Full opinion text
Opinion MOSK, J. Defendant was convicted of first degree murder (Pen. Code, § 187), kidnapping (id., § 207), and two counts of robbery (id., § 211); special circumstance allegations of the intentional killing of a witness (former Pen. Code, § 190.2, subd. (c)(2)), felony-murder robbery (id., subd. (c)(3)(i)), and felony-murder kidnapping (id., subd. (c)(3)(ii)) were found true; and defendant was sentenced to death (id., § 190 et seq.). Defendant appeals (Pen. Code, § 1239, subd. (b)), and also petitions for habeas corpus on the ground that he was denied his constitutional right to the effective assistance of counsel at trial. The proceedings have been consolidated for decision. To assist this court in resolving the ineffectiveness claim, we appointed the Honorable Joseph P. Kelly, Judge of the Superior Court of Santa Clara County, Retired, as referee to take evidence and make findings of fact and conclusions of law regarding that claim. Following the hearing, the referee filed his report. He concluded that defendant’s trial counsel was incompetent in several particulars, that as a result he subjected the defense to prejudice, and hence that he failed to provide defendant with effective assistance. Accordingly, he recommended that the petition be granted and the writ issue. As we shall explain, we adopt the referee’s report in relevant part and follow the referee’s recommendation, and hence grant the petition and vacate the judgment of conviction. I. The Facts On August 26, 1978, Gabriel Flores was working as an attendant at the Hudson Oil Company gasoline station at 437 West San Carlos Street in San Jose. About 5:15 p.m. two men rode into the station on a motorcycle; the driver got off, drew a white-handled gun, robbed Flores of money and some other items, and then mounted the motorcycle and sped off. Flores gave the police the license plate number of the motorcycle and a description of the robbers. Not long afterwards San Jose Police Officer Ronald Webster, who was on patrol in the general area, received a report of the robbery and a summary of the information Flores provided. He requested a registration check and was informed that the suspect motorcycle was registered to defendant at 985 South First Street in San Jose. He proceeded to that address and was soon joined by two other officers. The three parked out of sight and set up a stake-out in the hope that the motorcyclist would return. After about half an hour they approached the front door and encountered the occupant, Leticia Mejia, and stated that they were looking for defendant. Mejia, defendant’s former girlfriend, told them that he used to live there but had moved several months earlier, that she thought he was then living in the area of Third and Hedding Streets, and that he drove a white Cadillac when he was not riding his motorcycle. Officer Webster proceeded to the area of Third and Hedding Streets, went up and down the streets looking for a white Cadillac, and eventually found one parked in the driveway of a duplex at 960 North Fourth Street. Parking about a block away, Webster requested a registration check and was informed that the vehicle was registered to defendant at 960 North Fourth Street. He returned to the duplex and staked it out for between 20 and 30 minutes. He then called for Officers Habina and Maria Guerra to help him approach the duplex. He and Habina went to the front door and Guerra went around back. At the door they encountered Lawrence Santiago and Millie Dominguez, and told them they were looking for defendant and his motorcycle in connection with a robbery that had been committed earlier that afternoon. Santiago and Dominguez stated that defendant was not home at the time. Without a warrant the three officers, who were armed and in uniform, then entered the apartment, ordered Santiago and Dominguez to remain in the living room and not move, and conducted an unsuccessful search for defendant. As they were questioning Santiago and Dominguez after completing the search, the telephone rang. The officers prohibited Santiago and Dominguez from answering. Officer Guerra picked up the receiver, identified herself in Spanish as “Millie,” and was told by the caller—who said he was defendant—that he was “hot” and knew the police were after him, and that she should lock the apartment and the white Cadillac and take a walk. Three days later, on August 29, 1978, San Jose Police Sergeant Robert Traskowski, who was in charge of the robbery investigation, presented to Flores a display of six photographs; defendant’s was included and was marked Number 4. After studying the photographs for a minute, Flores pointed to Number 4 and said, “No. 4 looks like the guy.” When asked whether he was sure that Number 4 was the robber, he looked at the