CHAMPION (STEVE ALLEN) ON H.C.

Petitioner’s Reply to Informal Response

Cal.June 25, 1999

saos) ORIGINAL JUN 2.5 1999 Y STATE OF CALIFORNIA IN THE SUPREME COURT No. SOGSS7S (Related Appeal: People v. Champion, Crim. No. 22955.) -E STEVE ALLEN CHAMPION PETITIONER, INFORMAL REPLY Renee cGuRT KAREN KELLY ATTORNEY AT LAW California State Bar No. 118105 P.O, Box 520 Ceres, California 95307 Telephone: (209) 537-9270 AttorneyforPetitioner by Appointmentofthe California State Supreme Court OEATH PEMALTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE STEVE ALLEN CHAMPION PETITIONER, No. (Related Appeal: People v. Champion, Crim. No. 22955.) ON HABEAS CORPUS. N e e N e N e e N e e e e e e e e e ’ INFORMAL REPLY KAREN KELLY ATTORNEY AT LAW California State Bar No. 118105 P.O. Box 520 Ceres, California 95307 Telephone: (209) 537-9270 Attorney for Petitioner by Appointmentofthe California State Supreme Court 2. Petitioner’s factual innocence ofthe Taylorcrimesis established by the police reports, Mallet transcripts, declarations and other exhibits attached to this petition........... 49 a. Petitioner has presented a prima facie casethat effective counsel could have confirmedpetitioner’s of alibi . . 49 b. Petitioner approached officers from a location which would have made it very difficult, if not impossible for him to have been inside of the suspect vehicle. ....... 2... cee cece eee eee ees 57 c. Petitioner did not match the physical or clothing descriptions ofthe men who exited the suspect vehicle. 0.1.6.6... cece ee eee eee eee es 62 D. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence whichindicated police and the prosecutorhadreliable information that four other persons were actually responsible for the Taylor crimes. ............-.-+-05- 64 1. This claim is not untimely. ... 2.2.2.0... eee ee eee eee eee 64 2. The fact that police and the prosecution had reliable information that four other persons committed the Taylor crimes is supported by the documentary evidence submitted by petitioner. 6.6...eeeee tte teens 65 a. Robert Aaron Simms ...........-- 0c eee eee ee eens 65 b. Michael Player .......... 00.00 eee ee eee ee eee eee 66 c. Petitioner has met his burden. ................00005- 67 E. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence that the physical and clothing descriptions offered by witnesses did notfit that of petitioner on the night of the Taylor crimes. 0.2.6... cece cece eee eee renee ene 68 1. This claim is not untimely .......... 0.0.0. eee eee eee 68 2. The fact that the physical and clothing descriptions offered by witnessesdid not fit that of petitioner on the night ofthe Taylor crimes is supported by the documentary evidence submitted by petitioner. .............. 20 eee eee ee eee 70 TABLE OF CONTENTS INFORMAL REPLY L THE PETITION HAS BEEN TIMELYFILED ......---- +e esse errr 1 A. General Reply to Respondent’s General Assertion of Untimeline ss wena d 1. No Substantial, Unjustifiable Delay is Attributable to Mr. Johnson ....--. eee eee eee eee eee tenet e eer ee en n ee 3 2. No Substantial, Unjustifiable Delay is Attributable to Mr. Merwin.....- eee e cere eee eee tee eee t tenet er enn nes 5 3. No Substantial, Unjustified Delay is Attributable to Ms. Kelly ....---. ee ee cece eee tree eee eter eee eee eee 12 B. Miscarriage of Justice Exception to Timeliness Bar... .------- -- 16 Il. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE TAYLOR HOMICIDE......... .---- 20 A. Correction of Respondent’s Erroneous Factual Allegations Regarding This Claim .......- 2-0 e eee eect eect ere e rete tennes 23 B. Trial counsel’s failure to investigate, discover, and present evidencein defense of the Taylor Crimes was not the product of | a reasonable tactical decision... . 2.26... 2c eee eer eete eee 30 C. Defense counsel provided constitutionally ineffective assistancein failing to discover, present, and argue evidence that petitioner could not have been involved in the Taylor crimes as he wasin the companyoffriends who were never considered viable suspects and were detained by Los Angeles County Sheriff's Departmentdeputiesat the time the Taylor crimes were being committed, did not match the description of any suspect who law enforcement saw exiting the suspect vehicle, and approached the officers from an area which would have madeit very difficult, if not impossible for him to have been involved. ......--- +++ sees eeerreees 43 1. This subclaim is not untimely. .... 2.0.6... 20s eee eee eee 43 1. The claim is timely. 2.0.2.0... 0... c ee eee cere eee eee 86 2. Trial counsel failed impeach Deputy William’s testimony and opinions which followed. .............++-005-- 89 3. Trial counsel’s failure to adequately review the photograph and properly objectto it and to Williams’ opinion wasprejudicial. ......... 0.2 cece eee eee ee eee eens 90 4. Trial counsel wasineffective in relying solely on the defense that petitioner did not authorthe graffiti .......... 92 5. Deputy Williams’ qualifications were objectionable ......... 101 6. Petitioner was prejudiced ....... 0... 6. c eee eee eee eee 104 J. Defense counsel provided constitutionally ineffective assistancein failing to discover, present and argue evidence that the motive for the Taylor killing was personal retribution, undercutting the prosecution theory that the killing was part of, and motivated by, an ongoing conspiracyto robandkill marijuana dealers. .. 1.2.6... e eee eee ce eee ete e eee eee 105 1. Factual misrepresentation by respondent ................-- 105 2. The claim is timely. .......... 0. cece eee eee eee eens 107 3. Trial counsel’s failure to discover, present and argue evidencethat the motive for the Taylorkilling waspersonalretribution thereby undercutting the prosecution theory thatthe killing waspart of, and motivated by, an ongoing conspiracy to rob andkill marijuana dealers wasnot a reasonabletactical decision and wasprejudicial... 0... 6... ec eee eee eee eee eee 108 Ill. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE HASSAN HOMICIDES............-.--- 112 A. Correction ofRespondent’s Erroneous Factual Allegations Regarding This Claim ........- 6. see e eee eee eens 115 B. Trial counsel’s failure to investigate, discover, and present evidence in defense of the Hassan Crimes wasnot the product of a reasonabletactical decision. .............-- 116 F. Defense counsel provided constitutionally ineffec tive assistancebyfailing to object to the prosecution's a ttempts to have witnesses identify petitioner as one of the men whoentered the Taylor residence,in spite of the fact that the pros ecution had assured both the court and counselthat it had no evide nce that petitioner was present inside the Taylor home. .....-- +-+-ee seer eee 74 1. This claim is not untimely ..... 6.6.02 ee eee eren ces 74 2. Trial counsel’s failure to object, and/or movefor a mistrial, was both unreasonable and prejudicial. ........ ----+-- 75 G. Defense counselfailed to discover and present evidence _ that there wasno physical or other evidence of petitioner's involvement in the Taylor crimesand that to the contrary, numerous pretrial identification attempts failed to identify petitioner as a suspect, fingerprint analysis did not implicate petitioner, and a secretly taped conversation between Evan Mallet andpetitioner failed to yield any evidence that petitio ner was involved in the Taylor crimes. .....--. ++ -e eee reer etree 80 1. This claim is timely. ... 2.0.0.0 eee eee eee eee re tene ts 80 2. Factual misrepresentation by respondent ......----.--+-+- ++- 80 3. Trial counsel’s failure was not the result of a reasonably tactical decision ........--+- seer eee reece er ste 82 H. Defense counselfailed to object to or impeach Cora Taylor’s identification of petitioner ....--.-----+e+ ereretetees 84 I. Defense counsel provided constitutionally ineffective assistance in failing to discover, present and argue (1) evidence that the graffiti which proportedly implicated petitioner in the Taylor crimes was authored by someone other than petitioner and did not representthat petitioner had been or would soonbeinvolvedin the Taylor robbery or otherwise implicate him in that offense and (2) that Deputy Williams’ opinion that petitioner was associated with the crime through his association with alleged Crips and particularly Craig Ross was based on false information ........ 0.0 ee eee eee terre eet t ere nces 86 C. Defense counsel provided constitutionally ineffective assistancein failing to discover, present and argue evidenc e that the jewelry in petitioner’s possessionat the time of his arrest did not belong to Bobby Hassan .....------+see eerrrrteree 117 1. This subclaim is not untimely. ..... 2... 02sec eee ee e 117 2. Counsel’s failings were not the productofa reasonable and tactical decision. .......- +--+ eee e reer eee 120 D. Defense counsel provided constitutionally ineffective assistance in failing to discover, present and argue evidence that at the time of the Hassan crimes, petitioner was at homeorpicking up his paycheck. .....-.- +--+ essere eee recess 125 1. This claim is timely. ........-- eee e eee cere etree : 125 2. Trial counsel’s failure to discover and present evidence wasnotthe product of a reasonable tactical decision .........- 2: eee eee reece eees 12 8 E. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence that Elizabeth Moncrief’s statements concerning the events she witnessed, the physical appearance of the suspects, and her own actions were so diverse and conflicting so as to be inherently unreliable and that the descriptions by Ms. Moncrief do not match petitioner .....----- eee eee eee e res 130 1. This subclaim is not untimely ........- 0-2 - eee eee eee eees 130 2. Respondent’s factual rendition omits the sequenceofconflicting statements. ......---+ ++ e+e eeeereees 131 3. Trial counsel’s failings were not the product of a reasonable tactical decision. ........---- eee reer eee 1 46 F. Trial Counselprovided ineffective assistance of counselby failing to introducereadily available and significantly exculpatory forensic evidence. ... 2... -. eee eee eee es 149 1. This claim has been timely filed. ............--- eee ee eeee 149 2. Trial counsel’s failure to introduce exculpatory forensic evidence wasnot the product of a reasonable tactical decision. ............ 00 eee e eee eee eee 149 G. Trial counsel Ronald Skyers, failed to request attorney, investigative, and expert support from thetrial court, or utilize those funds authorized by the court or to his becoming counsel for petitioner .. 0... 6.eeetee eens 151 H. Failure to properly object to the use of a secretly taped conversation betweenpetitioner and Mallet both pretrial and when used by the prosecution during its cross-examination of petitioner. ... 2... 6... cece eee eee ees 157 1. This claim wastimely filed. ......... 0.00... e ee eee eee ee 157 2. Trial counsel’s failings were not the product of areasonable tactical decision, ww. ee ee ee ee ees 158 I. Trial counsel failed to properly object to the use of a secretly taped conversation betweenpetitioner and Mr. Ross 0.0... cecee eee eee eee eee eee e ee ene enees 160 1. This claim is timely. ... 2.2.0... ec ee eee eee 160 2. Trial counsel’s failure to object was not the product of a reasonable tactical decision. .............---- 161 J. Defense counsel provided constitutionally ineffective assistancein failing to discover, present, and argue evidence ofsignificant mental impairments from which petitioner was suffering as of the date ofthe Hassan crimes which would have precludedthe jury from finding that petitioner, if present at the victims’ residence, possessed the intent to kill required for special circumstanceliability. ........... 163 1. This claim is timely filed. ......... 0.00... cece eee eee eee 163 2. Respondent misstates petitioner’s claim. ...............04- 167 3. Trial counsel’s failings were not the product of a reasonable tactical decision. .............0- 02 e eee eee 171 IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE JEFFERSON HOMICID E ........---++-: 177 A. Defense counsel providedconstitutionally ineffect ive assistancebyfailing to discover and produce evidence that the Jefferson case wasnot similar to either the Hassa n or Taylor crimes which would have precluded admission o f the Jefferson evidence and undercut the prosecution’s the ory that petitioner wasa participant in or at least had knowle dge ofall three incidents and its theory that petitioner’s alleged knowledge ofthe Jefferson homicide evidenced the requir ed - mentalstate for finding the special circumstances to be tru e. .......--- 179 1. This claim wastimely filed. ......----- eee eee eee te ers 179 2. Trial counsel’s failure to discover and produceevidence that the Jefferson crimes were not similar to the Taylor and Hassan Crimes would not have been futile and his failure to do so wasprejudicial. 20.2.6... eee e reece eect e eter n sete sess 186 B. Defense counsel provided constitutionally ineffective assistance in failing to object to the introduction ofthe Jefferson crimes on grounds that the introduction of this other crimes evidence violated petitioner's due processrights, and Evidence Code §§ 352 and 1101. «0.2... - eee ee eee eee eee erees 192 C. Trial counsel was ineffective in failing to object on the ground that the evidence was inconsistent with the prosecutor ’ s offer of proof. 2.22... eee e eee eer ener n terre nets tnn eress 197 D.Trial counsel wasineffective in failing to object to the prosecution’s conspiracy evidence and argument. .......--- -+eeeee- 199 1. Petitioner’s claim is not procedurally barred. ..........-- -- 199 2. Counsel’s failure was notthe result of a reasonable tactical decision. .......-- 2 ee eee eee eee re rete ereee 200 3. Any objection would not have been futile. ........--+-+-- - 203 4, Petitioner was prejudiced bytrial counsel’s ineffective assistance. ....... 0... ee eee eee ee eee eee 204 V. PENALTY PHASE CLAIMSOF INEFFECTIVE ASSISTANCE OF COUNSEL ........ 002: cece eee eens 206 A. Trial counsel wasineffective in failing to object to the prosecutor’s argumentthat petitioner wouldkill if sentenced to life without the possibility of parole and that his demeanorshould be used as a factor in aggravation ....... 0... cee eee ee eee eee eens 208 1. Trial counsel’s failure to object was not the result of a reasonable tactical decision. .................. 208 2. The prosecutor’s remarks were improper. ................- 210 B. Trial counsel failed to object to the prosecution’s argumentthat an alleged lack of a mitigating factor was, as to each factor, to be considered a factor in aggravation. ........... 216 C. Defense counsel failed to discover and produce substantial mitigating evidence at the penalty phase ofthe trial. ................ 218 1. This claim wastimely filed. .....................02006- 218 a. No delayis attributable to Mr. Merwin .............. 218 b. No delayis attributable to Ms. Kelly ............... 219 2. Trial counsel’s failure to present substantial and credible mitigating evidence was not the . result of a reasonable tactical decision. .................606- 231 VI. PETITIONER’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE PROSECUTOR IMPLYING THAT PETITIONER HAD A CRIMINAL RECORD AND BY THE TRIAL COURT’S REFUSAL TO GRANT A MISTRIAL ................ 241 A. This claim is timely and not otherwise procedurally barred. .. . 241 B. Petitioner has presented a prima facie case for relief. ........ 243 VII. DEFENSE COUNSEL’S CONFLICT OF INTEREST PREVENTED HIM FROM RENDERINGEFFECTIVE ASSISTANCE OF COUNSEL..... 245 1. This claim is timely filed. .......--.. eee e ee eee rere 245 2. An actual conflict of interest is apparent. ......--+- +-+-e0> 247 VIII. THE UNCONSTITUTIONAL JOINDER OF PET ITIONER’S CASE WITH THAT OF CRAIG ROSS DENIED PETIT IONER DUE PROCESS OF LAW AND IN COMBINATION WI TH PROSECUTORIAL BAD FAITH, INEFFECTIVE ASSIS TANCE OF COUNSEL, AND ERRONEOUSTRIAL COURT RU LINGS RESULTED IN FUNDAMENTALLY UNFAIR GUILT A ND PENALTY TRIALS .......--- cece eect eee terete erst een rarcenes 249 A. Ineffective Assistance of Trial Counsel ........------ -->- 250 B. The Joinder of the Taylor Murder to Petitioner’s Case ....... 250 1. This claim is not procedurally barred ...........---- 251 C. The Bad Faith ofthe Prosecutor. ........--- e+e eee ee e es 253 D. The unconstitutionality of Joinder and Resulting Prejudice. ... 253 1. The Taylor Rape/Murder .. 0.2... 5+ ee cece eee 253 2. Cora Taylor’s Identification .......--.--e eee eee 254 3. Gang Graffiti and Other Gang Evidence .........---- 254 4. The Murder ofTeheran Jefferson ......--.-----+--- 25 7 5. Alleged Cumulative Effect ..........- 2s eee ee errr 25 7 IX. CLAIMS OF PROSECUTORIAL MISCONDUCT.......---- +-++++: 258 1. Petitioner’s claim is timely filed. .........-..- 50 eee ee eee e 259 2. The prosecutor knowingly committed misconduct when he movedthe superior court for an order permitting him to transport petitioner and Evan Mallet andthenpetitioner and Craig Ross in order to tape record their conversations. .. 0.2.0... cece eee eee eee eee 260 a. Petitioner has established a prima facie caseforrelief. . . 261 3. The prosecutor committed prejudicial misconduct when he knowingly misrepresented the similarities between the Jefferson killing and the Taylor and Hassan crimesto the trial court... 6.0.0... cece eee ete ee eee eee 265 a. Petitioner’s claim is not procedurally barred. ......... 265 b. Petitioner has made a prima facie case............... 270 4. The prosecutor knowingly committed prejudicial misconduct whenherepresented to both defense counsel and the court that he had "no direct evidence Mr. Champion wasinside the [Taylor] house" but proceeded to elicit an 11th hour identification from Cora Taylor and the inference that petitioner was not only involvedin the conspiracy, but wasthetallest ofthe three individuals who entered the residence, from Mary Taylor, knowing the contrary to be true... 2.2...eee272 a. Petitioner’s claim is supported by reasonably available documentary evidence. ............ 272 b. Petitioner has madea primafacie case forrelief. ...... 272 X. THE CALIFORNIA STATUTORY SCHEME UNDER WHICH PETITIONER WAS SENTENCED TO DEATH IS UNCONSTITUTIONAL ....... 2.0... cece ee eee eee 278 XI. THE CUMULATIVE EFFECT OF THE ERRORS ON THE ISSUES OF GUILT, SPECIAL CIRCUMSTANCES AND PENALTY WARRANT REVERSAL .............. 000000 e- 282 1. This claim is timely. .......... 00.00 e eee eee eens 282 2. Petitioner has pled a primafacie case for relief. ............ 282 XII. EXECUTION AFTER PROLONGED CONFINEMENT UNDER SENTENCE OF DEATH __........ «oe ee ee eee 286 XIII. EXECUTION BY LETHAL INJECTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT........... 2... ee ee ee eee eee 288 XIV. PETITIONER’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW ......... 200.0 cee cece eens 291 10 TABLE OF AUTHORITIES CASES Adamsonv. Ricketts (9th Cir. 1988) 865 F.2d 1011... 1... +2 eee eee eee 211 Berber v. United States (1934) 295 U.S. 78 «2.0... - sees eect eens 203, 210 Colemanv. Brown(10th Cir. 1986) 802 F.2d 1227 .......--- eee eee 211, 212 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 ......------+: eee a neces 215 Furman v. Georgia (1972) 408 U.S. 238 «0.6... eee eee eee eens 281 Gardnerv. Florida (1977) 430 U.S. 349 2... 6... eee eee 210, 211, 213 Gregg v. Georgia (1976)428 U.S. 153... eee cece eee eee 281, 286 Griffin v. California (1965) 380 U.S. 609 «2.2... 6. eee eee eee eee ees 215 Hicks v. Oklahoma (1980) 447 U.S. 343 2.2... ee cece eee eee 214, 215 In re Clark (1993) 5 Cal. 4th 750 ......--.-- ee eee 2, 11, 14, 16, 18, 47, 119, 166, 167, 192, 218, 223, 280, 284, 294 In re Dixon (1953) 41 Cal.2d 756 2.0.0.0. e eee eee eens Leeeee 274, 279 In re Duvall (1995) 9 Cal.4th 464 ...........0.065 95, 123, 216, 223, 281, 291 In re Fields (1990) 51 Cal.3d 1063 2.0.2.6... 20 ee eee ence eee eens 266, 269 In re Gallega (1998) 18 Cal.4th 825 ..... 2, 11, 87, 127, 165, 222, 223, 227, 228 In re Harris (1993) 5 Cal.4th 813 ......... Loe cece cece eeeeeneees 262, 266 In re Jackson (1992) 3 Cal.4th 578 2.2.0.2... eee eee eee eee ee 169, 232, 236 In re Marquez (1992) 1 Cal.4th 584 2.2... eee eee eee ees 35, 193 In re Robbins (1998) 18 Cal.4th770 ........ 2, 11, 13, 14, 46, 69, 70, 88, 119, 165-167, 223, 224, 230, 252, 280, 294 In re Waltreus (1965) 62 Cal.2d 218 .. 6.6... eee eee eee eee 195, 199, 280 Izazaga v. Superior Court (1991) 54 Cal.3d 356 .....-.-..0 esse eres 270, 274 Lockett v. Ohio (1978) 438 U.S. 586 «0... eee eee eee eee eens 212 Magill v. Dugger (11th Cir. 1987) 824 F.2d 879 ........--- +e seen 35, 36, 193 People v. Bolton (1979) 23 Cal.3d 208 «1.22... eee ee cece reece eens 210 People v. Champion (1995) 9 Cal.4th 879 ............41, 90, 162, 170, 199, 207, 216, 237, 243, 281, 288, 292 People v. Crandell (1988) 46 Cal.3d 833, 0.0... 0c 0s eeeeeedeeeeeeee ee 212 People v. Davenport (1985) 41 Cal.3d 247 ... 0.6... e eee eee eee ees 215, 216 People v. Durham (1969) 70 Cal.2d 171 Lecce eee eee eee eee eens 199, 203 People v. Ewoldt (1994) 7 Cal.4th 380 «2.1... eee e cece e cerns 103, 187 People v. Gamez (1991) 235 Cal.App.3d 957 1.6.2... eee eee eee.. 102, 103 | People v. Hamilton (1989) 48 Cal.3d 1142 ...... Occ ccceeceeeeenereen 242 People v. Haskett (1982) 30 Cal.3d 841 .........:rn211, 212 People v. Hogan (1982) 31 Cal.3d 815 2.2... 6. eee eee eee eee ees 36, 101, 102 People v. Hogan, (1982) 31 Cal.3d 815 0.22... cece eee eee teen eens 102 People v. Holt (1997) 15 Cal.4th 619 oo...eeeee eens 280 People v. Jones (1954) 42 Cal.2d925: 214 People v. Ledesma (1987) 43 Cal.3d 171] 2... ccc ccc ee ee t ee eects 35 People v. Love (1961) 56 Cal.2d 720 2.1... eee ee eee eee 212, 213 People v. Ortiz (1978 ) 22 Cal.3d 38... 0. cece ce cee eee eens 2 43, 262 People v. Pope (1979) 23 Cal.3d 412 ©... 0c eee reer reenter ne e 2, 35 People v. Price (1990) 223 Cal.App.3d 606 ........--- eee ee ee ee e 242, 243 People v. Scott (1978) 21 Cal.3d 284 22... . cee eee eee eee eee eens 269, 270. People v. Scott (1997) 15 Cal.4th L188 .... cee ee eee eee 279 , 280 People v. Sergill (1985) 138 Cal.App.3d 34. 00.0... -0e0eeeeee eens 102 People v. Stanley (1995) 10 Cal.4th 764 ......... eee e recent e 280 People v. Taylor (1990) 52 Cal. 3d 719.0... . 0. eee eee teen eet 214 Siripongs v. Calderon (9" Cir. 1998) 35 F.3d 1308 2.0... 0. cece eee ee e 236 United States v. Tucker (9th Cir. 1983) 716 F.2d 576... 2.66.0. ee eee eee ee 36 Von Moltke v. Gillies (1948) 332 U.S. 708 ....... 2 eee eee eee eee eres 35 Wade v. Calderon, (9th Cir. 1994) 29 F.3d 1312... 2.66... eee eee eee 280, 281 Walker v. United States (8th Cir. 1974) 490 F.2d 683 ... 0.6... - ee eee eee es 36 CODES Evidence Code section 352 .......eecc cece cece eee e nent teenies 194, 195 Evidence Code section720, subdivision (a).........+---- eee eee 101, 102 Evidence Code section 780. .....- 6. cece eee eee eee teen ett ees 213, 214 Evidence Code section 801, subdivision (a)... 2.6.2... 60 - eee eee eee eee 103 Evidence Codesection 1101 subdivision (b) .......-.--- +++ eee eeeee 187, 194 Penal Code section 987 ........ 0. eee e eee tee eee ne tens 223, 232 CONSTITUTIONAL PROVISIONS CALIFORNIA Article I, section]... 0.2... 0. cece ee eee eee20, 112, 177, 206, 241, 245, 249, 258 Article I, section 7... 2.1... cece eee eee ees20, 112, 177, 206, 241, 245, 249, 258 Article I, section 15... 6... 2. eee ee eee ees20, 112, 177, 206, 241, _ 245, 249, 258 Article I, section 17.........oo ceecuceeeueueuees20, 112, 177, 206, 241, 245, 249, 258 Article I, section 24... 0... 0. eee eee eee eee eee20, 112, 177, 206, 241, 245, 249, 258 Article VI, section 10 ......... 2. cee eee eee eee ees 20, 112, 177, 206, 241, 245, 249, 258 UNITED STATES First Amendment .........-- ee ce ere eee reece ee e ee tet tea nares20 Fifth Amendment... .......--- 22 ee eee errr e teres20 , 112, 177, 206, 241, 245, 249, 258 Sixth Amendment ......--sseeeeeeeeseeeeeees 20, 112, 177, 206, 241, 245, 249, 258 Eighth Amendment .....-..-----2see sere reer20, 112 , 177, 206, 241, 245, 249, 258 Fourteenth Amendment............020+ eee ee eeees 20, 112, 177, 206, 241, 245, 249, 258 TABLE OF EXHIBITS' 1 GA) DECLARATION OF JAMES MERWIN 2 (2A) In re Ayala ORDER 3 (3A) | DECLARATION OF THOMAS LAMBRECHT 4 (4A) SUPPLEMENTAL DECLARATION OF ROUSELLE SHEPARD 5 (5A) LETTER FROM DR. SEYMOUR POLLACK M. D. 1 Exhibits 1-5 attached to this Informal Reply are referred to in the text o f the Informal Reply as Exhibits1A-5A. Thisis to distinguish Exhibits 1-5 att ached to the InformalReplyfrom Exhibits 1-5 attached to the Petition. IN THE SUPREME COURT OF THE STATE OF CA LIFORNIA ) IN RE STEVE ALLEN CHAMPION ) No.S065575 PETITIONER, ) (Related Appeal: ) People v. Champion, ) Crim. No. 22955.) ON HABEAS CORPUS. ) ) INFORMAL REPLY I. THE PETITION HAS BEEN TIMELYFILED Respondentasserts that petitioner’s claims should be denied as untimely. (Informal Responseat p. 16.) Specifically, respondent asserts that petitioner has failed to establish the absence of substantial delay, has not est ablished good cause for delay, and finally, has not demonstrated the applicability of any of the — miscarriage ofjustice exceptions to the timeliness bar. (Informa l Responseat pp. 17-27.) Respondent is wrong. The Court should addregs the merits of eac h of petitioner’s claims. A. General Reply to Respondent’s General Assertion of Untimeliness Respondent misstates the basic standard governing the obligation to present habeas claims. Respondentasserts that “counsel’s duty to present claims ina habeaspetition arises when counsel becomes ‘aware’ of ‘triggering information’ that would lead a reasonableattorneyto initiate an investigation.” (Informal Response at p. 19.) This statement is not quite correct. The “trigger” respondent describes is that which triggers defense counsel’s duty to investigate, but not her duty to present the claims. Counsel’s duty to presentclaimsarises once counsel has (or should have had)informationsufficient to support a primafacie case for relief. (In re Robbins (1998) 18 Cal.4th 770, 806 fn. 28 and 29 (majority), 820 (Justice Kennard concurring anddissenting); Jn re Gallega (1998) 18 Cal.4th 825, 834; In re Clark (1993) 5 Cal. 4th 750, 781.) Although respondentmay becorrectin noting that “triggering facts” for some claims were contained in materials available to appellate counsel, R. Charles Johnson, to previous habeas counsel, Jim Merwin, and then to present habeas counsel, Karen Kelly (i.e., many ofthese “triggering facts” were in police reports and/or the appellate record) (Informal Response p. 20 and fn. 9), it does not follow that there was undue or unjustified delay in developing and presentingthe claims and supporting facts. 1. No Substantial, Unjustifiable Delay is Attributable to Mr . Johnson Respondent erroneously asserts that appellate counsel R. C harles Johnson(1) was qualified to conduct a habeas investigation, (2) agreed to undertake such responsibility and (3) was under an obligation to do so. (Infor mal Responseat pp. 21-22.) Respondentgrossly misstates the record in asserting th at Attorney Johnson acceptedthe duty to investigate habeas claims. (Informal Re sponse at p. 21.) Clearly he did not. Mr. Johnson wasappointed aspetitioner’s appellate counsel on M ay 23, 1983. (Exhibit 1, Guilt Phase Exhibits Vol. 1.) The new Standards rega rding the preparation and filing ofhabeas petitions were issued over six yea rslater in June of 1989. In September of 1989, Mr. Johnson requested second co unsel be appointed to petitioner’s case. Mr. Johnson explained that he was not quali fied to undertake habeasresponsibilities. (Exhibits 2, 3, Guilt Phase Exhibits Vol. 1.) In his declaration to this Court, Mr. Johnson noted that he had never acte d as the attorney of record in a habeas corpus hearing, had no knowledgeasto how su ch a hearing should be conducted andthat he did not feel competentto undertake t he ' See Supreme Court Policies Regarding Cases Arising From Judgmentso fDeath, Policy 3, Standards GoverningFiling of Habeas Corpus Petitions and Comp ensation of Counselin Relation to Such Petitions (hereinafter “Standards”, originally adopted effective June 6, 1989. investigation and preparation necessary to a habeas proceeding. (Exhibit 3, Guilt Phase Exhibits Vol. 1.) ? Respondent concedesthat this Court tentatively granted Mr.Johnson’s request for second counsel in March of 1990, approximately six monthsafter the request was made.(Exhibit 4, Guilt Phase Exhibits Vol. 1.) Mr. Merwin wasfinally appointed on September 22, 1992, approximately four years after Mr. Johnson made his request for second counsel and approximately three and one-half years after this Court tentatively granted Mr. Johnson’s request. Respondentasks this Court to attribute the delay in the appointment of habeas counselto petitioner’s appellate counsel and then (apparently)to petitioner. Respondentis wrong in assuming that anyone wasat fault or that the Court on its own was simply ignoring the need for habeas counsel. Thetruth is, as respondent should be aware,it is not easy to find counsel to accept appointment in these cases- -- particularly where the appointmentis just for purposes of representing petitioner 2 Morethan a year earlier, in June of 1988, Mr. Johnson had previously responded to a court-directed California Appellate Project poll that he did not feel capable of representing petitioner in habeas corpus proceedings. (Exhibit 3, Guilt Phase Exhibits Vol. 1.) In September of 1986, Mr. Johnson filed a single-issue petition calculated only to permit the assertion ofwhat was essentially an appellate claim and requiring no extra record investigation. (See Petition, pp. 2 and 5.) 4 in habeas and clemency proceedings.* 2. No Substantial, Unjustifiable Delay is Attributable to Mr. Merwin As discussedin the petition, Mr. Merwin was associate cou nsel from September 22, 1992 through June 28, 1995. ( Exhibit 8, Gu ilt Phase Exhibits Vol. 1.)4 Between September 22, 1992 and February 23, 1993, M r. Merwin reviewed approximately 1400 pagesoftraining materials regarding “Repre sentation in Capital Cases”and “Habeas Corpus Workshop Materials” which were fur nished to Mr. Merwin by the California Appellate Project. (Exhibit 1A, Declarat ion ofJames Merwin.) After receiving a copy ofthe record on appeal, Mr. Merw in reviewed most ofthe greater than 5,000 pagerecord, discussed the case and po tential issues with Mr. Johnson and with CAP Attorney Steven Parnes. Mr. Merwi n secured release forms from Mr. Champion and attempted to visit him. (Exhib it 1A.) As discussedin the petition, during his tenure as habeas counsel, Mr. M erwin experienced difficulty in investigation caused by San Quentin’s unwi llingness to permit him to visit with petitioner in a confidential setting. (Petition, pp. 6- 7.) 3 As this Court is aware there is currently a four year delay in the appoin tment of appellate counsel and even greater difficulty and delay in finding habeas co unsel. The recent creation of the California Habeas Resource Center (Govt. Code § 68 650-68656) will hopefully alleviate the latter problem. 4 Mr. Merwin movedto withdraw from petitioner’s case in Marchof 1995. (Exhibit 6, Guilt Phase Exhibits Vol. 1.) Counsel could not form any final plan ofinvestigation, let alonefile a petition, without an opportunity to confer with his client about a variety of sensitive information. Indeed the Standards themselves now explicitly recognize that habe as counsel must make “reasonable efforts to discuss the case with the defendant.” (Standard 1-1, par. 2.) Surely this duty includes efforts to obtain an opportunity to confer in a confidential setting --- particularly wherethe clientis fearful of institutional eavesdropping. By June of 1993, in addition to the previously discussed tasks, Mr. Merwin obtained and reviewed Mr. Champion’s centralfile at San Quentin State Prison and visited petitioner in a non-confidential setting. Mr. Merwin also located and interviewedtrial counsel Ronald Skyers, reviewed andcopiedpetitioner’s trialfile and began an evaluation oftrial counsel’s investigation and preparation fortrial. Notably, between February 23, 1993 and June 1993, Mr. Merwin researched, prepared andfiled with this Court, a motion ancillary to his habeas corpus petition for prior authorization for funds to prepare andlitigate a petition for a writ of habeas corpus in Marin County Superior Court addressing petitioner’s housing status and the unavailability of confidential visits with counsel. (Exhibit 1A.) On August 25, 1993, this Court denied Mr. Merwin’s motion for funds for the Marin County writ. The motion was denied without prejudice to his seeking sucha 6 writ directlyfrom the California Supreme Cou rt. (Exhibit 6, Guilt Phase Exhib: Vol. 1.) To that end, and under the Court’s di rection, Mr. Merwin began drafting petition to this Court regarding contactvisits wi th Mr. Champion. By November 22, 1993, this petition was nearly complete. (Exhibit 1A.) ° 5 As explained in the Petition (pp. 6-7), Mr. Mer win never finished or filed this confidential-visit petition. While he was working o n the petition, he learned that the sameissue was beinglitigated in the Marin County Superior Court in In re Ayala, Case No. §C059389A, and, rather than duplicate the effor ts of Mr. Ayala’s counsel, Mr. Merwin decided to delay completion ofhis confident ial-visit petition until the Superior Court ruled. In May 1995, two monthsafter Mr. Mer win’spersonal problems had forced him to move to withdrawas petitioner’s counsel, the Superior Court granted in part Mr. Ayala’s petition, and issued an order confirming the reasonableness of petitioner’s and Mr. Merwin’s appraisalofthe nonconfidential natur e of the attorney-clientvisiting which San Quentin had permitted them: Reasonable exercise ofthe right to counsel necessaril y includes confidential communication with counsel. Barberv. Municipal Co urt (1979) 24 Cal. 3d 742, 751; Ching v. Lewis 895 F. 2d 608, 609. Th e observed conditionof the interview rooms currently provided, A-1, A-2, and A -3, does not appear to the Court to assure such confidential communicatio ns. The Court has found that conversation at an ordinary volume can be h eard outside on either the prison side or the visitor side with the doors closed. Sound appears to carry through the space underthe doorsbu t this may notbeall of the problem. If the Prison continues to restrict Petit ioner’s attorney interviews to these rooms, reasonable steps must be taken to correct this deficiency andto allow confidential communication b etweenPetitioner and his counsel. (in re Ayala, supra, Order Granting Petition in Part and Denying Petition in Part, May16, 1995, par. 5; a copy of the Ayala orderis appe nded as Exhibit 2A.) Mr. Merwin agreed with Mr. Champion’s assessmentthatthe visiting option available did not afford an opportunity for confidential communication. ° Mr. Merwin and Mr. Champion continuedto visit but for the purpose ofclient confidentiality, the two did not discuss certain matters. In spite of these difficulties, Mr. Merwin continued to explore areasoftrial counsel’s investigation and trial preparation andultimately identifiedareasoftrial counsel’s performance which were likely to yield specific claims of ineffective assistance of counsel. This preliminary evaluationoftrial counsel’s performance, made after review of trial counsel's files and the appellate record, consultation with trial-counsel, nonconfidential interviews with petitioner, initialcontact withsome ofpetitioner’s immediate family, and preliminary contacts with forensic experts concerning their fees and availability provided the basis for Mr. Merwin’s funding request which was pode es The issues surroundingpetitioner’s right to confidential, contactvisits with habeas counsel became.moot when San Quentin, subsequent to Mr. Merwin’s withdrawalfrom this’case, opted to changepetitioner’s custody status and permit contact visits with counsel. This did not occur until September 1995,three monthsafter the appointmentofpetitioner’s current counsel, Ms. Kelly. (Petition, p.10 note 12.) . 6 Respondentis troubled becausepetitioner does notallege whytelephonecalls and letters were ifisuffieiéntmearis of:communicatingwith counsel. (InformalResponse at p. 22.) The phone, ofcourse, is not private;conversations are taped. Further, written correspondenceis hardly an adequate substitute given the delicate nature of topics, the need to developtrust, the uncertain coffidentiality of prison mail, and Mr. Champion’s personal impairments. re .3 filed on February 15, 1994. (Exhibit 1A.) ’ Respondent overstates the extent of Mr. Merwin ’s petition investigation and preparation prior to being forced by a combinatio nof financial difficulties and health problems to discontinue work on petitioner’s case in early October 1994. (See Informal Response, pp. 23-24.) It will be recalled th at Mr. Merwin, because of financial difficulties, was forced to close his private l aw practice andtake a job with the Office ofthe Orange County Public Defender begi nning on October11,1994, and that the pressuresofthat job and recurrent health pr oblems precludedhis doing further work on outside cases, includingpetitioner’s cas e. (Petition, pp. 7-8.) Respondent overlooks that Mr. Merwin did not receive fu nding authorization for habeasinvestigation until August 24, 1994, just seve n weeks beforestarting work with the public defender’s office and discontinu ing work on petitioner’s case - - hardly time enough to conduct a habeasinvestigatio n in a capital case in which trial counsel had conductedlittle or no guilt or penalty ph ase investigation and whichinvolved three separate homicidal incidents. As previously noted, Mr. Merwin’s pre-fundinginvestigati on included 7 At this time too, Mr. Merwin took seme responsibility f or Claim V,in Appellant’s Opening Supplemental Brief. reading the transcripts of the case andtrial counsel’s files,® initial contacts with trial counsel and some membersofpetitioner’s immediate family, and preliminary contacts with forensic experts concerning fees and availability to assist. Respondentappears to accord great significance to these preliminary contacts with potential experts (Informal Response, pp. 23-24), butit should be kept in mind that these were only preliminary contacts designed to permit application for funding. Noneofthese experts reviewed pertinent records provided by counsel, interviewed petitioner, performed any testing, or consulted with counsel on the actual developmentofclaims. (Exhibit 1A.) . And, as the Court is aware, the Court’s August 24, 1994 funding order denied the forensic expert funding requested by Mr. Merwin. After the Court issued its August 24, 1994 funding order, Mr. Merwin was able to make somefurther progress on investigating petitioner’s life history and developing evidencein mitigation that reasonably diligent trial counsel could have presented, but Mr. Merwin wasunable to complete the task. Indeed, he was just beginning to realize how muchthere remained to do --- and how much about petitioner’s background neededto be further explored. (Exhibit 1A.) In this regard, it should be noted that Mr. Merwin, in his declaration in support of his Motion for 8 These activities were necessarily performed by present habeas counselas well. 10 Leave to Withdraw as Counsel, erredin stating that his i nvestigator had “interviewed dozens of family members andfriends of pe titioner” (Guilt Exhibit6, p. 5). While the investigator had identified dozens of potent ial witnesses, only 7 people had beeninterviewed in somedetail when Mr. Merwin mo vedto withdraw. (Exhibit 1A.) Respondentasserts that “triggering facts” were available to Mr. Me rwin “certainly by February 1994,” when Mr. Merwin madehis fundin g request. But, as noted above,“triggering facts” triggered only counsel’s duty t o investigate and requestinvestigativefunds, not his duty to present the claims. Again, counsel’s duty to present claimsarises once counsel has (or should have had ) information sufficient to support a prima facie case. (In re Robbins, supra, 18 Cal.4th at p. 806 fn. 28 and 29 (majority), 820 (Justice Kennard concurring and disse nting, Jn re Gallego, supra, 18 Cal.4th at 834; In re Clark, supra, 5 Cal.4th at 781.) Further, in his funding request, Mr. Merwin identified claims in fairly broad terms, such as “counsel’s failure to investigate Taylor incident” or “c ounsel’s failure to conduct a penalty phase investigation.” Identification of such failin gs doesn’t suggest how to conductthe investigation that trial counsel should have c onducted. In other words, respondentfails to distinguish between tasks of identify ing trial counsel’s failings — whichis relatively easy when counsel doeslittle guil t or 11 penalty investigation — andtasks of(i) planning and(2) carrying out the investigation thattrial counsel should have conducted. Further, although it might have been possible to plead and present su bclaims resting on the appellate record and/ortrial court discovery documents t his would not have made sense when Mr. Merwin wasjust beginning to undertake th e investigation of potentially meritorious claims requiring investigation, andit shortly becameclear that he would have to withdraw andpass the case on to an other counsel who would be appointed to carry forwardthe investigation and wo uld have _ her own views as to which claims were mostimportant and how to best pres ent them. 3. No Substantial, Unjustified Delay is Attributable to Ms. Kelly Asexplainedin the petition, Ms. Kelly had to begin by reviewingthe entire appellate record,thetrialfile, police reports, and related records from the court proceedings of other alleged participants so that she could reach her own ju dgment- -- as she wasethically obligated to do — asto the full range and relative stre ngth of potential claims, how best to pursue the investigation, which claims to presen t, with what documentary support, and how to perform eachofthese tasks mosteffectiv ely. (Petition, pp. 8-11.) After seeking and obtaining some additional investigative funding(Petition, p. 11), she proceeded,as neither petitioner nor any prior counsel 12 ofpetitioner — through nofault of their own — had been able to do,to carry forward the investigation and develop information sufficient to support a prima facie caseforrelief, and did so in a reasonable andefficient manner. Although filed more than 90 daysafter the reply brief, petitioner’s habeas claims are timely because they have beenfiled without substantial delay (i.e., within a reasonabletime after petitioner and his counsel knew or should have knownthe factual and legal bases for the claims raised), and/or because there is good cause for any substantial delay. (Standards 1-1.2 and 1.2.; In re Robbins, supra, 18 Cal.4th at 784,787-788.) The “factual basis” whichactually triggers a duty to present the claim, as noted before (Jn re Robbins, supra, 18 Cal.4th at 806 fn. 28 and 29 (majority), 820 (Justice Kennard, concurring and dissenting); Jn re Clark, supra, 5 Cal.4th at 781), is information sufficient to support a prima facie case for relief— something that, of course, requires a judgmentcall, but which in light of the relative rarity of this Court’s issuance of orders to show cause, a reasonable lawyer would assumerequires a compelling showing. This, of course, requires counsel to exercise caution to not unnecessarily risk summary denial by filing before counsel has in hand information enough to set forth prima facie claims forrelief. ° Asto claims or ° Summary disposition of a petition which does not state a prima facie case for relief is the rule. (In re Clark, supra, 5 Cal.4th at 781.) 13 subclaims which, standing alone, may be insufficient to support a primafacie case for relief, counsel may properly delayfiling such claims until such time as the related claims or subclaims to which the withheld claims can be joined to support a prima facie case are readyto be filed. (In re Robbins, supra, 18 Cal.4th at 806-807 n. 29 (majority), and 820-821(Justice Kennard, concurring and dissenting.) Further, in the interest of avoiding piecemeallitigation, the Court hasalso madeclear that even a claim as to which a prima facie caseforrelief is in hand may properly be withheld if petitioner is engaged in an ongoing investigation of another potentially meritorious habeas claim as to which a primafacie case can’t be stated without additional investigation. (In re Robbins, supra, 18 Cal.4th at 780, 805-806; In re Clark, supra, 5 Cal.4th at 781, 784). In his claim by claim response, petitioner will demonstrate that, within the meaning ofthese standards, each of his claims has been filed without substantial delay and/or that there is good cause for any such delay. Here, however, petitioner would ask the Court to bear in mindthat all ofthe claims and subclaims concerning the Taylor crimes, the Hassan crimes and the Jefferson crimesare interrelated and dependent on each other. The claim thattrial.. counsel provided ineffective assistance in defense of the Taylor crimes is comprised: of eight specific instances offailings but for which, the jury, would have never — credited the prosecutor’s contention that petitioner was involved in the Taylor 14 crimes. Alleged proofofpetitioner’s involvementin the Taylor crimes wasrelied upon as proofofhis involvementin the Jefferson crimes andhis alleged involvement in both those crimes was argued as proofofhis participation in the Hassan crimes and his having acted with the homicidal mens rea essential to special circumstance liability. Petitioner’s guilt in the Hassan crimes, the finding of special circumstances and the imposition ofthe death penalty was dependantonhis participation in the Taylor crimes. The prosecution could not makeits case againstpetitioner without proofofeach ofthese three homicidalincidents. Asa result, counsel was required . to investigate potential claim relating to each of these crimes before filing the petition. '° '© Respondent’s footnote 13 (Informal Responseat p. 27) is wrong for at least two reasons. First, it’s just factually inaccurate. The April 21, 1997 federal petition did not contain “similar claims”to the claims in this petition. That petition attemptedto include only, and ultimately did include only, exhausted claims. Respondentis well aware of this as she, present counsel and federal co-counsel David Reed stipulated to strike certain inadvertent embellishmentsofclaims raised on direct appeal. The claims in the petition pendingherein weredrafted for this petition alone. Second, the suggestion that the decision to file the federal petition in April 1997 was a “tactical” decision to delay filing the instant state petition is absurd. As respondentsurely mustrecall, in April 1996 AEDPA had enacted a one year federal statute of limitations which in petitioner’s case would run on April 23, 1997. At the time, no one knew whichcasesthe statute would apply to, nor what would be deemed a “properly filed”state petition for purposesoftolling that federal statute of limitations. Counselfor petitioner had no choice but to research, prepare andfile a federal petition while in the process of investigating and preparing thestate petition. 15 B. Miscarriage of Justice Exception to Timeliness Bar In claiming that no miscarriage ofjustice has been demonstrated, respondent ignores the importance to the prosecution case ofthe Taylor crimes and the jewelry. It ignores the impact ofthe neuropsychological evidence on the mens rea issue central to the charge of capital murder, and ignores the penalty phase significance of both (a) the wealth of mitigating evidence that was available but not produced and (b) undoingthe suggestion that petitioner had been involved in not just one, but three separate homicidal incidents. Respondentinstead relies on an assertion, unsupported by documentary evidence,that none ofthe individual claims have merit. (Informal Response pp. 26-27.) Were respondentcorrect that the individual claims lack merit, the Court’s finding that any claims were untimely might not require serious consideration ofthe miscarriage ofjustice issue. But respondentis not correct. Petitioner respectfully urges that this Court consider the impactofvarious claims in combination to fully appreciate the miscarriage ofjustice that would result if the petition were not addressed on the merits. The Court has declared that a miscarriage ofjustice will have occurred in any proceeding in which it can be demonstrated “that error of constitutional magnitude led to a trial so fundamentally unfair that absent the error no reasonable judge or jury would have convictedthe 16 petitioner.” (Jn re Clark, supra, 5 Cal.4th at 797; In re Robbins, supra, 18 Ca l.4th at 811.) Here, as discussedin the petition, had trial counsel provided effectiv e guilt phase assistance and adducedavailable evidence to show that petitioner was not involved in the Taylor crimes (claims VI.A-VI.H), and that the ring found in petitioner’s possession wasnot victim Bobby Hassan’s ring (Claim VII.A), the prosecutorwould havebeenleft with nothing but the contradiction-riddled identification testimony of Elizabeth Moncrief, and on that basis alone no reasonable judgeorjury would have convicted petitioner of involvementin the Hassan killings."! Further, had counsel, as he should have, adduced evidence showingthat petitioner was not involved in the Taylor crimes, no reasonable judge or jury would have accepted the prosecutor’s speculative invitation to assume that petitioner was involved in the Jefferson homicide, a crime as to which the prosecutor had nodirect evidencelinkingpetitioner, co-defendant Ross or any person knownto either of them. With nobasis for linking petitioner to either the Taylor or the Jefferson crimes (Claims VI.A-VLH,and VIII.A-VIILD), and in light of evidence which counsel should have presented concerning neurological impairments which make it | The prosecuting attorney conceded in closing argumentthat Moncrief’s testimony, standing alone, was inadequate to support a conviction. (RT 3172.) 17 moredifficult for petitioner than for most people to draw accurate inferences about what others around him are intending (Claim VII.H), no reasonable judge or jury would have been able to conclude beyond a reasonable doubt that petitioner, if he were one ofthe four men who entered the Hassanresidence on the day of the homicides, understood that a homicide would occur or personally intended that anyone bekilled.!? Hence, but for counsel’s ineffective assistance, no reasonable judge or jury could have found true the special circumstance allegations or convicted petitioner of capital murder. Moreover, as a result oftrial counsel’s ineffective assistancein failing to adequately investigate petitioner’s life history and mental impairments (Claims VII.H and IX.C)and in failing to adequately challenge the prosecution’s misleading claims concerningpetitioner’s alleged involvement in three homicidal incidents (Claims VI.A-VI.H, VIIA-VILI, VIIA-VIILD), "the death penalty was imposedby sentencing authority which had such a grossly misleadingprofile ofthe petitioner before it that absent the error or omission no reasonable judge or jury would have imposeda sentence of death.” (In re Clark, supra, 5 Cal.4th at 798). In evaluating whether the Court’s miscarriage ofjustice standards would 2 The prosecuting attorney concededin closing argument that the evidence did not permit a finding as to whichofthe four intruders fired the fatal shots. (RT 3192.) 18 authorize the Court’s consideration of the merits ofpetitioner’s claims were they deemed untimely, the Court should consider the concluding thoughts of petitioner’s trial counsel, now Judge, Ronald Skyers: In conclusion, Mr. Champion’s case has always bothered me. It rings in my ears. I recall that at the time the guilty verdicts were read, Mr. Ross jumped up andsaid “Oh no, not you Steve.” Although I had earlier been convinced of Mr. Champion’s innocence,at that point in time I knew for certain that Steve was not involved. It was as if Mr. Ross was recognizing that wealth of evidence that put him at the scene of both crimes and expressed outrage that his innocentfriend would be convicted “onhis coattails.” I can only guess that ultimately, Steve got caught up in the evidence against Ross.’ (Guilt Phase Exhibit 47,928 - Declaration ofRonald Skyers.) 19 INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE TAYLOR HOMICIDE Here, asin his petition, petitioner claims that his convictions and death sentencewere unlawfully and unconstitutionally obtained in violation ofpetitioner’s rights underthe First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and underarticle I, sections 1, 7, 15, 16, 17, and 24 of the California Constitution andthe statutory and decisional law of California. This is so because Mr. Champion wasdeniedeffective assistance of counsel by various errors and omissions ofhis trial counselrelating to the Taylor homicide, and as a result ofthose errors and omissions, also denied his rights to due process of law,to freedom ofassociation, to equal protection, to confrontation, and to a fair and reliable guilt and sentencing determination. But for counsel’s errors and omissions, which werenot the product of any reasonabletactical decision, it is reasonably likely that the result of the proceedings would have been more favorable to petitioner. Specific to this claim are eight detailed subclaims. These claims are as follows: (1) Trial counselfailed to discover, present, and argue evidence that petitioner could not have been involvedin the Taylor crimes as he wasin the company of 20 friends who were neverconsidered viable suspects and were detained by Los Angeles County Sheriff's Department deputies at the time the Taylor crimes w ere being committed, did not match the description of any suspect who law enforcem ent saw exiting the suspect vehicle, and had approachedthe officers from an area which would have madeit very difficult, if not impossible for him to have beeninvolve d; (2) Trial counselfailed to identify the actual or likely perpetrators, as to whomthepolice hadreliable, incriminating information; (3) Trial counselfailed to demonstrate that neither petitioner’s physical description northe clothing he was known to be wearing near the time of the crimes matched the victims’ descriptions of any perpetrator; (4) Trial counselfailed to adequately demonstrate that no forensic evidence or other identification proceduresresulted in a pretrial identification of, or linkage to, petitioner; (5) Trial counselfailed to demonstrate that motives other than the prosecution’s conspiracy theory accounted for MichaelTaylor’s killing; (6) Trial counsel failed to consult with a gang expert and failed to impeach the prosecutor’s gang expert andhis opinionthat petitioner waslinked to Michael Taylor’s killing through (a) graffiti, (b) his membershipin the RaymondStreet Crips, and (c) his close association with Craig Ross; 21 (7) Trial counselfailed to object to the prosecutor’s efforts to link petitioner to the Taylor crime; and (8) Trial counsel failed to adequately impeach Cora Taylor’s identification of petitioner. Contrary to the assertion ofrespondent, these claims ofineffective assistance of counsel are not precludedby the procedural bar against unjustifiably delayed claims. | Further, insofar as trial counselhad no valid, tactical reason for the errors and omissions complained ofand petitioner was deprivedofa fair trial as a result of these errors and omissions, petitioner hasestablished a prima facie caseforrelief. Attachedto petitioner’s petition are 43 exhibits, '° including the declaration oftrial counsel, now Los Angeles County Municipal Court Judge, Ronald K. Skyers, which individually and cumulatively represent reasonably available documentary evidence demonstrating that petitioner was not involved in the Taylor crimes andthattrial counsel’s failure to discover, present and argue evidence of petitioner’s lack of involvement wasnotthe result of a reasonable tactical decision. 3° See Exhibits 9-51. 22 A. Correction of Respondent’s Erroneous Factual Allegations Regarding This Claim At pages 28 through 30 ofthe Informal Response, respondentsets forth facts concerning the Taylor claim. This factual recitation consists of a mere eight paragraphs which, with only slight exception, appear to have been taken from its previous appellate briefing. '4 In other words, respondentfails to present documentary evidence, independent ofthe facts adducedattrial whichit alleges controvert, refute, or otherwise cast doubt onthe facts contained in the documentary evidence provided bypetitioner. '° Further, factual allegations which may or maynot have been taken from the appellate record, this Court’s opinion, and the petition and exhibits attachedthereto, have been misstated, overstated, or in some cases are facts which are completely unsupported by the appellate record orthe record in these habeas proceedings. Below, and in addressing the specific subclaims, petitioner will clarify those factual inaccuracies. Respondentasserts that the Taylor residence “was located near the Hassan 4 Here, as with many “facts” alleged throughout the Informal Response, respondent doesnotcite to that portion of the appellate record or habeas proceeding from which the “facts” have been culled. 