CHAMPION (STEVE ALLEN) ON H.C.

Department of Corrections and Rehabilitation’s Response Brief re Referee’s Report

Cal.July 23, 2010

_, COPY IN TE SUPREAIE COURT OF TIT: STATE OF CALIFORNIA hee CAPITAL CASE wre wea Nf 306557 STEVEN CHAMPION, Case No. 00994 :Ca y ~ \ On ITabeas Corpus. Los Angeles County Supertor Court Case No. A365075 The Honorable Francisco P. Briseno, Referee Fregerss 8. hepShee: RESPONDENT’S REPLY TO PETITIONERS77-r> ves ~~. EXCEPTIONS TO THE REFEREE’S REPORT AND BRIEF ON THE MERITS EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chicf Assistant Attorney General PAMELA C. HAMANAKA Sentor Assistant Attorney General SUARLENE A. LLONNAKA Deputy Attorney General STEVEN E. MERCER Deputy Attorney General State Bar No. 196911 300 South Spring Street, Sutte 1702 Los Angeles, CA 90013 Telephone: (213) 576-1344 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Introduction... .cccccccccccecseseecccccccsnsessseeccceecuevsesesscessseseuseuceseueuaverseceeesenaneentess l L. Because each ofpetitioner’s proposed exceptions to the Referee’s report and findings is devoid of merit, this Court should reject all ofthem...eeeeeeseeeenteees 3 A. Petitioner’s exception that “there is no basis for the Referee’s finding that Skyers obtained a penalty phase evaluation from Pollack” (PB 46- AT.) icecccscsenseccsessceseneeeneessseneseeseceesaeseeteseeeeseeensereeaeeeneees 3 Petitioner’s exception that “Skyers did not review the CYA mental health evaluations as proposed by respondent” (PB 54.) ....cccsecesteeeseeeees 9 Petitioner’s exception that “the Referee erred in rejecting Dr. Riley’s conclusion that petitioner, as of the time ofhis trial in 1982, suffered from longstanding neuropsychological dysfunction” (PB 107.) ...ceecccsseessrecsssectceeeseeeenneeeeneeeeseeenaeeseteesnees 14 Petitioner’s exceptions that (1) “based on his misunderstanding of what constitutes mitigating evidence andthe relationship of proffered evidence to petitioner’s functioning and development, and [sic] the Referee erred in excluding expert [testimony] and erroneously excluded evidence in mitigation, deemedit irrelevant, and/or gaveit little weight” (PB 124); (2) “the Referee erroneously attributes Skyers’ failure to uncover mitigating evidence to a family memberconspiracy to keep information from him” (PB 161); (3) “the Referee erred in failing to fully credit the Strickland expert’s opinions” (PB 233-234); and (4) the Referee rubberstamped and “plagiarized from the Los Angeles District Attorney’s briefing” of proposed findings submitted by respondent (PB 242-247, 267)........... 66 1. Tntroduction ....... cc ceceecceesecccceeececusereccueescscuseesees 66 TABLE OF CONTENTS (continued) Page 2. The Referee’s findings, record citations ANC ANALYSIS 000... ceeecessseccceessseeeeeeessereceseeesenses 72 Petitioner’s exceptions that (1) “the Referee errs in failing to find that Simms’ fingerprint would have been available at the time of petitioner’s trial” (PB 195); (2) “the Referee erred in finding that Marcus Player would have been unavailable to Skyers in support of petitioner’s defense against the allegation that he was involved in the Taylor murder” (PB 197); (3) “the Referee errs in concluding that petitioner’s defense evidence was notcredible” (PB 199); (4) “the reference court erred in finding petitioner’s lay witnesses not credible” (PB 212); and (5) “the Referee’s finding [petitioner’s Strickland expert’s] opinion that reasonably competent counsel would present evidenceof petitioner’s noninvolvementin the Taylor homicide ‘unreasonable’. . . is wrong” (PB 252.)..cceesesececetectsnteessereeevsatessaeeeeeeslenenenateenetonts 125 Petitioner’s exception that “the Referee errs in finding that petitioner presented no evidence at the hearing rebutting any alleged connection betweenpetitioner and the Jefferson murder” (PB 221-223.) oo eecececeessceseeseersseeeseeteteeseaeeenaeeeates 192 Petitioner’s exception that “the Referee erred in not recognizing that petitioner presented evidence mitigating his involvementin the juvenile offenses and in denying funding for a gang expert, whose testimony would have permitted presentation of more such mitigating evidence” (PB 223-228.) ...ecccccccesssseceesesseeeeeessseees 224 li TABLE OF CONTENTS (continued) Page H. Petitioner’s exception that “the Referee errs in finding that petitioner presented no evidence to support claims that if Skyers had properly investigated the taped conversation between Rossandpetitioner he could have shownthat the transcript was deficient or incorrect and mitigated the contents and impact ofthe recorded conversation” (PB 230-232.)........ccccccee 246 I. Petitioner’s exceptions that “the Referee erred in failing to fully credit the Strickland expert’s opinions” (PB 233-234) and “no evidence damagingto petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presentedin rebuttalif petitioner had introducedattrial the mitigating evidence adducedat the reference hearings [sic]; nor were there other circumstances which would have led a reasonable counsel to not present this mitigating evidence” (PB 268.)............ 249 J. COnclusiONn..........c.ccscseecccccssesececcececceneeseeuueevecaenesenans 273 YY. In light of the Referee’s properly supported findings, petitioner fails to meet his burden of proving Strickland prejudice as a result of any deficient performance by petitioner’s trial counsel ........eeeeee 274 Conclusion ..........4 cecesausaecesececuceevensnenesseavcssecseegenaustsecsscesctauseusenusteesersunes 291 iii TABLE OF AUTHORITIES Page CASES Ake v. Oklahoma (1985) 470 U.S. 68 [105 S.Ct. 1087, 84 L.Ed.2d 53] oe. 243, 245 Bobby v. Van Hook (2009) 130 S.Ct. 13 [175 L.Ed.2d 255] wo ceccceetseeseteeeeteees passim Coleman v. Thompson (1991) 501 U.S. 722 [111 S.Ct. 2546, 115 L.Ed.2d 640] wo. 243 Corenevsky v. Superior Court (1984) 36 Cal.3d 307... ceeccsecsecstecssecsnsesneceresneesseeesecseeeneeeneenesenees 239 Hambarian v. Superior Court (2002) 27 Cal.4th 826 oo... ccccccccccssccsssecsssecssecsseccesecsereceseeesneseneeseeetenes 25 Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892.0... ceceesseeneereeseeseceneeseeeeeesneeeneenrersees 107 In re Andrews (2002) 28 Cal. 4th 1234 oo cccccccccesssecsecetsecteeseeseeeereeneens 26, 268, 269 In re Avena (1996) 12 Cal.4th 694 ocecccsccsseeccnsessnecseeecseeseneesenecsnersressetens 107 Inre Burton (2006) 40 Cal4th 205 oo... cecccccecccsssneeeseeecesaeeceseeeesneesesneesensessnneeees 10 In re Cox (2003) 30 Cal.4th 974 ooo cccccsccssseccstseestesesseceneesteeeeaes 22, 23, 65, 273 In re Roberts (2003) 29 Cal. 4th 726 ...cececcesccscessccecnecsecsseecnecsnessaeesaeseereneeeneeneeeets 144 Inre Ross (1995) 10 Cal.4th 184 ooccececcsssecscecssneceseeseaeessaeeeneeennesenes passim In re Scott (2003) 29 Cal4th 783 .o..ccccecscccssscecsecsecesssecessnceesterersneeeessaeenaes passim iv TABLE OF AUTHORITIES (continued) Page In re Spencer (1965) 63 Cal.2d 400...ec ceeceeseeeseeeseeeseesnessneesnerseessneersaeessseentes 56, 58 Johnson v. Avery (1969) 393 U.S. 483 [89 S.Ct. 747; 21 L.Ed.2d 718]eens 243 Keenan v. Superior Court (1982) 31 Cal.3d 424.icccescccsceteeeneeseeeeeseecnseesteeesseeenaeteeeeneess 183 Lockett v. Ohio (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] oo eeeeeeeeee 69 Mickey v. Ayers (9th Cir. June 7,2010) = F.3d __ [2010 WL 2246411]ee. 8, 86 Murray v. Giarratano (1989) 492 U.S. 1 [109 S.Ct. 2765, 106 L.Ed.2d 1]oe243 People v. Bacigalupo (1991) 1 Cal.4th 103 oieeceeesresseeneeneeeseeneenesneesseetesseesseseesenees 175 People v. Bassett (1968) 69 Cal.2d 122... ecccecesceceeetereesneesaeeneeseetseestaeessaeenats passim People v. Blair (2005) 36 Cal.4th 686 oo... ccccccecscecsneereeeseeeneeeateaeceareeseeenteesseetaees 243 People v. Champion (1995) 9 Cal.4th 879 ooo ccccesceesseeseereseeseesssecseesieesesesnseesearenaes passim People v. Dickey (2005) 35 Cal4th 884 oocccscesnecneceeceereresssseessesesesseessnesaernesats 123 People v. Gardeley (1996) 14 Cal4th 605 oooeeeeesceseeseeseeeeeseeseeeeesseeeeeseesesens 107, 196 People v. Guerra (2006) 37 Cal.4th 1067 oo... cceeceecccseeseeseeseceeeeeceaeeecseeteneseeeeeeseesees 242 TABLE OF AUTHORITIES (continued) Page People v. Hall (1986) 41 Cal.3d 826.0. cececseeseeenetecesnesseerseereeeeneeestenseens wee 215 People v. Hamilton (2009) 45 Cal4th 863 ooo cceseeceesceeceeeesecsereeeeseseeeeseesaeesaeeareees 216 People v. Harris (2005) 37 Cal.4th 310 iceesesssceseereeeseeenserseetseesteeeseesssesatens 67, 69 People v. Kaurish (1990) 52 Cal.3d 648 oo. ececcsceeteeeneereeeeeeseetteesneeeneees 215,216, 217 People v. Panah (2003) 35 Cal4th 395 oo ciecceeseeeeresseceseseneeseesesneesaaeneeens 244, 245 People v. Ray (1996) 13 Cal.4th 313 oieeeceeeeseteeneesneeseceiseseesseeseseensesesrens 174 People v. Rundle (2008) 43 Cal.4th 76 occccececseeteeeseenteeneteeeeesaeesneerteesetneeenetees 243 People v. Samayoa (1993) 15 Cal4th 795 cecceeseeseesesereeeenseeserseesereeeseeeeaeens 243, 244 People v. Vargas (1973) 9 Cal.3d 470. cecceeccececcseceneecsisersneesseeseeesseeeseneeesesenseeeseeeeate 24 People v. Waidla (2000) 22 Cal.4th 690 oieeeccssceneeesseecearecseseneeseneeeentessaeseneeens 247 People v. Wolff (1964) 61 Cal.2d 795oececccccsecteeseetessaetsresseeseaeenaeeneeersessaesatens 106 Porter v. McCollum (2009) 130 S.Ct. 447 oeeeccscereseeeeenesneesseeseessnesssesseesseesenereeenenats 75 Rompilla v. Beard (2005) 545 U.S. 374 [125 S.Ct. 2456, 162 L-Ed.2d 360]... 84 vi TABLE OF AUTHORITIES (continued) Page Kentucky v. Stincer (1987) 482 U.S. 730 [107 S.Ct. 2658, 96 L.Ed.2d 631]...ee. 25 Stricklandv. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]... passim Tennard v. Dretke (2004) 542 U.S. 274 [124 S.Ct. 2562, 159 L.Ed.2d 384]... 67, 69 Verdin v. Superior Court (2008) 43 Cal.4th 1096 oo... ccccccsseeessseeserecssseestesssareetineesetens 31, 33 Vinson v. Superior Court (1987) 43 Cal.3d 833cccecccccssesseecesseeseneeeseeesteetssseesseecsseeeneesenes 58 Wiggins v. Smith (2003) 539 U.S. 510 [123 S.Ct. 2527, 156 L.Ed.2d 471]we 84 STATUTES Evid. Code, § 412 .....cceccecessseeetseseneees seeeeneseeneseeneneeneenenees 24, 248, 279 Pen. Code, § 186.22 veces... cusessuuscestssesessuvessasasecssssusesessesessistessueesssnenees 195 Pen. Code, § 190.3 cesssssesssssssvsssssssssssssssssesesseccecessessssssesesseeeees 175, 176, 271 CONSTITUTIONAL PROVISIONS USS. Const., 14th Amend......ccccccccccccccsseeeesssseeesseueesueeesseseserenesses 243 OTHER AUTHORITIES CALJIC 6.11 eee ceeccecsneceenneesteceeeneeeeacecesaeeenaeeseeeseeeenaeeesneeepeaaeeras passim http://www.supremecourtus.gov/about/biographiescurrent.pdf........... 108 vii INFRODUCTION Spanning nearly two years for the presentation of evidence, oral argument and written submissions of proposedfindings by counselfor the parties, and generating a record consisting of approximately 10,000 pages of reporter’s transcript and thousandsofpagesofexhibits, the reference hearing ordered by this Court concluded with the appointedreferee filing his 377 page Referee’s Report (hereinafter “RR”or “report”). In that carefully crafted and meticulously detailed report, the Referee provided a concise, seven-page summaryoutline of his overall findings. (RR 10-16.) Whenaddressing each ofthe first four reference questions, the Referee first provided an initial “Summary of Referee’s Findings” (RR 18-19 [Reference Question 1]; 78-88 [Reference Question 2]; 262-272 [Reference Question 3]; and 287-298 [Reference Question 4]).’ Followingtheinitial “Summary”provided for Reference Questions 1, 2 and 3, the Referee then outlined the “Evidence Adduced during Reference Hearing” with respect to those three questions. (RR 19-24 [Reference Question 1]; 89-166 [Reference Question 2]; and 298-312 [Reference Question 3].) In these outlines, the Referee included a numberoffindings relevant to the particular reference question, but without citation to the underlying record. Rather, the Referee provided with respect to each ofthe first four reference questions a “Detailed Discussion of Evidence and Findings”that restates many of the findings previously set forth, sets forth many additional findings, provides thorough analysis and, with painstakingclarity, references the basis in the record to support the various findings reached by the Referee that are set forth throughout the report. (RR 24-76 [Reference ' In light of the brevity of discussion and findings required with respect to Reference Question 5, the Referee provided no summary with respect to that reference question. Question 1]; 167-262 [Reference Question 2]; 272-287 [Reference Question 3]; and 312-375 [Reference Question 4].) Finally, the Referee completed the body of his report with the “Referee’s Conclusions.” (RR 376-377.)° As will be detailed below, noneofpetitioner’s exceptionsto the Referee’s report and findings has merit. Petitioner fails in many,if not most instances, to address the Referee’s “Detailed Discussion of Evidence and Findings.” Further, even whenpetitioner cites to the record in support of a particular exception, petitioner tends to understate, overstate, or, in someinstances, misstate that record. For the reasons that follow, respondent urges this Court to reject each and every exception by petitioner to the Referee’s findings and report. * The Referee hasalso provided this Court with a roadmap of how the _ Referee utilized the proposed findings submitted by the parties. (RR 17 [“In drafting my report, I included or incorporated counsel’s proposed findings where appropriate, but only after considering the merits of counsel’s arguments and reviewing the actual testimony, documents or evidence. Some ofcounsel’s proposedfindings were modified, deleted or augmented as deemed appropriate’, italics added.) I, BECAUSE EACH OF PETITIONER’S PROPOSED EXCEPTIONS To THE REFEREE’S REPORT AND FINDINGS IS DEVOID OF MERIT, THIS COURT SHOULD REJECT ALL OF THem? A. Petitioner’s Exception That “There Is No Basis For The Referee’s Finding That Skyers Obtained A Penalty Phase Evaluation From Pollack” (PB 46-47.) Withoutcitation to the report, petitioner contendsthat the Referee made a finding “that [trial counsel] Skyers obtained a Penalty Phase evaluation from [Dr.] Pollack.” (PB 46-47.) Petitioner then proceeds to quote from pages 45-46 of the report in which the Referee foundthat trial counsel “did not specifically ask Dr. Pollack to conduct a social history evaluation of petitioner’s life for the specific purpose of developing potential penalty phase evidence.” (RR 45.) Contrary to petitioner’s contention, what the Referee actually found concerning Dr. Pollack dealt with the adequacy of a penalty phase assessmentofpetitioner’s mental health, including cognitive functioning and impulse control. The Referee explained, In light of the express findings made by Drs. Brown, Pollack and Imperi, the referee finds [petitioner’s Strickland expert’s| opinion that the referral to Dr. Pollack was inadequatefor penaltyphase assessmentofpetitioner’s mental health, including cognitive functioning and impulse control, “is not supported by the evidence.” (Cf. CALCRIM No. 332.) [§] Similarly, despite the findings by Dr. Perotti, some of which were read into the record for Earley’s consideration (RHT 4508-4511), Earley refused to concedethat if * On pages 6-7 ofPetitioner’s Brief (hereinafter cited as “PB”), petitioner lists in generic terms the 6 areas of findings to which petitioner takes exception without citation to the record of the Referee’s report where these findings can be located. As such, rather than attempt to provide a shotgun responseto petitioner’s amorphous claims of exceptions, respondent addresses the specific exceptions set forth later in the brief. * This appears to bethefirst specific exception petitioneris raising to the referee’s findings. Skyers had read the three reports from Drs. Brown,Perotti and Pollack in preparation for petitioner’s trial, “he could reasonably reach the conclusion that a psychologist and two psychiatrists, who assessed this man both before and after the crimes, all reached the same conclusion that he has no mentalillness, defect or disease[.]|” (RHT 4512.) The opinion from petitioner’s Strickland expert is unreasonablein light of what the medical reports of 1978-80 state. [{] The lack of support for Earley’s opinions is confirmed by testimony from respondent’s experts, Drs. Hinkin and Faerstein, whose opinions and rationale the referee finds to be reliable and objective. [{] In short, reasonably competent counsel conducting the appropriate investigation for penalty phase evidence would have been well within the standards of competent practice to have doneat petitioner’s penalty phase exactly as petitioner’s trial counsel did. (RR 285-286, alteration in original; italics added.) Rather than provide this Court with the entirety of the relevant findings by the Referee on the subject of the Dr. Pollack referral in the paragraphcited by petitioner in his brief, petitioner conspicuously omitted the remainder of the Referee’s findings in the paragraph beginning on page 45 of the report and concludingat line 20 of page 46. Those findings read as follows: Rather, the record is equally clear that Skyers independently conducted the investigation “relative to defendant’s background” by (1) interviewingpetitioner, petitioner’s mother, petitioner’s two older sisters, and petitioner’s older brother, Reginald and (2) reviewing petitioner’s CYA file which included the psychological and psychiatric reports of Drs. Prentiss, Minton, Perrotti and Brown, as well as the January 4, 1979 case conference report (Exhibits D, I & J), the December 13, 1978 Initial Home Investigation Report (Exhibit H), the December 12, 1979 Youth Training School Case Report (Exhibit G-13), Exhibit 23-A and the November8, 1978 Juvenile Court probation report (Exhibit 147.). Finally, Skyers had thebenefit of the report prepared by Drs. Pollack and Imperi, which provided additional insight into petitioner’s background with respect to drug use, schooling, contacts with the legal system andpetitioner’s future intentions. The report also provided Skyers with expert opinion that petitioner did not suffer from any brain disorder or dysfunction or any cognitive or volitional impairment, whetheror notrising to the level of a mental defense or legal insanity. Information of this type would be relevant to any evaluation of whether Penal Code § 190.3, factors (d), (h) and (k), applied to petitioner.! (RR 46.) Thus, the Referee’s findings and the underlying supporting record discredit petitioner’s contention that “[i]n the areas ofsocial history mitigation investigation, Skyers undertook no investigation ....” (PB 40.) Similarly, the Referee’s findings and the underlying documentation set forth in his report concerning Skyers’s investigation of petitioner’s background(see, e.g., RR 23 [“Interview of Family Members (Factors D, H and K)”]; 26-31 [“Skyers’ Conversations with Petitioner and Family Members”); 31-43 [“Skyers’ Review ofPetitioner’s CYA File, Including Psychiatric and Psychological Reports and Initial Home Investigation Report”]; & 46) undermine petitioner’s own characterization of what the Referee found with respect to Skyers’s investigative efforts: “In finding trial counsel’s investigation deficient, the referee noted that counsel’s investigative efforts into petitioner’s life history was limited to asking ‘open ended’ questions ofa limited numberofpetitioner’s immediatefamily members, reviewing documents provided by the prosecution through discovery andperhaps, a cursory review (but not obtaining) ofa small 5 “Respondent’s expert witness, Dr. Faerstein,testified that in 1981, Dr. Pollack was familiar with the capital case sentencing structure in California. Dr. Pollack would know whatcrime or crimescarried potential capital sentences, Dr. Faerstein would have expected Dr. Pollack to know in 1981 that a person suchas petitioner, charged with two counts of murder and two counts of robbery with the allegation that the murders were committed during the commission of the robberies, would face a potential capital sentence. (RHT 6492.) Skyerstestified that the report by Drs. Pollack and Imperi, Exhibit 46, provided him with no basis to offer mitigating evidence under Penal Code section 190.3, factors (d), (h) or (k). (RHT 1238-1240.) Skyers testified that the same wastrue with respect to Dr. Minton’s December 15, 1978 psychiatric report (Exhibit D). (RHT 1311.)” (RR 46, fn. 20.) numberofpetitioner’s juvenile records. (Report at pp. 10, 23, 31.) (PB 3- 4; fn. omitted, italics added.) Simply put, the Referee never made the finding to which petitioner now asserts in the exception set forth at pages 46-47 ofhis brief. The Referee’s actual finding -- that the referral to Dr. Pollack was adequate for penalty phase assessmentofpetitioner’s mental health, including cognitive functioning and impulse control ~ is amply supported by the record. The Referee sets forth in elaborate detail the bases for these findings. (See, e.g., at pp. 10-14 [“Summary of Referee’s Findings”re: “Investigation by Trial Counsel;” “Non-Disclosure of Family History;” “Claim of Brain Damage;” and “Petitioner’s Family Background”; 18-19 [“Summary of Referee’s Findings” re: Reference Question 1 |; 26-31 [‘‘Petitioner’s Social History, Mental and Physical Impairments [{]] a. Skyers’ Conversations with Petitioner and Family Members”); 31-43 [“Skyers’ Review ofPetitioner’s CYAFile, Including Psychiatric and Psychological Reports andInitial HomeInvestigation Report”]; 43-71 [“The December2, 1981 Report by Drs. SeymourPollack and Lillian Imperi (Exhibit 46)”]; 80-83 [“Summary of Referee’s Findings” re: Reference Question 2 on subject of “Brain Damage’’]; 85-86 and 87-88 (“Summary of Referee’s Findings”re: Reference Question 2 on subjects of “Sibling Abuse,” “Family Matters,” “CYA Reports,” “Petitioner’s Statements,” “Ronald Skyers’ Credibility” & “Mrs. Champion’s Credibility]; 186-193 [Mental Impairments’’]; 218-224 [“Trial Counsel’s Testimony and Credibility’’]; 230-234 [“Sibling Abuse”]; 240-244 [“The Impact of Family Abandonment by Petitioner’s Biological Father, the Death of Trabue Sr. and General Family Chaos on Petitioner’s Functioning and Development”; 247-259 [“Evidence of Petitioner’s ‘Institutional Adjustment’ at the CYA”’]; 267-269 [“Summary of Referee’s Findings” re: Reference Question 3 on subjects of “CYA mental evaluations” & “Petitioner’s family/social history]; 270-272 [“Summary of Referee’s Findings” re: Reference Question 3 on subject of “Conclusions Concerning Trial Counsel’s Performance”): 276-286 [‘Petitioner’s Social History, Mental and Physical Impairments” addressing the testimony of © petitioner’s Strickland expert with respect to the Pollack referralissue - see, e.g., p. 282 (“Earley’s erroneous understanding of what the Drew and M’Naghten tests actually assess demonstrates an additional reason to conclude that his opinion, deemingthereferral to Dr. Pollack as inadequate, is unreasonable”(fn. omitted))]; 287-288 (“Summary of Referee’s Findings” re:Reference Question 4, “1) Petitioner’s family members did not disclose any adverse family history toSkyers” & “5) The referee agrees with petitioner’s claim that Skyers should have interviewed CYAstaff and doctors. No circumstance precluded this investigation. However, in view of the extensive psychological CYA evaluations available and the consistency of the doctors’ findings, the referee finds that reasonably competent counsel did not need to conduct further psychological evaluationsor testing, including neuropsychological examination. As previously stated, the referee finds that Skyers had access to and did review the CYArecords including the doctors’ reports”]; 289-290 [Summary of Referee’s Findings” re: Reference Question 4 on subject of significant factors weighing against the presentation of additional mitigating evidence, factors 1), 2), 4) & 5)]; 295-296 and 297-298 [“Summary of Referee’s Findings” re: Reference Question 4 on subject of potential prosecutorial rebuttal evidence not presented at petitioner’s 1982 trial, item “x) CYA Amenability” & item “xiv” discussing petitioner’s Strickland expert (“He did not review the entire Mallet preliminary hearing ortrial proceedings. He did not review most of Mr. Skyers’ reference hearing testimony. He did not review the reference hearing testimony of Harris, Bogans and Player and he seemed unfamiliar with some of the CYA doctor evaluations. Earley also had a marked tendency to evaluate Mr. Skyers’ trial performancefor omissionsfrom the perspective ofwhat he would or would not do in a capital case in lieu ofapplying the Strickland standards .... Nevertheless, this court must adhere to principles of law that require a showing as to what a reasonable competent attorney (not the best) would or would not do. This court can not grant latitude where serious omissions have been shownto exist such as the lack ofreview ofevidence or testimony that was not considered by an expert witness’) (italics added)]; 312-323 [Materials Not Provided to or Reviewed by Petitioner’s Strickland Expert’|; 376-377 [“Referee’s Conclusions” on subjectsoftrial counsel’s conscientiousness and credibility].) Petitioner’s argumentis built almostentirely on the discredited opinions of petitioner’s Strickland expert. (See, PB 47-53.) Further, while arguing that “[r]easonably competent counsel would have developed petitioner’s history and determine from that history what sorts of experts to consult[]|” (PB 53), petitioner fails to address the Referee’s finding that “nondisclosure of family history by petitioner or membersofhis immediate family was purposeful and that no attorney or investigator could have acquired or developed the family mitigation now presented in view ofthe failure to disclose.” (RR 11; see Mickey v. Ayers (9th Cir. June 7, 2010) F.3d [2010 WL 2246411], at *15 [finding no ineffective assistance for failure to investigate or present newly minted mitigation themes concerning social history and psychological problems, noting that counsel is entitled to rely on information provided (or withheld) from the client].) 1” ceConcerning this “purposeful” “nondisclosure of family history by petitioner or members of his immediate family,” the Referee made extensive findings that are supported by substantial evidence. (See RR 26- 31, 218-224, 268-269 [“Skyers’ reference hearingtestimony is very | _ credible. Skyers did visit petitioner’s homeand interviewed key family members. No information was disclosed by family membersas to poverty, financial difficulties, sibling abuse, brain damage dueto fetal abuse, head injury, head traumainflicted by older brothers, petitioner’s gang involvement, the impact on the family and petitioner resulting from Trabue Sr.’s death and the lack of father figure. []] Le [|] Reference hearing witnesses Gary Jones, Harris, Bogans and MarcusPlayertestified in a mannerinconsistent with petitioner’s current claim of poverty, malnutrition and inadequate clothing. In the view of family members, fellow gang members and friends,petitioner was very bright and liked to be a leader. [‘|] A complete absence of documentation by non-family membersis not a small matter. No medical records support petitioner’s claim of fetal abuse, head injury, infliction of head traumaby older brothers or physical abuse. [{] Mrs. Champion’s prior statements to school authorities or CYAstaff were significantly inconsistent with her testimony during the reference hearing.”’].) For all of the foregoing reasons, petitioner’s exception to the Referee’s finding concerning the referral to Dr. Pollack is without merit and should be rejected. B. Petitioner’s Exception That “Skyers Did Not Review The CYA Mental Health Evaluations As Proposed By Respondent” (PB 54.) Without providing any citation to the report, petitioner contendsthat the Referee’s “finding that Skyers reviewed petitioner’s CYA records”is “unsupported[.|” (PB 54.) While petitioner’s assertion that “Skyers did not testify that he had either the recollection of retrieving the documents after viewing them in court and copies of the documents werenotin petitioner’s trial file[]” is correct with one exception (PB 54; italics added)°, the Referee ° In the materials brought by petitioner’s habeas counselto the hearing and represented to be Skyers’s files, two copies of the March 25, (continued...) never found that Skyers “retrieved” the CYA documents. These CYA documents included the psychological and psychiatric reports of Drs. Prentiss, Perotti, Minton and Brown (Exs. D, J & I), the Home Investigation Report detailing a CYA investigator’s December 11, 1978 visit to. petitioner’s home during which time petitioner’s mother was interviewed (Ex. H), the December 12, 1979 Youth Training School (YTS) Case Report (Ex. G-13), the March 25, 1980 YTS Case Report (Ex. 23 A- 1) and the November8, 1978 juvenile court probation report prepared as part of the 1978 juvenile adjudication of petitioner for assault with a deadly weapon, an adjudication which ultimately led to a disposition committing petitioner to the CYA (Ex. 147). Rather, the Referee consistently found that Skyers “reviewed” these materials. (RR 11, 19, 32, 46, 186-187 & fn. 96, 222, 256, fn. 145, 265 [“Skyers did review petitioner’s juvenile criminal history and he did interview a parole official”] & 288.) (...continued) 1980 Youth Training School (“YTS”) status report were identified and markedas exhibits, Exhibits 23 A-1 and 26 B. ’ In Exhibit 39 (Respondent’s List of Pertinent Citations, Volume1), respondentset forth the reference hearing testimony demonstrating a lack of integrity in the “Skyers’ Legal File” (Exs. P-1 through P-31; Ct. Ex. 1) produced by petitioner’s habeas counsel at the hearing. (Ex. 39, pp. 2-3.) While the Referee chose not to addressthis issue in his report, the lack of integrity in the file produced bypetitioner’s counsel is relevant when petitioner, who bears the burden of proving any fact essential to the relief requested, contendsthat deficient performanceis reflected by the absence from “Skyers’ Legal File” of what petitioner contendsare essential documents to be contained withincompetent counsel’s file. This is especially so when one remembersthat at the time Skyers testified at the reference hearing, he was being asked about events that occurred approximately 25 years earlier. (Cf. Jn re Burton (2006) 40 Cal.4th 205, 216-217 [“Burton complainsfirst that [trial counsel’s] memory on this issue was ‘extraordinarily poor’ in that he could not recall precisely when he had informed Burton ofhis intended strategy, nor could he relate any details of (continued...) 10 Petitioner’s contention that “[t]here is no circumstantial evidence upon which one can make a finding based on substantial evidencethat Skyers retrieved these documents” (PB 54, italics added) is not completely accurate even as stated, because “Skyers’ Legal File” produced by petitioner’s habeas counsel at the hearing contained two copiesofthe March 25, 1980 YTSreport. (See fn. 6, ante.) However, if one substitutes the word “reviewed”for petitioner’s use of the word “retrieved,” the evidentiary record at the hearing completely underminesthe contention. There is powerful direct and circumstantial evidence to support the Referee’s factual determination that Skyers did review all of the aforementioned CYA records monthsbefore petitioner’s trial began. The Referee set forth in detail on pages 31-32 of his report the evidentiary basis on which he supports his finding that Skyers reviewed petitioner’s CYA file.’ As the Referee explained, “Althoughinitially uncertain as to whether he had reviewed petitioner’s CYA file or that of another client at the parole (...continued) their conversations on the issue, and that [trial counsel’s] recollection was rarely, if ever, refreshed by written materials. Yet, as the referee observed at the hearing,it is understandable that[trial counsel] would have difficulties reconstructing his thinking and would be unableto recall details of conversations that occurred 20 years earlier.”|.) ® The Referee set forth in his reportat pages 32-46 a detailed account of what information trial counsel gleaned from his review of these materials, as well as from his review ofthe report of Drs. Pollack and Imperi, and how this information dovetailed with information Skyers obtained from his multiple interviews with petitioner, petitioner’s mother, his older sisters and older brother Reginald. The Referee also noted the absence from these records of any information which petitioner’s habeas counsel contends should have been discovered and presented as mitigation at petitioner’s penalty phasetrial such as the 1968traffic accident and death of petitioner’s stepfather, Gerald Trabue,Sr. 11 office on Bullis Road [citations|, Skyers ultimately testified it was petitioner’s CYA file which he reviewed, including the psychological and psychiatric reports of Drs. Audrey Prentiss ..., Michael J. Perotti... , Daniel Minton ... and Richard C. Brown,Jr... . (Exhibits D, I and_J) [Citations|.” (RR 31, fn. omitted.) Among the exhibit referencescited by the Referee in support of this finding are Exhibits 20-G, 20-L, 2-GG,2-II, and 23 A-1, documents located within the “ Skyers’ Legal File” produced by petitioner’s habeas counsel at the hearing. (/bid.) Skyers testified that Exhibit 20-G reflects two notes that he wrote. Thefirst note, dated September 16, 1981, provides the address for petitioner’s CYA parole office on Bullis Road and the nameofpetitioner’s parole officer, Mary Bullin. (RHT 1224-1225.) Skyers testified that the reason he would need the addressofpetitioner’s parole office was either to allow him to go to the office to look at the records or to know whereto send a release form to obtain copies of the records. Skyers could think of no other reason for having the Bullis Road address ofpetitioner’s CYA parole office. (RHT 1226.) The second handwritten note on Exhibit 20-G, dated February 8, 1982, reflects a conversation Skyers had with a person at the paroleoffice named Hawthorne, who informed Skyers that Ms. Bullin had retired and that Skyers would need an authorization from petitioner to see petitioner’s file. (RHT 1226-1227.) Skyers could think of no reason for the information contained in this note other than as a reflection of his intention to obtain a release from petitioner to allow Skyers to view petitioner’s file at the CYA parole office. (RHT 1227.) Exhibits 2-I] and 2-GG are the original and photocopy respectively of a release signed by petitioner and dated February 11, 1982 (three days after Skyers’s conversation with Hawthorneat the parole office). (RHT 1228.) 12 From Skyers’s review of these documents and the two copies of the March 25, 1980 YTSreport found within the “Skyers’ Legal File” produced bypetitioner’s habeas counsel at the hearing, Skyerstestified that “Ti]t would only be [petitioner’s| case” for which he wentto the Bullis Road office to look at a client’s file. (RHT 1430.) The Referee noted in his report that “[p|rior to undertaking petitioner’s representation, Skyers had acquired extensive experience handling juvenile court cases, which included gaining familiarity with the process needed to obtain juvenile court records with either an authorization or subpoena duces tecum. (RHT 1004.)” (RR 32, fn. 7.) Skyers made clear the basis on which he was able to say that he reviewedpetitioner’s CYA parole file including the reports from the four doctors: Mybelief that I have reviewed thesefiles, and I don’t think I have said that I am certain, but my belief is based on the fact that I had a signed authorization from Steve in his own handwriting to get his C.Y.A.file. Andthat these files would have beenat the C.Y.A.” I have notes where my memory wasrefreshed that showed that I went to the Bullis Road addressto get the files. And based on that, my statementis that I would have reviewed them,if I took the time to go there and get them, that I would have reviewed them. Andif I did I would have seen these reports. So that’s the kind ofcertainty that I am talking about. (RHT 5083.) Skyers’s reference hearing testimony, coupled with his experience as a juvenile court practitioner familiar with the expected contentsoffiles maintained at CYA parole offices and the exhibits contained within the ” “While Skyers had no independent recollection as to whether he had reviewed Exhibit H or had obtained a copyofthat exhibit, in light of Skyers’ testimony thathe expected this report would be in petitioner’s C.Y.A.parole file and his subsequent testimony that he did in fact review that file, it is clear that Skyers did review Exhibit H before petitioner’s trial began. (RHT 1330-1331.)” (RR 32,fn. omitted.) 