photograph about 10 seconds and responded, “No. 4 is the only one that looks like him.” When asked later that day, “Is the man in photograph #4 the same one who had the gun and took the money?,” he answered, “Yes.” Traskowski then obtained a robbery complaint against defendant and a warrant issued for his arrest. Beyond Flores’s identification, no eyewitness or physical evidence linked defendant to the crime. At 8:15 p.m. on September 5, 1978, the San Jose police arrived at the Hudson Oil Company gasoline station at 437 West San Carlos Street in response to calls from customers stating that the station was unattended. They found that the station appeared to be open for business; on the office counter sat a cigarette smoldering in an ashtray and a half-empty bottle of cold Coca-Cola; although some money and a tapestry were missing, rolls of coins remained on the counter in plain view. The police determined that the person on duty that night was Flores. The bicycle he used to ride to and from work remained at the station. On September 8, 1978, Flores’s body was discovered in an embankment off Hecker Pass Road in the heavily wooded mountains of southern Santa Clara County near Gilroy. The body bore one gunshot wound in the top of the head, one in the back, and two in the abdomen, and several stab wounds in the chest. No eyewitness or physical evidence linked defendant to whatever occurred at the gasoline station on September 5 or to the murder. Sometime in the late summer or early fall of 1978 defendant went to Salt Lake City, where he remained until the middle of March 1979. Soon after-wards he returned to San Jose and was arrested. II. Pretrial and Trial Defendant was charged with robbing Flores on August 26, 1978, and September 5, 1978, and with kidnapping and murdering him; as to the murder count, special circumstances of intentional killing of a witness, felony-murder robbery, and felony-murder kidnapping were alleged. At the preliminary hearing defendant was represented by Deputy Public Defender David Johnson. He was held to answer, and entered a plea of not guilty and denied the special-circumstance allegations. Not long afterwards he retained Jefferson M. Parrish, Jr., as counsel and substituted him for the public defender. With a single exception, Parrish made no motions before trial. The exception was a successful request under Evidence Code section 1017 for the appointment of a psychiatrist, John P. Glathe, M.D., to examine defendant. The request had been drafted by the public defender’s office, but was altered to bear Parrish’s name and address in place of the public defender. Prior to trial the following colloquy took place between the court and Parrish. “The Court: ... In connection with the case, as I understand it, it’s a single plea of not guilty. And Mr. Parrish, you’ve had the opportunity of psychiatric evaluation assistance and preparation of your case, as I understand it? “Mr. Parrish: Yes, your Honor, I have. “The Court: There is no insanity plea in the case? “Mr. Parrish: No. I feel that’s not a plea in this case. “The Court: And in connection with the matter, I don’t wish to delve into your defense in any way or ask you to divulge anything that would be adverse to your client. But in view of the recent cases, I want to make sure that you have considered the possibility of diminished capacity in a case of this nature. “Mr. Parrish: Yes, your Honor. I have considered both [after reviewing] the psychiatric examination and also the strategy and defense of the case and decided not to use that as a defense.” Prior to trial, as the habeas corpus record reveals, the prosecutor, George Kennedy, committed himself in Parrish’s presence not to introduce the victim’s extrajudicial identification of defendant. Jury selection spanned five court days. Without any objection on the part of Parrish, the voir dire was conducted in open court and without sequestration. On the third day of jury selection the court effectively raised sua sponte the issue whether the prosecutor was using his peremptory challenges to strike Hispanics on the ground of group bias alone in contravention of the rule declared in People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal. Rptr. 890, 583 P.2d 748], and its progeny. By this time the prosecutor had already stricken, among others, prospective jurors Amelia Maes, Michael A. Logan, and Lupe Jiminez: Maes spoke Spanish and was evidently Hispanic; Jiminez also spoke Spanish and was evidently Hispanic; Logan appears not to have been Hispanic, but was married to a member of that group. It is not clear from the record which, if any, of the other prospective jurors whom the prosecutor had peremptorily challenged was Hispanic. The transcript of the Wheeler hearing is as follows. “The Court: Record show