'S For example, as discussed more fully below, respondent does not attempt to dispute that the graffiti photograph contains the words “do-or-die” and not “do-re-me.” 23 home.” (Informal Responseat p. 28.) Although the Hassan and Taylor residences are both located in a community commonly referred to as South Central Los Angeles, eight blocks separated the Hassan residence at 126" and Vermont from the Michael Taylor’s residence at 118" and Vermont. (See RT 1654, Exhibit 27 , 28 at p. 256.) Were the two residences so close, one might have expected thedistrict attorney to argue that the photographofgraffiti taken from the wall located in the 11800 block ofVermont Avenue, which wasat a 45 degree angle and acrossthe street from Michael Taylor's residence (RT 2658, 3658), also advertised petitioner’s . alleged involvementin the Hassan robbery-murders. Similarly, respondent asserts without support from the record, that thebrown Buick whichpolice pursued after the Taylor crimes “was the same car as the one that was seen parkedin front ofthe Hassan residence on December 12, 1980.” (Informal Response at p. 29.) Here, as with the entire factual rendition of the Taylor crime offered by respondent, respondent does not cite to any portion ofthe appellate or habeas record from which this “fact” is drawn. Asfully discussed in petitioner’s petition and supported by documentary evidence, the descriptions of the vehicle parked outside ofthe Hassan residence varied greatly. Ms. Moncrieftestified alternately that the car was a "shiny light yellow" Buick Blectra 225 (RT 2056), and a "gold or cream"large Cadillac. (RT 1716.) Ms. Moncriefhad previously claimed 24 the car was a Buick Riviera (RT 2067), and later she wassure that it was a Chrysler. (RT 2067.) Ms. Moncriefcould not credibly describe the color of the car. ott At various times she claimed the car was "brown," "white and yellow," "yellow ," “yellow-gold” and "light goldish." (RT 1723, 1839.) Initially, Ms. Moncrief positively identified the automobile associated with Benjamin Brown and Clarence Reed as the car she had seenin front of the Hassan residence. (RT 1739.) '® At no time did Ms. Moncriefor any other witnesstestify that the car associated with the Taylor crimes wasparkedin front ofthe Hassan home. In addition, the Attorney Generalis mistaken asto the time of entry which she says was “about 11:00 p.m.”(Informal Responseatp. 28), when it wasreally closer to midnight. (See Petition, p. 25.) Similarly, respondent overstates the certitude of Mary Taylor’s “identification”ofpetitioner. As fully discussed in the petition, after Mary Taylor had identified Evan Mallet as the first man to enter the residence, the prosecutor asked Mary for descriptions ofthe other two men whoentered. The appellate record indicates the following: Q And wasone ofthese two guystaller than Malett (sic)? 6 In his petition, petitioner discussed in great detail the inability of Ms. Moncrief to adequately perceive the events preceding Bobby andEric Hassan’s deaths. (See Petition pp. 83-93.) 25 Yes. Andthe other guy, washetaller, shorter, or the samesize as Mallet? A little taller. Are yousaying that both guys weretaller than Malett? Yes. O o - H -» H PS The guy who was thetallest, will you describe him please. (RT 2129.) After Mary describedthe tallest suspect the prosecutor asked her to say whether or not she saw the man she had described or anyone wholooked like him in the courtroom. In response, Mary Tayloridentified Craig Ross. When Mary identified Mr. Ross instead ofpetitioner, the prosecutor corrected Ms. Taylor’s identification in order to get her back on the track toward an identification of petitioner. Q Would you point to that person, please? A The young man sitting behindthe lady in the gray. MR. LENOIR:[counsel for Mr. Ross] Pointing to Craig Ross. Q __ BY[the prosecutor]: You’re talking about the smallest ofthe men? A Short one. Q And you were speaking a minute ago about somebody havinghis hair 26 A Q sort of back!’a full face, thick lips and earring and a thin mustache. Doyourecall that description? Yes. Is that your description of Mr. Rossoris that your description ofthe other person who camein? It’s the description ofthe other person. WhatI wasjust trying to ask you a momentagois with respectto that other person, who would bethetallest of the three, do you see him or anyone wholookslike him in the court room atthis time? I’m not sure. And whenyousay not sure, do you see--does that mean you see someone wholookslike him? (RT 2130-2133.) After the witness indicated that she was looking specifically at petitioner, she concluded that she could not be sure whetherornotpetitioner wasthe tallest person that she had seen inside the house. (RT 2133-2134.) Respondent’s factual assertion that “Mary Taylortestified that petitioner was similar in appearance to one of the robbers” ( Informal Response atp. 29), goes too far. When asked whether petitioner resembled or appeared to be the tallest of the menin the house, Ms. Taylor responded “Just the mouth or something,lips.” (RT 2133.) Ms. Taylorclearly stated that petitioner looked different than the men who 17 A fact not in evidence. 27 robbed herthat night. (RT 2134.) Finally, for reasons which seem obviously self-serving, respondentgives o nly a brief summary ofpetitioner’s testimony and doesnotfully discuss its detail s. (Informal Responseat pp. 34-35.) Petitioner explained that he could have gone out as early at 10:00 that night. Petitioner played basketball at Helen Keller Park an d uponleaving a store behind the park, saw Marcus Player and others detained. Sometime between 5 and 15 minuteslater, petitioner was detained and required to walk the perimeterofa site established by LAPD and Sheriff's deputies. '8 (RT 3090-3101.) In an effort to support whatit imaginesto be a reasonabletactical decision by trial counsel to forego a defense to the Taylor homicide, respondent falsely asserts that there was no direct evidenceofpetitioner’s involvementin the Taylor crimes. (Informal Responseat p. 40.) This is not true as, of course, there had been an in court identification by Cora Taylor. Respondentfrequently: chooses to ignore various exhibits and portions of the appellate record to makeits point. For example, respondent repeatedly ignores the fact that Simms was wearing a white jacket when he wasarrested. (Exhibit 18, Guilt Phase Exhibits Vol. 1.) Hence, there is nobasis in fact-to believe that the yellow | 8 Petitioner’strial testimony is set out more fully in section C. 28 sweat clothes worn bypetitioner were mistaken for the “white” or “light-colored” jacket observedbypolice on one ofthe fleeing suspects. (Informal Respons e at pp. p. 37, 41,42, 44.) Respondentalso argues facts to support contrary positions. For example, contrary to respondent’s claim, there was evidencethat Michael Player was involved in the Taylor crimes. (Informal Responseat p. 41.) Certainly there was enough evidencefor the prosecutorto argueattrial that Michael Player was involved. (RT 3158-3160, 3338.) Similarly why isn’t Evan Mallet’s statement that MichaelPlayer was driving the car credible documentary evidence? Respondent offers nothing to refute it. Ultimately, whenit suits its purpose, the assertion that Michael Player was involvedin the Taylor crimesis an assertion readily accepted by respondent. (Informal Responseat p. 42.) In an attempt to match petitioner’s physical description that night with the physical descriptions of various Taylor witnesses, respondent points out that petitioner was wearing an earring when he wasarrested. (Informal Responseat p. 44.) This is an obvious attempt to confuse the issue as it was not noted that petitioner was wearing an earring when he wasdetained. Petitioner wore an earring on the day ofhis arrest for the Hassan crimes, the same earring that Mary Taylor stated was notthe earring worn bythetallest suspect, ultimately identified by her 29 motheras petitioner. (RT 2327-2328.) "” B. Trial counsel’s failure to investigate, discover, and present evidence in defense of the Taylor Crimes was not the product of a reasonable tact ical decision Respondentfirst contendsthat petitioner has not presented reasonably available documentary evidence demonstrating his counsel’s failures to disco ver, present and argue evidence in defense ofthe Taylor crimes was nat a tactical decision. (Informal Response at pp. 32, 40, 43, 46, 49-50, 52-53, 60, 62, 66 .) This is so, contends respondent, because trial counsel stated in his declaration th at his investigation into the Taylor crimes waslimited -- and he did not present a defense as to those crimes -- becausepetitioner was not charged with any crimesin connection with Mr. Taylor’s death and therefore counsel did not consider the contents ofpolice reports documenting the Taylor crimesas being crucial to his defense ofpetitioner vis-a-vis the Hassan crimes. Further, as he did not believe that the prosecution had proofofpetitioner’s involvement in the Taylor crimes and did not expect that Mr. Champion would beidentified as a participant, trial counsel madea tactical decision to limit his investigation and presentation of evidence. ') The earring was taken from petitioner when he was arrested. (RT 2327-2328.) 30 (Informal Responseat pp. 32-33, 35, 40, 43, 46, 48, 50, 53, 64, 66.) 7° Here, respondent has quoted only portions oftrial counsel’s declaration. Th e full extent oftrial counsel’s explanation for his failure to discover, present an d argue petitioner’s lack of involvementin the Taylorcrimesis as follows: Counsel did no investigation into the Taylor crimes other than to read the police reports andvisit the scene. He may also have asked a family member whe re petitioner was that night. He did not consider the police reports atall relevantto petitioner’s involvement in the Hassan crimes. This was so because counsel did not. anticipate the prosecuting attorney would use evidence ofthe T.aylor crimes to implicate petitioner in the Hassan crimes. (Exhibit 47, Guilt Phase Exhibits Vol. 3.) Clearly, however counsel should have anticipated precisely such use of evidence ofthe Taylor crimes. Prior to admission of evidenceat trial the prosecutor informed defense counsel and the court of his conspiracy theory ofthe case and the connection between the Taylor, Jefferson and Hassan homicides and the Raymond Avenue Crips. (RT 1502-1503, 3152-3159.) The prosecutor also gave defense counsel the Taylor murder bookandsaid that if relevant, he would use it. (Exhibit 20 As to allegationsoftrial counsel’s failure to raise evidentiary objections to hearsay and expert testimony, respondentasserts that these omissions wereeither not error or were harmless or both. (Informal Responseatpp. 60, 62, 64.) 31 71, Guilt Phase Exhibits Vol. 3.) It was counsel’s “sense” that petitioner had not been and would not be identified as one ofthe perpetrators of those crimes. *! But, counsel acknowledged, that he fully anticipated that Deputy District Attorney Semow would ask both Mary Taylor and Cora Taylor whetheror not they saw anyone in the courtroom who resembled the perpetrators. ”? Counsel recognizedthatthis procedure would necessarily include petitioner as he would beseatedat counsel table when the question was asked. Counsel acknowledged that he knew there was a possibility either or both Mary and Cora would identify petitioner. Even so, counsel did not _ prepare to counter this eventuality. (Exhibit 47, Guilt Phase Exhibits Vol. 3.) Trial counsel admits that he undertook no investigation so as to impeach Cora Taylor’s identification of vetitioner. He had noneofthe information, in hand or in mind, which would cast doubt on this identification. Counsel did not perform any independentinvestigation into the customary areas of witness identification impeachment, such aspersonal bias, physical disabilities and infirmities — such as 21 Although it is true that petitioner had not been previously identified, trial counselrelied on police and district attorney documentationofthis fact and performed no independentinvestigation to either confirm the lack of identification, the certainty of the witnesses’ statements or to insure a mistaken or surprise identification would not occur. 22 As explainedlater, this too was error. 32 pooreyesightor lack of opportunity to observe — in order to determine whether or not Cora Taylor’s identification could be impeached. Neitherdid trial counsel review Ms. Taylor’s testimony at Evan Jerome Mallet’s trial; thus he was unaware of the fact that the judgein that trial commented very stro ngly that Ms. Taylor did not make a good eyewitness.(Petition atp. 52.) Trial counsel ultimately decided that the worst that could co me of introduction of the Taylor crimesat petitioner’s trail would b e the jurors’ tendency to take the association betweenpetitioner and Craig Ross an d draw an inference that becauseofthat association, petitioner may have had some kno wledge of the crime. Trial counsel explained that he decided that the best way to de al with this was “not to deal with it.” (Exhibit 47 Guilt Phase Exhibits Vol 3.) Her e,trial counsel did not realize the significance ofattributing knowledge ofthese crime sto petitioner and was unprepared to respond to Mr. Semow’s request that the ju ry should “reason backward” from Taylor to Hassan to find petitioner guilty. Trial counsel referred to Cora Taylor’s identification of petitione r as one of the three men whoentered the residence “a shocker.” Even after r ecognizing the incredibly prejudicial impact ofthis testimony, trial counsel felt th at it was better to “leaveit alone” and that in that way perhaps “it would go away.” ( Exhibit 47, Guilt Phase Exhibits Vol3.) 33 Clearly, this was more in the nature ofwishful thinking than a reasonable tactical decision, and the untenability of such an approach should have become all the more apparentonce the prosecutorelicited from his gang “expert,” deputy Williams, testimony interpreting graffiti as an express admission and/or advertisementofpetitioner’s participation in the Taylor robbery-murder. Clearly, the prosecutor wasset on trying to prove petitioner’s participation in that crime and wasgoingto usethat alleged participation as part of the conspiracy-to-kill- marijuana-dealers theory he was advancingto prove petitioner’s guilt of the Hassan murder. This is all the more certain given the prosecutor’s attemptto elicit an identification from Natasha Wright, a witness to a confrontation at the Taylor residence which precededthe killing. Following the identification ofpetitioner by Cora Taylor andthe graffiti testimony ofDeputy Williams,trial counsel did not perform any investigation or in any way preparepetitioner for the possibility that he might be questioned about the Taylor crimes during cross-examination. ” It was unreasonableto think it would be better to ignore the matter and just hope that the jury wouldn’t notice it. Whileit is certainly true that trial counsel “decided”to limit his investigation 23 Petitioner’s testimony followed the testimony of both Mary and Cora Taylor, and thegraffiti testimony of Deputy Williams. 34 into the Taylor crimes and presentation of ev idence ofpetitioner’s lack of involvementtherein, the decision was not a reasonable one. "Under both the...United States Constitutio n...and the California Constitution, a criminal defendanthas the right to the effectiv e assistance of counsel." [Citations.] Specifically, he is entitled to reasonably compete ntassistance of an attorney acting as his diligent and conscientious advocate. [Cita tion.] This means that before counsel undertakesto act, or notto act, couns el must makea rational and informed decision on strategy and tactics founded on adequat e investigation and preparation." (In re Marquez (1992) | Cal.4th 584, 602, citatio n omitted.) "Generally, the Sixth Amendment requires counsel's diligence and active participation in the full and effective preparation ofhis client's case." (People v. Pope (1979) 23 Cal.3d 412, 424-425.) Defense counselis required to investigat e all possible defenses, research applicable law, make an informed recommendationto the client regarding the appropriate strategy, and present that strategy on beh alfofthe client. (Peoplev. Ledesma (1987) 43 Cal.3d 171, 222.) Because "inv estigation and preparation are the keysto effective representation [citation], counse l has a duty to interview potential witnesses and make an independent examin ation ofthe facts, circumstances, pleadings, and laws involved." (Von Mo ltke v. Gillies (1948) 332 U.S. 708, 721 [92 L.Ed. 309, 68 S.Ct. 316}.) 35 "Oneofthe primary duties defense counsel oweshisclientis the duty to prepare adequately fortrial." (Magill v. Dugger (11th Cir. 1987) 824 F.2d 879, 886.) In the same vein, counsel must take steps to exclude inadmissible evidence, whichis critical to the state's case or is highly prejudicial. (Walker v. United States (8th Cir. 1974) 490 F.2d 683, 684-685 .) The duty oftrial counselto investigate and prepare is "so fundamentalthat the failure to conduct a reasonablepretrial investigation mayin itself amountto ineffective assistance of counsel." (United States v. Tucker (9th Cir. 1983) 716 F.2d 576, 583,fn. 16.) Here, Mr. Skyers’ failure to discover, present, and argue evidence that petitioner did not participate in the Taylor crimes was not the productofa rational and informedtactical decision founded on adequate investigation and preparation. Mr. Skyers failed to anticipate, as he should have, the importance ofthe Taylor crimes to the prosecution case against petitioner and failed to respondastrial events made clearer and clearer the need to defend against prosecution claimsofhis client’s involvementin those offenses. Respondent contendsthattrial counsel’s response to the Taylor crimes was reasonable because petitioner had not been charged with the Taylor crimes and was not identified, priorto trial, as participating in them. (Informal Responseatp. 33.) Although it is true that petitioner was not charged with the Taylor crimes andthere 36 wasnopretrial identification of him, because of the im portanceofthe Taylor crimes to the prosecution’s conspiracy theory andthe necess ity of petitioner’s knowledge of, if not actual participation in these crimes, 24 to the intent requirements of the special circumstances andgiven the in-court identificati on ofpetitioner as a participant, trial counsel’s decision to not adequately in vestigate and present evidence was unreasonable. Asstated in the petition, the only evidence directly linking petitioner to the Hassan crimes was the eyewitness testimony of prosecuti on witness Elizabeth Moncriefand petitioner’s possession ofjewelry which was identified as having been worn by Bobby Hassan. Because Moncrief’s identificati on of petitioner was so fatally flawed, the prosecutor was forced to admit to the jur y that without something more than her flawed identification testimony, the jury had insufficient evidence to rendera finding of guilt. (RT 3172.) Prior to trial, in a letter addressed to Mr. Skyers,the prosec uting attorney providedtrial counsel, in addition to other evidence, a copy of the LAPDTaylor 2 The prosecutor never promised that he did not intend to pr ove that petitioner was actually involved rather than just having knowledge. Ins tead, the prosecutor informedthe court and counselonly that he did not have direct evidencethat petitioner was one of the men whoentered the Taylor home. This certain ly left open the possibility that Mr. Semow mightattempt to prove that petitioner was the m an outside the residence that no one couldidentify. (RT 1519-1520.) 37 murder book. Not excluding evidenceofthe Taylor crimes, Mr. Semow informed Mr. Skyersin this letter that he intendedto offer “all relevant and admissible evidenceat the guilt trial.” (Exhibit 71, Guilt Phase Exhibits.) In light of the thin evidenceofpetitioner’s guilt, the prosecutor hypothesized a theory of conspiracy to whichhe claimed petitioner was a party. The prosecutor argued thatin order to determine who committed the murders, it was necessary to understand how they were committed, i.e., it was necessary to understand the pattern which the prosecutor claimed emerged from its comparison ofthe Hassan, Taylor and Jefferson murders. (RT 3152.) According to the prosecutor,the similarities between the crimes indicated they were committed by the same group ofpeople. “[I]t is clear that this murderis connected to this murder, that is, part ofthe same commonplan, part ofthe same conspiracy,to rob and kill people in their homes.” (RT 3 156.) “{A] conspiracy specifically to rob andkill a certain type ofvictim...to wit, a marijuana dealer.” (RT 3156.) “It’s obvious that [the crimes] were all committed by the same group of people, although the participants may have varied one or twoofthem from one crime to the next, such as Mallet, but they were all committed by the same group of coconspirators pursuantto a single commonplan or commonpattern, and part ofthe same conspiracy....we’re talking about one continuous crime spree or one 38 continuous crime.” (RT 3159.) The prosecutor advised the jurors to reason backward. “[ I]f the Michael Taylor murderis inextricably connectedto the Bobby[and] Eric Hassan{’s] murder, then it logically follows that any evidence connecting...either o f the defendants to the Michael Taylor murder logically connects that same defend ant to the Bobby Hassan and Eric Hassan murder.” (RT 3161, 3168.) “ [T]he evidence connecting Mr. Championto Mr. Taylor connects him to Bobby and Eric Ha ssan.” (RT 3171.) “fFJurthermore, any evidence connecting either of the defendants to a ny other of the knownparticipants in these conspiracies logically tend to connectthe n to the crimes in question.” (RT 3161.) Thus, evidence ofthe Taylor crimes wascentral to the prosecutio n’s theory of petitioner’s guilt in the Hassan crimes. This wasin spite ofthe fact that the Taylor killing occurred after the Hassan crimes. The prosecution relied on wh atit perceived to be the similarities between the two crimes, the commo nparticipation of Mr.Ross,petitioner’s alleged association with Mr. Ross and another k nown perpetrator, Evan Jerome Mallet, and a suspected perpetrator, Michae l Player. The prosecutor argued Cora Taylor’s in-court identification of petitioner wa s credible and supported by Mary Taylor’s inability to state emphatically that pe titioner was 39 not presentat the scene. (RT 3170.) * It was not reasonable, as asserted by respondent, to forgo presenting a defense to the Taylor crimes merely because petitioner had not been formally charged. Simply put, the prosecutor arguedthatifpetitioner was guilty of the Taylor crimeshe wasnecessarily guilty ofthe Hassan crimes, and by implication, of the Jefferson murder as well. Moreover, underthis theory, the Jefferson and Taylor crimesprovided sufficient evidenceto find petitioner possessed the mentalstate necessary to prove the Hassan special circumstances. This was so because it was reasoned that knowledgeofthe Jefferson and Taylor crimes meant that the perpetrators ofthe Hassan crimes hadentered the Hassan residence with the requisite criminalintent, i.e., an intent to kill or assist in the killing of a human being.”° Should this Court agree with petitioner, respondent unpersuasively contends that petitioner nonetheless suffered no prejudice from the inadequate representation by trial counsel. Respondentonce again asserts “At the risk of stating the obvious, 25 Cora Taylor and Mary Taylorhadpreviously failed to identify petitioner during numerouspretrial identification opportunities. (See Petition at pp. 48-49.) 26 The prosecutor conceded that he did not know whofired the shotsthatkilled Bobby and Eric Hassan. (RT 3338.) Petitioner’s murder convictions andthe special circumstance findings necessarily rest on an accomplice theory. Accordingly, special circumstanceliability required proof ofintentto kill. 40 petitioner wasneither charged nor convicted of the Taylor c rimes.” (Informal Responseat p. 33-34.). Does respondent expectus to beli eve that being identified as a man whoparticipated in the murderof a man, terrorized a nd robbed hissister, friend and elderly mother would have no prejudicial effect on the ju ry? Assuming arguendo any reasonable juror could have ignored such p otent testimony as a reason for convicting on any and all available charges , respondent, in effect, asks us to ignore the very theory of the prosecution’s case ag ainst petitioner. Respondentalso asksus to ignore the very strong and influential impact petitioner’s actual innocenceofthe Taylor crimes would have onthe jury’s Hassan ve rdicts. This Court specifically noted that “the jury could properly consider the evidence that defendant Champion wasinvolved in the murder of Michael Taylorin deciding whetherheparticipated in the murders ofBobby and Eric Hassan ....” (People v. Champion, supra., 9 Cal.4th at p. 905) Again, this was, of co urse, the very theory ofthe prosecutor, a theory of whichtrial counsel had pretrial knowledge. Further, as this Court noted in explaining its conclusion that t he Taylor evidence was admissible against petitioner on the Hassan murder charges, “Tb]ecause the car [from which the Taylor suspects fled] contained items stol en during the commission ofthe Hassan and Taylor killings, the jury could reaso nable infer that the same four men whohadfled from the Buick had also participated in 41 the [Hassan] murders.”(Jbid., at p. 906.) Thus, evidence confirming that petitioner wasnot one ofthe men whofled the Buick following the Taylor homicide would not only have undercut the prosecution theory ofthe case, but offered the jury affirmative evidence thatpetitioner was not one of the men involved in the Hassan crimes. Finally, respondent does not attempt to counter petitioner’s claim thattrial counsel wasineffective for failing to present a defense to the Taylor crimesat the penalty proceedings, ” where the prosecutor offered up petitioner’s alleged role in those crimesas a reasonfor imposing death. (RT 3705-3706.) This pointis effectively conceded. The cumulative effect oftrial counsel’s errors and omissions in failing to effectively defend against the prosecution’s theory of petitioner’s involvement in the 27 The prosecution’s Notice of Evidence in Aggravation,filed in February of 1982, should have alerted counsel long beforetrial of the need to prepare a defense against allegationsofpetitioner’s involvementin the Jefferson and Taylor homicides. The Notice listed, interalia, 7 “3. That the defendant robbed and murdered Teheran Jefferson on or about November14, 1980. 4. The facts underlying the charges in Case No. A365075 [the information included both the Hassan and and Taylor charges (CT 530- 544)}. 5. The defendant’s violent character and activity as a gang member, as testified to by an officer of the L.A.S.O. Lennox Gang Detail.” In a capital case, reasonable counsel, even if anticipating an acquittal, must prepare for a possible penalty phasetrial. (Mitchell v. State (Fla. 1992) 595 So.2d 938, 941-942.) 42 Taylor crimes severely prejudiced petitioner, deprived him ofa fair trial o n the issue of his guilt or innocence, and renderedhis convictions and death sente nce inherently unreliable. This is so because, as demonstrated here andin the petit ion, the only proofremainingofpetitioner’s involvement in the Hassan killing is the unreliable identification by Elizabeth Moncrief. Insofar as the prosecutor was forced to adm it that this evidencealone could not support a guilty verdict, petitioner has presen ted a primafacie case that he was prejudiced by the errors and omissions complained of here. C. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidencethat petitioner could not have been involved in the Taylor crimes as he was in the companyoffriends who were never considered viable suspects and were detained by Los Angeles County Sheriff's Department deputies at the time the Taylor crimes were being committed. did not match the description of any suspect who law enforcement saw exiting the suspect vehicle, and approachedthe officers from an area which would have madeit very difficult, if not impossible for him to have been involved. 1. This subclaim is not untimely. In additionto thetrial transcripts ofPeople v. Champion Los Angeles County Superior Court case number A365075,petitioner relies on Exhibits 9-28, 32, and 47.) These exhibits fall into the following categories: Investigative reports and other documents generated by Los Angeles Police Department and/or Los Angeles County Sheriff's Department (Exhibits 9, 12, 13, 43 15, 18, 19, 20, 21, 32), Mallettrial transcripts (Exhibits 10, 11, 16, 22, 28, 30), Declarations (Exhibits 14, 17, 23, 24, 29, 47 )°*, NewspaperArticles (Exhibit 31), Maps(Exhibits 26, 27), and the Mallett letter (Exhibit 25). Except Exhibits 19 and 32 all of the investigative and police reports werein trial counsel’s file. The second Exhibit 32 and Exhibit 19 were obtained through a Freedom of Information Act request to the Los Angeles County District Attorney and reviewed by present habeas counsel by December 1997. Exhibit 26 was alsoin trial counsel’s files. The map prepared by habeas counsel (Exhibit 27) was done during the drafting ofthe claim to help demonstrate the path of the suspects, pursuit vehicles and containmentarea. The Mallet reporter’s transcripts were obtained from both Mr. Mallet and his -attorney Charles Gessler. The files of Mr. Mallet in the custodyoftrial counsel Charles Gessler’s were obtained in December 1996. Following a personalvisit at California Department of Corrections, Lancaster, California, near Los Angeles, with Mallet in 1997, his transcripts were forwarded to present habeas counsel in February, 1997. Mr. Mallet’s transcripts contained the letter Exhibit 25. 28 Petitioner attachesto this reply the declaration of Deputy Sheriff Thomas Lambrecht, which was executed on November22, 1997. The note to tom Lange from Deputy Lambrecht attached to the Deputy Lambrecht’s declaration indicates that it was mistakenly placedin a retired deputy’s mail box. (Exhibit 3A: Declaration of T. Lambrecht.) 44 Only the investigative reports and other police generated documents containedin trial counsel’s file and the transcript of the case ofPeoplev . Champion were in the possession ofMr. Merwin during his tenure as habeas cou nsel. As discussed fully above, Mr. Merwin was allocated funds with which to investigate the Taylor crimes but, this money wasnot approved until August 24, 1994, approximately seven weeks before Mr. Merwin took a job with the Orange Cou nty Public Defender’s Office and then becauseofthe pressuresofthat job and recur rent health problems, became unable to do further work on petitioner’s case. Until funding was secured, Mr. Merwin concentrated his efforts on penalty phase investigation, obtaining confidentiallegalvisits, record review, formulation of possible claims and contacting possible expert witnesses. ”? Present habeas counsel’s review ofthe appellate record and trial counsel’s file was completed in August of 1996. Having familiarized herself with the case a nd set investigative priorities, counsel requested funding for investigation from both this Court andthe federaldistrict court in early November 1996. State funding was denied on January 28, 1997. A few weeks earlier, on January 7, 1997, the federal 29 Here, petitioner incorporates fully the section entitled 2. No Substantial, Unjustifiable Delay is Attributable to Mr. Merwin at pp. 5-12. 45 court partially granted andpartially deniedpetitioner’s federal request. *° Once federal funding wasauthorized in January of 1997, petitioner could begin actual guilt phase investigation in earnest. With funds provided by the federal court, petitioner was able to hire investigators in Los Angelesto searchfor, interview, and retrieve declarations from Wayne Harris, Frank Harris, Earl Boganx, Deputy Tong, Sergeant Hollins, and Deputy Lambrecht. These declarations were obtained between April and Novemberof 1997, when thepetition wasfiled. The declarations provide facts and documentary support essential to the ground forrelief set forth in subclaim VI.A., and hence the subclaim wasfiled without substantial delay. (Robbins, supra, 18 Cal.4th at 787 (“Substantial delay is measured from the time the petitioner or counsel knew,or reasonably should have known, of the information offered in support ofthe claim and the legal basis for the claim.”).) 30 James Merwin’s funding request was granted in part. He was authorizedto spend (1) $1,200 to investigate the Taylor murder,(2) $800 to investigate other suspects to the Hassan murders, (3) $4,000 to investigate trial counsel's penalty performance, and (4) $400to interviewtrial counsel and obtain necessary records. The investigator retained by previous habeas counsel Merwin expended $2,926.72 of the benchmark $3,000.00, for services rendered during Mr. Merwin's tenure as petitioner's habeas counsel. Thus, prior to January 7, 1997, present habeas counsel had approximately $2,000 available to investigate guilt issues and $4,000 for penalty phase investigation. These monies andall ofthe federal funding approved for penalty investigation as well as most ofthe federal funding approvedfor guilt phase investigation, were exhausted by August of 1997, whenpetitioner again applied to this Court for funds with which to investigate penalty phaseissues. 46 Further, even hadit been possible to obtain the declarations and submit this subclaim substantially sooner, it would have been appropriate to de layfiling in light of ongoing investigation into other potentially meritorious claims wh ich required additional investigation until close to the November 1997 filing date in ord erto set forth a primafacie case for relief. (In re Robbins, supra, 18 Cal.4t h at 780, 805- 806(in the interest of avoiding piecemeal litigation, a claim as to which a prima facie case forrelief is in hand may properly be withheldifpetitioneris enga ged in an ongoinginvestigation of another potentially meritorious habeas claim as to which a prima facie case can’t be stated without additional investigation); In re Cla rk, supra, 5 Cal.4th at 781, 784 (same)). See, in particular, the discussion s below concerningthe ongoing investigations into claims addressing counsel’s ineffec tive assistance (a) in failing to challenge the prosecution’s graffiti and gang expert testimony (Claim VI.G; discussed below), (b) in failing to discover and presen t evidence that the jewelry in petitioner’s possessionat the time of his arrest did no t belong to Bobby Hassan (Claim VII.A, discussed below), (c) in failing to discove r and present mental impairment evidence that would have underminedthe prosecutor’s special circumstance mens rea theory (Claim VII.H, discussed below), and (d)in failing to discover and present substantial mitigating evidenceat petitioner’s penalty phasetrial (Claim IX.C, discussed below). Habeas counsel had 47 to coordinate investigation in all ofthese areas, which addedto the time required to complete the necessary investigative work and obtain the required supporting documentation. Finally, for the reasons set forth at greater length in Part IB ofthis informal reply, if subclaim VI.A were deemed untimelyit is a claim which should be reviewed on the merits pursuantto this Court’s miscarriage ofjustice exceptions to the timeliness bar. Subclaim VI.A, particularly when viewed in combination with the other subclaims ofclaim VI, underminesthe prosecution contention that petitioner was involved in the Taylor crimes, and as explained above, by so doing,(1) undermines(in combination with claims VII and VIlII)the prosecution’s case that petitioner was involvedin the Jefferson and Hassan homicides, (2) undermines(in combination with claim VII.H)the prosecutor’s special circumstance mens rea theory, and (3) dramatically alters (in combination with claim IX.C) the | grossly misleadingprofile of petitioner presented to his sentencing jury. Accordingly, the claim should be addressed on the merits. *’ 31 Prior to federal authorization for funding,petitioner had only $2,000.00 available for guilt phase investigation. Because the sum was solimited, a comprehensive investigative plan, one which would result in the investigation of all three homicidal incidents, had to be carefully budgeted. In other words, it was necessary to determine which areas of investigation should be given top priority to justify the expenditure of funds. See footnote 27 below for a full description of funding available to present habeas counsel. 48 2. Petitioner’sfactual innocence ofthe Taylor crimes is established by th e police reports, Mallet transcripts, declarations andother exhibits atta ched to this petition. a. Petitioner has presented a primafacie case that effective counsel could have confirmedpetitioner’s ofalibi There is no doubtthat petitioner’s alibi testimony could have beengreatly strengthened with the information containedin the exhibits attached to the ha beas petition. Attrial, on cross-examination, petitioner was asked whetheror not he had a n - alibi for when the Taylor crimes were committed. Petitioner explained that he did. (RT 3089-3098.) After explaining that he could have goneoutasearly as 10:00 that night, when asked where he waspetitioner stated: “Well, the police, Los Angeles Lennox Sheriffs, had me apprehended at a corner approximately on my block on 126" and Budlong.” (RT 3090.) Petitioner saw the suspect vehicle “just at the time that he was stopped. Although he didn’t know ifit had collided with a telephone poll, petitioner testified that he “saw it parked up ona curb next to it like it was rammed up on a pole.” (RT 3090-3091.) Over constantprosecution interruption, petitioner tried to explain the events ofthe evening: 49 Q: Allright. And it was after you saw [the stopped Player car] that the Sheriff's stopped, wasn’t it? A: Yes. Well, they had us apprehended in the park. Q: Mr. Champion, are yousaying that they apprehended you in the park before they apprehended you on Budlong? A: Well, see, that night I came from the store they had MarcusPlayer and everybody apprehended, the Los Angeles Lennox had took off. So, we was walking up mystreet, and that’s when we saw — Q: Mr. Champion, you are saying that Marcus Player was stopped by Sheriffs deputies at some timepriorto the time that you were stopped with him? A: Yes, we were. Q: All right. Now, you were stopped with Marcus Player on Budlong? A: Yes. Q: At the time that you saw the car up against the telephone pole, is that not correct? A: Yes. Q: Now,you are saying that Marcus Player was stopped — that was some time after midnight, wasn’t it between about 12:00 and 12:30? A:It could have been, I’m not sure of the time. 50 Q: And youare saying at some time earlier than that you are s aying the sheriffs stopped Marcus Player; is that correct? A: Yes. Q:Now, they didn’t stop you at that time? A: No, because I wasat the -- Q: I’m not asking you why, Mr. Champion, I am just asking you yes or no. A:If youlet me explain. Q: Your attorney can ask you that. I am asking you were you or were y ou not stopped with Marcus Playerthefirst time? A: No, I wasn’t. Q: All right. Do you know ofany Sheriff's deputies who would have se en you — MR. SKYERS:Objection. Calls for speculation. THE COURT:It soundslike it is going to, but I will hear the question. MR. SEMOW:Thefirst time Marcus Player was stopped, that was shor tly before midnight, wasn’t it? A: I’m notsureofthe time. It could have been. Q: It was about how muchtime before you were stopped together? 51 A: Ten minutes, five. Q: And that was in Helen Keller Park, wasit not? A:Yes. Q: Now,did you see who stopped Marcus Playeratthat time? A: WhenI was coming out from the store, which is behind Helen Keller Park, they had around seven young men onthe ground;and I asked Marcus,I said, What happened, you know because we wasat the park playing basketball and he said Lennox Sheriffs apprehended him and had him onthe ground asking him questions. Q: On the ground when you weretalking to him? A: No. He wasjust getting offthe ground. Q: And werethe Sheriffs deputiesstill right over him at that time? A: No. They had took off. (RT 3091-3095.) Later in the examination: Q: Now,thefirst time that you personally came in contact with the police was whenthey detained you and Marcus Player together on Budlong,is that correct? A: Yes. Q: And youthink that was 15 minutesor so later? 32 This time estimate is consistent with Exhibits 13, 15, and 16 which showthat Marcus Player was stoppedthefirst time from 11:50 p.m.to after 12:05 a.m. and the second stop, with petitioner, was in progress at 12:30 a.m. 52 A: About 10 or 15 minutes because they kept us on the corner a while. Q: Could have been as muchasa half hour, couldn’t it, M r. Champion? A: No. (RT 3096-3097.) On redirect examination the following consistent facts were established: Q: Now,asto that car crash on Budlong and 126" did you see that happe n? A: No. Q: When you came along you saw the car in that position? A: Yes. Q: And you were going to say something about you were stopped at your street. Is that what yousaid? A: Yes. Q: When you were approaching did you see police officers there? A: Yes. Q: Did you turn and run in any direction, go anywhere? A: No. Q: So you approached them? A: Yes. Q: And you came towards your house? | A: Yes. 53 Q: And did they stop youatthat time? A: Yes. Q: Okay, and did they let you go on home? A: No. They made me walk to 127" and Budlong. Q: Andat that place what did they do? A: Some moreofficers took out a pencil and pad, and took down my name and told me to walk to 127 and Raymond. Q: Okay, and then whatelse took place? A: They held me on the corer and LAPD cameflashing a light on us, and they told me to go on home. Q: Did they bring anyoneto look at you? A: I couldn’t really see. It was an LAPD car. I didn’t see who was behindit because the lights was in my eyes. (RT 3099-3101.) Respondentrefers to police reports and declarations submitted with the petition and asserts that “such evidence does not negate petitioner’s involvement in the Taylor crimes and completely contradicts evidence presented on petitioner’s behalfattrial.” (Informal Responseat p. 34.) Respondentis wrong. The police reports, declarations and other exhibits attached hereto demonstrate that petitioner was being truthful in his testimony and he wasnot 34 involvedin the Taylor crimes. Contrary to the assertion of respondent , with the exception ofminor detail, the petitioner’s testified-to alibi is entirely consistent both with contemporaneous police reports and with declarations obtained som e 13 years after the fact and submitted in support of this claim. In the petition, in painstaking detail, petitioner has documented the events of the night of and early morning following the Taylor crimes. It bears repeat ing here. At 11:50, while the Taylor crimes were in progress, several alleged members ofthe RaymondStreet Crips gang, including Marcus Player, Earl Boganx, Willie Marshall, and Angulus ** Wilson were being detained, for reasons unrelated to the Taylor crimes. The men were detained at Helen Keller Park by Los Angeles Sheriff's Deputies Lambrecht and Tong.(Exhibit 13 -- Sheriff's Department Memorandum from Deputies T. Lambrecht and O. Tong to LAPD Homicide.)** *° 33 This namebears striking resemblance to “Andy,” a young man that petitioner had just met and recalled was detained with Marcus Player whenpetitioner exited the store. (RT 305, 3097.) Earl Boganstoorecalls Angulus Wilson as “Andy” Wilson. (Guilt Phase Exhibits, Vol. 1, Exhibit 24.) 4 Deputy Owen Tonghas executed a declaration whichstates that the information in his report is true and accurate and had he been called to testify or questionedbytrial counsel he would have doneso consistent with the information in his report. (Exhibit 14 — Declaration of Owen Tong.) 35 Thus, petitioner’s trial testimony that he was at the park and that he saw Marcus Playerandothers detained atthe park at the time that the Taylor crimes were being committed is supported by police reports, declarations and testimony. 55 At 12:05 a.m., Lambrecht and Tong observed deputies Naimy and Koontz activate their red lights in pursuit ofthe Taylor suspect vehicle. The deputies followed Naimy's vehicle to 127th and Budlong. Thus,this first detention ofMarcus Player and others— the very time petitioner testified he exited the store -- was in progress before and during the pursuit of the Taylor suspect vehicle. (Exhibit 15 -- January 10, 1981, telephonic interview with Deputy T. Lambrecht.) In other wordsthe detainees andpetitioner —if he was indeed viewing them as heexited the store -- were necessarily eliminated as possible perpetrators of the Taylor crimes. Respondentblatantly misstates petitioner’s claim by asserting that petitioner “changedhis story and argues that he could not have been involvedin the Taylor crimes becausehe ...was being detained with [with his friends] at the time ofthe Taylor crimes.” Petitioner emphatically testified and assertedin his petition that he waswith his friends in the park and exited the store just following the first detention ofMarcus Player.(At p. 37, respondent cites page 27 ofpetitioner’s petition as asserting he was detained atthe time ofthe commission ofthe Taylor crimes. Page 27 contains no such assertion by petitioner.) It is therefore ofno consequencethatneither petitioner nor his mothertestified that petitioner was detained between 10 and il p.m. (See Informal Responseat p. 34.) Petitioner’s detention, which followed this first detention ofMarcus Playeris 56 supported by his testimony and uncontroverted police repor ts and other documents. Respondentalso mischaracterizes Mrs. Champion’s testim ony. Mrs. Championtestified that she came home between 8:30 and 9:00 that night. That she wentto bed at approximately 10:00 and that when police arrest ed Mallet from the backyard, Steve was home. Mrs. Championdid not knowthe time of Mallet’s arrest. (RT 2834-2838.) Mrs. Champion saw Steve at 8:30 or 9:00 pm. then not again until when Mallet was arrested, and then the next morning. (RT 2838-2839.) At no time did Mrs. Championtestify that “petitioner was home al l evening on December 27".” (Informal Response atp. 34, emphasis in origina l.) The second detention ofMarcus Player occurred within only a fe w minutes of the Taylor suspect vehicle crash. At the suppression hearing on Ev an Mallet's case, held May 12, 1981, Sheriff's Deputy Hollins testified that the detent ion of three men -- one ofwhom waspetitioner — commencedat approximately 12:3 0 a.m. Petitioner, Marcus Player, and Wayne Harris, were stopped as they wa lked southbound from 125" and Budlonginto the containmentarea. (Exhib it 16 at 75 et. seq; Exhibit 13; Exhibit 15.) b. Petitioner approached officers from a location which would have m adeit very difficult, if not impossible for him to have been inside ofthe suspect vehicle. Respondent’s blatant and perhapswillful distortion of the facts leadsit to 57 conclude that, to the extent that Robert Simms wasone ofthe perpetrators of the Taylor crimes, since petitioner and Simms were detained at the same time, petitioner could also have been involved. (Informal Responseat p. 37.) This is simply notso. After the suspect vehicle crashed, the pursuing and otherofficers set up a perimeter in order to contain the suspects in an area borderedbyfourcity blocks. A patrol vehicle was positioned at each corner andatleast one other vehicle was assigned to travel around the containment area as a “rover.” Officers Koontz and Naimy werepositioned at 126" and Budlong. This position was called the “command post.” The officers were joined by Deputy Hollins when he escorted petitioner, Marcus Player, and Wayne Harris to the commandpost. (Exhibit 16 at 80-81.) In other words, petitioner was detained as he came toward the containment area. By contrast, Simms wasseen to emerge from within the containment area through bushes along 127" Street, and join petitioner, Harris and Marcus Playeras they were, underconstant police surveillance, required to walk from the checkpoint at 127" and Budlong to the checkpoint at 127" and Raymond. (SeePetition at pp. 34-35 and Exhibits 16 and 18, and 27, Guilt Phase Exhibits Vol. 1.) Likewise, the fact that petitioner was detained after the crash and after the containmentarea had been established in no mannerindicates that he could have 58 been involved in the Taylor crimes. (See Informal Respon seatp. 36.) To makethis assertion, respondent must ignore not only the declaratio ns of lay witnesses and petitioner’s sworn testimony, but mustalso ignore the pol ice reports and declarations of law enforcementofficers. Asindicated, petitioner wasfirst observed outside ofthe contai nment area walking southbound from 125" and Budlong towards the cont ainment area. The suspect vehicle proceeded from 125" down Berundo. It turned w est onto 126" and crashed at the corner of 126" and Budlong. In other words, the ca r traveled down a path that wouldparallel the eventual path ofpetitioner, Marcus Pla yer and Wayne Harris. 2° The car must have traversed this route before petitioner was in a position to see it. This is supported by the fact that Marcus Player wasstil l detained when the car headed westfrom the park. Then, petitioner exited the store and began to walk with Marcus and WayneHarris. Petitioner saw the car after i t had already crashed,soit is likely that the crash occurred before petitioner, Harr is and Player got far from the park. Petitioner respectfully requests this Court consider the two maps subm itted at 3 As it is uncontroverted that these three men viewed the car afterit had crashed respondent’s theory that petitioner got out of the crashed vehicle, “ra n west on 126", turned the corner and ran north on Raymond”then continued around t he block to join Marcus Player and WayneHarris heading south on Budlong is unsupp orted by the established facts not to mention reason. 59 exhibits 27 and 28, in conjunction with the attached police reports and sworn testimonyofpolice officers. It would have been impossible for petitioner to have comefrom the suspect vehicle. In order for this to have happened, Mr. Champion would have had to exit the vehicle, cross 126" Street in front of the pursuing police officers and then join up with friends coincidentally walking toward the scene. Moreover,it begs all logic to believe that petitioner, if in the containmentarea, would not have gone to his home *” which was in the containmentarea, or alternatively, that petitioner having somehow escaped the containmentarea would . have casually walked back toward it with his friends just minutes after having escaped. Underthe logic of respondentifpetitioner had been a perpetrator so too could have been Wayne Harris. But police knew thatpetitioner, Harris and Marcus player were not involved. Although ultimately in the company ofone ofthe perpetrators, Robert Simms, noneofthese original three pedestrians wasarrested. Contrary to respondent’s hope, the declaration of Wayne Harris supports __ petitioner’s trial testimony and the fact that petitioner was not involved in the Taylor crimes. It is of slight consequencethat 13 years after the fact Wayne Harrisis 37 Petitioner’s address on the date of the Taylor homicide was 1212 W. 126" Street. (Exhibits 44, 45 Guilt Phase Exhibits Vol. 2.) 60 confused asto the time ofthe detention. Heneverclaims, and the poli ce reports do notindicate, that Harris was detainedatthefirst detention of Marcus Player. Thus, the only contradiction in Harris’ declaration is that the detention oc curred between 9:30 p.m. and 10:00 p.m.rather that 12:30 p.m. 38 Similarly, Earl Bogans’ declaration doesnot cast doubt uponpetitioner ’s sworn testimony, whichincidentally is completely supported by police of ficers’ sworn testimony and contemporaneous official reports. Mr. Bogans recall ed that he wasin the park that night drinking, smoking and playing basketball. Althou gh heis certain that petitioner was in the park with him for these activities, he does no t indicate that petitioner was physically with him when he wasdetained by Sh eriff's deputies and told to lie on the ground. (Exhibit 24, Guilt Phase Exhibits Vol . 1.) The fact that petitioner was not actually with Bogans and Marcus Playeris supported by the fact that police did not take downpetitioner’s nameatthis tim e, as Bogans recalls the officers doing for him and others. Respondent seems confused regarding Bogans activities subsequent to this detention and its importance to Simms arrest. Respondentstates, “contrary to 38 Respondent does not dispute that “Lil Owl,” James Taylor and Robert Simms are onein the sameand that Simms gavethe false name of James Taylor when he w as arrested. (Informal Response at p. 35.) Respondent does not address the reason why Simmslied to police about his identity. In contrast, petitioner was forthright in his identity and fully cooperated with police. 61 Harris’ story, Bogan states that Simms “wasnot with [them] that night before or while [they] were being detained by police.” (Informal Responseat p. 35.) Of course this is true. Simms wasnotpresent forthe first detention because he was in the car fleeing from the Taylor home. Bogans wentdirectly homeafter this first detention and therefore was not there when Simms snuckout from the containment area “in an apparentattempt to appearas if he were part of three pedestrians walking [westbound] on 127th.” (Exhibit 18.) c. Petitioner did not match the physical or clothing descriptions ofthe men who exited the suspect vehicle Respondentrelies too muchon speculation to dispute petitioner’s claim that ~ he did notfit the physical description of any of the suspects seen by police. The officers who observed the crash and saw the suspects leave the vehicle gave descriptions ofthe suspects whichin no wayfit petitioner. All of the officers observed dark clothing. The only further descriptions was that of a “white jacket” and a “plaid coat.” Petitioner wore yellow clothing at the time he was detained and was told to walk the perimeter of the containmentarea. (Exhibit 32.) °° Simms was arrested wearing a whitejacket. (Exhibit 18.) In his report, Deputy Naimy noted 39 Respondent speculates that petitioner’s pants were grey, or dark. (Informal Responseat p. 37.) The field identification card does not specifically state this. (Exhibit 32.) 62 that Mr. Simms had similar clothing, height, weight, and age and "came from the cordoned area without reason for being there." (Exhibit 19.) Off icer Naimytestified at Mr. Mallet's trial that Mr. Simms "clothing, body size, approxima te weight and the general shape and configuration" matched onetwotallest suspect s Officer Naimy saw flee the vehicle. (Exhibit 22 at 615.) Also according to Na imy’s testimony, one of the men whoexited the driver’s side wore “a whit e jacket.” The other had on dark colored clothing. (Exhibit 22 at 606, 612.) These de scriptions are far morecertain than respondent’s speculation that “based on the time th e car chase occurred, and the lighting or lack thereof, petitioner’s yellow jacket [sic] may have appeared to be white or light colored.” (Informal Responseat p. 37.) Further, the suspect in the white jacket was seen by officers Koontz and Naimyto exit the driver’s side ofthe crashed vehicle and to then run south and then west directly into the containmentarea. (Exhibit 18, Guilt Phase Exhibits Vol . 1.) It is totally implausible,ifnot impossible that this suspect could have been petitioner since petitioner, very soon after the crash, approachedthe containmentarea from the north. (Exhibit 16 at p. 81, Guilt Phase Exhibits Vol.1.) 63 D. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence whichindicated police and the prosecutor hadreliable information that four other persons were actually responsible for the Taylor crimes. 1. This claim is not untimely The exhibits which support this claim, with the addition of Exhibits 34 and 31 whichare a portion of the Mallet transcript and newspaperarticles, are the same exhibits which support the previously discussed claim VI.A. Petitioner incorporates his timeliness analysis as to the above claim VI.A.here to demonstrate that he has presented this claim in a timely fashion. In addition, it was while investigating petitioner’s alibi that it became apparentthat the police had other suspects who in all likelihood committed the Taylor crimes along with Evan Mallet and Craig Ross. These were Michael Player and Robert Simms. Both claims hadto befully investigated before either could be presented. Thus, for the reasons stated above, this claim could not have beenfiled sooner. Further, for the reasons stated above in connection with subclaim VI.A, even had it been possible to submit this subclaim substantially sooner, it would have been appropriate to delayfiling in light of ongoing investigation into other potentially meritorious claims, and finally, even if the claim were deemed untimely,it should be reviewed on the merits pursuant to this Court’s miscarriage ofjustice exceptions to the timeliness bar. (See timeliness discussion re VI. A.) 2 Thefact that police and the prosecution had reliable i nformation thatfour other persons committed the Taylor crimes is supported by the documentary evidence submitted by petitioner. a. Robert Aaron Simms To makeits case, respondent would have this Court ignore positi ve identifications by twosheriff's deputies (Naimy and Koontz), as Simm s fled the suspect vehicle, 40 the fact that Simms was wearing similar clothin g, matched the height, weight, and age ofa fleeing suspect, and "came from the cor doned area without reason for being there," *! officers’ beliefs that Simms did so a s to establish an alibi for himself, ‘"the fact that Simms gavea false name,” and th e factthat Simms wasactually recovered from the containment area which he w as seen to enter.“ Contrary to respondent’s assertion (Informal Responseatp. 40.), the evidence producedby petitioner doesclearly establish that Simms was involved in 4 Exhibit 16 at 80-83; Exhibit 18, Exhibit 22 at 615, Guilt Phase Ex hibits Vol. 1. 41 Exhibit 19, Guilt Phase Exhibits Vol. 1. “ Exhibit 18, Guilt Phase Exhibits Vol. 1. “ Informal Responseat p. 35 fn.18. “ Officer Koontz stated that Mr. Simmsexited the vehicle from th e left side door and ran south on Budlong. Mr. Simms ran along the sidewalk then disap peared between the corner house andthefirst house on Budlong (Exhibit 28 at 279-2 81; Exhibit 18, Guilt Phase Exhibits Vols. 1, 2.), i-e., into the containmentarea. 