NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C166684B)
Petitioner Deshawn Reed challenges his convictions for two counts of murder in this direct appeal and consolidated petition for writ of habeas corpus (habeas petition).
In his direct appeal, petitioner contends (1) the trial court erred when it excluded third party culpability evidence regarding the motive and reputation for violence of third party, Al Collins; (2) defense counsel provided ineffective assistance when he failed to present expert testimony on the concept of confabulation, failed to challenge gunshot residue evidence, and failed to establish the relevance of petitioner's special education needs; (3) counsel was ineffective when he failed to object to the prosecutor's closing argument, which included facts not in evidence and a mischaracterization of reasonable doubt; (4) the cumulative effect of the errors raised on appeal requires reversal of the judgment; and (5) the court improperly imposed a three-year great bodily injury enhancement.
In his habeas petition, petitioner argues that the prosecutor both presented and failed to correct materially false evidence and that defense counsel provided ineffective assistance when he (1) failed to investigate and present evidence that pointed to Reed's innocence and/or countered evidence of his guilt, (2) failed to investigate and present evidence that pointed to third party Collins's guilt, and (3) failed to object to prosecutorial misconduct during closing argument. Petitioner further contends the cumulative effect of all of the errors combined to deprive him of a fair trial.
We agree with petitioner's contentions in his habeas petition that counsel's failure to investigate and present relevant evidence and failure to object to prosecutorial misconduct deprived petitioner of effective assistance of counsel. We also find that the prosecutor presented material false evidence at trial, and that all of these errors combined to deprive petitioner of a fair trial. Accordingly, we will grant the habeas petition and vacate the judgment of conviction in its entirety. In light of this disposition, we will dismiss petitioner's appeal as moot.
On August 15, 2011, petitioner was charged by information with two counts of murder (Pen. Code, § 187, subd. (a)—counts 1 & 2), with a multiple murder special circumstance allegation (§ 190, subd. (a)(3)). The information further alleged, as to both counts, that petitioner personally and intentionally discharged a firearm and caused great bodily injury and death to the two victims within the meaning of sections 12022.7, subdivision (a), and 12022.53, subdivisions (c) and (d), and that he personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
On January 13, 2012, after a court-ordered mental evaluation and report, petitioner was determined to be mentally incompetent. He was committed to the Department of Mental Health at Napa State Hospital, and was later sent to Atascadero State Hospital. (See § 1368.) A year later, on February 28, 2013, Atascadero State Hospital submitted a certification of mental competency and criminal proceedings were reinstated. (See § 1372.)
Codefendant Jason Watts was also charged in the same information with two counts of special circumstance murder. After petitioner was found incompetent to stand trial, Watts was tried separately in November 2012.
Petitioner's trial began on April 22, 2014, and on May 8, the jury found him guilty of second degree murder on count 1 and first degree murder on count 2. The jury found true the special circumstance allegation, and also found true the firearm and great bodily injury allegations.
On July 11, 2014, the court sentenced petitioner on count 2 to life without parole plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. On count 1, the court imposed a concurrent 15-year term with an additional 25 years to life term for the section 12022.53, subdivision (d) firearm enhancement.
As to both counts, the court also imposed but stayed three additional gun use/great bodily injury enhancements (§§ 12022.53, subd. (b) & (c); 12022.7, subd. (a)), and struck another (§ 12022.5, subd. (a)).
On July 28, 2014, petitioner filed a notice of appeal.
On October 26, 2015, petitioner filed a habeas petition. On May 19, 2016, we issued an order to show cause to the Department of Corrections and Rehabilitation, returnable before this court. Thereafter, respondent real party in interest filed a return in opposition to the petition and petitioner filed a traverse. On October 5, 2016, we consolidated the habeas matter and the appeal for purposes of oral argument and decision.
This case arises from the March 5, 2010 shooting deaths of Victor Johns and John Jones in the front yard of a home located on 30th Street at the corner of Linden Street in Oakland.
Eugene Ellis testified that on March 5, 2010, he lived at the corner of 30th Street and Linden Street in Oakland. On that date, approximately 2:00 p.m., Ellis was sitting on his porch drinking beer with five friends, including Victor Johns and John Jones. A man walked up; he had come down 30th Street from the direction of Chestnut Street and toward Linden Street, walking in the middle of the street. He spoke to the group, saying, "What you guys all up to?" Then, while still in the street, the man pulled a pistol out of his "waistline," and started shooting. The man was African-American and wearing a black hoodie, i.e., a hooded sweatshirt, with the hood pulled over his head. The man appeared to be shooting at Johns. Ellis did not see what happened next because he ran to the other side of the house and went inside.
Henry Martinez, who lived in the area of Linden and 30th Streets, testified that on March 5, 2010, approximately 2:00 p.m., he was outside of his house, unloading some things from his car. While outside, he saw the owner of the house across the street, whom Martinez knew as "Billy," sitting on his front lawn, talking and drinking beer with Jones and another man. Martinez then saw a man walking near the corner of Linden and 30th. He was dressed all in black and was wearing a black hoodie. The "hoodie was kind of puffy, so [Martinez] could see he had like an afro or kind of puffy hair." He appeared to be African-American with dark skin, in his 20s, and was about 5 feet 10 to 5 feet 11 inches tall. He was slim and appeared to weigh about 175 to 180 pounds. Martinez could not tell if he had any facial hair.
Ellis testified that his nickname is "Billy."
Martinez heard the man say in a loud voice to the person he later learned was Johns, "Hey, what's going on?" The man then pulled a pistol out of his waistband, and started shooting at Johns, who stood up and ran toward a fence on the left side of the house. The man with the gun followed Johns and continued to shoot in his direction. The man then turned around and as Jones started running down the sidewalk, shot at him. Martinez saw Jones get hit in the leg with a bullet and fall down on his side. The man then walked toward where Jones was lying on the ground and shot him three or four more times, using his right hand. As he walked toward Jones, the man looked over at Martinez. The man then went to a two-door black Saturn car with a rear spoiler, which was stopped in the middle of the street a couple of feet from where Jones fell. The man got into the car on the passenger side and the car went down 30th Street and turned left on Chestnut Street.
Martinez ran over to where Jones was lying, arriving at the same time as Jones' son-in-law. Almost immediately, a police car arrived, coming up 30th Street from the direction of Chestnut. The officer who arrived said he had heard shots and Martinez told him that the car involved was a black Saturn. The officer then left the area immediately.
A short time later, Martinez made a statement to police and officers took him to view a potential suspect. As they approached the intersection of Chestnut and 26th Streets, Martinez told the officers he recognized the black car the shooter had gotten into before fleeing the scene. The officers then asked him to look at two suspects. He recognized the first person as the shooter, based on his face, eyes, hair, and body type. The only thing that was different about the person was that he had been wearing a black hoodie during the shootings and was now wearing a "square shirt." At trial, Martinez could not say whether the shooter was in the courtroom. He did acknowledge that he had identified petitioner based on a photograph shown to him at a previous court proceeding. At trial, he again identified the same photograph as depicting the shooter. Martinez never saw the face of the driver of the car and was unable to identify the second person he was shown by police just after the shootings.
Miguel Morfin, the stepson of John Jones, testified that on the day of the shootings, he lived at 30th and Linden Streets. He was inside his house when he heard approximately five gunshots and dropped to the floor. After the shooting stopped, he got up and ran to a window. He saw a person across the street dressed in all black, including a black hoodie with the hood up; he was uncertain of the person's gender. The person appeared to shoot someone on the ground and Morfin heard three more gunshots. Because of cars between him and the person, he could not see a gun or anyone on the ground, but was able to see the person's arm held at a 45 degree angle before he heard the shots. Morfin then saw the person run to a black car that was stopped in the middle of the street and jump into the passenger side of the car. The car drove away on 30th Street going toward Chestnut. Morfin did not notice the driver of the car.
Morfin then saw that someone had been shot and realized that it was his stepfather, John Jones. He ran outside to help Jones, who was still conscious but was bleeding from his leg. While Morfin and his neighbors were tending to Jones, a police car pulled up from the direction of Chestnut, and Morfin and others described the car and told the officer which way it had gone. The officer left right away. Morfin was never able to identify the person responsible for the shootings.
Alisha Tackitt testified that approximately 2:30 p.m. on March 5, 2010, she was walking her dogs on Chestnut Street going toward 30th Street when she noticed a slow moving black two-door car driving down the middle of the street and coming toward her. The vehicle was moving approximately one mile per hour and she saw two individuals through the windshield, one in the driver's seat and one in the front passenger's seat, both wearing black hoodies with the hoods up. As Tackitt crossed 30th Street, the car pulled over to the curb and the passenger jumped out. He jogged around the corner onto 30th Street and continued toward Linden Street.
Tackitt acknowledged that she had some difficulty judging people's heights and weights. The passenger, a male with a smaller build than the driver, was wearing a dark hoodie with the hood up and baggie dark pants. He was African-American and maybe in his 20s. She believed that the passenger was "maybe a little bit taller" than the prosecutor, who was 6 feet tall, although she later asked to correct her testimony to note that when she saw the passenger, he was on the curb, "[s]o that might (pointing her finger upwards)." Tackitt watched the man go up the block until he disappeared from view. She also saw the car slowly turn onto 30th Street toward Linden. She then heard 4 to 10 gunshots "right in succession," and just before she ducked behind a car, she saw a man fall.
Tackitt then saw someone running down 30th Street toward Chestnut and also saw the black car on 30th Street apparently making a U-turn back in the direction of Chestnut. The running individual got into the front passenger seat of the car, which completed the U-turn and turned back onto Chestnut, heading toward 28th or 26th Street. Tackitt, who was in shock, knew she must have stood up because she and the passenger made eye contact as the car went by. She then saw a police car coming down Chestnut toward 30th Street. She yelled, "Shots fired" and pointed in the direction she saw the person fall; the police car turned down 30th Street toward Linden. Tackitt then went to her house and called 911.
On cross-examination, Tackitt acknowledged telling police on the day of the incident that the car was " 'peeling out' " and going " '[v]ery fast' " as it came back toward her after the shootings.
After calling 911, Tackitt went back outside, where she gave a statement to a police officer. The officer asked her to attempt to identify a vehicle and two possible suspects. He took her to a nearby location where she identified the vehicle as the black car she had seen earlier. At another location, she identified the two suspects as having been involved in the incident. At trial, she identified petitioner as one of the suspects, although she could not remember if he was the driver or the passenger. She affirmed, however, that she was "100 percent confident" that petitioner was one of the two people in the vehicle.
On cross-examination, Tackitt acknowledged that, in her initial statement to police, she said that the passenger was around five feet eight inches tall. When counsel asked whether her testimony at a previous trial (presumably that of codefendant Watts) that the passenger was 6 feet 7 inches or 6 feet 4 inches tall was correct, she testified that she did not know if that estimate would be correct. She also remembered stating earlier that the passenger was about the height of her brother, who is 6 feet 3 or 6 feet 4 inches tall, but at petitioner's trial she said, "I can't give a good comparison" as to the passenger's height. Tackitt also acknowledged that, at the previous trial, when asked whether she could estimate the passenger's height, she had responded, "Not from that distance," but then had estimated his height to be "maybe 6'6" or 6'8", "something like that." Regarding the checked jacket in which petitioner was arrested, she did not remember seeing it, but said he could have been wearing it underneath the black hoodie she saw. She also testified on cross-examination that when she made eye contact with the passenger, "it appeared that one of his eyes was lazy."
On redirect examination, when the prosecutor asked if it was still Tackitt's recollection that the passenger was taller than he (the prosecutor) was, at 6 feet tall, as she had indicated earlier in her testimony, she responded, "I also noted when I first saw the passenger, he was on a curb. And you are not on a curb." The prosecutor then asked, "given the fact" that she was also on a curb, if her recollection was that the passenger was taller than her. Tackitt, who had testified earlier that she is 5 feet tall, answered in the affirmative.
Oakland Police Officer Michael Osanna testified that he was on patrol in West Oakland on the afternoon of March 5, 2010. At 2:30 p.m., he was in his patrol car in the area of Chestnut and 28th Streets when a mail carrier flagged him down and said there was a shooting up the street. Osanna then heard two shots coming from the area of 30th and Linden Streets. He drove up Chestnut toward 30th and as he stopped at the intersection, he "heard a car at a high rate of speed with screeching tires coming" in his direction. He then saw a black two-door Saturn car "come screeching around the corner" from 30th Street and "making an abrupt [left] turn" onto Chestnut, going in the southbound direction past where Osanna was stopped. The car was moving at about 10 to 15 miles per hour. He first saw the car 5 to 10 seconds after he heard the last gunshot. Osanna saw two people in the car. He recognized the driver as Jason Watts, whom he knew well from working in West Oakland. There was a passenger seated next to Watts who Osanna did not recognize. "What stood out to [Osanna] was a black and gray and white checkered garment" or sweatshirt that the passenger was wearing. He identified a jacket the prosecutor showed him at trial as the same garment the passenger was wearing. Osanna was able to observe the driver and passenger for a total of three seconds.
Osanna briefly watched the car continue southbound on Chestnut Street before he turned onto 30th Street, where he saw an African-American man lying on the sidewalk with approximately seven people around him. The man and the people around him seemed scared. They all mentioned a black car and pointed toward Chestnut Street. The distance from the intersection of Chestnut and 30th Street to where the man was lying on the ground was 30 to 40 yards.
After summoning medical help, Osanna drove east on 30th Street to Linden and then went south on Linden to 28th Street. He then turned right on 28th Street and left onto Chestnut. He continued southbound on Chestnut another block to 26th Street where, on the left, he noticed the black car, which he had first seen about 30 to 45 seconds earlier, parked on 26th Street. He drove up to the car and saw that it was empty. He looked past the car and saw two people about 15 yards away, running east on 26th Street toward Linden. Osanna followed the two people in his patrol car. He saw that one of the men was Watts and recognized the other man from his clothing as the passenger from the black car. The men approached a T-intersection at Linden and 26th Street; McClymonds High School was on one corner and a park was on the opposite corner.