Counsel and Defendant present. All the prospective jurors have left the courtroom, [fl] I wanted to call to your attention, gentlemen, you may already be aware of it. The holding in the Second District Court of Appeal that ruled a defendant’s right to [a jury drawn from] a fair cross-section of [the community is] violated when the prosecution used peremptory challenges to remove all Spanish speaking people from the jury. In that case, apparently, I don’t have the excerpt from the Post-Record, but there were prospective jurors that were informed that all the witnesses would speak only Spanish and the interpreter could be sworn to translate the testimony into English. And in that case, the prosecutor had some concern [that] Spanish speaking members would be inclined to use their own translation into English of the testimony given in Spanish. In that case, People v. Lavario, the Court of Appeal would not [subscribe] to that theory. [Here] I don’t perceive that there has been any pattern by the prosecution of excusing Spanish speaking persons by way of deliberate discrimination. There’s still several Spanish speaking people who understand Spanish on the jury. [It] simply was to call this to your attention, gentlemen. “Mr. Parrish: Judge, as I recall, wasn’t there a case where everybody was—who was called who was not impaneled, voir dired was [removed by peremptory challenge]? Everybody who had any Spanish background? “The Court: Well, excerpts that I’m reading from is— “Mr. Parrish: It’s not just the case of excluding one or two, I assume? “The Court: To remove all Spanish speaking people from the jury. That apparently means all other— “Mr. Parrish: Your Honor— “Mr. Kennedy: I’m familiar with that case. It’s certainly no problem with respect to that in this case. My state of mind on excusing Spanish speaking jurors I did excuse was that, for example, Mrs. Jiminez knew the defendant from high school. I thought that might create a problem. I think another Spanish speaking juror I might have excused gave me dirty looks. I felt that they didn’t care for me personally. And I had reasons such as that for excusing those that I did. My feeling is that Spanish speaking members of our community make excellent jurors and [it] has nothing to do with race, language, anything like that. On the occasion when I did excuse those jurors, and [if] Mr. Parrish wants to delve further into any state of mind with respect to that, I’d be happy to explain my reasons for him on the record. “The Court: Very good. I notice that there are the problems with the jurors that you had excused. Mrs. Maes who is Spanish speaking, there was a death case involved. And Mrs. Jiminez had attended the same high school as the defendant and recognized him, [fl] In any event, I wanted it on the record and called to your attention, gentlemen. Thank you.” Shortly after the hearing the prosecutor peremptorily challenged prospective juror Alan F. Porcella and later struck, among others, prospective jurors Jose Flores, C. Carrie Corral, and Robert A. Bagnod. Porcella spoke Spanish and may have been Hispanic; Flores and Corral spoke Spanish and were evidently Hispanic; Bagnod was Hispanic and understood Spanish. At no time while the prosecutor was exercising his peremptory challenges against these or any other prospective jurors did Parrish make any objection or attempt to raise the Wheeler issue. The prosecutor also challenged 16 prospective jurors for cause solely on the ground of their opposition to the death penalty. Without challenge by Parrish a prospective juror whose mother had been beaten, sexually assaulted, and murdered was sworn as a member of the jury. At no time during jury selection did Parrish raise an objection of any kind. In his opening statement the prosecutor presented in brief what he intended to prove in his case in chief, and stated without objection on the part of Parrish that the victim had identified defendant as the robber. Parrish made no opening statement. In the course of presenting his case the prosecutor called Sergeant Traskowski. Traskowski generally described his participation in the investigation of the August 1978 robbery. Evidently because of his commitment not to introduce the victim’s extrajudicial identification of defendant, the prosecutor did not elicit, and Traskowski did not give, any express testimony on this point: “Q. (By Mr. Kennedy) Showing you People’s 11, have you ever seen this before? A. Yes, I have. “Q. And where have you seen that before? A. This is a photo lineup that I prepared with reference to Mr. Ledesma. “Q. All right. And is that the one that you prepared in connection with the investigation of the robbery that took place at the Hudson Gas Station on the 26th of August, 1978? A. Yes. “Q. Now, the following day, after you