65 the Taylor crimes. Although somewhatless certain oftheir identifications after Simms was released from custody,ultimately officers did not rule him out as being one of the suspects whofled the vehicle.** The officers who arrested Simms were correct. Theofficials who released him were wrong to do so. The case against Simms is a strong one. Thirteen years after these crimes,petitioner has presented documented andreliable proof of Simms’ involvement. Respondentoffers nothing to base its claim that petitioner rather than Simms wasactually involved other than Cora Taylor’s incredible and erroneous identification and respondent’s own speculation. b. Michael Player Although it discounts petitioner’s proof ofMichael Player’s involvement in the Taylorcrimes, ultimately respondent concedesthatit is likely he was involved. (Informal Response at p. 42.) This is not surprising given the fact that the car belonged to Michael Player’s stepfather, Michael Player wasthe last one knownto drive it that evening, he was a knownserial killer, Evan Mallet’s statement that Michael wasthe driver of the fleeing vehicle, andthe trial prosecutor’s own assertion in closing argument that one of the Player brothers was likely involved. (RT 3158-3160, 3338.) 45 Exhibit 28, Guilt Phase Exhibits Vol. 2 at 279. 66 c. Petitioner has met his burden. Finally, respondent overstates petitioner’s burden here. Pet itioner is not required to prove conclusively that Robert Simms or Michael P layer were involved in the Taylor crimes. Petitioner need only makeout a prima facie case for relief. He has doneso. Giventheincriminating evidenceas to Simms,including his emerg ence from the containmentzoneto join petitioner, Marcus Player, and Wayne H arris and appear to have been walking with them, his giving a false identifica tion to police and thetentative (or stronger) identifications by two officers, includi ng identification ofthe white coat he was arrested wearing, and given the prosecutor ’s concession that one ofthe Player brothers waslikely involved, Marcus Player’ s statement that Michaelwasthe last to drive the suspect vehicle, Frank Harris’ state ment that petitioner never drove his car and the proceeding evidence ofpetitione r’s alibi, it is certainly reasonably probably that the jury, had it been presented with the evidence described in the petition under this subclaim, would have rejected any in vitation to rely upon petitioner’s alleged involvementin the Taylor homicideas a bas is for convicting him of the Hassan crimes,for finding he harbored the mens rea e ssential to capital murder or for imposing a sentence of death. In light of the evidence we have adduced (and whichtrial counsel could and 67 should have adduced), it is clearly more likely that Robert Simms and Michael Player --andnotpetitioner -- were among the meninvolvedin the Taylor crimes and that they, along with Mallet and Ross were the four responsible parties. Had the jury seen this evidence,it is likely that the jury would have so concluded. Given that the prosecutorrelied upon Steve’s purported involvementin the Taylor crimesto prove guilt ofthe Hassan crimes and the uncharged Jefferson homicide, to prove intent to kill, and to argue the appropriateness ofa sentence of death, the failure to adduce this evidence wasclearly prejudicial. E. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidencethat the physical and clothing descriptions offered by witnesses did notfit that of petitioner on the night of the Taylor crimes. 1. This claim is not untimely In addition to the exhibits supporting the Taylor claims discussed above, petitioner offered Exhibit 33, an official document describing petitioner as having buck teeth, Exhibit 35, Craig Ross’ rap sheet, and Exhibit 36, a reporter’s transcript from the Mallet case. Except for the Mallet transcript, the other additional exhibits were containedin trial counsel’s file. The importance ofthe Mallet transcript to this claim -- when coupled with Exhibit 33 -- is clear. This is so because at Mallet’s trial, during cross-examination 68 ofBirdsong, Mr. Mallet’s counsel asked whetheror not any suspect had "any missing teeth, anything like that stood out" in his mind. Mr. Birdsongreplied, "No." (Exhibit 34 at 812.) Even if had beenpossible to submit this subclaim substantially sooner, it would have been appropriate to delayfiling in lig ht of ongoing investigation into other potentially meritorious claims which required additional investigation until close to the November 1997 filing date i n order to set forth a prima facie case for relief. (In re Robbins, supra, 18 Cal. 4th at 780, 805-806.) These included other subclaims relating to counsel’s ineffect iveness in failing to defendant againstthe contention that petitioner was involved in the Taylor crimes, i.e., subclaims VI.A and VI.B(failure to discover and present e videncethat petitioner could not have been involved and that the perpetrators w ere four other young men; discussed above) and subclaim VI.G (failure to cha llenge the prosecution’s graffiti and gang expert testimony; discussed belo w). Counsel was also engaged in ongoing investigations into claims addressing co unsel’s ineffective assistance(a) in failing to discover and present evidencethat th e jewelry in petitioner’s possession at the time ofhis arrest did not belong to Bob by Hassan (Claim VIIA, discussed at below), (b) in failing to discover and pres ent mental impairment evidence that would have undermined the prosecutor’s spe cial circumstance mens rea theory (claim VII-H, discussed below), and (c)in f ailing to 69 discover and present substantial mitigating evidence atpetitioner's penalty phase trial (Claim IX.C, discussed below). Further, in light ofthe rarity of this Court’s issuance of orders to show cause, counsel doubted that the Court would deem claim VI.C. standing alone, without presentation ofthe other Taylor-related claims sufficient to state a prima facie case for relief, and accordingly for that reason as well counsel would havebeen warranted in delaying presentation ofthis subclaim. (Jn re Robbins, supra, 18 Cal.4th at 806-807 n. 29 (majority), and 820-821(Justice Kennard, concurring and dissenting (counsel may properly delayfiling claims or subclaims which, standing alone, may beinsufficient to support a prima facie case until such time as the related claims or subclaims to which the withheld claims can be joined to support a prima facie case are ready to befiled). Finally, as explained above in connection with the discussion ofthe timeliness of Subclaim VI.A, each ofthe subclaims of Claim VI, which together underminethe prosecution contention that petitioner was involved in the Taylor crimes, should be reviewed on the merits pursuant to this Court’s miscarriage ofjustice exceptions to the timeliness bar even if deemed untimely. 3. Thefact that the physical andclothing descriptions offered by witnesses did notfit that ofpetitioner on the night ofthe Taylor crimesis supported by the documentary evidence submitted bypetitioner. Contrary to the assertion of respondent, Mary Taylor did not testify that any 70 of the suspects whoentered the residence resembled peti tioner. Mary Taylor’s testimonyis recited above. When asked whether she s aw someone,in the courtroom, wholookedlike the man she described in her h ome as having anearring in his left ear, short hair, big lips, a full face, was dark comple cted and hada little mustache, Mary Taylor pointed to Craig Ross. (RT 2129-21 30.) As to petitioner, the only similarity noted by Mary Taylor was something abou t his mouth orlips. Ms.Taylor did not describe in what way petitioner’s lips wer e similar to the lips of one ofthe perpetrators. (RT 2133.) Mary Taylor was certain t hat petitioner’s earing was not the earring worn bythe perpetrator she describe d. (RT 2327-2328.) Certainly, respondent does not expect us to believe that based on a similarity oflips, the witnesstestified that petitioner resembled one ofthe men w hoentered her home. The man Cora ultimately identified as petitioner was suspect num bertwo, the "tallest" one. Neither Cora Taylor’s physical description of susp ect numbertwo, nor herdescription of the clothing that person wore matchpetit ioner. Respondent would like us to bootstrap Mary Taylor’s descripti on of a “dark long-sleeved shirt” to Cora Taylor’s description of a “brown”shir t, as matching petitioner’s “grey”shirt. (Informal Responseatp. 44.) As with so m any factual assertions containedin this Response, respondent doesnotcite to a ny portion of the appellate or habeas record for the location ofthese descriptions. Petitione r is forced 71 to comb through thousand ofpages oftranscripts and proceedingsin o rder to verify that respondent has not misstated these facts like so many others. Here, it may be of little consequence, brown is not grey and neither brown norgrey are necessarily dark. Respondent asks this Court to liken petitioner’s clothing to the “light- colored” clothing described by police and the “dark or brown”clothing described by witnesses. This invitation to speculate must be turned down. Petitioner disagrees with respondent’s assertion thatit is of no consequence that petitioner is described as having “buck teeth.” (Informal Responseat p. 45.) According to Mary Taylor, Cora Taylor, and the prosecuting attorney, the perpetrators threatened the family and asked for money and dope. Bucktee th are certainly a distinguishing facial characteristic worth noting. Moreover, it is apparent from Exhibits 33 and 34 that had one ofthe suspects had missing, buck, or noticeably different teeth, Birdsong would haveused the opportunity when a sked about teeth deformities ofthe suspects to say so. Respondent makes muchofBirdsong’s description ofthe tallest suspect as — “pretty close”to petitioner’s height. In fact, Mr. Birdsongtestified that he is 6' 0 tall and that this suspect was shorter than he, thus eliminating 6'0 to 6'l petitioner as a suspect. (Exhibit 34 at 805-807, Guilt Phase Exhibits Vol. 2.) Respondent also ignores the clothing description given by Birdsong whereheclearly recalls the man 72 wore an earringin his left ear, was dressed in bl uejeans and wore a "lumberjacket" plaid coat. (Exhibit 36 -- at 805, 821.) Further, in responseto this claim too, respondentatte mpts again to make muchofa speculative point that petitioner’s yellow cl othing could have been the “white or light-colored” jacket Naimy observed oneof the suspects to be wearing. (Informal Responseatp. 37, 41,42, 44.) Responden t must once more ignore exhibits to make this point. ROBERT SIMMS WAS AR RESTED WEARING A WHITE JACKET.(Exhibit 18, Guilt Phase Exhibits Vol. 1. ) Similarly, respondent asks us to assume that the reason it was not noted that o n the night he was detained petitioner was wearing an earring, had a scar or injury w as that the “space provided on the identification card was very limited.” (Informal Re sponse at p. 45.) By negative inference respondent would have us assumetha t each ofthese distinguishing marksexisted, but the officers failed to re cognize the significanceto record them. Moreover, petitioner was detained while t he Taylor witnesses were being interviewed. He was shown to them by police. Ther e was no reason not to confirm importantidentifying information before his relea se...had any existed. Finally, there is a complete lack of any evidence that petit ioner wasinvolved. No blood,fingerprint, or other forensic evidence. Notone of the numerous statements regarding petitioner had him sweating from running away from pursing 73 vehicles. He was cooperative, truthful and above the suspicion of any ofthe numerous police officers and sheriff's deputies who encountered him that night. Respondentis simply wrongin asserting that the failure to demonstrate petitioner did not match the descriptions of the suspects given by the victims was not prejudicial. In light of the evidence we have adduced (and whichtrial counsel could and should have adduced),it is clearly morelikely that Robert Simms and Michael Player --and not petitioner wasthe other meninvolved in the Taylor crimes. Had the jury been presented with the fact that petitioner did not match police or victim descriptions, it would have been moreinclined to disbelieve Cora Taylor’s identification. Further, given that the prosecutor relied upon petitioner’s purported involvement in the Taylor crimes to prove guilt ofthe Hassan crimes and the uncharged Jefferson homicide, to proveintent to kill, and to argue the appropriateness of a sentence of death, the failure to counter Cora’s identification by adducing and arguingthat the police and victim descriptions did not match petitioner wasclearly prejudicial. F. Defense counsel provided constitutionally ineffective assistance by failing to object to the prosecution's attempts to have witnesses identify petitioner as one ofthe men whoentered the Taylor residence, in spite ofthe fact that the prosecution had assured both the court and counselthatit had no evidence that petitioner was present inside the Taylor home. 1. This claim is not untimely 74 Other than trial counsel’s declaration, all of the exhibits wh ich support this subclaim are containedin the appellate record. Whi le it might have been possible to submit this subclaim at an earlier date this course wou ld not have madesense here. This claim is a subclaim to a muchgreaterclaim ofineff ective assistance of counsel which required extensive support from documentation o utside the record. Further, when the “triggering facts” of this claim were learned, pe titioner was in the process of investigating other aspects ofthe Hassan, Jefferson, a nd penalty phase IAC claims,all potentially meritorious claims requiring investig ation. This subclaim should be deemed timely and should be addressed on the m erits for the same reasons that subclaim VI.C. should be deemed timely and s hould be addressed on the merits. 2. Trial counsel’s failure to object, and/or movefor a mist rial, was both unreasonable andprejudicial. As above, respondent respondsto this subclaim with no indepe ndentor contradicting documentary evidence. It asserts that petitioner h as not presented reasonably available documentary evidence to demonstrate that this was not a reasonable tactical decision. Again, respondent misconstrues th e record and omits reference to established facts which belie this conclusion. Forem ost, respondent ignores the fact that pretrial, trial counsel had moved to exclude s uch evidence of 75 identification and all other evidence that petitioner was involved in the Taylor crimes. “° Clearly, at the pretrialstages of this case,trial counsel fully recognized the prejudicial impact an in-court identification of petitioner as a participant ofthe Taylor crimes would have on the jury. Thus, once the testimony had beenelicited, counsel could not have reasonably formeda tactical decision that leaving it alone wasthe right strategy. Further, trial counsel’s error in following this course is all the more obvious on review ofthe record which demonstrates how the prosecutor seized on Cora Taylor’s identification ofpetitioner to make its case. The prosecutor reinforced this identification, and specifically referred to petitioner by name, coupling him with Mallet and Mr.Ross, as one ofthe perpetrators ofthe crimes, numerous times during his questioning of this witness. (RT 2246, 2248, 2250, 2255, 2263, 2302, 2304, 2305.) Respondent is wrong whenit asserts that the fact that Cora Taylor was generally not a good witnessat the Mallettrial was “ofno consequence” and “irrelevant.” (Informal Responseatp. 47, fn. 24.) 4” In his claim regarding counsel’s failure to object to Cora Taylor’s identification, petitioner argued that © Unfortunately, trial counselfailed to get a ruling on this motion.(Petition at p. 46.) 47 The rest of respondent’s paragraph to footnote 24 is nonsensical. 76 defense counsel wasineffective forfailing to object to or impe ach Cora Taylor’s identification ofpetitioner. In support ofthis claim, petitioner cited a portion ofthe Mallettrial where the presiding judge stated the following: THE COURT: Let me makethis observation. [Cora Taylor] change d her testimony enough timeson fairly sufficient points concerningidentifica tion that the tryer [sic] of fact would have to take her identification in court w ith a grain of salt. Mr. Marin, I really have serious doubts about herability to make[an]identification. (Exhibit 38 -- Mallet Reporters Transcript at 318.) Just as an ID witnessshe leavesa lot to be desired. (Exhibit 38 at 325.) In every trial, the believability of a witness and the weight to be given her testimony is a matter for the jury to determine. A jury may consider anythi ng which has a tendency in reason to prove or disprove the truthfulness ofthe tes timony ofa witness. (See CALJIC No. 2.20.) “* Amongthe specific factors outlined in CA LJIC No.2.20,is “[tJhe ability ofthe witness to rememberor to communicate any m atter about whichthe witnesstestified.” (CALJIC No. 2.20.) Further, Mrs. Taylor’s testimony at Mr. Mallet’s trial was available as impeachmentevidenceat petitioner’s trial. (Evidence Codesection 769; CA LJIC No.2.20.) Finally, as the above-stated opinion was rendered at an Evidence Co de section 402 hearing, the Mallet judge’s opinion regarding Mrs. Taylor’s identification was arguably admissible as an expert opinion (Evidence Code se ction 48 This was not testimony regarding someunrelated incident, but testimony w hich specifically related to the eventsto which she purportedto testify to at petitione r’s trial. 771 80), and certainly the repeated character of her testimony which formedthe opinion of thetrial judge’s negative view ofhercredibility could have been adduced. ” For these reasons, Mrs. Taylor’s testimony at the Mallet proceedings and the opinion of the Mallet judge were both relevant and of great consequenceto the defense of petitioner here. Respondentfaults petitioner for failing to cite any authority requiring his counsel to obtain and readthe transcripts of a co-perpetrator’s case. (Informal Response at p. 47, fn. 24.) Certainly, the prior testimony of a prosecution witness regarding the circumstances of a crime, for which a defendantis not charged but a crime which defense counsel is on notice that the prosecution tends to use to prove a defendant’s guilt of the crime actually charged,is an area of investigation to be undertaken. This is particularly true given the fact that trial counsel believed that the prosecutor would attempt to havepetitioner identified by the Taylor victims. Trial counsel’s failure to object and/or movefor a mistrial following Cora Taylor’s mistaken identification resulted in prejudice. Although counsel took some steps to discredit the in-court identification, there is no guaranteethatit wasn’t credited. The prosecutor certainly foundit to credible enough to rely on it numerous 49 Evidence Code section 402, contains the procedure by which a court hears and determines the question of the admissibility of evidence. 78 occasions after he reinforced this identification and specifically re ferred to petitioner by nameasone ofthe perpetrators of the Taylorcrimes. (RT 2 246, 2248, 2250, 2255, 2263, 2302, 2304, 2305.) *° Ultimately, the importanceofth e identification was argued by the prosecutorin closing. Moreover, it was inherently prejudicial to have the surviving victim of a brutal robbery and murder (whichalso involved the rape of another survivor), particularly the mother ofthe murder victim (andofthe rape victim as well), connect petitioner to these crimes. If believed, the identification of petitioner pr ovided the jury sufficient evidence to convict petitioner of the Taylor crimes and follo wing the prosecutor’s theory, the Hassan crimes. This is in spite ofthe weakness ofthe evidence and ofthe theory itself. 50 Even respondent cannot avoidthe invitation to credit Mrs. Taylor’s testimony as she argues that petitioner was in fact involved in the Taylor crimes andshethen refers to petitioner as a perpetratorofthe Taylor crimes. (Informal Responseat pp. 42, 47, footnote 24, and 59 [quoting this Court].) 79 G. Defense counsel failed to discover and present evidence that there was no physical or other evidenceofpetitioner's involvementin the Taylor crimes andthat to the contrary, numerouspretrial identification attempts failed to identify petitioner as a suspect, fingerprint analysis did not implicate petitioner, and a secretly taped conversation between Evan Mallet and petitioner failed to yield any evidence that petitioner was involved in the Taylor crimes. 1. This claim is timely. As with all claims above and below, respondent respondsto this subclaim with no independentor contradicting documentary evidence. By contrast, in addition to the exhibits supporting the Taylor claims above,petitioner offers Exhibit 37, scientific evidence documentation from the Taylor murder book, which according to Exhibit 71, Guilt Phase Exhibits Vol. 3, was given to trial counsel by the prosecutor on or about June 2, 1982. Petitioner incorporates here his timeliness arguments as to the previously discussed Taylor claims. This subclaim should be addressed on the merits for the same reasons that subclaim VI.C. should be deemed timely and addressed on the merits. 2. Factual misrepresentation by respondent In footnote 25, which is appendedto its response to the failure-to-object claim, andin the body ofits argumentto this claim, respondent mistakenly asserts that Mary and Cora Taylor had only one occasion to observe petitioner. (Informal Response atp. 48, fn. 25, and p. 51-52.) This is not true. 80 Initially, Cora Taylor, Mary Taylor and William Birdso ng had an opportunity to observe petitioner at a police show-up on the n ight of the crime. Both the appellate and habeas records confirm this fact. Pe titioner recalled that while he, Marcus Player, Wayne Harris and Robert Simms wer edetained outside of the containmentarea, a police vehicle stopped an shone a l ight at the group. (RT 3103.) Officer Koontz testified that at approximately 1:30 p.m. some civilians -- presumably Birdsong and Mary and Cora Taylor — we re taken to a show up of Simms. (Exhibit 28 at 268, 274, 278.) In earlier testimon y he described these civilians as “a young Black male, and a young female Blac k, and an older female Black.” (Exhibit 28, at p. 266.) °! Mary testified that she, her m other and Birdsong were taken to two show-ups, one ofwhich that had “some guys” and the other that was only Mallett. (RT 2237.) In addition, petitioner has reason to believe that his photog raph was shownto the victims. Respondentcharacterizes this belief as specul ation. The record indicates that these witnesses were shown photographs at the Lennox Station on three separate occasions. (Exhibit 36.) On oneofthese occ asions, the witnesses were shown approximately eight mug-books, each containing over 100 photographs. 51 These same three were also given the opportunity to observ e Mallet. (Exhibit 28 p. 281-282, Guilt Phase Exhibits Vol. 2.) 81 (Exhibit 36, pp. 169, 184.) Were petitioner not one of these people shown to the victims, respondent has access to the people and exhibits shown, and yet has offered no evidence whatsoeverthat petitioner’s speculation is not fact. Finally, Cora Taylortestified that she saw petitioner in court on at least two | occasions. (RT 2307.) There is no reason to believe that Mary Taylor did not observepetitioner on those occasions too. 3. Trial counsel’sfailure was not the result ofa reasonably tactical decision. Respondentassertsfirst that the decision not to present evidence demonstrating there was no credible evidence that petitioner was involved in the Taylor crimes wasa tactical decision and in any event, not prejudicial. (Informal Responseat pp. 49-50.) Unlike its previous responsesto petitioner’s claims, respondent doesnotallege here that the error was not prejudicial because petitioner had not been charged with or convicted ofthe Taylor crimes, but ratherthat counsel’s failure to present evidence that there was no physical or other evidence of petitioner's involvement in the Taylor crimes and that to the contrary, numerous pretrial identification attempts failed to identify petitioner as a suspect, fingerprint analysis did not implicate petitioner, and a secretly-taped conversation between Evan Mallet and petitioner produced no incriminating admissions was a reasonable decision “in light ofthe defense presented.” (Informal Responseat p. 50.) In 82 support ofthis response, respondentcites to two short pass ages of trial counsel’s guilt phase argument 52 and concludesthat it would have be eninconsistentfor counsel to have askedthe jury to rely on the very evidence t rial counsel had asked them to ignore. (Ibid.) Respondent is wrongto assert that it wou ld have been “inconsistent” for counsel to point out the multifaceted lack of incrim inating evidence that might have been expected to be available. Rather, t han inconsistent,it would have confirmed counsel’s assertion that nothing concerning the Taylor (and Jefferson) crimes had anything to do with petitioner’s guilt or innoc ence in the Hassan crimes. Respondentis simply wrongin asserting that the lack of incriminati ng evidence, where it would be expected to be found, is irrelevant or speculative. In light ofthe evidence presented (and whichtrial counsel could and sho uld have presented), it is clearly more likely that Robert Simms and Michael Pla yer --and not petitioner were the other men involvedin the Taylor crimes. Had the jury been presented with the lack of forensic and identification evidencedirect ly tying petitioner to the Taylor crimes,it would have been moreinclined to di sbelieve Cora 2 Trial counsel’s argumentto the jury that the quality of the evidence wa s such that everything should be distrusted was made in reference to the Hass an crimes, and not in referenceto the alleged evidenceofpetitioner’s involvement in the Tay lor crimes. (RT 3226.) 83 Taylor’s identification. Further, given that the prosecutorrelied upon petitioner's purported involvementin the Taylor crimes to prove guilt of the Hassan crimes and the uncharged Jefferson homicide, to prove intent to kill, and to argue the appropriateness of a sentenceofdeath, the failure to counter Cora’s identification in this mannerwasclearly prejudicial. H. Defense counselfailed to object to or impeach Cora Taylor’s identification of petitioner. (Claim VIF.) Here, respondentrelies primarily on its response to claim VI.D. Respondent adds only thattrial counselanticipated that the district attorney would attempt to havepetitioner identified, believed that this was permissible, and therefore chose not to object and decidedthat, ultimately that the best way to deal with Mrs. Taylor’s surprise identification wasto “leave it alone.” (Informal Responseatpp. 52-53.) Respondent, like trial counsel was wrong, is wrong. Exceptin anticipating that the prosecutor would attempt to have petitioner identified, Mr. Skyers’ belief that the procedure was permissible and his response to the identification were erroneous. Although the procedure was appropriate as to Ross, there was no legal | basis justifying the prosecutor’s question to Cora as to whetherpetitioner resembled any ofthe men whorobbedherfamily and killed her son. This is certain becauseif Ross had not beentried with petitioner, Cora Taylor’s testimony,in its entirety, 84 would havebeenirrelevant and inadmissible. Further, as the pros ecutor himself recognized, he had no factual foundation upon whichto base a belief or suspicion that petitioner wasinside of the Taylor home and therefore seen by Cora or any other witness. The question he posed to Mrs. Taylor was nothing m orethat a fishing expedition. As such, it constituted misconduct — misconduct which went unobjected to by defense counsel. Misconduct which ultimately per mitted the jury to concludethat petitioner murdered Bobby and Eric Hassan. Here again, respondentargues that Cora Taylor’s testimony at the Mal lettrial and the Mallet judge’s opinion were irrelevant. (Informal Response at p. 54.) According to the court which judged Cora Taylor testimony and obse rvedherability to recall and recollect vital information, Mrs. Taylor changedher test imony enough times on important points concerning identification that “the tryer of fact would haveto take her identification with a grain ofsalt.” (Exhibit 38 atp. 318 .) The court recognized the traumatic nature ofthe experience that affected her test imony. ([bid.) The court noted that defense counselhad “plenty of impeaching grounds ”(Id., at p. 319), including that Mrs. Taylor may have picked twopictures ofdiffe rent men and identified them both as Mallet. (/d., at pp. 322-323.) As outlined above, had trial counsel knownofMs.Taylor’s prior testimon y and the court’s opinion regardingits character,trial counsel would have been 85 negligentin failing to bring both before the jury. Mrs. Taylor’s prior testimony — whichrelated directly to a robbery and murderthat she pinned onpetitioner and court’s opinion thereabout would have been ofgreat valuein assisting the finder of fact at petitioner’s case. I. Defense counsel provided constitutionally ineffective assistance in failing to discover, present and argue (1) evidence that the graffiti which proportedly implicated petitioner in the Taylor crimes was authored by someoneother than petitioner_and did not represent that petitioner had been or would soon be involved in the Taylor robbery or otherwise implicate him in that offense and (2) that Deputy Williams’ opinion that petitioner was associated with the crime through his association with alleged Crips and particularly Craig Ross was based onfalse information (Claim VI.H.) 1. The claim is timely. As with all other claims, respondent respondsto this subclaim with no independent or contradicting documentary evidence.In addition to the exhibits supporting the Taylor claims above, petitioner offers Exhibits 39-46. Exhibits 39 and 40 contain color photocopies ofthe photographs ofthe graffitiwhich were entered into evidenceat trial. These photocopies were madeafter present habeas counsel went to Los Angeles Superior Court to view the evidence. Trial counsel's files contained no photographsofgraffiti, therefore, these items were notavailable to Mr. Merwin. It was not until after present habeas counsel reviewed the evidence, in January 1997, thatthe error in reading “Do-or-Die” as Do-re-mi,” and therefore 86 the faulty basis for Deputy Williams’ incriminating “expert” opinion became apparent. It also then became more apparent that the actual author, Karl Owens, had to be found to determine why the words were written andthat a gang expert would be necessary to properly evaluate the meaning of the writing on the arcade wall as well as give credence to the declaration of Karl Owens. Petitioner did not receive funding from this Court with whichto retain a gang expert. On January 7, 1997,petitioner was permitted $2,000.00 for this purpose from the federal court. *° It was not until the federal court authorized this expenditure that petitioner hadthe resourcesto consult with a gang expert, to have the expert review the graffiti photo exhibits and relevantportions ofthetrial record, and to obtain from the expert a declaration setting forth his conclusions on topics relevantto this subclaim. Under this Court’s decision in Gallego, the facts and conclusions set forth in the October 8, 1997 declaration of expert Rouselle Ray Shepard (Exhibit 41, Guilt Phase Exhibits Vol. 2) was not information which petitioner should have unearthed at any earlier date. (In re Gallego, supra, 18 Cal.4th at 828(denial oftimely request for investigation funds “will support a determination that the petitioner not only did not actually know ofthe information earlier but also should not reasonably have known 53 Note, at the timepetitioner discovered the error in Deputy William’s opinion, counsel would have had, at most $2,000.00 for the entire guilt phase investigation. 87 ofthe information earlier”; emphasis in original).) Thus, subclaim VI.G wasfiled without substantial delay. (Robbins, supra, 18 Cal.4th at 787 (“Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, ofthe information offered in support ofthe claim andthelegalbasis for the claim.”).) Oncepetitioner learned that Li’] Drac was the moniker of Karl Owens, petitioner began the searchto find him. Petitioner had no other information than a name. Nodateofbirth, no address, and no social security number. * Petitioner asserts that there was no undue delayin filing this claim whichis attributable to time spent locating Mr. Owens. The remaining exhibits are juvenile records which were obtained by present habeas counsel when she requested copiesofpetitioner’s Department of Correction file. When it was determined that Deputy Williams was seriously wrong about both what waswritten on the wall and what it meant, the true needto evaluate Deputy +4 Petitioner did not have funds sufficient to conduct an investigation to find Mr. Owensuntil the federal court authorized funding in January, 1997. Thereafter, counsel formulated a plan based on allocated funding andretained an investigator to perform the investigative tasks. Working with a name only, my investigator found a Karl Owens in custody. I then corresponded with Mr. Owens, determined that he authored the graffiti and secured his declaration. Of course, once the fundinghad been secured, both may investigator and myselfwere engaged in numerous tasks. My investigator was given the task of attempting to locate and interview numerousguilt phase witnesses for whom we had no current addresses. 88 Williams’ expertise and each ofhis opinions — including but notlimite dto his opinionthat petitioner was a Raymond Avenue Crip who “frequently ” associated with Craig Ross during the summer preceding the murders-- that petiti oner’s duty to investigate this claim arose. Again, because each of the Taylor subclaims ar e interdependent and cumulatively join to strengthen petitioner’s main pointthattr ial counsel’s ineffective representation as to the Taylor crimes combined with th e ineffective representation as to the Jefferson, Hassan crimes and as to the penalty phase and to undermined the fairness and reliability of the guilt and penalty verdict s, all claims needed to befully investigated and investigation of some was continuing as the investigation of others was concluding. Petitioner incorporates here his timeliness arguments as to the previously discussed Taylor claims. This subclaim should be addressed on the merits for the same reasons that subclaim VI.C. should be deemed timely and addressed on the merits. 2. Trial counselfailed impeach Deputy William's testimony and opinions whichfollowed. Simply put, Deputy Williams either misread or misrepresented what was depicted in the photograph of the arcade graffiti. Either way, Williams erroneously read the words “Do or Die” as "do-re-me." Based entirely on this mistake, Williams premised his speculative, unfounded, and erroneous interpretation ofthe 89 meaning of "do-re-me" coupled with the dollar sign as meaning "to obtain moneyin a robbery or burglary.” (RT 2657, 2675.) By associating petitioner’s name with the graffiti and the fact that it was on a wall near Michael Taylor’s home, the conclusion that petitioner was involvedin an alleged gang conspiracy to rob and murder marijuana dealers andthus petitioner’s involvementin the Taylor robbery- murder and Hassan robbery-murders become obvious conclusionsfor the jury to reach. Eachofthese conclusions stemmed from a very basic and easily remedied 9 55 erroneous representation ofthe words “do-or-die. 3. Trial counsel’sfailure to adequately review the photograph andproperly object to it and to Williams’ opinion was prejudicial. The prejudicial nature of Williams’ misreading ofthe graffiti is clear. As this Court recognized, if one accepted Williams’ misreading “it could be inferred from the orafiti that defendant Championparticipated in the robbery and murder of MichaelTaylor...” (People v. Champion, supra., 9 Cal.4th at p. ) Further, this Court specifically noted that “the jury could properly consider the evidencethat defendant Champion was involvedin the murder ofMichael Taylor in deciding 5 Because the prosecutor madean offerofproofalerting the court and defense counsel that his expert was preparedto testify that “do-re-me” coupled with a dollar sign was an advertisement ofhaving successfully completed a robbery or robberies (RT 2631), this was a mistake that could have been remedied before Williams offered this erroneous and prejudicial opinion. 90 whetherheparticipated in the murders of Bobbyand Eric Hassan....” (People v. Champion, supra., 9 Cal.4th at p. 905) This was, of course, the very theory of the prosecution. In its Informal Response, respondentdoesnotattemptto dispute that Deputy Williams either made a mistake or misrepresented the words “do-or-die” as “do-re- me.” Neither does respondent dispute that the meaning of“do-or-die,” and therefore, the meaningofthe graffiti located on the wall near Michael Taylor’s home, has absolutely nothing to do with obtaining moneyin a robbery or burglary. Thus, respondenteffectively concedes that the writing on the arcade wall -- contrary to the impression created attrial -- in no way what-so-ever indicated, implied, advertised, or otherwise supported the proposition that petitioner was involvedin the Raymond AvenueCrips conspiracy to rob and murder marijuana dealers, the Taylor robbery-murderor, by association with the conspiracy and the Taylor crimes, the Hassan robbery-murders. *° 56 Respondentcites this Court as authority for a footnoted assertion that the words “do-re-me” were written on the wall. (Informal Response 54 fn. 28.) This Court did not have the photographsor Rouselle Shepard’s declaration whenit rendered the appellate opinionin this case. In preparing its opinion, this Court was provided with only Mr. Williams’ uncontroverted testimony concerning the writing on the wall. (People v. Champion, supra., 9 Cal.4th at p. 920.) Thus, respondent’s attempt to bootstrap the witness’ clearly erroneousreading ofthe graffiti which unquestionably says do-or-die to a finding by this Court mustbe rejected. 91 4. Trial counsel wasineffective in relying solely on the defense that petitioner did not author the graffiti Respondent choosesto ignore the obvious error in the very premise ofthe admissibility of Williams’ erroneous testimony and opinion andtrial counsel’s failure to remedy those errors, and simply asserts thattrial counsel was not ineffective. This is so it argues, because if “counsel convinced the jury that petitioner was not the authorofthe graffiti then it did not matter who wrote the graffiti or whatit said.” (Informal Responseat 56.) Eveniftrial counsel had persuadedthejury that petitioner did not author the graffiti it wasstill possible for the jury to reach the conclusion that the graffiti supported the prosecution’s assertion that petitioner was involvedin the alleged Raymond Avenue Crips conspiracy to rob and murder marijuana dealers, the Taylor robbery-murder and by association to the conspiracy and the Taylor crimes, the Hassan robbery-murders. Asan offer of proof, the prosecutor argued as follows: Ofthe greatest relevanceofall of these graffiti photographs is the one that says “treacherous” which is Mr. Champion’s mostrecent moniker, and says below it “Raymond Crips.” That photographis additionally relevant because it was taken acrossthe street from the victim Taylor’s residence, and that there is a dollar sign and the words “dore mi” next to writing. {| I don’t think it takes an expert to figure out, but the expert is preparedto testify that that would symbolize, in his expert opinion, an advertisementofhaving successfully completed a robbery or robberies. (RT 2631.) 92 As noted above, Ronnie Williams wascalled as an “expert” witness by the prosecutor notonly for the purpose of establishing petitioner’s involvementin the Taylor crimes but also for the purpose of establishing the prosecution’s theory that the Taylor and Hassan homicides were part of a conspiracy plan among Raymond Street Crips to rob and murder marijuana dealers. Williams described his experience in investigating gang incidents andstated that he was acquainted with “a gang known as the RaymondCrips.” (RT 2636) According to Williams, a minimum of 30 men were membersofthe Raymond Avenue Crips. These members were divided into factions. One ofthese factions wascalled the “OG’s.” (RT 2637-2638.) The OG’s were the leaders of the Raymond Avenue Crips. They tended to be more loyal to each other than to other Raymond Avenue Crips. Marcus Player, MichaelPlayer, Lavell Player, Evan Jerome Mallett, Craig Ross and petitioner were known by Williams as OG’s. (RT 2639-2642.) Williams saw all ofthe men named above during Novemberand December of 1980. Williams saw petitioner and Ross together and petitioner, Ross and Mallet together. (RT 2643-2644.) Williams testified that the significance ofgraffiti in general was to advertise one’s membership in a gang. (RT 2653.) Thegraffiti which proportedly advertised petitioner’s involvementin a robbery or burglary waslocated at a 45-degree angle 93 across the street from Michael Taylor’s residence. (RT 2658.) The obvious import ofthe prosecutor’s line of questioning wasto e stablish that petitioner was involved in a gang, a gang which wasinvolved in a conspiracy to rob and murder marijuanadealers andfinally, that the arcade graffiti wh ich allegedly was authored bypetitioner advertised his involvement in the actual r obbery and murder ofMichael Taylor.*’ Clearly, the jury was not required to fi nd that petitioner actually authored the graffiti in order to find that he was invol ved in the conspiracy and the murders. Thus, contrary to respondent’s conclusion, ev en had trial counsel convincedthe jury that petitioner did not author the graffiti the jury could nevertheless have relied upon the graffiti to find that in accordance wit h Williams’ opinion and the very theory ofthe prosecution’s case, that petit ioner was involved in a conspiracy to rob and murderdrugdealers Bobby Hassan a nd Michael Taylor and actually participated in both men’s deaths. Asnoted above, this Court expressedits opinion that the jury could find, b y the graffiti and Williams’ opinionthat petitioner was involved in the Taylo r crimes. 57 To this end, during his cross-examination of petitioner, the pros ecutor asked if petitioner knew what was meant by the dollar sign and do-re-mein the graffiti photograph. Petitioner respondedthat he had no idea what the two meant . The prosecutor then askedpetitioner if he had heard gang membersuse those t erms to mean they have “jacked” somebody. The prosecutor elicited that to “jack” mea nt to rob, thereby implying that petitioner had “jacked”or robbed somebody. (RT 30 68-3070.) 94 Based on his involvementin the Taylor crimes, the jury wasentitled, according to this Court, to find petitioner was involved in the Hassan crimes. Finally, ina footnote, respondentasserts that Karl Owens’ declaration that he recognized the writing “Lil Drac” as his own andbelieves he wrote other words, is not a convincing statement to establish that he in fact authored the word “do-or- die.” Respondent doesnotgive a reason whythisis so. 8 At this stage of the proceedings, in the absence of anyarticulated reason to doubt Mr. Owen’s declaration, the Court in deciding whether to issue an OSC, should assume the accuracy ofhis declaration and ofthe petition allegations based thereon. (/n re Duvall (1995) 9 Cal.4th 464, 474-475.) Respondent contendsthattrial counsel was not required to put on a gang defense expert if he could accomplish the sameresult through cross-examination. (Informal Responseat p. 56.) Certainly, trial counsel did not effectively cross- examine Deputy Williams regarding the factual representations he madeorthe opinions which he based on those factual representations. Foremost, trial counsel 8 For some unknown reason, respondentclaims that Karl Owens “effectively [admits] to committing a robbery or burglary. Foremost, because, Mr. Owenscorrectly reads what looks to him as his handwriting “do-or-die” and there is no evidencethat such phrase carries any such meaning, Mr. Owens makes no such admission. Respondent simply ignores the actualtext ofthe graffiti (Exhibit 40), the declaration of Rouselle Shephard (Exhibit 41), and the text of Mr. Owens’ declaration. (Exhibit 42.) 95 failed to point out the erroneous reading of the words “do-or- die” as “do-re-me.” Counselfailed to point out -- and indeed could not hav e done so without the assistance of a gang expert -- that the term “do-or-die” ha s no known connection to obtaining money in a robbery or burglary. (Exhibit 41.) 59 All further implications and conclusions that rested upon Williams’ erroneous factua l representations and irrelevant and inadmissible opinion as to the meaning ofthe words “do-re-me” should never have been beforethis jury. In failing to effectiv ely cross-examine Williams in the areas outlined above, counsel permitted the pro secution to effectively argue that petitioner had advertised his involvementin the conspiracy and its subsequent murders. In any event, trial counsel did not consider consulting with a ga ng expert. He reviewed the photographs ofthe graffiti, but did not notice that the words “do-or- die” and not “do-re-me” appeared. Trial counsel wastherefor e unprepared cross- examinethe expert offered by the prosecution on this central is sue. (Exhibit 47.) Respondentasserts that petitioner has failed to demonstrate tha t there was an expert available at the time ofthe trial who would have presente d the same opinions regarding the graffiti as petitioner’s expert Rouselle Shepard. Res pondent is wrong when it concludes that Mr. Shepard himselfwould not have been qual ified to render 59 Respondentdoesnot dispute, and thus apparently concedesthis po int. 96 the sameexpert opinionatthe timeoftrial as he did in his declaration. According to-the supplemental declaration of Rouselle Shepard, attached hereto as Exhibit 4A, Mr. Shepard began his tenure with the Los Angeles Po lice Department on February 22, 1972. Heretired from the department in 1993. Mr. Shepard wasfirst assigned to CRASH,or Community Resources AgainstStreet Hoodlums, whichis a gang detail, in 1975. He was assigned to the centralized CRASHunit in 1976 and remained with this unit his retirement from the force. Unlike Deputy Williams, who was a deputy with the Los Angeles County Sheriff's Department, Mr. Shepard was an officer with the Los Angeles Police Department. The Los Angeles Police Departmentdoesnot, and did notat the time ofMr. Williams’ testimony or tenure with the sheriff's department, have jurisdiction over the Los Angeles Court facilities. Therefore, Mr. Shepard, unlike Mr. Williams, would never havebeenassignedto in-court bailiff and other noncritical, non specialty duties. Unlike Mr. Williams, Mr. Shepard spent nearly his entire tenure in gangrelated assignments. At the time of petitioner’s trial, Mr. Shepard was a qualified gang expert whohadtestified numerous times. (Exhibit 3A.) © © Respondentfails to grasp the distinction of duties and assignments between police officers of the Los Angeles Police Department and sheriff's deputies of the Los Angeles County Sheriff's Department and erroneously refers to Mr. Shepard as a “deputy.”(See footnote 30.) Further, respondent’s own calculations about the length and nature of Mr. Shepard’s pre-1980 experience (see Informal Responseatp. 57, fn. 30), are 97 Accordingto the declaration ofKarl Owens, had he been contacted by trial counsel, he would havetestified that he was known as “Lil Drac” and that he had written his name on the wall. Mr. Owens would havetestified that the words “do- re-me” were not written on the wall and that the words “do-or-die” had no particular meaning. Mr. Owens believes it was he who wrote petitioner’s alleged moniker.* Finally, respondentasserts that even if a defense gang expert had been presented, the expert’s testimony would not have affected the admissibility of Williams’ testimony, only the weight attributed to it. (Informal Responseat p. 58.) This is not true. Only relevant evidence is admissible. (Evid. Code § 351.) Because the graffiti did not contain the words “do-re-me” Williams’ opinion as to the alleged meaning ofthose words wasirrelevant and for that reason inadmissible. The mere fact that petitioner’s alleged moniker appeared on a wall which waslocated near the Taylor home may have been admissible on the issue of gang membership but it was otherwise inadmissible as having no tendencyin reason to prove or disprove any based on nothing in thetrial, appellate, or habeas record. ‘1 Respondent does notcontest that simple comparisonofthe letters “R” and “C” reveal that the words “Drac” and “Trecherous Popeye Raymond Ave Crips” were all written by the same person. Neither does respondentcontest that on comparison of the handwriting between the “Crazy 8" graffiti and “Trecherous,”it is clear that two different people authored those words. Petitioner testified that he was not the author of the word “trecherous” and respondentsuggests no reason to reject Mr. Owens’ declaration that he authored the arcade graffiti — certainly not without an evidentiary hearing. 98 disputed fact that was of consequenceto the crimesfor whichpetitioner wastried. (See generally Evid. Code § 210.) Respondentdisagrees with petitioner’s assertion that Deputy Williams’ opinions and conclusions were impeachable on other grounds. Williams testified that he had seen petitioner during the summer months of 1980. There was no testimony to support respondent’s speculative conclusion that Williams could have seen petitioner during his April furlough (See Informal Responseatp. 58), and, in any event, April is not a summer month. Accordingto petitioner’s juvenile custody records, attached to the petition as Guilt Phase Exhibits 43-46, petitioner was housed at the Youth Training School during 1980. Petitioner attended Youth Training Schoolfrom February 15, 1979 to his release date on October 23, 1980. (Guilt Phase Exhibits Vol. 2, Exhibit 43.) The attached exhibits demonstrate that petitioner was in custody duringthe period oftime Williams claimedto have seen him at Helen Keller Park in the companyofalleged members ofthe Raymond AvenueCrips, and in particular, Craig Ross. According to the exhibits attached as number 43 through 46,petitioner wasin custody from April 1980 through his release in October 1980. Respondent speculates but presents no contradictory documentation that petitioner received any furloughs other than the April furlough. Respondent suggests no reason to conclude 99 other than that Williams’ testimony that he saw petitioner and Ross together at and around the park during the middle or summer of 1980 wasnottrue. The prejudicial impact of Williams’ testimony can not be overstated. It was crucial to the prosecution’s case against petitioner that he be firmly connected with the Raymond Avenue Crips. The prosecutorrelied onpetitioner’s alleged involvementin the Taylor crimes to persuade the jury of petitioner’s involvement in the Hassan killings. Further, the prosecutorrelied upon petitioner’s membership in the alleged conspiracyandparticipation in the Taylor crime to prove petitioner acted with the mens rea essential to capital murder. An offer of proofby the prosecutor demonstrates as much: It is our position that this mutual gangaffiliation, and particularly this affiliation in a gang within a gang,is the glue from which this conspiracy was formed and with whichit was held together. The evidence [Williams’ testimony] is necessary to show the depth of the association between the co- conspirators and evidence of association perseis, of course, relevant ina conspiracy case... These are, and it is out theory and always has been our theory, that all ofthese murders are OG Raymond Crip murders. (RT 2619- 2620.) Weretrial counsel prepared to demonstrate the falsity of Williams’ swom testimony that petitioner was seen in the company ofthe Player brothers, Mallet and most frequently Ross during the months immediately preceding the crimes, petitioner’s connection to any alleged conspiracy, his knowledge of any killings 100 prior to the Hassan killing, and his involvementin either the Taylor or Hassan crimes would have been severely undercut. Finally, had counsel consulted a gang expert, that expert would have rendered the opinion that it does not necessarily follow that if one memberofthe inner circle ofthe RaymondStreet Crips had knowledge ofa crime which had been committed by certain Crips all of membersofthat inner circle would have that knowledge even ifthey had notactually participated in the crime. As stated in Mr. Shepard’s declaration, it is not true that the each memberofthe innercircle ofthe Raymond Street Crips had actual knowledge ofthe criminalactivities of every other member ofthe innercircle ofthe gang. In the early 1980's manyofthe street gangs, including the Raymond AvenueCrips wereloosely organized groupings ofyoung men who sometimesparticipated in street crimes and who sometimes came together for non criminal purposes and motives, such as for protection and companionship. These men and boys werenotpart ofthe kind a sophisticated criminal enterprise we associate with street gangs today. (Exhibit 41, Guilt Phase Exhibits Vol. 2.) 5. Deputy Williams’ qualifications were objectionable Respondentdisagrees with petitioner’s claim that Williams’ qualifications were insufficient to qualify him as a gang expert under California Evidence Code section 720. Evidence Code section 720, subdivision (a), requires that the expert 101 possess special knowledge, skill, experience,training or education in the subject to which his testimony relates. Repeated observations of an event witho utinquiry, analysis, or experiment does not turn the mere observer into an expert. (People v. Hogan (1982) 31 Cal.3d 815, 852-853.) Nordoes a police officer’s street experience transform him into a behavioral scientist who can predict indi vidualor group behavior. (See People v. Sergill (1985) 138 Cal.App.3d 34.) Asarguedin the petition, at best, Williams participated in a numberofarrest s and had passing conversations and opportunities to observe alleged members of the RaymondStreet Crips. As such, he was not qualified to testify as a gang expert . Respondent attempts to explain trial counsel’s failure to object to Williams’ qualification by asserting thattrial counsel “believed Williams was in fact quali fied as an expert...” (Informal Responseat p. 60.) Judge Skyers made no such declaration. (See Guilt Phase Exhibits Vol. 3, Exhibit 47.) Moreover, as Williams’ alleged observations of various members of the Raymond Avenue Crips are susp ect, so too are his qualifications for testifying as an expert in the area of the gangs activities. Had trial counsel investigated petitioner’s and Ross’s whereabouts for the months preceding the crimes, he could have rendered a successful objection regarding the extent of Williams’ contact with the gang and demonstrated that the witness’s credibility and perhaps motiveto testify as he did were also suspect. 102 Further, the factual basis for Williams’ opinions regarding petitioner's alleged gang membership and moniker was similarly lacking. Williams admitted that he had no personal knowledgeofpetitioner’s membership in the gangat the time the crimes were committed. His opinion thatpetitioner was a gang memberin 1980 was based on allegedly having seen petitioner during the summerof 1980 in the company of others who Williams believed to be gang members and,as described above, these alleged observations could not have occurred. (RT 2644-2645, 2650-2651, 2665- 2668.) Contrary to respondent’s assertion, Williams possessed no “diverse and strong” foundation for his opinion. Followingthe rule ofPeople v. Gamez (1991) 235 Cal.App.3d 957, 966, cited by respondentas authority, the record reflects only that at the time hetestified (October 6, 1982) , Williams had been assigned to the street gang detail for a little over three years. That means thatat the time of his personalobservations ofthe (alleged) innercircle ofthe Raymond Avenue Crips (summer 1980), Williams had been assignedto the detail for perhaps one year.— California Evidence Code section 801, subdivision(a), limits expert opinion to subjects sufficiently beyond the range ofcommon experience that the opinion of ® In the summer of 1980, Mr. Shepard, by contrast, would have hadfive years of assignmentto an exclusively gang detail. (See Exhibit 4A.) 103 an expert is of assistance to the jury. Here, Williams’ opinion that appellant wasa gang memberwaspurely gratuitous, being based on nothing more than unsupported speculation. 6. Petitioner was prejudiced Respondentrelies solely on the opinion of this Court and concludes that petitioner has not suffered prejudice as a result of the deficient performance of counsel described under Claim VI.G.