As the two people crossed the street in the direction of the park, Osanna updated dispatch before exiting his vehicle, removing his firearm, and pointing it at the two men. He told them to get on the ground. Watts complied, but the other man turned to his left and kept his left hand concealed by his side. Osanna "ordered him numerous times to get on the ground, and he just stared at me, disobeying my commands. And then eventually after about six or seven times of telling him to get on the ground, he did." After additional officers arrived, Osanna handcuffed Watts and helped to handcuff the other man before placing both men separately in the back of patrol vehicles. They both had their hands handcuffed behind them. Police searched both men, but found no handgun or ammunition. Nor were any weapons found in the area near where the two men were stopped or in the area of the vehicle. In addition, while Watts was wearing a black hoodie, no other hoodies were found in the area.
Osanna identified petitioner at trial as the person he had seen in the passenger seat of the black car. He replied in the affirmative to the prosecutor's question whether, "as a police officer, in general, are your observations or your ability to observe and recognize people, is that a critical skill as a police officer?" Osanna also testified that Al Collins was someone he knew quite well from numerous previous conversations. Collins, who was about 5 feet 6 inches tall and who Osanna would recognize, had some connection to the area, but was not the person he had seen in the front passenger seat of the black car. Collins was now deceased.
Officers searched the black Saturn automobile, which they subsequently learned was owned by Watts. No hoodies or guns were found inside it. DNA samples were taken from the car. Two baseball caps recovered from the back seat of the car were also tested for DNA. DNA on one of the hats was found to match Al Collins.
Oakland Police Sergeant James Gantt, the primary homicide investigator on this case, testified that no weapon or black hoodie was ever found near the crime scene. At the time of the shootings, Watts was approximately 6 feet 1 or 6 feet 2 inches tall and weighed 230 pounds. Petitioner was approximately 6 feet 1 inch tall and weighed 190 pounds. When detained, petitioner was wearing a black shirt, black pants, and black tennis shoes.
The name Al Collins came up during Gantt's investigation of the case, but he never was able to locate anyone who identified Collins as the shooter. Collins was approximately 5 feet 7 inches tall and weighed about 150 pounds. Gantt had heard from Officer Keith Dodds that a short time after the shootings, he had seen Collins "walking down the street," westbound on 26th Street near where the two suspects were detained, with "his arm around a young lady." Because Dodds also said he had heard that "Little Al" Collins was involved in the shootings and because Collins's DNA was found on a baseball cap taken from the black Saturn, Gantt "tried to conduct a thorough and complete investigation, and that's why I had everything from the car tested for DNA." He "even" interviewed Collins, who was already known to him prior to the shootings. During Gantt's August 5, 2010 interview with Collins, Collins denied having anything to do with these shootings. Gantt further testified that the fact that Collins's DNA was found in the black Saturn did not automatically mean he was involved in the shootings. It was not unusual for his DNA to be in the car "because he probably was in that car at some point in time." Gantt also testified that "there were no fingerprints" found in the car.
At the conclusion of this testimony, the court instructed the jury that the statements of Dodds and Collins to Gantt could "only be used for the limited purpose of explaining the conduct of Sergeant Gantt as he continued the investigation into this case, and it is only admitted and may be considered by you for the limited purpose of assessing the credibility of Sergeant Gantt's investigation in this case." The court further told the jury that it could not consider this testimony for the truth of the matter that was stated to Gantt.
Thirteen spent bullet casings were found at the scene of the shootings. All of them were fired from the same gun, likely a Smith & Wesson pistol.
Anne Keeler, a criminalist with the Alameda County Sheriff's Office Crime Lab, testified as an expert in the analysis of gunshot residue (GSR). She explained that GSR consists of microscopic particles of lead, barium, and antimony that are released when a gun is fired. Those particles can be deposited on a person's hands or clothing. When GSR is deposited on a person's hand after he or she fires a gun, it starts to be lost immediately because it only sits on the surface of the skin and does not stick. Any friction on the hand or normal movement could cause the GSR to fall off. There often is a large decline in GSR on the person's hand after an hour and, after five or six hours, GSR testing generally is not done.
An officer swabbed petitioner's hands for GSR at the Oakland Police Department, and Keeler tested the samples. She found four particles of GSR—each comprised of the three combined components of lead, barium, and antimony—on the sample taken from petitioner's right hand. Keeler had recommended against testing petitioner's clothing for GSR because it had already been tested and it was not likely that there would still be GSR on it.
The results of that testing were not produced at trial.
Keeler testified that GSR could be transferred from a weapon that has been fired to a person who did not fire the gun, but touched it after it was fired. Keeler also testified that the number of GSR particles found "doesn't really mean much," and she "requires only one particle to call it GSR." On cross-examination, Keeler testified that GSR "can be brushed off easily," and agreed that it can be transferred onto a person by shaking hands or standing next to someone who has shot a gun.
Later in the trial, the court read the jury a stipulation that other things, not in nature, do contain the component particles of GSR, including brake pads found in Europe and some fireworks, but they have a different morphology and contain additional elements, and so are distinguishable from GSR.
The court read the parties' stipulation regarding the causes of death of Johns and Jones. Johns was shot in the back, the hip, the thigh, and the wrist. He died of multiple bullet wounds. Jones was shot in the thigh. His right femoral artery was involved and he died of that bullet wound.
Keith Dodds, who at the time of trial was retired from the Oakland Police Department, testified that he was on duty in West Oakland on March 5, 2010, when, at 10:30 a.m., a custodian flagged him down in front of McClymonds High School. The custodian told him that there was someone smoking on the 26th Street side of the high school near the teacher's cafeteria. Dodds went to that location and saw petitioner sitting on the porch smoking. He was wearing a checked jacket. As soon as Dodds arrived, petitioner said, "Hello, Officer Dodds, I'm leaving. I'm a go [sic] sit in the park." Dodds then observed him walking in the direction of McClymonds Park at 26th and Linden Streets.
Dodds had known petitioner, who was 26 years old at the time, since he was a student in an anti-gang class that Dodds taught at petitioner's junior high school. Dodds also knew petitioner and his family through his work on patrol in the area over 17 years. Dodds "had never dealt with him on any level of violence." When asked whether petitioner had a reputation for nonviolence, Dodds responded that, "from my training and experience in the area, [petitioner] was a non-violent person."
On the afternoon of the shootings, Dodds responded to a report of a shooting and began to drive to the scene. As he was driving north on Chestnut toward 26th Street looking for people who could have been involved, he saw a man, bent over with his hands on his knees. A young woman was standing beside him, with her hand on his shoulder. They were on Chestnut Street between 24th and 26th Streets, closer to 26th. Dodds later recalled that the man he saw was Al Collins, someone he knew from having various contacts with him in the area. Collins, who made eye contact with Dodds, was wearing a black hoodie and blue jeans. Dodds initially thought Collins was bent over because he was sick, based on the woman having her hand on his shoulder. But, in thinking about it afterwards, Dodds "felt that he had just finished running and he was [b]ent over and she had her hand on his shoulder." Dodds intended to get out of his vehicle, possibly draw his weapon, and detain Collins. However, 10 seconds after he stopped his car, he learned that an officer had two people at gunpoint at another location. Dodds left to go to that location to assist the officer, but then learned he was needed to secure the black car, which was located 200 to 250 feet from where he had seen Collins.
When Dodds later responded to the location where the two suspects had been detained, he recognized petitioner as one of the suspects. He was wearing the same checked jacket he had been wearing when Dodds saw him earlier that day.
I. The Trial Court's Exclusion of Third Party Culpability Evidence
Regarding Al Collins's Motive and Reputation for Violence
In his direct appeal, petitioner contends the trial court erred when it excluded third party culpability evidence regarding Collins's reputation for violence and his motive in this case. Although the appeal is now moot, we believe an analysis of this issue will be helpful to give context to our ineffective assistance of counsel analysis regarding the failure to investigate and present third party culpability evidence, as well as to provide guidance to the trial court, in case of a retrial. (See People v. Wilson (1992) 3 Cal.4th 926, 930 ["in an attempt to avoid the recurrence of error on retrial, we discuss certain issues for the guidance of the parties and the trial court on remand"].)
A. Trial Court Background
During trial, defense counsel indicated that he wanted to offer evidence of third party culpability, to show that it was Al Collins, not petitioner, who was the passenger in Watts's car and the shooter of Johns and Jones. Collins's DNA had been found on a baseball cap in the black Saturn. In addition, just after the shootings, Officer Dodds had seen Collins 200 to 250 feet from the car, looking out of breath and wearing a black hoodie that matched the witnesses' description of the shooter. As counsel explained to the court, he wished to have Officer Dodds testify about Collins's reputation for violence and aggression, and also wanted to present evidence that Collins had a motive to shoot one of the victims, Victor Johns. In support of admission of the evidence of motive, counsel summarized the defense theory: Collins and Watts were close friends with each other and also with Tyler Jamison, who was the victim of a shooting in West Oakland on March 4, 2010, the day before Victor Johns and John Jones were shot, also in West Oakland. Victor Johns, the apparent primary target in the March 5 shootings, had shot Jamison and, in retaliation, Watts and Collins shot Johns the following day.
According to the prosecutor and defense counsel, Jamison survived the March 4, 2010 shooting, but apparently later died.
The court held a hearing pursuant to Evidence Code section 402 on the admissibility of the third party culpability evidence, at which Dodds testified. Dodds, who was now retired, had patrolled and been a high school resource officer in "Beat 7" in West Oakland for more than half of his 25 years as a police officer. He testified about seeing Collins on March 5, 2010, near the black car, bent over and looking out of breath, and wearing a black hoodie and blue jeans. He also testified that he had learned that on March 4, Tyler Jamison had been shot, and that Jason Watts's brother, James, had driven him to the hospital. Regarding how he learned this, Dodds testified, "It was documented that Tyler Jamison was shot on Beat 7, the beat I worked, so the information was shared with me by the other officers that worked the hours that he was shot." The information was given to him so that he could use it while he was on patrol.
Dodds testified that he had seen Watts and Collins together in West Oakland on more than one occasion, most recently five to seven months before March 5. He had also seen Collins and Jamison together on numerous occasions. On cross-examination, Dodds testified that he believed he had gotten "reliable information when I was told that Victor Johns shot Tyler [Jamison] in the leg on the 4th. And with my training and experience, I have been told on another occasion that Johns had shot someone else in the leg." Dodds believed that was "the way he dealt with people on the streets." The man Johns supposedly shot prior to Jamison had talked to Dodds, and Dodds had seen him with a wound in his leg and on crutches. But the man said "he didn't want anything done out of fear of [sic] his family members." Dodds also spoke to other people who were in the area at the time of the shooting of this other man or were aware of the incident, and who "complained about Victor having a gun."
Dodds affirmed that he had been working with petitioner's family in trying to ensure that petitioner would not be convicted in this case, in the interests of justice.
At the conclusion of the hearing, the court stated, "in looking at all of the evidence, Mr. Collins being on that street, bending over, appearing ill, his hat being found in the car with the DNA, and the fact that he is the other defendant's friend, and the fact that they were wearing black, in my view, that just does not rise to the standard required" for admission of third party culpability evidence. The court further stated that under Evidence Code section 352, the probative value of the evidence "is substantially outweighed by the prejudic[ial] effect for both consuming time and creating a substantial danger of undue prejudice and confusing the issues and misleading the jury because really what you have is really not even opportunity. You just have him being in the area around where this vehicle was found. You don't have him in the area of the actual perpetration of the crime. [¶] Additionally, what you have is an identification of the [defendant] by an independent eyewitness, as well as [by] a police officer, who, one, the civilian witness immediately eyewitnessed the incident and then Officer Osanna saw the defendant right thereafter and he says he is very sure it is the defendant in the car. [¶] So to me, all of that is just going to confuse the issues in this case, which is whether or not this defendant is, in fact, guilty of the alleged offenses." The court therefore ruled that the proposed evidence and argument related to Collins would be excluded in its entirety.
The court explained that this meant that Dodds could testify only about seeing petitioner on the morning of the shootings and about petitioner's reputation with respect to violence. The court then stated that Dodds could mention that "he saw a guy bent over that he thought was sick at the time" just before he heard that Officer Osanna had detained two people and headed over there. But the court told defense counsel that he was prohibited from arguing that Collins was the perpetrator.
The next morning, the prosecutor told the court that he was concerned, given the evidence of Collins being in the area and the evidence of his DNA on a baseball cap in the car, about the court's refusal to let counsel mention these things. The prosecutor stated, "I think it is fair for the defense at least to argue the inference that [Collins] could have been in the car" to try to demonstrate reasonable doubt. The prosecutor expressed further concern that not allowing such argument "may create an issue for an appellate court." The court then stated, "my ruling doesn't change in the sense of—it just isn't a third party culpability type of argument, but in light of the way that it has come up from the [district attorney], you may be able to argue that; just not the reputation part of Mr. Collins because, again, I am not finding that raises a reasonable doubt."
Dodds subsequently testified at trial regarding his encounter with Collins that took place just after the shootings and, in closing argument, defense counsel argued that Collins could have been the shooter given that he was known to the police, was associated with the black car, and was seen near the car after the shootings, bent over as if out of breath.
B. Legal Analysis
In People v. Hall (1986) 41 Cal.3d 826, 829 (Hall), our Supreme Court "reaffirm[ed] the admissibility of any relevant evidence that raises a reasonable doubt as to a defendant's guilt, including evidence tending to show that a party other than the defendant committed the offense charged. Such evidence may be excluded only when the court properly exercises its discretion under Evidence Code section 352 to reject evidence that creates a substantial danger of undue consumption of time or of prejudicing, confusing, or misleading the jury." The Hall court further explained that to be admissible, third party culpability evidence "need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Id. at p. 833.) The trial court's "proper inquiry" is thus "limited to whether this evidence could raise a reasonable doubt as to defendant's guilt and then applying section 352." (Hall, at p. 833.)