compared [rac] that lineup with Mr. Ledesma’s picture in it, did you go out and show that lineup to a Mr. Gabriel Flores? A. Yes, I did. “Q. And did you go out there about 9:30 in the morning on the 29th of August in order to show him that lineup? A. Yes. “Q. Was Mr. Flores told to be careful if he were able to select anyone and not to pick out anyone if he wasn’t sure? A. Yes. “Q. Okay. Was he admonished it was not necessary by any means for him to pick out anyone among those people photographed there in that lineup? A. Yes, he was. “Q. Was he also asked if he understood that he was not to pick out anyone unless he felt that person was the robber, so forth? A. Yes, he was. “Q. Okay. Now, following that, on the same day, did you go over and obtain a robbery complaint against Mr. Ledesma? A. Yes, I did. “Q. And was an arrest warrant sought also in connection with that robbery complaint? A. Yes.” Although no express testimony was elicited or given, the crucial importance of the identification to the robbery count—and implicitly to the other counts as well—was made clear in the following colloquy between the prosecutor and Sergeant Traskowski. “Q. ( By Mr. Kennedy ) Now, was this a one-witness robbery case that you were investigating at that time? A. Yes, it was. “Q. And by that, does it mean that the victim is the one witness to the case? A. Yes. He’s the only one that saw anything that we were aware of. “Q. When you have a case such as that, a one-victim robbery case, what happens to the case when the witness dies or is missing in some other way? A. You can—it can be an impossible case to prosecute.” Officers Webster and Guerra described their participation in the investigation into the August 1978 robbery and the consequent warrantless entry into defendant’s apartment and the interception of the telephone call. Before she related the statement defendant allegedly made over the telephone, Guerra added that the officers were “invited in.” Parrish neither raised any objection to Guerra’s testimony nor attempted to undermine it on cross-examination. The prosecution called one Sylvia Ontiveros to testify to certain admissions defendant had allegedly made. When questioned on the matter on direct examination, however, Ontiveros stated that although she had heard several people—none of whom she could identify—say defendant had been involved in the crimes charged, she had never heard defendant himself make any admission or at least could not clearly remember whether he had. She admitted that on being informed by the police that her husband, Santiago (“Jimmy”) Ontiveros, was a suspect in the crimes she had stated that defendant made admissions of involvement. She further admitted that she had so testified at the preliminary hearing. Nevertheless, she continued to insist that she could not clearly remember whether defendant had made any admission. At the beginning of direct examination she stated that she was afraid to testify, and at the end declared she gave the testimony she had given in an effort “not to hurt myself.” The prosecution next called one Michael Shay. Shay testified that he met defendant, who introduced himself as “Jose,” at a party at the Cobble Square Apartments in Salt Lake City in March 1979. Two days later he again saw defendant at the same complex and spoke with him for ten or fifteen minutes. During their conversation, he said, defendant made the following admissions: he was from San Jose and was wanted for a robbery at a gas station; at the time of the robbery he had put a gun in the attendant’s face and said if he “narced”—i.e., informed—on him he would come back and “snuff”—i.e., kill—him; he went back to the station and as the attendant was placing a case of oil in his trunk pushed him in and shut it; he then took the attendant to the mountains and unloaded a gun into him; he killed the attendant because he had “narced” on him. After the conversation, Shay said, he left and never saw defendant again. The prosecution then called one Floyd Cowdell. Cowdell testified that he met defendant, who identified himself as “Joe Salinas,” around September 1978. Two or three weeks later, defendant moved in with him and his wife Sharia and stayed two or three months. While he was there he made the following admissions: he moved to Salt Lake City because he was in trouble in California and was being sought under a murder warrant; he and a friend had committed a robbery at a gasoline station; he was riding a motorcycle; he had forgotten to wear a mask and the victim saw him; because he did not want to get caught, he returned with two or three others, took the victim in a black van to some bushy place or some mountains, and shot and stabbed him. The prosecution next called Sharia Cowdell, whose testimony differed in some respects from