(Informal Responseat p.. 64-65.) Petitioner disagrees and respectfully requests this Court reconsiderits earlier ruling in light of the further evidence now available that because the ring taken from petitioner was not Bobby Hassan’s ring, (see Claim VII.A.) and therefore the only evidence of petitioner’s guilt is Elizabeth Moncrief’ s unreliable andinsufficient identification. Asstated in the petition, trial counsel’s failure to object to the graffiti as hearsay, to impeach Williams’ erroneous factual statementsthat petitioner was seen by him in the company ofRoss, Mallet, and the Player brothers in the months preceding the crimes and that the graffiti said “do-re-me,” counsel’s failure to consult and call a gang expert on behalfofpetitioner, to find and call the author of the graffiti, and to point out that, when compared, the writing on the two walls and that on the arcade wall appeared to be authored by different personsreflect seriously deficient performance by counsel. Trial counsel should have knownthat Williams 104 opinion that the graffiti on the wall across from the Taylor residence advertised petitioner’s involvementin a robbery would be argued by the prosecution to support its theory that petitioner was involved in a conspiracy to rob and murder marijuana dealers and actually participated in both the Hassan and Taylorcrimes, and further that the prosecution would use the erroneous, speculative and unfoundedopinions of Williams to establish that petitioner had the requisite mentalstate to find him guilty of capital murder. J, Defense counsel provided constitutionally ineffective assistance in failing to discover, present and argue evidence that the motive for the Taylorkilling was personalretribution, undercutting the prosecution theory that the killing waspart of, and motivated by, an ongoing conspiracy to rob and kill marijuana dealers. (Claim VI.H.) 1. Factual misrepresentation by respondent Respondentstates that the testimony ofNatasha Wrightis consistent with her pretrial statementto police. (Informal Responseat p. 65.) This is notso. In herpretrial statement, Ms. Wright stated that she saw a grey BuickElectra 225 drive up the alley. There were four Black menin the vehicle. The two menin the front seat got out ofthe car and went to the Taylor home. *’ They knocked on the door but no one answered. Ms. Wright knew that no one was homeasthe 8 Pretrial, Ms. Wright stated that she went into her homeandleft her door cracked so that she could watch the men.Attrial she testified that she sat on the porch withher daughter and watched the men. (RT 2364, 2366-2367.) 105 Taylor car was gone. Asthe twoturnedto leave one ofthem stated, “When we catch Michael we’re gonna kick his ass.” Both men seemed very angry. When the two men whowerestill seated in the car noticed that Ms. Wright was watching, one ofthem wentinto the front seat and drove the car from sight. Ms. Wright gave descriptions of the two men whohad gone to the doorand stated that the shorter of these two lookedlike the nephew of a neighbor, Otis Porter. (Exhibit 48, Guilt Phase Exhibits Vol. 3.) Contrary to respondent’s assertion, Ms. Wright’s trial testimony was almost entirely inconsistent with her earlier statement. — Attrial, Ms. Wright stated that each ofthe four men gotout ofthe vehicle. 64 Onestayedat the car, another stoodat the side ofthe apartment and two wentto the door. Whenoneofthe men knockedat the door, Cora Taylor called for Michael. Michael cameto the door but remained behind the screen. Ms. Wright overheard the men arguing over money. One man grabbed Michael, then they all left. (RT 2355-2356.) Ms. Wright identified one ofthe men who wentto the door as co-defendant Craig Ross. The man with Rossat the doorwastaller. This taller man was the man whograbbed Michael. (RT 2356.) * Note, this was not the vehicle associated with the Taylor homicide. 106 2. The claim is timely. As with all claims above, respondent respondsto this subclaim with no independentor contradicting documentary evidence.In addition to the exhibits supporting the Taylor claims above,petitioner offers Exhibits 48-51. Exhibits 48, 49, and 50 were containedin trial counsel’s file. Exhibit 51 is a portion ofthe Mallet transcripts. To reiterate, although investigative reports and other police generated documents containedin trial counsel’s file were in the possession ofMr. Merwin during his tenure as habeas counsel, Mr. Merwin wasnotallocated funds with whichto investigate the Taylor crimesuntil 8/24/94, less than two months before Mr. Merwin wasrequired to quit workon petitioner’s case. Before funding was secured, Mr. Merwin concentrated his efforts on penalty phase investigation, attempting to obtain confidential legalvisits, record review, formulation of possible claims and contacting possible expert assistance. After limited funds were approved, Mr. Merwin continued penalty phase background investigation. Present habeas counsel’s review of the appellate record and trial counsel’s file was completed in August of 1996. Having familiarized herself with case andset investigative priorities, counsel requested funding for investigation from both the state and federal courts in early November 1996. State funding was denied on 107 January 28, 1997. A few weeksearlier, on January 7, 1997, the federal court partially granted andpartially denied petitioner’s federal request. Once federal funding wasauthorized in January of 1997, petitioner could begin actual guilt phase investigating inearnest. As arguedabove,all ofthe Taylor subclaimsare interrelated areas of proof that petitioner was not involved in the Taylor crimes andtherefore support the larger claim thattrial counsel provided ineffective representation as to the Taylor crimes. Again, the fact that petitioner was not guilty ofthe Taylor crimes bears directly on _ his guilt of the Hassan crimes, the Jefferson crimes, the finding of special circumstances and imposition ofthe death penalty. Petitioner incorporates here his timeliness argumentsas to the previously discussed Taylor claims. This subclaim should be addressed on the merits for the same reasons that subclaim VI.C. should be deemedtimely and addressedon the merits. 3. Trial counsel’s failure to discover, present and argue evidencethatthe motivefor the Taylor killing was personalretribution thereby undercutting the prosecution theory thatthe killing was part of, and motivated by, an ongoing conspiracy to rob and kill marijuana dealers was not a reasonable tactical decision and was prejudicial. Respondent asserts once morethat the decision not to present evidence which indicated the motive for the Taylor crimes waspersonalretribution rather than a 108 conspiracy to rob and murder marijuana dealers was a reasonable tactical decision and in any event, not.prejudicial as petitioner was not charged or convicted of the Taylor crimes. (Informal Response at p. 68.) As with each subclaim referring to the Taylor crimes,petitioner restates that it was not reasonable to forgo presenting a defense to the Taylor crimes merely because petitioner had not been charged. To repeat, the prosecutor argued that ifpetitioner was guilty ofthe Taylor crimes he was necessarily guilty ofthe Hassan crimes, and by implication, ofthe Jefferson murder as well. Moreover, underthis theory, the Jefferson and Taylor crimes providedthe prosecutor’s principle evidence to supportafinding thatpetitioner possessed the mental state necessary to prove the Hassan special circumstances. Moreover, any tactical decision allegedly made by counsel wasnot reasonable. In making this claim, respondentrelies on counsel’s having made a “forceful” argument that Ms. Wright did not identify petitioner, therefore it argues, it was a reasonabletactical decision not to cross-examine Natasha Wrightor call Cynthia Wilte. However “forceful” counsel’s argument may or may not have been, respondentoverstatesthe lack of identification in Ms. Wright’s testimony. Attrial, the prosecutor pushed hard for an identification ofpetitioner. At no time did Ms. Wrightstate that she wascertain petitioner was not one of the four men, only that she didn’t “know one wayor the other” and that she was “not sure” 109 aboutpetitioner. (RT 2354, 2357.) ° Thus, regardless how forceful counsel's argument that there wasn’t a positive identification, the jury wasentitled to draw the opinion that petitioner may have beenpresent. A thorough cross-examination of Ms. Wright by impeaching her with herearlier inconsistent statements would have permitted the jury to question her credibility and any identification of petitioner, howeveruncertain that identification may have been. Respondentis wrongto assert that “leaving Wright’s identification alone” was a reasonableandtactical decision. (Informal Responseat p. 66.) This could not be so because, as with every aspect ofthe Taylor crimes, counsel performed no independentinvestigation regarding this incident. Mr. Skyersdid not interview Ms. Wright or Ms. Wilte. Mr. Skyers did not establish an alibi for petitioner on this day either. The bottom line is that counsel undertook no investigation into the Taylor crimes otherthan to read the police reports and visit the scene. Because counsel did not considerthe police reports relevant to petitioner’s involvement in the Hassan crimes. This was because counseldid notanticipate the prosecuting attorney would use evidence ofthe Taylor crimes to implicate petitioner in the Hassan crimes. (Exhibit 47, Guilt Phase Exhibits Vol. 3.) 65 In this respect, Natasha Wright’s testimony doesnotdiffer greatly from Mary Taylor’s. 110 Further, disclosure ofthe fact that two other identifiable persons may have threatened Michael Taylor wascrucial in countering Cora Taylor’s identification of petitioner. According to the documentation submitted with the petition, with some certainty ‘these witnesses identified two men, in addition to Craig Ross, a known perpetrator of the Taylor crimes, who had a grudge against Michael Taylor. “Binkey” was identified as one ofthe men whokilled Michael. Evan Malletis tied to the crimebythis earlier confrontation. (Exhibit 49, Guilt Phase Exhibits Vol. 3.) This witness gave a location for Binkey — helived across from the park and had more than a nick name or monikeras this man had a brother named La Mar Davis. (Exhibit 50, Guilt Phase Exhibits Vol. 3 and Exhibit 19, Guilt Phase Exhibits Vol. 1.) One man, who mayor maynot have been Ross, looked like the nephew of a neighbor, Otis Porter. (Exhibit 48, Guilt Phase Exhibits Vol. 3.) There is no indication in trial counsel’s files that either he or the police chose to follow up these leads. Thisis in spite ofthe fact that police called “Binkey” a “possible suspect.” (Exhibit 19, Guilt Phase Exhibits Vol. 1.) Use of all of the information could have cast further doubt on Cora Taylor’s identification of petitioner as well as the entire conspiracytheory, petitioner’s involvement in the alleged conspiracyandhis involvement in the Hassan crimes. 111 Il. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE HASSAN HOMICIDES Here, asin his petition, petitioner claims that the convictions and death sentence were unlawfully and unconstitutionally obtained in violation of petitioner’s rights under the First, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and underarticle I, sections 1, 7, 15, 16, 17, and 24 ofthe California Constitution and the statutory and decisional law of California. This is so because Mr. Champion wasdenied effective assistance of counsel by various errors and omissions ofhistrial counsel relating to the Hassan homicides, and as a result of those errors and omissions, also denied his rights to due processoflaw, to freedom ofassociation, to equal protection, to confrontation, and to a fair and reliable guilt and sentencing determination. But for counsel’s errors and omissions, which were not the product of any reasonable tactical decision, it is reasonably likely that the result ofthe proceedings would have been morefavorable to petitioner. Specific to this claim are eight detailed subclaims. These claims are as follows: (1) Trial counselfailed to discover, present and argue evidence that the 112 jewelry in petitioner’s possessionat the time ofhis arrest did not belong to Bobby Hassan. (2) Trial counselfailed to discover, present and argue evidence that petitioner at the time of the Hassan crimes wasat homeorpicking up his pay check. (3) Trial counsel failed to discover, present, and argue evidencethat the identifications by Elizabeth Moncriefwere so diverse and conflicting so as to be inherently unreliable and that the descriptions by Ms. Moncriefdid not match petitioner. (4) Trial counselfailed to introducereadily available and significantly exculpatory forensic evidence. (5) Trial counselfailed to request attorney, investigative, and expert support from the trial court, or utilize those funds authorized by the court prior to his appointment. (6) Trial counselfailed to properly object to the use of a secretly taped conversation betweenpetitioner and Evan Mallet both at pretrial stages and when used by the prosecution during its cross-examinationofpetitioner. (7) Trial counsel failed to properly object to the use of a secretly taped conversation betweenpetitioner and Craig Ross, and (8) Trial counselfailed to discover, present, and argue evidenceofsignificant 113 mental impairments from whichpetitioner was suffering as ofthe date of the Hassan crimes which would have precludedthe jury from finding petitioner, if present at the victims’ residence, possessedtheintent to kill required for special circumstance liability. Contrary to the assertion ofrespondent, these claims ofineffective assistance of counsel are not precluded by the procedural bar against unjustifiably delayed claims. Here, petitioner incorporates those portions of this Informal Reply, beginning at page two through page nineteen, and described as: ] A. General Reply to Respondent’s General Assertion ofUntimeliness and B. Miscarriageof Justice Exception to Timeliness Bar. Further, in so far as trial counsel had no valid, tactical reason for the errors and omissions complainedofandpetitioner was deprivedofa fair trial as a result of these errors and omissions, petitioner has established a prima facie caseforrelief. Attached to petitioner’s petition are 18 exhibits, © including the declaration oftrial counsel, now Los Angeles County Municipal Court Judge, RonaldK. Skyers (Exhibit 47), which individually and cumulatively represent reasonably available documentary evidence demonstrating that petitioner was not involved in the Hassan crimes andthat trial counsel’s failure to discover, present and argue evidence of 6 See Exhibits 47, 52-68. 114 petitioner’s lack of involvementwasnotthe result of a reasonable tactical decision. A. Correction of Respondent’s Erroneous FactualAllegations Regarding. This Claim Aswith the Taylor crimes, in stating the “facts” applicable to the Hassan crimes, respondent once morefails to cite to the record or exhibits. (Informal Responseat pp. 69-70.) Apparently, respondent culls manyofits “facts,” which consists primarily of Ms. Moncrief’s trial testimony, from previous briefing. (See Respondent’s Briefat pp. 4-8.) Unlike the appellate briefing, here respondentfails to acknowledge the myriad ofinconsistencies in Ms. Moncrief’s testimonyin all areas of her observations, including the description ofthe men, the car, their activities, and the time ofthe crime whichare all apparent from the record. Petitioner has demonstrated with the exhibits attached to his petition that Ms. Moncrief’s testimony is even more unbelievable than was acknowledgedby the prosecutorattrial. A full discussion ofMs. Moncrief’s testimony and many statementsis set out below. Respondentalso asserts that “when petitioner wasarrested, he was wearing oneofthe rings and the necklace taken from Bobby Hassan.” (Informal Response at p. 70.) This factual rendition goes further than respondent’s assertion in previous 115 briefing that the ring and necklace were identified by Merci Hassan (RB at p. 14), and necessarily ignorespetitioner’s proofat trial that the necklace was a mass producedpiece of costume jewelry and here that the ring was also mass produced, and most importantly, not Bobby Hassan’s. B. Trial counsel’s failure to investigate, discover, and present evidence in defense ofthe Hassan Crimes wasnot the product ofa reasonabletactical decision. To each subclaim, respondent contendsthat petitioner has not presented reasonably available documentary evidence demonstrating his counsel’s failures to discover, present and argue evidence in defense of the Hassan crimes wasnot a tactical decision. (Informal Responseat pp. 72, 78, 79, 82, 86, 88, 90, 93, 99.) Likeits responseto the Taylor claims,asto allegations oftrial counsel’s failure to raise evidentiary objections, respondentasserts that these omissions were either not error or were harmless or both. (Informal Responseat pp. 89, 91, 94.) Asto each subclaim below,petitioner will address the question of whether the errors and omissions oftrial counsel were based on reasonabletactical decision and whetherthese errors and omissions resulted in prejudice to petitioner. Generally, petitioner incorporates his argument above, in section II B, beginning with the first full paragraph of page 35 through the first paragraph ofpage 36. 116 C. Defense counsel provided constitutionally ineffective assistance in failing to discover, present and argue evidence that the jewelry in petitioner’s possessionat the time of his arrest did not belong to Bobby Hassan 1. This subclaim is not untimely. In addition to thetrial transcripts ofPeople v. Champion Los Angeles County Superior Court case number A365075,petitioner relies on Exhibits 55, 56, 57, 58, 59, 60, 61, and Judge Skyers declaration, exhibit 47. Exhibits 55, 56, and 58 (Sue Rose Winbushinvestigative report, the ring receipt and the ring drawing) were available in trial counsel’s files. The remaining exhibits (the declarations of Elridge Moore, Walter Winbush, Mike Reese, and the Best Catalog page), were obtained through the efforts of current habeas counsel and her investigative team. Aswasthe case with investigation ofthe Taylor claims, present habeas counsel’s review ofthe appellate record and trial counsel’s file was completed in August of 1996. Having familiarized herselfwith case and set investigative priorities, counsel requested funding for investigation from both the state and federal courts in early November 1996. State funding was denied on January 28, 1997. A few weeksearlier, on January 7, 1997, the federal court partially granted and partially denied petitioner’s funding request. With funds provided by the federal court, petitioner was able to hire investigators in Los Angeles to search for and 117 interview witnesses and obtain declarations. °’ It was through the efforts ofthese investigators that Walter and Sue Winbush werelocated, that the size ofthe ring seized from petitioner was determined (Exhibit 60), that a declaration from jeweler MikeReese wasobtained confirming that the ring seized from petitioner was not Bobby Hassan’s ring (Exhibit 59), and that a declaration was obtained from Mr. Winbush confirming that his son Raymond-- shortly before Raymond’s death - had given petitioner a ring identical to the one seized from petitioner at the time of petitioner’s arrest (Exhibits 60 and 61). The ring size was measured in February 1997 (Exhibit 60); jeweler Mike Reese was contacted in March 1997, and provided his declaration September 5, 1997 (Exhibit 59); and Mr. Winbush waslocated and contacted in September 1997 and providedhis declaration in October 1997 (Exhibits 60 and 61). The petition was filed November 5, 1997. Subclaim VILA wasthus filed without substantial delay. Further, even had it been possible to obtain the declarations and submitthis subclaim substantially sooner, it would have been appropriate to delayfiling in light * Prior to the authorization of federal funding, petitioner had approximately $800.00 with which to investigate the entirety of the Hassan claims. A good dealoftime, effort, and expense was devoted to various aspects of investigating the Hassan crimes, including attempting to locate Elizabeth Moncrief, Merci Hassan, and Bobby Hassan Jr. - - all essential witnesses -- and none ofwhom counsel wasable to locate priorto filing the Petition. 118 of ongoing investigation into other potentially meritorious claims which required additional investigation until close to the November 1997 filing date in orderto set forth a prima facie case for relief. (In re Robbins, supra, 18 Cal.4th at 780, 805- 806 (in the interest of avoiding piecemeallitigation, a claim as to which a prima facie case for relief is in hand may properly be withheld if petitioner is engaged in an ongoing investigation of another potentially meritorious habeas claim as to which a prima facie case can’t be stated without additional investigation); Jn re Clark, supra, 5 Cal.4th at 781, 784 (same)). See, in particular, the discussions concerning the ongoing investigations into claims addressing counsel’s ineffective assistance (a) in failing to discover and present evidence that petitioner could not have been involved and that the perpetrators were four other young men (subclaims VI.A and VIB discussed, above), (b) in failing to challenge the prosecution’s graffiti and gang expert testimony (Claim VI.G; discussed above), (c) in failing to discover and present mental impairment evidence that would have undermined the prosecutor’s special circumstance mens rea theory (Claim VII.H, discussed below), and (d) in failing to discover and present substantial mitigating evidence at petitioner’s penalty phasetrial (Claim IX.C, discussed below). Habeas counsel had to coordinate investigation in all ofthese areas, which added to the time required to complete the necessary investigative work and obtain the required supporting documentation. 119 Finally, for the reasons set forth at greater length in Part I.B of this informal reply, if subclaim VII.A were deemed untimelyit is a claim which should be reviewed on the merits pursuant to this Court’s miscarriage ofjustice exceptions to the timeliness bar. Subclaim VII.A, particularly when viewed in combination with the other subclaims of claim VII and the various subclaims of claims VI (Taylor)and VIII (Jefferson), undermines the prosecution case that petitioner was involved in the Hassan homicides, and (2) dramatically alters (in combination with claim [X.C) the grossly misleading profile ofpetitioner presented to his sentencing jury. Accordingly,for all ofthe foregoing reasons, this subclaim should be addressed on the merits. 2. Counsel’sfailings were not the product ofa reasonable andtactical decisiqn. As above, respondent respondsto this subclaim with no independent or contradicting documentary evidence. Respondent misunderstandsthe thrust ofpetitioner’s claim. Respondent defendstrial counsel for failing to call Sue Winbushto testify about the ring her brother Raymond Winbushgavepetitioner. (Informal Response at pp.72-73), but petitioner does not fault counsel for not calling Sue Winbush concerning the ring. | Rather, petitioner faults counselfor failing to demonstrate the ring in evidence was 120 not Bobby Hassan’s-- becauseit is the wrong size -- andforfailing to call Walter Winbush, Raymond’s father. Although trial counsel spoke with Sue Winbush, he did notinterview Sue’s (and Raymond’s) father. Years after his son’s death, Walter Winbushhas a specific memory ofthe ring given to Mr. Champion whichis tied directly to the painful memory ofhis son’s death. (Exhibit 61, Guilt Phase Exhibits Vol. 3.) Itis particularly telling that when Mr. Winbush was shown a copy ofthe Best catalog page, without hesitation and without any prompting, Mr. Winbush pointed directly to the picture of the ring which matches the description ofthe ring Bobby Hassan had ordered, as the ring which his son Raymondhad given to Steve Champion. Mr. Winbushpicked the ring from a photograph containing twenty different styles of rings. (Exhibit 60, Guilt Phase Exhibits Vol. 3.) Any inconsistency, should they exist, between the statements ofpetitioner, Walter Winbush, and Rita Championarenotsignificant. Although Rita Champion testified that she had seen her brother wear Raymond’sring “about four ago, something like that,” Ms. Championtestified in mid-October of 1982. As Raymond Winbushgave petitioner the ring in April of 1980 — nearly three years before the date ofMs. Champion’s testimony, Ms. Champions’ testimonyis not significantly inconsistent. 121 Attrial, petitioner testified that Raymond Winbushgave him thering in April of 1980, on Easter Sunday -- two weeks before Raymond Winbush waskilled. (RT 3027, 3029.) Contrary to respondent’s claim, petitioner did nottestify that Raymond Winbush gave him the ring to hold as “Raymond wasgoing offto CYA.” This is trial counsel’s recollection ofwhat petitioner said. Raymond Winbush was shot to death at his home on April 15, 1980. Clearly, two weeks earlier he was not going off to CYA. ™ Petitioner’s trial testimony is consistent with the recollection of his sister Rita and Walter Winbush. Respondentasserts that any further evidence on the issue of whosering and charm petitioner was wearingat the time ofhis arrest is “cumulative.” (Informal Responseat p.73-74.) This is nonsense, unless of course, respondent would like to stipulate that the ring wasn’t Bobby Hassan’s. Walter Winbush’s memory wasvery precise and his testimony would have been compelling given the timing of his son’s death. Documentation which supported Raymond’s date of death and when, if ever, he was housedat the California Youth Authority, as well as other supporting documentation could have °° Respondent offers no documentary evidence to support its assertion that Raymond Winbushwashousedat the California Youth Authority at any time during April of 1980, or in custody at any institution after the April 4, 1980 date Walter Winbushidentifies as the date Raymond wasreleased from prison. (Informal Responseat p. 73.) (Exhibit 61, Guilt Phase Exhibits Vol. 3.) 122 been gathered. Moreover, the evidence asto the size ofthe ring is conclusive. Respondent’s effort to suggest that measurementofring is “suspect” because neither counsel nor her investigator is a jeweler is disingenuous. Measuringa ring with a conicalring sizer is a very straightforward, simple matter. Respondent offers no contrary evidence; and certainly for purposes ofdetermining whether or not to issue an order to show cause, this Court must assumethe truth ofwhatis set forth in the petition and supported bypetitioner’s Exhibits 56, 59-61, i.e., that the ring found in petitioner’s possessionat the time of his arrest was not the same size as the ring taken from Mr. Hassan. As the Court states in People v. Duvall (1995) 9 Cal.4th 464, 4774-475, a court receiving a habeaspetition "evaluates it by asking whether, assuming the petition's factual allegations are true, the petitioner would beentitled to relief? .. . If _.. the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an OSC." Petitioner’s exhibits are certainly sufficient to establish “the bona fides ofthe allegations" (In re Fields (1990) 51 Cal.3d 1063, 1070 n.2). To repeat: The ring foundin petitioner’s possessionat the time ofhis arrest wasn’t the victim’sring. 123 Finally, respondent suggests that evenifthe ring foundin petitioner’s possession at the time ofhis arrest was not Bobby Hassan’s ring, it doesn’t matter because petitioner does not, according to respondent, attempt to address the question of ownership ofthe charm. (Informal Response at pp.74-75.) Respondent forgets that there wastrial evidence that the charm was a mass produced item which wasnotat all unique. Moreover, what the prosecutorattrial relied upon was petitioner’s alleged possession of two mass produced items matching the twothat were allegedly taken from Bobby Hassanatthe time ofthe homicide. This, according to the prosecutor, was too muchofa coincidence to have an innocent explanation. In his closing argument, the prosecutorstressed: “Now,ifyou were to ask meis there one single piece of evidence against Mr. Champion on which I can say yes, based on this alone beyond a reasonable doubt Mr. Championis guilty, I would say a qualified yesto this. What I mean bya qualified yes is that the mere fact that somebody winds up in possession a monthlater ofjewelry belonging to a murdervictim, ifyou don’t have any other evidencein the case that almost proves him guilty, butit does not quite beyond a reasonable doubt because there are other possible explanations for how that person acquired the jewelry.... [The defense argues that the ring] is not a one of a kind item and the charm is not a one ofa kind item. Agreed. No doubt that somebody else in the world hasa ring just like the one in People’s 37. No doubt that somebodyelse in the world has a King of 124 Heart thing just like that, People’s 37,thelittle medallion. But, although neither of those items are by themselvesone ofa kind, as a combination they are, I submit to you, a one of a kind combination. The chancesthat there are two separate people in the world each ofwhom possesses both ofthose items at the same time, in other words, one person whohasthat identical ring and that identical charm and another person who has a ring anda charm identical to both ofthose, are absolutely -- the probability ofthat are absolutely minuscule.” (RT3 178-3180.) The coincidencelosesit s incriminating significance once evidence is adduced showing that one of the items — the ring -- clearly wasn’t Bobby Hassan’s. D. Defense counsel provided constitutionally ineffective assistancein failing to discover, present and argue evidence that at the time ofthe Hassan crimes, petitioner was at home or picking up his paycheck. (Claim VII.B) 1. This claim is timely. Eachofthe exhibits which support this subclaim were available from trial counsel’s file. Although the investigative reports containedin trial counsel’s file were in the possession ofMr. Merwin during his tenure as habeas counsel, as discussed in reference to the Hassan claims, Mr. Merwin wasallocated funds with whichto investigate the Taylor crimes but, this money was not approveduntil August 24, 1994 just seven weeks before Mr. Merwin took a job with the Orange County Public Defenders office and then, because ofjob and recurrent health problems, became unable to do further work on the petition. (Petition at pp. 7-8, 125 Exhibit IA.) Until funding was secured, Mr. Merwin concentratedhis efforts on penalty phase investigation, attempting to obtain confidential legal visits, record review, formulation ofpossible claims and contacting possible expert assistance. Mr. Merwin acted quite reasonably in notfiling a petition before being replaced. This is so because Mr. Merwin couldn’t finish the investigation. New counsel had to begin by reviewingthe entire appellate record, thetrial file, police reports, and related records from the court proceedings of other alleged participants before present counsel could reach her ownjudgment--- as she was ethically obligated to do — asto therelative strength ofpotential claims, how best to pursue the investigation, which claims to present, what further documentary support and how, with the available funding, to perform each ofthese task effectively. Further, the subclaim that petitioner was at homeor picking up his paycheck at the time of the Hassan crimes does not stand alone. All ofthe subclaims relating to the Hassan crimes, the Taylor crimes and the Jefferson crimes are interrelated and dependent on eachother, because the prosecution relied on the Taylor and Jefferson incidents to prove petitioner guilt ofthe Hassankillings and to support a finding of the mens rea required forthe finding of special circumstances. At any earlier date when current habeas counsel could have submitted this subclaim, it was appropriate to delayfiling in light of ongoing investigation into 126 other potentially meritorious claims which required additional investigation until close to the November 1997filing date in order to set forth a primafacie case for relief. (In re Robbins, supra, 18 Cal.4th at 780, 805-806.) This encompassed ongoing investigationinto claims relating to counsel’s ineffectiveness(a) in failing to discover and present evidence thatpetitioner could not have been involved in the Taylor crimes and that the perpetrators were four other young men (subclaims VLA and VL.Bdiscussed above), (b) in failing to challenge the prosecution’s graffiti and gang expert testimony (subclaim VI.G; discussed above), (c)in failing to discover and present evidencethat the jewelry in petitioner’s possession at the time ofhis arrest did not belong to Bobby Hassan (subclaim VII.A, discussed above), (d) in failing to discover and present mental impairment evidencethat would have undermined the prosecutor’s special circumstance mens rea theory (Claim VII.H, discussed below), and(e)in failing to discover and present substantial mitigating evidenceatpetitioner’s penalty phasetrial (subclaim IX.C,discussed below). Further, in light ofthe rarity of this Court’s issuance of orders to show cause, counsel doubtedthat the Court would deem claim VII.B standing alone, without presentation ofthe other related claims sufficient to state a prima facie case for relief, and accordingly for that reason as well counsel was warranted in delaying presentation of this subclaim. (Jn re Robbins, supra, 18 Cal.4th at 806-807 n. 29 127 (majority), and 820-821(Justice Kennard, concurring and dissenting (counsel may properly delayfiling claims or subclaims which, standing alone, maybeinsufficient to support a prima facie case until such time as the related claims or subclaims to which the withheld claims can be joined to support a prima facie case are ready to be filed). Finally, as explained above in connection with the discussion ofthe timeliness of Subclaim VII.A each ofthe subclaims of Claim VII, particularly when viewed collectively and in combination with Claims VI (Taylor claims) and VII (Jefferson claims), should be reviewed on the merits pursuant to this Court’s miscarriage ofjustice exceptions to the timeliness bar even if deemed untimely. 2. Trial counsel’sfailure to discover andpresent evidence was not the product ofa reasonable tactical decision. In petitioner’s defense, trial counsel attempted to establish an alibi for petitioner for the time ofthe Hassan crimes. Cumulatively, the witnessestestified that on the day Bobby and Eric Hassan were killed petitioner was home, that he spent some time on the telephone with Sue Winbush, and then went with his brother to pick up his paycheck. In his petition, petitioner claims that through incomplete investigation trial counsel failed to present other evidence to support the testimony he offered to establish that petitioner had an alibi for the Hassan killings. This is so becausetrial counsel madenoeffort to obtain either the employer’s list which would 128 have contained petitioner’s signature, and perhaps the signatures of others who too mightrecall the time they had gone to pick up their paychecksorpetitioner’s telephone recordsso that the time at which eachofpetitioner’s activities for the day had taken place could have been supported by documentation and thereby corroborate petitioner’s testimony that he could not have committed the Hassan crimes becauseat the time ofthe Hassan’ deaths he waseither at home on the phone or going to get his paycheck.(Petition at pp. 80-81.) ” Respondentclaims that counsel was correct not to attempt to bolster the oral testimony of witnesses with documentary evidence because “such records could have been detrimentalto petitioner’s defense.” (Informal Responseat p. 77.) This is nonsense and not supported by any independent documentation offered by respondent to counter this claim. Onreview,as with his otherfailings, trial counsel recognizes that the alibi defense he offered was not strong, and that he had the responsibility to attempt to discover and then produce evidenceto support the testimony ofpetitioner’s family members andfriend. (Exhibit 47, Guilt Phase Exhibit Vol. 3.) ® In his closing argument, the prosecutor accepted, for the sake of argument, that petitioner and his brother went to pick up petitioner’s paycheck on the day ofthe Hassan crimes, and faultedtrial counsel for failing to demonstrate with any certainty that doing so necessarily meantthat petitioner was not involvedin the killings. (RT 3391-3393.) 129 E. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence that Elizabeth Moncrief’s statements concerning the events she witnessed, the physical appearance ofthe suspects, and her own actions were so diverse and conflictingso as to be inherently unreliable and that the descriptions by Ms. Moncrief do not match petitioner (Claim VHI.C) 1. This subclaim is not untimely In addition to the timeliness arguments which have been previously alleged specifically as to the Hassan claims and generally to the petition as a whole, this | subclaim has been timely presented for additional reasons. Although many ofthe exhibits which support this subclaim are containedin the appellate transcripts and/or trial counsel’s files, at least one ofthese exhibits, Exhibit 64, was only discovered after the Los Angeles County District Attorney complied with present habeas counsel’s Freedom ofInformation Act request for records. In addition, at the time present habeas counsel was appointed, only $800.00 wasavailable for investigation into the Hassan crimes. One priority was to attempt to locate Elizabeth Moncrief. Petitioner spent a significant amount oftime attemptingto locate this witness, but to date, has been unsuccessful. Petitioner incorporateshere his timeliness arguments as to subclaim VII.B. Those arguments applyfully to this subclaim, and for the reasons stated in these arguments, this subclaim is timely, and even if it were deemed untimely, should be 130 addressed on the merits. 2. Respondent’sfactual rendition omits the sequenceofconflicting statements. Respondent devotes a mere two paragraphs to Ms. Moncrief’s pretrial identifications andtrial testimony. (Informal Responseat pp. 78-79.) Respondent’s summarization is inadequate. In order to give the reader a true flavor ofthe incredible identification by Ms. Moncrief, it is necessary to fully recite the witness’s pretrial and trial statements. Ms. Moncrieftestified at a pretrial hearing held on February 27, 1981, that sometimeshortly after noon on December12, 1980, the day Bobby and Eric Hassan were killed, she saw a car in whichthe four alleged perpetrators arrived on the scene. She testified that at the time she was watching the Youngandthe Restless (CT 19), which began at 12:00 noonand endedat 1:00 p.m. At subsequent hearings Ms. Moncriefalternately described the car as a "shiny light yellow" Buick Electra 225 (RT 2056), and a "gold or cream" Cadillac. (RT 1716.) She previously had claimed the car was a Buick Riviera (RT 2067), and later was sure that it was a Chrysler. (RT 2067.) Ms. Moncriefcould notcredibly describe the color ofthe car. rt tt At various times she claimed the car was "brown," "white and yellow," "yellow," and "light goldish." (RT 1839.) 131 Attrial, Ms. Moncrieftestified that four African American men arrived in the car. Ms. Moncrieftestified that she saw two men go into the house through the front door, after what she believed to be a struggle. The other two men, who had been seated in the front seat of the car, followed shortly thereafter. (RT 1721- 1722.) When questioned bypolice, petitioner’s arrest, Ms. Moncriefpositively identified Benjamin Brownasthe individual she later identified as petitioner. She further identified Clarence Reed as the driver ofthe car and identified Mr. Brown's car as the car she had seen at the Hassan residence on the day the Hassans were killed. (RT 1825.) Mr. Brown and Mr. Reed were two young African American men who,perhapsnotso coincidentally, were involved in an armed robbery the day after the Hassan killings. Mr. Reed waskilled during this incident. (RT 2061.) Mr. Brown generally matched Ms. Moncrief’s description of the Hassan perpetrators as he had chippedfront teeth and was closein heightto all ofthe individual described by Ms. Moncriefto police.” (RT 1991-1992, 2095-2096.) Mr. Brown wasalso identified by Hassan's wife, Merci Hassan, as an individual who had purchased marijuana from Hassan three weeksprior to the homicide. (RT 2058-2059.) The ® Benjamin Brown is believed to be 5'9, weighing 165 lbs. Clarence Reed was 5'4 and weighed 130ibs. 132 property report for Mr. Reed -- prepared in connection with Brown's arrest for the armed robbery, which too occurred in South Central Los Angeles -- included a gun fitting the description ofthe gun usedin the Hassan killings, two gold chains, such as those claimed to have been taken from Hassan, and dark gloves such as Ms. Moncriefclaimed to have seen petitioner wearing when he exited the Hassan residence. (RT 1726, 1803, 2405-2407, 2994-2995.) Ms. Moncrief and Mr. Brown resided on the samestreet. (RT 1797.) The inconsistencies in Ms. Moncrief's trial testimony were so damaging to her credibility that if given her testimony only, the jury could not have returned a guilty verdict against petitioner. The prosecutor concededthis very fact to the jury: "There is no doubtthat there are just too many problems with her testimony that you [could not convict petitioner] if she were standing alone and there were no other evidence or witnesses in the case." (RT 3172.) Nonetheless, the prosecutor did state that in his view “she is a credible witness”and that “she has to be correct.” (RT 3172.) Unfortunately, Ms. Moncriefwas neverfully impeached by her numerous conflicting pretrial statements. Due to the ineffective cross-examination by trial counsel, the jury did not know the true extent ofMs. Moncrief’s confusion. Further evidence ofMs. Moncrief’s incredibly faulty memory is the fact that she testified that she was certain that she had been employed for “almost a year.” 133 (RT 1765.) In fact, as testified to by her patient’s daughter Ms. Moncrief began her employment in November, 1980. (RT 2787.) But, Ms. Moncriefwas never cross-examined aboutthis striking disparity. 7! According to hertrial testimony, on the dayofthe killing, Ms. Moncrieflast saw Bobbyalive at 11:15 a.m. Ms. Moncrief and Hassan had a conversation outside at that time. (RT 1713-1714.) When she returned from thestore five minutes later, Ms. Moncrief saw Hassan's carin the driveway. She wentinto her employer's house and saw people at Bobby Hassan's house. Ms. Moncriefalso saw a car parked in front ofwhere she worked. There were four men in the car. (RT 1720.) The men were African American. Unlike herpretrial testimony, here, the car arrived before noon rather than after and the car was not seen by Ms. Moncriefasit arrived. Two rather than four men were inside of the car. Thereafter, Ms. Moncriefwent to get her patient lunch. (RT 1714.) By this time the car was empty. The next thing she saw was "four guys leaving -- one at a time -- from Bobby's front door." Twoofthe men were the two who she had seen in the car earlier. All four men were carrying something. One had a pink pillow case and the others had shopping bags. The fourth individual was wearing gloves 7 According to undated handwritten notes contained in the district attorneyfiles, (Exhibit 62), Ms. Moncrief had been employed for 3 /% weeks prior to Bobby Hassan's killing. 134 and covered his face when a car drove by. (RT 1723-1727.) In an undated report (Exhibit 62), Ms. Moncrief described the four men as follows: Number1 -- 5'6-5'7 small, 145 lbs. 20-25 years old, processed, superfly hair style, dark complected, and wearing a plaid Pendelton-type coat, blue shirt, dark pants. Number1 carried the pillow case and wasthe driver ofthe vehicle.” This man was seen by Ms. Moncriefat the location on the Monday or Tuesday preceding the crimes. Number2 -- smaller than the driver, approximately 5'5 and weighing 135 Ib. This man wore a dark jacket, shirt, hat, dark pants and suspenders. He was dark complected, had hair protruding from undera hat and had a scar on the upper bridge of his nose.” Number3 -- 5'7 and weighing 135 to 140 pounds. He was 20to 25yearsold,light complected, wearing natural hair. This man was bowlegged. He wore a plaid shirt and dark pants and carried a paper sack.” Number4 -- wore gloves, a wool jacket, a beanie, and dark shoes. He was dark Ms. Moncrief later describes this individual as the front seat passenger. (RT A- 146.) 2 This man is described as a back seat passenger. (RT A-146.) 74 This man is later described as the driver. (RT A-147.) 135 complected, had long hair, and a long nose. This man covered his face when a car passed and carried a paper sack. This man wasalso previously seenat the residence. (Exhibit 62 -- Undated Handwritten Report.) In a December16, 1980, statement taken by Officers Dorman and Crews, (Exhibit 63), Ms. Moncriefadded to the above statement that Number1 hadajheri curl, and that Number 4 was number2 of a photographic spread.” Number 4 was now described as "husky," with a "broken front tooth." Ms. Moncrief is consistent in that the second guy out of Bobby’s house had a scar on the bridgeof his nose. (Exhibit 63 -- 12/16/80 Statement ofElizabeth Moncrief.) In a typed statement dated January 9, 1981, (Exhibit 64), Ms. Moncriefmade some additional and significant changes to herinitial identifications. Ms. Moncrief added that Number1 had a light mustache and big, open eyes. Number2 also worea light mustache. In this version it was now Number3 whowasdescribed as having not only a scar on the bridge of his nose butalso a little bit of a scar running on to the left side of his face. Number 3 rather than number 4 had chipped front upper teeth. He was 5'5-5'7, 135-165, solidly built with long hair and thick lips. Ms. Moncriefnow described Number4 as 5-5-5-7, 145, solidly built, 20-25 years old. Number4 rather than Number3 was bowlegged with > Later identified as Benjamin Brown 136 natural long hair coming from underhis cap, side burns andlighthair onhis face. (Exhibit 64 -- Typed Statement re: Hassan Suspects.) On January 9, 1981, petitioner was arrested. The investigator's report indicates the following description ofpetitioner at the time ofhis arrest. 6'1, 183 Ibs, and 18 years old. Petitioner had a light scar on his cheek andlip, thick lips, protruding and irregular upper teeth. Petitioner worehis hair in a bushy afro. His ears were described as small and close to the head. Petitioner hada left earring. He wore a thin mustache and goatee. (Exhibit 65 -- Police Report.) On February 27, 1981, at petitioner's preliminary examination, Ms. Moncrief gave the following testimony. In this version it was after Ms. Moncrief returned from the store, rather than before sheleft, that she had a conversation with Bobby Hassan. (CT 16, 27.) As Ms. Moncriefwas fixing her patient’s lunch, she realized that she had forgotten something in her car. Here, Ms. Moncrief added that she went back downstairs and out to her car. (CT 16-17.) It was after Ms. Moncriefreturned to her car that she first noticed the suspect car. (Rather than when she was makingor eating lunch.) The car was notthere before she went to her own car. At preliminary hearing, Ms. Moncrief stated that she saw four men, rather than two men, in the car. The car was parked across the street from the Hassan residence, behind a tree near the house where she worked. 137 (CT 17, 28.) In this version, Ms. Moncrief purposely walked past the car so that she could see what the men were doing. (CT 33.) Later, when Ms. Moncrief wasfixing her patient's lunch, she saw two men walk across the street and go to the Hassan house. One ofthese men wentto the front door and knocked. There wasno struggle. Someone cameto the door. Ms. Moncrief saw the door close. The men rushed around the house. Ten or fifteen minutes later, Ms. Moncrief saw "the curtain go back." (RT 18.) It was then that two other guys got out ofthe car. These men entered the home through the front door. (CT 18-19.) Allegedly, petitioner was one ofthe first two mento gointo the house. (CT 22.) He and "a light guy" werethe first to go inside. (CT 22.) Ms. Moncrief saw the curtain go back again three times, then saw a man come out with a pillow case. Another came out with a bag a few secondslater. Another came out with a bag about two secondslater, then petitioner allegedly came out last and carrying a bag. (CT 19-20.) Ms. Moncriefput the time of this man’s exit at 12:25 p.m. (CT 20.)” Whena green Mercedes came downthestreet, the man Moncriefidentified as petitioner put his hand over his face and turned toward the window Ms. Moncrief 76 Please recall that the trip from Eric Hassan’s school to the Hassan home took approximately 10 minutes and Eric’s last class ended at 12:01. (RT 1586, 3005.) 138 waslooking out of. Ms. Moncrief saw a scar on his face and a "brokentooth." (CT 20.) This man wore browngloves. (CT 21.) On cross-examination Ms. Moncrief addedthat petitioner had on a big jacket. (CT 25.) He was "wider" and "heavier" then the other men. Ms. Moncriefdid not describe him a taller. (CT 25.) Ms. Moncriefdid nottestify at Mr. Ross' preliminary examination. (CT 70.) In August 1981, at the hearing on a pretrial motion Ms. Moncrieftestified as follows: On January 9, 1981, Ms. Moncriefwas showna series of six photographs. Ms. Moncriefwas unable to identify anyone. (RT A-109.) A few dayslater, Ms. Moncriefwaspresented with a live line-up at which she identified petitioner. (RT A-111.) Ms. Moncriefnow stated that she had seen petitioner several times before the date ofthe incident. (RT A-112.) Ms. Moncriefgave the following descriptions: She describedthe driver as a youngblack male, with light skin, long hair, and wearing a hunting jacket. (RT A-117.) The front passenger hadlong hair in a jheri curl of some kind, and was very rough looking. (RT A-117.) Shetestified that the two men in the backseat got out first. (RT A-118.) The man seated in the back seat behind the passenger was described as 5'5, 165 Ib., dark, beanie, dark clothes, very thick lips, a scar across his face on theleft side and a chipped tooth. (RT A-116-A-117.) The other back seat passenger was 139 identified as wearing braids and suspenders, 5'5-5'6, 160, and very rugged looking. (RT A-118.) Ms. Moncrief saw the men when she went downto retrieve something from her car. She went outside to see what they were doing because they had been therefor so long she became concerned. (RT A-121.) At this juncture, Ms. Moncriefclaimed to come outside two, rather than one additional times. Thefirst time she wentout all four were sitting in the car. When she went out the second time, there were only two menin the car. (RT A-122.) Ms. Moncrief explained that she saw the car after she had gone out and had seen the four men in the car, then she went inside. As she wassitting and having (rather than preparing lunch) she watched them for awhile and saw two ofthe men get out ofthe car and walk up to the Hassan house,ring the doorbell, and rush aroundthe side ofthe house. (RT A-123.) She assumed they were there on business because they had been there before. (RT A-124.) She did not see these two go into the house. (RT A-128.) Ms. Moncriefrepeated that she had seenpetitioner prior to the incident. She stated that she knew petitioner and "automatically picked him out."" She was sure that petitioner had a chipped tooth and not a gap. (RT A-119-A-120, A-129, A-141.) Even if petitioner had not had a chipped tooth she would have beenable to recognize him. (RT A-141.) 140 Ms. Moncriefrecalled that the first person to comeout ofthe house wasthe driver. The front seat passenger came out second. The "guy with the suspenders" cameout third. The "guy with the beanie and the chipped tooth" wasthelast to comeout. (RT A-128.) At trial, Ms. Moncrieftestified as follows: After she returned from the store, she had a conversation with Bobby Hassan. Hassan left and Ms. Moncriefwent inside. Thereafter, she went inside to make lunch for her patient. Ms. Moncrief looked out the window while making lunch and saw a car parkedin front ofthe house.” It was a large car and there were four men seated inside ofit. (RT 1714-1716.) The men remainedin the car until Bobby Hassan returned home.(This conflicts with her earlier statement in which she recalled that Bobby Hassan had already returned prior to the car’s arrival.) (RT 1716.) Ms. Moncrief saw two ofthe menget out ofthe backseat and walk across the street. One ofthe two knocked on the door. There wasa struggle at the door, then the two wentinside. (RT 1720.) Immediately after seeing the curtains go back inside the house, the other two mengotout of the car and went aroundthesideof 7” Ms. Moncriefalso testified that she first noticed the car when she went outside. (RT 1719.) 141 the house. (RT 1722.) Ms. Moncrief "went back to her business." (RT 1722.) When she saw the curtain go back again, she saw a man with a pillow case exit the front door. (RT 1723.) A second, third and fourth man each exited carrying a paper bag. (RT 1724- 1725.) Ms. Moncrief described the fourth manastall, dark, with heavy lips. He had a gap or a space betweenhis teeth, or a broken tooth, and a scar acrosshis nose toward theleft side. (RT 1726.) Ms. Moncrief noticed his teeth because he was talking and hestarted to laugh. (RT 1727, 1728.) Ms. Moncriefpaid the most attention to this man. (RT 1726.) She had seen this man before. Only once. (RT 1727.) Thus, at various times, Ms. Moncrief claimed that suspects numbered2, 3, and 4 had a facial scar.”* Initially, Ms. Moncriefdid not recall anything unusual about suspect number4's teeth. When she did, sheinitially described the abnormality as “chipped front upperteeth, ” then definitely not a gap, then as a broken tooth, and finally as a gap or a space. Again, the police described 78 1) undated report: Ms. Moncrief states the Number 2 hasa scar on the bridge of his nose 2) 12/16/80 report: Number3 hasa scar on the bridge of his nose and a bit of a scar running ontheleft side of his face 3) Preliminary Exam: Number4 hasa scar on his face 142 petitioner’s teeth as “buck teeth” or “protruding and irregular.” (Exhibit 65.) At no time was Ms. Moncrief’s description ofpetitioner’s height or weight remotely close to petitioner’s actual size. As noted by police, on January 9, 1981, whenarrested petitioner’s height was 6'1 and his weight as 185 pounds. Theearlier, November 28, 1980 field identification card has his height as 60 and weight as 185 pounds. Ms. Moncrief consistently described the man she identified as petitioner as being between 5'5 and 5'7. Ms. Moncrief estimated this suspects weight at 165 pounds. He washusky,solidly built, or heavy. According to Ms. Moncrief, all of the men were essentially the same size with one ofthem being only slightly taller. (RT 1777.)” Oncross-examination at trial, Mr. Skyers attempted to impeach Ms. Moncrief’s identification of petitioner and the Player car by pointing to the certainty ofMs. Moncrief’s earlier identifications of Mr. Brown and Mr. Reed and the automobile associated with them. Ashe stated in his declaration, his focus was not to point out the multiple inconsistences in her various statements and identifications and he instead choseto rely on herearlier identification ofBrown and Reed to demonstrate that her second identification, that of petitioner, was unreliable. 79 If Ms. Moncrief’s height estimations of the other three men are correct as between 5'5 and 5'8, petitioner would have towered above them by as muchas eig ht inches. 143 (Exhibit 47.) Unfortunately, Ms. Moncrief disputed the certainty of her earlier identifications and let the jury believe that those were only tentative and her identification ofpetitioner was the most solid. For example, when Mr. Skyers questioned Ms. Moncrief about her identification of the car associated with Benjamin Brown and Clarence Reed, Ms. Moncriefresponded that she hadn’t been entirely certain of herfirst identification. (RT 1739-1741.) Although Ms. Moncrief ultimately admitted that she changed herinitial identifications ofthe passenger, the driver, and the car, Ms. Moncrief explained that she never told anyone that she had been positive, only that the Brown and Reed car resembled the car she had seen at the Hassan residence and that Mr. Brown looked familiar and that she had seen him before. (RT 1742, 1751, 1757-1758.) In only one instance on cross and three on re-cross was Ms. Moncrief actually confronted with her earlier statements or testimony. Mr. Skyers impeached Ms. Moncriefwith her preliminary examination testimony on three occasions, twice having to do with Ms. Moncrief’s prior description of the suspect’s teeth as “chipped”rather than with a gap, and once on whetherthe first two men went around the house. (RR 1778-1780, 1793, 1803.) On re-cross examination, Mr. Skyers specifically referred to Ms. Moncrief’s December 16, 1980 statement to police. That statement was marked as defendant’s F and Ms. Moncriefwas asked 144 to read it. (RT 1837.) Although her discrepanciesin the description of the car were noted, Mr. Skyers neglected to point out that in this version, Ms. Moncrief said the scar was on person number Two.(Exhibit 63; RT 1838-1848.)” It is clear that contrary to respondent’s claim, Ms. Moncrief’s inconsistent statements were not only not explored at length (Informal Responseatp. 80), but someofthe most damaging aspects ofher testimony, i.e., who had a scar and where, whatsort ofteeth deformity a suspect had and which suspect had it, were not before the jury at all. Respondent erroneously implies that the bulk ofMs. Moncrief’s inconsistencies were before the jury. This is simply not true. Finally, although the prosecutor acknowledgedthat there were problems with Ms. Moncrief’s identification, he did entirely forego reliance uponit. The prosecutor argued that Ms. Moncrief’s identification of petitioner was correct and entitled to some weight and that based on the identification and other evidence of the case the jury should find petitioner guilty. (RT 3172-3178.) © 89 Ms. Moncrief admitted that during the lunch break which was taken during her testimony, her prior statements andher testimony was discussed with her by Semow and Detective Crews. She was also shown photographs ofpetitioner. Ms. Moncrief accounted for someofthe differences in her post lunch testimony as her having remembered whathad happened after these lunch break discussions. (RT 1867-1870.) 