The Hall court emphasized the importance of the trial court "focus[ing] on the actual degree of risk that the admission of relevant evidence may result in undue delay, prejudice, or confusion. As Wigmore observed, 'if the evidence is really of no appreciable value no harm is done in admitting it; but if the evidence is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.' (1A Wigmore, Evidence (Tillers rev. ed. 1980) § 139, p. 1724.)" (Hall, supra, 41 Cal.3d at p. 833.)
Here, at the prosecutor's request, the trial court ultimately permitted the defense to present limited third party evidence and argument, specifically Dodds's testimony regarding Collins's presence near the scene just after the shootings and argument based on that evidence and the presence of Collins's DNA on a baseball cap found in the black Saturn. However, the court excluded Dodds's additional proposed testimony related to Collins. The court insisted that this was not "a third party culpability type of argument." It is clear from the court's comments, both before and after the prosecutor expressed concern, that the court did not properly apply the standard for admission of third party culpability evidence or properly exercise its discretion under Evidence Code section 352.
First, the court applied a heightened standard of admissibility, requiring that each item of proposed evidence independently raise a reasonable doubt as to guilt, and found that it did not. The proposed evidence, examined as a whole—as it should have been—amounted to more than evidence of "mere motive or opportunity to commit the crime in another person." (Hall, supra, 41 Cal.3d at p. 833.) Instead, it would have provided both direct and circumstantial evidence that someone other than petitioner committed the offenses. Second, the court apparently believed that the evidence of petitioner's guilt was so strong and the evidence linking Collins to the crimes was so weak that admitting any third party evidence would just "confuse the issues in this case, which is whether or not this defendant is, in fact, guilty of the alleged offenses." (See Evid. Code, § 352.) The only potential "confusion" the proposed evidence could have caused would be the jury questioning whether petitioner's guilt had been proved beyond a reasonable doubt. The court also ignored Wigmore's admonition, set forth in Hall that, " 'if the evidence is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.' [Citation.]" (Hall, at p. 834.)
That the court used improper standards to find the third party culpability evidence inadmissible does not, however, mean that all of the proposed evidence was admissible. The evidence still must have been admissible under "the ordinary rules of evidence." (Hall, supra, 41 Cal.3d at p. 834.)
First, with respect to the admissibility of Collins's reputation for violence, petitioner points out that, under Evidence Code section 1324, "[e]vidence of a person's general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule." However, he ignores the limitations on such evidence found in Evidence Code section 1101.
Evidence Code section 1101 provides:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
As our Supreme Court explained in People v. Davis (1995) 10 Cal.4th 463 (Davis): "Hall did not abrogate Evidence Code section 1101 as applied to such [reputation] evidence. Subsequently, in People v. Farmer (1989) 47 Cal.3d 888, we specifically addressed the application of Evidence Code section 1101 to proposed evidence regarding prior criminal conduct of a third party alleged to have committed the charged offense. The defendant in Farmer offered evidence of a third party's history of violent crime, on the theory that it tended to identify him as the perpetrator. We noted that under Hall, evidence linking a third person to the actual perpetration of the crime should be treated like any other evidence. (Id. at p. 921.) We went on to hold, however, that the proffered evidence was properly excluded under Evidence Code section 1101, because it was offered not to show a fact other than the third party's criminal disposition, such as motive or intent, but merely to show that the third party was the more likely perpetrator because he had a history of violence. (Farmer, at p. 921.) Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Davis, at p. 501; accord, People v. Elliott (2012) 53 Cal.4th 535, 580 "[Evidence of a third party's prior crimes is inadmissible to establish the third party's criminal propensity" under Evid. Code, § 1101, subd. (a)]; In re Hardy (2007) 41 Cal.4th 977, 1008 (Hardy) [evidence of third party's reputation for violence is inadmissible at trial on question of third party's character]; compare Evid. Code, § 1102 [evidence of defendant's "character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) [o]ffered by the defendant to prove his conduct in conformity with such character or trait of character"]; Evid. Code, § 1103, subd. (a) [evidence of crime victim's "character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is: [¶] (1) [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character"].)
Here, because the only reason to present evidence of Collins's reputation for violence was to show that he "was the more likely perpetrator because he had a history of violence" (Davis, supra, 10 Cal.4th at p. 501), it was properly excluded as inadmissible character evidence under Evidence Code section 1101.
Second, the court excluded other evidence proffered to show Collins's motive. Specifically, the trial court excluded Dodds's proposed testimony that he had learned while on duty that Tyler Jamison had been shot on March 4, 2010, on Beat 7, that Watts's brother had driven Jamison to the hospital, and that the information had been shared with him so that he could use it while he was on patrol. The trial court also refused to allow Officer Dodds to testify, from his experience on Beat 7 in West Oakland, that he knew that Johns, one of the victims in this case, had shot both Jamison and another man in the leg, and that "the way [Johns] dealt with people on the streets" was to shoot them in the leg. Dodds had been a patrol officer for 25 years, more than half of which he had spent in the area of West Oakland where both the present offenses and the shooting of Jamison and the other individual took place. Further, the trial court excluded the related testimony that Dodds had seen Watts and Collins together in West Oakland on more than one occasion and that he had seen Collins and Jamison together on numerous occasions.
We conclude that the majority of this excluded evidence was not inadmissible hearsay or improper character evidence. The evidence that Johns essentially had a reputation for shooting people in the leg as the way "he dealt with people on the streets," was admissible under section 1103's crime victim exception to section 1101's prohibition against character evidence. This reputation evidence was probative in that it tended to show that Johns had shot Jamison in conformity with his reputation. Dodds's proposed testimony that Jamison was shot in the leg in West Oakland the day before Johns was shot, in conjunction with the reputation evidence, thus was extremely relevant to show Collins's motive for shooting Johns in retaliation. (See § 1103, subd. (a)(1).) Dodds testified at the Evidence Code section 402 hearing that he had learned about the shooting of Jamison, as well as the fact that Watts's brother drove him to the hospital, in the course of his duties as a police officer. Even if this testimony would have been inadmissible hearsay, counsel told the trial court that he could obtain the testimony of the officer who interviewed Jamison at the hospital and observed his injuries. The court, however, refused to admit any evidence regarding the Jamison shooting.
Combined with the excluded testimony about the relationships between Collins and Watts and Collins and Jamison—which would have been admissible based on Dodds's own observations—the foregoing excluded evidence was extremely relevant and probative regarding Collins's motive of retaliation. This evidence, in conjunction with the limited third party culpability evidence that was admitted, would have supported the inference that Collins shot Johns, the primary victim in this case, because he believed that Johns had shot his friend Jamison the day before, also in West Oakland.
Accordingly, this evidence related to Collins's motive was also admissible under the ordinary rules of evidence and, together with the admitted evidence, raised a reasonable doubt about petitioner's guilt. (Hall, supra, 41 Cal.3d at pp. 833-834.) In addition, in light of its extremely strong probative value and the limited amount of time it would have taken to present it, the court's conclusion that exclusion of this evidence was necessary to avoid undue prejudice, confusion, and delay, pursuant to section 352, was plainly an abuse of discretion. (See Hall, at p. 834.) Furthermore, even assuming that any of the proffered evidence was inadmissible hearsay, the court's hostility toward third party evidence discouraged defense counsel from attempting to obtain other admissible evidence regarding the Jamison shooting. The court's exclusion of most of the proposed third party evidence precluded the presentation of powerful, admissible evidence on the issue of Collins's motive.
The issue of motive was raised by the jury in two questions to the court during deliberations, including (1) whether, in police interviews with petitioner or Watts, "did either discuss whether they knew Mr. Jones or Mr. Johns?" and (2) whether police had come across any evidence that petitioner or Watts was affiliated with any gang. The court did not respond to either question.
Because the appeal is moot, we will not address whether the court's refusal to admit the proffered third party evidence, standing alone, was prejudicial to petitioner. Nor will we address the remaining issues raised in the direct appeal, except to the extent they are also raised in petitioner's habeas petition.
II. Ineffective Assistance of Counsel Claims in Petitioner's Habeas Petition
Petitioner contends defense counsel provided ineffective assistance when he (1) failed to investigate and present evidence that pointed to Reed's innocence and/or countered evidence of his guilt, (2) failed to investigate and present evidence that pointed to third party Collins's guilt, and (3) failed to object to prosecutorial misconduct during closing argument.
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
In this case, most of petitioner's ineffective assistance claims involve counsel's failure to investigate and present relevant evidence. The United States Supreme Court has discussed criminal defense attorneys' duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Strickland, supra, 466 U.S. at p. 691.) "And our own Supreme Court has made clear the right of a criminal defendant to expect not just that his counsel will undertake those actions that a reasonably competent attorney would undertake, but as well 'that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.' [Citations.]" (People v. Jones (2010) 186 Cal.App.4th 216, 238-239 (Jones), quoting People v. Ledesma (1987) 43 Cal.3d 171, 215; accord, In re Neely (1993) 6 Cal.4th 901, 919 (Neely) [to render reasonably competent assistance, defense counsel should "explore the factual bases for defenses that may be available to the defendant, and otherwise pursue diligently those leads indicating the existence of evidence favorable to the defense"].) "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (Strickland, at p. 691.)
"In a habeas corpus petition alleging trial counsel's investigation or presentation of evidence was incompetent, 'the petitioner must show us what the trial would have been like, had he been competently represented so we can compare that with the trial that actually occurred and determine whether it is reasonably probable that the result would have been different.' [Citation.] After weighing the available evidence, its strength and the strength of the evidence the prosecution presented at trial [citation], can we conclude petitioner has shown prejudice? That is, has he shown a probability of prejudice 'sufficient to undermine confidence in the outcome?' [Citations.]" (Hardy, supra, 41 Cal.4th at p. 1025.)
Here, petitioner contends in his habeas petition that counsel was ineffective in a variety of ways and that he was prejudiced as a result. As we shall explain in parts II., A., B., and C. of this opinion, we conclude petitioner has demonstrated numerous instances in which counsel's representation fell below an objective standard of reasonableness, which together prejudiced petitioner (see pt. II.D., post). (See Strickland, supra, 466 U.S. at pp. 688, 694; see also People v. Hill (1998) 17 Cal.4th 800, 844 (Hill) [discussing cumulative error].)
Because the evidence in the record on appeal, in addition to the habeas petition, return, traverse, and exhibits submitted in support of the habeas petition establish that there are no material factual allegations in dispute, we have determined that no evidentiary hearing is necessary to resolve the issues raised in the habeas petition. (See People v. Wilson, supra, 3 Cal.4th at p. 937, citing In re Lawler (1979) 23 Cal.3d 190, 194 [if there are no disputed material factual allegations, court may dispose of petition without necessity of an evidentiary hearing].)
A. Counsel's Failure to Investigate and Present Evidence Pointing to
Petitioner's Innocence or Countering Evidence Pointing to His Guilt
Petitioner contends defense counsel was ineffective for failing to investigate and present evidence pointing to petitioner's innocence and countering evidence pointing to his guilt. Specifically, he argues that counsel should have (1) called two additional eyewitnesses to testify at trial, (2) challenged Tackitt's testimony about her original identification of the shooter, (3) investigated and challenged the prosecution expert's GSR testimony, (4) called an expert witness to explain the concept of confabulation to the jury, (5) presented evidence regarding petitioner's mental deficiencies, and (6) objected to several instances of prosecutorial misconduct.
1. Counsel's Failure to Call Robert Dehoyos and
Daniel Thompson as Witnesses at Trial
Petitioner contends counsel unreasonably failed to call as witnesses at trial Robert Dehoyos and Daniel Thompson, both of whom saw the passenger/shooter just after the shootings.
a. Trial Court Background
In defense counsel's declaration submitted in support of petitioner's habeas petition, he did not state the basis of his decision not to call either Dehoyos or Thompson as a witness at trial.
i. Robert Dehoyos
In a March 11, 2010 videotaped interview with Sergeant Gantt and another officer, submitted in support of petitioner's habeas petition, Dehoyos said he was a postal worker who was delivering mail on foot on Chestnut near 28th Street when he heard gunshots. A short time later, he saw a small black car turn off of 30th Street onto Chestnut. The windows were down and he could see both the driver and the passenger, who were wearing "regular, unmemorable" clothing. Both looked scared. The driver had short hair and was unshaven or had a small moustache. The passenger had "red" and "glossy" eyes, like he was high. His hair was a bit longer than the driver's. It was cut close, but not a buzz cut. He affirmed that he might be able to identify the driver and passenger in a photo lineup, saying, "I remember, I checked them both out pretty good."
Dehoyos looked at two photo lineups of six photographs each. In the first lineup, he said the individual in the upper middle position—Watts—looked like the passenger. He noted the "intensity" of the look in his eyes; the passenger had "looked, mad, angry, focused." Dehoyos then looked at the second photo lineup and discussed two people he thought could be the driver, but one's hair was different and the other looked too old. Dehoyos then excluded the photograph of petitioner because his hair was too long. Dehoyos was not shown a photograph of Collins. Although Dehoyos said he was willing to view a live lineup of suspects, Gantt ended the interview right after Dehoyos excluded petitioner, based on the length of his hair.
A photograph of Collins, dated four days before the shootings and submitted in support of petitioner's habeas petition, shows that he had short hair and was clean shaven. Petitioner's booking photograph shows that he had noticeably longer hair than either Collins or Watts. The photograph of petitioner also shows that he had a distinctive moustache, while Watts and Collins were clean shaven. Petitioner's strabismus condition was also evident and his eyes did not appear to be bloodshot.