13 “Skyers Legal File” produced for the hearing by petitioner’s counsel, constitute substantial evidence amply supporting the Referee’s finding that Skyers did review the records set forth on page 32 of his report. As such, petitioner’s exception should be rejected.'° C. Petitioner’s Exception That “The Referee Erred In Rejecting Dr. Riley’s Conclusion That Petitioner, As Of The Time Of His Trial In 1982, Suffered From Longstanding Neuropsychological Dysfunction” (PB 107.) Petitioner contends: “The referee found that petitioner did not suffer from brain damage or dysfunction in 1982 when petitioner’s case wastried. (Report at pp. 186-193.) Petitioner takes exception to this finding.” (PB 107.) Petitioner’s exception should be rejected. The Referee set forth both detailed outlines of his findings concerning petitioner’s claim of brain damage (see RR 12-13, 80-83, 129-130), and provided an extensive review of the evidence with citations to the record supporting those findings (see RR 46-71 [review of the testimony from Drs. Hinkin and Faerstein], 186- 193; see also id. at p. 52,fn. 25, pp. 194-233, pp. 240-242 & fn. 132, pp. 244-259 & fn. 148 [‘“further, not only would reasonably competent counsel not seek to present evidenceofinstitutional adjustment for the reasons already discussed, evidence that petitioner had the ability to successfully manipulate staff, including doctors, at the CYA runs counter to claims raised in this proceeding that petitioner suffers from brain damage and low intellectual functioning”, pp. 267-268, 271-272, 288-292). '° Although not specifically designated as an exception,petitioner appears to raise a complaint concerning petitioner’s background. (See PB 59 [claiming the referee “erroneously concluded”that certain mitigating evidence would not have been available because of family secretiveness.) ‘ Respondent fully addresses the reasonableness of the Referee’s conclusions in this regard beginning at page 72 ofthe instantbrief. 14 For example, the Referee found: 4. Brain Damage a) Petitioner’s habeas counsel had Dr. Riley test petitioner in 1997. As aresult of those tests, Dr. Riley’s opinionis that petitioner suffers from brain damage. The possible source of brain damageis fetal abuse, traffic accident headinjury or physical abuse by older brothers. Dr. Riley’s opinion is not supportable. Mrs. Champion’s prior statements to schoolofficials and CYA authorities are inconsistent with her post conviction declaration and her brother’s reference testimony as to fetal abuse. The absence of medical records or police reports does not assist claims of head trauma causedby fetal abuse,traffic accident or physical traumaat the handsof older siblings. Petitioner’s statements to CYA doctorsorstaff are inconsistent with this claim. The opinions rendered by Drs. Hinkin and Faerstein are inconsistent with Dr. Riley’s findings and consistent with contemporary psychological/psychiatric evaluations conducted by CYA doctors between 1978 and 1980. b) Petitioner told Dr. Riley he hurt his collarbone in the 1968 car accident. He did nottell her he hurt his head. Cc) Dr. Hinkin, Dr. Faerstein and Dr. Riley are all impressive, well qualified witnesses. However, I foundit disquieting that Dr. Riley clearly stated in her report that petitioner’s brain damage was attributed to in utero events but would later seek to distance herself from heroriginal position by stating it was awkwardly stated. Dr. Riley lectures other doctors on the importance of proper phrasing of opinions so as to maximize the impact on jurors. d) Dr. Hinkin and Dr. Faerstein’s opinionsthat petitioner did not suffer from brain damageat timeoftrial are credible. e) Dr. Hinkin’s opinion that Dr. Riley’s scoring ofpetitioner’s test results wasnotreliable is credible. f) Dr. Riley’s administration, scoring and opinionsas to the existence of brain damage and cognitive impairmentare discussed in a detailed manner. The referee finds that her scoring processis flawed. g) Dr. Riley’s decision to allow petitioner’s counsel to be present during the testing of petitioner constitutes a major defect. The presence of an extremely interested party during the neuropsychologicaltesting of petitioner violates basic test standards. No rational reason for allowing counsel to be present was provided. 15 h) The psychological evaluations performedprior totrial by six separate doctors are found to be consistent and credible. i) All ofthe doctors who examinedpetitioner prior to trialfound he did not sufferfrom any mental defects, disorders or significant impairments. Not one ofthe six doctors recommended additional psychological or neuropsychologicaltesting ofpetitioner. j) Dr. Prentiss found no neurological impairments. k) The referee finds that Skyers did not have any reason to order any additional evaluations based on his review ofexisting examinationspriortotrial. 1) Petitioner’s school records, the evaluations performed by CYA doctors and Dr. Pollack/Imperi’s report revealed some impairment. These records/documentsexisted at time oftrial. The referee finds that Skyers did not gather or review the school records. The referee finds that Skyers did gather and review petitioner’s CYA/YTSrecords. The school records and CYA/YTSrecords are credible. m) Petitioner’s pre-trial impairments that were identified were a low IQ, low intellectual functioning, reading and learning difficulties, attention deficits, a flat affect, deficiency in ability to conceptualize, low self esteem, impulsiveness and a bad temper. The referee finds this information credible and available at time oftrial. n) The referee accepts Dr. Miora’s (as well as Dr. Riley’s) opinionthat petitioner has strong verbalskills. 0) A major discrepancy was noted between Dr. Miora’s written report and her reference hearing testimonyas to the scope of her assigned reference question. Dr. Miora’s signed declaration under penalty of perjury states that her job wasto evaluate petitioner’s developmentand functioning. She also stated she uses a method of psychological evaluation that includes 3 major components, biological, psychological, and social history. The biological portion includesa review of any pre-natal trauma, but in her in court testimony she stated that her evaluation was limited from the time of petitioner’s childhood until the time of trial. Thus, she did not evaluate whether petitioner suffered fetal abuse. Given the fact that Dr. Miora seeks to consider family history that predates petitioner’s birth, it is amazing that for unexplained reasons, she limited her review ofpetitioner’s life experiences while testifying. Pp) Petitioner stated to Dr. Miora that his mother told family membersnotto talk about family business with others and that she 16 wassecretive. Dr. Miora observed that petitioner’s mother would not talk to others about matters that brought shameto her family. This information corroborates Skyers’ testimony that despite several conversations with petitioner and his mother, no one discussed family matters with him. q) Dr. Riley and Dr. Miora’s statements that petitioner has/had strong verbal abilities corroborates Skyers’ testimony that during his interviews with petitioner he did not notice anything abnormal about him. : (RR 80-83; italics added.) Aspreviously noted, in his report at various points, the Referee fleshed out the record supporting these detailed findings. The Referee explained, for example, [a]lthough [the Referee found] the issue of whetheror not petitioner suffers from brain damage applies more directly to reference question numbers 2, 3 and 4, the referee believes it is important to take into consideration that issue in assessing the significance of the evidence gleaned from Skyers’ pretrial investigation. As such, the referee will now summarize the relevant testimony of Drs. Faerstein and Hinkin concerning this issue, testimony whichthe referee finds to be credible andreliable. (RR 49.) The Referee then provided that summaryat pages 49-71 ofhis report. At pages 129-130 and 186-193, the Referee provided further analysis and record citation in support of his finding. As also previously noted, the Referee provided additional analysis and record citation in support of these findings later in the report. (See RR at p. 240, footnote 132 [noting Dr. Riley’s interview notes, while indicating that petitioner was a “good historian,” indicate that petitioner’s history regarding the traffic accident claimed only injury to petitioner’s “collarbone” without reference to any head injury], 267-268 [noting that the “medical reports, evaluations and opinionsthat petitioner is not mentally ill, does not have a mental disorder, defect, diseaseand functions overall, normally [as set forth in the CYA mental evaluations] normally would not have been presented[by reasonably competent counselat petitioner’s trial]. These examinations 17 were conducted by four separate doctors between 1978 and 1980. Reasonably competent counsel would have concluded that no further testing was necessary nor any further examinations warranted. []] (5) Petitioner’s family/social history. Skyers’ reference hearing testimonyis very credible. Skyers did visit petitioner’s home and interviewed key family members. No information was disclosed by family membersas to poverty, financial difficulties, sibling abuse, brain damage dueto fetal abuse, head injury, head traumainflicted by older brothers, petitioner’s gang involvement, the impact on the family. and petitioner resulting from Trabue Sr.’s death, and the lack of father figure. [{]] Beyond the non- disclosure are the additional factors that the primary witnessesthat this evidence would depend on are the family witnessesthat testified in support of petitioner’s alibi for the Hassan murders during the guilt phase. [{| Reference hearing witnesses Gary Jones, Harris, Bogans and Marcus Player testified in a mannerinconsistent with petitioner’s current claim ofpoverty, malnutrition and inadequate clothing. In the view of family members, fellow gang membersandfriends, petitioner was very bright and liked to be a leader. [{]] A complete absence of documentation by non-family membersis not a small matter. No medical records support petitioner’s claim of fetal abuse, head injury, infliction of head trauma by older brothers or physical abuse. [{] Mrs. Champion’s prior statements to school authorities or CYAstaff are significantly inconsistent with her testimony during the reference hearing. .. .”], 289-290 [Most of the significant factors that weighed against the presentation of the additional evidence have been discussedin reference questions numbers 1, 2 and 3. The following factors are briefly restated: [{] 1) The lack of credibility of key family members including petitioner’s mother andsister (Rita Champion Powell) whosealibi testimony had been rejected by jury. The availability to the prosecution of prior statements by petitioner’s mother and petitioner 18 to school, police and CYAauthorities that would impeachtheir reference hearing testimony or claimed mitigation. [§] 2) The lack of any documents to support the claimed mitigation of brain damage based onfetal abuse, traffic accident head trauma, or head injuryasa result of physical beatings by older brothers. [4]... [§]] 4) The existence of contemporaneous CYA psychological/psychiatric evaluations that petitioner did not suffer from any mental illness, defect, or disorders. These reports were written between 1978 and 1980 by four separate doctors and are consistent with each other. [{] 5) The absence of any evidence by any close family member, relative, friend, neighboror fellow gang member who would opinethat petitioner suffered from any type mental impairment during petitioner’s life’’], 290- 292 [hadtrial counsel offered mitigation evidence at petitioner’s trial that petitioner suffered from “mental impairments/brain damage/fetal abuse,” the “prosecution would have likely sought to introduce the following rebuttal evidence that is damagingto petitioner but was not presented atthe guilt or penalty phase: [{]...[]..-[9]... [9] Petitioner’s Development/Functioning Social history [4] i) The testimony of Harris, Bogansand Player given during the reference hearing undermines petitioner’s claim of poverty, malnutrition or physical abuse, poor home environmentor that petitioner was a follower or exhibits mental defects. [{] ii) The testimony of Gary Jones given during the reference hearing is inconsistent with petitioner’s claim of poverty, malnutrition or physical abuse. Jones describes their childhood as ‘we had a beautifullife.’ In his opinion, petitioner displayed leadership traits and wasathletic. He expressed high regard for Mrs. Champion as a mother. Jones recalled that petitioner was unable to participate in organized sports due to a lack of funds to pay required fees. [{[] ili) Petitioner’s mother’s statementto schoolauthorities that petitioner had a normal child birth (Exhibit CCC). [§] iv) Petitioner’s mother’s statement to CYA authorities that all was well 19 at home (Exhibit H). [§]] v) Petitioner’s statement to CYA authorities that he has a regular family with both sad and happy times and that he has had the usualsibling rivalry with his brothers which he did not view as a major problem (Exhibit I). Petitioner’s statement to CYA authorities that he is not a followeror easily influenced by others (Exhibit I). Petitioner told Dr. Mintonhehashad nocontact with his biological father (Exhibit DY’], underlining in original.) Despite the Referee’s impressive, carefully-detailed and documented analysis, and record citation in support of his findingsin this area, petitioner takes exception. First, without citation to the record, petitioner appears to contend that the Referee, Drs. Faerstein and Hinkin, the four CYA doctors who assessed petitioner between 1978 and 1980 (Drs. Prentiss, Perrotti, Minton and Brown), and Drs. Pollack and Imperi (who assessed petitioner for trial counsel in advance ofpetitioner’s 1982 trial) all limited their assessments or evaluations of petitioner’s cognitive functioning to “brain damage.” Petitioner contends that such an approach , “presumes a healthy brain having suffered some injury.” (PB 107-108.) But as the Referee’s report makes clear, the Referee found that “[p]etitioner did not suffer any brain damage asa result of 1) fetal abuse; 2), from a 1968 traffic accident; or 3) physical beatings ofpetitioner by siblings.” (RR 12.) In shott, “Petitioner did not sufferfrom substantial cognitive defects at the time oftrial. [§]] Petitioner’s neuropsychologist, while a ~ good witness and well qualified, lacked adequate foundation for the opinion that petitioner suffered in-utero brain damage or significant cognitive defects.” (Ibid., italics added.) Similarly, as previously noted, the Referee found that “Dr. Riley’s administration, scoring, and opinionsasto the existence of brain damage and cognitive impairment are discussed in a detailed manner. The Referee finds that her scoring processis flawed.” (RR 81, italics added.) As the Referee explained, “h) The psychological 20 evaluations performedpriorto trial by six separate doctors are found to be consistent and credible. [{]] i) All of the doctors who examinedpetitioner priorto trial found he did not suffer from any mental defects, disorders or significant impairments. Not one ofthesix doctors recommended additional psychological or neuropsychological testing ofpetitioner. [|] j) Dr. Prentiss found no neurological impairments.” ([bid., italics added.) ‘Petitioner’s school records, the evaluations performed by CYA doctors and Dr. Pollack/Imperi’s report revealed some impairment.... [4] m) Petitioner’s pre-trial impairments that were identified were a low IQ, low intellectual functioning, reading and learning difficulties, attention deficits, a flat affect, deficiency in ability to conceptualize, low self-esteem, impulsiveness and a bad temper. The Referee finds this information credible and available at time of trial.” (RR-81-82; italics added.) Asfurther detailed by the Referee, Dr. Hinkin testified thatit “was the conclusion ofall the psychological testing, as well as psychiatric evaluations that I had available for review,that they consistently concludedthat [petitioner] had no evidenceof any mental, emotional, organic disorder. Some usedtesting to help establish that. Some basedthat solely upon their diagnostic interview. But uniformly all the folks who saw [petitioner] when he wasin the CYA or whenhe wasin prison, concluded that he did not have any evidence of any neurological disorder.” The same applied to the assessments reflected in the reports of Drs. Pollack and Imperi and Dr. Faerstein. All of the reports, whether reflecting an assessment before petitioner’s crimes or after, uniformly concludedpetitioner had no brain damageat the time oftesting, the time of petitioner’s crimes or at the time of petitioner’s trial. “That’s my interpretation of all the data. Dr. Riley arrived at a different interpretation of her data and she opinedthat he has suffered brain damage, but my interpretation of her data, as well as the opinionsofall the other doctors you mentioned,I . found no evidence ofthat.” (RHT 6242-6243; see also RHT 6410- 6411 [out of all the various doctors’ reports reviewed by Dr. Hinkin, only Dr. Riley concluded that petitioner suffered from brain damage].) (RR 55; italics added.) 21 The record is eminently clear that neither the Referee nor any of the doctors at CYA, Drs. Pollack and Imperi, or Drs. Hinkin and Faerstein, limited their assessments of petitioner’s cognitive functioning and possible neurological impairment to an assumption that petitioner was born with a normalbrain. In fact, assessing whether petitioner showed evidence of neurological impairmentat time of birth was an important evaluation in light of petitioner’s contention that his mother was beaten during the course of her pregnancy with petitioner, and that petitioner suffered brain damage as aresult. The unanimity of expert opinion (with the exception of Dr. Riley) that petitioner in fact did not suffer from cognitive impairment or brain damageat time of birth further undermines petitioner’s apparent contention that the Referee and respondent’s experts employed too narrow a view of what constitutes “brain damage.” Petitioner further observes, in an apparentcriticism, that “[njone of the CYA experts were called by respondentto testify at the reference proceedings. Nor did respondentcall Dr. Imperi. Dr. Pollock [sic] died in 1982.” (PB 108.) Setting aside that it is petitioner’s burden to prove by a preponderanceofthe evidence each fact necessary to obtain the relief soughtin this proceeding! (such as the brain damage, cognitive 'l «A habeas corpus petitioner bears the burden ofestablishing that the judgment under which heorsheis restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderanceofthe evidence,facts that establish a basis for relief on habeas corpus. [Citation.]”’ [Citations.]” (Un re Cox (2003) 30 Cal.4th 974, 997-998.) “The referee’s findings offact, though not binding on the court, are given great weight when supported by substantial evidence. Deferenceto 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 manneroftestifying. On the other hand, any conclusionsof law or resolution of mixed questions of fact and law that the (continued...) 22 impairment, neurological deficits petitioner seeks to prove existed in 1982 and which petitioner contendstrial counsel was constitutionally ineffective . for not identifying and presenting at petitioner’s 1982 penalty phase), petitioner fails to acknowledgea stipulation entered into by petitioner’s habeas counsel and accepted by the Referee on August 14, 2006, Court’s Exhibit 26. Asrelevant to petitioner’s present contention, the Stipulation provides: DRS. AUDREY PRENTISS,DANIEL MINTON, MICHAELJ. PERROTTI AND RICHARD C, BROWN,JR. be deemed called this date, duly sworn, and to havetestified that: (1) each has no present _ recollection of their respective examinationsof petitioner, Steve Allen Champion, while petitioner was a ward in the California Youth Authority as reflected in the respective reports markedatthis reference hearing as respondent’s Exhibits D and J regarding Dr. Prentiss; J regarding Dr. Perrotti; D regarding Dr. Minton; and I regarding Dr. Brownand (2) despite reviewing the aforementioned exhibits relating to their respective examinations of petitioner, the present memory of each hasnot been refreshed as to the examinations performed by each while petitioner was at the California Youth Authority. (Ct’s Ex. 26, pp. 2-3; see also RHT 6808-6809[stipulation set forth in Ct’s Ex. 26 orally entered into on the record and Exs. D, I & J received in evidence]; RHT 7003-7004 [Ct’s Ex. 26 marked and signedby the Referee].) Petitioner also fails to point out that it was petitioner’s habeas counsel whoexpressed anintent to call Dr. Imperi as a witness on behalf of petitioner at the reference hearing. (See, Oct. 14, 2005 letter from Karen Kelly to DDA Brian Kelberg, Vol. 10 of 135, Item E, Vol. 4 of 8, pp. 1024- (...continued) referee provides are subject to our independent review.” (/d.at p. 998,fn. omitted, citations and quotation marks omitted.) 23 1035 [“Attachedis a preliminary list of witnesses I expectto call to testify at the reference hearing of Steve Champion. [4] ... Summaries of expected testimony is included for witnesses who did not execute declarations, prepare police reports or testify in proceedings attached to the pleadings in this case.” (p. 1024)]; id. at p. 1026 [‘*Lilliam [sic] Imperi....”]; id. at p. 1034 [“LILLIAN IMPERI [4] Dr. Imperiwill testify to the evaluation of Mr. Champion undertaken by Drs. Pollock [sic] and Imperi. Sheis expected [to| discuss her contact with Mr. Championand Mr. Skyers. Her opinions will include that the evaluation was an evaluation undertakenfor the purpose ofassessing the possible mental state defenses associated with defending against murder and not undertakenfor the purpose ofdeveloping penalty phase mitigation. Dr. Imperi is expectedto testify to the internal operating procedures ofthe Institute for Psychiatry and Law at the time of her evaluation of Mr. Champion.”(italics added).) Having expressed an intent to call Dr. Imperi as a witness at the reference hearing and then electing notto call her, petitioner was subject to having the Referee and now this Court draw an adverse inference from such failure. (See People v. Vargas (1973) 9 Cal.3d 470, 475, cited by the Referee at RR 360 and fn. 203.) In addition, this Court may invoke the rule embodied in Evidence Code.section 412 and invoked by the Referee: “If weakerandless satisfactory evidence is offered when it was within the powerofthe party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” The Referee invokedthis section in evaluating petitioner’s deliberate election not to call Lewis ChampionIII, Reginald Champion,“any of [petitioner’s] LAUSDteachers, any juvenile court probation officer or CYA psychologists, psychiatrists, 24 caseworkeror teacherofpetitioner’s during the period of time petitioner was at the CYA.” (RR 233.)!” ' In a related issue, petitioner erroneously contends, “respondent offered almost no evidence in rebuttal. [] Respondent offered absolutely no evidence in rebuttal which was not a noticed aggravator and/or already presented to petitioner’s jury.” (PB 32.) Contrary to petitioner’s contention, the Referee outlined some, but not all, of the potential rebuttal evidence the prosecution could have presented at petitioner’s penalty phase had petitioner offered mitigation evidence such as that presented by petitioner at the reference hearing. The Referee’s outline is clearly is at odds with petitioner’s contention that the rebuttal presented at the hearing by respondent constituted “almost no evidence... .” (RR 290-297.) For example, the Referee noted that respondent likely would have presented expert witnesses such as Drs. Hinkin and Faerstein to rebut any claims such as those set forth by Dr. Riley in her reference hearing testimony. Further, petitioner fails to recognize that much ofthe rebuttal evidence that respondent presented at the reference hearing was developed through respondent’s cross-examination ofpetitioner’s witnesses, includingtrial ‘counsel Skyers, petitioner’s mother and oldersisters, petitioner’s Strickland expert, and Dr. Riley. (See, e.g., RR 31-43 [the Referee reviews the contents of petitioner’s CYA file the Referee found trial counsel Skyers had reviewedpriorto petitioner’s trial].) As both this Court and the United States Supreme Court have recognized, “cross-examination is the “greatest legal engine ever invented for the discovery of truth.”’ [Citations.]” (Kentuck v. Stincer (1987) 482 U.S. 730, 736 [107 S.Ct. 2658, 2662, 96 L.Ed.2d 631]; see also Hambarian v. Superior Court (2002) 27 Cal.4th 826, 840.) Addressing a claim of constitutionally ineffective assistance of counselat the penalty phase of a capital case for which a reference hearing like petitioner’s had been ordered, this Court observed: Weagree with this general assessmentofthe realities of prosecuting a capital case. Based on the reference hearing testimony, we also concludethe thrust of the referee’s finding—that the prosecutor would have respondedto the mitigating evidence now proposed—is supported by substantial evidence and not necessarily inconsistent with [the trial prosecutor’s| testimony. It appears [thetrial prosecutor] disavowedthe likelihood of rebuttal only with respect to prison conditions. He did, however, indicate he would have altered the focus of his closing argument to respond to such evidence. It is also clear from the record that much damaging testimony regarding (continued...) 25 Petitioner contends that because the type of neuropsychological battery of tests administered by Dr. Riley to petitioner in 1997 was not administered by any of the four psychologists and psychiatrists who evaluated petitionerat CYA,or Drs. Pollack and Imperi who evaluated petitioner for trial counsel in 1981 (PB 108-112), “[i]t follows that the failure to identify petitioner’s neuropsychological deficits by those who evaluated petitioner prior to Dr. Riley can be explained by the fact that they relied primarily on verbal interviews. Petitioner’s verbal abilities are normal, he has a good vocabulary and he can be articulate. However ‘when one moves away from the verbal area of strength, and onestarts to test other nonverbal or performancetypes of tasks, including visual, spatial and more complex problem solving, that’s when the deficits become apparent. Andthose were neverfully assessed.” (RT 3293 [Riley].)” (PB 112.) In addition to relying upon Dr. Riley, petitioner’s reference hearing witness, to support this contention, petitioner asserts, “[i]n no uncertain terms Dr. Hinkintestified that ‘in 1982, the cornerstone of a neuropsychological of (...continued) petitioner’s own violent conductin prison and other circumstances desensitizing inmates to violence could have, and undoubtedly would have, been elicited on cross-examination. [Citation.] Similar inferences can be drawn with respect to the mitigating evidence of family background. While it may be unlikely the prosecutor would have soughtto locate rebuttal witnesses in Alabamato contradict evidence ofpetitioner’s upbringing, the mitigating impact could nevertheless have been undermined on cross-examination and through closing argument, particularly regarding petitioner’s early criminal acts. With respect to mental health rebuttal, the realities of trial surely would have prompted the prosecutor to present expert testimony in contradiction since such witnesses were generally available. (Un re Andrews (2002) 28 Cal.4th 1234, 1251.) In the end,it is not the numberofwitnesses called by respondent that matters. What matters is the quality of the rebuttal evidence, however developed at the hearing. 26 valuation [sic] is the administration of neuropsychological tests...(RT 6350.)” (PB 112.) First, through the use of an-ellipsis, petitioner has omitted a crucial caveat that Dr. Hinkin tried to provide in response to a question from petitioner’s counsel about neuropsychological testing in 1982, but to which petitioner’s counsel successfully objected. In responseto petitioner’s counsel’s question: “[I]if I were to ask you whether you agree or disagree with the statement, in 1982, that the cornerstone of the neuropsychological evaluation is the use of standardized reliable and valid psychometric test instruments?” Dr. Hinkin’s complete answer was: “I would agree with that in 1982, that the cornerstone of a neuropsychological evaluation is the administration of neuropsychological tests. What I would not agree with-” Atthis point, petitioner’s counsel objected and the court instructed respondent’s counsel to address this point on redirect examination. (RHT 6350-6351; italics added.) On edirect examination, when Dr. Hinkin was asked whether he was “offering an opinion that in 1982, in order to assess potential brain damage,a full neuropsychological battery of tests was required to be administered . . .[,]” Dr. Hinkin testified: “No, there was no indication in the record, there was [sic| numerous psychological and psychiatric reports that had been performed, all coming to the conclusion that there is no neurological impairment. So there was no indication that that would be necessary or warranted.” (RHT 6423, italics added; see also RHT 6440 [“Q. But for answering the question of Mr. Champion with brain damageor being normal, and given the psychiatric and psychological reports that existed, along with the records you foundto exist, is it still your testimony that in 1982, administration of a neuropsychological battery was not required or called for? A. I don’t see, there weren’t the indications present at the time that would callfor that. [] I saw in the records no indicationsto call for the need for a neuropsychological evaluation.’’]; see 27 also RR 52-64 [detailed discussion of Dr. Hinkin’s reference hearing testimony supporting Referee’s findings petitioner suffered from no brain damage or substantial cognitive defects in 1982 at the time of his trial and that no neuropsychological testing such as was done by Dr. Riley in 1997 wasindicated or required in 1982]; RR 49-52 [detailed discussion of Dr. Faerstein’s reference hearing testimony including the bases for his opinions that petitioner did not suffer from brain damageandthat there wasno basis to suggest the need for psychological testing of petitioner in 1982]; RR 80- 83, 129-130 & 186-193 [Referee’s detailed outline of findings concerning Dr. Riley and additional detailed discussion supporting those findings, including the basesfor rejecting Dr. Riley’s opinions and conclusions].) Thus, contrary to petitioner’s suggestion, Dr. Hinkin recognized at the reference hearing that both neuropsychologists such as Dr. Hinkin and forensic psychiatrists are fully capable of identifying organic brain damage, even though they may employdifferent approaches in makingtheir assessments. (RHT 6422-6423; see also 6343-6344 [after noting that psychiatrists and neuropsychologists employ different approaches to diagnose neurological diseases, Dr. Hinkin testified he had “‘no reason to doubt Dr. Brown’s opinions [that petitioner suffered from no cognitive abnormalities or organic brain syndrome]”.) While petitioner seeks to highlight Dr. Hinkin’s testimony on cross- examination concerning perceived deficiencies in the various CYA evaluations (PB 110-112), when asked on redirect examination aboutthat examination by petitioner’s counsel and whether Dr. Hinkin “drew [his] conclusionsin this case, by lookingat isolated pieces of information, and forming opinions based upononly anisolated piece of information|[,]” Dr. Hinkin testified: “No.” He explained, “How onearrives at a diagnosis is to look for patterns, look for themes that repeat. Not to take any single data point in isolation, but to look for consistencies across evaluation and across 28 time. To look for things that kind of hang together and makesense,that are consistent, you know, with over the longitudinal course of the patient’s life, and across examinations by differing disciplines and differing doctors. So I | didn’t look at any single one of them in isolation, but in aggregate, and they all arrived at very similar conclusions.” (RHT 6428.) Dr. Hinkin confirmed that those conclusions were consistent with his ultimate conclusion that petitioner did not not suffer from brain damage. (RHT 6428.) | Aspreviously set forth in this brief, the Referee quoted Dr. Hinkin’s testimony responding to a question asking whether he found a consistency between the CYA reports and his opinion that petitioner did not suffer from brain damage. “‘That was the conclusionofall the psychologicaltesting, as well as psychiatric evaluationsthat I had available for review [including Dr. Riley’s report], that they consistently concluded that [petitioner] had no evidence of any mental, emotional, organic disorder. Some used testing to help establish that. Some based that solely upon their diagnostic interview. But uniformly all the folks who saw him whenhe was in the CYA or when he wasin prison, concludedthat he did not have any evidence of any neurological disorder.’ (RHT 6219.)” (RR 54-55.) The Referee employed a similar gestalt approach when concludingit was reasonable for trial counsel not to obtain additional psychological and/or neuropsychological testing before petitioner’s trial. As the Referee explained, | Skyers’ failure to obtain additional psychological and/or neuropsychological testing before petitioner’s trial is reasonable in light of the CYA psychological and psychiatric evaluations, as well as the evaluation from Drs. Pollack and Imperi and the information contained within Exhibit H, the Initial Home Investigation Report, all of which Skyers had reviewed. Similarly, all of the information imparted to Skyers by petitioner, his mother, his older sisters and brother additionally supported Skyers’ actions. Further, Skyers’ 29 review of these materials only confirmed that there was no evidence petitioner suffered from brain damageand thus no basis to offer evidence of suchat petitioner’s penalty phase. Even had Dr. Riley’s opinionthat petitioner suffered from brain damage beenavailable in 1982, reasonably competent counsel would quite understandably have chosen not to present it in light of the more contemporaneous psychiatric and psychological evaluations, all of which failed to identify any evidence of brain damage. The referee finds petitioner did not suffer from brain damagein 1982. (RR 52, fn. 25; see also RR 13 [Referee’s outline of findings including that “(3) Dr. Riley’s 1997 test results were inconsistent with: [{]| a. petitioner’s history. [{[] b. the opinions of petitioner’s family, friends and gang members. [{]] c. the opinions of six doctors who conducted mental status evaluations ofpetitioner from 1978 through 1980 [sic]. [{] d. the opinions of credible, well qualified experts Doctors Charles Hinkin . . . and Saul Faerstein . . . .”]; see also RR 80 [“4. Brain Damage[9] a)”].)° Petitioner next appears to contend that because “[n]either [Dr.] Hinkin nor [Dr.| Faerstein conducted a personal evaluation of petitioner” (PB 112), the Referee could not base his finding that petitioner suffered from no brain damage in 1982 on their reference hearing testimony. Petitioner relies on a '> As the Referee noted as part of the detailed discussion of the evidence in support of his findingsin this area, “[petitioner’s Strickland © expert] concededhe could not identify any controlling legal authority in 1982 obligating defense counsel in a capital case to obtain an assessment of the defendant from a neuropsychologist or to require the defendant undergo a battery of neuropsychological tests. (RHT 4436-4438.)” (RR 277; see also RR 187 [in support of his findings “that the reference hearing testimony of Drs, Hinkin and Faerstein is credible and reliable and . . . that petitioner did not suffer from brain damage or dysfunction in 1982 when petitioner’s case wastried[,]” the Referee stated that “petitioner’s Strickland expert could not identify any legal authority existing at the time of petitioner’s trial which would have mandated reasonably competenttrial counsel to have petitioner undergo neuropsychological testing such as that administered by Dr. Riley in 1997, some 15 years after petitioner’s trial’’], fn. omitted.) 