81 In closing, the prosecutor vouchedfor the witness. “It’s only when you look at her testimony in the light of everything else in this case that you realize that whether or 145 3. Trial counsel’s failings were not the product ofa reasonable tactical decision. Respondentasserts that trial counsel madea tactical decision notto fully impeach Ms. Moncriefwith her many inconsistent identifications. Respondent arguesthis point as follows: “Indeed, had counsel pointed out each and every inconsistency in Moncrief’s statements,he ran the risk that the jury would reject her earlier identifications ofBrown and Reed. Petitioner needed the jury to believe that Brown and Reed, and not petitioner, were involved in the Hassan murders for there to be any hope of acquittal for petitioner. Trial counsel argued as muchin his closing. (RT 3250-3258.) * Accordingly, counsel’s decision to limit Moncrief’s impeachment wastactical and reasonable.” (Informal Response pp. 79-80, (see also p. 81).) Characterizing trial counsel’s strategy this way is completely unsupported by the record. Duringtrial, counsel clearly stated that it was not his intent to prove that notsheis intrinsically convincing as a witness, she has to be correct. (RT 3172.) And later, “So, I am nottelling you to base this case entirely around Elizabeth Moncrief, I don’t think I have ever indicated you should, and I never will. But I think you have to give her somesignificant credibility, and I think that credibility is ultimately bolstered when youlookat all the other evidence in the case. (RT 3178.) * Trial counsel never asserted that Brown and Reed committed the Hassan murders. Rather, counsel countered the prosecutor’s argument ofmathematical probabilities of someone whohadn’t committed the murders to have both a ring and chain identical to the ones belonging to a victim with the mathematical probabilities inherent in a eyewitness identification of a suspect and his car and a similar weapon which was never subjected to forensic comparisons which the police chose to ignore when they decided to prosecute defendant based onhis alleged association with Raymond Street Crips. (RT 3256-3259.) 146 Brown or Reed committed the Hassan murders. (RT 2627.) The only reason counsel questioned Moncrief about herprior identifications ofBrown and Reed wa s for the purpose of impeaching her subsequent identification ofpetitioner. (/bid.) Neither does Judge Skyers declaration indicate otherwise. Judge Skyersclearly states that he cross-examined Ms. Moncriefin order to impeachheridentification o f petitioner. He doesnotassert that he madea tactical decision to use Ms. Moncrief’s identification ofBrown and Reed to demonstrate that one or both were involved in the Hassan crimes. (See Exhibit 47 20, Guilt Phase Exhibits Vol. 3.) Once again, respondent mischaracterizes the record. Respondent describes petitioner’s exhibits as “neither corroborated nor authenticated.” (Informal Response at p. 80.) Exhibit 62 is a copy of a document provided to present habeas counsel by the Los Angeles County District Attorney, twoidentical, but not redacted documents are contained in trial counsel’s file in a folder marked “Statement — Champion.” Eachoftrial counsel’s copies of exhibit 62 is stapled to other investigative reports which bear the signature of witnesses and/o r police officers. Exhibit 64, which is not undated, wasalso provided to present habeas counsel by the Los Angeles County District Attorney and was accompanied by an 147 investigative report. * If it is true that Exhibit 64 was not providedto trial counsel, petitioner has a claim ofBrady *error. In any event, the documents attached as Exhibits 62 and 64 are sufficiently corroborated and authenticated for their use here. There is no reason to believe that the exhibits are not investigative reports. There is also no reasonto believe that they do not contain descriptions from Elizabeth Moncrief, as she was the only witness (revealed to petitioner) to have seen the Hassan suspects. Were these neither police generated documents nor statements from Moncrief, respondentis certainly in the position to explain whatthey are. Insofar as respondent has suggested no reason to believe the exhibits are not as described bypetitioner, and at least at this stage of the proceedings,i.e., before petitioner has access to discovery, this Court should assumethat these reports, taken from the district attorney and/ortrial counsel’s files, are as petitioner alleges, notes regarding interviews with the only eyewitness, Ms. Moncrief. 8 Second page of Exhibit 64. * Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194.) 148 F. Trial Counsel provided ineffective assistance of counsel by failingto introducereadily available and significantly exculpatory forensic evidence. (Claim VII.D.) 1. This claim has beentimelyfiled. Petitioner incorporates here the timeliness arguments which have been previously alleged as specifically as to the Hassan claims and generally to the petition as a whole. Further, petitioner requested funding for forensic tests from both this Court and the federal court. Eachofpetitioner’s requests have been denied. Further, petitioner incorporates here his timeliness arguments as to subclaim VII.B. Those arguments apply fully to this subclaim, and for the reasons stated in these arguments, this subclaim is timely, and evenif it were deemed untimely, should be addressed on the merits. 2. Trial counsel’sfailure to introduce exculpatoryforensic evidence was not the product ofa reasonable tactical decision. Respondentasserts that “trial counsel stated in his declaration that he was awarethatthe results ofthe forensic testing for blood and gun-shot residue on the gloves taken from petitioner’s bedroom were negative andhe intentionally did not presentthis information because the results were negative. (Informal Responseat p. 82.) As in so many instances, respondent mischaracterizestrial counsel’s declaration. Trial counsel was not so emphatic in his declaration. To the contrary, 149 Judge Skyers declared the he “could offer no tactical reason for failing to present this information to the jury except for the fact that [the evidence] was negative.” (Exhibit 47, Guilt Phase Exhibits Vol. 3.) Judge Skyers does not say that he made any intentional decision to not introduce the evidence. At most, he identifies a possible reason. In any event, the decision not to introduce negative evidence, for what ever reason, was not a reasonable one. Negative results are exculpatory. This is especially true given the testimonyattrial. Elizabeth Ms. Moncrieftestified that the person she ultimately identified as petitioner was wearing dark gloves. (RT 1726, 1732.) Detective David Crews testified that there was a large amountof splattered blood at the scene. (RT 1938.) ® According to the prosecution's account ofthe murder, Bobby and Eric Hassan werekilled with a high-powered .38 caliber revolver and the bullets from the gun entered with such force that they "pulped" brain matter and shattered the skulls as they exited. (RT 2075-2077.) Certainly had a gun beenfired by petitioner while he wore them -- recall, this was Ms. Moncrief’s testimony -- gun-shot residue would be spread over the surface ofthe gloves. 8° Crime scene photos depicted as much.(Trial exhibits 66, 67, and 76.) 150 Respondentis also quite wrong in suggesting this claim “presupposes petitioner’s presenceat the scene.” (Informal Response at p. 82.) Petitioner argues, to the contrary, that if petitioner had been at the scene, there would have been blood and/or gun-shotresidue on his gloves. Since there was no bloodor gun-shot residue on petitioner’s gloves, he was not present. Finally, as to the prong ofprejudice, the absence of blood and/or gun-shot residue goes beyondthe special circumstance issue, which the prosecution conceded rested on an accomplice theory. Finally, negating the possibility that petitioner was the gunman would have impactedthe jury’s decision at the penalty phase. G. Trial counsel Ronald Skyers,failed to request attorney, investigative, and expert support from thetrial court, or utilize those funds authorized by the court or to his becoming counselfor petitioner (Claim VII. E.) In this claim, respondent again misrepresents the record. Respondent’s factual misstatements andillogical argument lead respondentto the erroneous conclusion that counsel acted in accordance with a reasonabletactical decision. Contrary to respondent’s claim trial counsel Ronald Skyers never consulted with, employed,or calledto aid in petitioner’s defense any ofthe experts for whom HomerMasonreceived funding authorization. (Informal response at p. 84-85.) Further, Mr. Skyers never, on his own, sought any funding with which to consult and retain experts, second counsel or an investigator. 151 WhenMr. Skyers took over representation ofpetitioner he had the following funding available: $450.00 Ballistics expert. (CT 224-225.) $400.00 Eyewitness identification expert (Dr. Robert Wm. Shomer) (CT 224-231.) $250.00 Probation consultant (Clyde Longmire) (CT 382.) $135.00 *° Doctor to perform a psychiatric evaluation (Dr. Seymour Pollack, M.D.(CT 397-399, 578-580.) $ to be paid by Los Angeles County: Investigator (CT 572.) The ballistics expert funding was never used by either Mr. Mason or Mr. Skyers. *? The eyewitness expert funding ** was never used by either Mr. Mason or 86 Trial counsel recalled the amount as $450.00. This appears to be the product of faulty recollection. (Compare Exhibit 47 par. 5 with CT 579-580.) 87 Respondent’s assertion that a ballistics expert was hired and utilized by Mr. Mason (Informal Responseat p. 85, fn. 38), is not supported by the record. The record on appeal contains only one order for removal of the Brown/Reed gun andthe bullet fragments from Bobby Hassan and Eric Hassan in order to perform comparisontests. This order was applied for, but never used, by Mr. Skyers. (CT 410-411.) 8 Petitioner apologizes for the error at page 121 of his petition, where he inadvertently states that Dr. Shomer, rather than Dr. Pollack performed a cursory examination ofpetitioner. Respondent misusesthis clerical error to argue that petitioner confirms that Dr. Shomer was hired and conducted an examination ofpetitioner. (Informal Responseat p. 84.) Respondent is aware that Dr. Pollack and not Dr. Shomer examined petitioner (see Informal Responseat pp. 85, 100 fn. 47), and in any event, tht since Dr. Shomer was appointed as an “eyewitness expert,” any examination ofpetitioner for this purpose would have been nonsensical. 152 Mr. Skyers. The probation consultant was never used by Mr. Skyers. According to billing between March 1981 and August 1981 (5 months), Mr. Mason consulted with an investigator and a probation consultant for a total of four hours. (CT 597- 601.) Mr. Skyers neither consulted with the probation consultant nor an investigator, although Mr. Skyers apparently read investigative reports prepared by Mr. Mason’s investigator. ® Although further funding was not disapproved, Mr. Skyers did not request the investigator perform any follow-upordifferent investigation than that which was performed at Mr. Mason’s request. Mr. Skyers himself did not discuss the impressions,if any, and suggestions, if any which were the topic of conversation between Mr. Mason, the investigator and the probation consultant. Funding for Dr. Seymour Pollack was secured by Mr. Mason. ”” Petitioner 8 This would certainly be a requisite task for any replacement attorney to perform. ° The motion for appointment of Dr. Pollack was filed on August 4, 1981. Although Mr. Skyers nameis stamped onthe front, Mr. Mason’s nameis referenced in the body ofthe motion. (CT 579-580.) Mr. Skyers was appointed on August24, 1981. (CT 569.) 153 was examinedby Dr. Pollack at Mr. Skyers’ request. Petitioner has not alleged that no psychiatric evaluation was performed (Informal Responseat p. 85), only that the examination was minimal, insufficient, and insofar as the expert was not provided with necessary background information, *' any decision notto call Dr. Pollack or to request further testing, was not the result of a reasonable tactical decision. Attached hereto as Exhibit 5A is the letter detailing findings by Dr. Pollack to Mr. Skyers. Besides being entirely consistent with petitioner’s claim of innocence,the letter demonstratesthe truly limited nature ofthe inquiry performed by Dr. Pollack and the complete lack of substantial information from which Dr. Pollack had to work. In addition to a letter from Mr. Skyers, Dr. Pollack reviewed only arrest reports, autopsy reports, and preliminary transcripts. Dr. Pollack’s inquiry waslimited to five “legal” defenses. (Exhibit 5A.) Similarly, trial counsel’s decision notto utilize ballistics funding was not reasonable. Trial counsel explained that he “did not think the ballistic issue was major, or failed to see it as a majorissue.” (Exhibit 47, guilt Phase Exhibits Vol. 3.) *! See petitioner’s claim VII.H below that defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidence of significant mental impairments from which petitioner was suffering as ofthe date of the Hassan crimes which would have precluded the jury from finding that petitioner, if presentat the victims’ residence, possessed the intent to kill required for special circumstanceliability. 154 Respondent arguesthat this was a reasonable decisionin light ofthe prosecution’s concession that he did not knowthe identity ofthe triggerman, and the special circumstance findings necessarily rested on an accomplice theory. (Informal Responseat p. 86.) Respondent is wrong. The prosecutor’s reliance on accomplice theory ofresponsibility did not make the ballistics testing less relevant. IfBenjamin Brown’s gun matched,the prosecution’s theory ofthe case would have collapsed. Further, the prosecutor ultimately argued thatpetitioner waslikely to have been the gunman. ” Finally, trial counsel did, at one time, form the impressionthatballistic testing was necessary. To that end, in December, 1981, he applied for an order to remove the Brown/Reed gun andthe bullet fragments from Bobby Hassan and Eric Hassan in order to perform comparison tests. (CT 410-411.) The gun wasreleased on February 2, 1982. There is no explanation why Mr. Skyers did not have the comparisons performed during the two months preceding the release ofthe gun and following the court’s order. (CT 443-444.) Respondent arguesthat petitioner can not demonstrate prejudice. This is not so. Certainly, the services of an investigator would have been useful to trial ® “Based on this evidence,if I had to give you my best estimate, I would say that in the Hassan caseit is more likely Mr. Ross or Mr. Champion whowerethe shooters than the other two unknown individuals who were involved.” (RT 3338.) 155 counsel, as they have been to habeas counsel, to uncover the wealth of exculpatory information that petitioner has presentedto this Court. *? Further, trial counsel’s meagereffort at presenting mitigating evidence at the penalty phase could have been enhancedbythe services of a probation consultant. ** Given the obvious problems with Ms. Moncrief’s identification testimony, an expert here may have provided persuasive expert opinion which would have countered the prosecutor’s inappropriate, and decidedly non expert opinion and argument which described the nature of perception and memory in an attempt to explain away the problems with Ms. Moncrief’s statements. > Finally, petitioner does not deny that he is now unable to set forth the evidence that would have been forthcoming had counsel acted in a timely fashion to obtain ballistics testing and consulted with an eyewitness 3 See for example, petitioner’s arguments that he could not have been involved in the Taylor homicides, petitioner’s argumentthat the jewelry did not belong to Bobby Hassan,that the graffiti was authored by Karl Owensand the many other claims where the investigation is premised on police reports written at the time of the incidents described. 4 Petitioner has no specific knowledge, but believes that this expert was retained for the purpose of developing mitigation themes should the case proceed to a penalty phase. °° The prosecutor argued strenuously that no one understands how the memory works (RT 3173), that the human memory is an “image-forming instrument”rather than a logic or reasoning instrument(ibid), and that“truths seem to generate themselves out of the human memory long after logically they should have.”(/bid.) He also repeatedly vouched for the “facts” recalled by Moncriefwhich were helpful to his theory of the case and discounted those that were not, all based on his “expert” opinion as to how perception and memory work. (See RT 3175, 3176, 3177, 3355-3359.) 156 identification expert. This is so, in part, because one of the guns to be tested ceased to be available becauseoftrial counsel’s delay, and also because the court has not approved funding for the services ofballistic and eyewitness experts.(Petition at p. 99 fn. 75.) 7° 97 H. Failure to properly object to the use of a secretly taped conversation between petitioner and Mallet both pretrial and when used by the prosecution during its cross-examination ofpetitioner. (Claim VII. F.) 1. This claim wastimelyfiled. The only exhibit not in trial counsel’s files, or the record on appeal, is Exhibit 68, whichis a transcript ofproceedings in Evan Mallet’s case. Petitioner incorporates here all of his previous arguments as to why Mr. Merwin maynot be charged with delay andasserts again, since the Mallet transcripts were obtained in a timely fashion by present habeas counsel, no delay occurred during her tenure *© Respondent erroneously suggests that Mr. Merwin was awardedfunding for expert services. He was not and never stated that he had consulted with experts, only that, in preparation of his funding request, he identified areas in which expert assistance was required and located persons willing to assist, should funding be granted. Present habeas counsel has been repeatedly denied expert assistance, except for a graffiti expert, which was approved by the federal court. Further, any order by the Los Angeles Superior Court for ballistic expert Ram Tec in 1981, at Homer Mason’s request was not available to and of absolutely no benefit to counsel in these habeas proceedings. ” This is also the reason why this subclaim has beenfiled in a timely fashion. In support ofthe timeliness ofthis subclaim, and the appropriateness of considering this subclaim on the merits evenif it is deemed untimely, petitioner incorporates here the timeliness arguments as to subclaim VII.B., which arguments apply fully to this subclaim. 157 either. Further, petitioner incorporates here his timeliness arguments as to subclaim VILB. Those argumentsapply fully to this subclaim, and for the reasons stated in these arguments, this subclaim is timely, and even if it were deemed untimely, should be addressed on the merits. 2. Trial counsel’s failings were notthe product ofa reasonable tactical decision. Petitioner apologizes for erroneously stating that the suppression motion raised by Mr. Gessler, on Mr. Mallet’s behalf, was successful. Nevertheless, it doesnot follow that trial counsel was correct to forgo any objection to admission of the conversation at petitioner’s trial. First, it is clear that counsel made the objection to admission of the Mallet tape, but did not follow through for a ruling. Mr. Skyers’ motion, whichdid specify the Mallet tape, was filed on or about June 10, 1982. (CT 232-234.) The motion was heard months later on October 12, 1982. (RT 2859et. seq.) During the hearing on the motion, counsel make reference to a Penal Code section 1538.5 motion “which has already been heard.” ° (RT 2861.) Throughout the October 12, 1982 motion, trial counsel continually referred to only one tape, the Ross/Champion conversation. At no time does anyonespecifically refer to the taped conversation 8 It is uncertain which hearing counselrefers to here. 158 between petitioner and Mallet. The court was not asked to anddid notspecifically rule on the Mallet/Champion tape. Thus,trial counsel failed to get a ruling onhis motion to exclude the taped conversation between petitioner and Mallet. Although the tape was not suppressed at the Mallet proceedings it should have been. Mr. Gessler’s arguments on behalf ofMr. Mallet were meritorious. The prosecuting attorney should not have been permitted to misusethetrail court’s calendar and pursue sham motions. (See petition at pp. 101-104.) Petitioner’s counsel should have advanced the same arguments on petitioner’s behalf and obtained a ruling on counsel’s own motion. Reference to the Mallet/Champion tape was not harmless. Mr. Mallet is a rapist and a murderer. Mr. Mallet figured strongly in the prosecution’s case against petitioner. °? The prosecutorelicited testimony that Mr. Mallet was foundin ® The full extent ofthe testimony regarding the tape is set out below. Nicky was a Raymond Crip, wasn’t he? Yes, at one time he was. And Nicky is dead too? Yes, heis. Doyourecall having a’ conversation with Evan Malett [sic] about Nicky? Wemight have had a conversation about him. Anddo yourecall talking to Evan Mallet about saying that Elizabeth Moncrief confused you with Nicky because he’s dead now? No. Do yourecall Evan Malett [sic] suggesting that to you? No,notat this time. Isn’t it a fact you had that conversation with him again on a sheriff'sO E E e F O F O P O F Z O 159 petitioner’s backyard and that when he wasarrested,petitioner had a bail sheet for Mr. Mallet in his pocket. Mr. Mallet was frequently mentioned as one ofMr. Champion’s co-conspirators. It certainly was of advantage to the prosecutor to imply, as he did, that a conversation between petitioner and Mr. Mallet was similar to the one betweenpetitioner and Mr. Ross, a conversation upon whichthe prosecutor offered as proofofpetitioner’s involvement in the Hassan crimes. I. Trial counsel failed to properly object to the use of a secretly taped conversation betweenpetitioner and Mr. Ross (Claim VII. G.) 1. This claim is timely. As argued above claims based largely on the appellate record maybe raised without extensive extra record investigation, it would not have made sense for Mr. Merwin, who was just beginning to undertakethe investigation of potentially Q e O P Q e van one week before you had the conversation that we played for the jury yesterday with you and Mr. Ross? Notthat I recall. Are you saying that you are not aware ofthe conversation orthat you’re not aware ofthat portion ofit? I am not aware ofthat portion. Are you saying that you may have had that conversation but cannot recall, or are you saying that you did not have any such conversation? I am just saying I can’t recall that conversation. So you may haveactually discussed that with Evan Malett [sic], is that correct? I just can’t recall at this time. (RT 3041-3042.) 160 meritorious claims requiring investigation to raise such record based claims whenit became clear that he would have to withdraw andpass the case on to another counsel who would have her own viewsas to which claims were most important and how to best present them to file this claim. Further, present habeas counsel was undernot required to file this claim while investigating other potentially meritorious claims, and while awaiting this Court and federal court approval — or denial — of funding. Finally, petitioner incorporates here his timeliness arguments as to subclaim VII.B. Those arguments apply fully to this subclaim, and for the reasons stated in these arguments, this subclaim is timely, and evenif it were deemed untimely, should be addressed on the merits. 2. Trial counsel’sfailure to object was not the product ofa reasonable tactical decision. Respondentasserts that because trial counsel objected to admission ofthe tape as violative of the Fourth, Fifth, and Sixth Amendments andasirrelevant and hearsay,trial counsel’s decision not to object to the taped conversation as more prejudicial than probative and most importantly, to request that portions of the taped conversation be redacted was“reasonable andtactical.” (Informal Responseat p. 92-93.) To makethis point, respondent misses the thrust of petitioner’s argument and ignores the finding of this Court. 161 Respondentcites the portion of this Court’s opinion which discussed the admissibility of limited portions of the taped conversations. (Informal Responseatp. 93-94.) This Court foundthat portions ofthe tape in which the waterbed and the fact that Bobby Jr. had not said anything were discussed and a portion where the defendants may have discussed escape were all relevant and therefore admissible. (People v. Champion, supra., 9 Cal.4th at p. 913-914.) Asto the highly inflammatory and prejudicial portions ofthe tape that are set out fully in petitioner’s petition at Claim VII G this Court held on direct appealthat "[d]efendants fault the trial court for not deleting from the tape recording those portions of defendants' conversation that were irrelevant and prejudicial. But defendants never asked the trial court to edit the tape recording, and nevernotified the court that, in their view, portions ofthe tape recording were particularly prejudicial. Accordingly, they have not preserved this issue for appeal." (/d., at 914.) Respondentcounterspetitioner’s claim thattrial counsel was prejudicially ineffective in failing to properly object by pointing to what respondentcharacterizes as the “overpowering evidence”that tied petitioner to the Hassan crimes. (Informal Responseat p. 95.) | In his petition and throughoutthis Informal Reply, petitioner has demonstrated that contrary to respondent’s evaluation ofthe strength of the 162 evidence againstpetitioner (whichrests on the state of the evidenceat trial and ignores the additional and conflicting evidence provided by the petition andits supporting documentation), the case against petitioner is weak. Petitioner can, with perhapsabsolute certainty, be excluded from the Taylor crimes. Petitioner did not have Mr. Hassan’sring in his possession. The remaining evidence, Ms. Moncrief’s eyewitness identification testimony, was so incredible that even the prosecutor wouldnotrely onit for sufficient proofofpetitioner’s involvementin the crime. J. Defense counsel provided constitutionally ineffective assistance in failing to discover, present, and argue evidenceof significant mental impairments from whichpetitioner was sufferingas ofthe date ofthe Hassan crimes which would have precludedthe jury from finding that petitioner, if present at the victims’ residence, possessed the intent to kill required for special circumstanceliability. (Claim VII.H.) 1. This claim is timelyfiled. Attached in support ofthis claim, is the declaration of Dr. Nell Riley. Dr. Riley is a licensed psychologist specializing in clinical neuropsychology. She holds a Diplomate in Neuropsychology from the American Board of Clinical Neuropsychology (ABPP) and the American Board ofProfessional Neuropsychology. Dr. Riley is presently employed as a staff neuropsychologistat the Neurodiagnostics Service ofthe Department ofNeurology at Stanford University Hospital. (Exhibit 67 -- Declaration ofNell Riley, Ph.D. ABPP.) 163 This claim is timely because it has been filed “without substantial delay.” Petitioner could not havefiled this claim without Dr. Riley’s having examined petitioner and provided her declaration— and that couldn’t happen until petitioner raised the funding for the examination and declaration. Prior habeas counsel, James Merwin requested funding for a neuropsychologist. This Court denied this request on August 24, 1994. Present habeas counsel also made such a request. This Court denied this request on January 28, 1997. Federal funding for such purpose was denied on January 7, 1997. On February 12, and February 26, 1997, Dr. Riley conducted a neuropsychological examination ofMr. Champion. Dr. Riley’s services were paid for entirely from present habeas counsel’s personal monies. '°° Underthis Court’s decision in Gallego, the evidenceofpetitioner’s brain damage-- and hence the information supporting subclaim VII.H -- was not something Ms.Kelly, as reasonable habeas counsel, should have unearthed at any earlier date. (In re Gallego, supra,\8 Cal.4th at 828 (denial oftimely request for investigation funds “will support a determination that the petitioner not only did not actually know ofthe information earlier but also should not reasonably have known 10 In January, 1999, this Court denied counsel’s request to have these funds reimbursed. 164 of the information earlier”; emphasis in original).) Further, Dr. Riley, in March, 1997, after analyzing the results ofthe testing she had administered, requested that counsel attempt to obtain additional information concerning the possible etiology and effects ofpetitioner’s impairments so she and the Court could be confident that petitioner’s brain damageoccurredearly in his life and that the resulting impairments werefully in effect prior to the charged homicides and hence were relevant to cast doubt on the mens rea element ofthe special circumstance allegations. Ms. Kelly sought and obtained such confirming information between March 1997 and November1997, which information wasintegrated into the Declaration of psychiatrist Dr. Roderick W. Pettis, whose declaration along with that ofDr. Reilly provide important support for petitioner’s claim ofpenalty phase ineffective assistance of counsel. (See Penalty Phase Exhibit 1, Declaration of Roderick W.Pettis, M.D., October 30, 1997.) Dr. Riley provided her declaration on October 22, 1997. (Exhibit 67, Guilt Phase Exhibits, Vol. 3, Declaration ofNell Riley, Ph.D.) Subclaim VII.H could not have been completed orfiled substantially sooner. Thus, this claim wasfiled “without substantial delay”(i.e., within a reasonable time after petitioner and his counsel knew or should have knownthe factual and legal bases for the claims raised). (Standards 1-1.2; In re Robbins, supra, 18 Cal.4th at 784,787-788.) 165 Further, even had it been possible to submit subclaim VII.H substantially sooner, it would have been appropriate to delay filing in light of ongoing investigation into other potentially meritorious claims which required additional investigation until close to the November 1997filing date in order to set forth a prima facie casefor relief. (In re Robbins, supra, 18 Cal.4th at 780, 805-806; In re Clark, supra, 5 Cal.4th at 781, 784). See, in particular, the discussions concerning the ongoing investigations into claims addressing counsel’s ineffective assistance (a) in failing to discover and present evidence that petitioner could not have been involved in the Taylor crimes and that the perpetrators were four other young men (subclaims VI.A and VI.B discussed above), (b) in failing to challenge the prosecution’s graffiti and gang expert testimony (subclaim VI.G; discussed above), (c) in failing to discover and present evidence that the jewelry in petitioner’s possessionat the time ofhis arrest did not belong to Bobby Hassan (subclaim VILA, discussed above) and (d) in failing to discover and present substantial mitigating evidenceat petitioner’s penalty phasetrial (subclaim IX.C, discussed below). Habeas counsel had to coordinate investigation in all of these areas, which addedto the time required to complete the necessary investigative work and obtain the required supporting documentation. Finally, if subclaim VII.H were deemed untimely, it should nonetheless be 166 addressed on the merits under the Court’s miscarriage ofjustice exceptions. Subclaim VII.H, particularly when viewed in combination with claims VI (Taylor) and VIII (Jefferson), undermines the prosecutor’s inherently speculative case in support ofa finding ofthe homicidal mens rea required for special circumstance liability. But for the constitutional error set forth in subclaim VII.H, “no reasonable judge or jury would have” found the special circumstanceallegations true or convicted petitioner of capital murder. (Jn re Clark, supra, 5 Cal.4th at 797; In re Robbins, supra, 18 Cal.4th at 811.) 2. Respondent misstates petitioner’s claim. Respondent’s argument is premised on a misrepresentation ofpetitioner’s claim. Respondent seems to imply that petitioner’s claim is, that, based on information readily available to him, trial counsel wasineffective for failing to pursue any investigation ofmental defenses. (Informal Response at p. 98.) This is not petitioner’s claim. Petitioner alleges thattrial counsel failed to conduct a reasonable investigationinto his client’s background and personal history, and that if he had done so and provided relevant information to a mental health expert, either counsel on his own or any mental health expert he consulted with, would have initiated or recommendedneuropsychological testing. Neuropsychologicaltesting at the time oftrial would have revealed the impairment shownbythe battery of tests 167 administered by Dr. Riley. In his declaration, Judge Skyers acknowledges that had he knownthat petitioner had been abusedin utero and been involved in a serious car accident, each ofwhich suggested a possibility of resulting brain damage, he would have requested funding for neuropsychological examination. (Exhibit 47, par. 26, Guilt Phase Exhibits Vol. 3.) Judge Skyers has stated that no one from petitioner’s family told him thatpetitioner had been abusedin utero or that petitioner had been involved in a serious car accident; but counsel admits that he never asked petitioner or any memberofpetitioner’s family whether petitioner had suffered any head injuries. (Ibid.) Certainly it is not reasonable for counsel to rely upon a capital defendantor the defendant’s family --- particularly a family with as many problems as petitioner’s family '°' — to know whatinformation would be helpful to the defendant’s guilt and penalty phase defenses and to volunteer that information 101 For example,petitioner’s father, Lewis Burnis ChampionII, has been diagnosed alternately as having schizophrenia or bipolar mood disorder, either one ofwhich is a major psychiatric illness which causes grave impairmentin cognition and day to day functioning. Many other members of Steve’s maternal family have a history of mental health problems, substance abuse, addiction, and domestic violence. LewisIII, Steve’s oldest brother, “had learned how to behave by watchinghis father.” Reginald’s kindergarten teacher at Russell Elementary School noted he had “below average academic growth” and needed “help in oral expression.” Steve’s sister Linda also performed below herpeersin elementary school. Steve’s second sister, Rita, had academic and behavioral problemssimilar to her siblings. (See Petition at pp. 157, 167- 168, 179, 185-186.) 168 without being asked. It is certain that had counsel conducted a reasonable inquiry, such as the inquiry conducted by habeas counsel, he would have learned ofthe in utero abuse and childhood auto accident (whichresulted in head injury and loss of consciousness) and requested neuropsychologicaltesting. Further, as is set forth morefully in Claim IX ofthe petition, had counsel conducted a reasonable investigation ofhis client’s personal history and background, counsel also would have learned ofpetitioner’s malnourishmentas an infant, the repeated blowsto the headpetitioner suffered at the hands of his two mentally ill older brothers, petitioner’s early and recurrent problemsat school, petitioner’s inhalation of organic solvents and his ingestion of nearly lethal amounts ofliquor in childhood. (See Petition Claim FX.C., pars. 1a through le.) Had counsellearnedthis information and providedit to a mental health expert -- which reasonable counsel certainly would have done given its obvious relevance to a mental health evaluation — the mental health expert would have discerned and communicated to counsel the appropriateness of neuropsychological testing. (See Exhibit 1 par. 11 a., Penalty Phase Ineffective Assistance of Counsel Exhibits Vol. 1.) Further, there can belittle doubt that counsel was obligated to conduct a reasonable thorough investigation ofhis capital client background and person 169 history. (See, e.g., In re Jackson (1992) 3 Cal.4th 578, 586, 612 [defendants trial counsel, by failing to conduct a reasonable investigation of defendant’s background and childhood to enable him to make an informeddecision as to the best manner of proceeding at the penalty phase,failed to provide competent representation under the prevailing professional standards ]; and Siripongs v. Calderon (9" Cir. 1998) 35 F.3d 1308, 1316 [counsel was well below accepted standards in failing to conduct more than a cursory investigation of (petitioner’s) background].) That counsel’s investigation ofpetitioner’s background was no more than cursory is apparent from (1) the very meager penalty phase case he presented on petitioner’s behalf (fully set out in two sentencesin this Court’s direct appeal opinion, People v. Champion, supra., 9 Cal.4th at p. 904) and(2) the fact that counsel was unaware of petitioner’s “family mentalillness . . ., divorce, poverty, andlife threatening danger at home and in the community” (Exhibit 47, Guilt Phase Exhibits Vol. 3.) — facts which a reasonable investigation would have easily unearthed. If counsel had conducted more than a cursory investigation into petitioner’s background and personalhistory, he could not have helped but discover the facts suggesting a reasonable possibility ofbrain damage and hence the appropriateness of neuropsychologicaltesting. 170 3. Trial counsel’s failings were not the product ofa reasonable tactical decision. Respondent’s assertionthat trial counsel’s failure to present evidence of petitioner’s mental impairments is untenable. (Informal responseat p. 98-99.) Such a tactical decision would be reasonable only if based on reasonable investigation- and, as noted above,trial counsel performed no such investigation. It is certain that if counsel had conducted a reasonable investigation and learned ofthe in utero abuse, auto accident, and other head trauma, he would have acted differently. This is so because as Judge Skyers himself declares, he would have requested neuropsychological testing and, “[h]ad findings consistent with Dr. Riley’s been availableat trial, I would have presented them at both the guilt and penalty phases oftrial.” (Exhibit 47, par. 26.) Given the thoroughnessofDr. Riley’s testing, and the fact that the likely causes ofpetitioner’s impairments date back to events precedinghis birth and/or occurring during his childhood andearly adolescence, (Exhibit 67, par. 29; Penalty Phase Exhibit 1, par. 11.a), there is little reason to doubt that the same findings would have been availableifpretrial neurological testing had been conducted. Likewise, respondent’s argument of “inconsistent defenses” is not to be credited. There is nothing inconsistent in arguing that “petitioner was not involved, 171 but ifyou disagree and somehow concludethat he was, there’s still no basis for finding him guilty of capital murder.” Moreover,the available evidence of neurological impairment wasrelevant and exculpatory without any concession ofpetitioner’s presence at the crime scene. Petitioner’s primary defense was, and remains, that he wasn’t there. But petitioner’s neurological impairment was relevant and important because the prosecutor wasforcedto rely upon very strained circumstantial evidence theory to argue that petitioner, if he was there, must have acted with an intent to assist in a killing. Because there was no evidence as to whoactually killed the Hassans and no evidence concerning the conduct of any particular perpetrator while inside the Hassanresidence, the prosecutor had to argue that regardless of whichofthe four menfired the fatal shots, all four must have entered with an understanding and intent that whoever was home would bekilled. (RT 3180, 3338, 3194. ) But the prosecutorhad no evidence of any admissions of homicidal intent by petitioner, no evidence of any statements of homicidal intent or planning by any ofthe four perpetrators, and no evidence of any express agreementto kill or even of any discussions of such a possibility. The prosecutor was forced to rely upon circumstantial evidence as to what, in the prosecutor’s view, each of the four men must have inferred and understoodprior to entering the Hassan residence, 172 circumstantial evidence which in turn was based on a shaky assumption that each of the four must have know what had happened to Mr. Jefferson and would have understood the same would happento the Hassans — even though the Hassans, unlike Mr. Jefferson, were relatives of a memberofthe same street gang as the four alleged perpetrators. This speculative mens rea case against petitioner, based on dubious inferences concerning what eachofthe perpetrators must have understood upon entering the Hassanresidence, would have been underminedhadtrial counsel conducted a reasonable investigation ofhis client’s personal history and discovered and presented available evidencethat as ofthe date ofthe Hassan crimes, petitioner suffered from longstanding mental impairments of a severe and global nature which impairedhis ability to discern or accurately read cues concerning the intentions of other persons, to draw his own inferences in ambiguous circumstances, or to engage in planning activity. Even assuming it was reasonable to conclude thata fully intact person would have understood that homicide was intended, there’s no basis for concluding beyond a reasonable doubtthat a person with petitioner’s impairments would have so understood. Respondent’s discussion of subclaim VII. H. indicates that respondentis confused and misunderstandsthe nature ofpetitioner’s claim (Informal Response, pp. 101, 102, 104, 105-106) Respondent repeatedly writes as though petitioneris 173 claiming that petitioner’s impairments made him incapable of forming an intent to kill. Respondent even refers without citation to “petitioner’s conclusory allegation that a mental disorder ‘caused’ an inability to form the intentto kill.” (Id. at 102.) Once again, that is not petitioner’s claim. Petitioner has presented evidence demonstrating that he suffers from longstanding neuropsychological deficits “in problem solving, nonverbal reasoning, attention and slowed information processing [which] render him unable to draw inferences in ambiguous circumstances and leave him especially vulnerable to missing or misreading cues concerning the intentions of other persons.” (Exhibit 67, par. 32, Guilt Phase Exhibits Vol. 3.) Petitioner’s deficits are extreme, placing him in the bottom 0.02 percentile of the normal population(id. at par. 15). This evidence is not offered to demonstrate an inability to form an intent to kill. Rather, it is offered here, and should have been offeredattrial, to undermine the prosecutor’s only theory at trial to support a finding of the mensrea essential to capital murder. As noted above, there was no evidence ofany statements by any of the four men whoentered the Hassan residence, no evidence of express prior agreement or discussions, and no evidence as to what any particular memberofthe group did while in the Hassan residence. The prosecutor had to rely upon a speculative circumstantial-evidence theory that each ofthe four men must have 174 somehow understoodandintended that the residents would be killed. However permissible such an inference might be as applied to a memberofthe group who was mentally intact — and that is subject to debate — it becomes completely untenable as applied to someone withpetitioner’s neuropsychologicaldeficits. The jury should have learnedofpetitioner’s impairments. Hadit been informed of petitioner’s impairments,there’s no way it could have concluded beyond a reasonable doubt that petitioner, if he was involved, must have understood and intended that the Hassans would bekilled. Respondent’s misunderstandingofpetitioner’s claim may also accountfor respondent’s erroneous assertions that the exculpating relevance ofthe proffered evidence required (1) a concessionthat petitioner was presentat the crime scene (Informal Responseat p. 107) and (2) a mental health expert’s explanation how the impairmentaffected petitioner’s capacity to form the requisite intent at the time of the crime (Informal Response, p 105). Neither is true. Petitioner’s deficits makeit impossible to draw confident conclusions about what he would necessarily have inferred and understood — particularly when the prosecution is able to offer no evidence as to any words or nonverbal cues that may have been exchanged. Petitioner need not concede he wasthere to make the simple and obviouspoint, that even if the jury foundpetitioner had participated, it couldn’t make confident 175 conclusions about what he would have understood uponentering. Finally, it is ofno consequencethat attached California Youth Authority reports indicate no signs of organicity (Informal Response, pp. 102-103). The authors of these reports did not have the information that counsel would have had had he investigated his client’s history discussed above -- information that would have made clear there was a reason to suspect brain damage. Further, Dr. Riley’s credentials and methodology are unchallenged and impeccable. There’s simply no basis for doubting the accuracy of her declaration andthetest results set forth therein. Had counsel conducted a reasonable investigation, that type oftesting and those results would have been presentedto thejury. 176 IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RELATING TO THE JEFFERSON HOMICIDE Here,as in his petition, petitioner claims that the convictions and death sentence were unlawfully and unconstitutionally obtained in violation ofpetitioner’ s rights underthe First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and underarticle I, sections 1, 7, 15, 16, 17, and 24 ofthe California Constitution and the statutory and decisional law of California. This is so because Mr. Champion was denied effective assistance of counsel by various errors and omissionsofhis trial counsel relating to the Jefferson homicide, and as a result ofthose errors and omissions, also denied his rights to due process of law, to freedom of association, to equal protection, to confrontation, and to a fair and reliable guilt and sentencing determination. But for counsel’s errors and omissions, which were not the product of any reasonable tactical decision it is reasonably likely that the result ofthe proceedings would have been more favorable to petitioner. Specific to this claim are four detailed subclaims. These claims are as follows: (1) Trial counsel failed to discover and produce evidencethat the Jefferson case was notsimilar to either the Hassan or Taylor crimes which would have 177 precluded admission ofthe Jefferson evidence and undercut the prosecution’s theory that petitioner wasa participant in or at least had knowledgeofall three incidents andits theory that petitioner’s alleged knowledge of the Jefferson homicide evidenced the required mentalstate for finding the special circumstancesto be true. (2) Trial counsel failed to object to introduction of the Jefferson crimes on groundsthat the introduction of this other crimes evidence violated petitioner's due processrights, and Evidence Code §§ 352 and 1101. (3) Trial counselfailed to object on the ground that the evidence was inconsistent with the prosecutor’s offer ofproof, and (4) Trial counsel failed to object to the prosecution’s conspiracy evidence and argument. Contrary to the assertion of respondent, these claimsofineffective assistance of counsel are not precluded by the procedural bar against unjustifiably delayed claims. (Informal Responseat p. 110.) Further, insofar as trial counsel had no valid, tactical reason for the errors and omissions complainedofand petitioner was deprivedofa fair trial as a result of these errors and omissions, petitioner has established a prima facie case forrelief. 2Attachedto petitioner’s petition are 8 exhibits, '” including the declaration 102 See Exhibits 47, 69-75. 178 of trial counsel, now Los Angeles County Municipal Court Judge, Ronald K. Skyers, which individually and cumulatively represent reasonably available documentary evidence demonstrating that petitioner was not involved in the Jefferson crimesandthat trial counsel’s failure to discover, present and argue evidenceofpetitioner’s lack of involvement wasnotthe result of a reasonable tactical decision. A. Defense counsel provided constitutionally ineffective assistance by failing to discover and produce evidence that the Jefferson case was not similar to either the Hassan or Taylor crimes which would have precluded admission of the Jefferson evidence and undercut the prosecution’s theory that petitioner was a participant in or at least had knowledgeofall three incidents andits theory that petitioner’s alleged knowledge ofthe Jefferson homicide evidenced the required mental state for finding the special circumstances to be true. (Claim VIILA.) 1. This claim wastimelyfiled. Other than the general allegations ofuntimeliness made in the Response (see pp. 16-27), respondent does not otherwise argue its contention that this claim was notfiled in a timely fashion. (Informal Responseat p. 110.) Other than the declaration oftrial counsel and declaration ofTom Lange (Exhibits 47 and 72 respectively), the remaining exhibits which support this claim were in trial counsel’s file, which was passed on from previous habeas counsel, James Merwin, to present habeas counsel. Although the police reports, letters, memorandum, and analyzed 179 evidence report which complete the exhibits in support of this claim were in the possession ofMr. Merwin,it does not follow that this claim should have beenfiled earlier. Asstated in reference to the timeliness ofthis petition generally, Mr. Merwin wasassociate counsel from September 22, 1992 through June 28, 1995. Between September 22, 1992 and February 23, 1993, Mr. Merwin reviewed materials which were furnished to him by the California Appellate Project and the record on appeal. Although he wasable to discuss the case and potential issues with Mr. Johnson and with CAP Attorney Steven Parnes, Esq., Mr. Merwin was unableto visit with petitioner and discuss the facts of the case and possible areas ofinvestigation with petitioner. This was so, because during his entire tenure as habeas counsel, Mr. Merwin wasdenied any opportunity for confidential communications by San Quentin State Prison with petitioner. As stated above, counsel could not form any final plan of investigation, let alonefile a petition, without upholding his duty to discuss the case and otherwise confer with his client about a variety of sensitive information. By June of 1993, in addition to the previously discussed tasks, Mr. Merwin completed a numberofessential tasks toward the ultimate completion ofthe petition including reviewing petitioner’s centralfile at San Quentin State Prison andvisiting 180 petitioner in a non-contactvisit setting. Mr. Merwin located and interviewedtrial counsel Ronald Skyers and at this time copied petitioner’s trial file and began an evaluation oftrial counsel’s investigation and preparation for trial. Mr. Merwin also researched, prepared and filed with this Court, a motion ancillary to his habeas corpus petition for prior authorization for funds to prepare andlitigate a petition for a writ of habeas corpus in Marin County Superior Court addressing petitioner’s housing status and the unavailability of confidential visits with counsel. On August 25, 1993, this Court denied Mr. Merwin’s motion for funds for the Marin County writ petition. The motion was denied withoutprejudice to Merwin’s seeking such a writ directlyfrom the California Supreme Court. So, between August and November, 1993, and under the Court’s direction, Mr. Merwin began a petition to this Court regarding contact visits with Mr. Champion. Mr. Merwin was correct to pursue this course as he agreed with Mr. Champion’s assessment ofthe visiting option available and he too determined that the visits were not confidential. In spite ofthese difficulties, Mr. Merwin continued to explore areasoftrial counsel’s investigation andtrial preparation and ultimately identified general areas of trial counsel’s performance whichwerelikely to yield specific claims of ineffective assistance of counsel. This preliminary evaluation oftrial counsel’s performance, made after review oftrial counsel’s files, the appellate record, a few 181 nonsecure interviews with petitioner, initial contacts with some members of petitioner’s immediate family, and preliminary contact with experts regarding their fees and availability provided the basis for Mr. Merwin’s funding request which was filed on February 15, 1994. Mr. Merwin did not receive authorization for funding until August 24, 1994, less than two months prior to discontinuing work on petitioner’s case. Thus, although it is true as to this claim that certain “triggering facts” were available to Mr. Merwin by February 1994 when Mr. Merwin madehis funding request, the availability of these facts only triggered counsel’s duty to investigate, not his duty to present the claims. Again, counsel’s duty to present claimsarises once counsel has (or should have had) information to support a primafacie case. (In re Robbins, supra, 18 Cal.4th at p. 806 fn. 28 and 29 (majority), 820 (Justice Kennard Concurring and Dissenting.) In his funding request, Mr. Merwin identified claims in very fairly broad terms, such as “counsel’s failure to investigate Taylor incident” or “counsel’s failure to conduct a penalty phase investigation” or appellate record claims such as “counsel’s failure to make objections.” Identification ofthe failing in no way suggests how to conductthe investigation that trial counsel should have conducted. In other words, respondentfails to distinguish between tasks of identifyingtrial 182 counsel’s failings — whichis relatively easy when counseldoeslittle guilt or penalty investigation— and tasks of(i) planning and (2) carrying out the investigation that trial counsel should have conducted. To this end,petitioner again asserts that Mr. Merwin acted reasonably in notfiling a petition before being replaced. This is so because for health reasons Mr. Merwin couldn’t finish the investigation. Present counsel had to begin by reviewingthe entire appellate record,the trial file, police reports, and related records from the court proceedings of other alleged participants before present counsel could reach her ownjudgment-- - as she wasethically obligated to do — astotherelative strength ofpotential claims, how best to pursue the investigation, which claims to present, what further documentary support and how,with the available funding, to perform each ofthese task effectively. Present habeas counsel has earlier stated the course of her investigation and the funding available at the time ofher appointment. Based on the reasons above and below andin the petition, petitioner’s habeas petition wasfiled in a timely manneri.e., within a reasonable time after present counsel knew the factual and legal basis for the claims raised. Foremost, it has been demonstrated that the subclaims to the Jefferson crimes, to the Hassan crimesand to the Taylor crimesare interrelated and dependent on 183 each other. Alleged proofofpetitioner’s involvement in the Jefferson crimes was argued as proofofhis participation in Hassan. Petitioner’s guilt in the Hassan crimes, the finding of special circumstances and the imposition ofthe death penalty was dependantonhisparticipation in the Taylor crimes. The prosecution could not makeits case against petitioner without proof of each ofthese three homicidal incidents. Moreover, a finding by the jury that petitioner was guilty of or involved in more murders than that which he had been charged contributed greatly to a finding of death as the appropriate punishment. The claim thattrial counsel provided ineffective assistance in defense of the Jefferson crimes is comprised of specific instances offailings which, if broughtto the jury’s attention, would have convincedthe jury that petitioner was not involved in the Jefferson crimes and thereby, proofthat he was notinvolvedin either the Taylor or Hassan crimes. As a result, counsel was required to investigate all ofthese crimes before filing the petition. At any earlier date when current habeas counsel could have submitted this subclaim, it was appropriate to delayfiling in light of ongoing investigations into other potentially meritorious claim which required additional investigation until close to November1997 filing date in order to set forth a primafacie caseforrelief. (In re Robbins, supra, 18 Cal.4th at 780, 805-806.) This encompassed, in particular, the discussions concerning the ongoing investigations into claims 184 addressing counsel’s ineffective assistance (a) in failing to discover and present evidencethat petitioner could not have been involved andthat the perpetrators were four other young men (subclaims VI.A and VI.B discussed, above), (b) in failing to challenge the prosecution’s graffiti and gang expert testimony (Claim VI.G; discussed above), (c) in failing to discover and present mental impairment evidence that would have underminedthe prosecutor’s special circumstance mensrea theory (Claim VII.H, discussed below), and (d) in failing to discover and present substantial mitigating evidence at petitioner’s penalty phase trial (Claim IX.C, discussed below). Further, in light ofthe rarity of this Court’s issuance of orders to show cause, counsel doubted that the court would deem claim VIII.A standing alone, without presentation ofotherrelated claims sufficient to state a primafacie case forrelief, and accordingly for that reason as well counsel was warranted in delaying presentation ofthis subclaim. (Jn re Robbins, supra, 18 Cal.4th at 780, 805-806.) Finally, as explained above each ofthe subclaims ofthis claim, particularly when viewedcollectively and in combination with claims VI (Taylor), VII (Hassan and IX (penalty phase ineffective assistance of counsel) should be reviewed on the merits pursuantto this court’s miscarriage ofjustice exceptionsto the timeliness bar even if deemed untimely in that they undermine the prosecution’s case for guilt and for the 185 special circumstanceliability, and serve to correct the grossly misleading profile of petitioner presented to this sentencing jury. 2. Trial counsel’sfailure to discover andproduce evidence that the Jefferson crimes were not similar to the Taylor and Hassan Crimes would not have beenfutile and his failure to do so was prejudicial. Respondent acknowledgesthattrial counsel offers no tactical reason forhis failure to demonstrate forthe trial court and for the jury dissimilarities between the Jefferson and the Hassan and Taylor crimes. (Informal Responseat p. 111.) Respondentconfinesitself to arguing that no prejudice resulted from trial counsel’s failure to discover and produce evidence that the Jefferson crimes were not similar to the Taylor and Hassan crimes. (Informal Response at pp. 112-114.) '” Here, respondent is wrong to characterize petitioner’s discussion ofthe numerousdissimilarities between the homicides as “misleading.” Petitioner’s claim supported by police reports and investigative reports which were provided by the prosecution, readily available to trial counsel and not disputed as authentic or countered by documentation submitted by respondent. Respondent’s single 13 Once again, respondent misstates petitioner’s claim. Petitionerdoes not argue that trial counsel was ineffective for failing to object to admission of evidence of the Jefferson crime. (See informal Responseat p. 112 [any attempt (to do so) would have been futile].) Trial counsel did this. (RT 1510.) Petitioner’s claim is that trial counsel failed to inform the trial court of numerous dissimilarities and to argue to the court that the prosecution had no evidence which tended to show participation by petitionerin the Jefferson murder. (Petition at p. 128.) Respondent acknowledges as muchin its response to the next claim. (See Informal Responseat p. 114.) 