In support of the habeas petition, petitioner submitted a 1998 report of a neurological assessment of petitioner by Juvenile Justice Health Services, which stated, inter alia, that petitioner had "[v]isible strabismus" in his eyes, which "was not intermittent." "Strabismus, more commonly known as cross-eyed or wall-eyed, is a vision condition in which a person cannot align both eyes simultaneously under normal conditions. One or both of the eyes may turn in, out, up or down." ("Definition of Strabismus," Strabismus.org <http://www.strabismus.org> [as of Jan. 20, 2017].)
In his report, Gantt wrote that he showed Dehoyos two photo lineups containing photographs of petitioner and Watts, but "Dehoyos was not able to pick any of the suspects out in the line-up." Gantt did not write in the report that Dehoyos had said he had gotten a good look at the two suspects in the car, that he had tentatively identified Watts as the shooter, or that he had in fact excluded petitioner as a suspect because his hair was too long.
At the preliminary hearing, at which defense counsel—and both petitioner and Watts—were present, Dehoyos testified that he "couldn't be 100 percent sure" that he had seen Watts in the black car, and therefore said he could not identify him in court. Dehoyos also testified that he did not see the passenger in the courtroom. He recalled that the passenger had short black hair and no facial hair; "I looked to see if he had [a] mustache or something, you know, to remember. I didn't see any." He described the passenger's eyes as "red" with an "intense look." Dehoyos did not recall exactly what the two men were wearing, but believed the passenger's clothes were black and red.
ii. Daniel Thompson
In a witness statement submitted in support of the habeas petition, Thompson wrote that he was at his mother's house when he heard gunshots. He went outside where he saw a black male with dark skin in his mid-20s, wearing a black hoodie. He saw the man shoot Jones and get into a black car, which drove off toward Chestnut Street. An officer later brought him to a field show-up, where he identified Watts as the shooter "by the clothing he was wearing and his build." Thompson could not see the person's face because he was wearing a hood, but he could "positively say, based on his clothing and physical description, [that] he was the person [Thompson] saw shooting John Jones." Thompson was then shown petitioner, but could not identify him as a suspect. In an officer's notes of his interview with Thompson, submitted in support of the habeas petition, the officer wrote, "Shooter's hoody was unzipped[.] Shooter had short hair[,] brown complx [sic]." In his investigative summary, Gantt reported that Thompson had identified Watts as the shooter, but had stated he could not identify the driver of the vehicle. "Thompson told us he is 90 percent sure the male black wearing the black hooded sweat shirt is the shooter."
b. Legal Analysis
Respondent points out that "[t]he decision to call certain witnesses is a 'matter of trial tactics and strategy which a reviewing court generally may not second-guess.' [Citation.]" (People v. Carrasco (2014) 59 Cal.4th 924, 989.) While this is the general rule, in the circumstances of this case, there is no tactical reason why counsel would have failed to call Dehoyos as a witness at trial. In his recorded statement, Dehoyos told police that he had gotten a good look at the passenger and had even noticed that his eyes were bloodshot. He nonetheless excluded petitioner as one of the suspects based on the length of his hair. His testimony at the preliminary hearing likewise excluded petitioner as either the driver or shooter. Dehoyos's trial testimony thus would likely have been exculpatory and would have assisted the defense in casting doubt on other witnesses who identified petitioner as the passenger/shooter. (See Neely, supra, 6 Cal.4th at pp. 919-920 [discussing a prior case, in which "counsel's failure to interview witnesses known by him to possess potentially exculpatory information" and his exclusive reliance on information provided by police investigators deprived defendant of reasonably competent representation].)
Respondent describes Dehoyos's description of the shooter as "problematic" because he told officers that "the shooter's eye color was 'red' and that his eyes were 'glossy.' [Citation.] In light of these unusual characterizations of the shooter, counsel could have reasonably concluded that jurors would not have given much credence to Dehoyos's observations. [Citation.]" Respondent's suggestion that this description undermined Dehoyos as a witness is unpersuasive, to say the least. In context, he was clearly describing the eyes of a person who could have been under the influence, as he confirmed during the interview. As petitioner notes, red and glassy eyes are a common sign of being under the influence. (See, e.g., People v. Scott (1999) 76 Cal.App.4th 411, 414 [red and watery eyes were signs of intoxication].)
Thompson's statement was less probative in that he stated that he did not see the shooter's face, and he also definitively—and incorrectly—identified Watts as the shooter, based on his clothing and build. However, this evidence shows that Thompson was unable to identify petitioner as one of the suspects, and it is apparent that he identified Watts as the shooter based on the fact that Watts, like the shooter, was wearing a black hoodie and had short hair. Thus, Thompson would have provided additional eyewitness testimony casting doubt on whether petitioner, with his longer hair and checked jacket, could have been involved in this shooting. Both men's testimony also would have countered the testimony of other witnesses that petitioner was the passenger/shooter. Nor would the prosecutor have been able to assert that "[e]very witness said [petitioner] was involved," as he did in his closing argument in an effort to refute the defense's third party culpability theory. In light of counsel's awareness of these witnesses' statements and Dehoyos's testimony at the preliminary hearing, reasonable counsel would have called these men as witnesses at trial. (See Neely, supra, 6 Cal.4th at pp. 919-920.)
2. Counsel's Failure to Challenge Evidence Related to
Tackitt's Original Identification of the Shooter
At our request, both parties have addressed in their briefing whether defense counsel's failure to observe the discrepancies between Tackitt's witness statement after viewing Watts and petitioner at a field show-up and another officer's report on the one hand, and Sergeant Gantt's investigative report on the other hand constituted ineffective assistance of counsel.
At petitioner's trial, Tackitt testified that she had identified two suspects at a field show-up shortly after the shootings as having been involved in the incident. She also identified petitioner at trial as one of the suspects, affirming that she was "100 percent confident" that he was one of the two people in the vehicle, although she could not remember at the time of trial whether he was the driver or the passenger. She also testified that when she made eye contact with the passenger, "it appeared that one of his eyes was lazy."
In Sergeant Gantt's follow-up investigation summary, submitted as an exhibit in support of petitioner's habeas petition, an entry from the date of the shootings stated that "Tackitt participated in a field line up with the two suspects. Tackitt could not identify Jason Watts but did identify Deshawn Reed as the person she saw exit from the passenger side of the suspect vehicle when she heard the gun shots." In her statement prepared after the field show-up, also submitted in support of the habeas petition, Tackitt stated, "Police also showed me a guy that came out of police car #1701 (Ofc. Chan)[.] I did not recognize him, he may or may not have been the driver. Police then showed me a guy that came out of police car #1733 (Ofc. Hamilton)[.] He looked like the guy that was on the passenger side and did the shooting. I am pretty sure around 90% sure, I would know better if I saw his eyes." In Officer Sven Hamilton's statement prepared on the date of the shootings, also submitted in support of the habeas petition, he wrote, "I assisted by placing handcuffs on suspect, Deshawn Reed, and then placing him in the rear seat of OPD vehicle 1701 that officer N. Chan was driving. . . . [¶] At approximately 1510hrs suspect, Jason Watts, was placed in the rear seat of my patrol vehicle #1733 . . . . At approximately 1523hrs Sgt. R. Adreotti directed me to transported [sic] Watts to the 1000 block of 26th Street . . . where a field show up was conducted involving several witnesses. . . ."
At the preliminary hearing, at which defense counsel was present, Tackitt testified that a police officer wrote up her statement based on what she was telling him, that she read the statement afterwards, and that it accurately reflected what she told him. Gantt also testified at the preliminary hearing, where he stated that he "believe[d]" that Tackitt had identified petitioner as the shooter. One of Watts's attorneys then pointed out to Gantt the inconsistency between his report and Tackitt's statement, and Gantt acknowledged that Officers Chan and Hamilton's reports stated that Chan had custody of petitioner and Hamilton had custody of Watts. Gantt later testified that he had interviewed Tackitt on the evening of the shootings and, after reviewing his notes, testified that she told him that the first person she saw at the show-up "was similar to the driver" and that she was "90 percent sure" that the second person was the passenger.
The latter two exhibits demonstrate that the suspect Tackitt identified as the shooter was Watts; she stated that she did not recognize petitioner. In his investigative report, Sergeant Gantt reversed the identifications, incorrectly reporting that Tackitt had identified petitioner as the passenger and had been unable to identify Watts. In addition, Tackitt's testimony at trial that she had identified the two suspects at the field show-up as having been involved in the incident was plainly wrong. This identification evidence showed that, minutes after seeing the passenger/shooter, Tackitt not only misidentified Watts as the passenger/shooter but, crucially, did not recognize petitioner as either of the two people involved.
By the time of trial, however, Tackitt had seen petitioner at the field show-up, at the preliminary hearing, and at his trial, where she could observe his strabismus condition. At the preliminary hearing, she identified petitioner for the first time as the passenger, testifying that the color and shape of one of the passenger's eyes "was a little bit different" and that she saw the same distinction in petitioner's eyes at the hearing. Then, during cross-examination at petitioner's trial, Tackitt stated for the first time that when she made eye contact with the passenger, "it appeared that one of his eyes was lazy." This was powerful evidence against petitioner, which would have been undermined had evidence regarding her inability to identify him immediately after the shootings been presented.
Counsel could have used this information to impeach both Tackitt and Gantt, to raise doubt about Tackitt's identification of petitioner at trial as one of the two suspects (likely based on having seen him at the show-up and the preliminary hearing), as well as to argue Gantt's carelessness and rush to judgment in the investigation of petitioner. Instead, during closing argument, the prosecutor was able to use Tackitt's testimony to remind the jury that "she was confident that when she made the identification, he was in the car," and, as already noted, to argue that "[e]very witness has said he was involved."
Counsel plainly was ineffective when he failed to thoroughly examine Gantt's and Hamilton's reports and Tackitt's witness statement, find the discrepancies, and use them at trial both to discredit Tackitt's eyewitness identification of petitioner—a crucial piece of evidence against him—and to raise questions about the integrity of Gantt's investigation. (See Strickland, supra, 466 U.S. at p. 688.)
In addition, counsel was present at the preliminary hearing where Tackitt identified petitioner as the passenger/shooter, but also testified that when she observed the two suspects at the show-up, the passenger was still wearing a black hoodie, but the person she said she did not recognize, but could possibly be the driver, no longer had on the black hoodie; he was now wearing a lighter colored shirt. This preliminary hearing testimony further demonstrates that when she observed the two suspects an hour after the shootings, Tackitt identified Watts as the passenger and could not identify petitioner, and that she had confused her original identification when she later identified petitioner.
We also take judicial notice, on our own motion, of Tackitt's identification of Watts as the passenger/shooter at Watts's 2012 trial, and her denial at that trial that she had previously identified the other defendant (petitioner) as the passenger at the joint preliminary hearing. (Counsel for both parties had the opportunity at oral argument to weigh in on the propriety of our taking judicial notice of this testimony, and neither objected to our doing so.) This testimony likely would have been admissible at petitioner's trial as a prior inconsistent statement under Evidence Code section 1235, to impeach Tackitt. (See Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of the records of any court of this state], Evid. Code, § 452.5 [pertaining to court records relating to criminal convictions]; see also People v. Lawley (2002) 27 Cal.4th 102, 116, fn. 2 [granting defendant's request that court take judicial notice of court files and transcripts in codefendant's case].) This evidence would have similarly cast doubt on Tackitt's identification of petitioner and her credibility as a witness.
In part III., post, we will address the prosecutor's failure to correct Tackitt's false testimony that she had identified both suspects immediately after the shootings.
3. Failure to Investigate and Meaningfully Cross-Examine the Prosecution
Expert to Establish Possible GSR Contamination
Petitioner contends counsel was ineffective for failing to investigate possible GSR contamination and meaningfully challenge the probative value of evidence that four GSR particles were found on petitioner's hand after his arrest. According to petitioner, counsel should have investigated potential sources of contamination and then cross-examined Keeler about the possibility that the GSR particles on petitioner's hand were transferred there when Officers Osanna and Hamilton handled and handcuffed him just before his arrest, and/or after officers placed him in the back of a patrol car, with his handcuffed hands behind his back, and drove him to the police station, where samples were taken from his hands for GSR testing.
a. Trial Court Background
Four GSR particles were found on petitioner's right hand after his arrest, following testing at the Oakland Police Department. The prosecution presented that evidence, including the testimony of GSR expert Ann Keeler, to prove that petitioner had recently fired a gun.
In his crime report regarding the arrest, Hamilton wrote that when he arrived at the scene, he observed Osanna giving petitioner and Watts "orders at gun point and both suspects complying. I then pointed my service pistol at the suspects, . . . at which time I approached on foot. I assisted by placing handcuffs on suspect, Deshawn Reed, and then placing him in the rear seat of [a police] vehicle." Osanna testified at trial that he helped to handcuff both petitioner and Watts before placing them separately in the back of patrol vehicles, with their hands handcuffed behind their backs. Petitioner's hands were not tested for GSR until after he arrived at the police station.
During cross-examination of Keeler at petitioner's trial, counsel asked whether shaking hands or standing next to someone who shot a gun could cause the transfer of GSR, to which Keeler answered in the affirmative. Counsel then asked, "[a]nd if I got in the back of a police car, having fired a weapon several times, I might get some on the . . . seat? This is something that doesn't have to be on a human being—" at which point the court interrupted: "That's a lot. I am not sure what you have asked. Just one at a time. [¶] It's easily transferrable, correct?" Keeler then responded that she did not know if she would say "easily transferrable, because they are very [s]mall particles of metals, but they are transferrable." Then, instead of returning to the question of possible police car contamination, petitioner moved on to another area of questioning regarding whether studies had shown that people working in certain occupations could get GSR particles on their hands.