30 1968 opinion from this Court, People v. Bassett (1968) 69 Cal.2d 122. (PB 112-116.) Petitioner’s reliance is misplaced. First, assuming arguendo that in 2006-2007 during the pendency of the reference hearing petitioner could have been compelled by court order at request of respondent to submit to clinical assessments by Drs. Hinkin ~ and Faerstein,"* petitioner’s reliance on Bassett is misplaced. The relevant time frame for assessing petitioner’s possible brain damage, neurological injury or cognitive defects is 1982, the year of petitioner’s trial, not 15 years later in 1997 whenDr. Riley assessed petitioner, nor 24 yearslater. when Drs. Riley, Hinkin, and Faerstein testified at the reference hearing. In Bassett, one of the defense experts, Dr. Smith, “examined defendantfor several hours approximately one month after the killings.” (Bassett, supra, 69 Cal.2d at p. 128; italics added.) Another defense expert psychiatrist, Dr. Krofcheck, “examined defendant two months after the killings. The examination lasted approximately two hours and wasdirected to determining defendant’s current mental condition. In Dr. Krofcheck’s opinion defendant was suffering from paranoid schizophrenia.” (/d. at p. 135; italics added.) Another defense expert, psychiatrist Dr. Langer, “conducted a series of seven examinations of defendant, eachlasting approximately two hours. He also caused defendant to be examined by... — a clinical psychologist, to determine inter alia whether defendant had any tendencyto lie, distort or conceal the truth; the results of the tests showed no such tendency.” (/d. at pp. 130-131.) '! Verdin vy. Superior Court (2008) 43 Cal.4th 1096, 1115 [“neither the criminal discovery statutes (§ 1054 et seq.) nor any other statute specifically authorize[d] the People to discovery in the form ofa court- ordered mental examination of [the defendant]’’]; In re Scott (2003) 29 Cal.4th 783, 813-814 [Penal Code discovery statutes are not directly applicable to habeas corpus reference hearings, but may be used by referee in fashioning appropriate discovery orders].) 31 In the case sub judice, the roles of the Bassett doctors were filled by Drs. Prentiss, Perrotti, Minton, Brown, Pollack and Imperi, psychologists and psychiatrists who personally examined petitioner between 1978 and 1981, a period encompassing approximately 2 years before the Hassan murders to approximately one year after the murders. The evaluation by Drs. Pollack and Imperi was conductedless than one year before petitioner’s trial began. Each doctor generated a report prepared contemporaneousto the examinations. As the Referee found: “Amongthe materials reviewed by respondent’s expert witnesses, Drs. Hinkin and’ Faerstein, werethe reports of Drs. Pollack and Imperi, Brown,Perrotti, Prentiss and Minton,as well as the December 13, 1978 Home Investigation Report (Exhibit H), petitioner’s school records (Exhibit CCC), CDC [California Department of Corrections, now the California Department of Corrections and Rehabilitation] (Exhibit G and subparts) and the declarations, raw test data, interview notes and reference hearing testimony of petitioner’s neuropsychologist, Dr. Riley. (RHT 6085-6118 & Exhibit PPP (Dr. Hinkin); RHT 6498-6513 & Exhibit AAAA (Dr. Faerstein).)” (RR 49.) Because Drs. Hinkin and Faerstein could not have examined petitioner in 1982, any value to such a personal examination in 2006, 24 years after the relevant time frame, is greatly diminished. Further, the very testimony of Dr. Hinkin whichpetitioner relies upon—‘In nouncertain terms Dr. Hinkintestified that ‘in 1982, the cornerstone of the neuropsychological of valuation [sic] is the administration of neuropsychological tests ....’ (RT 6350.)” (PB 112, ellipsis in original)— demonstrates that the core of Dr. Riley’s assessment wasthe raw test data generated by petitioner (Ex. DDD) and Dr. Riley’s later evaluation ofthat raw test data from which she concluded petitioner suffered from brain damage. As noted, respondent’s experts reviewed that material. Dr. Faerstein also had the benefit of reviewing Dr. Hinkin’s report (Ex. VVV) 32 and reference hearing testimony, which addressed Dr. Riley’s evaluation, conclusions, and test data. (RR 52.) This Court’s recent decision in Verdin v. Superior Court, supra, 43 Cal.4th 1096, also undermines petitioner’s reliance on Bassett. In Verdin, this Court rejected the prosecution’s contention that precluding a prosecution mental health expert from personally examining a defendant whoplaced his mental state in issue through presentation of his own mental . health expert deprived the People oftheir right to due process under the California Constitution. As this Court reasoned, “While is probable the People could more effectively challenge [the defendant’s] anticipated mental defense if'a prosecution expert were granted accessto [the defendant] for purposes of a menta! examination . . [,] [s]hould petitioner present a mental defenseattrial, the People’s strong interest in prosecuting criminals can often be vindicated by challenging that defense in other ways. The People can challenge the defense expert’s professional qualifications and reputation, as well as his perceptions and thoroughnessof preparation. The People will have access to ‘any relevant written or recorded statements’ examined by [the defendant’s expert], ‘including any reports or statements of experts made in connection with the case, andincluding the results of physical or mental examinations, scientific tests, experiments,or comparisons which the defendant intends to offer in evidenceatthetrial.’ [Citation.]| The People can also have their own expert review [the defendant's expert’s] report and interview notes and commenton petitioner's alleged mental condition.” (Verdin v. Superior Court, supra, 43 Cal.4th at pp. 1115-1116; italics added.) Further, petitioner’s owncitation to the Bassett court’s summary of the “showing of Drs. Abe and McNiel[the prosecution rebuttal experts|” (PB 115, citing to pp. 144-145 of the Bassett opinion), provides ample support for why the Referee in this case wasfully. justified in relying on the 33 credible testimony of Drs. Hinkin and Faerstein. While not cited by petitioner in his brief, the Bassett court began this portion of the opinion by noting: Even more inadequate than the factual basis of the testimony of Drs. Abe and McNielis their statement of the reasoning by which they assertedly progressed from the facts to their conclusions.It is settled that “In this class of case, as in any other, the opinion of an expertis no better than the reasons upon whichit is based.” [Citation.] And the chief value of such an expert’s testimony, wereiterate, lies “in the explanation ofthe disease and its dynamics, that is how it occurred, developed, and affected the mental and emotional processesofthe defendant; ...” [Citation.] [§] In sharp contrast, however, is the showing of Drs. Abe and McNiel. Their meager testimony provided essentially no “reasons” whatever for their conclusions .... Yet neither witness attempted to refute the mass of defense evidence explaining that the defendant’s apparent“plan” wasthe product not of his free will but of the imperative demandsofhis delusional system and hallucinated voices; and neither witness sought to harmonizehis reliance on defendant’s classroom performance with the evidence . . that at defendant’s stage ofthis illness he could still accomplish such abstract intellectual tasks as writing class notes. (People v. Bassett, supra, 69 Cal.2d at pp. 144-145; italics in original.) Unlike the prosecution witnesses in Bassett, Drs. Hinkin and Faerstein provided anything but “meager testimony.” Dr. Hinkin’s direct examination is found at RHT 6076-6279 and encompassed morethana full day of testifying. Cross-examination, redirect examination and recross- examination are found at RHT 6280-6442, and encompassed the remainder of the second day of Dr. Hinkin’s reference hearing testimony. Dr. Faerstein’s direct examination is found at RHT 6444-6612, and encompassed nearly a full day oftestifying. The cross-examination, redirect and recross-examinations of Dr. Faerstein are found at 6613-6796, and encompassed slightly more than a full day oftestifying. In addition, unlike Drs. Abe and McNiel in Bassett, and as the Referee’s detailed discussion of theevidence and findings relevant to Drs. Hinkin and 34 Faerstein shows, both Drs. Hinkin and Faerstein provided detailed and elaborate reasoning in moving from the voluminous materials reviewed and relied upon by the expertsto their ultimate opinions relevant to the reference hearing issues. (RR 46-52 & 64-69 [Dr. Faerstein], 52-64 & 69- 71 (Dr. Hinkin], 129-130, 186-193, 276-283 [the Referee finds “[t]he lack of support for [petitioner’s Strickland expert’s] opinions [concerning petitioner’s social history, mental and physical impairments] is confirmed by testimony from respondent’s experts, Drs. Hinkin and Faerstein, whose opinions and rationale the referee finds to be reliable and objective”’], italics added.) Further, the aforementioned cited portions of the Referee’s report dealing with Drs. Hinkin and Faerstein, as well as pages 12-13 and 80-83 of that report, underminepetitioner’s further contentions that “the primary purpose of Dr. Faerstein’s testimony appears to be to bolster whatever arguments respondent chose to make about the scope and credibility of Dr. Pollack’s evaluation” (PB 116) and that “Dr. Hinkin’s criticismsof Dr. Riley’s test results are minimal.” (PB 117, italics added.) Petitioner’s allegation about Dr. Hinkin borders on thefrivolous. This is confirmed by Dr. Hinkin’s relevant reference hearing testimony, '> To make his claim that Dr. Hinkin’s criticisms of Dr. Riley’s test results were “minimal,” petitioner concedes that petitioner must “put[] aside” Dr. Hinkin’s criticisms of Dr. Riley for (1) failing to employ at the time of her reference hearing testimony ethnically corrected norms; (2) violating standardized test procedures when she permitted petitioner’s habeas counsel to be present during the first day of the neuropsychological testing administered to petitioner in 1997;(3) failing to timely administer a malingering test to petitioner; and (4) Dr. Riley’s scoring on onetest result. (PB 117.) On the other hand,petitioner later contendsin his brief that the Referee improperly discredited Dr. Riley’s opinions on the groundsthat Dr. Riley inappropriately employed a one standard deviation below the mean “cut point” generating a false positive rate of impairment of 15%, rather (continued...) 35 whichis set forth in the report at page 55 in support of the Referee’s finding petitioner did not suffer from brain damageor substantial cognitive defects at the time ofhistrial in 1982. As Dr. Hinkintestified, “All of the reports, whether reflecting an assessmentbefore petitioner’s crimesorafter, uniformly concluded petitioner had no brain damageat the time oftesting, the time of petitioner’s crimesorat the time of petitioner’s trial. ‘That’s my interpretation ofall the.data. Dr. Riley arrived at a different interpretation ofher data and she opined that he has suffered brain damage, but my interpretation ofher data, as well as the opinions ofall the other doctors you mentioned, Ifound no evidence ofthat.’ (RHT 6242-6243; see also RHT6410-6411 [out of all the various doctors’ reports reviewed by Dr. Hinkin, only Dr. Riley concluded thatpetitioner sufferedfrom brain damage].)” (RR 55, fn. omitted; italics added.) (...continued) . than the appropriate two standard deviation “cut point.” (PB 124.) Petitioner, however, fails to point out that it was Dr. Hinkin’s criticism of Dr. Riley’s inappropriate methodology which the Referee relied upon in finding: “4. Brain Damage [{]... [{] ... [9]... [9] d) Dr. Hinkin and Dr. Faerstein’s opinionsthat petitioner did not suffer from brain damageat the time oftrial are credible. [{] ¢) Dr. Hinkin’s opinion that Dr. Riley’s scoring of petitioner’s test results was notreliable is credible. [§] f) Dr. Riley’s administration, scoring and opinions as to the existence of brain damage and cognitive impairmentare discussed in a detailed manner. The referee finds that her scoring process is flawed.” (RR 80-81.) The Referee details in his report Dr. Hinkin’s testimony with respect to the appropriate two standard deviations below the mean “cut point” to determine impairment. (See, RR 53-54, fn. 27.) Although respondent will address later in this brief petitioner’s contention that the Referee’s finding with respect to Dr. Riley’s scoring is flawed, at this point respondent merely points out this additional significant criticism of Dr. Riley’s neuropsychological assessmentidentified by Dr. Hinkin in his reference hearing testimony as further evidencethat petitioner’s contention “Dr. Hinkin’s criticisms of Dr. Riley’s test results are minimal” borders on the frivolous. 36 Similarly, the Referee “foundit disquieting that Dr. Riley clearly stated in her report that petitioner’s brain damage was attributed to in utero events but would later seek to distance herselffrom her original position by stating it was awkwardly stated. Dr. Riley lectures other doctors on the importance of proper phrasing of opinions so as to maximize the impact on jurors.” (RR 80-81, italics added.) In contrast, the report’s detailed discussion of evidence andfindingsstates: “Dr. Hinkin noted that petitioner’s normal developmental history outlined by petitioner’s mother in petitioner’s school records (Exhibit CCC)as well as petitioner’s [Q score of 88 (obtained on an [Q test administered whenpetitioner was six years old), were inconsistent with petitioner’s claim of in utero insult— i.e., fetal abuse— resulting in brain damageidentified by petitioner’s neuropsychologist, Dr. Riley. (RHT 6223-6226 []; see also RHT 6410].)” (RR 55-56, fn. omitted; see also RR 129-130.) Petitioner fares no better with his contention concerning Dr. Faerstein’s testimony. Dr. Faerstein did provide relevant evidence concerning Dr. Pollack, including Dr. Faerstein’s opinion that he would “have expected Dr. Pollack to put in his report a finding of evidence of a mental defect, disease or disorder, even though Dr. Pollack felt that the condition wasinsufficient to rise to the level needed to support any of the issues submitted to Dr. Pollack for his consideration as part of his assessmentofpetitioner (RHT 6533.)” (RR 48.) Dr. Faerstein, however, also testified “that the reports from Drs. Prentiss, Minton, Perrotti and Brown (Exhibits D, I & J), all of which Dr. Faerstein reviewed and none of which petitioner’s Strickland expert had an independentrecollection of having reviewed, were consistent with the findings of Drs. Pollack and Imperi. (RHT 6527-6529.)” (RR 49; see also RR 50.) The Referee further - observed, 37 Dr. Faerstein testified it was his opinion petitioner did not suffer from brain damage. “He does not suffer from symptomsof brain damage which would manifest either on clinical examination or on neuropsychological testing. There is no evidencein his function, in his testing, in any of his productions or adaption that would reflect impairment consistent with brain damage.” (RHT 6527.) In reaching this conclusion, Dr. Faerstein took into accountthe reports from Drs. Prentiss, Minton, Perrotti and Brown. “They fit into my conclusion because he’s been examined over manyyears by different examiners under different circumstancesin different settings, and not one of the psychiatrists or psychologists who have evaluated him [ ] found evidence of brain damage.” (RHT 6527-6528.) (RR 49, see also RR 50.) Dr. Faerstein also testified that reports found within petitioner’s CDCrecords (Exs. G-10 & G-12) from two neurosurgeons who evaluated petitioner following his commitment to San Quentin. As noted by the Referee, this evidence lent additional support to Dr. Faerstein’s conclusion that at the time of petitioner’s trial, petitioner did not suffer from any mental defect, disease or disorder. “The primary significance of these evaluations ... is that they were conducted by neurosurgeons, who are skilled and trained in evaluating central and peripheral nervous system disorders. And theyalso, as neurologists, do conduct . evaluations of the cranial nerves and the central nervous function in a mental status examination, that’s part of their normal examination. In none of these reports did they find any evidenceof any central nervous. system disorder, which is brain disorder. And, in fact, in the Levy report that you asked me about, the one dated March 18, he states explicitly in the third from last paragraph: ‘His deficit appears to relate to right side multiple levels of the cord. The diminished reflexes on the right along with the atrophy suggests a lower motor neuronlesion, not a spinal cord lesion.” Whathe is looking foris the cause of the problem and trying to determine the origin or the location of the deficit that would lead to this disorder, this impairment. And he is saying it is a peripheral nervous system disorder, the peripheral nervous system, which are the nerves that come out of the spinal cord, . it is not due to anything in the spinal cord, and is not due to anything in the brain, which is the central nervous system. If a neurosurgeon would have found evidenceof central nervous disorder, which is brain disorder, I would expectto find it in his report. There are three reports from neurosurgeonshere, and none of them contained 38 evidence or report of a central nervous system defect.” Dr. Faerstein concluded that the findings of the neurosurgeons were “entirely consistent with all the other reports [of Dr. Pollack and the psychiatrists and psychologists at the Youth Authority].” (RHT 6544- 6547.) (RR 50-51.) This detailed explanation from Dr. Faerstein, representative of the type of detailed reasoning provided in reference hearing testimony by both Drs. Faerstein and Hinkin insupport of their opinions, further disproves petitioner’s contention concerning the perceived role of Dr. Faerstein at the reference hearing, and further distinguishes this case from Bassett. The Referee’s report details other areas of Dr. Faerstein’s testimony that discredit petitioner’s contention and support the Referee’s findings. This includes testimony concerning: (1) the significance that petitioner, whohad been apprehended for a 1976 burglary based upon latent fingerprints left by petitioner at the’ scene of that crime, left the Hassan residence following the murders wearing gloves, smiling, and carrying a pillowcase filled with property taken in the robberies (RR 51-52); (2) Dr. Faerstein’s opinionsthat at the time of the assessment by Drs. Pollack and Imperi, nothing in the materials reviewed by Dr. Faerstein suggested a need for psychological testing and that “even in today’s environment on cases in which [Dr. Faerstein] is asked by the defense to assess a defendant facing capital charges, unless ‘there are indications of the suspicion of organic brain damage, suspicions that might be found on mental status examination, on the psychiatric clinical evaluation, or from information in the history that tell you that there is brain damage[,]’ neuropsychological testing is not required. (RHT 6517-6518.) (RR 52); (3) Dr. Faerstein’s opinion based on his review ofpetitioner’s trial testimony that petitioner appeared to have outgrownan attention deficit hyperactivity disorder (“ADHD”)at the time of his testimony (RR 63, fn. 33) and that had ADHDexisted at the time of 39 the 1981 clinical interview of petitioner by Dr. Pollack, Dr. Faerstein would have expected Dr. Pollack’s report to have at a minimum “‘reported tangentiality, circumstantial tangentiality, difficulty staying on topic, distractibility, he would have recovered[sic] the symptoms ofADHD and there were no reports of any of those symptoms.’ (RHT 6548-6549.)” (RR 64); (4) Dr. Faerstein’s opinion based uponpetitioner’s trial testimony in whichpetitioner “‘showed his ability to adapt his conduct and conform his conduct to the circumstancesofthetrial, of responding in court in a legal setting to direct examination and cross-examination, the language he used [and] [h]is nature of responding to questions [which] showed anability to conform to the circumstances of the trial, which is a very structured and organized setting[]’ (RHT 6541-6542.)(RR 66), that “petitioner could control any impulsivity towards inappropriate conduct.” (RR 66-67); (5) Dr. Faerstein’s opinions concerning petitioner’s awareness as to what guns and bullets were, the effect of pointing a loaded gun at the head of another person and pulling the trigger, the consequencesoffiring a bullet into the head of another person and the meaning of taking property of another by force in the form of a gunshot woundto the head of that other person, as well as petitioner’s ability to stop himself from pulling the trigger of a gun if he chose to and to control his conduct atthe time ofthe crimes (RR 67); (6) the significance of petitioner’s March 25, 1980 YTS annual review . report (Exs. 23 A-1 & 26-B) to Dr. Faerstein’s conclusion that petitioner demonstrated his ability to control impulsivity when to do so might serve his interest in getting released at an earlier time on parole from the CYA and Dr. Brown’sreport (Ex. I) to Dr. Faerstein’s conclusion that “petitioner had ‘learned to verbalize what he needs to verbalize to impress the authorities to allow him to be released’[]” (RR 67, fn. omitted); and (7) the significance of petitioner’s MMPItest results from tests administered while petitioner was at CYA andlater following his commitment to San Quentin 40 to the issue of petitioner’s impulsivity and ability to control his conduct (RR 68-69). In short, Dr. Faerstein’s reference hearing testimony and the Referee’s findings detailed in his report based in part on that testimony demonstrate the misguided nature of petitioner’s assertion that “the primary purpose of Dr. Faerstein’s testimony appears to be to bolster whatever arguments respondent chose to make about the scope and credibility of Dr. Pollack’s evaluation.” (PB 116.) Petitioner appears to contend that because the Referee (1) characterized petitioner's neuropsychologist, Dr. Riley, as ‘““‘a good witness and well qualified’” (RR 12), and (2) noted that “no other qualified expert has ever administered a battery of neuropsychologicaltests to petitioner” (PB 118), insufficient evidence supports the Referee’s finding “that ‘the neuropsychological testing conducted by Dr. Riley . . . provides no credible evidencethat petitioner suffered from any brain damageor dysfunction ....’ (Report at p. 187.)” (PB 118,alteration in original.) Petitioner’s claim is meritless. First, as already noted in this brief, the context in which the Referee madethe characterization about Dr. Riley (“while a good witness and well qualified” (RR 12)) centered on the Referee’s finding that Dr. Riley “lacked adequate foundation for the opinion that petitioner suffered in-utero brain damageor significant cognitive defects.” (RR 12.) As also noted above, the Referee immediately thereafter set out a series of six findings in support of the overarching finding that Dr. Riley lacked adequate foundation for her opinion. Those six findings included that Dr. Riley’s “administration, '6 The Referee’s full finding wasthat “Petitioner’s neuropsychologist, while a good witness and well qualified, lacked adequate foundation for the opinion that petitioner suffered in-utero brain- damageorsignificant cognitive defects.” (RR 12.) 4] scoring and interpretation of neuropsychological tests [she administered to petitioner] were seriouslyflawed|;|” Dr. Riley’s decision to allow petitioner’s habeas counsel,“a third-party (who had a vested interest in the outcome) to be present during the neuropsychologicaltest of petitioner was a very grave error on Dr. Riley’s part [;|” and “Dr. Riley’s 1997 test results _ Were inconsistent with: [{]| a. petitioner’s history. [{]] b. the opinions of petitioner’s family, friends and gang members. [4] c. the opinions of six doctors who conducted mental status evaluations of petitioner from 1978 through 1980.'” [4] d. the opinions of credible, well qualified experts Doctors Charles Hinkin... and Saul Faerstein....” (RR 12-13; see also RR80-83 [the Referee provided an even more detailed outline ofhis findings regarding petitioner’s claim of “Brain Damage,” including specific criticisms related to Dr. Riley’s assessment and opinions].) Second,petitioner confuses a characterization that an expert witness may be well qualified to testify as an expert in a particular area, with the very different legal concept that because of an inadequate foundation to support the expert’s opinions, the expert’s opinions could be properly rejected as unreasonable. Remarkably,petitioner relies on Peoplev. Bassett, supra, 69 Cal.2d 122, to contend that the opinions of Drs. Faerstein and Hinkin, whom the Referee deemed “impressive, well-qualified witnesses” (RR 80), should be rejected because neither expert personally examinedpetitioner (PB 112-116). Bassett, in fact, fully supports the. Referee’s findings, as previously discussed. | As Bassett stated, the value of an expert’s opinion dependson the facts and reasons supporting it, and the Referee here carefully evaluated '7 As respondenthas previously noted, the six doctors, including the 4 psychiatrists and psychologists at CYA and Drs. Pollack and Imperi, evaluated petitioner between 1978 and late 1981, not 1980 as the report erroneously states. 42 these relevant factors in assessing Dr. Riley’s testimony. Immediately after finding that “Dr. Hinkin, Dr. Faerstein and Dr. Riley are all impressive, well qualified witnesses|],” the Referee stated: “However, I foundit disquieting that Dr. Riley clearly stated in her report that petitioner’s brain damage wasattributed to in utero events but wouldlater seek to distance herself from heroriginal position by stating it was awkwardly stated. Dr. Riley lectures other doctors on the importance of proper phrasing of opinions so as to maximize the impact onjurors.” (RR 80-81.) Both before and after this finding, the Referee set out his detailed outline of findings to support his conclusion that “Dr. Riley’s opinion is not supportable.” (RR 80-81; see also RR 129-130.) Petitioner next erroneously contends, The two principal reasons advanced by the Referee as a basis for his finding that Dr. Riley’s test results were not credible evidence reflect the Referee’s unwarranted rejection of what has been standard practice in the neuropsychological testing of California Death Row inmates, as well as the insertion into a proceeding about a 1982trial of more recent developments and debates that could have had no role in petitioner’s trial had trial counsel obtained and introduced result of neuropsychological testing as part of petitioner’s case in mitigation. Morespecifically, the Referee asserts that Dr. Riley’s test results lacked validity because Dr. Riley (1) in scoring the tests she administered did not utilize ethnically adjusted norms, developed for African Americansonly, in 2004, and (2) on thefirst of two days of testing permitted petitioner’s counsel to be in the room. (PB 118-119.) First, it is plain from the pages 80-81 of the Report, which | Respondent quoted above at ArgumentI.C, that the Referee rejected Dr. Riley’s opinions for far more than two reasons. At a minimum,the Referee provided /0 separate findings, with additional sub-indings, to support the ultimate conclusions that in 1982 petitioner did not suffer from brain damage or substantial cognitive defects and that Dr. Riley’s contrary opinions lacked adequate foundation. (RR 80-81; see also RR 12-13 [“(1) 43 The administration, scoring and interpretation of neuropsychologicaltest results by Dr. Nell Riley ... were seriously flawed. [{] (2) Allowing a third party (who had a vested interest in the outcome) to be present during the neuropsychological test of petitioner was a very grave error on Dr. Riley’s part. [{] (3) Dr. Riley’s 1997 test results were inconsistent with: [{] a. petitioner’s history. [| b. the opinions of petitioner’s family, friends and gang members. [| d. the opinions of credible, well qualified experts ‘Doctors Charles Hinkin ... and Saul Faerstein ... .”]; RR 129-130 [“The opinion offered by Drs. Riley and Miorathat petitioner suffered from ‘brain damage’ and‘significant brain dysfunction’ is not supported by petitioner’s history and the extensive record of examinations and evaluations he underwentbefore and after the offenses. The psychiatric and psychological data do not support an opinion that petitioner was ‘unable to draw inferences in ambiguous circumstances and leaves him especially vulnerable to missing or misreading cues concerning the intentions of other persons.’ He adapted to his environment when he wasin the community[,| at the CYA and in prison. In fact, the record showsthat he was able to adapt appropriately to social situations and he understood the social cues sufficiently well to conduct himself appropriately in court as a witness using appropriate language, but when speaking with his co-defendant he utilized street language and adapted to that milieu, as was documentedin a recording. Institutional records noted that he responded to peer pressure and adapted to the inmate environment, reflecting an ability to read and respond to those cues and behave in a way necessary to receive the support -and approvalof his peers. Contraryto petitioner’s assertions in this action, there is no evidence that any mental impairmentinterfered with his capacity to read and respondto social cues. The opinions submitted by Drs. Riley and Miora as mitigating are not credible. (Exhibit RRR.) [§] The opinion of Dr. Riley is totally at variance with the overwhelming evidence 44 concerning petitionerin his life prior to their evaluations. There is no evidencethat he suffered any perinatal or developmental! injuries which might have caused brain damage. (Exhibit RRR.) [{]] Petitioner’s school records are also consistent with the opinion that there was no evidence of organic brain damage. A May [sic]'* LM test done on October 2, 1968 when petitioner was six years old andin the first grade, found a mental age of five years, five months, with a calculated IQ of 88. His reading grade and his arithmetic grade were in the normal range. (Exhibit RRR.) [§] In the fourth grade, petitioner was foundto have an IQ of 75 (20"percentile) and a reading score of 34, stanine 4 (40"percentile). If the hypothesis proposedby Dr. Riley that petitioner suffered brain damage during gestation when his mother was kicked in the stomach wastrue, the evidence for his brain damage would have manifested itself during his developmental years and during elementary school. The records, however, reflect that he scored in the low-average range, and there are no findings of any significance that he had brain damage.’’]; RR 189-191 (“Other factors fin addition to those set forth at pp. 186-188 of the rpt.] adversely affecting the reliability and credibility of Dr. Riley’s 1997 neuropsychologicaltest results and the interpretation of those results include: (1) Dr. Riley’s bias against the death penalty (RHT 3299-3300.); (2) Dr. Riley’s failure to review petitioner’s San Quentin records encompassing the period 1982- 1997 when addressing possible causes for organic brain damage (RHT 3346-3347, 3449-3452; see also RHT 3347-3349 [no San Quentin CDC records reviewed before Dr. Riley’s preparation of a second Declaration, Exhibit BBB].); (3) Dr. Riley’s inappropriate use of a one standard deviation ‘cut point,’ rather than a two standard deviation ‘cut point,’ to identify cognitive impairment (See, RHT 6169 [testimony of Dr. Hinkin '8 Respondentbelieves the word “May”should read “Binet.” 45 addressing this issue].); (4) Dr. Riley’s failure to review the reference hearing testimonyof petitioner’s contemporaries, Wayne Harris and Earl Bogans (RHT 3429.), in which the witnesses painted a portrait of petitioner at odds with the cognitively impaired and abusedpicture of petitioner Dr. Riley, Dr. Miora and petitioner’s mother, siblings and uncle proffered at the reference hearing; (5) Dr. Riley’s failure to review the December13, 1978 HomeInvestigation Report (Exhibit A)prior to Dr. Riley’s preparation of either her 1997 Declaration (Exhibit AAA) or 2002 Declaration (Exhibit BBB) (RHT 3407.), in which the parole agent summarizes petitioner’s mother’s contemporaneous accountofpetitioner’s normal homelife, the mother’s normal pregnancy with petitioner, petitioner’s normal developmental behavior and the absence of any seriousillnesses or injuries suffered by petitioner as a child; (6) Dr. Riley’s uncritical acceptance of petitioner’s social history based upon 1996 interview notes from interviews conducted with petitioner’s mother, four sisters and Mrs. Champion’s older brothers, Czell Gathright and E.L. Gathright (RHT 3397-3400, 3401-3402 [‘I assumedthat it was, the substance was largely true’].) despite the absence of independent corroborative data such as obstetrical, pediatric, police or court records to support a claim of fetal abuse raised by petitioner’s family members; (7) Dr. Riley’s failure to address entries in petitioner’s school records (Exhibit CCC) in which petitioner’s mother described her pregnancy with petitioner as normal andpetitioner’s developmentto the time the records were completed as essentially normal (RHT 3413-3419; see also RHT 6223-6227, 6410 [testimony of Dr. Hinkin], 6556-6558 [testimony of Dr. Faerstein].); (8) Dr. Riley’s failure to address or adequately explain in light of her test results the absence of any clinical finding of organic brain damageor dysfunction by any of the four CYA psychologists and psychiatrists who evaluated petitioner between 1978 and 1980 or by Drs. Pollack and Imperi whoassessedpetitioner late 46 in 1981; (9) the inconsistency between petitioner’s IQ test result of 88 obtained whenpetitioner was six years old and Dr. Riley’s hypothesis that petitioner sustained brain damageas result of fetal abuse; and (10) Dr. Riley’s failure to adequately address petitioner’s denial of ever having suffered any ‘serious head injury’ or other injury or accident which could account for alleged brain damage or dysfunction seen by Dr. Riley. (See, e.g., Exhibits G-5, G-6, G-7, G-8 & G-9, RHT 6097-6105 [testimony of Dr. Hinkin], 3439-3443 [testimony of Dr. Riley], Exhibit UUU,p. 2 [Dr. Riley’s notes of interview with petitioner concerningthe traffic accident], compare reference hearing testimony of Drs. Faerstein and Hinkin, RHT 6560-6563 [testimony of Dr. Faerstein in which Dr. Faerstein opined that : he would have expected to see more in the way of headachereports had petitioner sustained the degree of brain damageidentified by Dr. Riley and had that brain damage been causedbythetraffic accident], 6249-6251 [testimony of Dr. Hinkin in which, assuming the accuracy of reference hearing testimony from petitioner’s mother that petitioner had headaches for a couple ofweeksafter the accident, Dr. Hinkin nevertheless opined that this was a commonexperienceafter one sustained a concussion which does not typically translate into brain damage].)”], fns. omitted.) In footnote 99 appearing at pages 189-190 of the report, the Referee noted: “Dr. Riley testified before Gary Jones testified and as such could not have been provided with Jones’ reference hearing testimony before Dr. Riley testified. Nevertheless, given the substance of Jones’ testimony which wasinconsistent with claims of physical abuse suffered by petitioner at the hands ofhis older brothers or evidence of brain dysfunction as a result of either such alleged beatings or the 1968 traffic accident,it is noteworthy that during the pendencyofthis reference hearing, another source of information inconsistent with conclusions reached by Dr. Riley wasneverprovided to Dr. Riley in order for her to explain the apparent 47 inconsistency between Dr. Riley’s findings and the source information.” In the footnote 100 appearing at page 190 ofthe report, the Referee noted: “In Dr. Riley’s 1997 Declaration (Exhibit AAA, paragraph 29), Dr. Riley opined: ‘There are several possible sourcesor etiologies of Mr. Champion’s cognitive brain dysfunction. In my opinion, a prominent source of these deficits is the in utero insults he may have suffered whenhis mother was beaten by her husband during pregnancy.” (RHT 3397; see also RHT 3416-3417.) When asked to address the apparent discrepancy between Exhibit H and how petitioner’s mother described petitioner’s pregnancy and family life to the CYA parole agent and the post-1995 claims by Mrs. Championoffetal abuse inflicted during petitioner’s pregnancyby petitioner’s biological father (RHT 3407-3410.), Dr. Riley testified: [‘]I believe that the way -- you know,I’m not an expert on that. Myunderstanding is that some families -- that when people are being interviewed, [ don’t know who-- whatthis investigation was about, whether it was about Steve’s -- I don’t know the causeofthis. But that many families will try to put, if they believe in the welfare of their child’s homelife, perhaps describe their homelife as perhaps being a lot more normal and comfortable. Many people do not want to report physical abuse. I think there is some possibility that maybe Mrs. Champion underreported any kinds of abuse she might have suffered.’ (RHT 3410- 3411.) This testimony, as well as testimony and the Declaration of Dr. - Deborah Miora (Exhibit 136 at pages 5-6.), further supports the testimony of petitioner’s trial counsel that when he talked with petitioner’s mother and siblings aboutpetitioner and his homelife, no reports ofphysical abuse to petitioner’s mother during petitioner’s pregnancyorto petitioner as a result of beatings by his older brothers were received. For reasonsto be set forth later, the referee finds that assuming arguendo such physical abuse occurred, reasonably competenttrial counsel in 1982 would not have 48 discovered that evidence dueto the deliberate determination of petitioner’s mother and family not to disclose such ‘dirty family business.’” Reference Question 2 from this Court specifically directed the Referee to make findings concerning the credibility of any additional mitigation evidence which petitioner could have presented at his penalty phase. Thus, as framed,the first issue is whether in 1982 petitioner could have presented evidence of brain damageat his penalty phase, and if so, how credible was that evidence. Obviously, if petitioner did not in fact suffer from brain damageeither in 1982 at the time ofhistrial or in 1997 at the time Dr. Riley administered the battery of neuropsychologicaltests to petitioner, any evidence of brain damagepetitioner proffered at the reference hearing would not be credible, a finding which clearly would fall within the province of the Referee to make based on this Court’s instructions. Therefore, evidence relevant to both the scientific reliability and validity of the neuropsychological test results Dr. Riley obtained from petitioner, and Dr. Riley’s opinion petitioner suffered from brain damage, wasclearly admissible at the reference hearing and properly considered by the Referee in evaluating Dr. Riley’s opinions. Although petitioner professes an interest in seeking the truth (PB 117), his contention is belied by his misguided complaint that the Referee erred by relying on this admissible evidence in resolving the facts against him. Petitioner contends since “[t]here was no specific policy in place when Dr. Riley tested petitioner and Dr. Riley testified it was standard procedure to have an attorney present in 80% or more San Quentin cases she evaluated [citation]” (PB 122, italics added), the Referee could not rely upon suchpolicyto assess the scientific reliability and validity of the tests she administered to petitioner at San Quentin in the presence of an 49 interested third party, petitioner’s habeas counsel. (PB 122-123.) Presumably, the “specific policy” to which petitioner refers is the 1999 National Academy of Neuropsychology (NAN) position paper concerning the presence of a third party during the administration of neuropsychological testing, Exhibit 101-B, a policy statement drafted May 15, 1999, and printed in The Archives of Clinical Neuropsychology in 2000. (RHT 6126.) AsDr. Hinkintestified, at the time Dr. Riley tested petitioner in 1997, it was well knownin thefield of neuropsychology that the presence of a third party during the administration of neuropsychological testing can invalidate the results of the testing. (RHT 6126-6127.) “In a nutshell, [the NANposition paper, Exhibit 101-B indicates] that the presence ofa third party during a psychological-or neuropsychological evaluation runsa risk of biasing the testing and confounding the testing. It’s a nonstandard way of administering the test. [§]] Research has shown -- the research is cited in this position paper that the presence ofthird-party observers runsthe risk of causing patients to perform worst particularly on more complex psychological tests, and in contrast, they perform little bit better on more ? It is interesting to note that petitioner relies upon the usual and customary practice of only Dr. Riley in conducting neuropsychological assessments of death row inmates in the presence of the inmates’ counsel. The fact petitioner presented no evidence that it was the prevailing practice of neuropsychologists in general to administer forensic neuropsychological testing in the presence of the subject’s counsel, an interested third party,is significant. Of course, where the evidence conclusively demonstrates that such third-party presence implicates the scientific reliability and validity of thetest results, even if petitioner could marshal and present evidenceat the reference hearing that it was the general practice of all neuropsychologists to permit the subject’sattorney to be present on request at such forensic neuropsychological testing, such a professional practice(i.e., to use the popular vernacular: “everybody doesit”) cannot serve to validate scientifically invalid test data. 50 overlearned easier neuropsychological tests. [{]] Also, this is magnified whenthe third party is a person whose -- who have some relationship with the testee, with the patient, and they give the example in the position paper | of a legal representative who may havea stake in the outcome ofthe examination.” (RHT 6124-6125.) As Exhibit 101-B reflects and Dr. Hinkintestified, the policy statement cites to multiple research sources published prior to 1997 when Dr. Riley administered tests to petitioner, some of which go back to 1985, 12 years before Dr. Riley’s testing. (Ex. 101-B & RHT 6126-6129.) One research article was cited in support of the position paper’s finding that “*(third-party| observer effects can be such that performance on more complex tasks declines in contrast to enhanced performance on overlearned tasks leading to a spuriously magnifiedpicture ofneuropsychological deficit’” (Ex. 101-B, RHT 6129-6130,italics added). Dr. Hinkin testified that the concern expressed in the aforementioned quoted section of the policy statement can also be described as concern with creating “a false positive, [a circumstance in which] one makes a diagnosis whenit’s actually not there, so they are falsely saying someonehas a problem that does notexist.” (RHT 6130-6131.) Exhibit 101-B further reflects, as Dr. Hinkin also testified, that based on research pre-existing Dr. Riley’s 1997 testing of petitioner, “(t]he presence of a third-party observer introduces an unknownvariable into the testing environment which may prevent the examinee’s performance from being compared to established normsand potentially precludes valid interpretation ofthe test results [citation][.]’” (Ex. 101-B & RHT 6128- 6129, italics added.) Once again relying upon research predating Dr. Riley’s 1997 testing of petitioner, the policy statement points out: ““Observer effects can be magnified by the presence of involved parties who havea significant relationship with the patient (E.G. Legal 51 representatives who havea stake in the outcomeofthe examination.)[.|’” (Ex. 101-B & RHT 6131.) The presence of petitioner’s habeas counsel at Dr, Riley’s testing of petitioner clearly falls within this concern expressed by the policy statement. (RHT 6131.) As Dr. Hinkin also testified, once again citing to a researcharticle published prior to Dr. Riley’s 1997 testing of petitioner, Exhibit 101-B reads: ““Thus, the presence of a third-party observer during formal testing may represent a threat to the validity and reliability of data generated by an examination conducted under these circumstances and may compromise the valid use of normative data in interpreting test scores. Observer effects also extend to situations such as court reporters, attorneys, attorney representatives viewing from behind one-way mirror and through electronic | meansof observation such as the presence of a camera, which can be a significant distraction.’”” (RHT 6131-6132.) Exhibit 101-C, a 2001 policy statement on the presence of third-party observers in neuropsychological assessments promulgated by the American Academy of Clinical Neuropsychology, relies on much of the same published research as the 1999 National Academy of Neuropsychology position paper, and expresses many of the same concerns as Exhibit 101-B. However, the scope ofthe policy is limited: “Likewise, this policy is not intended for application to criminal forensic consultations that involve issues of criminalliability or culpability because the rightto legal representation and a thirdparty observer is absolute in criminal matters.” (Ex. 101-C quoted at RHT 3192,italics added; see also PB 123.) Petitioner contendsthat “the referee ignored [this] most pertinent aspect of these post 1997 papers... .” (PB 122-123.) Petitioner’s contention lacks merit for a multitude of reasons. . First, petitioner uses the plural “papers” whenin fact it is only the policy statement from the American Academyof Clinical 52 Neuropsychology, Exhibit 101-C, which contains this policy limitation. For example, in addition to the NAN policy statement and the scientific discussion in the policy statement of the American Academy of Clinical Neuropsychology (which, contrary to petitioner’s assertion, is in fact the “most pertinent aspect” of that organization’s policy statement), the Referee also had the benefit of Exhibit EEE, the position paper from the promulgator of the WAISIII IQ test. This position paper sets forth that company’s policy concerning administration of the test under “nonstandard conditions”: “In our opinion -- it is our opinion that the presence ofa third party audio or video taping or other nonstandard conditions may not result in a Statistically accurate or psychometrically sound scaled score. As you may know, normsfor standardized tests are developed under strict conditions. Jfsuch conditions are not met, the scaled scores obtained by application ofthe test norms are notstatistically defensible. Althoughit is the position of Harcourt that the validity of any scaled score which results from a non-standard administration is suspect, it is the responsibility of the individual psychologist administering the tests to determine whethertesting under nonstandard conditions serves any other purpose.” (Ex. EEE, p. 4, quoted at RHT 6137-6138, italics added; see also RR 188, fn. 98.) In footnote 98 at page 188 of his report, the Referee also cites to a chapter in the textbook, Forensic Neuropsychology, “The Presence of Third Parties.” “ Tn the concluding segmentofhis report, “Referee’s Conclusions,” the Referee revisited the issue of the scope of social and family history mitigation evidence admissible at the penalty phase. “The reference © hearing has shownthat from 1995 [petitioner’s habeas counsel] has devoted herself to petitioner’s claim that mitigation evidence was available at the time oftrial and that petitioner did not receive the benefit of adequate representation. The areas investigated and presented by [petitioner’s habeas counsel] are extensive and the product of intense preparation. [{] One area that deserves further commentis the legal issue of the scope of the proposed social and family history. This area, in itself, is voluminous. I foundthat it was not relevant or there was insufficient foundation to permit its admissibility. [found that no capital case attorney is required to engage in the type ofinvestigation ofa defendant’sfamily background that was conducted in this particular case [by petitioner’s habeas counsel]. However, recognizing that death penalty cases are always evolving,I believe we have preserved a clear record of what evidence petitioner sought to present.” (RR 376-377, italics added; see also RR 163 [“the school performance records of Lewis ChampionIII and Reggie Champion, noted on page 90 of Dr. Miora’s report, and the absence of a genetic link, are not relevant to petitioner’s life history. Skyers was not required to engage in the overly broad background research conducted andprepared by habeas counselfrom 1995 through 2007’), italics added.) 74 (2009) 130 S.Ct. 13 [175 L.Ed.2d 255] (per curiam).”° In this capital case arising out of a 1985 murder, the United States Supreme Court reversed a decision from the Sixth Circuit Court of Appeals finding Van Hook was entitled to'a writ of habeas corpus as to his sentence based on a findingthat “his lawyers performed deficiently in investigating and presenting mitigating evidence.” (/d. at p. 16 [175 L.Ed.2d at p. 258].) In granting relief to the petitioner, the Sixth Circuit had relied “on guidelines published by the American Bar Association (ABA) in 2003 ....” (Ibid, italics added.) In reversing the Sixth Circuit decision, the high court noted: 666The Sixth Amendmententitles criminal defendants to the “‘effective assistance of counsel’”-- that is, representation that does notfall “below an objective standard of reasonableness”in light of “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMannv. Richardson, 397 U.S. 759, 771, n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). That standard is necessarily a general one. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” 466 U.S., at 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Restatements of professional standards, we have recognized, can be useful as “guides” to what reasonablenessentails, but only to the extent they describe the professional norms prevailing when the representation took place. Id., at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, The Sixth Circuit ignoredthis limiting principle, relying on ABA guidelines announced 18 years after Van Hook wentto trial. See 560 F.3d at 526-528 (quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7, comment., pp. 81-83 (rev. ed. 2003)). The ABA standardsin effect in 1985 described defense counsel’s duty to investigate both the merits and mitigating circumstances in general terms: “It is the duty of the lawyer to conduct a promptinvestigation of the circumstancesofthe 6 Curiously,petitioner does not cite Van Hookin hisbrief, although he cites a case decided after Van Hook, namely Porter v. McCollum (2009) 130 S.Ct: 447 (per curiam). (PB 139.) 75 case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.” 1 ABA Standards for Criminal Justice 4-4.1, p. 4-53 (2d ed. 1980). The accompanying two-page commentary noted that defense counsel have “a substantial and importantrole to perform in raising mitigating factors,” and that “[i]nformation concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as. will mitigating circumstances surrounding the commission ofthe offense itself.” Jd., at 4-55. Quite different are the ABA’s 131-page “Guidelines”for capital defense counsel, published in 2003, on which the Sixth Circuit relied. Those directives expanded what had been (in the 1980 Standards) a broad outline ofdefense counsel’s duties in all criminal casesinto detailedprescriptionsfor legal representation ofcapital defendants. They discuss the duty to investigate mitigating evidence in exhaustive detail, specifying what attorneys should lookfor, where to look, and when to begin. See ABA Guidelines 10.7, comment., at 80-85. They include, for example, the requirement that counsel’s investigation cover every period of the defendant’s life from “the momentof conception,” id., at 81, and that counsel contact “virtually everyone ... who knew [the defendant] and his family” and obtain records “concerning not only the client, but also his parents, grandparents, siblings, and children,”id., at 83. Judging counsel’s conductin the 1980's on the basis ofthese 2003 Guidelines -- without even pausing to consider whether they reflected the prevailing professional practice at the time ofthe trial -- was error. To make matters worse, the Court of Appeals (following Circuit precedent) treated the ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with whichall capital defense counsel “‘must fully comply.’” 560 F.3d at 526 (quoting Dickerson v. Bagley, 453 F.3d 690, 693 (CA6 2006)). Strickland stressed, however, that “American Bar Association standards andthe like” are “only guides” to what reasonableness means, notits definition. 466 U.S., at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. We have since regarded them as such, See Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). What we havesaid of state requirementsis afortiori true of standards set by private organizations: “[W]hile States are free to impose whateverspecific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make 76 objectively reasonable choices.” Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 §. Ct. 1029, 145 L.Ed.2d 985 (2000).”’ (Bobby v. Van Hook, supra, 130 S.Ct. at pp. 16-17 [175 L.Ed.2d at pp. 258- 259], fn. omitted; alterations in original, italics added.)”* The Supreme Court also noted: Despite all the mitigating evidence the defense did present, Van Hook and the Court of Appeals fault his counsel for failing to find more. What his counsel did discover, the argument goes, gave them “reason to suspect that much worsedetails existed,” and that suspicion should have prompted them to interview other family members-- his stepsister, two uncles, and two aunts -- as well as a psychiatrist who once treated his mother, all of whom “could have helped his counsel narrate the true story of Van Hook’s childhood experiences.” 560 F.3d at 528. But there comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties. The ABAStandards prevailing at the time called for Van Hook’s counsel to cover several broad categories of mitigating evidence, see 1! ABA 77 Insofar as petitioner appears to suggest that the referee was required to consider ABA guidelines in determining the applicable standard, petitioner fails to recognize what the United States Supreme Court made explicitly clear in Van Hook—that the ABAstandards do not define the standard of care required of criminal defense counsel andthat the Strickland “standard is necessarily a general one.” (Bobby v. Van Hook, supra, 130 S.Ct. p. 16 [175 L.Ed.2d p. 258].) *8 In the omitted footnote, footnote 1, the Supreme Court cautioned: “The narrow grounds for our opinion should not be regarded as accepting the legitimacy of a less categorical use of the Guidelines to evaluate post- 2003 representation. For that to be proper, the Guidelines must reflect ‘[p]revailing normsofpractice,’ Strickland, 466 U.S., at 688, 104 S.Ct. 2052, 80 L:Ed.2d 674, and ‘standard practice,’ Wiggins v. Smith, 539 US. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and must not be so detailed that they would ‘interfere with the constitutionally protected independence ofcounsel andrestrict the wide latitude counsel must have in making tactical decisions,’ Strickland, supra, at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. We express no views on whether the 2003 Guidelines meet these criteria.” (Bobby v. Van Hook, supra, 130 S.Ct. at p. 17, fn. | [175 L.Ed.2d at p. 259]; italics added.) 77 Standards 4-4.1, comment., at 4-55, which they did. And givenall the evidence they unearthed from those closest to Van Hook’s upbringing and the experts who reviewedhis history, it was not unreasonable for his counselnot to identify and interview every other living family memberor every therapist who oncetreated his parents. This is not a case in which the defendant's attorneysfailed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525, 123 S.Ct. 2527, 156 L.Ed.2d 471, or would have been apparentfrom documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). It is instead a case, like Strickland itself, in which defense counsel’s “‘decision not to seek more” mitigating evidence from the defendant’s background “than was already in hand”fell “well within the range of professionally reasonable judgments.” 466 U.S., at 699, 104 S.Ct. 2052, 80 L.Ed.2d 674. (Bobby v. Van Hook, supra, 130 S.Ct. at p. 19; fn. omitted; italics added.) The Referee’s extensive findings” are not only fully supported by the reference hearing record and case law such as Van Hook, but also by ? ‘The Referee’s relevant — and dispositive ~ findings are as follows: (1) petitioner failed to make an adequate showingof a “link between the total life experiences of petitioner’s parents, siblings and extended family membersand petitioner’s development, functioning or petitioner’s individual background” (RR 159); (2) “defense counsel is not obligated to engage in exhaustive investigation that simply amountsto obtainingall documents that can be assembled as to any known family member, no matter how remote the connectionis, nor is defense counsel required to attempt to identify all conceivable sympathetic themes that might be part of a life experience ofthe individual family members who have not had an impact on the defendant’s life, upbringing or any association with the defendant” (RR 160); (3) “[t]he upbringing of Gathright or Mrs. Champion’s brothers, sisters, and even Mrs. Champion’s own upbringingis simply too remote andlacks sufficient showing by petitioner of a viable basis to concludethat the offered evidence has had an influence on petitioner’s character or his upbringing” (RR 160); (4) “Dr. Miora’s portion of review and evaluation [in Exhibit 136, Dr. Miora’s Social History Report of Petitioner] labeled ‘Narrative of Petitioner’s Life History’ that deals with other family member’s life history is not relevant, starting on page 47 of her report through page 85” (RR 162); (5) “[t]he school performance records of (continued...) 78 (...continued) Lewis Champion III and Reggie Champion,noted on page 90 of Dr. Miora’s report, and the absence of a genetic link, are not relevant to petitioner’s life history. Skyers was‘not required to engage in the overly broad background research conducted and prepared by habeas counsel from 1995 through 2007” (RR 163); (6) “[t]he declarations of Lewis Champion III and Reggie Champion are unreliable. The fact that they could have been subpoenaedto testify but were not weighs against their admissibility and their use as a basis for the experts’ opinions” (RR 163); (8) “[t]he life history of Gerald Trabue, Jr. is immaterial to petitioner. Gerald Trabue, Jr.’s declaration is untrustworthy” (RR 163); (9) “Dr. Miora’s report refers to Linda, Rita, and Gerald Jr.’s school records. The school records are not relevant. Skyers was not required to investigate their school performance in order to effectively present mitigating evidence on behalf of petitioner during the penalty phaseoftrial” (RR 164); (10) “[a]t the time of the Watts Riots, South-Central Los Angeles included the areas of Main Street (West), Alameda (East), Washington (North) and Slauson (South). Petitioner lived most ofhis life (1968-1978) on 1212 W. 126"Street (just west of Vermont and north of El Segundo) [whichis][a]n area distinctly different that the hardcorearea referred to in the August 1965 Watts Riot Report. If applicable, the conditions associated with the Watts Riots might be relevant environmental information. As previously noted, petitioner was three years old. Any recollection, howeverfleeting, noted by petitioner over twenty years later during a very controlled interview is extremely tenuousatbest. [{] It is also noted that Skyers was a conscientious attorney who is African-~ American. He was fully knowledgeable about the social conditions in South Central Los Angeles and the general conditions in existence where petitioner and his family lived. He evaluated petitioner’s neighborhood as [a] good place to live. [{] The Watts Riots, like the subjects of slavery, Jim Crow laws, andhistorical information as to how blacks weretreated in the South, is simply not relevant. Skyers was notobligated to investigate these areas or present evidence concerning the same during the penalty phase ofpetitioner’s trial” (RR 164-165); (11) “Community Matters (Exhibit 141) [4] Environmental Justice in Los Angeles [{]| This information is not relevant. Skyers wasnot obligated to engage in the preparation or presentation of information pertaining to civil rights and environmentalism. Petitioner did not sufficiently demonstrate how this specific study was relevant to his development and/or functioning” (RR 165, underlining & italics in original); (12) “Wikipedia Article on South-Central Los Angeles [4] There was no showing this document wasavailable to Skyers. Skyers wasnot required to engage in an extensive effort to connect the (continued...) 79 additional findings made by the Referee concerning the deliberate nondisclosure of potential mitigating evidence by petitioner and his family to trial counsel Skyers during his multiple interviews with them. Such finding are further bolstered by the absence of any contemporaneous records existing as of 1982 documenting the present claims of poverty, (...continued) developmentof the south portion of Los Angeles to petitioner’s background” (RR 165, italics in original); (13) “Conditions and Juvenile Facilities [§] (1) Sanitation problems discovered in juvenile hall. [{] (2) The business isn’t warehousing. (4/79) [4] (3) Juvenile probe ordered. (8/83) [{] (4) Unruly youngsters face shackles, mace. (7/84) [4] (5) Youth Authority hard-pressed to find good jobs for parolees. (11/70) [4] (6) Thirteen youths flee Chino facility in plot. (9/76) [§]] (7) Older youths release strains inside YTS. (9/76) [{] (8) Department of Youth Authority. (1/78) [§] All of the aforementioned itemized information describes the conditions ofjuvenile facilities in either Los Angeles or at the CYA facilities in Chino, California. The evidence presented concerning petitioner’s performance, evaluation, functioning and testing is contained in other relevant documents. Thesearticles are not relevant and are beyond the scope of this reference hearing. There is no evidence linking this information to petitioner or indicating that this type of investigation or preparation was necessary on the part of Skyers during his representation of petitioner” (RR 165-166, fn. omitted); and (14) “Police Brutality Towards Blacks [{| (1) LAPD use of chokeholds. [{] (2) Historic South-Central Los Angeles. [|] School Conditions/Violence [{] Studies [{]] The referee observesthat the authors of these reports assembled by petitioner’s counsel in 2006 are very slanted or biased. Thearticle titled ‘Perception of Police Brutality in South Central Los Angeles’ has several interesting expressions including ‘a policemantrying to do his job could create crime by inciting a crowd of bystanders to riot’ and ‘The School and family prove meaningless to Blacks’. [{]] The aforementioned items were written in responseto the Los Angeles Riot study. All.accounts took place in 1965 when petitioner wasthree years old. [{]] The report ‘Police Malpractice and Watts Riots’ has detailed descriptions of reported conductof individuals that allegedly took place in 1965 in the Watts area, butagain there is no link between the specific events and petitioner. This material would not have been deemed relevant for the penalty phase ofpetitioner’s trial” (RR 166,italics & underlining in original). 80 financialdifficulties, sibling abuse, brain damage dueto fetal abuse, head injury, head traumainflicted by older brothers, the impact on petitioner and his family resulting from the death of Gerald Trabue, Sr. and the lack of a father figure. The Referee’s findings concerning the non-disclosure of family history”” In the Report, the Referee explained: The referee finds the nondisclosure of family history by petitioner or members of his immediate family purposeful and that no attorney or investigator could have acquired or developed the family mitigation now presented in view ofthe failure to disclose. [{] Skyers personally investigated the following: [{]...[{]... [1 .--[{] @) He met with the family membersat their home,his office and in court. [{] (5) He attempted to discuss with the family and petitioner matters related to petitioner’s family history and up bringing. In noneofhis meetings did anyone, including petitioner, say anything about any of the now claimed family difficulties including poverty, fetal abuse, traffic accident head trauma,sibling physical beatings, death of petitioner’s stepfather and its impact on the family and the domestic violence and abuse suffered by petitioner’s mother at the hands ofpetitioner’s . biological father. [{]...[§].--[9].-- [9]... [9]... [9] The referee’s finding on the failure to disclose is based on Skyers’ testimony, Dr. Deborah Miora’s (hereinafter referred to as ‘Dr. Miora’) observations in her report that petitioner’s mother did not disclose the abuse she suffered at the hands of Lewis Champion II to ' others, petitioner’s statement to Dr. Miora that his mother was secretive and hadtold the children notto talk about family matters on the street and petitioner’s statement to a CYA doctor that he did not °° Petitioner appears to take exception to the Referee’s findings relating to (1) the nondisclosure by petitioner, his mother and siblings to trial counsel Skyers concerning information relevant to the mitigation claims presentedfor the first time at the reference hearing and (2) that no reasonably competent counsel would have been able to discover and develop at the time of petitioner’s trial the newly minted family mitigation evidence, although petitioner frames the actual exception: “The referee erroneously attributes Skyers’failure to uncover mitigating evidence to a Jamily member conspiracy to keep informationfrom him[.|” (PB 161, italics added.) Respondent addresses this apparent exception in this section of respondent’s reply brief. 81 confide in others except one girlfriend he found he couldtalkto. Lastly, the referee finds that no counsel or investigator would have been able to discover and develop the family mitigation at the time of trial. (RR 11-12, underlining in original.) Later in his report, the Referee noted: Evenif one assumes arguendo the truth of the present allegations concerning available mitigation, the referee finds that reasonably competent counsel could not have discovered evidence in these three areas [alleged beatings, fetal abuse and extreme poverty]. As more fully discussed in a review of the Declaration and reference hearing testimony ofpetitioner’s “mitigation specialist,” Dr. Miora, the unwillingness of petitioner’s family membersto disclose family business to outsiders was andis a well-recognized phenomenon. Thus, even if one or more of the mitigation “themes” now raised by petitioner’s habeas counsel and presented through the reference hearing testimony ofpetitioner’s mother, siblings, best friend Gary Jones and Dr. Miora,in fact were supported by credible evidence, Skyers’ failure to uncover the circumstancesin light of a deliberate and concerted effort by petitioner’s mother and family to keep such matters from Skyersfails to reflect a failure of reasonably competent counsel to conduct an appropriate investigation in anticipation of a possible penalty phasetrial. [{] Finally, in addition to the reference hearing testimony of Gary Jones, Wayne Harris, Earl Bogans and Marcus Player which substantially underminedpetitioner’s present claims of available mitigation evidence in these and otherareas, the prosecution had readily available rebuttal evidence to refute petitioner’s present claims such as Exhibit H (Initial Home Investigation Report), Exhibit CCC (Los Angeles Unified School District [hereinafter referred to as “LAUSD”] school records), Exhibits D, I & J (the CYA psychological and psychiatric evaluations) and the absence of any contemporaneous medical, police, probation, school, social services or financial records relating to petitioner to support petitioner’s present claims of available mitigation evidence.”' >! Petitioner erroneously contendsthat “[t]he referee’s report treats the testimony of Harris, Bogan|s], and Player as a dispositive rejection of petitioner’s life history mitigation evidence... .” (PB 138, fn. 77; italics added.) As the multiple excerpts from the Referee’s report cited by respondentin this brief amply demonstrate, the Referee did not treat the (continued...) 82 (RR 30-31, italics added; see also RR 222-223 [Referee’s conclusions regarding trial counsel’s investigation ofpetitioner’s development and functioning, the absence of contemporaneousrecords supporting petitioner’s claims, the existence of records and reference hearing testimony contradicting those claims and reference hearing testimony from family members supporting Skyers’s reference hearing testimony concerning nondisclosure of these claims despite trial counsel’s questioning of family members aboutpetitioner’s childhood and family history], RR 173-174 [testimony of Wayne Harris concerning petitioner and petitioner’s gangaffiliation], RR 177-178 [testimony of Earl Bogans regarding same], — RR 182, 184-185 [testimony of Marcus Player regarding same], RR 230- 234 [detailed review of testimony from Gary Jones and additional reasons for finding petitioner’s claim of sibling abuse not credible, not discoverable (...continued) testimony of Harris, Bogans and Player “as dispositive” on the issue of the credibility of “petitioner’s life history mitigation evidence.” Rather, their testimony, in conjunction with that of petitioner’s best friend, Gary Jones, the contemporaneousrecords in existence at the time of petitioner’s trial (e.g., Exs. D, H, I, J & CCC)that failed to document the claimed mitigation raised for the first time at the habeas reference hearing, the absence of contemporaneous records supporting the newly claimed mitigation themes and the nondisclosure of such mitigation claims by petitioner, his mother, sisters and brother Reggie to trial counsel, collectively provided Referee compelling evidence demonstrating the lack of credibility of petitioner’s newly minted mitigation themes. Petitioner also contends that because the Referee found the “alibi evidence for the Taylor offense” provided by Harris, Bogans and Playernotto be credible, the Referee’s acceptance of their testimony on the subject of petitioner’s life history “lackfed] consistency.” (PB 138, fn. 77; italics added.) But the Referee wasentitled to accept as reliable and credible portions of a witness’s testimony, but reject as unreasonable or lacking in credibility other aspects of that same witness’s testimony. 83 by reasonably competent counsel in 1982, and subject to impeachment by the prosecution with significant rebuttal evidence].)”