186 paragraphof“similarities” is borrowed from the argument ofthe prosecutor pretrial. (Compare Informal Response at pp. 111-112, RT 1511-1512.) '* Although these generalsimilarities may exist in one or moreofthe cases, the number and degree of dissimilarities outweigh the probative value ofthose similarities argued by respondent. Further, the “similarities” noted by respondentare similarities commonto any number of homeinvasion robberies of a drug dealer where a killing results. The extent ofthe similarities noted by respondent are only the_nonforcible entry of the homeofa drug dealer, who wasshotin the head with a muffled shot. Including the fact that all three homicides occurred in South Central Los Angeles does not amount to either a pattern and or to characteristics so unusual and distinctive as to be “like a signature.” (See People v. Ewoldt (1994) 7 Cal.4th 380, 403.) In contrast, police and prosecution reports and other documentation concerning the Jefferson killing indicate the crimes were glaringly dissimilar in at least the following respects: 14 Respondent’s invitation to consider the “Bascue Memorandum”as supporting its argumentthe crimes were similar should be rejected. Likewise, its speculation that the decision not to prosecutepetitioner for the Jefferson crime was a tactical one should also be rejected. Neither of these conclusions is based on reasonably available documentary evidence which contradicts the conclusionsofpetitioner which are supported by the exhibits which accompanyhis petition. 187 1. There was no evidenceat all concerning the numberofpersons involved in the perpetration ofthe Jefferson homicide. Unlike the Taylor and Hassan crimes, each ofwhich involved four perpetrators, the Jefferson homicide may have been committed by a single, unassisted perpetrator. (Exhibit 69.) 2. Mr.Jefferson waskilled in his apartment some time between 10:00 p.m., November 14, 1980 and 11:40 a.m., November15, 1980. ' There was evidence that during this time span, from 10:00 p.m., on November 14 and continuing to some unknown hour, Mr. Jefferson wasin his apartment “getting high” with “a partner” of his. (Exhibit 69 -- statement of Jefferson’s wife.) While habeas counsel has not yet beenable to identify Mr. Jefferson’s partner there is no reason to suspect that Jefferson’s partner was anyone connectedin any with petitioner or Ross orto the Raymond Avenue Crips. Thus, there is evidence that during the time span when Jefferson waskilled in his apartment, he was “getting high” in the apartment with someone having no apparent connectionto petitioner or the Raymond AvenueCrips, andthus, as to the Jefferson crime,there was either an alternative suspect with no apparentties to the Crips (unlike the Taylor crimes) or a witness who was allowed 105 Tt is likely that Mr. Jefferson died a considerable time before 11:40 a.m., when his body was discovered, since Ralph Richards, a Vietnam veteran whocalled the police and was one ofthefirst to see the body, reported that when Mr. Jefferson was discovered his body wasalreadystiff. (Exhibit 69.) 188 to leave the scene ofthe crime (unlike the Hassan case). 3. There apparently was no fingerprint or other physical evidence obtained, tying the Crips to the Jefferson crime scene. (Exhibit 69.) Ross’s fingerprints were found at both the Hassan and Taylor crime scenes. 4. Ballistic comparisons do not indicate the weaponused in the Jefferson homicide was the same weapon usedaseither the Taylor or Hassan homicides. (Exhibit 69.) 5. Mr. Jefferson had no known connections to the RaymondStreet Crips as did Taylor (whose played basketball in Helen Keller Park and knew at least one of his assailants) and Hassan (who's son was a young Crip). (Exhibit 69.) 6. There is no description of a suspect vehicle which matchesthat ofthe vehicle at the Taylor and Hassan homes.(Exhibit 69.) 7. Unlike Michael Taylor, Teheran Jefferson wasa large scale marijuana dealer and large quantities ofthe drug was foundin his residence. (Exhibit 69.) 8. Although Mr. Jefferson wasshotin the back ofthe head like the Taylor and Hassan victims, only Jefferson was gagged, as well as bound. A rag was forced into his mouth. (Exhibit 69.) Finally, respondent is wrong to assert that no prejudice resulted to petitioner. Respondentignores the importance to the prosecution case of the Jefferson crimes. 189 Pretrial, the prosecutor forcefully argued that his position wasthat evidenceofthe Jefferson crimes wasrelevant to show the guilt ofboth defendants and particularly petitioner. (RT 1511.) He argued further that the Hassan murder was not an isolated incident but a part of a single ongoing conspiracy to rob and murderofdope dealers in that neighborhood. (Ibid.) The prosecutor arguedthatthe initial act in this series wasthe Jefferson murder. (/bid.) Here too, respondent ignoresthe prosecution’s reliance on the Jefferson crime to support its contention that petitioner acted with the homicidalintent necessary to capital murder, and also ignores the penalty phase significance of undoing the suggestion that petitioner had been involved in not just one, but three separate homicidalincidents. Asdiscussed in his petition, had trial counsel provided effective guilt phase assistance and adducedavailable evidence to showthat petitioner was not involved in the Taylor crimes and Jefferson crimes,or at the very least, demonstrate the dissimilarities between the three incidents so as to cast a doubt on petitioner’s involvement in or knowledge of the Taylor and Jefferson crimes and that the ring found in petitioner’s possession wasnot victim Bobby Hassan’s ring, the prosecutor would have beenleft with nothing but the faulty identification testimony of Elizabeth Moncrief. As conceded by the prosecution, on that basis alone no 190 reasonable judge or jury would have convicted petitioner of involvementin the Hassan killings. Further, had counsel adduced evidence showingthat petitioner was not involved in the Jefferson homicide-- a crime as to which the prosecutor had no direct evidencelinking petitioner, Ross or any person knownto either ofthem — no reasonable judge or jury would have accepted the prosecutor’s speculative invitation to assumethat petitioner was involvedin the Taylor crimes. '°° With no basis for linking petitioner to either the Taylor or the Jefferson crimes, andin light of evidence which counsel should have presented concerning neurological impairments which makeit more difficult for petitioner than for most people to draw accurate inferences about what others around him are intending, no reasonable judge or jury would have been able to conclude beyond a reasonable doubtthat petitioner, if he were one ofthe four men whoentered the Hassan residence on the day ofthe homicides, understood that a homicide would occur or personally intended that anyone be killed. Hence, but for counsel’s ineffective assistance, no reasonable judgeorjury could have foundtrue the special circumstance allegations or convicted petitioner of capital murder. Moreover, asa result of trial counsel’s ineffective assistance in failing to adequately investigate petitioner’s life history and 106 This is particularly true given the certainty with which petitioner can now argue that he was not involved in the Taylor crimes. 191 mental impairmentsandin failing to adequately challenge the prosecution’s misleading claims concerning petitioner’s alleged involvementin three homicidal incidents, "the death penalty was imposed by a sentencing authority which had such a grossly misleading profile ofthe petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death." (In re Clark, supra, 5 Cal.4th at 798). B. Defense counsel provided constitutionally ineffective assistance in failing to object to the introduction ofthe Jefferson crimes on groundsthat the introduction of this other crimes evidence violated petitioner's due process rights, and Evidence Code §§ 352 and 1101.(Claim VIIL.B.) '°” | First, respondent argues that becausetrial counsel believed at the timethathis general objection to the admission of evidence ofthe Jefferson crime was sufficiently specific that “trial counsel did havea tactical reason for not pursuing more specific reasons.” (Informal Responseat p. 115.) This is specious. Counsel’s mistake concerning the adequacy of his nonspecific objection can not be elevated to a “tactic.” It was a mistake. Further, it is clear that counsel never adequately prepared to deal with and attempt to exclude the Jefferson evidence. "Under both the...United States Constitution...and the California Constitution, ‘07 Petitioner incorporates here his timeliness arguments as to subclaim VIII.A. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 192 a criminal defendanthas the right to the effective assistance of counsel." [Citations.] Specifically, he is entitled to reasonably competent assistanceofan attorney acting as his diligent and conscientious advocate. [Citation.] This means that before counsel undertakesto act, or not to act, counsel must makea rational and informed decision on strategy and tactics founded on adequate investigation and preparation." (In re Marquez, supra, | Cal.4th at p. 602, citation omitted.) "Generally, the Sixth Amendmentrequires counsel's diligence andactive participation in the full and effective preparation ofhis client's case." (People v. Pope, supra, 23 Cal.3d at pp. 424-425.) Defense counselis requiredto investigate all possible defenses, research applicable law, make an informed recommendationto the client regarding the appropriate strategy, and present that strategy on behalf ofthe client. (Peoplev. Ledesma, supra, 43 Cal.3d at p. 222.) Because "investigation and preparation are the keys to effective representation [citation], counsel has a duty to interview potential witnesses and make an independent examinationofthe facts, circumstances, pleadings, and lawsinvolved." (Von Moltke v. Gillies, supra, 332 US. at p. 721 [92 L.Ed. 309, 68 S.Ct. 316].) "One ofthe primary duties defense counsel oweshisclient is the duty to prepare adequately fortrial." (Magill v. Dugger, supra, 824 F.2d at p. 886.) In the samevein, counsel must take steps to exclude inadmissible evidence, whichis 193 critical to the state's case or is highly prejudicial. (Walker v. United States, supra, 490 F.2d at pp. 684-685 .) The duty oftrial counsel to investigate and prepare is "so fundamental that the failure to conduct a reasonable pretrial investigation may in itself amountto ineffective assistance of counsel." (United States v. Tucker, supra, 716 F.2d at p. 583, fn. 16.) Here, Mr. Skyers’ failure to object to the introduction ofthe Jefferson crimes on grounds that the evidenceviolated petitioner's due process rights, and Evidence Code §§ 352 and 1101 wasnotthe productofa rational and informed tactical decision founded on adequate investigation and preparation. Mr. Skyersfailed to anticipate, as he should have, the importanceofthe Jefferson crimes to the prosecution case againstpetitioner. This is certainly true as Judge Skyers has no recollection ofthe fact that the prosecutor intended to argue petitioner’s participation in the guilt phase. (Exhibit 47, Guilt Phase Exhibits Vol. 3) Being unpreparedto counter the evidence,trial counsel was unpreparedto objecttoit fully. Thus,trial counsel was not prepared to argue that the foundational requirements of California Evidence Code section 1101 subdivision (b), had not been met. !* This permitted the prosecutorto rely on petitioner’s alleged 108 First, the accused must be implicated in the charge under trial. Second, there must be proof that the accused was involvedin the uncharged offense. Finally, there must be identity ofperson or crime, scienter, intent, system, or some integral evidence 194 involvementin the Jefferson shooting to besmirch petitioner’s character and to establish petitioner’s guilt by association and alleged propensity. (See RT 1522- 1523, 3192, 3706.) Also, admission of evidenceofthe Jefferson murderincreased the likelihood of confusing the issues which affected more than the guilt phase of the trial. Since the jury was instructed at penalty phase to consider “all of the evidence which has beenreceived during any part ofthe trial in this case” (CT 793),it undoubtedly considered not only the evidenceofthe Jefferson murder, butalso the evidence of the Taylor murder with which only codefendant Mr. Ross wascharged, in assessing whetherpetitioner shouldlive or die, thus underminingpetitioner’s Eighth Amendmentright to a reliable penalty verdict. Similarly,trial counsel’s failure to object to the admissionofthe Jefferson crimes under Evidence Code section 352 wasnot a reasonable tactical decision and highlights trial counsel’s failure to respondastrial events made clearer and clearer the need to defend against prosecution claims ofhis client’s involvementin this killing. Given that there was nodirect or circumstantial evidence to connect petitioner or Ross — or anyone knownto either of them— to the Jeffersonkilling, established between the charge undertrial and that sought to be introduced,clearly connecting the accused, showing that the person who committed the one crime must have committed the other. (People v. Poulin (1972) 27 Cal.App.3d 54, 65.) Far more than superficial similarities must be present before uncharged crimesare admissible underthis theory. (See generally, People v. Rivera (1985) 41 Cal.3d 388, 392.) 195 the evidence had nolegitimate probative value. Nonetheless, given the inflammatory nature ofthe evidence and the prosecutor’s apparent willingness to exploit it to show guilt by propensity and association, there was a clear danger that the evidence would improperly influence the jury’s verdicts as to guilt, special circumstanceliability, and penalty. Insofar as this is true, respondent’s assertion that any objection by trial counsel would have been “fruitless” is wrong. '” (Informal Responseat p. 115.) In arguingthat evidenceofthe Jefferson crime wasrelevant to the issue of intent, respondentrelies on the samecircuitous logic employed by the prosecutorin his offer of proof, and in arguing petitioner’s guilt. (Informal Response atp. 117.) Although no conspiracy was charged and there was no evidence tending to implicate either petitioner or Mr. Ross in the Jefferson murder, to justify the admission of evidence ofthe Jefferson killing, the prosecutor and respondent assume the existence of the conspiracy in orderto establish the Jefferson killing’s relevance. The prosecutor then used the evidence of the Jefferson killing to prove the very conspiracy it assumed wasin existence. Thus, evidence ofthe Jefferson killing was essential to the prosecution’s case as there wasno evidence of a 1° To make this claim, respondentis forced to rely on the previously stated “similarities” between the offenses. (Consider the single paragraph at pages 116-117 of the Informal Response.) 196 conspiracy without it and no way to even arguablyattribute the requisite homicidal intentto all four ofthe perpetrators of the Hassan burglary/robbery unlessa related killing precededthe killing ofBobby and Eric Hassan. The argument nowcarries less weight thanattrial. Thereis still no evidence to show petitioner or anyone knownbypetitioner wasinvolved in or aware ofthe Jefferson crimes, and now petitioner has demonstrated that he was not involved in the Taylor crimes. This alleged multi- crime conspiracy which supported the admission of, and wasin turn allegedly proven by, the evidence ofthe Jefferson crimes, is sheer fantasy. C. Trial counsel wasineffective in failing to object on the ground that the evidence was inconsistent with the prosecutor’s offer ofproof. (Claim VIII.C) '"° Onappeal, petitioner and Craig Ross argued that the prosecutor’s offer of proofwith respect to the Jefferson murder was highly misleadingin that he failed to disclose that he had no evidenceto present ofparticipation by either petitioner or Rossin the Jefferson murder. (Ross Opening Brief at p. 64.) As mentionedin his petition, and noted on appealthe prosecutor implied that he woulddirectly implicate both defendants whenhe told the court: 0 Petitioner incorporates here his timeliness arguments as to subclaim VIII.A. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 197 MR. SEMOW:Thepeople’s positionis that it is relevant to show the guilt of both defendants and again particularly Champion’s. That the Hassan murder wasnot an isolated incident but a part of a single ongoing conspiracy to commit robbery and murders of dope dealers in that neighborhood of which the Hassan murder wasonly one ofthe acts in furtherance thereof. This is particularly important because Mr. Champion is shownto have connections to this conspiracy beyond those connections tying him directly to the Hassan murders themselves. Theinitial act in this series is the Jefferson murder. (RT 1511.) The prosecutor went onto argue “that those persons involved in the Hassan murder, whether or not any ofthem werethe actual triggermen, went into the house knowing that murder had been committed before and would be committed again.” (RT 1512.) This could only have beentrue if the prosecutor had presented some evidencethat petitioner was involvedin the Jefferson crime. Respondent cites this Court’s examination ofthe appellate record to support its conclusion that there were no inaccuraciesin the offer ofproof. As respondentis aware, this Court was provided with only the prosecution’s uncontroverted testimony regarding the facts ofthe case. Petitioner has provided this Court and opposing party with police reports and investigative reports which demonstrate the significant dissimilarities between the cases. Thus, respondent’s attempt to bootstrap the incomplete comparisonofthe three incidents andits allegation ofno prejudice ( Informal Responseat p. 120), to a finding by this Court must be rejected. 198. D.Trial counsel wasineffective in failing to object to the prosecution’s conspiracy evidence and argument. In responseto this claim, respondentalternatively argues (1) the claim is procedurally barred; (2) trial counsel’s failures were the result of a reasonable tactical decision; (3) any objection would have beenfutile, and (4) any error in failing to object was not prejudicial. Each ofthese arguments is flawed and therefore must be rejected. 1. Petitioner’s claim is notprocedurally barred. Respondent has misread the opinion of this Court whenit argues that petitioner’s claim here is procedurally barred under Jn re Waltreus (1965) 62 Cal.2d 218. (Informal Responseat pp. 120-121, fn. 52.) The Waltreus rule provides that issues will not be reconsidered on habeas corpus once they have been raised and rejected on direct appeal. (In re Waltreus, supra, 62 Cal.2d at p. 225.) That is not the case here. The disposition of this claim by this Court wasas follows: “Defendants also complain that the prosecutor was guilty of misconduct because, throughoutthe trial, he asserted that the murders ofBobby and Eric Hassan and the murder of Teheran Jefferson were part of an ongoing conspiracy involving defendants and other members ofthe Raymond Avenue Crips gang. Even ifwe were to assumethat the prosecutor's allegations of a conspiracy were in some way improper, defendants have not preservedtheir right to raise the issue on appeal, becausethey failed to object to the prosecutor's commentsat trial.” (People v. Champion, supra, 9 Cal.4th at p. 31.) 199 Clearly, this Court only foundthat the issue had not been preserved for appeal. Here petitioner argues that his attorney wasineffective for failing to object to the prosecution’s conspiracy evidence and argument, the claim mustbe raised in this a petition for writ of habeas corpus.'"’ 2. Counsel’sfailure was notthe result ofa reasonable tactical decision. Respondentasserts thattrial counsel’s failure to object was the result of a reasonabletactical decision. Respondent argues that “because a conspiracy was not charged, there was no concern that the prosecutor argued that one might have existed” (Informal Responseat p. 121 fn. 53), and that this was a reasonable tactical decision. This is absurd. First, the second phrase ofrespondent’s assertion does not make sense. Perhaps respondent means to say that because a conspiracy was not charged,trial counsel was not concerned that the prosecutor would argue that one existed. If this is what respondent means to assert, the record belies such a conclusion. First, trial counsel makes clear that he was onnotice that a conspiracy theory was going to be relied on by the prosecutor, albeit not until after the jury had been selected and before the prosecutor’s opening guilt phase statement on September 11 Petitioner incorporates herehis timeliness arguments as to subclaim VIII.A. Those argumentsfully apply to this subclaim, and, for the reasons stated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 200 28, 1982. (RT 1511-1514.) It may be thattrial counsel was aware, but perhaps did not appreciate the significance ofthe prosecutor’s stated intention, at an earlier date. Accordingto his declaration, in June, 1982, Judge Skyers received a letter from the prosecutorregarding his intention to introduce evidenceofthe Jefferson crime at petitioner’s penalty trial. ''? As early as November /981/, trial counsel was notified that petitioner’s and Ross’ alleged involvementin the Jefferson crimes would be used at the penalty phase. (Exhibit 70, Guilt Phase Exhibits Vol. 3.) Trial counsel should have been on notice that the prosecutor would attempt to implicate petitioner by asserting a conspiracy theory from the time he took over representation ofpetitioner. This is so because the prosecutor informed both Mr. Skyers and petitioner’s previous counsel, Homer Mason, ofhis intent to do so. Asarguedin his petition, as early as June 16, 1981, the prosecution informed the defensethat it believed that there was a “strong factual connection” between the Hassan killings and the Taylor killing. At the June 16, 1981 hearing the prosecutor voiced his intention to move to consolidate petitioner’s case with that ofEvan Jerome Mallet. In July, the court ruled, preliminarily, that evidence ofgang membership andpetitioner’s affiliation with specific alleged Raymond Avenue Crips "2 Trial counsel does not recall having received the letter but acknowledgesthat he must have seen it because it bears his handwriting. 201 would be permitted so longas it was relevantto the theory ofthe case. Petitioner's counselat this time was Homer Mason. (RT 21a-22a; 29a, 37a-38a.) On August 4, 1981, the prosecutor’ s motion to consolidate Mallet and petitioner’s cases was denied. (RT 54a-56a.) On August 10, /98/, the prosecutor explained that the decision to seek the death penalty against petitioner was that the four murders — the two Hassan, the Taylor, and the Jefferson murder— wereall connected. (RT 60a.) During a suppression motion there was extensive testimony that petitioner was involved with the RaymondStreet Crips, and individually with Evan Mallet, Craig Mr. Ross, and Marcus Player. On August 21, 1987, Deputy Paul Bradleytestified that he formedthe opinion that petitioner was involved in the Taylor homicide becauseofhis association with Mallet, Player, and Mr. Ross. (RT 63a, 90a-91a.) On February 16, 1982, petitioner’s case was consolidated with that of Craig Ross. (RT 280a-283a.) On September 28, 1982, the prosecutor specifically argued that the case was“a series of crimes committed by the RaymondCrips.” (RT 1502.) It was unreasonablefor trial counselnot to realize pretrial that the theory of the prosecution’s case was that certain members ofthe Raymond Avenue Crips formulated a plan to commit and committed the robberies and murdersofJefferson, Michael Taylor and Bobby Hassan whowereall involved in drug sales. Moreover, prior to the introduction of evidence, the prosecutor secured a 202 ruling from the court which permitted him to argue a conspiracy theory. (RT 1511- 1514.) At the very minimum, trial counsel should have objected here. 3. Any objection would not have beenfutile. As recognized by this Court in People v. Durham (1969) 70 Cal.2d 171, “[c]Jonspiracy principles are often properly utilized in cases wherein the crime of conspiracy is not charged in the indictment or information. In somecases, for example, resort is had to such principles in order to render admissible against one defendant the statements of another defendant. [Citations.] In others evidence of conspiracyis relevant to show identity through the existence of a commonplan or design. [Citations.] In still others the prosecution properly seeks to show through the existence of conspiracy that a defendant who wasnotthe direct perpetrator of the criminal offense charged aided and abetted in its commission.”(/d., at p. 181 fn. 7, citations omitted.) The Durham case, as well as the instant case fall in the last category, i.e., the prosecutor sought to show through the existence ofconspiracy that petitioner, who wasnotthe direct perpetrator of the criminal offense charged, aided and abetted in its commission. !" 13 "All persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission,or, not being present, have advised and encouraged its commission ... are principals...." (Pen. Code, § 203 Thus,in the instant case the prosecution, in support ofits sole theory of guilt as to petitioner, sought to show that he "instigated or advised the commission ofthe crime"in that he was a party to a criminal conspiracy which included within its scope the robbery and murder of drug dealers and that he wasalso "present for the purposesofassisting in its commission" in that his conductat the Hassan residence was wholly consistent with such purposes. ''* Because the prosecutor’s offer of proofand the evidence ultimately produced did not support this theory, trial counsel wasineffective for failing to render his objection andthis failing was prejudicial to petitioner. 4. Petitioner was prejudicedby trial counsel’s ineffective assistance. Respondent lumpsits assertion of absence ofprejudice in the admission of the conspiracy evidence along with its general claim that admission of the Jefferson crime wasnotprejudicial. (Informal Response 124.) As noted above, this Court’s examination of the appellate record, which contains only the prosecution’s uncontroverted testimony regarding the facts ofthe case, led to the Court’s conclusion that there were no inaccuraciesin the offer ofproof. Petitioner has 31.) In this instant case it was alleged that petitioner was present at the time of the act constituting the offense. As the prosecutor did not present evidence that petitioner fired the shot that killed Bobby and/or Eric Hassan, it is clear that he was found guilty as a principal on the theory that he aided and abetted in the commission of theact. 204 presented additional facts contained in police reports and investigative reports which demonstrate the significant dissimilarities between the cases. Had counsel adequately prepared and made appropriate objections to the prosecutor’s conspiracy evidence(including the Jefferson evidence) and argument, those objections would have been granted. 205 V. PENALTY PHASE CLAIMSOF INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner’s death sentence was unlawfully and unconstitutionally obtained in violation ofpetitioner’s rights undertheFirst, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and underarticle I, section 1, 7, 15, 16, 17, and 24ofthe California Constitution and the statutory and decisional law of California, in that petitioner was denied effective assistance of counsel by various errors and omissionsofhis trial counsel relating to the penalty phase and as result of those errors and omissions, also denied his rights to due processoflaw, to freedom ofassociation, to equal protection, to confrontation, and to a fair and reliable guilt and sentencing determination. But for counsel’s errors and omissions, which werenot the product of any reasonabletactical decisionit is reasonablylikely that the result ofthe proceedings would have been more favorable to petitioner. Specific to this claim are three detailed subclaims. These claims are as follows: (1) Trial counsel failed to object to the prosecutor’s argumentthat petitioner would kill again if sentenced tolife without the possibility ofparole and that his demeanor should be usedas a factor in aggravation. (2) Trial counsel failed to object to the prosecutor’s argument that an alleged 206 lack of a mitigating factor was, as to each factor, to be considered a factor in aggravation. (3) Trial counsel failed to discover and produce substantial mitigating evidence at the penalty phaseofthetrial, evidence which counsel would have discovered had he conducted a reasonably competent penalty phase investigation. Contrary to the assertion of respondent, these claims of ineffective assistance of counsel are not precluded by the procedural bar against unjustifiably delayed claims. Further, in so far astrial counsel had no valid, tactical reason for the errors and omissions complained ofand petitioner was deprivedofa fair trial as a result of these errors and omissions, petitioner has established a primafacie caseforrelief. Attachedto petitioner’s petition are 242 exhibits,'’> including the declaration of trial counsel, now Los Angeles County Municipal Court Judge, Ronald K. Skyers, which individually and cumulatively represent reasonably available documentary evidence demonstrating thattrial counsel rendered ineffective assistance of counsel at the penalty phase andthat the failures and omissions discussed were not the result of a reasonable tactical decision. 5 See Exhibits to Penalty Phase Ineffective Assistance of Counsel Claims 1-240, and Guilt Phase Exhibits 47 and 67. 207 A. Trial counsel wasineffective in failingto object to the prosecutor’s argument that petitioner would kill if sentenced to life without the possibility of parole and that his demeanor should be used as a factor in aggravation 1. Trial counsel’sfailure to object was notthe result ofa reasonable tactical decision. In his closing argumentat the penalty phase of the trial, the prosecutor commented three times on petitioner’s and Ross’ in-court responseto the guilt phaseverdicts. First, he argued that defendants’ behavior showed that they would be a dangerto others if they were sentencedto life imprisonment without possibility of parole. !!° The prosecutoragain referred to this incident when he discussed whether either defendant had acted under the domination of another person in committing the murders. '!” At a later point, the prosecutor argued that defendants' behaviorin 6 The prosecutorsaid: "I ask you to recall the display that was put on for you by the defendants, and particularly Mr. Ross, when the verdicts were rendered at a time whenit should have been most important in his whole life to behavelike a civilized person in front ofthe jury. [{[] Mr. Ross engaged in a confrontation with the guards here and almostgot into a fight with them.[{] Is that the kind ofperson from whom we can protect not only the society outside of prison but society inside prison by incarcerating him for the rest of his life?" (RT 3699-3700.) 7 The prosecutor said: "When you rendered those verdicts that you so carefully consideredafter listening to so much evidence, [defendant Ross] was the one whofirst got up and in mockindignation started to walk toward the lockup, Mr. Champion followed. [[] But the fact that Mr. Ross is or may be the leader here does not mean that Mr. Champion was acting under duress or under domination. [{]] Mr. Champion follows along because he wants to.” (RT 3712.) 208 responseto the jury's verdicts showed defendants' lack of remorse for their 118crimes.'!® (People v. Champion, supra., 9 Cal. 4" at p. 941.) Respondentcontendsthat petitioner has neither presented a prima facie case of deficient performance nor demonstrated prejudice resulting from trial counsel’s failure to object to the prosecutor’s remarks. (Informal Responseat p. 127-128.) Initially, respondent “splits-hairs” when it argues that trial counsel’s declaration regarding his absence of objection is not documentary evidence establishing his failure to object was not tactical decision. In stating that he had no tactical reason for failing to object and/orto raise specific objections to certain evidence,trial counsel is clearly referring to those portions of this Court’s opinion wheretrial counselis faulted for failing to object. (Exhibit 47, Guilt Phase Exhibits Vol. 3.) In any event, there is no question thattrial counsel’s failure to object was not the product ofa reasonable tactical decision. As recognized by this Court, a timely objection and admonition would have negated any harm arising from the prosecutor's comments. (/d., at p. 941-942, citation omitted.) Had trial counsel 48 "Did either ofthem show you any remorse when they did that mock display of indignation for you when yourenderedthe verdicts of guilt, verdicts which you rendered not because you delighted in doing so but because you had to, you had no choice based upon the law and the evidence. [{] Did that show remorse on their part?" (RT 3727- 2728.) 209 objected, his objection would have been sustained ''° and trial counsel’s assurances to the jury that petitioner was not challenging anyone would have been unnecessary. (See Informal Responseat p. 128.) 2. The prosecutor’s remarks were improper. It has long been recognized that misconductby a prosecutorin closing argument may be grounds for reversing a conviction. (Berber v. United States (1934) 295 U.S. 78, 85-88.) Part of this recognition stems from a systematic belief that a prosecutor, while an advocate, is also a public servant "whoseinterest, therefore, in a criminal prosecutionis notthat it shall win a case, but that justice shall be done." (/d., at 88.) Beyondthe concern ofthe properrole ofthe prosecutor, courts also have held that prosecutorial misconductis particularly dangerous becauseofits harmful influence on the jury. Such misconduct "can be 'dynamite' to the jury because ofthe special regard the jury has for the prosecutor . . ." (People v. Bolton (1979) 23 Cal.3d 208, 213.) Decisions concerning penalty phase prosecutorial misconduct, like those regarding other features of a capitaltrial, have been predicated on the principle that "death is a different kind ofpunishment from any other which may be imposedin "9 See full discussion below in section V.A.2 of this argument. 210 this country." (Gardner v. Florida (1977) 430 U.S. 349, 357.) This difference has required the courts to ensure, by meansofprocedural safeguards and a heightened degree ofjudicial scrutiny that the death penalty is not the product of arbitrariness or caprice. "To pass constitutional scrutiny underthis heightened standard, the death penalty must not be applied in an arbitrary or capricious manner. Rather, there must be 'an individualized determination whether the defendant in question should be executed, based on the character of the individual and the circumstances of the crime." (Adamson v. Ricketts (9th Cir. 1988) 865 F.2d 1011, 1021.) Consequently, "[a] decision on the propriety of a closing argument must look to the Eighth Amendment's commandthat a death sentence be based on a complete assessment of the defendant's individual circumstances, and the Fourteenth Amendment's guarantee that no one be deprivedoflife without due process of law." (Colemanv. Brown (10th Cir. 1986) 802 F.2d 1227, 1239.) In the context ofprosecutorial penalty phase closing arguments, the courts have sought to implementthese rights in three general ways. First, in order to reduce the possibility of arbitrariness, courts have applied careful scrutiny to prosecutorial arguments that appeal to the emotions ofthe jury. This Court has declared that "the jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason in imposing the death 211 penalty." (People v. Haskett (1982) 30 Cal.3d 841, 864.) Thus,"irrelevant informationor inflammatory rhetoric that diverts the jury's attention from its proper role or invites an irrational, purely subjective response should be curtailed.” (/bid.) The federal courts have gone further and held that "even if a prosecutor's comments are confined to permissible subjects,ifthose comments are nevertheless designed to evoke a wholly emotional response from the jury, constitutional error can result." (Coleman v. Brown, supra, 802 F.2d at 1239.) The avoidanceofarbitrariness in the jury's exercise of its discretion also requires that jurors be "confronted with the truly awesomeresponsibility of decreeing death for a fellow human... ." (Lockett v. Ohio (1978) 438 U.S. 586, 598.) Improperprosecutorial comments "present an intolerable danger that the jury will in fact choose to minimize the importanceofits role, a view that would be fundamentally incompatible with the Eighth Amendment requirementthat the jury make an individualized decision that death is the appropriate punishment in a specific case.” (Caldwell v. Mississippi, supra, 472 U.S.at 331-334.) This Court has also reversed death judgmentson the ground that the prosecutor misled the jury as to its sentencing responsibility. (See e.g. People v. Crandell (1988) 46 Cal.3d 833, 881-885; People v. Milner (1988) 45 Cal.3d 227, 253-258; People v. Edelbacher (1989) 47 Cal.3d 938, 1038-1041.) 212 Another approach employed to channelthe jury's discretion has been to limit its consideration to those matters brought out in evidence. This approach has been unreservedly adopted by this Court, which long ago declared that the prosecutor's penalty phase argument "must be based solely upon those matters of fact of which evidence has already been introduced or ofwhich no evidence need ever be introduced becauseoftheir notoriety as judicial noticed facts." (People v. Love (1961) 56 Cal.2d 720, 730.) Moreover, the United States Supreme Court has declared that standards applied to capital case sentencing should bestricter than those applied in non-capital cases. (Gardnerv. Florida, supra, (1977) 430 U.S.at 349.) In Gardner, the Court held that a death sentence could not rest on non-record information, which wasnot presented to the defendant and which he had no opportunity to rebut. The Eighth Amendment and due process concerns expressed by the Court regarding the unreliability of such information is equally applicable to statements madeby the prosecutor that lack any support in the record. Petitioner submits that for the reasons stated above and below, the prosecutor’s comments were improperand constitute reversible error. Asarguedin the petition, a defendant’s nontestimonial conductin the courtroom doesnot fall within the definition of "relevant evidence" as that which "tends logically, naturally (or) by reasonable inference to prove or disprove a 213 material issue"at trial. (People v. Jones (1954) 42 Cal.2d 219, 222.) Neither can it be properly considered by the jury as evidence of defendant’s demeanor since demeanorevidenceis only relevantas it bears on the credibility of a witness. (California Evidence Code section 780.) If anything, focusing the jury's attention of a defendant’s courtroom conductdistracts attention from, and may diminish, the weight the jury assigns to the permissible factors identified by the instructions as legitimately aiding in the determination of the appropriate penalty. How the defendant comports himself -- or, more accurately, how he appears to be comporting himself-- at the counsel table within the highly structured andartificial world ofthe courtroom is the product ofmany factors. Regardless ofwhat the defendantis really feeling, the way in which he appearsto be acting is open to vast misinterpretation. Given the proof contained in thispetition, it is likely that Mr. Champion wasnot, as Mr. Semow accused, "displaying mock indignation," but rather was genuinely feeling indignant at the miscarriage ofjustice that had resulted in his being found guilty. Moreover, the point is that what the prosecutorreally argued was not simply that the jurors take into account whatactually occurred, but to draw inferences therefrom regarding petitioner’s state of mind. In other words, the prosecutor urged the jury to speculate, to infer a guilty mental state from petitioner’s appearance. 214 Behaviorofnorational probative value was usedasthe basis for an argument to the jury. Moreover, the argument wasnotjust that the jury take the behaviorinto account, but that unreliable factual inferences should be drawn from the behavior, and that the inferences then be used to support a capital sentence. The defense had no opportunity to rebut such an argument, or could rebutit only at the cost of surrendering the defendant's right to remain silent. The prosecutor's comment to the jury as to petitioner's demeanor, lack of remorse, and attempt to characterize petitioner as a "bad guy" wasalso a violation ofpetitioner's Fifth, Sixth, Eighth and Fourteenth Amendments. Moreover, astrial counsel neverraised the issue ofremorse, the prosecution’s argument was in violation ofpetitioner’s privilege against self-incrimination and right to refuse to testify. (Griffin v. California (1965) 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229.) Finally, California's prohibition against a capital sentencer's weighing nonstatutory aggravating factors on death's side ofthe scale establishes an important procedural safeguard. That safeguard is protected not only by state law, but by the Due Process Clause of the Fourteenth Amendmentas well. (Hicks v. Oklahoma (1980) 447 U.S. 343; Campbell v. Blodgett, supra, 997 F.2d at p. 522; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.) The prosecutor’s argument underminedthat 215 safeguard andviolated due process. '”° B. Trial counselfailed to object to the prosecution’s argument that an alleged lack of a mitigating factor was , as to each factor, to be considered a factor in aggravation. Respondent concedesthat the prosecutor’s argument that an alleged lack of a mitigating factor was, as to each factor, to be considered a factor in aggravation was improper under People v. Davenport (1985) 41 Cal.3d 247, '?' but argues that petitioner has not demonstratedthattrial counsel wasineffective for his failure to object. (Informal Responseat p. 139.) Respondent is wrong. Respondent implies that this Court concluded, based on the fact that this case wastried before Davenport, that trial counsel was not ineffective for failing to object. This is not what this Court said. Rather, this Court noted that neither petitioner nor Mr. Ross objected to the prosecutor's argument, and therefore they had not preserved the issue for consideration on appeal. (People v. Champion, supra., 9 Cal.4th at p. 939, citations omitted.) Further, this Court determined that the argument was nonprejudicial (/d., at pp. 939-940,citations omitted.) Here, asin his petition, petitioner respectfully disagrees. Ashe did earlier, '20 Petitioner incorporates here his timeliness arguments as to subclaim VIILA. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 21 Court specifically recognized that the prosecutor’s argument here was improper. (People v. Champion, supra., 9 Cal.4th at p. 939.) 216 petitioner respectfully urges that this Court consider the impact of various guilt and penalty claims in combination. Hadtrial counsel provided effective guilt phase assistance and adduced available evidence to show thatpetitioner was not involved in the Taylor crimes (Claim VI) , that the ring foundin petitioner’s possession was not victim Bobby Hassan’s ring (subclaim VII.A), the full extent of contradiction in the testimony of Elizabeth Moncrief (subclaim VII.C), no reasonable judgeor jury would have found that petitioner was involvedin any ofthe three killing incidents. Hadtrial counsel presented the evidence habeas counsel has presented concerning petitioner’s neurological impairments no reasonable judge or jury would have been able to conclude beyond a reasonable doubt that petitioner, even if he were one of the four men who entered the Hassan residence on the day ofthe homicides, understood that a homicide would occur or personally intended that anyone be killed. But for counsel’s ineffective assistance, no reasonable judge or jury could have found true the special circumstance allegations or convicted petitioner of capital murder. Moreover, as a result oftrial counsel’s ineffective assistance in failing to adequately investigate petitioner’s life history and mental impairments and in failing to adequately challenge the prosecution’s improper argument and misleading claims concerning petitioner’s alleged involvementin three homicidal incidents, "the death penalty was imposedby a sentencing authority which had such 217 a grossly misleading profile ofthe petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death." (In re Clark, supra, 5 Cal.4th at 798).'” C. Defense counsel failed to discover and produce substantial mitigating evidence at the penalty phase ofthetrial. 1. This claim wastimelyfiled. a. Nodelayis attributable to Mr. Merwin ' During his tenure as petitioner’s habeas counsel, Mr. Merwin identified the apparent inadequaciesofthe penalty phase investigation and presentation oftrial counsel Mr. Skyers. Mr. Merwin retained the services of an investigator and began locating and interviewing petitioner’s family members. Mr. Merwin’s investigator began to construct a family tree and identified for Mr. Merwin dozens ofpotential penalty phase witnessesto locate, contact and interview. In February of 1994, Mr. Merwin, relying upon the preliminary information that he and his investigator had gathered, requested funds from this Court (a) to 12 Petitioner incorporates here his timeliness arguments as to subclaim VIILA. Those arguments fully apply to this subclaim, and, for the reasons stated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 13 For the reasons stated at pp. 3-5, under the general allegations of the timeliness ofthis petition, insofar as Mr. Johnson was not appointed to representpetitioner in habeas proceedings andat no time undertook doing so, no delay is attributable to Mr. Johnson. 218 investigate possible mental health defenses, (b) to retain a neuropsychologistto examine petitioner, and (c) to conductthelife history investigation thattrial counsel should have conducted as part of his penalty phase preparations. Six months later, on August 24, 1994, the Court denied the request for funds to investigate mental health issues and retain a neuropsychologist, but authorized Mr. Merwin to expend up to $4,000 to investigate trial counsel’s penalty phase performance. As noted above in ArgumentI, the authorized funding was available for only seven weeks before Mr. Merwin wasrequired to discontinue work onpetitioner’s case. Mr. Merwin was unable to complete the investigation required to set forth a prima facie caseforrelief. b. No delayis attributable to Ms. Kelly Ms.Kelly’s tenure as habeas counsel began in June of 1995. As explained in the petition, Ms. Kelly had to begin by reviewing the entire appellate record, the trial file, police reports, and related records from the court proceedings of other alleged participants so that she could reach her own judgment — as she wasethically obligated to do — asto the full range andrelative strength ofpotential claims, how best to pursue the investigation, which claims to present, with what documentary support, and how to perform each ofthese tasks most effectively. (Petition, pp. 8- 11.) She also, of course, reviewed Mr. Merwin’s files. Contained within thefile 219 were notes of interviews with various family members who had been contacted during Mr. Merwin’s tenure as habeas counsel and Mr. Merwin’s funding requestto this Court which identified in a very general way potentially viable areas of penalty phaseinvestigation. Ms. Kelly used the funding secured and unspent by Mr. Merwin for preliminary penalty phase investigation, primarily in the collection of relevant documents and preliminary interviews with membersofpetitioner’s family. In November, 1996, having nearly exhausted the remainderofthe funding secured by Mr. Merwin, Ms. Kelly applied for additional funding from this Court and from the federal district court. The results ofthe preliminary investigation indicated that several factors had shaped andinfluencedpetitioner’s development and functioning during his childhood, adolescence and young adulthood,'** andthat he had struggled to overcome emotional, intellectual, and psychological impairments that may have been caused by a numberoffactors, including but not limited to, genetic mentalillness, prenatal exposure to physical abuse, the traumatic loss of his stepfather and abandonmentbyhis biological father, multiple head and other injuries, compromisedintellectual functioning, and an intergenerationalhistory of substance abuse. Funding was sought to continue the investigation to develop full 14 Petitioner was just eighteen years old whenarrested for the charged capital offense. (Exhibit 32; CT 39, 115.) 220 andreliable social and medical history for petitioner, so events in petitioner’s life and petitioner’s own behavior could be placedin proper perspective. Developing an accurate social and medical history and accurate mitigation evidence required further confidential interviews with petitioner, and further interviews with petitioner’s family members, and others who observedpetitioner over time, including friends, neighbors, social service providers, teachers, and clergy. It also required the gathering of school records, medical records, employment records, social service records, juvenile and adult criminal records, probation and parole records, and psychological and psychiatric records concerning petitioner and his extended family. Such records are essential to ensure the accuracy, and shedlight on the meaning andsignificance, of orally reported information, and essential to ensure thereliability and coherence ofthe case in mitigation offered in support of a life sentence. In January of 1997, the federal district court authorized $11,000 in federal funding for Ms.Kelly, Mitigation Specialist Dr. Scharlette Holdman, and Dr. Holdman’sstaffof case workers to continue to investigate petitioner’slife history. This Court denied counsel’s funding request later that same month. Following the authorization of additional investigative funds, petitioner’s 221 habeas team continued to investigate petitioner’s social and medical history.'> By August of 1997, the authorized federal funding and what had remainedofthe authorized state funding for penalty phase investigation was exhausted in the course of locating and contacting witnesses; conducting interviews; traveling; and identifying, locating, obtaining, and reviewing relevantlife history documents. On August 6, 1997, Ms. Kelly applied once again to this Court for funding to complete the penalty phase/life history investigation so that petitioner could present a prima facie showing ofpenalty phase ineffective assistance of counsel. It was Ms.Kelly’s beliefthat she then had in hand more information to demonstrate the likely merit of a claim ofineffective assistance of counsel and hence make a more persuasive showing ofthe appropriateness of funding further investigation. See Habeas Standards, standard 2-4.2; see also In re Gallego, supra, 18 Cal.4th at 834 (seeking reconsideration ofpreviously denied funding request is appropriate where counsel can “produce additional documentation or explanation to support the proposed investigation”). In support of the funding request Ms. Kelly explained that 5 During this same period, Ms. Kelly also had to devote considerable time and energy to the drafting and completion of an initial federal habeaspetition (setting forth only exhausted claims) so that a federal petition could be filed on petitioner’s behalf prior to the possible expiration ofthe federal statute of limitations on April 23, 1997. Because of uncertainties about how the newly enacted federal statute(AEDPA) would be construed, Ms. Kelly had no choice but to research, prepare andfile a federal petition — while in the process of investigating and preparing the state petition. 222 petitioner’s habeas team hadin hand tentative information demonstrating the prejudicial impactoftrial counsel’s failure to investigate petitioner’s life history and mental health. Accordingly, she requested that this Court reconsiderits previous denial of funds to investigate the claim ofpenalty phase assistance of counsel, and authorize petitioner’s habeas team to go forward and complete the preliminary investigation so as to confirm the reliability ofthe information gathered to date, determine the scope andtrue nature ofthe mitigating facets ofpetitioner’s life history so far identified, and by obtaining appropriate declarations and other documentary support, place the information in proper form before this Court. (See, In re Duvall (1995) 9 Cal4th 464, 474.) It is, of course, difficult for habeas counsel to gauge precisely when counsel has in hand sufficient facts and documentary support to establish a prima facie case for relief, and hence an obligation under this Court’s standards to present the claim in a habeaspetition. (In re Robbins, supra,18 Cal.4th at 806 fn. 28 and 29 (majority), 820 (Justice Kennard Concurring and Dissenting); In re Gallego, supra, 18 Cal.4th at 834; In re Clark, supra,5 Cal. 4th at 781.) In light ofthe relative rarity of this Court’s issuance of orders to show cause, a reasonable attorney would assumethat a prima facie case for relief requires a compelling showing, and hence that counsel must exercise caution to not unnecessarily risk summary denial by filing 223 before counsel has in hand information enough to set forth a prima facie case for relief. '2° Howeverdifficult a determination this is vis-a-vis most habeasclaims,it is all the more difficult and complex vis-a-vis a claim ofpenalty phase ineffective assistance of counselfor failure to conduct an adequate investigation into his client’s social and medicalhistory as a source of mitigating evidence. For example, by contrast, the “Garton subclaim” recently considered by the Court in In re Robbins, supra, 18 Cal.4th at 785-787 — a claim basedonthetrial prosecutor’s having allegedly lied and committed misconduct during the discovery process — was essentially based on a single declaration from a New Jersey police officer concerning materials he had delivered to the prosecutor prior to Mr. Robbins’trial. A claim basedontrial counsel’s failure to investigate his client’s social and medical history, as least in a case like petitioner’s where counsel’s failure to investigate was neartotal andpetitioner’s history is so replete with mitigating evidence, involves a far more complicated, multi-layered investigation and reasonably requires far more elaborate and extensive documentary support. Here, by August of 1997, habeas counsel’s investigation had revealed a 126 “Summary disposition of a petition which does not state a prima facie case for relief is the rule.” (In re Clark, supra, 5 Cal.4th at 781.) 224 numberofbroad butinterrelated areas ofmitigation: a family history ofmental illness,'”’ petitioner’s own brain damage,'”* petitioner’s harsh and inadequate treatment while a ward ofthe California Youth Authority,!”