In support of his argument regarding counsel's inadequate investigation and cross-examination of Keeler, petitioner has submitted two articles from Federal Bureau of Investigation (FBI) publications discussing suggested GSR collection procedures and the dangers of contamination. (See Wright & Trimpe, Summary of the FBI Laboratory's Gunshot Residue Symposium, May 31-June 3, 2005 (July 2006) Forensic Science Communications, vol. 8, No. 3 <http://www.fbi.gov/about-us/lab/forensic-science-communications/fsc/july2006/research/2006_07_research01.htm> [as of Jan. 20, 2017] (hereafter, Summary)); Trimpe, The Current Status of GSR Examinations (May 2011) The Law Enforcement Bulletin, pp. 101-106 <http://leb.fbi.gov/2011/may/the-current-status-of-gsr-examinations> [as of Jan. 20, 2017] (hereafter, Current Status).) In Summary, the authors summarized conclusions from a symposium at which a group of 40 GSR examiners and researchers discussed, inter alia, GSR hand sampling and contamination. Based on a number of studies, all of the participants agreed that due to transfer concerns, "it would be best to sample a subject's hands before bagging the hands or placing the subject in a police vehicle. It was also agreed that armed law enforcement officers can transfer GSR particles to a subject through contact." (Summary, p. 102.) Current Status discussed recent changes in GSR examinations and, with respect to contamination, stated that "[p]olice officers are trained to collect samples as soon as possible after apprehending a suspect—preferably, before transportation to the police station—and to clean their hands and wear gloves when sampling suspects to prevent contamination. . . . [P]olice officers should avoid contact with a subject's hands before sampling. . . . As police vehicles and interrogation rooms are potential sources of contamination, investigators should collect GSR samples before transporting subjects in a police car or questioning them at the station." (Current Status, p. 3.)
Petitioner also submitted a portion of a reporter's transcript of GSR expert Keeler's testimony in a previous case, regarding GSR contamination. In that testimony, Keeler answered in the affirmative a question regarding whether it is possible for GSR to be transferred from the handcuffs or uniform of an officer who has fired a handgun to someone he or she has touched. She also answered in the affirmative the following question: "[When] a person is arrested and placed into a police car back seat, for example, if there is gunshot residue present on the police car back seat, could that gunshot residue be transferred on to the person that's arrested?"
Keeler's testimony is further discussed in the subsequent unpublished appellate opinion in that case. (People v. Quezada (Jan. 31, 2011, A127316).)
In his declaration submitted in support of petitioner's habeas petition, defense counsel stated, "I knew that gunshot residue transferred easily, but I was unaware of specific studies that showed transfer of gunshot residue from an officer who handled a gun or from transfer in a patrol car. Thus, I did not ask Criminalist Ann Keeler about the police department's possible contamination of the samples taken from [petitioner's] hands after he was placed in handcuffs and after he was transported in a patrol car."
b. Legal Analysis
Given counsel's stated awareness of the ease which with GSR can transfer, his failure to investigate possible sources of contamination and then cross-examine Keeler about the possibility that the four GSR particles were transferred from the police officers who handcuffed petitioner after handling their guns or from the back seat of the patrol car in which petitioner was transported to the police station, or both, was unreasonable. Based on Keeler's testimony in People v. Quezada, supra, A127316, cross-examination on these topics would likely have resulted in testimony reflecting the current understanding—as also reflected in the two FBI reports—that armed police officers can transfer GSR particles to a suspect's hands through physical contact and that there is a danger that GSR already present in the back seat of a police car will be transferred to a suspect who has been placed in the back seat. In a case in which no gun was ever found and four GSR particles on petitioner's hand provided the only physical evidence linking him to the shootings, and in which there was a scientifically sound—and innocent—explanation for the presence of the GSR based on contamination, there was no tactical reason for defense counsel not to ask Keeler about the possibility of such contamination. Moreover, counsel could have shown that the collection procedures used in this case were counter to the procedures recommended by the FBI to avoid the danger of contamination.
Respondent asserts, first, that it was for counsel to determine the scope of cross-examination. (See People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["As to whether certain witnesses should have been more rigorously cross-examined, such matters are normally left to counsel's discretion and rarely implicate inadequacy of representation"].) However, an attorney's general discretion regarding the extent of cross-examination does not excuse counsel from further questioning of prosecution witnesses that could have revealed exculpatory or impeachment evidence and that would thereby have produced a more favorable result. (Cox, at p. 662.)
Second, respondent notes that counsel did establish generally that GSR is highly mobile. Although it is true that counsel questioned Keeler about how highly mobile GSR is and the ease with which it is transferred, this evidence could actually have been used against petitioner, to explain why he had only four particles left on his hand by the time of testing. Evidence demonstrating that, prior to the examination of his hands for GSR, petitioner was twice handled in a way that has been found to create a real risk of contamination plainly would have been more powerful than the general testimony presented, which was unrelated to what occurred here. The evidence in question was far too important for counsel to have neglected to specifically call attention to the ways in which GSR could have been transferred to petitioner's hands after the shootings. (See Strickland, supra, 466 U.S. at p. 688.)
As petitioner puts it in his habeas petition, "The GSR evidence was the only physical evidence tying petitioner to a shooting. It placed a gun in his hand and established that he recently fired a gun. Once GSR was established on Reed's hand, and with nothing to contradict it, there was little chance the jury would not find that Reed was the shooter."
4. Failure to Present Evidence on the Concept of Confabulation
Petitioner contends counsel's failure to present expert testimony regarding the psychological phenomenon of confabulation is a further example of his inadequate representation.
a. Trial Court Background
During trial, Officer Osanna testified that he saw the black car go by seconds after he heard gunshots. During the three seconds he was able to observe the driver and passenger as the car passed by, he recognized Watts as the driver of the car. He did not recognize the passenger, but "[w]hat stood out" to him about the passenger was that he was wearing a "black and gray and white checkered garment." Osanna testified that when he saw petitioner and Watts a short time later, he recognized petitioner as the passenger by his clothing. The checked jacket that petitioner was wearing, and which Osanna said he saw the car's passenger wearing, was also the same one Officer Dodds observed him wearing that morning in the area where he was later detained.
Osanna also testified that the passenger was not Collins, who was known to him.
Every other witness at trial who saw the shooter at the scene of the homicides or in the car near the time of the shootings described him as wearing a black hoodie, including Tackitt who also saw the passenger in the car just after the shootings. Osanna testified that he saw the black car go by five to ten seconds after he heard the last gunshot. For Osanna's testimony to be accurate, petitioner would have had perhaps five seconds after getting back into the car to change out of the black hoodie (which was never found) before Osanna observed him pass by in the checked jacket. Despite the inherent difficulties in Osanna's testimony, the prosecutor's questioning established that, as a police officer, he possessed the critical ability to observe and recognize people. During closing argument, the prosecutor emphasized Osanna's experience and presence of mind in stressful situations.
Defense counsel understood the importance of refuting Osanna's testimony because, during closing argument, he told the jury that Osanna had no more than five seconds to observe Watts and the passenger in the car. Counsel then stated, "And the thing that's interesting is there is a psychological phenomenon known as confabulation. Big word simple idea. I see you brief—very briefly and start describing what I did, I know the judge is wearing a black robe. Why do I know she's wearing a black robe because she is always wearing a black robe when she comes out here. Did I see her now? No. But I am putting a black robe, so I am filling in the holes. It is not a lie. I don't know why I am doing it. I may have seen her in a black robe, I may not have. Under the theory of confabulation, if there are any blanks to fill in, I fill them in. [¶] And that's what I think happened: The police officer saw him subsequently in that jacket possibly without even knowing that there was any great significance to it at the time, and he said I saw him in the car with it too because I'm filling in what he looked like when I looked into the car and saw it." In his declaration, submitted in support of petitioner's habeas petition, counsel stated: "I did not consider presenting an expert on 'confabulation' because I believed that I could provide a sufficient explanation to the jury during closing argument."
b. Legal Analysis
"Confabulation is the communication of falsely constructed answers and information by an individual recounting something he or she genuinely believes to be the truth [citation]. This phenomenon occurs through the replacement of gaps in memory with imaginary information [citation], causing accounts that lack correspondence to real events. Essentially, a falsification of memories through guessing or the imagining of an event occurs; backfilling and assuming the reality of the imagined event turn into a 'final product,' which is believed to be true by the individual recounting the events [citation]. In effect, the mind appears to be filling in the missing memory with information that it recognizes should fit, thus explaining the situation and creating a robust memory of the event." (Brown et al., Confabulation: Connections between Brain Damage, Memory, and Testimony. Journal of Law Enforcement. vol. 3, No. 5. ISSN: 2161-0231<http://www.aiafs.com/adobe/article-confabulation-journal-of-law-enforcement.pdf> [as of Jan. 20, 2017]; cf. Rock v. Arkansas (1987) 483 U.S. 44, 59-60 [describing three "general characteristics of hypnosis that may lead to the introduction of inaccurate memories," including likelihood that subject will " 'confabulate,' that is, . . . fill in details from the imagination in order to make an answer more coherent and complete"].)
"[B]ecause new content can be added and the source of that content forgotten, we may attribute our updated memories to the originally witnessed events—in some cases substantially changing what we believe we have seen. It is thus not surprising that newly incorporated information need not be true to fact. Research on false memories shows that it is possible to plant fabricated content in memory, which leads us to recall things we never experienced." (Identifying the Culprit: Assessing Eyewitness Identification. 4 Basic Research on Vision and Memory. National Research Council. Washington, DC: The National Academies Press, 2014. <http://www.nap.edu/read/18891/chapter/6#47> [as of Jan. 20, 2017], fns. omitted.)
In this case, petitioner argues that Osanna's certainty that he observed petitioner's checked jacket during the three seconds he testified he saw Watts and a passenger in the getaway car, could have been explained by confabulation, based on Osanna's observation of petitioner for a longer period just afterwards when he was running with Watts and wearing the checked jacket. We agree with petitioner that the complex concept of confabulation—which involves more than the mere possibility of mistaken identification—is beyond the common experience of jurors and, therefore, expert testimony on the concept was warranted in these circumstances. (See Evid. Code, § 801, subd. (a) [opinion of expert in form of opinion is admissible only when it is, inter alia, "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact]; but cf. Fradella, Why Judges Should Admit Expert Testimony On The Unreliability Of Eyewitness Testimony, June 2006. Federal Courts Law Review, pp. 27-28, fns. omitted <http://www.fclr.org/fclr/articles/html/2006/fedctslrev3.pdf> [as of Jan. 20, 2017] [arguing that "[t]he recommendation to routinely admit expert testimony [on the unreliability of eyewitness testimony] should be adopted by the courts nationwide, just as it has been by the Third Circuit. . . . The scientific research on memory, generally, and eyewitness identification in particular 'are quite counterintuitive and hardly commonsensical' "].)
Expert testimony on confabulation would have not only raised doubts about whether Osanna in fact saw petitioner's checked jacket during his very brief observation of the two people in the car, it also could have raised questions as to whether he also saw that the passenger was not Collins.
In People v. Sanders, (1995) 11 Cal.4th 475, 508 (Sanders), our Supreme Court summarized its earlier decision in People v. McDonald (1984) 37 Cal.3d 351, 369 (McDonald), overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914, in which it had "acknowledged that scholarly research had uncovered a set of psychological principles concerning eyewitness identifications that had become widely accepted in the scientific community. We concluded that the Kelly-Frye rule was inapplicable to expert testimony on psychological factors affecting eyewitness identification. [(See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C.Cir. 1923) 293 F. 1013.)] We also observed that the body of information available on psychological factors bearing on eyewitness identification was ' "sufficiently beyond common experience" that in appropriate cases expert opinion thereon could at least "assist the trier of fact" (Evid. Code, § 801, subd. (a)).' (37 Cal.3d at p. 369, fn. omitted.)
"[The McDonald court] held that, in the appropriate case, exclusion of expert testimony concerning eyewitness identification would constitute error. (37 Cal.3d at p. 377.) [The McDonald court] stressed that '[w]hen an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.' (Ibid.) [The court] also emphasized, however, that 'the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion' and that such evidence 'will not often be needed.' (Ibid.)" (Sanders, at p. 508; accord, People v. Brandon (1995) 32 Cal.App.4th 1033, 1053.)
Respondent cites People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995 (Lewis ), in which the court stated, "Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary. For this reason, the trial court's discretion regulating its use is rarely disturbed." In Lewis, the court found no error or ineffective assistance of counsel because there were no eyewitnesses who had in fact identified the defendant and, therefore, the defendant had not shown how the expert testimony would have made a difference. (Lewis, at pp. 995-996.) Here, on the other hand, expert testimony on the psychological factors that can affect eyewitness testimony was necessary given that eyewitness identifications were central to the prosecution's case, particularly that of Osanna, who was both a police officer and the only eyewitness who testified that he saw the passenger in the getaway car wearing petitioner's distinctive checked jacket, rather than a black hoodie. (See Sanders, supra, 11 Cal.4th at p. 508.) Since Osanna's identification of petitioner was "a key element of the prosecution's case but [was] not substantially corroborated by evidence giving it independent reliability," it would have been an abuse of discretion for the trial court to exclude "expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but [were] not likely to be fully known to or understood by the jury." (Ibid.) Had an expert explained the phenomenon of confabulation, the jury may well have drawn "exculpatory inferences" regarding whether petitioner was in fact the passenger in the black car, and hence the perpetrator of the two homicides. (See Lewis, at p. 996.)
