances
that Hahn was part of the prosecution team. (Ibid.) Moreover,
the prosecutors’ investigators knew at least some information
about Evans, and they undoubtedly were members of the
prosecution team. Thus, for Brady purposes, we consider the
information about Evans to have been in the prosecutors’
possession.
Masters contends the prosecutors failed to disclose three
categories of information about Evans: (1) the prosecutors
threatened Evans with a lengthy incarceration if he did not
implicate Masters; (2) Evans was a suspect in Beasley’s killing,
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Opinion of the Court by Liu, J.
with the implication that he was not prosecuted for that
homicide in exchange for his testimony against Masters; and
(3) Evans and Hahn had a pre-existing, ongoing working
relationship, which included Hahn referring Evans to other
government agencies for paid informant work, and that the
extent of this relationship was greater than what was described
at Masters’s trial.
As to the first category, even assuming the agreement
between Evans and Hahn contained any threats (or otherwise
was coercive), the referee found the coercion or threats were
already disclosed or discovered at Masters’s trial and therefore
not suppressed. (See People v. Morrison (2004) 34 Cal.4th 698,
715 [“evidence that is presented at trial is not considered
suppressed, regardless of whether or not it had previously been
disclosed during discovery”].) The referee found no credible
evidence of other, undisclosed threats, and we have accepted the
referee’s finding on this issue.
Next, with respect to Evans’s possible involvement in
Beasley’s killing, Masters speculates that the police did not
investigate Evans’s involvement in exchange for his testimony
and that the prosecutor failed to disclose this arrangement.
Masters presented no evidence in support of this speculation,
and multiple witnesses denied that such an arrangement
existed. To the extent Masters contends that Evans’s status as
a suspect in a homicide case was by itself exculpatory for
Masters because it implicated Evans’s credibility, we are not
persuaded. Even if Evans’s possible involvement in Beasley’s
killing was favorable to Masters and therefore should have been
disclosed, it was not material under Brady because the jury was
aware of Evans’s extensive and violent criminal history. It is
not reasonably probable that information concerning Evans’s
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Opinion of the Court by Liu, J.
possible involvement in Beasley’s killing would have altered the
jury’s assessment of his credibility or the weight to place on his
testimony to such an extent that it would have produced a
different trial outcome.
Similarly, with respect to Evans’s relationship with Hahn,
Masters fails to demonstrate that this information was
material. In Masters’s automatic appeal, we generally agreed
with him that the prosecutor disclosed incomplete information
about the extent of the agreement concerning the benefits Evans
received to testify. (Masters, supra, 62 Cal.4th at pp. 1064–
1069.) We held, however, that the jury knew that Evans had
testified in exchange for measures to protect his safety and that
the undisclosed details of the arrangement were not material
because there was no reasonable probability of a different result
had the full extent of the agreement been disclosed. In addition,
the jury was aware of Evans’s negative character. And, as we
have explained, the additional evidence of Evans and Hahn’s
pre-existing, ongoing relationship presented during the
reference hearing does not materially alter the calculus.
Masters also contends that additional evidence of Evans
and Hahn’s relationship indicates that Evans had a motive to
curry Hahn’s favor for possible future benefits or consideration
(and that this additional exculpatory evidence was not
addressed in his automatic appeal). Initially, we doubt that
Evans’s expectations regarding future assignments as an
informant induced him to testify against Masters; Evans
appeared to have been motivated primarily by his desire to avoid
being sent to state prison, as he feared the BGF would retaliate
against him for providing information about its members to law
enforcement. Even if we were to agree that Evans’s testimony
might have been motivated partially by his desire for future
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In re MASTERS
Opinion of the Court by Liu, J.
assignments, such additional motivation was not material
under Brady because the jury already knew that Evans provided
Hahn information in exchange for measures to protect his
safety. It is not reasonably probable that this additional
expectation of future benefits (not otherwise inferable from the
evidence that was presented at trial) would have affected the
jury’s determination of Evans’s credibility or the weight to place
on his testimony to such an extent that it would have produced
a different trial outcome.
3. Presentation of false testimony
Masters contends Berberian and Kamena knowingly
presented Evans’s false testimony. A defendant’s due process
rights are violated if a prosecutor knowingly presents false
testimony or fails to correct such testimony after it has been
elicited. (See People v. Vines (2011) 51 Cal.4th 830, 874.
At the reference hearing, Masters conceded there was no
evidence showing that the prosecutors knew that Evans’s
testimony was false. To the extent Masters contends that the
prosecutors intentionally withheld exculpatory material about
Evans, there was no evidence presented that the prosecutors
personally knew of such information, and we previously rejected
this claim based on their presumed duty to learn about such
information. In any event, a prosecutor’s presentation of
conflicting evidence does not necessarily mean that a prosecutor
has presented false evidence. So long as impeachment material
is not concealed, a prosecutor may present conflicting testimony
and let the jury make a determination as to the witnesses’
credibility. (See People v. Letner and Tobin (2010) 50 Cal.4th
99, 167.
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Opinion of the Court by Liu, J.
CONCLUSION
Based on our acceptance of most of the referee’s findings,
we hereby discharge the order to show cause because Masters
has not met the applicable standards for relief under any claim
raised in his habeas corpus petition and referenced in our order
to show cause.
Because our order to show cause and reference order were
limited to these questions and claims, we do not address any
other claim raised in the petition for writ of habeas corpus. The
remaining claims will be resolved by a separately filed order.
(See Cowan, supra, 5 Cal.5th at pp. 248–249.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
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In re MASTERS
S130495
Concurring Opinion by Justice Liu
Habeas corpus is a limited remedy against a
presumptively valid final judgment. The availability of this
remedy is governed by judicially articulated standards and, as
relevant here, by statutes applicable to claims involving false
evidence or new evidence. False evidence must be “substantially
material” to warrant habeas corpus relief. (Pen. Code, § 1473,
subd. (b)(1); see In re Figueroa (2018) 4 Cal.5th 576, 589
[“Materiality is shown if there is a reasonable probability the
result would have been different without the false evidence.”].
Statutory relief based on newly discovered evidence is available
only if the evidence is “of such decisive force and value that it
would have more likely than not changed the outcome at trial.”
(Pen. Code, § 1473, subd. (b)(3)(A).) As today’s opinion explains,
petitioner Jarvis Masters has not met those standards.
Masters contends that the referee’s findings cast serious
doubt on the credibility of the prosecution’s two main witnesses,
Rufus Willis and Bobby Evans, and thereby undermine
confidence in their trial testimony. As the referee put it, both
are “ ‘liars with highly unreliable and selective memories.
[¶] . . . [¶] Evans and Willis are utterly lacking in credibility.
Both are career criminals whose word, under oath or otherwise,
means nothing. Both are well-known snitches. Both would say
anything to save their own hide — and both have so admitted.
Both are manipulative and unreliable.’ ” (Maj. opn., ante, at
p. 14.) But the jury heard both witnesses and made its own