? chronic and severe 7 A history of mentalillness exists in both petitioner’s maternal and paternal families. By August, 1997 habeas counsel had identified nine membersofpetitioner’s family who had been diagnosed andtreated for schizophrenia, mood disorders, addictive diseases, and other serious mental illnesses. "28 By March 1997, Dr. Nell Riley Ph.D., had diagnosed petitioner with severe brain damage and had requested additional data in order to determinethe etiology of the impairmentandits effect on petitioner’s development, including academic performance. By August 1997, habeas counsel had discovered several events and factorsin petitioner’s prenatal and perinatal developmentthat could be responsible for the brain damage, including exposure to neurotoxins; birth trauma caused by anaesthetics, prolonged labor, or forceps; and prenatal injury caused by physical assault. Petitioner’s mother was beaten numerous times during her pregnancy with him. She was choked andrepeatedly struck in the abdomenbypetitioner’s father, with the specific intention of killing petitioner in utero. In one such instance, petitioner’s mother lost consciousness for several minutes. Additional significant factors which may have affected petitioner’s neurological condition include injury caused by physical assault during childhood and teenageyears, the drugs and alcoholpetitioner ingested beginning at age eight, inhalation of organic solvents, and malnutrition due to poverty. Petitioner’s mother breast-fed her children months past the age ofweaning,to the point that her nipples bled, because she could not afford to feed them properly. Additional factors include untreated childhood diseases, inadequate medical care, and loss of consciousness and head traumasustained in an automobile accident at age six. By August 1997, it becameclear that it was important to attempt to document each ofthese factors and the events surrounding them so that Dr. Riley and the Court could be confident that petitioner’s brain damage was long-standing and hence was relevant to understandinghis life history and to mitigating his involvement in criminalactivity. 9 Initial records from CYA reported that petitioner suffered from depression severe enough to require treatmentin the psychiatric unit. His counselors indicated that he continuedto strive for rehabilitation to escape gang pressure despite his mentalillness. In August of 1997, habeas counsel requested funds with which to investigate and documentthe severity of petitioner’s mentalillness, the treatment he received for it, and the effect the following conditions of confinement at CYA had on his preexisting mental 225 130 chronic exposure to violence withinviolence within petitioner’s family home, petitioner’s community and school,'*' andpetitioner’s lesser (and mitigated) role among juveniles committing the criminal conductoffered as evidence in ageravation.'*? Precisely how manyofthese interrelated themes had to be shown (and with whatlevel of factual detail and documentary support) to establish for the Court a prima facie case for relief was difficult for counsel to evaluate. But having condition: inadequate programsfor learning disabled and brain damaged students, physical violence, traumatic stress, and solitary confinement. 39 Petitioner, his siblings, and his mother were subject to chronic physical assault and psychological traumainflicted by petitioner’s father and two older brothers. The physical abuse wassevere and included kicking, suffocating, punching, slapping, throwing, and attempts to kill. The mother and children in the family were knocked or chocked unconscious, bruised, burned, cut, struck with blunt objects, and seriously injured repeatedly. By August, 1997, habeas counsel had identified almost 20 neighbors, teachers, family friends, employers, and relatives who witnessed the violence andits effects. It was importantto interview these people and attempt to gather declarations and other documentary evidence ofthe severe violence within petitioner’s home. 5! Preliminary investigation showedthat petitioner grew up in an impoverished area of South Central Los Angeles where he was exposedto life-threatening danger and violence on daily basis in both his neighborhood and schools. During 1997, efforts were underway to document, with records, experts’ analyses, and witnesses’ observations of petitioner’s personal experiences, the environment in which petitioner and his family lived, and the resources available to them. '32 Preliminary investigation had uncovered reports that petitioner was under the influence of others at the time of the offenses introduced during the penalty phase ofhis trial. He did not plan, instigate, or lead the others in commission of the offenses. Habeas counsel neededto interview the witnesses, co-defendants, and victims of both prior offenses. 226 discovered facts suggesting each of these mitigating themes, it was reasonable for Ms.Kelly to attempt to confirm and flesh out each themein order to ensure an accurate andreliable social history and to establish a primafacie case for relief that would lead to this Court’s issuance of an OSC. That, of course, was Ms. Kelly’s purpose in seeking additional funding in August of 1997. Oneofthe important elements ofpetitioner’s social and medical history, and in habeas counsel’s ability to make a preliminary showingofprejudice flowing from trial counsel’s investigative failure, was the evidenceofpetitioner’s brain damage. This was something Ms. Kelly was unable to effectively investigate until February 1997 when Ms. Kelly, using her own funds, retained Dr. Nell Riley, a neuropsychologist, to examine petitioner. Both this Court and the federal district court had denied requests for funds to retain a neuropsychologist.'*? Underthis Court’s decision in Gallego, this major facet ofthe never-presented case in mitigation —- and hence ofthe showing ofprejudice flowing from trial counsel’s investigative failure — was not something Ms. Kelly, as reasonable habeas counsel, should have unearthed at any earlier date. (In re Gallego, supra, 18 Cal.4th at '3Mr. Merwin’s February 15, 1994, request for funds with which toretain a neuropsychologist was denied in August 1994. Ms. Kelly’s November 1996 requests to this Court and the federal court for funds for psychological, neurological and psychiatric testing and examination were denied in January 1997. 227 828(denial oftimely request for investigation funds “will support a determination that the petitioner not only did not actually know ofthe information earlier but also should not reasonably have known ofthe information earlier”; emphasis in original).)'** Further, as noted above in footnote 132, Dr. Riley, in March, 1997, after analyzing the results ofthe testing she had administered, requested that counsel attempt to obtain additional information concerning the possible etiology and effects ofpetitioner’s impairments so she and the Court could be confidentthat petitioner’s brain damageoccurredearlyin his life and both contributed to his long standing difficulties and mitigated his involvement in criminalactivity (as well as casting doubt on the mens rea element of the special circumstance allegations). This too was part ofwhat Ms.Kelly was seeking funding to accomplish in her August 1997 request for funding. 34 As the Court explained in Gallego, supra, 18 Cal.4th at 828-29,“If (i) discovery of the information offered in support of a claim requires the expenditure of funds,(ii)the petitioner is indigent and cannot fund the investigation personally, and(iii) the petitioner timely files a request for funding of a specific proposed investigation, fulling disclosing all asserted triggering information in support of the proposed investigation, the petitioner’s appointed counsel has exercised due diligence with respect to the proposed claim. When our court denies such a request for investigative funds — having determinedthat the petitioner has failed to present sufficient ‘triggering facts’ to support the proposed investigation — we cannotproperly findthat the petitioner should have discovered such information without first obtaining funding from some other source or learning of the information in some other manner. Appointed counsel for the petitioner has no obligation to personally fund a habeas corpusinvestigation . . . .” (Emphasis in original.) 228 Ms.Kelly did not have luxury ofwaiting for the Court’s responseto her August 1997 funding request. Using her own funds, and considerable pro bono assistance from Scharlette Holdman andherstaff of case workers and volunteers, Ms. Kelly moved forward with the investigation, obtaining witness declarations and other documentary support needed to show the prejudicial impact oftrial counsel’s investigative nonfeasanceandto set forth a prima facie case forrelief.'*” Counsel also expendedfurther funds ofher own to obtain a declaration from Dr. Riley (Exhibit 67, Declaration ofNell Riley, PhD; October 22, 1997) andto obtain the services ofpsychiatrist Dr. Roderick W.Pettis, who examined petitioner at San Quentin and whoseevaluation ofpetitioner’s impairments and of various documented influences onpetitioner’s development was necessary in orderto place what we hadlearned aboutpetitioner into a cohesive and illuminating narrative. (See Penalty Phase Exhibit 1, Declaration ofRoderick W.Pettis, M.D.., October30, 1997.) There simply was no waythe claim presented could have been filed substantially sooner than November5, 1997,the date on which the petition was filed. The process of locating, fully interviewing and obtaining declarations from 35 The federal district court orderedthat petitioner file before this Court a petition setting forth his unexhausted claims by November6, 1997. While Ms. Kelly was unable to complete all of the investigative steps set forth in her August 1997 funding application, petitioner believes that what she did complete has enabled herto set forth a prima facie caseforrelief. 229 witnesses , of collecting, reviewing and presenting documentary support and arranging for the examinations anddeclarations by Drs. Riley and Pettis wasnot, and could not have been, completed substantially sooner by petitioner’s counsel, Karen Kelly. Thus,this claim wasfiled “without substantial delay”(i.e., within a reasonabletimeafter petitioner and his counsel knew or should have knownthe factual and legal bases for the claimsraised). (Standards 1-1.2; In re Robbins, supra, 18 Cal.4th at 784,787-788.) Further, insofar as there may be any delay flowing from either Mr. Johnson’s inability to serve as habeas counsel, or Mr. Merwin’s having to withdraw as habeas counsel becauseofpersonalfinancial and health-related problems, there is “good cause” for such delay. (Standard 1.2.) Finally, petitioner would note that evenifthis claim were deemeduntimely,it is a claim which must be addressed underthis Court’s miscarriage ofjustice exception to the timeliness bar. A fuller discussion of the prejudicial impact of counsel’s investigative failure is discussed below as part ofthe discussion ofthe merits ofthe claim. But petitioner would submit that as a result oftrial counsel’s ineffective assistancein failing to adequately investigate and present mitigating evidence concerning petitioner’s life history and mental impairments, particularly when viewed in combination with counsel’s failure to adequately challenge the prosecution’s misleading claims concerning petitioner’s alleged involvement in three 230 homicidal incidents (Claims VI, VII, and VID, "the death penalty was imposedby a sentencing authority which had sucha grossly misleadingprofile of the petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death." (In re Clark, supra, 5 Cal.4th at 798). 2. Trial counsel’sfailure to present substantial and credible mitigating evidence was notthe result ofa reasonable tactical decision. Respondentasserts that trial counsel was under noobligation to recognize, adequately investigate, consult and prepare appropriate lay witnesses and experts, and present evidence ofpetitioner’s full social history, including petitioner’s severe brain damage, parental death, family mentalillness and neurologic disease,divorce, poverty, andlife threatening danger at home and in the community. (Informal Responseat p. 143.) The reasoning employed by respondenthere is unclear, but respondent seems to imply that perhaps a thorough and complete penalty phase investigation was conducted by Homer Mason(petitioner’s priortrial counsel), and/or Mr. Skyers, and that Mr. Skyers decidednot to present the information elicited from these investigations. '°° This is not so. 136 Respondent disingenuously refers to Mr. Skyers’ and Mr. Mason’s “investigators” (Informal Responseat p. 144), as if there was more than oneinvestigator and as if Mr. Skyersutilized the services of an investigator. Mr. Skyers clearly states that he performedlimited investigation and retained no investigator to assist him. (Exhibit 47, Guilt Phase Exhibits Vol. 3.) 231 Mr. Skyersplainly states that his preparation for the penalty phase of petitioner’s case consisted only oftalking to family members andpetitioner’s youth parole officer. (Exhibit 47, Guilt Phase Exhibits Vol. 47.) Mr. Skyers did not gather supporting documentation so as to present evidenceofpetitioner’s full social history. Mr. Skyers was unawareofpetitioner’s severe brain damage, parental death, family mentalillness and neurologic disease, divorce, poverty, andlife threatening danger at home and in the community. Contrary to respondent’s claim, Mr. Skyers did not make tactical decision to present some evidence and notto present other -- Mr. Skyers did not know ofany of the information which is contained in the petition and in the numerous documents which support this claim, because he did not conductthe investigation necessary to reveal the substantial mitigating evidence petitioner has presentedhere. Respondentrelies on Penal Code section 987 ancillary services orders obtained by Mr. Masonasproofthat investigation into petitioner’s social history wasperformed. (Informal Response at p. 144-145.) In doing so, respondent misrepresents the type of expert assistance requested, the extent of expert assistance ordered andthe results of expert consultation. For example, Mr. Masondid not 232 request the services ofpsychologist Robert Wm. Shomertoassist in penalty phase preparation. Mr. Shomer wasrequested and approvedas an eyewitness identification expert. '°’ (CT 224-231 .) Further, this expert was neither used by Mr. Skyers or Mr. Mason. (CT 597-601.) Similarly, the court approved $250.00 for probation consultant Clyde Longmire. (CT 382.) The probation consultant was never used by Mr. Skyersandthereis no indication that any expert or investigator, directly or indirectly, provided any information to Mr. Skyers whatsoever. Mr. Skyers confirmsthat he did not rely on any such documentation or discussions between Mr. Mason and anyoneelse. Asargued abovepetitioner has notalleged that no psychiatric evaluation was performed (Informal Response at p. 144), only that the examination was minimal, insufficient, and insofar as the expert was not provided with necessary background information, any decision not to call Dr. Pollack or to request further testing, was not the result of a reasonable tactical decision. Attached hereto as Exhibit 5A is the letter detailing findings by Dr. Pollack to Mr. Skyers. Besides being entirely consistent with petitioner’s claim of innocence,the letter demonstrates the truly 137 Petitioner is at a loss to explain why respondent is under the impression that Dr. Shomer was approvedfor services beyond those necessary to eyewitnessissues (Informal Responseat p. 144), as Mr. Mason’s motion and the court order are clearly limited in this regard. 233 limited nature of the inquiry performed by Dr. Pollack and the complete lack of substantial information from which Dr. Pollack had to work. In additionto a letter from Mr. Skyers, Dr. Pollack reviewed only arrest reports, autopsy reports, and preliminary transcripts. Dr. Pollack’s inquiry waslimitedto five “legal” defenses. Noinquiry was madeor requested concerning possible bases for mitigation of sentence. (Exhibit 5A.) Respondent seemsto imply that petitioner’s claim is, that, based on information readily available to him, trial counsel was ineffective for failing to pursueinvestigation ofmental defenses. (Informal Response at p. 146.) This is not petitioner’s claim. Petitioner’s claim is that trial counsel failed to conduct a reasonable investigation into his client’s background andpersonal history, and that if he had done so he would have unearthed the wealth ofmitigating evidenceset forth in the petition. Further, had counsel conducted such an investigation and provided relevant information to a mental health expert, either counsel on his own or any mental health expert he consulted with, would have initiated or recommended neuropsychological testing. Neuropsychologicaltesting at the time oftrial would have revealed the impairment shownbythe battery of tests administered by Dr. Riley. es In his declaration, Judge Skyers acknowledges that had he knownthat 234 petitioner had been abusedin utero and beeninvolved in a serious car accident, each ofwhich suggested a possibility ofresulting brain damage, he would have requested funding for neuropsychological examination. (Exhibit 47, par. 26, Guilt Phase Exhibits Vol. 3.) Judge Skyers has stated that no one from petitioner’s family told him that petitioner had been abusedin utero or that petitioner had been involved in a serious car accident; but counsel admits that he never asked petitioner or any memberofpetitioner’s family whether petitioner had suffered any head injuries. (Ibid.) Certainly it is not reasonable for counsel to rely upon a capital defendant or the defendant’s family --- particularly a family with as many problems as petitioner’s family — to know whatinformation would be helpfulto the defendant’s guilt and penalty phase defenses and to volunteer that information without being asked. It is certain that had counsel conducted a reasonable inquiry, such as the inquiry conducted by habeas counsel, he would have learned ofthe in utero abuse and childhood auto accident (which resulted in head injury and loss of consciousness) and requested neuropsychologicaltesting. Further, as is set forth morefully in Claim IX ofthe petition, had counsel conducted a reasonable investigation ofhis client’s personal history and background, counsel also would have learned ofpetitioner’s malnourishmentas an infant, the repeated blowsto the 235 head petitioner suffered at the hands of his two mentally ill older brothers, petitioner’s early and recurrent problemsat school, petitioner’s inhalation of organic solvents and his ingestion of nearly lethal amounts of liquor in childhood. (See Petition Claim IX.C., pars. 1a through le.) Had counsellearned this information and provided it to a mental health expert -- which reasonable counsel certainly would have done given its obvious relevance to a mental health evaluation — the mental health expert would have discerned and communicated to counsel the appropriateness of neuropsychological testing. (See Exhibit 1 par. 11 a., Penalty Phase Ineffective Assistance of Counsel Exhibits Vol. 1.) Further, there can belittle doubt that counsel was obligated to conduct a reasonable thorough investigation ofhis capital client’s background and personal history. (See, e.g., In re Jackson (1992) 3 Cal.4th 578, 586, 612 [defendant’s trial counsel, by failing to conduct a reasonable investigation of defendant’s background and childhood to enable him to make an informed decision as to the best manner of proceeding at the penalty phase, failed to provide competent representation under the prevailing professional standards ]; and Siripongs v. Calderon (9" Cir. 1998) 35 F.3d 1308, 1316 [counsel was well below accepted standardsin failing to conduct more than a cursory investigation ofpetitioner’s background].) That counsel’s investigation of petitioner’s background was no more than cursory is apparent from 236 (1) the very meager penalty phase case he presented onpetitioner’s behalf (fully set out in two sentencesin this Court’s direct appeal opinion, People v. Champion, supra., 9 Cal.4th at p. 904) and (2) the fact that counsel was unaware of petitioner’s “family mentalillness . . ., divorce, poverty, and life threatening danger at home and in the community” — facts which a reasonable investigation would have easily unearthed. If counsel had conducted more than a cursory investigation into petitioner’s background and personal history, he could not have helped but discover the facts suggesting a reasonable possibility of brain damage and hence the appropriateness of neuropsychologicaltesting. The same argumentis applicable to trial counsel’s failure to trial counsel’s failure to recognize, adequately investigate, consult and prepare appropriate lay witnesses and experts, and present evidenceofpetitioner’s full social history, which includes, in addition to petitioner’s severe brain damage, parental death, family mental illness and neurologic disease, divorce, poverty, and life threatening danger at home and in the community. Faced with the convincing mitigation profile submitted in this petition and completely supported by credible documentation, respondentresorts to an unpersuasive argumentthat petitioner suffered no prejudice from trial counsel’s failings. Respondentcites to potential cross-examination of witnesses andthe facts 237 ofthe crime to support this argument. '2* (Informal Responseat p. 146-148.) Certainly, neurological and psychiatric experts as well as lay witnesses, would have been subject to cross-examination. They would also have been subject to redirect examination. Respondent ignores more that 240 declarations, records and other documents which present a full, comprehensive and persuasive history of petitioner’s severe brain damage, parental loss, family mentalillness and neurologic disease, divorce, poverty, and life threatening danger at homeandin the community, in mitigation of penalty. Instead respondent focuses on small portions of four exhibits but ignores the wealth of documentation describing the absence of compensatory or protective forces in petitioner’s life which exacerbated the long term consequencesofrisks that affected every sphere ofpetitioner’s life. Petitioner fully documentsthat his ability to understand the world i n which he lives was and is compromised by severe brain damage, mostst likely the result ofprenatal trauma caused byhis mentallyill father’s attempts too kill him in utero, infant malnourishment, headiinjuryfrom a serious automobile accident whichresulted in the death ofhis step father, intentional blowsto his head by his two older mentally ill brothers, voluntary inhalation of 88 Respondent wrongly accuses petitioner ofkilling “innocent children.” (Informal Responseat p. 145.) Petitioner did not kill Eric Hassan or any other child. 238 organic solvents, and ingestion of nearly lethal amounts ofliquor in childhood. Petitioner’s family was plungedinto chaos and poverty whenthe only positive father figure he ever had, his mother’s second husband, waskilled in an automobile accident when petitioner was only six years old. Petitioner’s maternal and paternal families have a significant history ofmajor mentalillness that contributed to his parents’ inability to protect and nurture him andhis siblings. Petitioner also faced the threat of annihilation daily in his homeat the handsofhis two olderbrothers, one diagnosedas suffering from schizophrenia and the other addicted to violence producing drugs. Thebrothersterrorized petitioner, his mother, and his siblings with knives, guns, physical assaults, and threats to kill. The oldest brother tortured petitioner and his other siblings, destroyed their treasured possessions at will, and kept them isolated from others in the community. Finally, by fortuity or design, Steve Champion’s community lacked the resources it needed to intervene and protect the lives of childrenlike petitioner, whose basic physical and emotional needs went unmet. Schools, health care providers, law enforcement agencies, and social service organizations in South Central Los Angeles had few if any adequate programs aimed atidentifying, assisting, and protecting at risk children in South Central Los Angeles. (Exhibit 1, Vol. 1, Claims relating to Penalty Phase Ineffective Assistance of Counsel.) 239 The cumulative impact of this powerful array ofmitigating evidence demonstrates that petitioner never had a fair chancein life, that it was unlikely (given his impairments) that petitioner would have been a dominantactor in any crime-committing foursome,and that there are multiple bases for having compassion for petitioner and for holding him less morally responsible for his actions than someonewhois neurologically intact and not scarred by so violent and non- nurturing an upbringing. Hadtrial counsel conducted a reasonable investigation and found and presented this evidence, it is more than reasonably likely that a verdict less than death would have been returned.!°? 139 This likelihood would have beenall the greater had counsel adequately prepared to defendant against prosecution assertions that petitioner was involved in the uncharged Taylor and Jefferson homicides and prevented the sentencing jury from finding or suspecting that petitioner was involved in three separate homicidal incidents. (See claims VI and VIII.) 240 VI. PETITIONER’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE PROSECUTOR IMPLYING THAT PETITIONER HAD A CRIMINAL RECORD AND BY THE TRIAL COURT’S REFUSAL TO GRANTAMISTRIAL (Claim X) A. This claim is timely and not otherwise procedurally barred. In additionto its general assertions of untimeliness as discussed in Robbins and Clark, respondentasserts that this claim is procedurally barred by either by Waltreus (the claim was previously raised on direct appeal) or Dixon (the claim should have beenraised on direct appeal). Respondent concludesits litany of proceduralbars by asserting that petitioner has waived any right to claim a violation of due processas he failed to make such an objection at trial. (Informal Response at pp. 149-150.) All of the reasons whichpetitioner argues permit presentation in his petition of other largely record based claims apply equally to this claim. While easily raised, petitioner wasin the process ofinvestigating other claims in this petition. Further, insofar as a primafacie caseforreliefrequires a compelling showing counsel exercised caution so as not to unnecessarily risk summary denialbyfiling before counsel hasin handinformation enough to set forth a prima facie case for 241 relief. (In re Clark, supra, 5 Cal.4th at 781.) \“° Respondent arguesthat petitioner has waivedhis claim of a violation of due process becausetrial counsel failed to object on that basis. (Informal Responseatp. 150.) At trial, Mr. Ross’ attorney objected as follows: Yesterday Detective Crewstestified to arresting two persons, and the question was then asked did these persons have a record, andthe officer respondedthat they did not. Those people being released leaves the inference that our clients have a record and that is why weare here. They were looking for persons with a record, and I think that that is tantamount to —I couldn’t ask the question of one ofmy witnesses, whether or not one oftheir witnesses had a record or not. That would be improper. I think it is prejudicial. (RT 1908.) Mr. Skyers joined in the motion. Without discussion, the motion was denied by the trial court. (RT 1908.) Clearly, it would have beenfutile for trial counsel to raise, at this point, the specific and additional objection of a due process violation. (See generally People v. Hamilton (1989) 48 Cal.3d 1142, 1189, fn. 27 [“rule that failure to objet bars appellate review applies only if a timely objection or request for admonition would have cured the harm...[here] an objection by defense counsel would almost certainly have been overruled, and consequently would have failed to cure the effect ofthe ‘© Petitioner incorporates here his timeliness arguments as to subclaim VIII.A. Those arguments fully apply to this subclaim, and, for the reasons stated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 242 prosecutor’s argument”); People v. Price (1990) 223 Cal.App.3d 606, 692 [rule that objection is necessary to preserve issue on appeal “is not applicable where any objection would almostcertainly be overruled.”) '" B. Petitioner has presented a primafacie caseforrelief. Respondentasserts that the testimony of Detective Crews was permissible and therefore no mistrial should have been granted. In doing so, respondent mistakenly relies on a portion of this Court’s opinion. (InformalResponseat p. 151- 152.) Contrary to respondent’s implication, while this Court may have determined that the trial court’s denial of the mistrial motion was correct, this Court did not conclude that the comments were proper. (People v. Champion, supra, 9 Cal.4th at p. 926.) Asarguedin the petition, the fact that an individual does or does not have a criminal record is inadmissible for any purpose. The existence or nonexistenceofa criminal recordis oftoolittle probative value to be admissible for any purpose. (California Evidence Code sections 352 and 1101; People v. Ozuna (1963) 13 141 Assumingthis Court disagrees with petitioner’s claim offutility, petitioner claims thattrial counsel’s failure to object on specific grounds of a due process violation amountedto ineffective assistance of counsel. Astrial counsel did object for the record, it was unnecessary for him to request a curative instruction. (Peoplev. Green (1980) 27 Cal.3d 1.) Anyfailure to raise the issue on direct appeal has resulted in a violation of petitioner’s right to effective assistance of counsel on appeal. 243 Cal.App.2d 338, 341-342.) Detective Crew's testimony strongly inferred petitioner wasinvolvedin prior crimes wastherefor improperandviolated petitioner's due processrights. 244 VIL. DEFENSE COUNSEL’S CONFLICT OF INTEREST PREVENTED HIM FROM RENDERINGEFFECTIVE ASSISTANCE OF COUNSEL(Claim XI) 1. This claim is timelyfiled. In addition to its general argument asserting the procedural bar against unjustifiably delayed claims, respondent contends that “by the time the jury returned its verdict, petitioner should have known or reasonably discovered whether the fees paid to his counsel weresufficient to compensate him for the time spent on petitioner’s case.” (Informal Response at p. 153.) Respondent’s contentionis wholly without merit. First, respondent seems to imply that the test is whetheror nottrial counsel’s fees were sufficient to cover the work he did rather than the work he should have done. Theessence ofpetitioner’s claim is that trial counsel did not request, either from the court or other sources, sufficient monies to adequately prepare this case. Aspointed out in the petition, counsel here was presented with the task of investigating and preparing for both a guilt and penalty phasetrial. The guilt phase consisted of four homicides which occurred in three separate instances. Other complex issues of gang membership, conspiracy, eyewitness identification, third 245 party culpability, and forensic evidence required extensive investigation, legal research, briefing, and argument. Finally, petitioner was before the jury with a co- defendant whose involvement wasstrongly indicated. Finally, a priortrial of one of the Taylor perpetrators had occurred. $10,000.00 wasnota sufficient fund for pretrial legal preparation alone. In addition court time wasalso extensive. Petitioner’s trial began on September 28, 1982. The sentence of death was imposed on December10, 1982. (CT 725-735; RT 3807-3808.) It is absurd to assert that this claim should have beenfiled in 1982. Petitioner is a layman with serious neurological impairments and a limited education. He was in no position to discern the conflict of interest under which his lawyer labored and, all the more clearly, was not able on his ownto prepare a habeaspetition. Petitioner did not have habeas counsel until Mr. Merwin was appointed in 1992 and, as explained above (Argument I.A.), Mr. Merwin was forced to stop working on petitioner’s case before being able to file a petition on his behalf. Further, this claim is entirely dependent on all ofthe Taylor, Hassan, Jefferson, and penalty phase IAC claims which required the investigation which led to the proof here. In other words, the monies collected by Mr. Skyers could be not be deemedinsufficient until it was determined just what investigation and preparation Mr. Skyers should have done, as 246 is presented by the petition and its supporting documentation. '* 2. An actualconflict ofinterest is apparent. It is remarkable that respondent discerns no actual conflict of interest. For a flat all-inclusive payment of $10,000 trial counsel accepted the responsibility of representing a capital defendant and proceededto trial without investigating all two ofthe three homicidal incidents which he knew or should have known werethe lynch pins ofthe prosecution case againstpetitioner and the bases for the prosecution’case to establish the mensrea necessary for death eligibility. Representing a client faced with being implicated in four homicides-- all of which the prosecutor put counsel onnotice that he intended to introduceas aggravation in the penalty phase -- trial counsel did not adequately investigate or prepare a penalty phase. Trial counsel’s representation ofpetitioner, however well intentioned it may have been, was woefully inadequate. Again, petitioner respectfully urges that this Court consider the impact of various guilt and penalty claims in combination. (Please see pp. 16-180f this Informal Reply.) 142 Petitioner incorporates here his timeliness arguments as to subclaim VILA. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 247 The funds Mr. Skyers collected from the Champion family werenot sufficient to compensate him for the time actually spent in preparation of or presentation of petitioner’s case, much less compensate him for the work that he knew or should have known wasnecessary to adequately representpetitioner. 248 Vill. THE UNCONSTITUTIONAL JOINDER OF PETITIONER’S CASE WITH THATOF CRAIG ROSS DENIED PETITIONER DUE PROCESS OF LAW AND IN COMBINATION WITH PROSECUTORIAL BAD FAITH, INEFFECTIVE ASSISTANCE OF COUNSEL, AND ERRONEOUSTRIAL COURT RULINGS RESULTED IN FUNDAMENTALLY UNFAIR GUILT AND PENALTY TRIALS(Claim XII) Here,as in his petition, petitioner claims the convictions and death sentence were unlawfully and unconstitutionally obtained in violation ofpetitioner’s rights underthe First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and underarticle I, section 1, 7, 15, 16, 17, and 24 of the California Constitution andthe statutory and decisional law of California, in that petitioner was denied effective assistance of counsel by the unconstitutionaljoinderofpetitioner’s case with that of codefendant Craig Ross, in combination with prosecutorial bad faith, ineffective assistance of counsel, and erroneous trial court rulings. Contrary to the assertion of respondent, this claim is not precluded bythe proceduralbar against unjustifiably delayed claims. Contrary to the assertion ofrespondent, petitioner has presented a primafacie case forrelief. Aspreviously stated, some ofthe claims referenced herein appear as separate claims in the petition. In its Informal Response, respondent doesnot further address 249 those claims here except to the extent petitioner claims theerror is cumulative. (Informal Responseat p. 157.) For that reasons,in this Informal Reply, petitioner replies to only those further assertions in pages 156-176. A. Ineffective Assistance ofTrial Counsel Respondent’s argument IX A. adds nothingto its prior argumentIV. B. The Joinder ofthe Taylor Murder to Petitioner’s Case Other than its assertion ofprocedural bars, Respondent’s argument IX B. relies entirely on this Court’s opinion on direct appeal and adds or argues nothing additional. (Compare Argument IX B to ArgumentsJII.A. at p. 39 and V.A.at p. 113-114.) 8 8 Respondent onceagain relies on this Court’s opinion, which was based entirely on the appellate record, to conclude that petitioner has failed to establish a prima facie case for reliefbased on the unconstitutional joinder ofthe Taylor case. (Informal Response at pp. 159-160.) Once again, the ring found in petitioner’s possession was not Bobby Hassan’s ring. (See guilt phase exhibits 56-59.) Ms. Moncrief’s trial testimony was so fatally flawed that the prosecutor concededthat it could not, standing alone, support a finding of guilt. In his petition, petitioner attached documentation which demonstrated how truly unbelievable this woman’s identification testimony was. (See guilt phase exhibits 62-64.) Had this information been introduced it is certain petitioner would not have been convicted. If he had, it would only have been dueto his association with Mr. Ross. Respondent once again cites this Court’s opinion to support its conclusion that petitioner was not prejudiced by the evidence of the Taylor crimes. (Informal Response at p. 160.) Unlike this Court at the time of issuing its automatic appeal opinion, respondent has the benefit of all of the documentation which leads to the inevitable conclusions that petitioner was not involved in the Taylor crimes and the prosecutor knew or should have © known this fact. Respondentbootstraps this Court’s statement that “[b]ecause the car [from which the Taylor suspects fled] contained items stolen during the commission ofthe Hassan and 250 4. This claim is not procedurally barred Respondentasserts that petitioner’s claim of improper, bad faith joinder was raised or should have beenraised on direct appeal, and for those reasons is procedurally barred by Waltreus or Dixon. (Informal Responseat p. 158-159.) This is not so. The documents which are attachedto the petition, particularly those which support petitioner’s lack of involvementin the Taylor, Hassan, and Jefferson crimes, demonstrate the case against petitioner was far weaker than indicated by the record on appeal, and further, that the prosecutor knew or should have knownthat (1) his case against petitioner was weak, (2) that petitioner wasnot involved in the Taylor crimes, and (3) that the Jefferson killing was dissimilar to the Hassan and Taylor crimes, and accordingly that the prosecutor pursued joinder and the introduction of evidence concerning and/or purporting to connectpetitioner to the Jefferson and Taylorcrimes in badfaith.'“* Thus, while portions ofthe joinder claim were argued on appeal, evidence available only via habeas was necessary to Taylorkillings, the jury could reasonable infer that the same four men who hadfled from the Buick had also participated in the [Hassan] murders” (People v. Champion, supra., 9 Cal.4th at p. 905, 906), to what is now an unsupportable theory that the Taylor evidence was admissible against petitioner and thus joinder lawful. Petitioner was notone ofthe men whofled the Buick following the Taylor homicide. 44 That same evidence, of course, helps demonstrate thatif trial counsel had done an adequate job investigating the Taylor and Jefferson crimes, he would have been in a far better position to oppose both joinder and the improper introduction of evidence concerning and/or purporting to connect petitioner to the Jefferson and Taylor crimes. 251 demonstrate the prosecutor’s bad faith manipulation of the legal process — as well as to demonstrate the full prejudice and miscarriage ofjustice resulting from that manipulation of the legal process. There is thus no basis for a Dixon proceduralbar. Respondentfurther asserts that because the gunshot residue test, Rose Winbush’s statement, and the actual ring size were knownor could have been discovered at or near the timeoftrial this subclaim is substantially delayed without justification or exception. (Informal Responseat p. 159.) This too is not so. As explained above,although it is true as to this claim that certain “triggering facts” were available to Mr. Merwin before February 1994 when Mr. Merwin madehis funding request, the availability ofthese facts only triggered counsel’s duty to investigate, not his duty to present the claims. (In re Robbins, supra, 18 Cal.4th at p. 806 fn. 28 and 29, 820.) This claim is more than “record-based.” It would not been possible or prudent for Mr. Merwin to makethis claim prior to conducting the investigation conducted by present habeas counsel. Further it has been demonstrated that the subclaims to the Jefferson crimes, to the Hassan crimes and to the Taylor crimes are interrelated and dependent on each other. Alleged proofofpetitioner’s involvement in the Jefferson crimes was argued as proofofhis participation in Hassan. Petitioner’s guilt in the Hassan crimes, the finding of special circumstances and the 252 imposition ofthe death penalty was dependantonhisparticipation in the Taylor crimes. The prosecution could not makeits case against petitioner without proofof each ofthese three homicidal incidents. As a result, counsel was required to investigate all of these crimes beforefiling the petition. '*° C. The Bad Faith ofthe Prosecutor. Thereare five subsections to this Argument by respondent. Respondent does not argue anything it had not argued in previous arguments X.A and X.C. '“° D. The unconstitutionality ofJoinder and Resulting Prejudice. Onceagain, respondentasserts that petitioner’s claim of unconstitutionality of joinder and resulting prejudice was raised or should have beenraised on direct appeal, and for those reasons is procedurally barred by Waltreus or Dixon. (Informal Response at p. 168-169.) Although similar claims were made by petitioner on direct appeal, numerous exhibits, which accompanypetitioner’s- petition augmentthe record here. Thus, neither bar applies. 1. The Taylor Rape/Murder Respondentrelies entirely on this Court’s opinion of direct appeal to 145 Petitioner incorporates here his timeliness arguments as to subclaim VIILA. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments, this subclaim, even if deemed untimely, should be addressed on the merits. 146 Any allegation of a proceduralbar is similarly pled in those arguments and has beenfully addressed by petitioner in preceding sectionsofthis InformalReply. 253 conclude that the Taylor crimes would have been admissible at petitioner’s separate trial. (Informal Response at p. 170.) As discussed in great detail above the prosecutor knewthat petitioner was not involvedin the Taylor crimes and that there wasno evidence whatsoeverthat he was involved in the Jefferson crimes. Therefore, there was no evidence to support the prosecutor’s conspiracy theory and so it follows, no proper ground upon which to admit any evidence ofthe Taylor crime at petitioner’s separate trial 2. Cora Taylor’s Identification For the same reasons as discussed just above (Section 1) and the additional reasons set out Claims VI.A-H,hadpetitioner been tried alone, Ms. Taylor would never have been given the opportunity to mistakenly identify petitioner as one ofthe men who entered her homeandparticipated in the robbery and murderofher son. 3, Gang Graffiti and Other Gang Evidence Respondentreasserts familiar procedural bars and arguments madeearlier. Here too, respondent once again relies on this Court’s direct appeal opinion, which was decided without reference to the numerous exhibits petitioner has attached here and to his petition. Here, in response to procedural bars and to respondent’s argument that petitioner has failed to present a prima facie case, petitioner incorporates those 254 arguments and claims madein the petition at sections IV and VI.A.through VI.H, and abovein section ILI. Specifically, the following bears repeating: Simply put, Deputy Williams either misread or misrepresented what was depicted in the photograph ofthe arcade graffiti. Either way, Williams erroneously read the words “Door Die” as "do-re-me." Basedentirely on this mistake, Williams premisedhis speculative, unfounded, and erroneous interpretation ofthe meaning of "do-re-me" coupled with the dollar sign as meaning "to obtain moneyin a robbery or burglary.” (RT 2657, 2675.) By associating petitioner’s name with the graffiti and the fact that it was on a wall near Michael Taylor’s home, the conclusionthat petitioner was involvedin an alleged gang conspiracy to rob and murder marijuana dealers and thus petitioner’s involvementin the Taylor robbery- murder and Hassan robbery-murders becomeobvious conclusions for the jury to reach. Each ofthese conclusions stemmedfrom a very basic and easily remedied mistaken and/or erroneousrepresentation ofthe words “do-or-die.” As hearsay, and erroneous hearsay atthat, all implications and conclusionsthat rested upon Williams’ factual representations were irrelevant and inadmissible and should never have beenbefore this jury. Respondent’s argumentthat petitioner’s expert’s testimony would not have affected the admissibility of Williams’ testimony, only the weight attributedto it is 255 unpersuasive. Only relevant evidence is admissible. (Evid. Code § 351.) Because the graffiti did not contain the words “do-re-me” Williams’ opinionas to the alleged meaning of those words wasirrelevant and for that reason inadmissible. The mere fact that petitioner’s alleged moniker appeared on a wall which waslocated near the Taylor home may have been admissible on the issue of gang membership'*’ butit was otherwise inadmissible as having no tendency in reason to prove or disprove any disputed fact that was of consequence to the crimes for which petitioner was tried. On the question ofprejudice, respondent here again relies solely on the opinion ofthis Court and concludesthat petitioner has not suffered prejudice. Petitioner disagrees and respectfully requests, once again, this Court reconsiderits earlier ruling in light ofthe further evidence now available that the ring taken from petitioner was not Bobby Hassan’s ring, and therefore the only evidence of petitioner’s guilt is Elizabeth Moncrief’s unreliable and insufficient identification. Asstated in the petition and above, the erroneous introduction ofthe graffiti, Williams’ erroneous factual statements that petitioner was seen by him in the company ofRoss, Mallet, and the Player brothers in the months preceding the crimes andthat the graffiti said “do-re-me,” andtrial counsel’s failure to consult and 47 Petitioner does not concedethis point. 256 call a gang expert on behalfofpetitioner, to find and call the authorofthe graffiti, and to point out that, when compared, the writing on the two walls and that on the arcade wall appearedto be authored by different persons seriously prejudiced petitioner’s case. Williams’ opinion thatthe graffiti on the wall across from the Taylor residence advertised petitioner’s involvement in a robbery was argued by the prosecution to support its theory that petitioner was involvedin a conspiracy to rob and murder marijuanadealers and actually participated in both the Hassan and Taylor crimes, and furtherthat petitioner had the requisite mentalstate to find him guilty of capital murder. 4. The MurderofTeheran Jefferson Respondent has not added any argument whichit had not madeearlier and whichpetitioner has not adequately addressed. (See Informal Response Argument X.B.) & Alleged Cumulative Effect Respondentraises the familiar Dixon procedural bar. Of course, these claims rely on numerousexhibits which were notpart ofthe record on direct appeal. Therefore the Dixon bar does not apply. 257 IX. CLAIMS OF PROSECUTORIAL MISCONDUCT(Claim XIII) Here, as in his petition, petitioner asserts that the death sentence was unlawfully and unconstitutionally obtained in violation ofpetitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and underarticle I, section 1, 7, 15, 16, 17, and 24 of the California Constitution and the statutory and decisional law of California, in that the prosecutor committed acts of prejudicial misconduct whichultimately resulted in a denial of petitioner’s rights to due processoflaw,to freedom of association, to equal protection, to confrontation, andto a fair and reliable guilt and sentencing determination. Specific to this claim are three claims of prosecutorial misconduct. Those claims are: (1) The prosecutor knowing committed prejudicial misconduct when he applied to the court for permission to and did secretly tape two conversations between petitioner and Evan Mallet and again between petitioner and Craig Ross; (2) The prosecutor knowing committed prejudicial misconduct when he knowingly misrepresented the similarities between the Jefferson killing and the Taylor and Hassan crimesto thetrial court; and 258 (3) The prosecutor knowing committed prejudicial misconduct when he represented to both defense counsel and the court that he had "no direct evidence Mr. Champion wasinside the [Taylor] house" but proceededto elicit an 11th hour identification from Cora Taylor and the inference that petitioner was not only involved in the conspiracy, but wasthetallest of the three individuals who entered the residence, from Mary Taylor, knowing the contrary to be true. Contrary to the assertion of respondent, this claim is not precluded by the procedural bars. Contrary to the assertion ofrespondent, petitioner has presented a prima facie caseforrelief. 1. Petitioner’s claim is timelyfiled. To respondent’s general allegation ofuntimeliness, petitioner responds as before. In short, Mr. Johnson wasnotrequired to investigate or present habeas claims. Mr. Merwin couldnotfile a completed position and wascorrect to continue his investigation but notto actually file. As the claims in this petition, including those ofprosecutorial misconduct, are dependent upon each other and penalty phase investigation was in progress present habeas counselinvestigated and presented 259 these claims in a timely fashion. '* 2. The prosecutor knowingly committed misconduct when he movedthe superior courtfor an order permitting him to transportpetitioner and Evan Mallet and then petitioner and Craig Ross in order to tape record their conversations. Before claimingpetitioner has failed to establish a prima facie case forrelief, respondentasserts a numberofproceduralbars to petitioner’s claim here. First, respondentasserts that petitioner should haveraised this claim on direct appeal. This is so, says respondent, because“[o]n direct appeal, petitioner made numerous challenges to the admissibility of the tape recorded conversations. Thus, he could have and should haveraised the issue of misconduct...on direct appeal.” (Informal Response at p. 180.) This assertion is without merit as petitioner’s claim of prosecutorial misconductrelies, in large part, on the transcript ofpretrial proceedings in the Evan Mallet case. Respondentrecognizes this is so. (Informal Response at p. 180.) Obviously, those transcripts were not part ofthe record on direct appeal. Thus, the claim is properly brought here. The mere existence ofthe Mallet transcript prior to trial and prior to these proceedings doesnotindicate the petition was untimely filed. Petitioner has faulted 48 Petitioner incorporates herehis timeliness arguments as to subclaim VIII.A. Those arguments fully apply to this subclaim, and, for the reasons stated in those arguments, this subclaim, evenifdeemed untimely, should be addressed on the merits. 260 trial counselfor failing to read the Mallet transcripts and for failing to bring them to the attention ofthe trial court. (See for example Claims VI.A, B, C, E, F, G, H, VILF, VIIA, and D; Exhibits 10, 11, 16, 22, 28, 30, 34, 36, 38, 51, 68, 75.) It stands to reason that trial counsel could not effectively object to the tapes on the ground ofprosecutorial misconduct because that objection was based on information that he was unaware existed. '*’ It follows that appellate counsel could not raise a claim that relied on informationthattrial counsel had not discovered and was not madepart of the appellate record. a. Petitioner has established a prima facie case forrelief. Respondent wrongly asserts that “petitioner’s sole support for his claim of misconductis a stipulation in the Mallet case....” (Informal Responseat p. 181.) This simply is not so, and, yet another instance ofrespondentwilfully ignoring exhibits and the record. Asdiscussed above on July 30, 1981, prosecuting deputy district attorney Semow movedthe superior court for an order permitting him to secretly tape two gonversations betweenpetitioner and Jerome Evan Mallet. (CT 401-402.) In his 49 Forall ofthose reasons stated in other claims and in reference to the petition in general neither Mr. Merwin nor Ms. Kelly were untimely in the discovery of the Mallet transcripts and in raising those claims whichrely in part on those transcripts to establish a prima facie case. 261 declaration in support of his request, Semowjustified his request on his information andbeliefthat Mallet and petitioner’s separate cases bore “close factual connections.” (CT 403.) Semow requested that the taping take place on August4, 1981, a time which he declared would be “thefirst and possibly the only time [Mallet and petitioner would] appearin court together.” (CT 403.) The reason Mallet and petitioner would be in court together on August 4, 1981, was because Semow had scheduled a motion to consolidate the two men’s casesfor that date. (CT 383-387.) Semow’s motion to consolidate wasfiled on July 24, 1981. (CT 383.) Also on July 24, 1981, Mallet’s attorney Charles A. Gessler, filed an opposition to Semow’s motion to consolidate. In it, Gessler arguedthis Court’s controlling authority People v. Ortiz (1978 ) 22 Cal.3d 38. Ortiz stood for the very straightforward proposition that defendants may notbe joined unless they are named together in at least one count of the Information. (/d.) The timing ofMr. Semow’sactions belie respondent’s assertion that neither misconductnora due process violation occurred. Accordingto the stipulation and not disputed by respondent, Semow’s motion to secretly tape petitioner and Mr. Mallet as they were broughttogether to court followed Semow’s realization that by law the two men’s cases could not be consolidated. In other words, Semow applied 262 to the court for permission to tape while petitioner was being transported for hearing on a motion which the prosecutor had every intention of taking off calender, but which Mr. Semowlet remain on calenderso as not to lose the opportunity to tape petitioner’s conversation with Mr. Mallet. Moreover, when Semow applied to the court for permission to tape he did not advise the court that the motion was “not well taken.” In other words, Mr. Semow’s “goodfaith,” ceased to influence any of his requests once he knew Mallet andpetitioner could not be joined. According to the stipulation “at that point when [Semow] becameconvinced that Ortiz was controlling law, he had timeto take the consolidation off calendar but did not doso, and the reason that he did not do so washis desire to get the tape of conversation between Mr. Champion and Mr. Mallet, and that he did not notify counsel for Mr. Mallet ofthe proposed tape recording.” (Exhibit 68, Guilt Phase Exhibits Vol. 3.) Mr. Semow misrepresented the legality of his request to tape to the court and the defendants’ counsel. Respondentrelies on this Court’s finding, on direct appeal, that the taping of petitioner and Ross’ conversation was permissible to support its assertion that the taping ofpetitioner and Mallet’s conversation did not constitute misconduct. (Informal Responseat pp. 181-182.) This Court did not have the Mallet transcripts andthe stipulation ofthe parties beforeit. 263 Respondent’s argument that it was ofno consequencethat the motion to consolidate was not taken off calendar as “petitioner was scheduled to come to court for hearings on other motions” ( Informal Responseat p. 182), is perhapsits most disingenuous. The date of August 4, 1981 was “the first and possibly the only time [Mallet and petitioner would] appear in court together.” (CT 403.) Ifthe motion were taken off calender, Mallet and petitioner would not have been transported together for the motion to consolidate or any other motion. '*° Finally, as arguedin the petition, the prosecutor’s misconduct wasprejudicial to petitioner. During cross-examination, Mr. Semow discussedpetitioner’s conversation with Mr. Mallet. (See Claim V.I. ) By referring to the taped conversation between Mr. Mallet and petitioner, Mr. Semow further connected petitioner to the Taylor crime. This was despite the fact that Mr. Semow had previously represented to the court that he had no reasonto believe petitioner was directly involved in Mr. Taylor’s murderand despite the fact that, as provedin the Taylor claims above, the prosecution had actual or imputed knowledge that petitioner wasnot involved in the Taylor crimes. Further, the portion of the conversation emphasized by Mr. Semow impliedthat petitioner and Mr. Mallet 150 Respondentoffers no documentary evidence to indicate that Mr. Mallet was scheduled to appear on August 4, 1981 for any purpose other than the motion to consolidate. 264 were attempting to fabricate an alibi for petitioner as to the Hassan killings, by implying that Nicardo Petit was involved. '°! 3. The prosecutor committedprejudicial misconduct when he knowingly misrepresented the similarities between the Jefferson killing and the Taylor and Hassan crimesto the trial court. a. Petitioner’s claim is not procedurally barred. Initially, respondent argues that petitioner’s claim here is procedurally barred. (Informal Responseat pp. 184-186.) Of course this is not so. On direct appeal, petitioner advancedsimilar arguments and claimedthat the prosecutor committed misconduct in misleading the court in its offer of proof regarding the similarities between the Jefferson and Hassan crimes(joining Ross’briefs), and that the prosecutor failed to meet a foundational requirement for admission ofthe Taylor and Jefferson crimes. Here, as in his petition, petitioner argues that the prosecutor knowingly committed prejudicial misconduct when he knowingly misrepresented the similarities between the Jefferson killing and the Taylor and Hassan crimesto the 51 Respondent mistakenly states that petitioner has not presented a prima facie case on prosecutorial misconductrelating to the tape recording of conversations between petitioner and Mr. Ross. (Informal Responseat pp. 183-184.) Petitioner fully incorporated here numerousclaims involving the Champion-Rosstapes. (See p. 249 referring to paragraphs 1-18 of Claim VII and paragraphs D1-D10 of Claim XII. Here, he incorporates the reply to respondent’s assertions as outlined in above sections. 