Respondent observes that our Supreme Court in People v. Bolin (1998) 18 Cal.4th 297, 334, stated that courts are unlikely to find counsel's decision not to call a witness reversible error unless it results from an unreasonable failure to investigate. In this case, counsel's remarks about confabulation during closing argument, as well as the statement in his declaration that he believed the mention of it in argument was sufficient, demonstrates that he knew of the concept of confabulation and understood its importance to counter Osanna's identification of petitioner in the getaway car by the distinctive checked jacket he was wearing a very short time later. As discussed, counsel failed to take the next crucial step and obtain expert testimony to explain confabulation and how it applied to the present case. This failure was part of counsel's pattern of failing to investigate and fully present evidence pointing to petitioner's innocence and countering evidence of his guilt. (Compare ibid.)
Counsel's somewhat confusing comments during closing argument describing this complex theory, with no evidentiary support or even an explanation of how and why confabulation occurs was plainly insufficient, given the importance of the evidence and the complexity of the concept. (See CALCRIM No. 222 [instruction, given in this case, told jury that arguments of counsel are not evidence].) Counsel's failure to present expert testimony on confabulation therefore fell below an objective standard of reasonableness in the circumstances of this case. (See Strickland, supra, 466 U.S. at p. 688.)
5. Failure to Establish the Relevance of and Present
Evidence of Petitioner's Severe Mental Impairment
Petitioner contends counsel was ineffective for failing to present evidence of his severe mental deficiencies. According to petitioner, evidence of his impairment would have provided an innocent explanation as to why he was running with Watts shortly before they were detained and why he repeatedly failed to follow Osanna's command to get on the ground. He also argues that evidence of his vision problems due to his constant strabismus condition would have shown that it was unlikely that he could have been the shooter.
a. Trial Court Background
The probation report stated that petitioner had a history of learning disabilities and special education. During the Evidence Code section 402 hearing related to the admissibility of third party culpability evidence, counsel asked Officer Dodds if he knew whether petitioner was enrolled in special education. When the prosecutor objected on relevance grounds, the court stated that Dodds knew petitioner because petitioner was in his class and asked counsel to explain the probative value of evidence that petitioner was in special education. Counsel responded, "That's fine with me, your Honor." The court then stated, "Okay. That's the offer of proof, then I am going to sustain the objection on the grounds of relevancy." The court also found that, even if it had probative value, the evidence would consume more time than necessary. Subsequently, during Dodds's trial testimony, counsel asked Dodds if petitioner was in special education. The prosecutor objected and the court said, "Oh, sustained. Not appropriate. Strike any—it's just what the lawyer said, so it's not appropriate." The court then reiterated that what the lawyers said was not evidence and that the jury should not consider counsel's question.
In support of his habeas petition, petitioner submitted a psychological evaluation of petitioner, prepared by psychologist Jules Burstein, on November 21, 2011, to assist the court in determining if petitioner was competent to stand trial (see § 1368); Atascadero State Hospital's court progress report (see § 1370), prepared for the trial court in April 2012; and a juvenile justice health services report dated August 24, 1998, regarding petitioner's strabismus.
These reports were initially filed under seal. At respondent's request, we ordered that these exhibits be provided to respondent, to assist in the preparation of its Return.
Petitioner was determined to be mentally incompetent to stand trial from January 2012 through February 2013. In his November 21, 2011 psychological evaluation, Dr. Burstein stated that he had consulted with defense counsel, who told him that "he has learned that his client was in Special Education classes in school and may have suffered brain damage from head trauma he experienced as a youngster. He stated that he has had extraordinary difficulties communicating adequately with his client, because he will explain things, and minutes later [petitioner] appears not to recall or understand what was said." Dr. Burstein had also reviewed other competency evaluations and petitioner's psychiatric chart, interviewed petitioner, and consulted by phone with petitioner's mother. Dr. Burstein found that petitioner's "intellectual limitations have been judged sufficiently impaired as to have him qualify for SSI [supplemental security income] benefits since he was 12 years old, according to his mother. Those cognitive liabilities are glaringly evident when he was asked to describe elementary aspects of judicial procedure. He appears to have serious difficulty with concentration and attention; retaining information; and understanding basic concepts." Dr. Burstein offered a provisional "diagnosis of 'Borderline Intellectual Functioning' that is compelling enough to render him incompetent to stand trial."
After the trial court found petitioner incompetent to stand trial, he was committed to Napa State Hospital and subsequently sent to Atascadero State Hospital. In the Atascadero State Hospital progress report, the evaluating psychologist, who interviewed petitioner in April 2012, found him "exactly the same" as when Dr. Burstein evaluated him six months earlier. Petitioner's thought processes were consistent with "confusion and limited intellectual abilities which appear to be the core of [his] problem areas." The psychologist provisionally diagnosed petitioner with, inter alia, cognitive disorder, not otherwise specified and borderline intellectual functioning, and concluded that petitioner was not yet competent to stand trial and should therefore be retained for further treatment. Petitioner was ultimately found competent to stand trial on February 28, 2013.
During petitioner's trial, on April 30, 2014, defense counsel again raised the question of petitioner's competency, stating that he wanted to bring to the court's attention that, "in my judgment, my conversations with my client have led me to believe he has no concept of what we are doing. [¶] I think he understands this is a trial, that that's the jury and, probably that you are the judge, but I mean, he is asking me questions which are fundamental and don't have anything to do with, in particular, this case." After conducting an in camera hearing, the court found petitioner competent, and the trial continued.
Finally, as previously discussed, the juvenile justice health services report describes petitioner's "[v]isible strabismus," which "was not intermittent."
In his declaration, submitted in supported of petitioner's writ petition, defense counsel stated, "I did not consider requesting admission of evidence of [petitioner's] mental deficiencies because I did not see the materiality. I made a tactical decision not to have [petitioner] testify because of his mental deficiencies."
During trial, Officer Osanna testified that he saw petitioner and Watts near the getaway car soon after the shooting, running toward the park. He pointed his gun at the two men and ordered them to get on the ground. Watts complied, but even though Osanna "ordered him numerous times to get on the ground," petitioner "just stared at me, disobeying my commands." After Osanna repeated the command about six or seven times, petitioner finally got on the ground. The court subsequently instructed the jury that it could use evidence of petitioner's flight "to show that he was aware of his guilt." (CALCRIM No. 372.) Finally, in his closing argument, counsel stated that when Osanna testified that petitioner "resisted arrest because he didn't lay down when I told him to, one explanation is because he didn't feel like laying down. Another explanation is he is not very swift, and it takes him a while to get information and use it and absorb it, figure out why the hell is he telling me to lay down?"
b. Legal Analysis
Petitioner argues that presentation of evidence of his mental impairment would have provided the jury with an alternative framework for understanding why petitioner, who had been seen earlier in the day hanging around in the very area where he was detained, would run with Watts and then fail to follow Osanna's commands. The reports related to petitioner's cognitive issues show that he suffered from "confusion and limited intellectual abilities." We agree that, had counsel attempted to present this evidence of petitioner's borderline intellectual functioning—and not just evidence of his special education history—and explained its relevance to the court, the evidence would have been admissible, would have provided the jury with an innocent explanation for his conduct, and would have countered the court's instruction that the jury could use his flight as evidence showing his awareness of his guilt. (CALCRIM No. 372.)
Respondent argues that petitioner was not prejudiced by counsel's failure to present evidence showing his mental deficiencies since the prosecutor neither mentioned petitioner's flight in closing argument nor argued that it was a basis for inferring his guilt. This statement ignores the fact that the jury heard both Osanna's testimony that petitioner was running with Watts and repeatedly refused to comply with his commands, as well as the court's instruction that the jury could use petitioner's flight to infer guilt. (See CALCRIM No. 372.)
Although counsel did argue that petitioner might not have followed Osanna's commands because "he is not very swift," there was no evidentiary support for this vague alternative explanation, which left the jury with the flight instruction and Osanna's testimony that petitioner was running away from the getaway car with Watts and refused to get on the ground when told to do so. With Dodds's testimony that he had seen petitioner that morning hanging around in the area of the high school and park, which was where he was later observed running with Watts, the jury could reasonably have surmised that he was still there when he saw Watts running and joined in. In addition, this evidence, together with the evidence of petitioner's strabismus, would also have provided the jury with a framework for evaluating the likelihood of petitioner being able to plan and carry out a double murder in front of multiple witnesses and then, seconds later, permanently dispose of the black hoodie he wore during the shootings and the gun he had used.
In his follow-up investigation report, Sergeant Gantt stated that in a postarrest interview, petitioner said that he and Watts "are like best friends."
For these reasons, we find that counsel's decision not to present evidence of petitioner's severe mental impairment and to a lesser degree his strabismus, based on the belief that this evidence was not material, was not a reasonable tactical choice. (See Strickland, supra, 466 U.S. at p. 688.)
B. Counsel's Failure to Investigate and Present Evidence
Pointing to Al Collins's Guilt
Petitioner contends defense counsel was ineffective for failing to investigate and present third party culpability evidence pointing to Al Collins's guilt. Specifically, petitioner argues counsel unreasonably failed to (1) investigate and challenge evidence that Collins was thoroughly investigated and excluded as the shooter, (2) follow up on information from an informant that Watts had said that Collins got away with the gun, and (3) introduce at trial either evidence that Collins's right palm print was found on the interior rearview mirror of the black Saturn or a photograph of Collins.
1. Counsel's Failure to Investigate and Challenge Evidence that Collins Was
Thoroughly Investigated and Excluded as the Shooter
Petitioner contends defense counsel should have challenged Sergeant Gantt's testimony that Collins was thoroughly investigated and eliminated as a suspect and should have ensured that all of Gantt's notes from his interview with Collins and the corresponding entry in his investigative summary were presented to the jury.
a. Trial Court Background
At trial, Gantt testified on cross-examination that during his interview with Collins, Collins "did deny having anything to do with this homicide." Counsel did not ask any additional questions about the interview or any other part of Collins's statement to Gantt. Gantt's notes from the interview with Collins state that Collins said he had been in a car with Watts once, in December 2009, and had never been in a car with him in March 2010. The entry in Gantt's investigative summary states that Collins told him that "he has never been in a car with Jason Watts and he has never left any clothing in [Watts's] car in the past." Collins also denied having heard anything about the shootings of Johns and Jones, and said that "he was with his girlfriend in Berkeley on the day of the shooting." When Gantt confronted him about his DNA being found on a hat inside of Watts's car, "Collins asked for a lawyer and concluded the interview." The interview with Collins took place five months after the shootings. In his declaration submitted in support of petitioner's habeas petition, defense counsel stated, "I did not consider requesting admission of statements of the witnesses Allen Collins and Tyler Jameson [sic], who were deceased by the time of trial, either as non-hearsay or in the interests of justice because the trial court was opposed to admitting additional third party evidence."
There apparently was also a video recording of this interview, which was not included as an exhibit to petitioner's habeas petition.
b. Legal Analysis
Petitioner first claims that counsel should have further cross-examined Gantt about the interview and/or sought admission of Collins's entire interview with police, pursuant to Evidence Code section 356.
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
The purpose of Evidence Code section 356 "is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1324.) "A witness may be cross-examined on any matter within the scope of direct examination. (Evid. Code, § 773.) . . . ' "In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . .' [Citation.]" ' [Citation.] Further, the jury is entitled to know the context in which the statements on direct examination were made. [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 334-335, citing Sanders, supra, 11 Cal.4th at p. 520 [where defense counsel elicited portions of investigative interview with witness, prosecution was not foreclosed from inquiring into context of statements on redirect examination of witness and cross-examination of investigator].)
Here, we agree with petitioner that because the prosecutor elicited a portion of Gantt's investigative interview with Collins, i.e., Collins's denial of any involvement in the shooting, defense counsel would have been entitled to elicit the remainder of the statement and inquire into the context of that statement on cross-examination, under Evidence Code section 356. (See Sanders, supra, 11 Cal.4th at p. 520.) Collins's additional statements during the interview plainly had " 'some bearing upon, or connection with' " his denial of involvement in the shootings. (People v. Harris, supra, 37 Cal.4th at p. 335.) They also would have shown that Collins lied to police about where he was on the day of the shootings, which would have shed light on his denial of any involvement. Introduction of all of Collins's statements would have shown that Collins denied being in Watts's car in March 2010, or ever leaving any clothing in Watts's car, and that he refused to cooperate with police when confronted with the information that his DNA was found on a hat in Watts's car. This evidence of Collins's lies and lack of cooperation also would have raised questions about the failure of the police to further investigate Collins, given the DNA evidence and Dodds's observation of him out of breath near the getaway car just after the shootings. Indeed, Gantt testified that, in light of the information he had received about Collins, "I tried to conduct a thorough and complete investigation" and "I had to go to talk to Mr. Collins because I wouldn't have conducted a thorough investigation had I not."
The court admitted Collins's comments to Gantt only for the purpose of "assessing the credibility" of Gantt's investigation. As discussed, this evidence certainly would have been relevant to the thoroughness and credibility of Gantt's investigation. We have also found, however, that the court erred in limiting evidence of Collins's possible involvement in the shootings. (See pt. I., ante.) As we shall further discuss, this and other evidence pointing to Collins's guilt would have been admissible and, had counsel raised such evidence with the court, it would have strengthened his offer of proof regarding the probative value of the third party evidence as a whole. (See text & fn. 24, ante.)
Moreover, as to counsel's statement in his declaration that he did not consider requesting admission of Collins's statement because the court was opposed to admitting third party evidence, the court had permitted Gantt to respond on direct examination in the negative to the prosecutor's question regarding whether, during the course of his investigation, he was "ever able to locate anybody who identified Mr. Collins as, uh, the or the shooter in this particular case." The court also subsequently permitted counsel to elicit testimony from Gantt that Dodds had said he saw Collins at the scene, as well as that Dodds had heard that Collins was involved in the shooting, the latter not for the truth of the matter, but to demonstrate Gantt's credibility and the credibility of his investigation. Thus, although it is true that the court did exclude much of the proposed defense evidence related to Collins's possible involvement in the shootings, the court's ruling did not mean that it would have been futile for counsel to have attempted to further explore Collins's statement to Gantt, after the court had already permitted Gantt to testify to some of what Collins had said to him.