* The Referee also found: c. Trial Counsel’s Testimony and Credibility [4] Even if petitioner’s present claims of fetal abuse, physical abusebyhis older brothers, adverse effects from family poverty, neighborhood dangers unrelated to petitioner’s own gangand criminalactivities and any inferior public school system have somecredibility, Dr. Miora’s declaration and testimonyfully supports the credibility of trial counsel’s reference hearing testimony that petitioner and his family deliberately withheld this dirty “family business” from trial counsel such that any failure by counsel to discover this undisclosed information does notreflect deficient performance bytrial counsel in his representation of petitioner during either the investigative stage or the penalty trial of petitioner’s case. []] In her Declaration (Exhibit 136, at pages 5-6.) Dr. Miora wrote: [{]] “Second, both patients and informants may intentionally misreport information,either in an effort to exaggerate or to minimize events andtheir impacts, for reasons of their own. Patients and informants are frequently reluctant to reveal information that is personally embarrassing or intensely shameful, or equally unacceptable if one has been raised with the cultural proscription that one does not disclose ‘family business’ to outsiders. Fear andlack of education aboutthe roles and motives of mental health professionals can reduce the willingness ofpatients and collateral sources to disclose the true nature of highly pertinent and relevant events and affairs. A history of negative experiences with the mental health *° Once again,the Referee’s findings and analysis were prescient of a later pronouncement by the United States Supreme Court: “This is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in theface, cf. Wiggins [v. Smith (2003)] 539 U.S. [510], at 525, [123 S.Ct. 2527, 156 L.Ed.2d 471], or would have been apparentfrom documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).” (Bobby v. Van Hook, supra, 130 S.Ct. at p. 19 [175 L.Ed.2d at p. 261]; italics added.) Unlike Rompilla and Wiggins, petitioner has failed to identify any credible contemporaneous documents or other evidence establishing the existence of petitioner’s newly minted mitigation themes that a minimally competenttrial counsel would have discovered with proper investigation. 84 system can lead patients and collateral others to withhold important information of a highly charged nature. Familiarity with the evaluator or someoneclose to the evaluator can serve to lessen apprehension and shame aboutdisclosure of long-held and perhaps repressed material (those experiences barred from consciousness). Further, what is normative to one subset of individuals, subset being defined possibly by culture, socioeconomic group, multi-generational context, or other variables, may not be considered so by inquiring bodies such as mental health or criminal investigators. Thus, responses generated may well be skewed by a context, which context it behooves the mental health professional to attempt to understand and about which to become informed. Regarding events that are dramatic and painful, the reluctanceor inability to fully describe (or in many cases, even speak of) the event may be a symptom oftraumatic stress. On occasion, patients malinger, exaggerating symptomsor events for personal gain, requiring that mental health professionals routinely assess the potential for malingering in a given case.” (RR 218-219, fin. omitted.) At the reference hearing, Dr. Mioratestified that “she wastold that family business was not to be shared outside of the family.” (RHT 9073:20-22.) Dr. Mioralater clarified this testimony: ““As I’m looking, I’ Il remind the court it was a statement made by Mr. Champion in reference to his mother saying that family business was notto be discussed outside of the home. Very consistent with his culture, I might add.’ (RHT 9287:3- 7.)? (RR 221-222 & fn. 122.) Thus, the Referee found: “Skyers’ testimony that petitioner, his mother, his sisters and brother disclosed none of the presently claimed mitigating circumstances to Skyers during his multiple conversations with them is buttressed by Dr. Miora’s Declaration and reference hearing _ testimony concerning the well-recognized phenomenonthat families will not disclose family business to outsiders. [{] In sum, even if petitioner’s present claims of mitigating evidence available to presentat petitioner’s trial in 1982 are credible, the failure of petitioner’s trial counsel to uncover and present such mitigating evidenceis not the product of any deficient 85 performancebytrial counsel; rather it is the product of the Champion family not disclosing family business to petitioner’s trial counsel, Ronald Skyers.” (RR 224; see Mickey v. Ayers, supra, F.3d [2010 WL 2246411], at *15 [finding no ineffective assistance for failure to investigate or present newly minted mitigation themes concerning social history and psychological problems, noting that counselis entitled to rely on information provided (or withheld) from the client].) Addressing Reference Question 3, and in particular whether “a reasonably competent attorney [would] have presented”at the penalty phase evidence concerning “Petitioner’s family/social history,” the Referee wrote in part: Skyers’ reference hearing testimony is very credible. Skyers did visit petitioner’s home and interviewed key family members. No information was disclosed by family membersas to poverty, financial difficulties, sibling abuse, brain damage due to fetal abuse, head injury, head traumainflicted by older brothers, petitioner’s gang involvement, the impact on the family and petitioner resulting from TrabueSr.’s death, and the lack of father figure. []] Beyond the non- disclosure are the additional factors that the primary witnesses that this evidence would depend on are the family membersthat testified in support of petitioner’s alibi for the Hassan murders during the guilt phase. [{]] Reference hearing witnesses Gary Jones, [Wayne] Harris, [Earl] Bogans and Marcus Playertestified in a manner inconsistent with petitioner’s current claim of poverty, malnutrition and inadequate clothing. In the view of family members, fellow gang members and friends, petitioner was very bright and liked to be a leader. [{] A complete absence of documentation by non-family membersis not a small matter. No medical records support petitioner’s claim offetal abuse, head injury, infliction of head trauma by older brothers or physical abuse. [§]]| Mrs. Champion’s prior statements to school authorities or CYA staff are significantly inconsistent with her testimony during the reference hearing. (RR 268-269.) As respondenthas noted, petitioner frames his exception to the issue of family nondisclosure as follows: “The referee erroneously attributes 86 Skyers’ failure to uncover mitigating evidence to a family member conspiracy to keep information from him[.]” (PB 161.) Petitioner characterizes the Referee’s findings as follows: “The referee excuses Skyers’ deficient investigative efforts to explore petitioner’s social history by placing blame onfamily members. (Referee [sic] at p. 11, 218, 224.)” (PB 161, italics added.) Nothing could be further from the truth. | Although the Referee did find “the nondisclosure of family history by petitioner or membersofhis immediate family was purposeful and that no attorney or investigator could have acquired or developed the family mitigation now presented in view ofthe failure to disclose[]” (RR 11), the record is clear that the Referee did not use that finding, along with those also cited by respondentin this brief and found in the Referee’s report at pages 12, 30-31, 218-219, and 268-269, as an excuse for whatpetitioner perceives to be Skyers’s “deficient investigative efforts to explore petitioner’s social history... .” (See, e.g., RR 10-11 [“[t]rial counsel did not adequately conduct a separate, independentinvestigation. Hefailed to retain a penalty phase investigator. He did not interview all potential mitigation witnesses including petitioner’s teachers, friends, CYAstaff, CYAdoctors, fellow gang membersor law enforcement personnel. He did not assemble all documents including school records and co-defendant Mallet’s trial transcripts”];°> RR 264-266[in addressing Reference Question 3 asking whether “a reasonably competent attorney [would] have °° The Referee set forth a series of summary findings with respect to those areas of the case “Skyers personally investigated” (RR 11-12) and what actions Skyers took to investigate potential evidence that could have been presented in mitigation at the penalty phase (RR 18-24), followed by a “Detailed Discussion of Evidence and Findings”related to these areas (RR 24-76). These findings clearly underminepetitioner’s contention that “Skyers conducted no investigation into the areas of mitigation permissible under Penal Code section 190.3.” (PB 164.) 87 tried to obtain [the additional mitigation evidence identified in response to Reference Question 2],” the Referee summarizes his findings, including findings with respect to whethertrial counsel did or did not do as reasonably competent counsel would have done with respect to each of the enumerated areas].) Rather, the Referee did use his finding of a purposeful nondisclosure by petitioner and his immediate family as one of a multitude of factors from which the Referee ultimately found “that no attorney or investigator could have acquired or developed the family mitigation now presented in view of the failure to disclose.” (RR 11.) This finding by the Referee is in direct responseto that part of this Court’s request in Reference Question 3 asking: “Whatinvestigative steps, ifany, would haveled to this additional evidence?” (RR 18,italics added.) Skyers’s lack of awarenessof the “family mitigation now presented [at the reference hearing by petitioner]” was not simply the product of a failure to disclose by petitioner and his family. Rather, as detailed by the Referee, that lack of awareness was reinforced by the contemporaneousrecords that Skyers did review or should have reviewed as reasonably competent counsel, and the absence of contemporaneousrecords documenting the newly minted family mitigation claims. (See, e.g., CYA reports such as Exs. D, H, 1 & J; RR 22 [“the CYA reports contain somecrucial statements by petitioner’s mother and by petitioner that have a major impact on the referee’s determination of credibility of the reference hearing witnessesor the validity of claimed mitigation”); RR 31 [“finally, in addition to the reference hearing testimony of Gary Jones, Wayne Harris, Earl Bogans and Marcus Player which substantially underminedpetitioner’s present claims of available mitigation in these and otherareas, the prosecution had readily available rebuttal evidenceto refute petitioner’s present claims such as Exhibit H (Initial HomeInvestigation Report), Exhibit CCC (Los Angeles Unified School 83 District . .. school records) Exhibits D, I & J (the CYA psychological and psychiatric evaluations) and the absence of any contemporaneous medical, police, probation, school, social services or financial recordsrelating to petitioner to support petitioner’s present claims of available mitigation evidence”].) Consistent with petitioner’s contention that “reasonably competent counsel would not haverelied solely on the information given by family members” (PB 165), the Referee relied on the combination ofthe aforementioned factors, including nondisclosure by petitioner andhis family members, to support his finding “that no counsel or investigator would have been able to discover and develop the family mitigation at the time oftrial.” (RR 12.)** ** Yn its seminal decision in Stricklandv. Washington, 466 U.S. 668, the United States Supreme Court observed: “The reasonableness of counsel’s actions may be determinedor substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informedstrategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable dependscritically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant hassaid, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant maybecritical to a proper assessment of counsel’s investigation decisions, just as it may becritical to a proper assessment of counsel’s other litigation decisions. [Citation.]” (Id.-at p. 691.) In the case sub judice, the Referee quite properly considered the information provided by petitioner and his mother and siblings, in conjunction with the contents of the available contemporaneousrecords and the absence of contemporaneous records documenting any ofpetitioner’s mitigation themes newly minted for this reference hearing, in assessing the scope of investigation required by reasonably competent counsel in 1982 (continued...) 89 Thus, petitioner’s contentions-——“Anyfindingthat petitioner’s family engaged in a deliberate and concerted effort to keep mitigating evidence from Skyers is of [sic] simply ludicrous” (PB 165)—mustberejected, along with petitioner’s underlying exception to the Referee’s findings of _ nondisclosure and its bearing on the ability of trial counsel to have discovered in 1982 the existence of the claims presented at the reference hearing (PB 161). The record clearly justifies the Referee’s contrary determination that petitioner and his family members deliberately withheld from Skyers any information regarding the social history mitigation claims presentedfor thefirst time at the reference hearing.*? As this Court itself .noted: “The referee’s conclusion that the lay witnesses’ testimony was incredible and recently fabricated is certainly relevant to whether counsel could have discovered that evidence beforetrial.” (/n re Scott, supra, 29 Cal.4th at p. 822.) Before outlining the broad range of mitigation evidence proffered by petitioner at the reference hearing and which the Referee admitted,it is first (...continued) and the futility for any lawyeror investigator in 1982 “to discover and develop the family mitigation at the time oftrial.”” (RR 12.) > Ofcourse, nondisclosure presupposesthe existence in 1982 ofthe newly minted mitigation themes presented at the reference hearing in 2006- 2007. As the Referee found, however, claims of physical abuse to petitioner by his older brothers, in particular Lewis ChampionIII, are not _ credible. It is therefore not surprising that there would be no disclosure to trial counsel Skyers of beatings which in fact never occurred. That is why the Referee carefully couchedhis findingsto reflect that the claims that petitioner presented for the first time at the reference hearing wouldfail, even if one assumes for sake of argumentthat they were credible. Indeed, the nondisclosure by petitioner’s family, along with the absence of contemporaneousrecords to support the newly disclosed claims and the existence of contemporaneousrecords contradicting those claims, support the Referee’s finding that reasonably competent counsel could not have discovered in 1982 the existence of such claims. 90 useful to address petitioner’s allegation that “[t]he referee improperly impugnedthe professional integrity of counsel in preparing a proffer of Dr. Miora’s anticipated expert testimony, and then improperly inferred a discrediting ‘bias’ on Dr. Miora’s part onthe basis ofthat proffer’s failure to include mention of information the referee deemed favorable to respondent.” (PB 134.) In petitioner’s introductory paragraph in support of this contention, petitioner further contends: “The referee erroneously and falsely accused habeas counsel ofprofessional misconductfor aiding in the preparation of the declaration intended as a proffer of evidence.” (PB 135, italics added.) The sole record citation offered by petitioner to support this contention is a single paragraph from page 195 of the report, in which the Referee noted, “ Tn rejecting petitioner’s claim that he was amenable to rehabilitation based upon his conduct while at CYA, the Referee painstakingly set forth over eight pages of his report petitioner’s “Prior Record,” “Prior Probation,” “Personal History (as reflected in 1978 probation report),”“Probation Officer’s Analysis and Plan for 1978 Assault Crime,” “1978 CYA Commitment,” “Post-CYA Parole,” “CYA Staff Report 1978-80 (BS000028; BS000087),” “Race Riot YTS Report Dated October 10, 1979; Incident date July 21, 1979 (BS000082),”“January 4, 1979 CYA Report on Prior Conviction (BS000088)”and “January 4, 1979 Case Conference Report dictated by John Spurney (BS000089 through BS000093).” (RR 147-156; see also RR 298-312 [summary of “evidence .. . admitted and considered by the referee” concerning (1) — “Petitioner’s Juvenile Record,” “Petitioner’s Statements to CYA Staff and Doctors,” “CYA Chronological,” “CYA File-Examples of Positive/Negative Staff Remarks” and “1982 Probation Report (BS000020)-Eric Hassan”].) As the Referee found, “Petitioner’s membership with the Raymond Avenue Crips commences from the age of 12 to the time of the Hassan crimes. This latter aspect includes reference hearing evidenceindicating petitioner had a close association with Craig Ross from 1977 through the Taylor murder. In addition, a close examination of petitioner’s arrest record reveals his involvementin serious violent crimes and further indicates petitioner was arrested or associated with Marcus Player and Evan Mallet in other Raymond Avenue Crips activities. [§]] Any proposed mitigating theme that would permit the prosecutor to present additional evidence of gang membership or petitioner’s criminal history would be prejudicial to petitioner.” (RR 286- 287; see also RR 293-297 [summarizing the Referee’s findings concerning rebuttal evidence damagingto petitioner but not presented at the guilt or penalty phase ofpetitioner’s trial, noting the prosecution would have likely sought to introduce in responseto a “mitigation expert” called by petitioner including “[a]s to the two juvenile aggravators presented attrial, the prosecution had the complete circumstances available including some additional aspects that were vot disclosed to the jury. [{] (1) A 1977 West Covina robbery that involved among others Marcus and MichaelPlayer. Both Marcus and Michael displayed handgunsto the victim in petitioner’s presence. [{] (2) A 1978 police report of an assault with a deadly weapon that took place at Helen Keller Park which indicates that Evan Mallet was (continued...) 235 Third, even petitioner’s Strickland expert failed to identify what petitioner now claimsto be mitigating evidence for the juvenile aggravators arising from the absenceof a father figure and the presence of sibling abuse whichallegedly drove petitioner to the Raymond Avenue Crips. “In his final report (Exhibit 110, last paragraph on page 16), Earley addressed the issue of ‘Mitigation of Participation in Juvenile Aggravators.’ Earley’s specific criticism of trial counsel on this issue is found in one sentence,the last sentence of the paragraph. ‘While there are police reports for the events in Mr. Skyers[sic] file, there are no juvenile court documents, no transcripts of the proceedings and noindication whatsoever that Mr. Skyers made any attempt to talk to any of the witnesses, victims, or attorneys of either of these offenses.” Nowhere in this report does Earley identify what mitigating evidence for these 1977 and 1978 crimes reasonably competent counsel should have presented at petitioner’s penalty phase.” (RR 260.) Fourth, petitioner contends, “Community dangers also contributed to petitioner’s association with gang membersandparticipation in street crimes.” (PB 226.) To the contrary, the Referee found that petitioner and his fellow Crips created the community dangers, not the other way around. Specifically, the Referee found:“13. Petitioner’s Neighborhood[{]] The increased community dangers, which started to develop in petitioner’s neighborhood,are not considered mitigation evidence that was available to trial counsel. Petitioner’s involvementin a violent criminalstreet gang at or about the time of the increase in violent crimes and the gang’s use of Helen Keller Park as their hangout would be rebuttal to any claimed mitigation based on increased community dangers.” (RR 87.) Following a (...continued) present when petitioner was arrested. A witness claimed Mallet placed the victim’s radio into the car trunk”(italics added)].) 236 discussion of Dr. Miora’s reference hearing testimony concerning “community dangers affecting petitioner’s development and functioning,” including statements madeby petitioner to Dr. Miora (RR 234-239), the Referee found: . Petitioner’s neighborhooddid not appear to become more dangerous until at least 1975, the year when petitioner, by his own account to Dr. Miora, was already a memberof the Raymond AvenueCrips. Further, the circumstances making the neighborhood dangerous arose directly from gang activity of the Raymond Avenue Crips andtheir rivals. As such, residential burglaries, drug use and increased violence marked the contours of the community danger. Petitioner’s commission of a residential burglary in December 1976 wasitself a crime which increased community danger. Of course, for the nearly two year period petitioner was in the CYA between 1978 and October 23, 1980, petitioner was not affecting or affected by community dangers. [|] In this proceeding, petitioner has failed to identify any community dangers which reasonably competenttrial counsel should have uncovered which werenotofpetitioner’s and his fellow Raymond Avenue Crips gang members’ own doing and which adversely affected petitioner’s functioning and development. Petitioner’s functioning and development were adversely affected by the fact that petitioner was not only a memberof a dangerousstreet gang, but one actively involvedin that gang’s criminal activity which made petitioner’s community the danger it was. However,in light of petitioner’s guilt phase testimony in which he claimedto haveleft the Raymond AvenueCrips in 1979, the jury’s rejection ofthat testimony expressed through petitioner’s convictions for the Hassan murders and robberies, the reference hearing testimony of Wayne Harris, Earl Bogans, Marcus Player and Gary Jones, the availability to the prosecution of using petitioner’s December 21, 1976 residential burglary to impeach claims of community dangers unrelated to petitioner’s own actions and the potential for evidence to inform the jury that the photographic exhibits (Exhibits DD, EE and FF) were taken while petitioner was at the CYA, even had there been available evidence of community dangers affecting petitioner’s functioning and development unrelated to petitioner and the Raymond AvenueCrips, reasonably competent counsel would have wisely chosen notto pursue the issue at the penalty phase. There does not appearto have been any evidence of community danger available for use by petitioner’s counsel in 1982 which did not involve directly or 237 indirectly the danger created by petitioner and his fellow Raymond Avenue Crips gang members. (RR 239-240.) Forall of the foregoing reasons, this Court should reject that portion of petitioner’s exception claiming that the “referee erred in not recognizing that petitioner presented evidence mitigating his involvementin the juvenile offenses... .” (PB 223.) The secondpart of petitioner’s exception concerning the juvenile aggravatorsis: “[t]he referee erred . . . in denying funding for a gang expert, whose testimony would have permitted presentation of more such mitigating evidence.” (PB 223, 227-228.) Petitioner claims, “because the Referee denied petitioner’s repeated requests for funding with which to retain a gang expert, petitioner was prevented from fully presenting evidence to address gang-related themes such as a) the impermanency of gang membership and gangcriminality, b) the psychological factors leading to gang membership, and c) the negative and positive impact of gang affiliation on petitioner. This information would have been relevant to mitigate petitioner’s juvenile aggravators, which were both gang crimes.” (PB 227.) This second part of the exception should be rejected. First, petitioner fails to include record citations to show he requested funding for a gang expert and any decisions by the Referee or this Court in response to such applications. Volume7 of 135, Item E, Volume1 of8,in the initial unpaginated pages, itemizes “Item F From Table of Contents (Sealed)- Petitioner’s Confidential Funding Material, Request to Supreme Court for Funds”for entries beginning 12/19/2003 and concluding with an entry for 7/23/2007. Respondent has not been provided with the sealed documentsnorhaspetitioner referred to them in petitioner’s brief seeking to support petitioner’s exception regarding denial of funding for a gang 238 expert. Rather than delay these proceedingsby seeking to have the sealed documents unsealed, respondent addresses the exception on the present state of the record. Respondentnotes, “a trial court’s order may beset aside only if it constitutes an abuse ofdiscretion. An orderis presumed correct; all intendments are indulged in to support it on matters as to which the recordis silent, and error must be affirmatively shown. [Citation.|” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321, italics added.) In the case of petitioner’s capital case reference hearing, the Referee was not entrusted with the final word on funding requests for experts submitted by petitioner’s habeas counsel. Rather, while the Referee madetheinitial assessmentof the propriety of the funding requests, the Referee forwarded any such recommendation to this Court, which made the ultimate determination as to whether funding would be approved as requested, denied in part or in whole. (See, e.g., Docket of this Court, entries pertaining to funding requests dated July 13, 2005 through February 14, 2006.) Second, petitioner received funding for not one, but two experts, Steven Strong and Dr. Deborah Miora, whotestified to mitigation evidence arising from petitioner’s gang involvement with the Raymond Avenue Crips. There is no record citation by petitioner to support his claim that either of these experts were “foisted on” him by this Court. There is no record citation by petitioner to support his claim that the two experts were foisted on him. Moreover, on cross-examination, Strong admitted testifying in anothercase, “what happens a lot when you deal with gang members, when they are very young andtheyinitially get in, you see a pattern of activity that gravitates from misdemeanorupinto felonies. It’s pretty consistent except for times that they are in prison orjail, there will be a lapse. Generally when they get older, 21 years and older and up, they tend to gravitate away from the active participation as a gang memberfor several reasons. Sometimes they will mature. Sometimes they will 239 get married or have children, Sometimes they foundthatparticipating in a gang and gangactivity gets you putin jail, because you have too many people involved and someone -- somebody will rat you out and put you in jail. It’s not uncommon to see someonethat’s getting up in, you know,the carly to mid-twenties, late twenties, that they tend to gravitate away from the active gang banging.” (RHT 3018-3019.) Clearly, this testimony addressed “the impermanency of gang membership and gang criminality.””° Strong also testified with respect to underlying causes for the existence and proliferation of gangs and gang activity, stating in his final report, Exhibit VV, at page 11: “‘ Youth at the time join gangs for several reasons. Some join for what they missed at home, a family structure. They had no onethat cared about them, clothed or fed them. Somejoined becausethey liked the respect and status. Somelike the style of dress and camaraderie. Some people, young and old in the neighborhood, adopted the type of dress and color of the gang in the area.’” (RHT 4887-4888.) Strong also testified that some joined the gang because they could make easy money committing robberies. (RHT 4891.) Strong conceded that some membersofthe gang might haveliked the fact that they put people in fear for their lives, holding power over them when they pointed gunsat the people, threatening them. (RHT 4891-4892.) In his final report, Strong also wrote: “‘As gangs grew in size and number, kids joined for protection. But you haveto be careful who you label as a gang member. Sometimes kids in the neighborhood adoptedsimilar dress to get along, but were not ' forced to join because they grew up with the kids in the neighborhood. Not every young adult in the neighborhoodis a gang member.’” (RHT 4894, quoting from Ex. VV, p. 11, 42.) Clearly this testimony wentto “the psychological factors leading to gang membership.” °° At the time of the Hassan murders,petitioner was 18 years old. (RR 234 [petitioner’s date of birth is Aug. 26, 1962].) 240 Dr. Mioratestified to her conversations with petitioner regarding membership in the Raymond Avenue Crips. “Petitioner described the value of his gang involvementas ‘pride, status, unity, respect, honor.’ (RHT 9233, quoting from Exhibit 136, p. 15.) Petitioner told Dr. Miora that he saw his gang as protection for him from dangers in the community. In - addition, petitioner told Dr. Miora that while petitioner was at the CYA, three of his friends had been killed. (RHT 9236; see also Exhibit 136, p. 194.) Further, petitioner told Dr. Miora his belief was that his neighborhood had become more dangerous while he had been in the Youth Authority.” (RR 238.) As the Referee noted, eePetitioner told Dr. Miora that by the time he was 14 years old “‘it was necessary to be armed to go to parties and dancesas the circumstances were unpredictable. [Petitioner] understood that guns were obtained from burglaries and it was considered a badge of honor to arm a home boy. The guns were stashed in a designated location permitting everyone in need access. However, stealing the guns would be groundsfor “instant dismissal” from the gang. Mr. Champion distinguished that reputation was built on fighting rather than use of guns.’” (RHT 9231-9232, quoting from Exhibit 136, p. 14.) Petitioner described to Dr: Miora his need to be hypervigilant to potential dangers which existed in petitioner’s community when he was approximately 14 years old. Dr. Miora admitted that petitioner told her he carried gunsfor his protection at this time. (RHT 9235.) (RR 237, fn. omitted; see also RR 112-113.) Dr. Miora’s testimonyclearly goes to the negative and positive impact of gang affiliation on petitioner. Aspreviously noted, the Referee wrote, “Petitioner’s reasons for joining a gang were developedby the gang expert, CYA reports and Dr. Miora’s interview.” (RR 84.) For example, Exhibit J, the CYA report of Dr. Perrotti, reflects that petitioner “relates that he repeatedly became involved with the law because he thought he could get away with things. Hestates that this is no longer his attitude. Hestates that he feels he is changed in that he has severedties with gangs andis able to talk to different ethnic groups. Healso states that he used to have a bad temper but 241 that now he has madethe decision to-control his temper. When I asked him what the impetus for his change was,he states that he has the support of family who don’t want him going backto jail. He states that he sits in his room andthinks aboutthe ability which he has to do the things which he wants to do, but that he does not utilize these. Hestates that in the past, if someone said things which he did not agree with, he exploded. Hestates that he nowtries to comply with authority.” (Exhibit J, Report of Dr. Perrotti, p. 1.) Dr. Perrotti also noted: “Mr. Championrelated that his history of violent offenses ~ is partially due to his association with gangs of youths subscribing to violence. It seems that he, in all probability, subscribes to their values and attitudes. [] Mr. Champion related that most of his offenses were for ‘fast money.’ Hestates that ‘if it were not for fast money, J would not have committed the offenses.’” (d. at p. 2.) - (RR 34.) Respondentis not aware of any case authority addressing denial of funding for ancillary services such as an expert witness by either a referee or this Court for a habeas corpuspetitioner in a capital case reference hearing ordered by this Court. Assuming arguendo standards applicable to an indigent defendant seeking ancillary services to prepare a defense before trial applyto this capital case reference hearing, petitioner fails to establish any abuse of discretion in the denial of additional funding for yet a third expert witness to opine on issues related to petitioner’s gang activity and membership. “An indigent defendant has a statutory and constitutional right to ancillary services reasonably necessary to prepare a defense. ([Pen. Code] § 987.9, subd. (a); Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320 [204 Cal.Rptr. 165, 682 P.2d 360].) The defendanthas the burden of demonstrating the need for the requested services. (Corenevsky v. Superior Court, supra, at p. 320.) Thetrial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. (Ibid.) On appeal,a trial court’s order on a motion for ancillary servicesis reviewed for abuse ofdiscretion. [Citations.] [Citations.]” (People v. 242 Guerra (2006) 37 Cal.4th 1067, 1085, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “‘[T]he right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel [citations], and thus also includes the right to reasonably necessary defense services. [Citations. ]’ (Citation.]” (People v. Blair (2005) 36 Cal.4th 686, 732.)”” Neither Ake, however, nor the broader rule guaranteeing court- appointed experts necessary for the preparation of a defense [citation], gives rise to a federal constitutional right to the effective assistance of a mental health expert. Numerous federal decisions have held that the °” Unlike the federal andstate constitutionally protected right to effective assistance of counselatthe trial stage, petitioner has no ‘ constitutional right to counsel in a state collateral proceeding, even one which is a capital case, and afortiori, no right to effective assistance of counsel at such collateral proceeding. (Murray v. Giarratano (1989) 492 U.S. 1, 3-10 [109 S.Ct. 2765, 2767-2771, 106 L.Ed.2d 1]; Johnson v. Avery (1969) 393 U.S. 483, 488 [89 S.Ct. 747, 750; 21 L.Ed.2d 718]; see also Coleman v. Thompson (1991) 501 U.S. 722, 752 [111 S.Ct. 2546, 2568, 115 L.Ed.2d 640] [no right to counsel beyondfirst appeals as a matter of right].) Given that the purpose for ancillary services to trial counsel is to protect a criminal defendant’s right to effective assistance of counselat trial, a right not available to petitioner in this reference hearing, it is not clear that the same standards applicableto trial level funding for ancillary services necessarily would apply to review funding decisions in the case subjudice whether madeby the referee or this Court. On the other hand, the United States Supreme Court in Ake v. Oklahoma (1985) 470 U.S. 68 [105 S.Ct. 1087, 84 L.Ed.2d 53] relied upon the due process clause of the 14th Amendmentto hold that “whenan indigent defendant has demonstrated that his sanity is likely to be a significant factor in his defense on the issue of guilt, the State must provide the defendant with ‘access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.’ (Ake, supra, 470 U.S.at p. 83 [105 S.Ct. at p. 1096].)” (People v. Samayoa (1993) 15 Cal.4th 795, 838.) For purposes of this argument, respondent assumes oncethis Court has ordered a reference hearing in response to petitioner’s petition for writ of habeas corpus,petitioner has a due process right to receive funding for ancillary services reasonably necessary to presenthis case in that hearing. 