265 trial court. °? In support ofthis claim, petitioner relies on 14 attached exhibits. '°° Insofaras this claim relies on documentary evidence outside of the appellate record, the claim could not have been madeondirect appealandis not procedurally barred. (See In re Harris (1993) 5 Cal.4th 813, 828, fn. 7.) Further, for the reasonsstated above, Mr. Johnson was under noobligation to advance this habeasclaim. Forall of the reasons stated above and incorporated herein, neither Mr. Merwin not Ms. Kelly could have madethis claim any sooner. '”* Respondentsingles out 4 ofthe 14 exhibits and argues each (exhibits 48, 49, 50, and 69) is “cumulative to the evidenceat trial” and additionally that exhibit 50 “is not ‘in such a form that perjury may be assigned upon the allegationsifthey are false” and further that it involves “inadmissible hearsay.” (Informal Responseatpp. 185-186, fin. 62.) ° These arguments are wholly without merit. Noneofthe above mentioned exhibits is cumulative. As arguedin the 152 Petitioner fully incorporated claims VII.C, VII.D., and VLH.in this claim. (See Petition at p. 252.) 13 Exhibits 18, 28, 32, 33, 34, 35, 36, 47, 48, 49, 50, 69, 74, and 75. 154 Petitioner incorporates here his timeliness arguments as to subclaim VIILA. Those arguments fully apply to this subclaim, and, for the reasonsstated in those arguments,this subclaim, even if deemed untimely, should be addressed on the merits. 155 Ty making its argumentthat petitioner’s claim here is “unsupported by additional facts pertinent to his claim” respondent ignores the other 10 exhibits petitioner has attached hereto and incorporated herein. 266 petition, police and prosecution reports and other documentation concerning the Jefferson killing indicate the crimes were glaringly dissimilar in at least the following respects: a. There was no evidenceat all concerning the numberofpersons involved in the perpetration of the Jefferson homicide. Unlike the Taylor and Hassan crimes, each ofwhich involved four perpetrators, the Jefferson homicide may have been committed by a single, unassisted perpetrator. (Exhibit 69.) b. Mr. Jefferson waskilled in his apartment some time between 10:00 p.m., November 14, 1980 and 11:40 a.m., November 15, 1980. '°® There was evidence that during this time span, from 10:00 p.m. on November 14 and continuing to some unknown hour, Mr. Jefferson wasin his apartment “getting high” with “a partner” of his. (Exhibit 69 -- statement of Jefferson’s wife.) While habeas counsel has notyet been able to identify Mr. Jefferson’s partnerthere is no reason to suspect that Jefferson’s partner was anyone connected in any with petitioner or Ross or to the Raymond Avenue Crips. Thus, there is evidence that during the time span when Jefferson waskilled in his apartment, he was “getting high” in the apartment with 156 It is likely that Mr. Jefferson died considerably before 11:40 a.m., when his body wasdiscovered, since Ralph Richards, a Vietnam veteran whocalled the police and wasoneofthe first to see the body, reported that when Mr. Jefferson was discovered his body was already stiff. (Exhibit 69.) 267 someone having no apparent connectionto petitioner or the Raymond AvenueCrips, and thus, as to the Jefferson crime, there waseither an alternative suspect with no apparentties to the Crips (unlike the Taylor crimes) or a witness who was allowed to leave the scene of the crime (unlike the Hassancase). c. There apparently was nofingerprint or other physical evidence obtained, tying the Crips to the Jefferson crime scene. (Exhibit 69.) Ross’s fingerprints were found at both the Hassan and Taylor crime scenes. d. Ballistic comparisons do not indicate the weaponused in the Jefferson homicide was the same weaponthat was usedin either the Taylor or Hassan homicides. (Exhibit 69.) e. Mr. Jefferson had no known connections to the RaymondStreet Crips unlike Mr. Taylor (whose played basketball in Helen Keller Park and knewat least one ofhis assailants) and Mr. Hassan (who's son was a young Crip). (Exhibit 69.) f. Thereis no description of a suspect vehicle which matchesthat of the vehicle at the Taylor and Hassan homes. (Exhibit 69.) g. Unlike Michael Taylor, Teheran Jefferson wasa large scale marijuana dealer and large quantities ofthe drug was foundin his residence. (Exhibit 69.) h. Although Mr. Jefferson was shot in the back ofthe head like the Taylor and Hassanvictims, only Jefferson was gagged, as well as bound. A rag was forced 268 into his mouth. (Exhibit 69.) Neither are petitioner’s attached exhibits barred by the hearsay rule. It has long been the rule that declarations and other exhibits attached to a petition “may be incorporated into the allegations, or simply serve to persuade the court ofthe bona fides ofthe allegations. If the return does not dispute the material factual allegations, the court may take them astrue, and resolve the issues without a reference hearing.” (/n re Fields (1990) 51 Cal.3d 1063, 1071 fn. 2 citations omitted.) Here, petitioner has attached documentation which was containedin trial counsel’s file and which wasprovided to defense counsel Skyers by the prosecuting attorney. '*’ If Exhibit 50 is not a note given to the police or written by a police officer. respondentis in the position to demonstrate as much. Respondent’s final procedural bar, waiver, is equally unpersuasive. Respondent recognizes that Mr. Skyers objected on more than one occasion and on more than one ground that evidence of the Jefferson homicide should not be offered ) 158against petitioner. (Informal Responseat pp. 187-188. Healso objected to '57 Recall, trial counsel did not conduct any independentinvestigation of the Taylor homicide. 8 Petitioner argued in claim VIII. A. that defense counsel provided constitutionally ineffective assistance by failing to discover and produce evidencethat the Jefferson case was notsimilar to either the Hassan or Taylor crimes which would have precluded admission ofthe Jefferson evidence and undercut the prosecution’s theory that petitioner was a participant in or at least had knowledgeofall three incidents andits 269 evidenceofoffering the Taylor crimes againstpetitioner.’ Contrary to respondent’s assertion, Mr. Skyers’ objections were not “nonspecific.” An objection is sufficientifthe record showsthetrial judge understoodthe issue presented. (People v. Scott (1978) 21 Cal.3d 284, 290.) Here, Mr. Skyers objected to admission of crimes in whichhis client was not implicated by direct evidence and whichhis client was charged with committing. The prosecutor’s presentation of circumstantial evidencein his offer ofproofwas incomplete and misleading. In any event, after the jury heard the evidencerelating to the Jefferson homicide, trial counsel was in no better position to object more fully. This is because, as argued above,trial counsel performednoinvestigation into the Jefferson homicide, only read the Taylor crimereports and so did not have in mindany ofthe information demonstrating the dissimilarities ofthese crimes and the Hassancrimes, and so was unableto fully object to the testimony. b. Petitioner has made a prima facie case. theory that petitioner’s alleged knowledgeofthe Jefferson homicide evidenced the required mental state for finding the special circumstances to be true. 19 Prior to trial, defense counsel objected to any referenceto petitioner as having been involved in the Taylor crimes. Trial counsel argued that, “[t]he Taylor killing [was] not charged to Championat all, and to make some reference or some hint that he might be involved in some way...wouldbe highly prejudicial...” (RT 1519.) The prosecutor respondedthat he had no direct evidence that petitioner was inside the Taylor house, and that he had given defense counsel“evidence of one negative identification that was[not] contained in any written report.” (RT 1519.) 270 Onceagain, petitioner relies on this Court’s opinion on direct appeal to support its argumentthat petitioner has not made a primafacie case. On direct appeal, this Court wasnot privy to the wealth of documentary evidence whichthis court and respondent, now have on habeas. These documents independently and cumulatively demonstrate the dissimilarities noted above between the Jefferson killing and the Taylor and Hassan crimes, dissimilarities undermining the prosecutor’s theory for admitting the Jefferson evidence. (See preceding section of this argument.) Further, the prosecutor argued to the jury that knowledge ofthe Jefferson killing meant that the perpetrators ofthe Hassan crimes had entered the Hassan residence with the requisite criminal intent, i.e., an intent to kill or assist in the killing of a human being. The prosecutorattributed petitioner’s alleged knowledgeofthe Jefferson crimeto his alleged membership in the Raymond AvenueCrips, his alleged association with the Evan Mallet, the Player brothers and Craig Ross and connected the Crips, Mallet, the Player brothers and Rossto the Jefferson killing by misleading the court and jury as to the purported similarities between the Jefferson killing and the charged offenses. 271 4. The prosecutor knowingly committedprejudicial misconduct when he represented to both defense counsel and the court that he had "no direct evidence Mr. Champion wasinside the [Taylor] house" butproceededto elicit an I 1th hour identificationfrom Cora Taylor andthe inference that petitioner was not only involved in the conspiracy, but wasthe tallest ofthe three individuals who entered the residence, from Mary Taylor, knowing the contrary to be true. a. Petitioner’s claim is supported by reasonably available documentary evidence. Initially, respondent argues that the support for petitioner’s claim consists of “conclusory allegations ofmisconduct andutter speculation.” (Informal Responseat p. 192.) This is not so. Petitioner’s claim is adequately supported by documentary evidence and is neither conclusory or speculative. This claim of misconductis based onthe specific argumentshere as well as fully incorporated Claims VIA though VI.H andthe exhibits in support of those claims. (See Petition at p. 255.) The merits ofthis claim is discussed in more detail below. b. Petitioner has made a primafacie case forrelief. Respondentasserts that petitioner has not made out a prima facie case of misconduct. In support ofthat assertion, it implies that the prosecutor sought an in- court identification from Mrs. Taylor of Ross and concludes that “[t]he record 272 demonstrates clearly that the prosecutor was as surprised as the defense when Cora Tayloridentified petitioner.” (Informal Responseat p. 193.) It has been demonstrated, both above andin the petition, the prosecutor did not seek an identification ofMr. Ross, but rather, went on a fishing expeditionin the hopethat Mrs. Taylor-- who wasrecognized as a poor eyewitness-- might mistakenly, but to the prosecution’s benefit, identify petitioner as one of the men whoentered her home and murdered her son. (RT 2244-2245.) After Mrs. Taylor’s surprise and mistaken identification, the prosecutor asked that the record reflect that Mrs. Taylor identified petitioner as one ofthe men who entered her home, then, on numerous occasionsreinforcedthis identification and specifically, during questioning, referred to petitioner by nameas oneofthe perpetrators ofthe Taylor crimes. (RT 2246, 2248, 2250, 2255, 2263, 2302, 2304, 2305.) If the prosecutor was surprised by Cora Taylor’s identification, his follow-up questions and argument indicate that he willingly seized uponthis mistake in order to bolster his case against petitioner. This was misconduct given (1) the prosecutor’s prior representations to the court and counsel, and (2) the information available to the prosecutor concerning the actual identities ofthe four men involved in the Taylor crimes. Mr. Semow wasprivy to the exhibits that petitioner has attached to his 273 petition which demonstrate to near certainty that petitioner was not involved in the Taylor crimes. The wealth of evidence documenting petitioner wasnot only not inside the residence but not present at the crimesat all is information that Mr. Semow must have known-- mostofthe evidence was contained in discovery provided to petitioner’s counsel by Mr. Semow. It is beyond belief that respondent would argue that the prosecutor was not precluded from asking for a possible in-court identification from Cora and Mary Taylor as “[c]ertainly, there was circumstantial evidence connecting petitioner to the Taylor house.” (Informal Responseat p. 194, fn. 64.) To make this assertion, respondentrelies on the fact that petitioner was a friend of Craig Ross and Evan Mallet. Respondent wilfully ignoresall of the evidence, which was known by Semow, which demonstrates petitioner’s alibi for the night ofthe Taylor crimes, and at a least a primafacie case that Robert Simms and Michael Player were involved with Mallet and Rossin the Taylor crimes. /” Contrary to respondent’s claim, petitioner does not “baldly assert” “without 16 Assuming arguendo that Mr. Semow did not have direct knowledgeofthe contents ofthe numerouspolice reports andpretrial andtrial transcripts submitted in support of this claim and claim V.L, as the courts have refused to draw a distinction between the different agencies under the same government, focusing instead upon the “prosecution team,” which includes both investigative and prosecutorial personnel (see generally, Izazaga v. Superior Court (1991) 54 Cal.3d 356), knowledge to Semow should be presumed. 274 citation to the record” that the prosecutor committed misconduct by arguing petitioner’s involvementin the Taylor crimes wasproofofhis involvementin the Hassan crimes._ (Informal Responseat p. 194.) Through incorporated portions of claims VII.A through VII. H, petitioner cited numerousinstances ofthe prosecutor’s argument tying petitioner to the Hassan crimes through his alleged, and obviously untrue, involvementin the Taylor crimes. As argued above, becauseofthe insufficient evidence ofpetitioner’s guilt, the prosecutor hypothesized a theory of conspiracy to which he claimed petitioner was a party. Specifically, Semow argued that in order to determine who committed the murders, it was necessary to understand how they were committed, i.e., it was necessary to understand the pattern which the prosecutor claimed emerged on its comparison ofthe Hassan, Taylor and Jefferson murders. (RT 3152.) According to the prosecutor, the similarities between the crimes indicated they were committed by the same group of people. “{I]t is clear that this murder is connected to this murder, that is, part ofthe same commonplan, part ofthe same conspiracy, to rob and kill people in their homes.” (RT 3156.) “[A] conspiracy specifically to rob and kill a certain type of victim...to wit, a marijuana dealer.” (RT 3156.) The prosecutor advised the jurors to reason backward. “[I]f the Michael Taylor murderis inextricably connected to the Bobby [and] Eric Hassan[’s] murder, then it logically follows that any evidence 275 connecting...either ofthe defendants to the Michael Taylor murderlogically connects that same defendant to the Bobby Hassan and Eric Hassan murder.” (RT 3161, 3168.) “[T]he evidence connecting Mr. Champion to Mr. Taylor connects him to Bobby and Eric Hassan.” (RT 3171.) “[FJurthermore, any evidence connecting either ofthe defendants to any other of the known participants in these conspiracies logically tend to connect then to the crimesin question.” (RT 3161.) Evidence ofthe Taylor crimes wascentral to the prosecution’s theory of petitioner’s guilt in the Hassan crimes. The prosecutor argued Cora Taylor’s in- court identification ofpetitioner was credible and supported by Mary Taylor’s inability to state emphatically that petitioner was not present at the scene. (RT 3170.) Clearly, Semow arguedthat if petitioner was guilty of the Taylor crimes he wasnecessarily guilty ofthe Hassan crimes. The cumulative effect oftrial counsel’s failure to effectively defend against the prosecution’s theory ofpetitioner’s involvement in the Taylor crimes, coupled with the proofoffered by the prosecutor through the identification by Cora Taylor and opinions ofDeputy Williams severely prejudiced petitioner, deprived him of a fair trial on the issue of his guilt or innocence of the charges, and also renderedhis convictions and death sentence inherently unreliable. This is so because, as demonstrated here and in the petition, the only proof remaining ofpetitioner’s 276 involvement in the Hassan killing is the unreliable identification by Elizabeth Moncrief. Insofar as the prosecutor was forced to admit that this evidence alone could not support a guilty verdict, petitioner has presented a prima facie case that he wasprejudiced by the errors and omissions complainedofhere. 277 X. THE CALIFORNIA STATUTORY SCHEME UNDER WHICH PETITIONER WAS SENTENCED TO DEATH IS UNCONSTITUTIONAL In his petition, petitioner set forth facts establishing a prima facie case that the California death penalty statute under which petitioner was sentencedto death is unconstitutional because it fails to adequately narrow the class of personseligible for the death penalty and thus permits a constitutionally impermissible risk of arbitrary capital sentencing. (Petition, Claim XIV, pp. 256-60, and Exhibit 77, Supplemental Declaration of Steven P. Shatz.) Respondentasserts that petitioner’s failure-to-narrow claim is procedurally barred as untimely,as a claim which was raised andrejected on appeal, and(alternatively) as a claim which should have been (but wasn’t) raised on appeal. (Informal Response, pp. 196-197.) Respondentis wrong; the claim is properly before the Court. Asto the asserted timeliness bar, respondent overlooks that a “fundamental miscarriage ofjustice” exception to the bar against untimely petitionsis established by showing “that the petitioner was . . . sentenced underan invalid statute.” (In re Clark, supra, 5 Cal.4th at 797-798; In re Robbins, supra, 18 Cal.4th at 780-781.) That, of course, is precisely the thrust ofpetitioner’s failure-to-narrow claim; and hence, the claim is not time-barred. Further, as noted above, except for the period 278 when Mr. Merwin wasunable to work on petitioner’s case because ofpersonal financial and health problems, petitioner, since being provided with habeas counsel, has been engagedin goodfaith, ongoing investigation into other claims as to which a prima facie casefor relief could not be pled until shortly before the petition was filed,'*' and hence it was reasonable to withhold this claim until those additional claims could be pled. (Jn re Robbins, supra, 18 Cal.4th at 780, 805-806; Jn re Clark, supra, 5 Cal.4th at 781, 784.) Asfor the contention that the claim either was, or should have been, raised on appeal, and hence is subject to a proceduralbar undereither In re Waltreus (1965) 62 Cal.2d 218 or In re Dixon (1953) 41 Cal.2d 756, respondent completely overlooks that the claim is supported by empirical evidenceset forth in the declaration ofProfessor Steven P. Shatz, who has studied the California statute’s actual narrowing effect (or lack thereof). (See Exhibit 77, Supplemental Declaration of Steven P. Shatz. )'** This empirical evidence was notpart ofthe record on 'S! See, in particular, the discussion of Claims VI, VII, VIII and IX, supra, in parts I, 1C1, D2, WE2, 1F1, 1G1, 11, M2, 11C1, MD1, WIE), MIF1, 11H1, M11, M31, IVAI, and VC1ofthis informalreply. '® Sincethefiling ofthe petition herein, Professor Shatz has published theresults of a more comprehensive empirical study than that which formedthe basis for Petitioner’s Exhibit 77. The results were essentially identical to those set forth in Exhibit 77. See Shatz & Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1997) 72 NYU L.Rev.1283. 279 appeal, and hencethe claim, as presented here, was not and could not have been presented on appeal. (See Appellant Champion’s Opening SupplementalBrief, pp. 114-118 [raising failure-to-narrow claim on basis of statutory language and legislative history, but without empirical evidence]; and People v. Champion, supra, 9 Cal.4th at 950-951 [rejecting claim].) In support ofits contention that petitioner has not set forth a primafacie case for relief, respondentasserts that the failure-to-narrow claim has been repeatedly rejected by this Court. (Informal Response, p. 197.) But in the casescited by respondent (People v. Holt (1997) 15 Cal.4th 619; People v. Scott (1997) 15 Cal.4th 1188; People v. Stanley (1995) 10 Cal.4th 764), the Court wasnot presented with empirical evidence concerning the statute’s actual narrowing effect (or lack thereof). Thus the claim is essentially a new onefor the Court’s evaluation. Respondent doesn’t dispute the facts set forth in the petition and Professor Shatz’ declaration, nor suggest any reason to doubttheir accuracy. Thus, for purposes of determining whetherto issue an order to show cause, the Court should adhereto its customary practice of assumingthe petition’s factual allegations to be true and accurate. (People v. Duvall, supra, 9 Cal.4th at 474-475.) Accordingly, for present purposes,petitioner should be deemed to haveestablished as an empirical matter (1) that 83% of convicted first degree murderers were statutorily death- 280 eligible under the 1978 statute (the statute in effect at the time ofpetitioner’s alleged capital offense), and (2)that only 11.5% ofthe statutorily death-eligible class offirst degree murderers were in fact sentenced to death. (Petition, pp. 259-260.) A statutory scheme under which 83% offirst degree murderers are death- eligible does not “genuinely narrow” (see Wade v. Calderon, (9th Cir. 1994) 29 F.3d 1312, 1319, cert. den. U.S. _, 130 L.Ed.2d 802 (1995)). Further, a statutory scheme under which only 11.5% of those statutorily death-eligible are sentenced to death, permits an even greaterrisk of arbitrariness than the schemes considered in Furman v. Georgia (1972) 408 U.S. 238, '® and, like those schemes, is unconstitutional. The 1978 statute does not genuinely narrow the class of death- eligible offenders, certainly not to a degree sufficient to satisfy Eighth Amendment standards. Petitioner has accordingly made a prima facie showing ofthe unconstitutionality of the statute under which he wassentencedto die. '® As noted in the Petition (p. 258), at the time ofthe decision in Furman,the evidence before the high court established, and the justices understood, that approximately 15-20% ofthose convicted of capital murder were actually sentenced to death. Chief Justice Burger so stated for the four dissenters (402 US.at p. 386 n. 11), and Justice Stewart relied on Chief Justice Burger's statistics whenhesaid: “[I]t is equally clear that these sentences are ‘unusual’in the sense that the penalty of death is infrequently imposed for murder . . .” (402 U.S. at p. 309, n. 10). Furman establishes that any capital sentencing scheme so overbroadthat less than 20% ofstatutorily death- eligible defendants are sentenced to death permits too great a risk of arbitrariness to satisfy the Eighth Amendment. See also, The California Death Penalty Scheme, supra, 72 NYU L.Rev.at 1288-1290. 281 XI. THE CUMULATIVE EFFECT OF THE ERRORSON THE ISSUES OF GUILT, SPECIAL CIRCUMSTANCES AND PENALTY WARRANT REVERSAL 1. This claim is timely. For all ofthe reasons stated aboveas to eachindividual claim and subclaim and to the petition in general, this claim is timely filed. This is certainly so because the cumulative effect ofall errors could not have been pled before each individual error was discovered, investigated and a prima facie case established. 2. Petitioner has pled a primafacie casefor relief. The “nexus” which respondentasserts is lacking in petitioner’s petition is adequately demonstrated both in the petition andin this pleading. Forthose errors recognized by this Court on direct appeal (describedas a-i at pp. 261-262 ofthe petition), and for the errors claimed in this petition, the nexusis clear. Respondenthere again ignores the importance to the prosecution case ofthe Taylor crimes and the jewelry. It ignores the impact ofthe neuropsychological evidence on the mens rea issue central to the charge of capital murder, and ignores the penalty phase significance of both (a) the wealth of mitigating evidence that was available but not produced and (b) undoingthe suggestionthat petitioner had been involvedin not just one, but three separate homicidalincidents. Respondent 282 instead relies on this Court’s finding that individually, the errors on direct appeal were harmlessanda blanketassertion thatpetitioner has failed to establish a prima facie casefor relief as to any ofthe errors claimed in these habeas proceedings. (Informal Response p. 199.) Once again, respondent is wrong. Ashe did above,petitioner once again urges that this Court consider the impact of various claims in combination to fully appreciate the cumulative nature of all errors complained of as well as the miscarriage ofjustice that would result if the petition were not addressed on the merits. Had trial counsel provided effective guilt phase assistance and adduced available evidence to show that petitioner was not involved in the Taylor crimes (claims VI.A-VI.H), and that the ring found in petitioner’s possession was not victim Bobby Hassan’s ring (Claim VII.A), the prosecutor would have beenleft with nothing but the contradiction-riddled identification testimony ofElizabeth Moncrief, and on that basis alone no reasonable judge or jury would have convicted petitioner of involvement in the Hassan killings. Further, had counsel, as he should have, adduced evidence showing that petitioner wasnot involvedin the Taylor crimes, no reasonable judge or jury would have accepted the prosecutor’s speculative invitation to assumethat petitioner was involved in the Jefferson homicide, a crime as to which the prosecutor had no direct 283 evidencelinking petitioner, co-defendant Ross or any person known to either of them. With no basis for linking petitionerto either the Taylor or the Jefferson crimes (Claims VI.A-VI.H,and VIII.A-VILD), and in light of evidence which counsel should have presented concerning neurological impairments which make it more difficult for petitioner than for most people to draw accurate inferences about what others around him are intending (Claim VII.H), no reasonable judge orjury would have been able to conclude beyond a reasonable doubt that petitioner, if he were one ofthe four men whoentered the Hassan residence on the dayofthe homicides, understoodthat a homicide would occur or personally intended that anyone be killed. Hence, but for counsel’s ineffective assistance, no reasonable judgeor jury could have foundtrue the special circumstance allegations or convicted petitioner of capital murder. Moreover, as a result oftrial counsel’s ineffective assistance in failing to adequately investigate petitioner’s life history and mental impairments (Claims VII.H and [X.C)andin failing to adequately challenge the prosecution’s misleading claims concerning petitioner’s alleged involvementin three homicidalincidents (Claims VI.A-VI.H, VII-A-VILI, VII-A-VIII.D), "the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death." (Jn re Clark, 284 supra, 5 Cal.4th at 798.) 285 XII. EXECUTION AFTER PROLONGED CONFINEMENT UNDER SENTENCE OF DEATH In his petition, petitioner made a prima facie showingthat his execution following so long a period of confinementunder sentence of death would constitute cruel and unusual punishment. (Petition, pp. 263-264.) As ofthe date the petition wasfiled, petitioner had been continuously confined undersentence of death for over fourteen years. (Ibid.) The period is now over sixteen years. As international authority has increasingly recognized, such prolonged confinement under sentence of death is cruel and degrading and in violation of international humanrights. (/bid. ) Further, an execution so long after pronouncement ofjudgment candolittle to further the goals of deterrence orretribution — the theoreticaljustifications for capital punishment which keep it from being no more than a “gratuitous infliction of suffering.” (Gregg v. Georgia (1976)428 U.S. 153, 182-187(plurality opinion).) Respondent makestwopoints in response to this showing. First, respondent asserts that after the finality of petitioner’s non-waivable automatic appeal, petitioner himself extended his stay on death row by continuing to challenge the judgmentagainst him. (Informal Response, p. 200.) Respondentthus concedesthat at least the first twelve years of this extended death row confinement were not 286 attributable to petitioner.“ Respondent nonetheless appears to suggestthat the claim is somehow waivedbypetitioner’s subsequent conduct. But petitioner’s position has always been, andcontinuesto be, that he is innocentofthe capital charges and was unconstitutionally convicted. Surely, petitioner, by pursuing that claim and seeking to set aside his conviction, has not waivedhis right to be free from cruel and unusual punishment! Second, respondent suggests that there is no conceivable prejudice flowing from the extendedperiod oflife under sentence of death — either petitioner will have lived longer than he otherwise would have,or he will simply have been serving the extended prison sentence he would otherwise have been appropriately sentenced to serve. (Informal Response, p. 200.) Respondent simply ignores the torturous impact — recognizedby the authorities cited in the petition — ofbeing under sentence of death for so long a period, as well as the complete underminingofthe justifications that theoretically support the state’s taking the life of oneofits citizens. 16 Petitioner was sentenced to death on December10, 1982. (RT 3807-3708.) This Court issued its automatic appeal opinion on April 6, 1995, and denied rehearing on June 1, 1995. (People v. Champion, supra.) A petition for certiorari was denied on January 8, 1996. 287 XIII. EXECUTION BY LETHAL INJECTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT In his petition, petitioner alleges that his execution by lethal injection pursuant to the vague protocol issued by the California Department of Corrections in March 1996 (Exhibit 78, California Execution Procedures- Lethal Injection) would constitute cruel and unusual punishment because,as the petition explains in some detail, that protocol fails to adequately guard against the risk of “unnecessary and wanton infliction ofpain.” (Gregg v. Georgia, supra, 428 U.S.at 173(plurality opinion).) (Petition, pp. 265-275.) In support ofhis allegations petitioner has submitted, inter alia, the declarations oftwo highly qualified medical experts, Dr. Kim Marie Thorburn (Exhibit 79) and Dr. John Davis Palmer (Exhibit 80), who reviewed the March 1996 protocol and concluded for reasons detailed in their declarations and in the petition that the prescribed procedures “will pose substantial and grave risks of subjecting the prisoner to extreme physical pain andsuffering during execution.” (Exhibit 79, 94; Exhibit 80, 44.) Respondent does not counter these declarations with any evidenceof its own, nor suggest any reason why,at this stage of the proceedings,the declarations should not be fully credited. Respondent makestwopoints. First, respondentstates that “the Department 288 of Corrections mayestablish its own set of standards. (See Pen. Code,§ 3604, subd. (a).)” (Informal Response, p.201.) This may betrue, but it’s oflittle consequence. Petitioner’s claim is that the Department’s standardsdonotsatisfy the Eighth Amendment. Second, respondent argues that the doctors’ declarations are speculative becauseneither has witnessed a California lethal injection execution. (Informal Response, p. 203.) But respondent does not suggest in what wayor why the doctors’ medical expertise is inadequate to permit them to reliably describe the dangers inherent in the Department of Corrections lethal-injection procedures. Nor does respondent suggest how in the pre-OSC,pre-discovery phase ofthese proceedingspetitioner, or any medical expert acting on his behalf, could have gotten access to a California lethal-injection execution. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1255-1261 (no pre-OSC discovery is available in habeas proceedings).) Further, respondentoffers no evidence of its own concerning actual California lethal-injection executions.’ Thus, for purposes of determining whether to issue an order to show cause, the Court should adhere to its customary practice of 16 The presentcase is thus distinguishable from LaGrandv. Stewart (9" Cir. 1998) 133 F.3rd 1253, 1264-1265, upon which respondentrelies, in that the court in that case explicitly relied upon evidence concerningactual Arizonalethal-injection executions to counter an expert declaration concerning the inadequacies ofthe Arizonalethal-injection protocol. 289 assumingthe petition’s factual allegations to be true and accurate. (People v. Duvall, supra, 9 Cal.4th at 474-475.) Accordingly, for present purposes, petitioner should be deemedto have established that the Department of Corrections’ lethal- injection procedures, for the reasons and with the effects set forth in the petition, unnecessarily create substantial and grave risks of subjecting an inmate to extreme physical pain and suffering. Petitioner has accordingly met his burdenofpleading a primafacie casefor relief and respondent should be required to formally respond. 290 XIV. PETITIONER’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW Petitioner has alleged that his death sentence violates international law becauseit is being imposed despite the fact that he was deniedtheright to a fair trial, and to appellate and habeas review by an independenttribunalas required by customary international law. Petitioner also contendsthatthe death penalty, as implementedin the state of California and in the United States, is imposed based on improperracial considerations, also in violation of international law. Respondentcontendsthat this claim is procedurally barred because it could have been raised on direct appeal. (Informal Response, pp. 205-206.) Respondent is mistaken. In support ofthis claim, petitioner has presented several exhibits, (see Exhibits 82-84), that are not a part of the record on direct appeal and thus could not be considered during the course ofthe proceeding. In particular, petitioner relies uponthe June 1996 Report of the International Commission of Jurists on the “Administration ofthe Penalty in the United States” — a report which did not exist until after the conclusionofpetitioner’s direct appeal.’® In that report, the International CommissionofJurists made the following findings,inter alia, directly 16 This Court issued its automatic appeal opinion on April 6, 1995, and denied rehearing on June 1, 1995. (People v. Champion,supra.) 291 supportive ofpetitioner’s claim: “(iii) Capital sentencing as it actually operates in the states is inconsistent with the obligations undertaken by the United states underthe Political Covenant and the Race Convention . . (vi) The Missionis ofthe opinion that in the absence of a nation-wide law framed on the pattern of the Racial Justice Act, the administration of capital punishmentin the United States continues to be discriminatory and unjust and hence‘arbitrary’ and thus not in consonance withe Articles 6.and 14 ofthe Political Covenant and Article 2(c) ofthe Race Convention. (Exhibit 84, pp.65 and 68.'*’) Respondentalso contendsthat petitioner’s international law claim should be barred as untimely. (Informal Response, p. 205.) But, as noted above, except for the period when Mr. Merwin was unable to work on petitioner’s case because of © personalfinancial and health problems,petitioner, since being provided with habeas counsel, has been engaged in goodfaith, ongoing investigation into other claims as ‘67 The “Political Covenant” and “Race Convention”referred to in the quoted text are, respectively, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, the texts of which appear at pages 163-187 and 195-210 ofExhibit 84. 292 to which a primafacie case for relief could not be pled until shortly before the petition wasfiled,'® and hence it was reasonable to withhold this claim untilthose additional claims could be pled. (Jn re Robbins, supra, 18 Cal.4th at 780, 805-806; In re Clark, supra, 5 Cal.4th at 781, 784.) Becausepetitioner’s death sentence was imposedin violation of international law to which the United States is fully subject, petitioner’s sentence must beset aside. 168 See, in particular, the discussion of Claims VI, VIL, VIII and IX, supra, in parts I, 11C1, ID2, MWE2, IF 1, G1, W, W2, TC1, NID), WIE1, WIF1, WH1, W1, M1, IVAI, and VC1ofthis informal reply. 293 CONCLUSION For the reasons stated above andin the petition, petitioner respectfully requests this Court grant the relief requested in the petition. DATED:June _/2__, 1999 Respectfully submitted, Karen Attorney for Petitioner Steve Allen Champion VERIFICATION I, KAREN KELLY,declare under penalty ofperjury: I am an attorney admitted to practice law in the State of California. I am oneofthe attorneys representing Mr. Champion, whois confined and restrained ofhis liberty at San Quentin State Prison, San Quentin, California. I am authorizedtofile this Informal Reply on Mr. Champion’s behalf. I am makingthis verification because Mr. Champion is incarcerated in Marin County, and because these matters are more within my knowledge thanhis. I have read the foregoing Informal reply and know the contents ofit to be true. Signed June JN , 1999, at Modesto, California. Sow KARENKELLY 118105 DECLARATION OF JAMES MERWIN 1. I was associate counsel in the case ofPeople v. Champion Crim. No., 22955, from September 22, 1992 through June 28, 1995. 2. Between September 22, 1992 and February 23, 1993, I reviewed training materials regarding “Representation in Capital Cases” and “Habeas Corpus Workshop Materials” which were furnished to me by the California Appellate Project. After receiving a copy ofthe record on appeal, I reviewed mostofthe greater than 5,000 page record, discussed the case and potential issues with appellate counsel Mr. Johnson and with CAP Attorney Steven Parnes. I secured release forms from Mr. Champion and attempted to visit him. | 3. From the very start, I experienceddifficulty in investigating this case and | in communicating with Mr. Champion because of San Quentin’s unwillingness to permit meto visit with petitioner in a confidential setting. During my entire tenure as habeas counsel, I was unable to meet with petitioner in a confidential setting. 4. Between February 23, 1993 and June 1993, I consulted with CAP and other attorneys in hopes of expediting resolution of this impedimentto filing Mr. Champion’s petition. To that end, I researched, prepared andfiled with this Court, a motion ancillary to his habeas corpus petition for prior authorization for funds to prepare andlitigate a writ of habeas corpus in Marin Countyaddressing petitioner’s housing status and the unavailability of confidential visits with counsel. That motion | wasdenied on August 25, 1993. The motion was denied without prejudicetofile for such a writ directly to the California Supreme Court. Thus, under this Court’s direction, I began drafting a petition to this Court regarding contact visits withMr. Champion. By November 22, 1993,this petition was nearly complete. As ultimately, another case, In re Ayala addressedthevisit issue, I did not need to complete my writ. 5. Asa result of our inability to meet in a confidentialsetting I could not form anyfinal plan of investigation, let alonefile a petition. As part ofmy ethical obligation to Mr. ChampionI believed I must undertakeall steps necessary to obtain an opportunity to confer in a confidential setting --- particularly because myclient and I were both fearful of institutional eavesdropping. Although confidential visits were not possible, in order to file Mr. Champion’s petition in a timely fashion we visited but did not discuss specific sensitive facts. 6. By June of 1993, in addition to the previously discussedtasks, I also obtained and reviewed Mr. Champion’s centralfile at San Quentin State Prison. I located and interviewedtrial counsel Ronald Skyers, and reviewed and copied petitioner’s trialfile. | 7. I continued to explore areas oftrial counsel’s investigation andtrial preparation and ultimately identified areas oftrial counsel’s performance which werelikely to yield specific claims of ineffective assistance of counsel. This preliminary evaluation oftrial counsel’s performance, madeafter review oftrial counsel’s files and the appellate record, and nonconfidential interviews with petitioner and preliminary contacts with forensic experts concerning their fees and availability provided the basis for my funding request. 8. In September of 1993, I retained an investigator who, between September and November, 1993, and then again between December 1994 and January 1995, interviewed 7 family members ofMr. Champion. Theinvestigator and I identified more than two dozen potential guilt and penalty phase witnesses. The investigator began preparing a Championfamilytree. 9. In Novemberof 1993, I requested the investigator wait further investigation until funding was granted by this Court. At this time, I was in the process ofpreparing my confidential funding request which wasfiled in February of 1994 andacted onby this Court inAugust 1994. Thereafter, the investigator continued penalty phase investigation. Although my investigator andI identified a numberofpotential witnesses, both as to guilt and penalty issues, only 7 family members wereactually interviewed in somedetail. 10. In my declaration in support ofmy motion to withdraw I declared that “I have reviewedthefile, interviewed the petitioner, interviewedpetitioner’s trial counsel, hired an investigator who has interviewed dozens of family members and friends of petitioner, located and interviewed experts in the fields of eyewitness identification, neuropsychology, “gang” behavior and psychiatry (Post-Traumatic Stress Disorder), submitted my [request for funds]...continued myefforts to put togethera life history ofpetitioner and develop penalty phase evidence.... “ 11. That portion ofmy declaration contains some inaccuracies. My investigator and J identified more than two dozen witnesses and interviewed 7 in some depth. Although investigative efforts were continuing, “dozens of witnesses” had not been interviewed to any degree necessary to plead a primafacie case for any IAC claim which I had identified. Any inaccuracies were unintentional and simply reflect a general characterization ofthe progress ofthe case at the time I was forced to withdraw. | 12. In my funding request, I identified a number of experts who were willing to confer and consult on Mr. Champion’s case. My contact with these experts was preliminary and designed to permit application for funding. None ofthese experts ' Similarly, I might add, although I had interviewed petitioner, the statement was not meantto reflect that I had completed my interviews with Mr. Champion,or for that matter, whenI stated that I interviewed experts, these interviews were notfinal interviews but limited to whether or not the experts’ expertise and schedules would permit future consultation ofpetitioner’s case. All investigation was continuing, none, including the interviews of the 7 family members was complete or even sufficient to present a prima facie case forfiling any specific claim. . were given or reviewed pertinent records provided by me, interviewedpetitioner, _ performedanytesting, or consulted with me on the actual developmentofclaims. This Court’s funding order denied the forensic expert funding requested by me. 13. By the fall of 1994, because offinancialdifficulties, I was forced to close myprivate law practice. I took a job with the Office of the Orange County Public Defender beginning on October 11,1994. Although I had hoped to work on Mr. Champion’s case on weekends, the pressures ofthat job and recurrent health problems precluded me from doing further work on outside cases, including petitioner’s case. 14. Although my investigator undertook some additional penalty phase backgroundinvestigation, I did not authorize or conduct any investigation into guilt phase issues. This was so becauseI did not receive funding authorization for habeas investigation until August 24, 1994, just seven weeks before starting work with the public defender’s office and discontinuing work on petitioner’s case. In my professional opinion, this was hardly enough time to conduct a habeasinvestigation ina capital case in whichtrial counsel had conductedlittle or no guilt or penalty phaseinvestigation and which involved three separate homicidal incidents. 15. Thus, during the seven week period between the Court’s August 24, -1994, funding order and mytaking a job with the Orange County Public Defender’s Office, I was able to make somefurther progress on investigating petitioner’s life history and developing the evidence in mitigation that reasonably diligent trial counsel could have presented, butI was unable to complete the task. 16. Although it perhaps would have been possible, for me to plead and present subclaims resting on the appellate record and/ortrial court discovery documents prior to the time when | discontinued work on Mr. Champion’s case,I determined that this would not have made sense. This is so because when I was just beginning to undertake the investigation of potentially meritorious claims requiring investigation it shortly becameclear that I would have to withdraw and pass the case on to another counsel who would be appointed to carry forward the investigation and would haveher own viewsas to which claims were most important and how to best present them. The foregoing is declared under penalty ofperjury in the State of California and these United States. Dated: 6 - 8 or I 9g s Merwin 1a id 13 14 isi 16 17 18 19 26 22 23 24 28 26 27 28 “| LIThHn SOrmny FILED IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA MAY 16 1995 feee Sine IN AND FOR THE COUNTY OF MARIN WY J. MONS In Re ) , } > REYNALDO AYALA. } ) Petitioner, } Ne. 5§€ 055239 Fer a Writ ofHabeas Corpus } ORDER GRANTINGPETITION IN PART } AND DENYING PETITION IN PART ) The Court has read and considered aij ofthe evidence and arguroents subenitted and addinonally considersis own findings on site in the subject artorney imerview area of San Quezsin Prison. The CourthereFinds ad Orderflow 1 Penioneasconszional ght ofeste Courspurushe Fourmeenh Amendment to the United States Constinsion and an ancillary right to confer with bis counsel im invoking thas right, Casey v. Lewis (9th Cir. 1963) 4 F.3d 1516, 1520; Chring v. Lawes (9th Cir, 1990) 895 F.2d 608, 610, Peritioner aiso hax a right to counsel pursuamt to Articie I. Seenan 15. of the California Consrinuion. 2 The current arrangements for Petitioner's atomey/client conferences in meeting rooms Art. A-2, and. A-3 allow for some “contact” including direct acoustic commmunicanon through a metal screen and the ability to pass papers through 2 slo No authority is presented co support the assertion by Petionerthatmore “contact” is conainumonally or stanaorily required. And the court finds that the current limications on “contact” constinne 90impediment to the reasonable exercise of the rights to ancess to the counts and counsel. 3 The attomey interview rooms. A-i, A-2, and A-3, available to Petidoner are by no means 24 23 26 27 28 aumpruous or commodious bur they are not uncomfortable or oppressive to the point of CONSUTUTING at itttpediment to the reasonable exere:se of the constitutional nights to access to . To tte extent that there is remriction placed by the Prison upon Petitioner's acceas to counsel. the Court finds no showing that it is aot “reasonably related to legitimate penolog:cal inserests” (Penal Code Section 2600) with the one excepeian noted in paragraph 5 beinw. . Reasonable exercise of the nght to counsel necessarily includes confidential comazunication with counsel. Sander v. Mumcipal Court (1979) 26 Cal. 34 742, 751; Chtag v. Lewis $95 F. 2d 668, 609. The observed condicon ofthe interview rooms currently provided. Avl.A»? aad A-3. does not appear to the Court ro assure such confidential commeuaicanoa. The Court bas found that couversation at an ordinary valume can be heard ouwide on either the prisan side or the Visivor side with the doors closed, Sound appears ro casry through the space under the doors bur this may net be ail of the problem. If the Prison continues to restricz Pecizioner’s aosorney interviews te these rooma, reasonable staps must be taken to correc: this deficiency and tw allow confidential communication berween Petitioner and hig counsel. The Writ sought is therefore granted in par and denied in part cansistent with Lhe above Findings and Order. oeMy1, 1995LE ofthe Superior Court DECLARATION OF THOMAS LAMBRECHT I, THOMAS LAMBRECHT,herebydeclareas follows: 1. Iam a deputysheriff with the Los Angeles County Sheriff's Department. I was so employed on December 27, 1980 and December28, 1980. 2. Having reviewed a four page Sheriff’s Department Memorandum by myself and Deputy Owen Tongregarding the detention ofMarcusPlayer, Steve Champion, Wayne Harris and JamesTaylor,I recall no further details ofthe incident. Neither do I recall information or details that conflict with the information contained in the memorandum. 3. Prior to discussing the above with investigator Tom Lange, I was never contacted by any lawyer representing Steve Champion. If Steve Champion’s trial attorney had approached me, I would have told him that the above informationis true and that the information containedin the above-referred to memorandum wastrue. If I had been askedto testify to the above, I would havetestified consistently with the memorandum referred to above. I declare under penalty of perjury underthe lawsofthe State of California and the United day of A/GV/_ 1997. —_— States that the foregoing is true and correct. Executed the. Thomas Lambrecht 76M176—SH-AD-131 COUNTY OF LOS ANGELES - SHERIFF'S DEPARTMENT MEMORANDUM Date File No wom Un MARECHT To: Toa La Al (y fe Subject: C wy mewn CALOeeon SoRRy ME (GS So WE wi Caamins, YVR LeTEL WS PAEO WA Retwecd DePurys MALL BOX. OU [J] FOR YOUR INFORMATION. [7] REPORT ON RESULTS REQUIRED. (j VERBAL REPORT ONLY; CONFIDENTIAL SUPPLEMENTAL DECLARATION OF ROUSELLE SHEPARD 1. I began my tenure with the Los Angeles Police Department on February 22, 1972. 2. I retired from the department in 1993. 3. I wasfirst assigned to CRASH, or Community Resources Against Street Hoodlums, whichis a gang detail, in 1975. I was assigned to the centralized CRASH unit in 1976 and remained with this unit until my retirement from the force. 4. Unlike Deputy Williams, who,at the time of the crimesofthis petition, was a deputy with the Los Angeles County Sheriff's Department, I was an officer with the Los Angeles Police Department. The Los Angeles Police Department does not, and did notat the time ofMr. Williams testimony or tenure with the sheriff s department, have jurisdiction over the Los Angeles Court facilities. Therefore, I Shepard, unlike Mr. Williams, could never and was neverassigned to in-court bailiff and other non-critical, non-specialty duties. | 5. Unlike Mr. Williams, I spent nearly my entire tenure in gang related assignments. At the time of petitioner’s trial, I was a qualified gang expert who had ‘testified numerous times. The foregoing is declared under penalty ofperjury ofthe State of California and these United States. Dated:Jase(I9F KuliBead oS ¢ Rouselle Shepard / DEPARTMENT OF PSYCHIATRY Institute of Psychiatry, Law and Behavioral Science a atv Seymour Pollack, M.D., Director deAzer « ~ Wa IPecember 2, 1981 die in Oy . i LA 4 8 < 14 - Lege ryt Woh. Ronald V. Skyers, Esquire < 3701 Wilshire Boulevard, 7th Floor Suite Ahmanson Plaza East Tower Los Angeles, California 90010 Re: Steve Allen Champion Case No. A 365875 Dear Mr. Skyers: Pursuant to Superior Court Order by Superior Judge F. Ricks, dated August 4, 1981, Mr. Champion was examined psychiatrically by Lillian L. Imperi, M.D., at New County Jail for a period of approximately one hour on November 17, 1981. He was exa- mined by Drs. Lillian Imperi and Seymour Pollack on December 1, 1981, for a period of approximately one and one-half hours. Mr. Champion is charged with violation of 187 of the Penal Code. The confidential nature of the examination was explained to Mr. Champion and he understood it. In addition to the clinical interviews, the following materials were reviewed: (1) Letter from Mr. Ronald V. Skyers, attorney for defendant dated November 10, 1981. (2) Autopsy Reports, January 16, 1981 (3) Arrest Reports —_—— (4) Preliminary Hearing Transcript, dated February 27, 1981 (5) Telephone conversation with Mr. Ronald Skyers on 11/25/81. PSYCHIATRIC - LEGAL ISSUES (1) Was the defendant mentally ill at the time of the offense? UNIVERSITY OF SOUTHERN CALIFORNIA SCHOOL OF MEDICINE LAC/USC Medical Center Psychiatric Outpatient Clinic Suite 235 Graduate Hall, 1935 North Hospital Place ~ Los Angeles, California 90033 (213) 226-4942 STEVE ALLEN CHAMPION Case No. A 365875 Page 2 PSYCHIATRIC - LEGAL ISSUES (Continued) (2) Does the defendant fall within the Drew rule? (3) Was the defendant suffering from diminished capacity at the time of the offense? (4) Was the defendant unconscious at the time of the offense? (5) Was the defendant suffering from an irresistable im- pulse at the time of the offense? PSYCHIATRIC - LEGAL OPINION There is insufficient data to support any mental responsibility defense in Mr. Champion's case. DATA AND REASONING BASIC TO OPINION Mr. Champion is a 19 year old black man who was cooperative for the interview but gave very minimal replies to questions and offered little information spontaneously. He stated that he was "innocent" and that "it's a case of mistaken identity." He stated that he had been identified by"mug shots" and in the "line up." Maintained that he "was not there (seene of crime) and did not do it." He could not recall where he was or what he was doing on the date of the alleged offense, 12/12/80, Mr. Champion stated that he smokes Marijuana on special occasions, such as Holloween, Thanksgiving, and Christmas. He admitted that "it (Marijuana) keeps me mellow." He denied experimenting with or using any other drugs. He said that he would not be able to recall using Marijuana or drinking on any particular date in the past except for the holidays. Mr. Champion indicated that he was suspended from school for fight- ing once or twice and was "in a lot of trouble" in elementary and junior high school. He was in jail for robbery twice, six months one time. However he graduated from high school while in CYA and planned to work his way through El Camino College. Mr. Champion at age 14, was arrested for burglary and grand theft person but released because of lack of evidence. He mentioned, however that he had spent some time in camp, for robbery, at age 15 for 6 - 9 months and subsequently was sent to CYA at age 16 for assault with a deadly weapon. He was released from CYA during October of 1980. Mr. Champion admitted that he had been a member of the Crips gang in the past, however, he is not a member at the present time. He feels, that he has "changed" and does not have to "run with a gang or affiliate with anyone anymore". STEVE ALLEN CHAMPTON Case No. A 365875 Page 3 DATA AND REASONING BASIC TO OPINION (Continued) At the time of his arrest Mr. Champion was in training to be a tutor in elementary schools. He would like to continue tutoring at night and go to college during the days. MENTAL STATUS EXAMINATION Mental status examination revealed that Mr. Champion had a very poor fund of general information, difficulty with simple calcul- ations, and concreteness of thought, affect was flat, no hallu- cinations or delusions were noted or elicited. Mr. Champion does not appear to be suffering from a mental illness of any kind at the present time. TELEPHONE CONVERSATION WITH MR. RONALD SKYERS Mr. Skyers maintained in Mr. Champion's case, that it was "very likely" a case of mistaken identity because the identifying witness gave varying descriptions prior to picking Mr. Champion out of a "line-up." Further, the murder weapon was found in someone elses car. There was also some question regarding the description of the car by the identifying witness. The only implicating factor appeared to be two pieces of jewelry similiar to that of one of the victims. Mr. Skyers indicated that he had requested the psy- chiatric evaluation"to cover all bases." He also stated that his client would plead “not guilty" SUMMARY OPINION Since Mr. Champion stated that he is unable to recall where he was an the date of the crime; since he denies being under the influ- ence of any intoxicant on the date of the crime; since there is no other data to support that he was under such influence; since there does not appear to be any evidence of mental illness, defect, or disorder now or at the time of the instant offense; we must opine that Mr. Champion was sane at the time of the alleged of- fense and does not qualify for any of the mental responsibility defenses. Thank you for referring Mr. Champion. ty Ahhhaw xY SnWpzy wd fern eelLa filliam Imperi, M.D. Seymour Pollack, M.D. Fellow Psychiatry & Law Diplomate American Board of Psychiatry & Neurology LI:rm Diplomate American Board of Forensic Psychiatry Wd a o t hat § mreOF OFSERVICE a 5 e Stanislaus County. Tam My business address is d belowI served the attached: d envelope with mailbox at Ceres, { n - under penalty ofperjury under ing true and correct, at Ceres, California.