Also left unexplored by counsel was the fact that Gantt's interview with Collins did not take place until five months after the shootings.
Petitioner points out that counsel also failed to ask Gantt about the following information contained in Gantt's investigative report: "It should be noted that there are several Field Contact report[s] which document times Collins and Watts have been stopped together." This would have demonstrated the connection between the two men and would have further suggested that Collins was lying when he said he had not been in a car with Watts in March 2010.
For these reasons, counsel was unreasonable in failing to attempt to elicit the remainder of Collins's statement to police, which showed that he had lied about his whereabouts on the date of the shootings and about whether he had ever left an article of clothing in Watts's car, which would have raised questions about Collins's veracity while also raising doubts about the thoroughness of the police investigation. (See Strickland, supra, 466 U.S. at p. 688.)
2. Counsel's Failure to Follow Up on the Prosecution's Information that an
Informant said Watts had Indicated that Collins Got Away with the Gun
Petitioner contends counsel unreasonably failed to follow up on information received from the prosecution that an informant had said that Watts indicated that Collins got away with the gun used in the shootings.
a. Trial Court Background
During trial, on April 30, 2014, the prosecutor informed the court that he wanted to put on the record that he had received information from Officer Dodds that day regarding a meeting he had in 2010 with a female prosecutor then working on the case, who told him that an Oakland police officer had informed her that an informant who had been cellmates with codefendant Watts had relayed information "indicating that Mr. Collins, um, got away with the guns [sic]" in this incident. The prosecutor said his office was planning to contact Erin Loback, the female prosecutor he believed Dodds was talking about, as well as the intelligence officer who provided the information. But he also said he wanted to immediately provide the court and defense counsel with the information because it was potentially exculpatory. The prosecutor said he had "let [defense counsel] know that, but apparently [defense counsel] had been aware of something of that nature; I'm not sure if he knew the complete details or not."
Defense counsel then said that he would recommend that the prosecutor get the name of the intelligence officer in question "from my investigator because I believe he actually has a name." Counsel also said he did not have the name of the female prosecutor, adding, "When I got the case, I think there were several people down the road." The court then said the prosecution would be following up on the issue "and we will just wait and hear what you come up with in that regard."
The following day, the prosecutor informed the court and defense counsel that the prosecution had spoken to Officer Steve Valle, who said that he did remember "some of the conversation" with the informant. "He can't remember specific details, but was able to confirm that the conversation between himself, Ms. Loback from [the District Attorney's] office, and an individual with the last name of Ayers, . . . took place at North County Jail, and the substance of it was that there was a rumor that an individual by the name of Lil Al was involved in this murder." The prosecutor further stated that Deputy District Attorney Loback remembered having the conversation, but could not remember any of the details. Finally, the prosecutor stated that the informant had been murdered in February 2014, "so we can't even go and find him and track down any additional information."
Both Gantt and Dodds had testified that Collins was known as "Little Al."
In his declaration submitted in support of the habeas petition, defense counsel stated, "I have no recollection whether the District Attorney was able to find the informant discussed at trial, who told an Oakland Police Officer and possible [sic] Deputy District Attorney Erin Loback that Allen Collins got away with the gun." In her declaration submitted in support of petitioner's habeas petition, appellate counsel stated that she contacted a representative of the District Attorney's Office and requested any notes or summary of the meeting Deputy District Attorney Loback and Investigator Valle had with Watts's cellmate who had told them that Collins got away with the gun. The representative responded that Loback and Valle had "reported that they did not have any notes on the informant."
b. Legal Analysis
The initial discussion between the court, the prosecutor, and defense counsel reflects that defense counsel was already aware of the informant's statement implicating Collins when the prosecutor raised the issue, and even knew that his investigator had the name of the officer who had provided the information. In his declaration, counsel stated only that he did not recall whether the prosecutor was able to find the informant; he offers no tactical reason for his failure to investigate this potentially exculpatory evidence, either before or after the prosecutor raised it during trial. Had he investigated earlier, given that he was previously aware of this information, there would have been a possibility of interviewing the informant before his death some two months before petitioner's trial began and/or interviewing Valle and Loback while their memories were still fresh.
Moreover, even had counsel waited until after receiving this information from the prosecutor during trial, the potential exculpatory value of this evidence was far too strong to simply ignore it. An investigation by counsel would have at least made it possible that he could have presented this extremely exculpatory evidence to the jury, for example with Watts's statement to the informant admissible as a declaration against interest. (See Evid. Code, § 1230 ["Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made . . . so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true"]; see also People v. Grimes (2016) 1 Cal.5th 698, 717 ["contextual approach" in determining admissibility of a statement under against-interest exception "accords with the rationales underlying the modern expansion of the rule governing the admission of statements against interest"]; cf. People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962 [statements of defendant's co-participants who asserted their Fifth Amendment privilege not to testify at defendant's trial were admissible as declarations against interest under Evid. Code, § 1230].) While the informant's statement would not have been against his penal interest under Evidence Code section 1230, it arguably would have been against his social interest by marking him as a "snitch." (See Evid. Code, § 1230 [admissible statements include those that created a risk of making the declarant "an object of hatred, ridicule, or social disgrace in the community"].) Without any investigation on counsel's part, this potentially exculpatory evidence was never dealt with at all.
Respondent further maintains that the possibility that Collins had also "participated in the crime, perhaps stationing himself nearby and disposing [of] the gun while Watts and petitioner fled in the car, does not exonerate petitioner." Such speculation, not based on any prosecution theory or evidence, is not persuasive.
Counsel was unreasonable in failing to follow up on this information. (See Strickland, supra, 466 U.S. at p. 688.)
3. Counsel's Failure to Seek to Introduce at Trial Evidence Either that Collins's Palm
Print Was Found in the Getaway Car or a Photograph of Collins
Petitioner first argues that counsel was ineffective for failing to introduce evidence that Collins's right palm print was found on the interior rearview mirror of the black Saturn.
In his declaration submitted in support of the habeas petition, defense counsel stated, "I was aware before trial that Allen Collins's palm print was found on the rearview mirror of the black Saturn, identified as the getaway car. I do not have a specific recollection about requesting admission of the palm print." During trial, Gantt testified that "there were no fingerprints" found in the black Saturn used in the shootings.
The palm print evidence, like the evidence of Collins's DNA on the hat, connected Collins to the getaway car. However, the palm print evidence was stronger than the DNA evidence because, unlike the hat—which was mobile and could arguably have been placed in the back seat of the car without Collins ever having been there—the presence of Collins's palm print proved that Collins was in the car, almost certainly in the front seat.
For these reasons, we reject respondent's suggestion that counsel's failure to request admission of the palm print evidence was a reasonable tactical choice since the DNA evidence was already before the jury "and, therefore, the palm print added little of significance to the jury's understanding of the case."
Given counsel's attempt to introduce other third party culpability evidence related to Collins and the prosecution's presentation of evidence regarding Collins's DNA being found on the hat, there could be no valid tactical reason for counsel not to attempt to introduce this concrete physical evidence, which would demonstrate that Collins had been in the front seat of the getaway car. We agree that counsel was unreasonable in failing to present the palm print evidence. (See Strickland, supra, 466 U.S. at p. 688.)
In part III., post, we address the prosecutor's failure to correct Gantt's misleading testimony that no fingerprints were found in the getaway car.
Petitioner further argues that counsel provided deficient representation when he failed to introduce a photograph of Collins at trial even though Collins better fit witnesses' initial descriptions of the shooter/passenger. Police did not show witnesses a photograph of Collins and, according to petitioner, "[b]y the time of trial, several years had elapsed and the witnesses' accounts had changed, with the descriptions of the shooter morphing to better match petitioner." In support of the habeas petition, petitioner submitted a photograph of Collins, dated March 1, 2010, four days before the shooting. It shows that Collins, who was wearing a black hoodie at the time, had short hair, no facial hair, and a dark complexion, all of which better matched witnesses' initial descriptions of the shooter. In contrast, petitioner's booking photograph shows that he was wearing the checked jacket, and also had longer hair than either Collins or Watts, a distinctive moustache, and an apparently lighter complexion. Although not as troubling as the failure to introduce the palm print, admission of Collins's photograph from near the date of the shootings would have been helpful in arguing that he better matched the witnesses' initial descriptions of the shooter/passenger, before they repeatedly saw petitioner, at the field show-up and future proceedings.
For example, at trial, Tackitt testified that the shooter had a "lazy eye," although she did not describe the shooter in this way in her witness statement to police, given just after the shootings. Martinez testified at trial that the shooter had "puffy hair" under his hood, although in his statement to police he said he could not see the shooter's hair because of his hoodie. Also, in his initial statement, Martinez said that the shooter had a dark complexion and no facial hair, which better matched the photograph of Collins.
In light of the several instances of inadequate representation we have found with respect to this third party culpability evidence, we need not address petitioner's additional claims that counsel was ineffective for not cross-examining Gantt about his failure to show Collins's photograph to or play a sample of his voice for witnesses who saw and/or heard the shooter, or to compare Collins's shoe print to a bloody footprint found at the scene during the investigation.
In addition, with respect to all of petitioner's contentions that counsel failed to investigate or present evidence pointing to Collins's guilt, the fact that the trial court erroneously excluded other proposed evidence related to Collins did not excuse counsel from investigating and arguing for admission of this additional evidence. Had counsel presented the court with these concrete instances that further indicated Collins's involvement in the shootings, the court might have found that the third party culpability evidence raised a reasonable doubt as to petitioner's guilt. Moreover, before the defense presented its case, the trial court ruled that only limited third party culpability evidence related to Collins was admissible, but it excluded reputation and motive evidence. (See pt. I., ante.) Counsel's deficiencies discussed in this part, however, involved the failure to crossexamine witnesses during the prosecution's case before the court limited the admissibility of the evidence, or to follow up on an issue the court deemed important (the informant) or actual physical evidence tying Collins to the getaway car (the palm print). Hence, it would not have been futile for counsel to raise these issues at trial.
C. Failure to Object to Prosecutorial Misconduct
and Request an Admonition
Petitioner claims, both on appeal and in his habeas petition, that defense counsel was ineffective for failing to object to multiple instances of prosecutorial misconduct during closing argument.
" ' " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it " ' "involves the use of deceptive or reprehensible methods to attempt to persuade either the court or jury." ' " [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 819.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
Our Supreme Court has further observed that " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .' " ' [¶] Prosecutors, however, are held to an elevated standard of conduct . . . because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]" (Hill, supra, 17 Cal.4th at pp. 819-820.)
In evaluating a claim of prosecutorial misconduct based on a prosecutor's comments to the jury, we must determine whether " 'there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner. [Citations.]' " (People v. Valdez (2004) 32 Cal.4th 73, 132-133; People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
In the present case, petitioner acknowledges that defense counsel neither objected to the prosecutor's challenged comments nor requested an admonition, but claims that counsel was ineffective for failing to do so. (See Hill, supra, 17 Cal.4th at pp. 820-821 [" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety' "].) According to petitioner, counsel should have objected to, inter alia, the prosecutor's argument of facts not in evidence, including comments about Collins's distance from the black Saturn, what petitioner was wearing when he was arrested, and witnesses' estimates of his height.
1. Trial Court Background
During closing argument, the prosecutor discussed Officer Dodds's testimony regarding Collins's distance from the black Saturn when Dodds saw him. The prosecutor challenged Dodds's estimate that Collins was 200 to 250 feet from the car, first discussing the approximate number of blocks Collins must have been from the car when Dodds saw him, and then stating, "Now we are all adults, we have all been to school. We know that the average block is—in the city is generally about a tenth of a mile. If we walk about ten blocks, we have walked pretty close to a mile. We know that a mile is roughly 5,280 in terms of feet. And that's not something that, you know—we were taught that in school. 5,280 feet. So if you break that down into tenths, a tenth of a mile would be 528 feet, not 250.
"Now, I give you that because I want to make sure that you keep in context what Officer Dodds had to say and why he said things. He was off by my calculation roughly by 50 percent. If the actual location, if the actual location is where he says that Al Collins was, then Al Collins was approximately a block away from the vehicle. Not just around the corner. [¶] So please keep that in context as you are deliberating, as you are taking in this information. The prosecutor referred to Collins being a block away from the car three more times during his argument.
Defense counsel did not object to the prosecutor's comments contesting Dodds's testimony about Collins's distance from the car. In his declaration, submitted in support of petitioner's habeas petition, counsel stated that he did not object to these comments "because I generally do not like to object during closing argument and chose to address the facts during closing argument." In his closing argument, defense counsel did refer to the prosecutor's comments, stating, "We know that [Collins] was in the area where the car was left, 500 feet if we go in one set of math, 250 feet together [sic]."
2. Legal Analysis
"Argument is improper when it is neither based on the evidence nor related to a matter of common knowledge." (People v. Pitts (1990) 223 Cal.App.3d 606, 702, superseded by statute on other grounds.) A prosecutor's reference to facts not in evidence constitutes misconduct "because such statements 'tend to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' " (Hill, supra, 17 Cal.4th at pp. 827-828.)
We conclude the prosecutor's comments constituted misconduct. No evidence, other than Dodds's testimony, was presented at trial regarding the distance of the streets in question or regarding whether those streets were "average blocks," even assuming such a thing as an average city block exists. The prosecutor's comments thus were not based on the evidence; nor were they a matter of common knowledge. (People v. Pitts, supra, 223 Cal.App.3d at p. 703.) This unchallenged argument allowed the prosecutor to be " 'his own witness—offering unsworn testimony not subject to cross-examination.' " (Hill, supra, 17 Cal.4th at p. 828.)