243 federal Constitution does not recognize a right to the effective assistance of a psychiatrist or other mental health expert, or ofthe effective assistance ofa witness, [Citations.] These decisions recognize that a mental health expert is clearly distinguishable from legal counsel with regard to the protection of a defendant’s fundamental rights in the adversarial process and, unlike the ascertainable standard of competentlegal representation, the question whether a mental health expert has performed “competently” with regard to the assistance provided in the presentation of a defenseis not readily determinable. [Citations.] [|| Jn the present case, defendant was provided access to the services oftwo licensed psychologists ofhis choice to conduct neuropsychological testing and . evaluation. These witnesses presented substantial testimony regarding defendant’s mental disorders. The circumstance that these witnesses did notprovide testimony at defendant’s trial which in defendant's view persuasively supported his defense that he lacked the intentto kill does not give rise to a claim ofa violation ofafederal constitutional safeguard. [Citation.] (People v. Samayoa, supra, 15 Cal.4th at pp. 838-839,italics added.) Aspreviously outlined, petitioner received funding for two experts,- Steven Strong and Dr. Deborah Miora, both of whom testified onissues related to petitioner’s gang membership and gangactivity. This case is not unlike People v. Panah (2003) 35 Cal.4th 395, where the defendant contended on appealthatthe trial court erred in denying defendant’s request for the appointmentof a third mental health expert after the defendant entered a plea of not guilty by reason of insanity and thetrial court had already appointed two psychiatrists to examine the defendant, one chosen by the defense and one chosenby the prosecution. (/d. at p. 435.) Asthis Court explained in Panah, Defendant contendsthetrial court’s refusal to appoint a third mental health expert violated his federal and state constitutional rights, including the right to ancillary defense services as part of the right to effective assistance of counsel. [Citation.] His claim is without merit. [{] . . . defendant received reasonable ancillary services, and there was no showingthat the appointed psychiatrists were unqualified or incapable of administering psychological tests defendant now argues were crucial to his defense. 244 (People v. Panah, supra, 35 Cal.4th at pp. 435-436.) Petitioner has failed to establish affirmatively any abuse of discretion or error in denying funding for a third expert witness. He has also failed to establish affirmatively that the two experts chosen by petitioner’s habeas counsel and funded by this Court’s order were unqualified or incompetent to provide whatever additional relevant and probative evidence concerning petitioner’s gang membership and gangactivity petitioner now claims he wished to presentat the reference hearing. Forall of the foregoing reasons, this Court should deny petitioner’s exception that the referee erred in denying funding for a gang expert.” 8 In Ake, the high court held that the defendant’s dueprocessright to a psychiatrist did not require the state to permit “the indigent defendant .. . to choose a psychiatrist of his personal liking or to receive fundsto hire his own. Our concern is that the individual defendant have accessto a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implementthis right.” (Ake v. Oklahoma, supra, 470 U.S. at p. 83 [105 S.Ct. at p. 1096]; italics added.) »? Petitionerhasfiled an additional exception: “Given That Gang Affiliation Was a Noticed Aggravator, the Referee Erred in Refusing to Fund a Gang Expert, Thereby Preventing Petitioner from Fully Exploring Gang Related Issues and Presenting Relevant Mitigating Evidence on This Subject[.]” (PB 220-229.) This exception appearsto be either a duplication of the earlier exception set forth in petitioner’s brief at pages 227-228 or subsumed within that aforementioned exception. Petitioner fails to set forth what additional evidence not presented by the two, court- funded experts whotestified on petitioner’s gang membership andactivity petitioner now claims.could only be presented througha third, court-funded expert. Petitioner fails to establish affirmatively any error or abuse of discretion. Respondent incorporatesall of respondent’s arguments with respect to petitioner’s exception set forth at pages 227-228 of petitioner’s brief. For all of those reasons, this apparently redundant exception should also be rejected by this Court. 245 H. Petitioner’s Exception That “The Referee Errs In Finding That Petitioner Presented No Evidence To Support Claims That If Skyers Had Properly Investigated The Taped Conversation Between Ross And Petitioner He Could Have Shown That The Transcript Was Deficient Or Incorrect And Mitigated The Contents And Impact Of The Recorded Conversation” (PB 230-232.) In his report, the Referee found:“Petitioner did not present any evidence to support the claimsthat if Skyers had properly investigated the taped conversation between Ross and petitioner he could have shown that the transcript was deficient or incorrect. No mitigating evidence was presented by petitioner.” (RR 89.) The relevant exhibits were Exhibits E (taped conversation between Ross and Champion dated 8-10-81) and F (transcript of taped conversation), Trial Exhibits 180and 180a. Petitioner contends, “Skyers made no effort to determine whether petitioner had knowledge that the Hassan home had a water bed and from what sources. Petitioner could have obtained such knowledge from Ross, or from any of petitioner’s three attorneys, Ross’s two attorneys or from the photographsentered into evidence at Ross’s preliminary hearing.” (PB 230, italics added.) Petitioner further contends, At the reference hearing petitioner presented evidence that there were numerous plausible explanations to counter arguments the prosecutor maderegarding the taped conversation between petitioner and Ross. [] The water bed information waspart of prior court proceedings, and that information was contained in police reports and photographs. Given Ross’s identification as a perpetrator though [sic] fingerprints, one might expect he would have had information aboutthe inside of the Hassan home. Also, Ross appears to be doing mostofthe talking. (R[H]T 3095, 3829 [Earley].) [{]] Reasonably competent counsel would have recognized that there were ways to mitigate the taped conversation, including referring petitioner to a psychologist or psychiatrist to evaluate his mental functioning, determining whether or notpetitioner wasa leader or a follower, and investigating petitioner’s prior history. (R[H]T 3830 [Earley].)] 246 (PB 231-232, italics added.) Petitioner cites no actual evidence introduced at the reference hearing to demonstrate that his knowledge that the bed in the Hassan home on which Bobby and Eric Hassan were executed came not from petitioner’s- - presence during the execution murders, but from some other source such as Craig Ross, petitioner’s counsel, Ross’s counsel or photographsreceived at Ross’s preliminary hearing. The opinionsofpetitioner’s Strickland expert, cited as the only evidentiary source for this claim, constitute only rank speculation. Petitioner chose notto testify at the reference hearing nor did he chooseto call Craig Ross or petitioner’s counsel prior to Ronald Skyers. Given that Skyers was not retained as counsel for petitioner until August 24, 1981, but the taped conversation between petitioner and Ross occurred 2 weeksearlier on August /0, 1981 (RR 7), obviously Skyers could not have been the source for petitioner’s knowledge demonstratedin his taped conversation with Rossthat the bed at the Hassan home was a water bed. Similarly, Ross’s preliminary hearing was not until September 4, 1981, nearly one month after the taped conversation in question, thereby eliminating petitioner’s speculative theory that his knowledge could have been obtained “from the photographs entered into evidence at Ross’s -preliminary hearing.” (PB 231.) Asthis Court has recognized on many occasions, speculation is not evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 735 [“But there was simply no evidence, substantial or otherwise, that Waidla intended to take only items ofthe Pirisilds’ personal property concerning which he had a ‘bonafide belief? of a ‘right or claim’ [citation]. One might, of course, speculate that he harbored sucha particularized intent. ‘But speculation is not evidence,less still substantial evidence.’ [Citations.]”].) The failure ofpetitionerto testify to how he knew the bedin the Hassan home wasa waterbed,or to call Ross or other witnessestotestify 247 that one or more of them informedpetitioner of this fact before August 10, 1981, brings into play Evidence Code section 412. This is the same section relied upon by the Referee with respect to petitioner’s failure to call Lewis ChampionIII or Reggie Champion to support petitioner’s claim he was physically abused as a child by his older brothers. “If weaker andless satisfactory evidence is offered when it was within the powerofthe party to produce stronger and moresatisfactory evidence, the evidence offered should be viewed with distrust.” (Evid. Code § 412.) Of course, in petitioner’s case, he did not even offer “weaker andless satisfactory evidence.” Rather, he offered only speculation to counter the reasonable interpretation from petitioner’s taped remark that his knowledge aboutthe water bed camefrom his presence in the home during the execution murders of Eric andBobby Hassan. Norhas petitioner producedevidenceindicating he was a mere follower. In fact, the evidence adduced at the reference hearing reflected the contrary. As the Referee determined: [Gary] Jones has knownpetitioner since Jones was 5 or 6 years old. Jones was in kindergarten while petitioner wasin thefirst grade. Their relationship continued except when petitioner was incarcerated. (RHT 5660, 5665.) Jones first met petitioner when petitioner stepped into a situation in which Jones’ brother was trying to whoop Jones with a belt. Petitioner “had enough nerve to tell my brotherthis is going to stop.” (RHT 5664, 5695-5696.) Jones saw petitioner daily. Petitioner was Jones’ best friend. Petitioner was very competitive in athletics. Petitioner had “certain leadership abilities” Jones admired. (RHT 5665, 5688.) “We had a really beautiful childhood.” (RHT 5665-5666, 5689.) Petitioner was bright andintelligent. Petitioner was not one to blindlyfollow others. (RHT 5688-5690.) (RR 231, italics added; see also RR 268 [“In the view of family members, fellow gang members andfriends, petitioner was very bright and liked to be a leader”(italics added)].) Petitioner’s school records, Exhibit CCC, include notes for grade 6: “Can be somewhatofa discipline problem at 248 times. Works below gradelevel-can be distracted easily-likes to be a leader ofhis peers [.!”’ (RR 75.) Finally, petitioner fails to address “Tpjetitioner’s statement to CYA authorities that he is not a follower or easily influenced by others (Exhibit I).” (RR 292.) The Referee’s findings that “[p]etitioner did not present any evidence to support the claims that if Skyers had properly investigated the taped conversation between Ross andpetitioner he could have shownthat the transcript was deficient or incorrect [| [and] [nJo mitigating evidence was presented by petitioner{]” (RR 89) are fully supported by the record. As such, this Court should reject petitioner’s exception. I. Petitioner’s Exceptions That “The Referee Erred In Failing To Fully Credit The Strickland Expert’s Opinions” (PB 233-234) And “No Evidence Damaging To Petitioner, But Not Presented By The Prosecution At The Guilt Or Penalty Trials, Would Likely Have Been Presented In Rebuttal If Petitioner Had Introduced At Trial The Mitigating Evidence Adduced At The Reference Hearings [Sic]; Nor Were There Other Circumstances Which Would Have Led A Reasonable Counsel To Not Present This Mitigating Evidence”(PB 268.) Respondenthas already addressed in detail petitioner’s exception that the Referee failed to credit fully the opinions of petitioner’s Strickland expert. This includes a thorough discussion of the Referee’s findings with respectto: (a) petitioner’s Strickland expert’s opinions being unreasonable; (b) the Taylor crimes, petitioner’s Taylor related exceptions and the Strickland expert’s Taylor related opinions’”’;(c) the Strickland expert’s 1 Petitioner repeats manyofthe arguments raised in his Taylor related exceptions in his exception claiming that “no evidence damagingto petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal if petitioner had introduced at (continued...) 249 (...continued) . trial the mitigating evidence adducedat the reference hearings; nor were there other circumstances which would have led a reasonable counselto not present this mitigating evidence.” (PB 268, capitalization & underlining removed.) For example, petitioner claims that he would not have hadto call all three alibi witnesses, Harris, Player and Bogans[] (PB 269), a position diametrically opposite to petitioner’s Strickland expert’s opinionas respondenthas noted. Petitioner’s contentions—{1) “the gang member testimony must not be weighedin isolation:it is corroborated by police officer testimony making it very improbable that petitioner had been one of the four men in the crashed vehicle in which the Taylor perpetrators had fled, and evidence wasalso adducedasto the identity of the four actual perpetrators (Ross, Mallet, Michael Player, and Robert Simms), thereby eliminating petitioner as a suspect” (PB 269-270) and (2) “t]he referee characterizes as rebuttal testimony that no law-enforcement witness confirmed the physical detention of petitioner or Harris at the park. (Report at 292). While that may betrue,it’s not rebuttal to anything asserted by petitioner. Moreover, this evidence overlooks, as discussed earlier in the brief that the reference hearing police officer testimony did makeit highly unlikely that petitioner had beenin the vehicle in which the Taylor perpetrators had fled the Taylor residence[]” (RR 270)—are contrary to the factual findings madeby the Referee including (1) “as the reference hearing testimony from the various LASD deputies involved in the perimeter search for the four apparent occupants of the crashed Player automobile documented, the perimeter was notsufficiently tight so as to preclude the possibility of petitioner having been inside the Player automobile whenit crashed, to thereafter have escaped from the perimeter and then to have been detained as he wasat approximately 1:00 a.m. on December28, 1980 when petitioner walked from an area outside of the perimeter towards his home which wasinside the perimeter. The geographical proximity between the Taylor residence and petitioner’s residence was such that neither time nor distance could excludepetitioner as one of the Taylor crime perpetrators[]” (RR 168; see also RR 93-94); (2) “[e]ven if evidence, that one ofthe latent prints obtained from the Taylor crime scene was matched to Robert Aaron Simms, could have been obtained in 1982 and presented at petitioner’s trial, trial counsel’s strategy notto litigate the Taylor crimes during the penalty phase but to remind the jury that those crimes had never been filed by the prosecution against petitioner because of the prosecution’s ownbelief that the evidence wasinsufficient to prove those crimes as to petitioner beyond a reasonable doubt wasstill eminently sound. No witness could testify that only four people were involved in the Taylor crimes. (continued...) 250 opinion concerning the alleged inadequacyoftrial counsel’s referral of petitioner to Dr. Pollack; (d) the Strickland expert’s opinion concerning | presentation of evidence aboutpetitioner’s alleged successful adjustment while at CYA;(e) the Strickland expert’s opinion concerning Exhibit O (Trial Exhibit 113), the December 27, 1980 rental agreement in the name of Craig Ross recovered from petitioner at the time of his arrest on January 9, 1981, and its relevanceto petitioner’s claim he had disassociated himself from Rossafter petitioner was released from CYA; (f) alleged mitigation evidence relevantto the “juvenile aggravators”; and (g) the absence of mitigation evidence concerning the surreptitiously taped August 10, 1981 conversation betweenpetitioner and Ross. (...continued) Moreover, becauseofpetitioner’s conviction for the robberies and murders of Eric and Bobby Hassan,his posting of bail for Evan Jerome Mallet (from what arguably were proceeds obtained from the Hassan crimes), the commonality of Craig Ross as one of the perpetrators in both the Hassan and Taylor crimes and Wayne Harris’ reference hearing testimony [[t]hat whenpetitioner and Harris arrived at petitioner’s home after the two were | released by LASD deputies following their detention at approximately 1:00 a.m. on December 28, 1980, Craig Ross was inside petitioner’s residence (RR 172, fn. 86)], the jury might have deduced from petitioner’s alibi witnesses that petitioner was fully culpable for the Taylor murder and related crimesas the natural and probable consequencesofthe conspiracy to rob and murder drug dealers the jury had undoubtedly found petitioner to be a memberofat the time ofthe Hassan murders and robberies for which petitioner had been convicted[]” (RR 172; see also RR 96 [“15) Petitioner’s claim that Simms’ fingerprint match exonerates him has somedefects. [] What took place inside the residence while they were locked up in the ~ bathroom is unknownother than the victim was shot by someone. [{] Simms’ fingerprints inside the Taylor residence do not eliminate petitioner from being inside and being identified by Cora Taylor’’]); and (3) “[pletitioner’s claim that Michael Player was the fourth person at the Taylor residenceis just that! A prosecutor’s comments during argumentare not always evidence. Mr. Strong testified Michael Player was a suspect. True, but no reference hearing evidence has been presented to support this claim” (RR 95-96;italics added). 251 Thus, in responseto the instant exception, respondent only offers some additional observations concerning the core of petitioner’s argument that “reasonably competent counsel would have presented the evidence discovered post conviction and there were no circumstances(i.e.[,] no rebuttal) which weighed against presentation.” (PB 232, capitalization removed.) | First, petitioner mischaracterizes certain findings by the Referee cited by petitioner in support of this argument. For example, petitioner claims: “The referee found that the only areas of petitioner’s social history which should have been presented were petitioner’s family members [sic] love and affection for petitioner, his history of being loving toward them andhis protective nature, petitioner’s mother’s difficulties in being a single parent raising a large family with very limited income, the absenceof a father figure, the impact of Gerald Trabue’s death on the family and petitioner’s school difficulties. (Report at p[p]. 268-269, fn. omitted.)” (PB 232-233.) What the Referee actually wrote in his report is: “The only areas the referee finds that should have been presented ifdisclosed are: Mrs. Champion and other family members’ love andaffection ofpetitioner; his traits of being loving toward them andhis protective nature; Mrs. Champion’s difficulties in being a single parent and raising a large family with very limited income; the absence of a father figure after Mr. Robinsonleft the home; the impact that Trabue Sr.’s death had on the family; and petitioner’s school difficulties.” (RR 269,italics added.) Onthe finding of nondisclosure which respondenthas addressed in great detail, the Referee found: No information was disclosed by family membersas to poverty, financial difficulties, sibling abuse, brain damage dueto fetal abuse, head injury, head traumainflicted by older brothers, petitioner’s gang involvement, the impact on the family and petitioner resulting from Trabue Sr.’s death, and the lack of father figure. [{]] Beyond the non- 252 disclosure are the additional factors that the primary witnesses that this evidence would depend onare the family witnessesthat testified in support of petitioner’s alibi for the Hassan murders during the guilt phase. [§|] Reference hearing witnesses Gary Jones, Harris, Bogans and MarcusPlayertestified in a mannerinconsistent with petitioner’s current claim of poverty, malnutrition and inadequate clothing. In the view of family members,fellow gang membersandfriends, petitioner wasvery bright and liked to be a leader. [4]... [§] Mrs. Champion's prior statements to school authorities or CYA staffare significantly inconsistent with her testimony during the reference hearing. (RR 268-269,italics added; see also RR 88 [“in view of the purposeful withholding of family matters, Skyers could not have presented evidence of abuse, the impact of Trabue Sr.’s death on petitioner or poverty. A more limited mitigation that is consistent with the evidence adduced during the reference hearing and that might be supportable is that the financial difficulties encountered by petitioner’s mother resulted in her absence from homeanda lack of supervision ofpetitioner. [{] The feasibility of presenting the mitigating evidence by a reasonable competentattorney is discussed in detail in the discussion portion of reference question numbers 2, 3, and 4”] (italics added).) In a detailed discussion, the Referee found: Finally, in 1982, reasonably. competenttrial counsel addressing the issue of possibly presenting evidence of family poverty andits effect on the functioning and developmentofpetitioner would be faced with the same daunting task of how such a claim could be credibly presented as existed with the issues of presenting evidence of community dangers,the traffic accident and the death of Trabue Sr., and the abandonmentofpetitioner’s family before petitioner’s birth by his biological father. Two central witnesses to the poverty issue whotestified in this reference hearing, petitioner’s mother andhis older sister, Rita Champion Powell, had testified on petitioner’s behalf at the guilt phase of petitioner’s trial. So too had petitioner and his brother Reginald. (People v. Champion, supra, 9 Cal.4th at p. 902.) Having convicted petitioner for the Hassan capital murders, the jury had obviously discredited the testimony of petitioner’s mother,sister, brother and petitioner himself. Under such circumstances, reasonably competent counsel could well choose not to recall the same 253 discredited witnesses to present a claim ofpoverty andits effect on petitioner’s functioning and development whereto this date there is no contemporaneous objectiverecords to support the claim. (See, Bell v. Cone (2002) 535 U.S. at 685, 698-702.) Had trial counsel attempted to present a “mitigation specialist” such as Dr. Miora to opine that poverty played a significant role in the development and functioning of petitioner, the expert would need to rely upon information provided by the very same discreditedfamily members andpetitioner whose guiltphase testimony had already been rejected by petitioner’sjury. [§] Even if this dilemma were not enough to lead trial counsel away from presenting the claim of alleged poverty, if trial counsel werestill contemplating doing so and eveniftrial counsel chose notto call Taylor alibi witnesses Marcus Player, Earl Bogans and Wayne Harris, trial counsel would have had to have reasonably expected the prosecution to respondto this claim with evidence such as petitioner’s school records and Exhibit H. In addition, the prosecution could seek to introduce petitioner’s CYA psychological and psychiatric evaluations in which petitioner himself made no reference to having suffered the effects of malnutrition, inadequate shelter or inadequate clothing as a result of alleged family poverty. In fact, statements by petitioner contained within those evaluations suchas petitioner’s statement to Dr. Perrotti “that he repeatedly became involved with the law because he thought that he could get away with things” (Exhibit J, Report of Dr. Perrotti, p. 1.) only serve to aggravate the Hassan murders and robberies without in any way furthering petitioner’s present claim that impoverished circumstances as a youth adversely affected petitioner’s functioning and development. In addition, petitioner’s juvenile probation officers could have beencalled to testify to their own observations about whether there was any observable indication petitioner suffered the adverse effects of family poverty. Certainly, evidence that petitioner’s mother owned a well kept family homein a nice neighborhoodsince 1968 or 1969, had incomefrom the settlement of the traffic accident death of Trabue Sr., had a life insurance award for the sametraffic accident, as well as the financial ability to send three of the children to private schools some distance from home ona daily basis, would hamperthe claim of extreme poverty. [{] For the reasons discussed above, the referee finds that claims ofsignificant physical abuse andpoverty are not credible. However, the referee does find asindicated before that there was credible evidence of family financial hardship and deprivation. It was clear to Skyers that Mrs. Champion wasa single parent struggling to support a large family with limited income. It wasalso clear that Mrs. Champion, 254 when employed, wasnotable to provide the necessary supervision and attention needed by her family. However, the dilemmafor a reasonable competent attorney would continue to exist, the basic witnesses or informants would be the very same family members who werepetitioner’s key alibi witnesses. []] Thus, even if credible evidence of alleged family poverty that adversely affected petitioner’s functioning and developmentexisted in 1982, assumptions not borne out by the credible evidence adducedin this proceeding, reasonably competent trial counsel aware ofavailable impeachment evidence to undermine such a claim could and would wisely choose to forego introduction ofthis contention at petitioner ’s penalty phase. (RR 228-230, italics added; see also RR 227-228, 286-287.) On the subject of petitioner’s schooldifficulties, the Referee found: The [school] records [Ex. CCC] reflect petitioner’s poor academic functioning in school. He displayed learning disability, read slowly, and had an IQ test below average. Petitioner was easily distracted and- problems at home affected his school efforts. He displayed a bad temper. However, the records did not reflect any physical abuse, any significant medical issues or malnutrition or a lack ofclothing. Petitioner’s mother told schoolofficials all was well. A teacher notes that petitioner seeks to be a leader. [|] Petitioner’s school records support the proposed mitigation theme of poor academic functioning in elementary, junior and high school. However, this claim is subject to being neutralized by petitioner’s involvement in gangs when he was twelve. Somerecordsindicate petitioner could do well when he applied himself. Petitioner told Dr. Perrotti that he felt he could have donebetter in school. (RR 84-85, italics added.) In addition,“[t]he referee finds that when petitioner put his mind to his education, he could be successful. On the other hand, when he preferred to participate with his gang beginning at age 12 or 13, skip school, use drugs and alcohol and commit crimes, his school work suffered.” (RR 246,fn. omitted; italics added.)'”’ “Any proposed 'l Tn the omitted footnote, footnote 136, the Referee quoted from petitioner’s November8, 1978 probation report: “‘“Prior to minor’s camp placement, he experienced extreme adjustment problemsin the school (continued...) 255 mitigating themethat would permit the prosecutor to present additional evidence of gang membership or petitioner’s criminal history would be prejudicial to petitioner.” (RR 287.) As respondenthas already discussed in detail, at pages 147-156 of his report, the Referee outlined petitioner’s extensive criminal history and gang involvement, andat pages 298-304-A,the Referee outlined petitioner’s “Juvenile Record,” most of which petitioner’s penalty phase jury had not heard. As the Referee clearly recognized, the extensive nature of petitioner’s gang activity and involvement with criminal misconduct since petitioner was approximately 12 years old, could be introduced by the prosecution to explain petitioner’s academic performancehadtrial counsel introduced petitioner’s school records as evidence in mitigation. As the Referee also clearly recognized, introduction of such evidence by the prosecution in rebuttal would not have beenin petitioner’s best interest in seeking to avoid a death sentence. The Referee also recognized that the school records, Exhibit CCC, and the December 13, 1978 Initial Home Investigation Report, Exhibit H, contained evidence in the form of statements by petitioner’s mother to school authorities and petitioner’s juvenile parole agent which undercut claims of a dysfunctional family life or abnormal developmental history. And, in the case of the school records, the evidence included statements by a teacher commenting on petitioner’s (...continued) setting. On one occasion, he was expelledfrom the program when he was discovered to have a gun in his possession on the junior high school campus. Prior to minor’s expulsion, he recordedall fails and U’s in the eighth grade program. Minor was subsequently placed in the camp program before he had an opportunity to improve on his performance.” (RHT 9263-9264, quoting from Exhibit 147 at BS109; italics added.) These observations are consistent with petitioner’s statement to Dr. Miora that he first joined the Raymond Avenue Crips when he was 12 or 13 years old. (RHT 8446.)” (RR 246-247, fn. 136.) 256 desire to be a leader amonghis peers, further evidence that could notassist petitioner’s trial counsel in seeking a life sentence from petitioner’s penalty phase jury. As the Referee also properly found, the same prejudicial impact applies to petitioner’s own statements made during the course of the CYA -evaluations, evidence whichpetitioner’s penalty phase jury also had not heard. Taken together, all of these findings by the Referee, amply supported by substantial evidence, ineluctably lead to the conclusion that reasonably competent counsel would not have introduced evidenceofpetitioner’s “school difficulties” as mitigation evidenceat petitioner’s penalty phase — trial in light of the abundant, credible, contemporaneous and powerful impeachment evidence available to the prosecution in rebuttal to said school difficulties evidence.’ (See also RR 247 [“Based on reasons already discussed demonstrating how petitioner’s school records (Exhibit CCC),the ‘Initial Home Investigation Report (Exhibit H)’ and petitioner’s CYArecords could be used by the prosecution to rebut claimspetitioner’s habeas counsel now contendstrial counsel should have introduced as mitigating evidence at petitioner’s penalty phase andthefailure of petitioner’s habeas counselto call a single teacherto testify in this proceeding abouteither the school environmentpetitioner faced or petitioner’s performancein schoolor for that matter, what could have been done by the school system with available resources, reasonably competent counsel could have wisely chosen not to put forth a claim suggesting a ' In respondent’s brief on the merits, respondent has taken an exception to the ambiguouslanguage in the Referee’s report concerning presentation ofpetitioner’s “school difficulties” at the penalty phase,if said languageis interpreted to meanthat trial counsel was deficient for failing to present evidenceof the “schooldifficulties” identified at the reference hearing at petitioner’s penalty phase. (RB 39-44.) 257 failure on the part of petitioner’s schools to intervene with petitioner and his family adversely affected petitioner’s development and functioning”’].) In a second mischaracterization of the Referee’s findings, petitioner states: “The referee made additional findings about petitioner’s gang membership, substance abuse, probation/parole history, juvenile adjudication history which are unclear but appearto signal the referee’s opinion that evidence presented at the reference hearing regarding each of these areas would not be mitigating.” (PB 233.) Beginning on page 266 of his report, the Referee answered that portion of Reference Question 3 asking whether“[i]n 1982, when petitioner’s case was tried, would a reasonably competent attorney havetried to .. . present [this additional mitigation evidence identified in response to Reference Question 2] at the penalty phase?” Leaving no doubtasto his findings on this point, the Referee began his findings bystating, “A reasonably competent attorney would not have presented the following evidentiary mitigating themes at the penalty phase.” (RR 266, underlining in original.) The Referee then identified 10 specific categories of evidence which the Referee found reasonably competent counsel would not have presented at petitioner’s penalty phase, including evidence of (1) the Jefferson alibi; (2) the Taylor alibi; (3) petitioner’s adjustment while at the CYA; (4) petitioner’s CYA mental evaluations; (5) petitioner’s family/social history; (6) petitioner’s hardcore gang membership since petitioner was 12 years old and his association with Marcus Player, Evan Mallet and Craig Ross; (7) petitioner’s limited substance abuse;(8) petitioner’s probation/parole history which the Referee found “would have directed the jurors’ attention to petitioner’s arrests and his performance on probation[;]” (9) petitioner’s juvenile arrest/adjudication history, the Referee finding that petitioner’s “jury was not informed as to petitioner’s other acts of violence, arrests or juvenile adjudication including a prior burglary[;]”’ and (10) appropriate 258 experts in light of the Referee’s findings that no further psychological/neuropsychological testing or examinations were required in light of petitioner’s CYA records and the unavailability in 1982 of exemplar fingerprints from Robert Aaron Simmsto use for comparison purposes with latent prints recovered from the Taylor, Hassan and Jefferson crime scenes and the Player automobile. (RR 266-270.) As to each of these 10 categories, the Referee provided a capsule summary of his reasoning to support the finding that reasonably competent counsel would not have presented evidencerelated to the particular category at petitioner’s penalty phasetrial. These findings are fully supported by the reference hearing record and the Referee’s report. Petitioner contendsthat the “referee is wrong and multiple reasons compelthe conclusion that reasonably competent counsel would have presented the evidence presented by petitioner at the reference hearing and that that evidence presented no danger that damaging rebuttal evidence would follow.” (PB 233.) It is important to recognizethat petitioner conflates that portion of Reference Question 3 asking whether reasonably competent counsel would have presented evidence of the newly minted mitigation themes presented at the reference hearing with Reference Question 4 asking in part: “What circumstances, if any, weighed against the .. . presentation of this additional evidence? What evidence damaging to petitioner, but not presented by the prosecution at the guilt and penalty trials, would likely have been presentedin rebuttalif petitioner had introduced this evidence?” The Referee recognized this overlap in the preamble to his findings in responseto that portion of Reference Question 4 asking “[w]hat circumstances weighed against the presentation of the additional evidence?” As the Referee explained, “Most of the significant factors that weighed against the presentation of the additional evidence 259 have been discussed in reference questions numbers 1, 2 and 3.” (RR 289, underlining in original.)' 