her husband’s. She stated that she met defendant, who identified himself as “Joe Salinas,” around August 1978. Not long after-wards he moved in, and stayed about three months. During his time there, he made the following admissions to her and Floyd: he and a friend committed a robbery at a gasoline station; he had ridden in on a motorcycle and had forgotten to pull down his mask; after the robbery he and his friend went to another friend’s house and were told the police were looking for them; he and some of his friends went back to the station, and took the attendant to the mountains; there he shot him a few times, told his partner to stab him, and when the partner refused, stabbed the attendant in the chest. When defendant finished his tale, Sharia testified, he told them he would kill them if they informed on him. The prosecutor introduced several photographs which graphically depicted the victim’s body and the wounds it bore, some having been taken at the crime scene and the rest at an autopsy. Parrish did not object to the admission of any of the photographs, and in fact twice stated that he had no objection to the introduction of the autopsy photographs. Taking the stand in his own defense, defendant gave in substance the following testimony. On August 26, 1978, he got up around 11 a.m. and gave a friend who had stayed the night a ride home on his motorcycle. He spent some time talking at the friend’s home and then went to visit two friends whom he knew only as “George” and “Joel.” He arrived at their apartment about 3 or 3:30 p.m. and found them present with a man and woman whose names he did not know; they drank and smoked marijuana. About 4:30 p.m. he went across the street, bought some beer, and returned; they continued to drink but started to run low on marijuana. George and Joel decided to get some “joints” of phencyclidine (PCP). Since their car was out of gas and they had no money, he let them use his motorcycle; he gave the keys to George, and watched them leave with George driving; they said they would be back in about an hour. He then started to drink some more beer. Between 5:30 and 5:45 p.m., defendant continued, George and Joel returned with some “joints” of PCP which they had purchased for $20 apiece. The group drank and smoked, laughed and talked. George then told them that he and Joel had just pulled an armed robbery at the Hudson gasoline station and flashed some bills. George and Joel said in substance that they had done the job quickly and had not covered the motorcycle’s license plate or disguised themselves. About 6 or 7 p.m. defendant called his former girlfriend, Leticia Mejia, at whose address his car and motorcycle were registered, and asked whether anyone had been looking for him; she told him that the police had just been there attempting to find him and said he had pulled an armed robbery. He became very angry at George and Joel, who he knew had been in prison and had committed robberies before. They told him not to worry and suggested that he stay at the apartment “until the heat’s off.” He decided to act on their suggestion—Mejia having told him that she had given the police his address. He did not call his apartment as Officer Guerra had testified. He thought about turning himself in and telling the police about George and Joel, but decided not to because he feared he would be labeled a “snitch.” He remained at the apartment two or three weeks, defendant went on, never leaving it out of fear he might be arrested. Finally, he took a bus to Salt Lake City. There he was met by a cousin. He told her he was wanted for armed robbery but had not committed the crime. He stayed with her between one and two months and then moved in with the Cowdells, whom he had met through another cousin. One day Floyd told him he had just pulled a robbery, and indeed bragged about all the robberies he had been committing. In response defendant said, “Why don’t you be cool, man. Don’t bring any more heat because they’re looking for me, you know, for armed robbery.” Although he told them he was wanted, he did not describe the incident. They expressed no concern that he was being sought: the police were always coming to the Cowdell’s home to serve warrants on Floyd. While in Utah, defendant continued, he called his brothers and Jimmy Ontiveros and learned that the gasoline station attendant had been murdered and that he was wanted in connection with the crime. He never discussed the murder with the Cowdells, and assumed they must have learned about it from the police in the course of striking some deal. Nor did he tell Shay that he had committed a robbery or a murder: Shay was “just another pusher—another clown,” and defendant did not like him; a couple of days before he left Utah, Shay was arrested on drug charges. He did