Although defense counsel did mention in closing argument the two possible distances Collins was from the car when Dodds saw him, he did not challenge the prosecutor's distance estimate in any way. Instead, counsel effectively told the jury that it could consider either Dodds's testimony or the prosecutor's argument in determining the distance Collins was from the car when Dodds saw him. Counsel's failure to object to the prosecutor's comments—or even attempt to counter them in his closing argument—demonstrates that "counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) Collins's distance of a mere 200 to 250 feet from the black Saturn was an important piece of evidence linking him to the shootings. The prosecutor's repeated references to Collins's supposed distance from the car—528 feet—both undermined Dodds's testimony that Collins was in fact half that distance from the car when Dodds saw him and further implied that Collins was simply too far away from the car for him to have been the shooter in this case.
Petitioner also faults defense counsel for failing to object to two other comments by the prosecutor during closing argument regarding facts not in evidence. First, the prosecutor stated that witnesses had described the shooter as wearing all black and that Sergeant Gantt had "testified that on the day of this case [petitioner] was wearing all black: black shoes, black pants, black top. And Officer Osanna said this." Gantt did testify at trial that when detained, petitioner was wearing a black shirt, presumably under his plaid outerwear. The evidence of what petitioner was wearing was significant because all of the witnesses except Osanna described the passenger/shooter as wearing a black hoodie, with the hood pulled up over his head, while Osanna described the passenger as wearing the checked jacket in which petitioner was arrested.
Second, the prosecutor stated that "the witnesses described the individual who did the shooting as being tall, all in the neighborhood of my height: I told you 6 feet. All of that is in the record." At trial, Martinez testified that the shooter was about 5 feet 10 to 5 feet 11 inches tall. Tackitt testified that she believed the passenger in the black Saturn was perhaps a bit taller than the prosecutor, who was 6 feet tall, although he had been standing on the curb when she saw him. She also acknowledged at trial that she had initially told the police that the passenger was around 5 feet 8 inches tall and that at a previous trial she had described him as being up to 6 feet 8 inches tall. She also testified that she had difficulty estimating people's heights and weights. The evidence of height was significant because Sergeant Gantt testified that petitioner was 6 feet 1 inch tall and Collins was 5 feet 7 inches tall.
As with the prosecutor's comments about Collins's distance from the black Saturn, counsel stated in his declaration that he did not object to the prosecutor's closing argument that all the witnesses had "identified the shooter as being 6' tall because I generally do not like to object during closing argument and chose to address the facts during closing argument." In his closing argument, counsel did address the fact that five witnesses had said the shooter was wearing a black hoodie, while petitioner was in a checked jacket, but did not discuss the height discrepancies.
Because the prosecutor's comments about the shooter's height and petitioner's clothing were based at least to some degree on evidence presented at trial, they were not as problematic as the unsworn testimony about the distance between Collins and the car. However, they were nonetheless incomplete and misleading. If counsel preferred not to object, he should have done what he described as his preference in his declaration: addressed the prosecutor's inaccuracies during his closing argument. (See Strickland, supra, 466 U.S. at p. 688.)
In light of the numerous instances of inadequate representation that we have found, we need not address petitioner's additional claims that counsel was ineffective for failing to present evidence (1) that petitioner was excluded from all DNA and fingerprint evidence found in the getaway car, (2) that his shoe was excluded from a bloody footprint found at the scene, (3) that he avoided riding in cars, and (4) of his character for nonviolence, in addition to Dodds's reputation testimony. Nor need we address whether the prosecutor committed misconduct during closing argument by mischaracterizing reasonable doubt.
D. Prejudice Resulting from Counsel's Inadequate Representation
Having found "that counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms" (Strickland, supra, 466 U.S. at p. 688), we now must determine whether petitioner has shown prejudice, that is, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) The second part of the Strickland test 'is not one solely of outcome determination. Instead, the question is " ' "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.' [Citation.]" (Hardy, supra, 41 Cal.4th at p. 1019; accord Jones, supra, 186 Cal.App.4th at p. 244.)
Here, "[a]fter weighing the available evidence, its strength and the strength of the evidence the prosecution presented at trial," we conclude petitioner has shown that he was prejudiced by counsel's deficient performance. (Hardy, supra, 41 Cal.4th at p. 1025.) As discussed, counsel's failure to investigate and present evidence that two eyewitnesses had either excluded petitioner or been unable to identify him as a suspect, to challenge Tackitt's testimony about her original identification of the shooter, or to object to the prosecutor's argument that Dodds must have been twice the distance from Collins as indicated by his testimony all deprived petitioner of additional important evidence pointing to his innocence or undermining evidence purporting to show his guilt. Counsel's inadequate representation also allowed evidence of petitioner's guilt, including the presence of GSR particles on petitioner's hand, Osanna's identification of petitioner as the passenger in the getaway car based on the checked jacket he was wearing when detained, and petitioner's apparent flight and failure to follow police commands, to be presented at trial without significant challenge. (See Jones, supra, 186 Cal.App.4th at p. 238 [discussing right of a criminal defendant to expect " 'that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation' "].)
We observe that without the ineffective assistance of counsel, of the three witnesses who identified petitioner, only the testimony of Martinez, who could not in fact identify petitioner at trial, would have remained unchallenged, and there would have been two additional witnesses—Dehoyos and Thompson—who could testify that they did not recognize petitioner during a postarrest field show-up or a photo show-up as having been in the getaway car.
In addition, counsel's failure to investigate and present evidence reasonably available to him at the time of trial that pointed to Collins as the shooter—including evidence showing that police did not conduct a thorough investigation of Collins, that Collins lied about his whereabouts near the time of the shooting, that an informant had told authorities that Watts had indicated that Collins got away with the gun, and that Collins's palm print was found on the rearview mirror of the getaway car—deprived petitioner of crucial evidence directly tying Collins to the shootings, as well as evidence showing Collins's motive for the crimes. (See Jones, supra, 186 Cal.App.4th at p. 238.)
When added to other inconsistencies in the evidence, including repeated eyewitness testimony that the shooter was wearing a black hoodie; the fact that neither the hoodie nor the gun was found at the scene of the shootings, in the black Saturn, where petitioner was detained, or anywhere in between; and the fact that Dodds had seen petitioner in the area earlier in the day, wearing the checked jacket he was wearing when detained, we conclude the numerous instances of inadequate representation, viewed as a whole, prejudiced petitioner. (See Strickland, supra, 466 U.S. at p. 694; see also Hill, supra, 17 Cal.4th at p. 844 [series of trial errors, even if individually harmless, can rise to level of prejudicial error].) In the circumstances of this case, counsel's ineffective assistance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland, at p. 686; accord, Jones, supra, 186 Cal.App.4th at p. 244.)
In reaching this conclusion, we do not mean to imply that defense counsel was indifferent or made no efforts on behalf of his client. However, in light of the unusual number of complex and intertwining issues involved, this case required a great deal more.
III. The Prosecutor's Presentation of and Failure to Correct False Evidence
Petitioner also contends the judgment must be vacated because the prosecutor presented and/or failed to correct materially false evidence at trial. Specifically, he argues that the prosecutor failed to correct (1) Gantt's false testimony that no fingerprints were found in the black Saturn connecting anyone to the crime, when in fact Collins's palm print was found on the interior rearview mirror, (2) Gantt's testimony that gave the false impression that Collins had been ruled out as a suspect after a thorough investigation, and (3) Tackitt's false testimony that she had identified petitioner at the show-up shortly after the shootings. Petitioner further argues that the prosecutor falsely argued that Dodds had in fact observed Collins at twice the distance from the getaway car as Dodds had testified, and had misrepresented the witnesses' descriptions of petitioner's clothing and of the shooter's height.
We have already addressed all of these issues in the context of ineffective assistance of counsel. (See pt. II., ante.)
Respondent points out that petitioner did not raise the false evidence issue on direct appeal. However, with respect to the claim that the prosecutor failed to correct Gantt's false trial testimony that "there were no fingerprints" found in the black Saturn used in the shootings, the palm print evidence, included as an exhibit in the habeas petition, was not in the record on appeal. Likewise, the witness statement and police reports showing that at a field show-up Tackitt had identified Watts as the shooter but did not recognize petitioner as a suspect were not in the record on appeal. Therefore, petitioner did not forfeit these two claims by failing to raise them in his direct appeal.
Section 1473 provides in relevant part: "(b) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:
"(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her incarceration. [¶] . . . [¶]
"(c) Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in paragraphs (1) and (2) of subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to paragraphs (1) and (2) of subdivision (b)."
Gantt's testimony that no print evidence was found in the black Saturn was false: a report by an Oakland Police Department latent print examiner states that Collins's palm print was found on the car's interior rearview mirror. Tackitt also testified that she had identified both suspects at the field show-up just after the shootings, but that she could not remember at trial whether petitioner was the passenger or driver. Both attorneys' questions to Tackitt, as well as their related arguments, were based on the mistaken assumption that she had identified petitioner as the passenger/shooter at the time of that initial identification. We need not inquire as to whether the prosecutor "knew or should have known" that Gantt and Tackitt testified falsely, given that such knowledge is immaterial to whether petitioner is entitled to relief. (§ 1473, subd. (c).)
The trial court inadvertently repeated this false testimony when it sustained its own objection to a question by defense counsel to Gantt, stating that, in light of what Dodds had told Gantt about Collins and the DNA evidence, "the officer wanted to ensure that anybody who had anything to do with this car, because no prints were found, he interviewed them, that was the reason he went [to interview Collins]."
Thus, in this discussion, we are not suggesting that the prosecutor or the witnesses intentionally provided or failed to correct false evidence. (See § 1473, subd. (c).)
Having found that false evidence was presented at trial, we now must determine whether that evidence was "substantially material or probative on the issue of guilt or punishment." (§ 1473, subd. (b)(1).)
Respondent acknowledges the falsity of Gantt's testimony, but argues that the evidence was not material. As to Tackitt's testimony, respondent argues that the officer writing up her witness statement must have mistakenly reversed her identifications. In light of the preliminary hearing testimony and the evidence submitted on this issue in support of the habeas petition respondent's theory does not have evidentiary support.
Our Supreme Court has explained that false evidence is "substantially material or probative" under section 1473, subdivision (b)(1) " ' "if it is 'of such significance that it may have affected the outcome,' in the sense that 'with reasonable probability it could have affected the outcome . . . .' [Citation.] In other words, false evidence passes the indicated threshold if there is a 'reasonable probability' that, had it not been introduced, the result would have been different. [Citation.] The requisite 'reasonable probability,' we believe, is such as undermines the reviewing court's confidence in the outcome." ' [Citations.] This required showing of prejudice is the same as the reasonably probable test for state law error established under People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.] We make such a determination based on the totality of the relevant circumstances. [Citation.]" (In re Richards (2016) 63 Cal.4th 291, 312.)
In the present case, we conclude the testimony of both Gantt and Tackitt was "substantially material or probative," pursuant to section 1473, subdivision (b)(1). (See also pts. II.A.2., II.B.3., & II.D., ante.) The palm print evidence, like the evidence of Collins's DNA on the hat, connected Collins to the car. It was stronger than the DNA evidence because, unlike the hat—which was mobile and could arguably have been placed in the back seat of the car without Collins ever having been there—the presence of Collins's palm print proved that Collins was in the car, almost certainly in the front seat. The palm print evidence thus would have provided additional direct, incontrovertible, physical evidence that Collins had been present at some point in the getaway car. This evidence would necessarily have strengthened petitioner's third party culpability argument.
Likewise, Tackitt's testimony provided key eyewitness evidence that petitioner was involved in the shootings, and both attorneys' questions implied that she had originally identified petitioner as the passenger/shooter. This testimony also allowed the prosecutor to argue that every witness had identified petitioner as the passenger/shooter, thereby undermining the defense's third party culpability theory. In fact, Tackitt's witness statement and Officer Hamilton's report show that, minutes after observing the passenger/shooter, Tackitt not only misidentified Watts as that individual, but did not even recognize petitioner as having been one of the two people involved in the incident. This was plainly key evidence that not only would have led the jury to question Tackitt's credibility, it would also have raised questions about the integrity and thoroughness of Gantt's investigation. Tackitt's false testimony thus provided strong evidence directly linking petitioner to the shooting. (See In re Richards, supra, 63 Cal.4th at p. 312.)
In addition to Tackitt's and Osanna's identifications of petitioner, Martinez, another eyewitness, had identified petitioner as the shooter in a field show-up shortly after the shootings and had identified him by his photograph at a previous court proceeding and at trial. However, at trial he testified that he could not say whether the shooter was present in the courtroom. --------
We need not definitively decide whether the false evidence, alone, was substantially material or probative because we conclude there is a reasonable probability that the false evidence, in conjunction with the numerous and cumulatively prejudicial instances of ineffective assistance of counsel (see pt. II., ante), affected the outcome in this close case. (See Hill, supra, 17 Cal.4th at pp. 844, 847; see also In re Richards, supra, 63 Cal.4th at p. 312.)
Respondent doggedly maintains that petitioner suffered no prejudice from any of the errors because overwhelming evidence of his guilt was presented at trial. As already discussed in detail, however, the majority of the evidence of petitioner's guilt was either defective in some way or readily explainable, or both. But due to the presentation of false evidence and defense counsel's failure to investigate and present and/or challenge much of the evidence, the jury never learned of the flaws in the prosecution's case. This is thus an unusual case, one in which the errors so compromised petitioner's trial that the result cannot stand. Indeed, the cumulative impact of all of these errors cannot be underestimated. As our Supreme Court stated in Hill: "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (Hill, supra, 17 Cal.4th at p. 844.)
Petitioner has suffered a miscarriage of justice. The judgment must therefore be vacated. (See Hill, supra, 17 Cal.4th at p. 844.)
The judgment is vacated in its entirety, the habeas is granted, and the appeal is dismissed as moot.
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________