'S Thus, as previously discussed in detail, the Referee correctly found certain of petitioner’s newly minted mitigation themes could not have been reasonably discovered by competenttrial counsel in 1982. This was due to manyfactors, including (1) deliberate and intentional nondisclosure by petitioner, his mother andsiblings; (2) the absence of ‘contemporaneousrecords identifying mitigation themes such as sibling abuse, the 1968 traffic accident, and the impact on petitioner’s family from the death of Gerald TrabueSr., and the effect on petitioner’s functioning and development from the absence ofa father figure; and (3) the presence of contemporaneousrecords suchaspetitioner’s school records, Exhibit CCC, the December 13, 1978 Initial Home Investigation Report, Exhibit H, and petitioner’s CYA records such as Exhibits D, I and J confirmingthe _ informationtrial counsel did receive from petitioner, his mother and siblings and impeaching the newly minted mitigation themes. Petitioner’s Taylor alibi claim requiring the presentation of evidence from Marcus Player, WayneHarris, and Earl Bogans suffered from the Referee’s findings that (1) Marcus Player would not have cooperated withtrial counsel; (2) the dubious availability in 1982 of any of petitioner’s fellow Raymond Avenue Crips gang memberstotestify at petitioner’s trial; (3) the lack of credibility in the alibi testimony of Player, Harris and Bogans and the damagetestimony from those alibi witnesses would have doneto impeach petitioner’s trial testimony that he had left the Raymond Avenue Crips prior to the Hassan and Taylor murdersandto rebut petitioner’s newly minted mitigation themes of poverty, low intellectual functioning and sibling abuse. Certain of petitioner’s newly minted mitigation themes such as brain damage,sibling abuse, and the Taylor alibi were properly found by the Referee not to be credible. Petitioner’s claims of brain damageandsibling abuse were subject to impeachmentfrom sources including (1) petitioner’s CYA reports of evaluations by Drs. Prentis, Perrotti, Minton and Brown whichalso included statements by petitioner which would have proved very damaging if heard by petitioner’s jury such as: “‘Heis not easily influenced by others .. . he became involved with the law because he thought he, could get away with things . . . if not for fast money I would not have committed the offenses[]’” (RR 295); (2) Exhibits CCC and H;and(3) in addition to petitioner’s necessary Taylor alibi witnesses, Player, Harris and Bogans,petitioner’s best friend Gary Jones. Petitioner’s claim of poor school performance wassubject to impeachment with rebuttal evidence outlined in great detail by the Referee, evidence (continued...) 260 Therefore, in answering this portion of Reference Question 4,the Referee “briefly restated” 8 factors including: 1) The lack of credibility of key family members including petitioner’s mother andsister (Rita Champion Powell) whosealibi testimony had beenrejected by jury. The availability to the prosecution of prior statements by petitioner’s mother andpetitioner to school, police and CYA authorities that would impeach the reference hearing testimony or claimed mitigation. [{] 2) The lack of any documents to support the claimed mitigation of brain damage based on fetal abuse, traffic accident head trauma, or head injury as result of physical beatings by older brothers. [{] 3) The need to modify the claimed mitigation of extreme poverty, malnutrition or lack of clothing to one that is consistent with the reference hearing evidence(1.e., single parent struggling financially, emotionally with providing support and care to a large family). [§]] 4) The existence of contemporaneous CYA psychological/psychiatric evaluations that petitioner did not suffer from any mentalillness, defect, or disorders. These reports were written between 1978 and 1980 by four separate doctors and are consistent with each other. [{]] 5) The absence of any evidence by any close family member,relative, friend, neighbor or fellow gang member who would opinethat petitioner suffered from any type of mental impairment during petitioner’s life. [{]] 6) Petitioner’s gang membership andviolent history. [§]] 7) Petitioner’s prior statements to CYA or law enforcement. 8) The additional reasons whythe referee disagrees with the Strickland expert as to (...continued) including petitioner’s hardcore gang activity, arrests, and juvenile. adjudications, as well as petitioner’s performance on probation and CYA parole which explained whypetitioner’s school performance suffered. Further, in addition to finding petitioner’s claim of brain damage not credible, the Referee also found that reasonably competent counsel was not required to obtain additional psychological evaluations or to have petitioner undergo a battery of neuropsychological testing such as Dr. Riley administered in 1997 inlight of petitioner’s CYA psychological and psychiatric records andthe referral report from Drs. Pollack and Imperi. In short, these representative examples demonstrate both the overlapping nature various aspects of Reference Questions2, 3, and 4 bore on the analysis of petitioner’s claims and the Referee’s recognition and application of this overlap in his analysis of those claims throughoutthe report. 261 what a reasonable competent attorney would present will be discussed below. (RR 289-290, underlining in original.) Beginning on page 291 of his report, the Referee outlined the likely rebuttal evidence to be introduced by the prosecution had petitioner sought to present evidence of the newly minted mitigation themes presentedat the reference hearing, including rebuttal evidence as to the Taylor alibi (RR 291-292), “Petitioner’s Development/Functioning/Social History” (RR 292), and to any “mitigation expert” (RR 293-298). As previously discussed, with one exception, the only evidentiary source for petitioner’s contention that reasonably competent counsel would have presented the newly minted mitigation themes andthat“there were no circumstances(i.e.[,] no rebuttal) which weighed against presentation” (PB 232) is the opinion testimony from petitioner’s discredited Strickland expert. As already detailed in this reply brief, the Referee properly found that testimony to be unreasonable for the multitude of failures of the expert witness to review relevant material, employ logical reasoning, and apply the correct objective Strickland standard. (See, PB 234-242, 252-256, 259- 268, 273-278, 281.) As previously reviewed, in answeringthat part of Reference Question 4 asking “what evidence damagingto petitioner, but not presented by the prosecution at the guilt and penalty trials, would likely | have been presentedin rebuttal if petitioner had introduced this evidence[,]” the Referee found: [Petitioner’s Strickland expert] did not review the entire Mallet preliminary hearing ortrial proceedings. He did not review most of Skyers’ reference hearing testimony. He did not review the reference hearing testimony of Harris, Bogans and Player and he seemed unfamiliar with some of the CYA doctor evaluations. Earley also had a marked tendencyto evaluate Mr. Skyers’ trial performance or omissions from the perspective of what he would or would not do ina capital case in lieu of applying the Strickland standards. This court regards Mr. Earley as one of the best criminal defense attorneysin this - 262 state and he ably demonstrated his legal insights both as to law and capital case procedures during the reference hearing. Hecertainly has earned being treated with great deference in regard to his observations and opinions. Nevertheless,this court must adhereto principles of law that require a showing as to what a reasonable competent attorney (not the best) would or would not do. This court can not grantlatitude where serious omissions have been shownto exist such as the lack of review of evidence or testimony that was not considered by an expert witness. (RR 297-298.)'4 Once again, looking to just one example ofpetitioner’s “rose colored glasses” view ofpetitioner’s Strickland expert’s opinions underscoresthe propriety of the Referee’s findings and his rejection of contrary opinions from the Strickland expert as unreasonable. Petitioner asserts, “Reasonably competent counsel would not have refrained from putting on evidence that petitioner would not be a dangerin the future if given a life sentence because of a potential counter argumentthat petitioner did a marginal program and needed supervision to stay out of trouble [at CYA]. (R[H]T 4427-4432 [Earley].)” (PB 273.) What petitioner describes as “a marginal program”andthat petitioner “needed supervision to stay out of trouble”is described in detail in Exhibit G-13, a December 12, 1979 Youth Training School Case Report. Like Dr. '4 Th light of this Court’s opinion in People v. Bassett, supra, 69 Cal.2d 122, which clearly sets forth that expert opinion in and ofitself has little, if any, value without consideration of the materials reviewed and the reasoning employed bythe expert to reach any opinion (id. at p. 141), petitioner’s contention — that “[the referee] concluded that Mr. Earley’s opinions were ‘flawed’ on baseless grounds, such as not reading all ofthe reference hearing testimony and the referee’s unsupported speculation that Earley based his opinions on a heightened standard ofcare|| (Report at p. 274)” (PB 235, italics added) — once again borders on the frivolous. This is even more so becausepetitioner himself relies on Bassett, (See, PB 112- 118.) 263 Perrotti’s report, however, petitioner’s Strickland expert had not reviewed this one either. (RR 255-256.) As the Referee observed: Under “PROGRESS IN TREATMENT,”the report documents that on March 20, 1979,“[petitioner] was transferred to that Treatment Programfor assaulting another ward and a staffmember. [Petitioner] went through the I/J Treatment Program with only two Level A Behavior Reports, one for yelling at staff, and one for wearing the wrong type ofclothes to trade. On 6/30/79, [petitioner] was transferred to U/V Company. While on U/V Company, [petitioner’s] rule and behavior violations became more severe. He was involved in an incident ofdestruction ofstate property, placa writing, and on 7/21/79, he was involved in a'race riot between blacks and whites. In this riot, several wards were injured and hospitalized. As a result of [petitioner’s] participation in this incident, he was placed on T/D in O/R Company on 7/23/79.” (Exhibit G-13, p. 1 [BS000896].) (RR 256, italics added.) Assaulting another ward and a staff member and engaging in a race riot between blacks and whites reflect far more than petitioner doing “a marginal program and need|[ing] supervision to stay out of trouble.” (PB 273.)'% Such violent conduct clearly provides an evidentiary basis for petitioner’s penalty phase jury to conclude that sentencing petitionerto life without possibility of parole would notensure the safety of other inmates exposed to petitioner in state prison and prison guards responsible for managing petitioner in a state prison system for the rest of petitioner’s life. The Referee’s detailed analysis correctly rejecting petitioner’s claim that reasonably competent counsel would have introduced evidence of '°5 Thus, petitioner’s claim that “no rebuttal evidenceto positive institutional adjustment was submitted at the reference hearing proceedings[]” (PB 275) is patently wrong. Exhibit G-13 and Dr. Perrotti’s report, Exhibit J, constitute powerful evidence rebutting petitioner’s claim of positive institutional adjustment, evidence which, as noted above, petitioner’s Strickland expert had never reviewed. (See also fn. 12, ante, discussing respondent’s development of rebuttal evidence through cross- examination of petitioner’s witnesses.) 264 petitioner’s institutional adjustment at the CYA is found at pages 247-259, an analysis whichpetitioner completely fails to address.'°° (See also RR 196 For example, the Referee found from “(1) Dr. Brown’s findings and those of the other psychologists and psychiatrists who evaluated petitioner while he wasat the CYA (see, Exhibits D & J.) reflecting petitioner’s intelligence, lack of evidence of brain damage or other neurological impairmentand eagernessto help; (2) the fact petitioner was paroled less than 90 days after Dr. Brown’s favorable evaluation; and (3) the fact petitioner committed the Hassan murderers [sic] and robberies less than 45 days after being paroled from the CYA,as petitioner’s trial counsel himself admitted, ‘[a]n argument could be made’ ‘that Mr. Champion fooled the people at the Youth Authority when they decidedto parole him by doing what[petitioner] knew they needed to see from him in order to parole him.” (RHT 1433:9-13.)” (RR 253-254.) The Referee thus concluded:“Earley’s failure to review either Dr. Perrotti’s report, including that portion dealing with Mr. Cruz’s observations about petitioner’s behavior in CYA, or Exhibit G-13 documentingpetitioner’s repeated acts of misconduct at CYA; and Earley’s failure to read all of Skyers’ reference hearing testimony (RHT 3913, 4398-4399, 4430.) undermines[sic] the reasonableness of his opinionscastigating the approach ofpetitioner’s and Ross’ trial counsel taken during thetrial’s penalty phase. [4] In light of petitioner’s disruptive and assaultive behavior while at the CYA,his disruptive behavior in front of the jury whenthefirst guilty verdict against petitioner was read andthesurreptitiously recorded conversation between petitioner and Craig Ross discussing possible escape from countyjail, trial counsel’s closing penalty argument, in conjunction with the closing penalty argument by counselfor petitioner’s co-defendant (from which the jury could conclude petitioner would not in fact present a future dangerif incarcerated undera sentenceoflife without possibility of parole), protected petitioner from available prosecutionrebuttal impeachment evidence demonstrating that petitioner had the ability to manipulate the staff at the CYA anddid in fact engage in conduct suggesting he would be a future danger‘if things don’t go as [petitioner] believes they should.’ [{]] The referee finds that Skyers was aware at the time of trial of the reports relevant to petitioner’s adjustment at the CYA. Other than the opinions of his Strickland expert, petitioner has introduced no additional evidence relevantto this issue at the reference hearing. [{]] For all of the aforementioned reasons,the referee finds that reasonably competent counsel could have chosenthe path pursuedbypetitioner’s trial counsel to argue the issue of future dangerousnessto the jury without rebuttal by the oe _ (continued...) 265 296 [“the potential harm to petitioner’s claims of mitigation through the prosecution’s presentation in rebuttal of petitioner’s other acts of violence at the CYA such astherace riot led by petitioner, an assault of another inmate, [| ] combined with evidence ofprior acts or use of force against others in the priorarrests, are so detrimental that areasonable competent attorney would not introduce the proposed themes of mitigation referred to above’’].) Petitioner contends without citation to the record, “Evidence of Lewis II’s beatings of petitioner’s mother and LewisIII’s beatings of petitioner and other family membersis anecdotal. Any lack of contemporaneous medical records could be explained by a social historian, as Dr. Miora testified at the reference hearing.” (PB 278.) Petitioner conveniently overlooks the reference hearing testimony of Gary Jones, a witness called by petitioner, who thoroughly discredited petitioner’s claim of physical abuse from his older brothers as the Referee found. (See RR 13 [“the testimony from petitioner’s mother andsister (Rita Powell) that petitioner was physically beaten by his older brothers, and in particular Lewis Champion III, was not credible. Given the nature of the alleged beatings (...continued) prosecution and reject the path suggested by petitioner’s Strickland expert to pursue the issue of‘institutional adjustment’ through the use of Exhibit 23 A-1 and witness testimony, both of which would be subject to damaging rebuttal impeachment evidence from the prosecution.” (RR 258-259,fn. omitted.) In the omitted footnote, footnote 148, the referee further found that “not only would reasonably competent counsel not seek to present evidence ofinstitutional adjustment for the reasons already discussed, evidence that petitioner had the ability to successfully manipulate staff, including doctors, at the CYA runs counter to claims raisedin this proceeding that petitioner suffersfrom brain damage and low intellectual functioning.” (RR 259, fn. 148; italics added.) Petitioner completely ignores all of these findings by failing to directly address any of them. (See PB 273-275.) 266 and the complete absence of any observation of injuries, bruises or complaints by petitioner to his best friend Gary Jones or fellow gang members that testified at the reference hearing, the referee finds that petitioner’s mother and sister exaggerated their testimony[;]” see also RR 85 [“9. Sibling Abuse [§]] Mrs. Champion, E.L. Gathright, Rita and Linda Champion are the primary witnesses on this subject. Neither Reggie nor Lewis ChampionIII werecalled to testify during the reference hearing. Rita and Lindatestified as to emotional and physical abuseinflicted by older brothers. Their testimony was i) inconsistent with that offered by other witnesses during the reference hearing who wereclose friends or fellow gang members ofpetitioner; ii) inconsistent with Mrs. Champion’s statement to school officials and the CYA;andlastly, iii) petitioner’s description of his family life to CYA staff. The referee did not find the claim of physical beatings of petitioner to be credible. I do find that Lewis II was disruptive and harshin his discipline. The disruptive aspect could have been presented ifdiscussed or disclosed. || The absence of any medical report, police report or observation by anyone of physical bruises or injuries on petitioner, particularly by Gary Jones, discredits the claim by family membersthat petitioner was physically beaten by Lewis III”(italics added)]; RR 268-269.) Asrespondenthas already discussed in detail, the Referee also found as a separate and independentbasis concerning the non-presentation of sibling abuse evidence that “the nondisclosure of family history by petitioner or membersof his immediate family was purposeful and that no attorney or investigator could have acquired or developed the family mitigation now presented in view ofthe failure to disclose.” (RR 11.) Petitioner appears to suggest that because respondentdid notcall the deputy district attorney whoprosecutedpetitioner’s trial, “there was no expert testimony or any testimony whatsoever as to what rebuttal evidence 267 the prosecutor would have sought to introduceattrial.” (RR 283.) Petitioner overlooks this Court’s opinion in In re Andrews, supra, 28 | Cal.4th 1234, 1250-1252. As respondent has pointed out in footnote 12, ante, in Andrewsthis Court found: The referee rejected the testimony of[the trial prosecutor] that he would not have introduced any rebuttal evidence, with the possible exception of petitioner’s second escape. In the referee’s view, “This position ignoresreality .... [T]he time constraints that hampered the prosecution at the time, such as the difficulty [the trial prosecutor] spoke ofin retrieving priors’ [sic] information, would have been alleviated by the consumption oftrial time in presenting the large numberofwitnesses contemplated by the defense as shownin these hearings .... Had any defense attorney called in excess offifty witnesses with virtually hundreds of hours of testimony portraying the defendantas a victim oflife’s circumstances, these rebuttal witnesses would have undoubtedly been called and presented by the prosecution during a penalty trial.” Weagree with this general assessmentofthe realities of prosecuting a capital case. Based on the reference hearing testimony, we also conclude the thrust of the referee’s finding—that the prosecutor would have responded to the mitigating evidence now proposed—is supported by substantial evidence and not necessarily inconsistent with [the trial prosecutor’s] testimony. It appears [thetrial prosecutor] disavowedthe likelihood of rebuttal only with respect to prison conditions. He did, however, indicate he would have altered the focus of his closing argument to respond to such evidence. It is also clearfrom the record that much damaging testimony regarding petitioner’s own violent conduct in prison and other circumstances desensitizing inmates to violence could have, and undoubtedly would have, been elicited on cross-examination. [Citation] Similar inferences can be drawn with respect to the mitigating evidence of family background. While it may be unlikely the prosecutor would have sought to locate rebuttal witnesses in Alabama to contradict evidence ofpetitioner’s upbringing, the mitigating impact could nevertheless have been underminedon cross-examination and through closing argument, particularly regarding petitioner’s early criminal acts. With respect to mental health rebuttal, the realities of trial surely would have prompted the prosecutor to present expert testimony in contradiction since such witnesses were generally available. 268 Petitioner counters that if [the trial prosecutor] had found the testimony of Woodall and Pettis so useful, he would have introduced it even without petitioner’s presenting the mitigating evidence. Their testimony, however, did not fit with the focus of the People’s case, which wasnot petitioner’s past crimes, but the gratuitously brutal circumstances of the current ones. Given the disturbing nature of the facts, the prosecutor hadlittle incentive to parse the details of petitioner’s criminal history. Rather, as was more commonin the 1980’s, he emphasized the circumstances of the crimes to persuade the jury death was appropriate. /f however, the jury were to hear details ofpetitioner’s backgroundin mitigation, the prosecutor would reasonably wantto ensure it received a balanced and accurate , picture. [Citation.] (Ud. at pp. 1251-1252,ellipses in original & italics added.) Thus, respondent was simply not required to call the trial prosecutor as a witnessat the reference hearing in order to establish the rebuttal evidence the prosecution would have introducedat petitioner’s penalty phasetrial had petitioner sought to introduce evidence of the newly minted mitigation themes presented at this reference hearing. For the same reasons, petitioner’s related contention — “It is highly unlikely that the prosecutor would have called Wayne Harris, Earl Bogans, MarcusPlayer or Gary Jonesto testify as to petitioner’s upbringing” (PB 279) — misses the point. Respondentelicited the damaging rebuttal evidence undermining petitioner’s newly minted mitigation themes presented at the reference hearing through the cross-examination of witnesses called by petitioner including Wayne Harris, Earl Bogans, Marcus Player and Gary Jones. The trial prosecutor would have done the same hadpetitioner’s trial counsel called them as witnesses at the penalty phaseto testify to matters to which they testified at the reference hearing. While petitioner chooses to characterize as “ludicrous” the Referee’s findings that the information in petitioner’s CYA records, including the four psychological and psychiatric reports of Drs. Prentiss, Perrotti, Minton and Brown (Exs. D, I and J), the December 13, 1978 Initial Home 269 Investigation Report (Ex. H) and the December 12 1979 Youth Training School Case Report (Ex. G-13), provides devastating impeachment/rebuttal evidence undermining the credibility of many of petitioner’s newly minted mitigation themes (PB 279-280), the lengthy excerpts culled from those recordscited by the Referee quickly disabuse that view.'"” (Cf. In re Ross (1995) 10 Cal.4th 184, 205 [at reference hearing ordered in responseto the habeas corpusallegation of petitioner’s codefendant, Craig Ross, of ineffective assistance at the penalty phase of Ross’s trial, the “mitigating evidence consisted of the testimony of 15 members ofpetitioner’s family testifying primarily that they loved petitioner, that he was protective and caring to other family members, and that he was abused as a child by his stepfather, Henry Brown,especially when Brown had been drinkingorat the racetrack. There wasalso testimony that petitioner lived in a violent neighborhood, that his failure to be rehabilitated was partly the fault of | institutional authorities, and that he expressed remorse forhis earlier crimes”].) In Ross, this Court found no Strickland prejudice in part due to available impeachment/rebuttal evidence consisting of (1) statements by 107 Ror example, the Referee noted, “The CYA records contain numerous statements by petitioner and reports of conduct that were not presentedto the jury that are prejudicial to petitioner’s claim. Petitioner’s statements have been previously set out as to his family, absence ofhead injuries, absence ofbeatings by siblings, use ofdrugs and gang involvement. However, several statements are highlighted at this point to reflect the level of impeachmentavailable to the prosecution. [{] (1) Statements to Dr. Perotti (1979). .... Heis not easily influenced by others ... he feels that he does what he wants to do....he became involved with the law because he thought he could get away with things .. . most of his offenses were for fast money ... if not for fast money I would not have committed the offenses. These statements by petitioner, when connected to the special circumstances of factor A (Hassan burglary, robbery), are viewed as extremely detrimental to petitioner’s claim that the introduction of CYA records would demonstrate that he was amenable to rehabilitation in a structural setting.” (RR 295,italics added.) 270 petitioner contained in a psychiatric report “prepared when [Ross] was 15 years old” in which [Ross] denied “that he had []ever been beaten or physically abused by anyone,he liked and got along well with Brown, and he felt better when there was a man at homefulfilling the role of father” (id. at p. 206); (2) statements made by Ross’s mother in 1973 when Ross was 14 years old to Ka juvenile probation officer that petitioner was cooperative at home, but that when he was with his peers he had no control of himself or his behavior[,|” in 1974 “that [Ross] had been mischievous from the time he wasa child, and that he had a problem with his temper[, and i]n 1975 ... [that Ross] ‘has a hate for whites, shows a great deal of resentment towardsall type of people’”(ibid.); and (3) “criminal conduct while [Ross] was a juvenile[,]’ Ross’s “jury [having] heard no evidenceof misconduct by [Ross] before he was 18 years old and noneat all in a custodial setting” (ibid.); see also id. at p. 209 [“we thus find that the mitigating evidence wasreadily impeachable by the mother’s and [Ross’s] own words and actions and would havetriggered strong rebuttal”].!°8 '°8 Despite evidence proffered by Ross at the reference hearing “that it is common for an abused child to deny the abuse, and argu[ment] that because [Ross] had beeninstitutionalized for a long time and wanted to go home, he had a motive to minimize problemsin his homelife[,]” this Court nevertheless found that “[Ross’s] own words, more contemporaneousto the alleged incidents than the later testimony of his relatives, would have made effective impeachment.” (/n re Ross, supra, 10 Cal.4th at p. 206.) Similarly, noting that rebuttal evidence was not subject to Penal Code section 190.3 notice requirements and “‘need not relate to any specific aggravating factor under section 190.3[]’ [citation][,]” this Court found evidence of Ross’s juvenile criminal misconduct “would have been admissible to rebut evidence portraying [Ross] as a kind, protective, caring person.” (Ud. at pp. 206-207.) The Court also rejected Ross’s contention “that evidence of the sustained juvenile petitions, as distinct from the criminal behavioritself, was not admissible” and held that juvenile misconductnot resulting in a criminal conviction would have constituted properly admitted rebuttal evidence to rebut Ross’s claim of good character. (continued...) 271 In sum, while petitioner’s Strickland expert laid out a penalty phase approach in whichtrial counsel would throw every available theory and witnessat the jury and hopethat one or more “stuck,” for the multitude of reasons set forth by the Referee, reasonably competent counsel would wisely have chosen a different approach. The“throw in the kitchen sink” approach from petitioner’s Strickland expert also flies in the face of what the expert himself admitted with respect to the importance for trial counsel to maintain credibility with the penalty phase jury. “Earley acknowledged the issue of maintainingtrial counsel’s credibility with the jury was an issue to be addressedat all times in the trial. (RHT 3973-3974.)” (RR 323.) “Earley also concededthat ‘if [trial counsel] put[s] evidence on andthe jury believed that the evidence that you put on was phony evidence with no basis in fact, of course that hurts you.’ (RHT 3975:12-15.)”. (RR 338, alterations in original.) The essential need for trial counsel to maintain credibility with the penalty phase jury provides yet another reason why the Referee’s findings that reasonably competent counsel would not have put on mitigation themeslacking in credibility and subject to impeachment— such as petitioner’s sibling abuse, brain damage and Tayloralibi claims—are based on substantial evidence and are fundamentally sound. In conjunction with the mitigation themes which the Referee properly found were not ~ discoverable by reasonably competent counsel duein part to nondisclosure (...continued) (Id. at p. 209.) In the case subjudice, as outlined by the Referee, the number and quality of statements by petitioner and his motherreflected in petitioner’s CYA and school records andthe availability of significant additional evidenceofpetitioner’s gang related criminal activity and misconduct at CYA not previously presented to petitioner’s jury at either the guilt or penalty phase provide a record of available impeachment and rebuttal evidence to petitioner’s newly minted mitigation themes whichis at a minimum comparable to the available impeachment and rebuttal evidence in Ross, if not significantly greater. 272 by petitioner, his mother and siblings, the Referee got it right when he found:“In short, reasonably competent counsel conducting the appropriate investigation for penalty phase evidence would have been well within the standards ofcompetent practice to have done at petitioner’s penaltyphase exactly as petitioner’s trial counsel did.” (RR 286,italics added.) For all of the foregoing reasons, petitioner’s exceptions that “the referee erred in failing to fully credit the Strickland expert’s opinions” and “no evidence damagingto petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal if petitioner had introducedat trial the mitigating evidence adduced at the reference hearings; nor were there other circumstances which would have led a reasonable counsel to not present this mitigating evidence” should be rejected by this Court. J. Conclusion Because the Referee’s findings to which petitioner has filed numerous exceptions are fully supported by substantial evidence and are the product of the Referee’s “resolution of testimonial conflicts and assessment of witnesses’ credibility” Un re Cox, supra, 30 Cal.4th at p. 998), those findings are entitled in this Court to “great weight” and “deference.” (bid) Forall of the foregoing reasonsset forth by respondent in response to petitioner’s exceptions, this Court should reject each and every oneof the exceptions. 273 I. IN LIGHT OF THE REFEREE’S PROPERLY SUPPORTED FINDINGS, PETITIONER FAILS TO MEET HIS BURDEN OF PROVING STRICKLAND PREJUDICE AS A RESULT OF ANY DEFICIENT PERFORMANCE BY PETITIONER’S TRIAL Counse'”? Petitioner contends, “given the abundanceof credible mitigating evidence that could have been presented,trial counsel’s failure to obtain and present such evidence wasprejudicial[.]” (PB 284.) Respondent disagrees. The Referee’s findings, meticulously detailed in his report, demonstrate both a dearth of “credible mitigating evidence”that reasonably competent counsel could have presented at petitioner’s penalty phasetrial, and an abundanceofavailable impeachmentand rebuttal evidence that the prosecution could have introduced to underminepetitioner’s newly minted mitigation themes, hadtrial counsel sought to introduce such evidence at the penalty phase ofpetitioner’s trial. Thus, while petitioner argues that he “presented compelling evidence that he was not involved in the Taylor crimes]]” (PB 288, italics added), the Referee reasonably foundto the contrary. (See, e.g., RR 16 [a close, detailed review of petitioner’s proposed alibi claim is simply not supported by the testimony given during the reference hearing. [{]] The three Raymond AvenueCrips gang members, whotestified as to the alibi at the reference hearing, were not credible. [§| The Strickland expert’s opinion, that there was no downsideto the introduction of alibi evidence for the ~ Taylor murder, lacks foundation. The expert did not read WayneHarris, Earl Bogans and MarcusPlayer’s testimony. He did not review the evidencereflecting the nature and extentofpetitioner’s association with Ross, Marcus Player, Evan Mallet, Harris and Bogans. He did not read the 109 ‘Respondent has thoroughly addressed the issue of prejudice in respondent’s brief on the merits at pages 51-67, an argument which respondent incorporates in this reply brief to petitioner’s claim of prejudice. 