not discuss the crimes with Sylvia Ontiveros when he called Jimmy. Sylvia was “burned out” on PCP and had a poor memory. After she testified to his alleged admissions at the preliminary hearing, she told some of his friends she was forced to do so to prevent robbery and murder charges from being brought against Jimmy. Defendant denied ever owning a gun. He also denied that he had ever committed an armed robbery or a murder. Indeed, he asserted that he had been in trouble with the law only once, when he was committed to the California Youth Authority as a result of the theft of an automobile. It was undisputed that he had never suffered a felony conviction. On cross-examination the prosecutor elicited from defendant testimony to the effect that the police reports revealed that the victim had identified him as the robber and that several anonymous callers had told the police that he had committed the August 1978 robbery and the murder. The prosecutor also questioned defendant extensively about his juvenile record and his participation in unproven crimes other than those for which he was on trial. Further, he examined defendant as to a conversation surreptitiously tape-recorded in jail, in which he stated he knew who informed on him and would get his revenge. The prosecutor also elicited from defendant his explanation of the testimony against him—to the effect that under the direction of Sergeant Kenneth Kahn of the Santa Clara Sheriff’s Department, who was in charge of the murder investigation, the authorities and Sylvia Ontiveros, Shay, and the Cowdells conspired to engineer a “frame up.” On each of these matters, as on others, Parrish made no substantial objection. Rudy Ledesma, one of defendant’s older brothers, also testified on behalf of the defense. He stated, inter aha, that George and Joel were indeed real persons, and that it was he who had introduced defendant to them. On rebuttal the prosecutor called three witnesses. Sergeant Kahn described the conduct of the murder investigation and denied the existence of a “frame up.” In the course of cross-examination, Parrish stated that he himself did not believe Kahn had participated in “framing” defendant. Deputy Jay Labrum of the Salt Lake County Sheriff’s Department testified as follows: as he was seeking a person known as “Jose Salmas” and before he had learned of the California crimes, he went to the Cobble Square Apartments and showed defendant’s photograph to several persons including Shay; Shay said that the subject had admitted a California armed robbery and murder; he did not supply information to Shay and did not bargain with him. Sergeant John Bernardo of the same department gave the following testimony: as he was seeking a person known as “Jose Salmas” and before he had learned of the California crimes, he interviewed the Cowdells; Sharia told him defendant admitted killing a man in California and Floyd said the same thing; he had made no threats or promises to obtain the Cowdells’ statements and denied he had “cook[ed] anything up” with the California police. In closing argument the prosecutor summed up his case and, without objection by Parrish, emphasized the critical importance of the victim’s identification of defendant, the telephone call intercepted by Officer Guerra, and defendant’s alleged admissions. In his argument Parrish maintained that the prosecutor had failed to carry his burden, but again made it clear that he himself did not believe in defendant’s “frame-up” theory: “I don’t think that the police framed my man, that there’s some sort of a cheap, as I say, theatrical maneuver on their part to gather evidence through statements of people who are either somehow persuaded through threats or perjury or threats to commit peijury or whatever way they are persuaded.” Of the 54 instructions given at the guilt phase all were requested by the prosecutor. They included CALJIC No. 2.52 (1979 rev.), on flight after the commission of a crime; a modification of CALJIC No. 8.21, on first degree felony-murder robbery; and a modification of CALJIC No. 8.84.2 (1977 rev.), on the special circumstance of murder in the commission of a kidnapping. To none of the instructions given did Parrish make any objection, nor did he request any instructions himself. During their deliberations the jury made several requests for the rereading of testimony. The first such request was for the portion of Sergeant Traskowski’s testimony “re: positive I.D., i.e., I.D. of Ledesma.” Because Traskowski had never given such testimony, the court responded to the request as follows: “In connection with Officer Traskowski and the identification of the photographs shown. The transcript does not show that he was asked a direct question. That being a hearsay situation, the district attorney proceeded