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In re MASTERS
Liu, J., concurring
credibility determinations, and the judgment at trial is entitled
to a presumption of finality. The standards for habeas corpus
relief are crafted with this presumption in mind. Still, it is
understandable why Masters finds the referee’s report
unsettling.
The denial of relief in this matter follows from the
statutory standards of review applicable to claims of false
evidence and newly discovered evidence. We have no occasion
in this posture to consider whether, in light of the trial evidence
as well as the reference hearing and findings, we can be
confident of the verdict beyond a reasonable doubt. Nor do we
have occasion here to consider whether, in light of all relevant
circumstances, the fact that Masters was sentenced to death —
while his codefendants Andre Johnson (the actual killer) and
Lawrence Woodard (a prison gang “lieutenant” who, according
to one witness, “had given the order for Burchfield’s murder”
(People v. Johnson (1993) 19 Cal.App.4th 778, 780, 783)) were
not — may be indicative of arbitrariness in the application of the
death penalty.
LIU, J.
I Concur:
CUÉLLAR, J.
2

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Masters

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Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

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Opinion No. S130495
Date Filed: August 12, 2019

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Court: Superior
County: Marin
Judge: M. Lynn Duryee

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Counsel:
Joseph Baxter and Chris P. Andrian, under appointments by the Supreme Court; Law Office of Joseph
Baxter, Sara Baxter; Law Office of Richard I. Targow, Richard I. Targow; Law Office of Jenni Klose and
Jenni Klose for Petitioner Jarvis J. Masters.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorneys General, Glenn R. Pruden, Sarah J.
Farhat and Alice B. Lustre, Deputy Attorneys General, for Respondent State of California.

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Counsel who argued in Supreme Court (not intended for publication with opinion):
Joseph Baxter
Law Office of Joseph Baxter
645 Fourth Street, Suite 205
Santa Rosa, CA 95404
(707) 544-1149
Chris Andrian
Andrian & Gallenson
1100 Mendocino Avenue
Santa Rosa, CA 95401-4363
(707) 527-9381
Alice B. Lustre
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3821

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Opinion Information

Date:	Docket Number:
Mon, 08/12/2019	S130495