274 reference hearing testimony of the LASD deputies called by petitioner nor did he read Mallet’s preliminary hearing transcript, Penal Code § 1538.5 and Evidence Code § 402 motions, ortrial transcript which contain the testumony of the LASD deputies who participated in the post-Taylor murder activities at Helen Keller Park, the car chase and crash and the arrest of Simms and Mallet on the morning of December 12, 1980”]; RR 79 [“the primary alibi witnesses called to support petitioner’s claimedalibi were fellow Raymond Avenue Crips gang members. Their testimonyis inconsistent with their own declarations, with each other and with petitioner’s owntrial testimony. The testimony given by Harris, Bogans and Playeris not credible and does not support an alibi for the Taylor murder. [9] The calling of fellow gang members would not serve petitioner’s best interests. If called, their testimony would only confirm petitioner’s gang involvementas well as his past and current association with co-defendant Ross”|; see also RR 167-185 [“Detailed Discussion of Evidence and Findings [{| 1. Alibi for Taylor Murder and Related | Crimes’’]; RR 288 [“the availability of reference hearing witnesses who were active members of the Raymond AvenueCripsat time oftrial and their willingness to testify or identify other gang membersor their gang’s activities is deemed highly unlikely. Their willingnessto talk to Skyers is also unlikely. The witnesses are Harris, Bogans, and Marcus Player” (underlining in original)]; RR 291-292 (“Alibi for Taylor Murder [4] i) The alibi for the Taylor murder as submitted by petitioner at the reference - hearing would require the testimony of Wayne Harris, Earl Bogans and Marcus Player. The three witnesses were members of the Raymond Avente Crips at the time of the trial. Marcus Player wasarrested for robbery in November 1980 andat the time oftrial was in custody pending trial for an unrelated murder. Marcus Player denied being a Raymond Avenue Crip at the reference hearing: Wayne Harris and Earl Bogans 275 identified that they as well as Marcus Player, petitioner, Mallet and Ross were active Raymond AvenueCrips before andat the time of the trial. This testimony is inconsistent with petitioner’s trial testimony and his statements to CYA authorities and doctors that he and the others were not gang membersat the timeofthe trial. [] ii) Harris testified that upon being released by the LASD on December28, 1980, he went to petitioner’s home where Craig Ross was present. Petitioner told Dr. Miora that Ross and Winbush were twoofhis best friends and that they did not use drugs. [{]] iii) No law enforcementwitness exists that confirms the physical detention of petitioner or Harris at the time of the Taylor murder” (underlining in original & italics added)]; RR 312-368 [as a preamble to the Referee’s detailed discussion of evidence and findingsrelating to the Taylor crimes and the opinions ofpetitioner’s Strickland expert, the Referee noted that “Tw]hile no circumstances may have weighed againsttrial counsel conducting additional investigation for the Taylor murder, for the reasons set forth in the referee’s findings concerning reference questions numbers2 and 3, the referee finds that there were multiple circumstances weighing against the presentation of the Taylor alibi evidence. In addition, the referee rejects any opinion from petitioner’s Strickland expert to the contrary as unreasonable”(id. at p. 312, fn. omitted)].) Recycling arguments he raised in support of exceptions to findings of the Referee, petitioner further contends in support of his claim of prejudice, “Petitioner offered an explanation for why petitioner might have known there was a waterbed in the Hassan home-- a singularly important piece of evidence if Skyers really had intended to put forth a case of lingering doubt. Petitioner could explain the tough talk between Ross andpetitioner and mitigate his commission ofjuvenile offenses by showing positive adjustment at CYA.” (PB 289.) As respondent has detailed above, petitioner presented no evidence to support any inference petitioner’s 276 knowledge regarding the waterbed at the Hassan home camefrom a source other than petitioner’s presence in the home during the execution murders and robberies of Bobby and Eric Hassan. Rather than calling relevant witnesses on this issue, including Craig Ross andpetitioner, petitioner presented only a speculative theory. Similarly, for the reasons detailed by respondentat footnotes 40, 50, and 106, the Referee provided abundant findings supported by substantial evidence from the record as to why reasonably competent counsel would not have introduced evidence of petitioner’s “positive adjustment at CYA,” and these findingsalso establish why there was noprejudicein failing to present this evidence. These findings included the availability of devastating impeachment evidencethat while at CYA petitioner had assaulted another ward and a staff member, engaged in a race riot between blacks and whites, and successfully manipulated staff at CYA to obtain a favorable parole recommendation. As the Referee correctly found, “[e]vidence that petitioner had the ability to successfully manipulate staff, including doctors, at the CYAruns counter to claims raised in this proceeding that petitioner suffers from brain damage andlowintellectual functioning.” (RR 259, fn. 148; see also RR 267 [reasonably competent counsel would not have presented “[e]vidence of petitioner’s adjustment while at the CYA .... The fact that the Hassan murders took place so close to the time petitioner was released from the CYA and placed on parole would support the prosecution’s argumentthat the CYA reports that commented onthe potential for manipulation by petitioner were correct. The positive comments by CYAstaff, if introduced, would permit the introduction of the negative numberof comments andreported acts of misconduct by petitioner while in CYA custody. Marcus Player’s testimonyat the reference hearing, dealing with photos taken while he and petitioner were in the CYA, would also be admissible”’]; RR 15 [‘‘a reasonabletrial attorney would not have presented 277 evidence of amenability or rehabilitation given the potential rebuttal evidence the prosecution might seek to introduce. That evidence includes the prior conduct of petitioner and other violent crimes that was not presented to the jury, other violent conduct at the CYA that was not presented to the jury and a detailed history of petitioner’s lack of control of his anger and temperas described in petitioner’s probation reports”’].) Petitioner also claims in support of his prejudice argumentthat he ‘““was reared in a dangerous neighborhoodandfor mostof his life, without the guidance ofa father. Petitioner was physically and emotionally abused by his oldest brother and while his mother may have had the best of intentions, she waslargely ineffectual in protecting her son.” (PB 290.) Once again, petitioner ignores the Referee’s multiple relevant findings supported by substantial evidence that petitioner’s claim of physical abuse at the handsofhis older brothers was not credible. (See RR 13 [“the testimony from petitioner’s mother andsister (Rita Powell) that petitioner was physically beaten by his older brothers, and in particular Lewis ChampionIII, was not credible. Given the nature of the alleged beatings and the complete absence of any observation of injuries, bruises or complaints by petitioner to his best friend Gary Jones or fellow gang members that testified at the reference hearing, the referee finds that petitioner’s mother andsister exaggerated their testimony”]; RR 85 [9. Sibling Abuse [{]] Mrs. Champion, E.L. Gathright, Rita and Linda Championare the primary witnesses on this subject. Neither Reggie nor Lewis ChampionIII werecalled to testify during the reference hearing. Rita and Lindatestified as to emotional and physical abuse inflicted by older brothers. Their testimony wasi) inconsistent with that offered by other witnesses during the reference hearing who wereclose friends or fellow gang membersofpetitioner; ii) inconsistent with Mrs. Champion’s statement to schoolofficials and the CYA;andlastly, iii) petitioner’s 278 description of his family life to CYAstaff. The referee did notfind the claim ofphysical beatings ofpetitioner to be credible. | do find that Lewis III was disruptive and harshin his discipline. The'disruptive aspect could have been presented ifdiscussed or disclosed. []] The absence of any medical report, police report or observation by anyone of physical bruises or injuries on petitioner, particularly by Gary Jones, discredits the claim by family membersthat petitioner was physically beaten by Lewis HI”(italics added)]; RR 230-234 [during a thorough discussion of the claim of“Sibling Abuse,” the Referee (1) details the reference hearing testimony of Gary Jones; (2) highlights the failure of petitioner’s mother andsiblings to inform Skyers ofthese beatings during his more than one year representation of petitioner; (3) points out the absence of any indication in petitioner’s CYArecords of such abuse;(4) finds significance in the failure of petitioner to call either of his two available older brothers, Lewis III and Reginald, at the reference hearing, citing to Evid. Code, § 412; and (5) concludes by finding “that the claimofphysical beatings or abuse by Lewis Champion III and/or Reginald Championis not true. Further, the referee finds that in 1982 reasonably competent counsel would not have been able to discover evidence ofthis alleged physical abuse. In addition, reasonably competent counsel, even if aware in 1982 of the claim, would not have presented it at penalty phase. Even had a ‘mitigation specialist’ such as Dr. Miora been employed in 1982, that expert’s opinion would need to have relied on the samefamily members whosereliability and credibility the jury had already rejected. Second,if as petitioner contends in this proceeding, reasonably competent counsel should have interviewed WayneHarris, Earl Bogans, Marcus Player and Gary Jones, assuming those witnesses gave statements consistent with the reference hearing testimony relevant to the issue of alleged physical abuse, reasonably competent counsel would have had an additional reason to question the credibility of the accounts from 279 family members on this issue and to be concerned aboutthe possibility that if reasonably competent counsel could have located and interviewed these witnesses, so too could the prosecution had petitioner chosen to present at the penalty phase evidence of this physical abuse claim. The prosecution would also have had significant rebuttal evidence available through Exhibits H, CCC, D, I, J and the November 8, 1978juvenile court probation report in Exhibit 147 to impeach any claim petitioner was subject to physical beatings or abusefrom his older brothers” (italics added)].) Petitioner fares no better with his claim that he was raised ina _ dangerous neighborhood. The Referee resolved this claim flatly against petitioner, finding, “Mitigation does not exist as to petitioner’s claim that: iq].--[1--- [8]... [9] (4) Petitioner was not a memberofthe Raymond AvenueCrips at the time of the crimes. The testimony during the reference hearingclarified any residual questions and confirmedthat petitioner was a hardcore memberof the Raymond Avenue Crips. The evidence indicates that the Raymond Avenue Crips, andpetitioner in particular, were the source ofthe increase in violent crime in petitioner’s neighborhood.” (RR 14-15, italics added; see also RR 87 [“13. Petitioner’s Neighborhood[{] The increased community dangers, which started to develop in petitioner’s neighborhood, are not considered mitigation evidence that was available to trial counsel. Petitioner’s involvementin a violent criminal street gang at or about the time of the increase in violent crimes and the gang’s use of Helen Keller Park as their hangout would be rebuttal to any claimed mitigation based on increased community dangers”’]; RR 234-240 [the Referee concluded his discussion of Dr. Miora’s testimony regarding the subject of “Community Dangers Affecting Petitioner’s Development and Functioning” by finding, “There does not appear to have been any evidence of community dangeravailable for use by petitioner’s counsel in 1982 280 which did not involve directly or indirectly the danger created by petitioner and his fellow Raymond Avenue Crips gang members”; RR 293-295 [“Mitigation Expert [{]] 1) Any mitigation expert or other expert seeking to introduce the mitigation areas of positive CYA adjustment, childhood development/functioning, increasing community dangers, lack of gang involvement and lack of association with Raymond Avenue gang members, might be questioned about petitioner’s violent history, gang membership or petitioner’s prior statements. [{]| ii) At the time oftrial, petitioner had an extensive, violent criminal arrest record. Only two juvenile offenses were given to the jury. Asto the two given to the jury notall the circumstances were provided. The underlying facts of petitioner’s prior arrests might become admissible to impeach a witness or impeachthe basis of petitioner[’s] mitigation expert’s opinion. [{]] ...[§[] iv) Any efforts by petitioner to minimize or rebut prosecution gang evidence would face the same possible introduction of evidence showing the degree and extent of petitioner’s involvement in gangs. [{]] v) Petitioner was a gang member since the age of twelve (1974) and he and Raymond Avenue Crips committed crimes in his neighborhood. This would impeachpetitioner’s mitigation of increased community dangers. [{]] vi) Petitioner’s extended association with Mallet, Player, and Ross would be shownbyclose examination of petitioner arrest records. [§] vii) The referee notes that evidence was given during the guilt and penalty phase on the subject of petitioner and co-defendants’ [sic] gang association with the Raymond AvenueCrips and the violentnature of the charged crimes. However, more evidenceexisted at the timeoftrial dealing with theses [sic] subjects. This evidenceis detrimental to petitioner’s proposed mitigation. [{]] viii) Petitioner’s Arrest Record. The location of each juvenile arrest, the nature of petitioner’s conduct andthe identity of co-participants are a significant erosion of the claim of increasing community dangers. Petitioner’s arrest 281 record, when viewedin the context of date, location and nature of offenses by Evan Mallet, Marcus Player(arrest for 11-19-80 robbery at El Segundo/Raymond) and Craig Ross (1977 attempted murder of Mark Hartmanthat took place in Helen Keller Park), illustrates that the Raymond Street Crips were the major source of violent crime in petitioner’s neighborhood. The reference hearing evidence indicates petitioner was present at Helen Keller Park when Ross shot Hartman. [] Evidence of a 1977 residential burglary was not presented to the jury. This crime took place in petitioner’s neighborhood. Petitioner’s fingerprints were found at the scene” (underlining in original)].) As respondent has discussed, petitioner’s contention in support of prejudice that petitioner was raised without a father figure fails to address the multiple findings by the Referee regarding the deliberate nondisclosure of petitioner’s family/social history to trial counsel by petitioner’s mother, siblings and petitioner himself. As the Referee found: Skyers’ reference hearing testimony is very credible. Skyers did visit petitioner’s home and interviewed key family members. No information was disclosed by family membersas to poverty, financial difficulties, sibling abuse, brain damage dueto fetal abuse, head injury, head traumainflicted by older brothers, petitioner’s gang involvement, the impact on the family and petitioner resulting from Trabue Sr.’s death, and the lack of father figure. [{]] Beyond the non- disclosure are the additional factors that the primary witnesses that this evidence would depend on are the family membersthattestified . in support of petitioner’s alibi for the Hassan murders during the guilt phase. [{[] Reference hearing witnesses Gary Jones, [Wayne] Harris, [Earl] Bogans and MarcusPlayertestified in a manner inconsistent with petitioner’s current claim of poverty, malnutrition and inadequate clothing. In the view of family members, fellow gang members and friends, petitioner was very bright andliked to be a leader. [{] A complete absence of documentation by non-family membersis not a small matter. No medical records support petitioner’s claim of fetal abuse, head injury, infliction of head traumaby older brothers or physical abuse. [{|] Mrs. Champion’s prior statements to school 282 authorities or CYA staff are significantly inconsistent with her testimony during the reference hearing. (RR 268-269; italics added.) In addition, while recognizing that “[g]enerally no circumstances weighed against the investigation of the proposed additional [mitigating] evidence[,]” in responseto the first aspect of Reference Question 4 asking “Tw]hatcircumstances, if any, weighed against the investigation or presentation of this additional [mitigating] evidence?” (RR 287), the Referee found certain notable exceptions based on the evidence and documents presented at the reference hearing including: “1) Petitioner’s family membersdid not disclose anyadverse family history to Skyers. [4] 2) Marcus Player wasnot available to trial counsel in 1982. [{]... [9] 4) Lewis ChampionIII’s availability or willingness to be interviewed and/or testify is unknown. Lewis ChampionIII wasinterviewed by petitioner’s habeas counselbut he did nottestify. In view of the claim of physical beatings by Lewis ChampionIII, his absence as a witness is remarkable.” (RR 287-288.)!!° '!° It is also important to rememberthat the Referee did not find Skyers’s penalty phase investigation concerning the newly minted family mitigation themes presented for the first time at the reference hearing to be deficient, the other requisite prong for a Strickland constitutional violation. Quite the contrary: The referee finds the nondisclosure of family history by petitioner or members of his immediate family was purposeful and that no attorney or investigator could have acquired or developed the family mitigation now presented in view ofthe failure to disclose. [{] Skyers personally investigated the following: [¥]... [9]... [§]..-[9] (4) He met with the family members at their home,his office and in court. [{] (5) He attempted to discuss with the family and petitioner matters related to petitioner’s family history and upbringing. In noneofhis meetings did anyone,including petitioner, say anything about any of the now claimed family difficulties including poverty, fetal abuse, traffic accident head trauma,sibling physical beatings, death of (continued...) 283 (...continued) — ' petitioner’s stepfather and its impact on the family and the domestic violence and abuse suffered by petitioner’s mother at the hands of petitioner’s biological father. [| (6) He reviewed the CYA doctor evaluations conducted between 1978 and 1980. [4] (7) He reviewed the reports by Doctors SeymourPollack . .. and Lillian Imperi.. . prior to trial. [{] (8) He reviewed the CYA/YTSstaff reports. [{] (9) He reviewedthe juvenile arrest records including the two juvenile aggravators. (RR 11-12, italics added.) Thus, separate and apart from petitioner’s failure to prove prejudice from any properly established deficient performance byhis trial counsel, petitioner cannot prove he was deprived ofhis constitutional right to effective assistance of counsel at the penalty phase with respect to the family mitigation themes presented for the first time at the reference hearing in light of the Referee’s findings supported by substantial evidence that trial counsel did not render deficient performance in this area. The same applies with respectto trial counsel’s decision not to seek additional psychological or neuropsychological evaluation and/or testing. Separate and apart from the Referee’s findings that “[p]etitioner did not suffer any brain damageas a result of 1) fetal abuse; 2) from a 1968 traffic accident; or 3) physical beatings ofpetitioner by siblings[]” (RR 12) and that “petitioner did not suffer from substantial cognitive defects at the time of trial” (ibid.), the Referee’s properly supported findings demonstratetrial counsel was notdeficient either in failing to seek additional psychological/neuropsychological evaluations and/or testing or to present evidence of such at the penalty phase ofpetitioner’s trial. (See, RR 13 [“no trial attorney could be faulted for not asking for further testing or concluding that no mitigating evidence existed at the time oftrial as to petitioner’s mental status”]; RR 81 [‘i) All of the doctors who examined petitioner prior to trial found he did not suffer from any mental defects, disorders or significant impairments. Not one of the six doctors recommended additional psychological or neuropsychologicaltesting of petitioner. [{]] j) Dr. Prentiss found no neurological impairments. [{] k) The referee finds that Skyers did not have any reason to order any additional evaluations based on his review of existing examinations prior to trial”]; RR 271 [“Skyers was aware of CYA’s medical reports by Drs. Brown, Minton, Prentiss and Perotti as well as the medical report prepared by Drs. Pollack and Imperi at the time oftrial”]; RR 271 [“No evidence as to mental defect, disease or illness was available to trial counsel in 1982. (continued...) 284 (...continued) The CYA mental evaluations of petitioner did not indicate a need for any additional psychologicalevaluationsor testing”]; RR 271-272 [“Based on CYA mental evaluation reports and a report by Drs. Pollack and Imperi, no evidence existed to reflect mentalillness, defects, disease or impairment on the part of petitioner. Reasonable counsel would not have a need for further testing or psychological examination. [{]] Due to petitioner’s juvenile arrest records and the underlying conduct on the part of petitioner and the extent and duration of his Raymond Avenue Crips membership, any potential mitigation theme that would allow the prosecution to rebut with petitioner’s criminal and/or gang history would cause a reasonable competent attorney notto present the potential mitigation evidence. This includes any psychological experts seeking to testify as to petitioner’s childhood development, any defense gang expert, CYA adjustment and community dangers]; RR 287-288 [in a series of exceptions to the Referee’s general finding that “no circumstances weighed against the investigation of the proposed additional evidence[,|” one of the Referee’s listed exceptions was “5) The referee agrees with petitioner’s claim that Skyers should have interviewed CYAstaff and doctors. No circumstance precluded this investigation. However, in view ofthe extensive psychological CYA evaluations available and the consistency of the ' doctors’ findings, the referee finds that reasonably competent counsel did not need to conduct further psychological evaluations or testing, including neuropsychological examination. As previously stated, the referee finds that Skyers had access to and did review CYArecords including the doctors’ reports’”]; RR 289-290 [in answering that part of Reference Question 4 asking “what circumstances weighed against the presentation of the additional evidence[,]” the Referee’s findings included “1) The lack of credibility of key family membersincluding petitioner’s mother and sister (Rita Champion Powell) whose alibi testimony had been rejected by jury. The availability to the prosecution of prior statements by petitioner’s motherandpetitioner to school, police and CYA authorities that would impeach their reference hearing testimony or claimed mitigation. [{] 2) The lack of any documents to support the claimed mitigation of brain damagebased onfetal abuse, traffic accident head trauma, or head injury as a result of physical beatings by older brothers. [{]... [§] 4) The existence of contemporaneous CYA psychological/psychiatric evaluations that petitioner did not suffer from any mentalillness, defect, or disorders. These reports were written between 1978 and 1980 by four separate doctors and are consistent with each other. [{] 5) The absence of any evidence by any close family member,relative, friend, neighbor or fellow gang member (continued...) 285 (...continued) _ who would opine that petitioner suffered from any type mental impairment during petitioner’s life” (underlining in original)]; and RR 292-293 [in answering that part of Reference Question 4 asking “what evidence damagingto petitioner, but not presented by the prosecution at the guilt or penalty phasetrials, wouldlikely have been presented in rebuttal if petitioner had introduced this evidence[,]” the Referee’s findings included ‘Petitioner’s Development/Functioning/Social history [|] i) The testimony of Harris, Bogans and Player given during the reference hearing underminespetitioner’s claim of poverty, malnutrition or physical abuse, poor home environmentor that petitioner was a follower or exhibits mental. defects. [{] ii) The testimony of Gary Jones given during the reference hearing is inconsistent with petitioner’s claim of poverty, malnutrition or physical abuse. Jones describes their childhood as ‘we had a beautifullife.’ In his opinion, petitioner displayed leadership traits and was athletic. He expressed high regard for Mrs. Champion as a mother. Jonesrecalled that petitioner was unable to participate in organized sports due to a lack of funds to pay required fees. [{] iii) Petitioner’s mother’s statementto school authorities that petitioner hada normal childbirth (Exhibit CCC). [{]] iv) Petitioner’s mother’s statement to CYA authorities that all was well at home (Exhibit H). [§]] v) Petitioner’s statements to CYA authorities that he has a regular family with both sad and happytimesandthat he has had the usual sibling rivalry with his brothers which he did not view as a major problem (Exhibit I). Petitioner’s statement to CYA authorities that he is not a follower or easily influenced by others (Exhibit I). Petitioner told Dr. Minton he has had no contact with his biological father (Exhibit D). [4] Mitigation Expert [{]] i) Any mitigation expert or other expert seeking to introduce the mitigation areas of positive CYA adjustment, childhood development/functioning, increasing community dangers, lack of gang involvement and lack of association with Raymond Avenue gang members, might be questioned about petitioner’s violent history, gang membership or petitioner’s prior statements. [{]] ii) At the timeoftrial, petitioner had an extensive, violent criminal arrest record. Only two juvenile offenses were given to the jury. As to the two given to the jury notall the circumstances were provided. The underlying facts of petitioner’s prior arrests might become admissible to impeach a witness or impeach the basis of petitioner[’s] mitigation expert’s opinion” (underlining in original)].) It is also important to rememberthat petitioner’s jury had an ample opportunity — to assess any intellectual limitations petitioner might have possessed during petitioner’s extensive guilt phase testimony during which petitioner held his ownunderthe skilled, intensive and persistent cross-examination by an (continued...) 286 At the end of the day, shorn of mitigation themes presented for the first time at the reference hearing—themesthat the Referee properly found to be (1) not reasonably discoverable by competent counsel; (2) not credible; or (3) not themes that reasonably competent counsel was required to present—the Referee accurately assessed the state of petitioner’s case as follows: (1) “reasonably competent counsel conducting the appropriate investigation for penalty phase evidence would have been well within the standards of competent practice to have doneat petitioner’s penalty phase exactly as petitioner’s trial counsel did[]” (RR 286); (2) “Skyers did realize the magnitude of the aggravating factors attributable to the circumstances - (,..continued) experienced prosecutor. (People v. Champion, supra, 9 Cal.4th at p. 902.) As forensic psychiatrist Dr. Faerstein testified at the reference hearing: ““I think the mannerin which [petitioner] presented his testimony showed his ability to adapt his conduct and conform his conduct to the circumstances of the trial, of responding in court in a legal setting to direct examination and cross-examination, the language he used. His nature of responding to questions showedan ability to conform to the circumstancesofthetrial, whichis a very structured and organizedsetting.” (RHT 6537.) Further, Dr. Faerstein noted the contrast between petitioner’s ‘language and behavior’ as reflected in the surreptitiously recorded conversation between petitioner and his co-defendant, Craig Ross (Exhibit F), and petitioner’s ‘conduct and behaviorin trial in direct and cross-examination [which] demonstrated his ability to conform to the circumstances ofhis environment.’ (RHT 6537.)” (RR 66,first alteration added.) “In Dr. Faerstein’s opinion, petitioner’s trial testimony provided evidencethat petitioner could control any impulsivity towards inappropriate conduct. ‘The transcript [of petitioner’s trial testimony] reflects no inappropriate conduct, inappropriate language. It appeared that he conformedto the decorum of the courtroom, and was able to conform his conduct to the circumstances.’ (RHT 6542-6543.)(RR 66-67, alteration in original.) Thus, because petitioner cannot establish deficient performancebytrial counselin this area, petitioner cannot prove deprivation of his right to constitutionally effective assistance of counsel based on this claim. These findings also demonstrate that there was no prejudice within the meaning of _ Strickland. 287 of the Hassan murders. Skyers’ assessmentthat the mannerofthe killing and the purposeorreason for the killing would constitute an almost insurmountable burden on any reasonabletrial attorney in identifying and presenting sufficient mitigation was confirmed during the extended reference hearing[]” (RR 20); and (3) “trial counsel might be correct when he observed that given the natureof the evidence presentedin the guilt phase and given the nature and mannerofdeath of Bobby Hassan andhis thirteen year old boy, Eric, that no mitigating evidence existed to outweigh the aggravating circumstances of those two murders.” (RR 377)""! ''! Tn finding no Strickland prejudice fromm the performancebytrial counsel for petitioner’s codefendant Craig Ross at Ross’s penalty phase, this Court assumedtrial counsel would have presented the mitigating evidence presented for the first time at Ross’s reference hearing, because said mitigating evidence “substantial.” (nm re Ross, supra, 10 Cal.4th at pp. 205, 213.) “[Ross] was convicted of three murders on two separate occasions, including the cold-bloodedkilling of a father and fourteen-year- old son, who wereshot while lying on a bed, one with his handstied behind his back. [Ross] personally raped the sister of the third murdervictim. Althoughthe additional mitigating evidence, had it been presented, might have evoked sympathy, there was no compelling connection between that evidence and the crimesofthis case. The crimes were gang-conducted robbery murders, not sudden explosions ofangry violence or psychopathic serialkillings. Moreover, the mitigating evidence would haveelicited damaging impeachmentand rebuttal evidence, with the inevitable adverse effect on the actual defense strategy at trial. For all these reasons, we find. no reasonable probability the result would have been different had the mitigating evidence been presented.” (Ud. at p. 213, italics added.) First, unlike the mitigating evidence presented by Rossathis reference hearing which this Court characterized as “substantial” and which this Court assumed reasonably competent counsel would have presented at Ross’s penalty phasetrial, the same cannotbe said for petitioner’s newly minted mitigation themes in light of the Referee’s properly supported findings that (1) much ofsaid mitigation evidence could not have been discovered by reasonably competent counsel; and (2) as to both that which could not have been discovered and that which reasonably competent counsel could have discovered, the mitigating evidence wasnotcredible, (continued...) 288 (...continued) . was subject to substantial impeachment and/or rebuttal evidence and/or was inconsistent with petitioner’s own guilt phase testimony such that reasonably competent counsel would not have presented the mitigation evidence. Although unlike petitioner, Ross was charged and convicted of the Taylor murder andrelated crimes, Ross was not found to have personally killed Michael Taylor or Bobby or Eric Hassan. (People v. Champion, supra, 9 Cal.4th at pp. 897-898.) Petitioner had not been found to have personally killed Bobby or Eric Hassan. (/d. at p. 897.) Like petitioner’s penalty phase jury, Ross’s jury was aware of Ross’s age (21 at the time of the crimes, 3 years older than petitioner). (nm re Ross, supra, 10 Cal.4th at p. 210; RR 78 [“the jury was aware of petitioner and Ross’s ages, that petitioner was not the shooter and that petitioner was not the leader. The jury wasalso awarethat petitioner’s role was that of an aider and abettor or co-conspirator. The jury was instructed under the felony-murder rule (i.e., that even an accidental shooting could incriminate a principal in the offense)’”]; see also RR 170 [petitioner was charged with the murder, robbery and associated burglary of Eric and Bobby Hassan with an armed allegation which meant to Skyers that the prosecution could not prove beyond a reasonable doubt who wasthe actual killer of the victims. Co- defendant Ross was charged with the Taylor murder and related crimes without a personal use allegation which meantto Skyers that the prosecution could not prove beyond a reasonable doubt whothe actual killer of Michael Taylor was. (RHT 1199-1201.) Petitioner’s jury knew that petitioner had not been charged with the Taylor murder andrelated crimes, a fact petitioner’s trial counsel reminded the jury of as part of Skyers’ guilt phase argument. (14 RT 3300; see also RHT 1467-1468.) As Skyerstestified in this proceeding, ‘the argument was intended to highlight to [the jury] that Steve was not charged with the Taylor case.” (RHT 1468:21-22.)” (alteration in original)].) Ross’ trial counsel addressed the issue of future dangerousness in argument, indicating to the jury the absence of evidence of even “one black mark on Ross’ record while he was in confinement” demonstrated Ross could conform his conductin a structured setting. “This argument, a potentially compelling one when the jury must decide whether the defendant should spendthe rest of his natural life in a ‘confined environment,’ could not have been made if counsel had produced the mitigating evidence suggested in this proceeding and triggered the rebuttal evidence that petitioner had a sustained juvenile petition ‘for brandishing a weapon based on threatening a probation camp cook with a large serving fork.’” (/n re Ross, supra, 10 Cal.4th at pp. 210- 211.) Ina similar vein, following a detailed discussion of the evidence and (continued...) 289 For all of the foregoing reasons, including thoseset forth in respondent’s brief on the merits (RB 51-67), petitioner has failed to prove Strickland prejudice from anyproperly found deficient performance by his trial counsel at the penalty phase of petitioner’s trial. (...continued) issue at pages 248-259 ofhis report, with respect to petitioner Champion the Referee found: “In light of petitioner’s disruptive and assaultive behavior while at the CYA,his disruptive behavior in front of the jury whenthe first guilty verdict against petitioner was read and the surreptitiously recorded conversation between petitioner and Craig Ross discussing possible escape from county jail, trial counsel’s closing penalty argument, in conjunction with the closing penalty argument by counsel for petitioner’s co-defendant (from which the jury could conclude petitioner would not in fact present a future dangerif incarcerated under a sentence of life without possibility of parole), protected petitioner from available prosecution rebuttal impeachment evidence demonstrating that petitioner had the ability to manipulate the staff at CYA and did in fact engage in conduct suggesting he would be a future danger‘ifthings don’t go as [petitioner] believes they should.’” (RR 258, alteration in original; see also RR 259 [“for all of the aforementioned reasons, the referee finds that reasonably competent counsel could have chosen the path pursued by petitioner’s trial counsel to argue the issue of future dangerousnessto the jury without rebuttal by the prosecution and reject the path suggested by petitioner’s Strickland expert to pursuethe issue of ‘institutional adjustment’ through use of Exhibit 23 A-1 and witness testimony, both of which would be subject to damaging rebuttal impeachment evidence from the prosecution”(fn. omitted)].) In sum,in light of the dearth of credible mitigating evidence which (1) was not subject to impeachment and/or rebuttal evidence by the prosecution; (2) was not inconsistent with petitioner’s guilt phase testimony; (3) was reasonably discoverable by competent counsel; and (4) reasonably competent counsel could have presented at the penalty phase ofpetitioner’s trial, petitioner’s claim of prejudice can fare no better than the identical claim-presented by petitioner’s codefendant, Craig Ross, in his habeaspetition. 290 CONCLUSION Because each of the Referee’s findings to which petitioner hasfiled exceptions with this Court is supported by substantial evidence and therefore entitled to great weight and deference by this Court, each of petitioner’s exceptionsshould berejected. Further, even as to those properly supported findings by the Referee of deficient performancein the investigation and/or presentation of potential penalty phase evidence, ~ petitioner has failed to establish Strickland prejudice. Havingfailed to carry his burden of proofas to both prongsofStrickland, petitioner cannot prevail on his claim that he was denied his constitutional right to effective assistance of counsel at the penalty phase ofpetitioner’s trial. For all of the foregoing reasons, respondent respectfully submits that this Court should deny the petition for writ of habeas corpus. Dated: July 21, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General SHARLENE A. HONNAKA De ttorney General VEN E. MERCER Deputy Attorney General Attorneysfor Respondent SEM:fe LA1997XH0026 50691785.doc 291 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLY TO PETITIONER’S EXCEPTIONS TO THE REFEREE’S REPORT AND BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 100,478 words. Dated: July 21, 2010 EDMUND G. BROWN JR. Attorney General of California N E. MERCER Deputy Attorney General Attorneysfor Respondent DECLARATIONOF SERVICE BY U.S. MAIL Case Name: In re Steven Champion, On Habeas Corpus No.: §065575 (CAPITAL CASE) I declare: I am employedin the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On July 22, 2010, I served the attached RESPONDENT’S REPLY TO PETITIONER’S EXCEPTIONS TO THE REFEREE’S REPORT AND BRIEF ON THE MERITSby placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Karen Kelly John A. Clarke, Clerk of the Court Attorney at Law Los Angeles County Superior Court P.O. Box 6308 «111 N. Hill Street Modesto, CA 95357 Los Angeles, CA 90012 Michael G. Millman, Executive Director Brian Kelberg, Deputy District Attorney California Appellate Project Los Angeles County District Attorney’s Office 101 Second Street, Suite 600 Habeas CorpusLitigation Team San Francisco, CA 94105-3647 320 West Temple Street, Room 540 Los Angeles, CA 90012 Governor’s Office Legal Affairs Secretary State Capitol, First Floor Sacramento, CA 95814 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 22, 2010, atKos Angeles, California. Frances Conroy NN XQ Declarant inSignature SEM:fe LA1997XH0026 50700541.doc