in the manner that the reporter will read to you.” After almost 15 V2 hours spent in deliberations over 3 court days, the jury returned a verdict finding that defendant was guilty as charged and that all the special circumstance allegations were true. At the beginning of the penalty phase the prosecutor and Parrish stipulated on the record that “during the course of these proceedings the jury shall consider all of the evidence which has been received during the first part of the trial.” Without any objection by Parrish the court then preinstructed the jury, pursuant to former CALJIC No. 8.84.1, on the sentencing factors defined in former Penal Code section 190.3. Neither the prosecutor nor Parrish presented an opening statement. The prosecutor called a number of witnesses to establish that defendant had committed three armed robberies in Salt Lake City early in 1979. He also called Sergeant Lawrence Demkowski of the San Jose Police Department, who testified that when defendant was sixteen years old he was classified as a runaway juvenile and had burglarized the home of one of his brothers, stole a handgun, attempted an armed robbery with two other youths, and afterwards stole a car. Parrish called four witnesses, each of whom gave brief testimony. Sergeant Kahn stated in substance that prior to trial defendant made an effort to help the police in their search for the other persons who they believed participated in the murder. Annalita Ledesma, defendant’s former wife, testified that during the time they lived together defendant worked and was a good husband, and that he had always been a good father to their three daughters, had never shown violence, and to her knowledge had never been involved in serious criminal activity. Pasqual Ledesma, one of defendant’s older brothers, testified that to his knowledge defendant had always gotten his money from honest work and had never committed an armed robbery, and that he had never seen him violent or armed. Without objection by Parrish, on cross-examination the prosecutor attempted, with some success, to elicit testimony from Pasqual to the effect that defendant was declared an uncontrollable juvenile, had been committed to the California Youth Authority, had stolen cars, had been put in jail on various occasions, and had been in and out of trouble all his life. Reuben Gomez, defendant’s best friend, testified that although he was aware that defendant had problems as a juvenile, he never knew him to be involved in armed robberies or violence of any kind, to be arrested, or to carry a weapon. In closing argument the prosecutor maintained that the statutory sentencing factors, applied to the facts of this case, required the imposition of the death penalty. In a brief argument which fills less than three and one-half pages of transcript, Parrish essentially made what was not so much a plea for defendant as a general attack on capital punishment and asked that the jury impose life imprisonment without possibility of parole. With two exceptions, all the instructions given at the penalty phase were requested by the prosecution, and included former CALJIC No. 8.84.1. The exceptions were CALJIC No. 2.60 (1979 rev.) as modified, to the effect that no adverse inference may be drawn from defendant’s failure to testify, and CALJIC No. 2.61 (1979 rev.) as modified, to the effect that defendant may rely on the state of the evidence. In asking for these instructions, Parrish submitted form requests which he had obtained from the prosecutor’s office. He made no objection to any of the instructions requested or given, and indeed made no objection at all during the entire penalty phase. During deliberations the jury may have come close to deadlock: on the second day they asked the court, “What are the options under the circumstances of the jury not being unanimous?” On the third day, however, and after almost 10 Vi hours of deliberation, they returned a verdict of death. At the automatic verdict-modification hearing Parrish filed in open court the first and only written motion that he had himself prepared and the only written motion made on behalf of defendant since the request for the appointment of Dr. Glathe, which had been drafted by defendant’s original public defender counsel. The motion, which sought a “new trial . . . [or] modification of punishment,” rested on conclusory assertions of judicial error, prosecutorial misconduct, and lack of support for the jury’s verdicts and findings. The verdict-modification issue was evidently close. The following colloquy took place between the court and the prosecutor: “The Court: Mr. Kennedy, let me ask you, what is there in this case that connects the defendant to any of these crimes other than his own statements that were testified to [by] other persons? Mr. Kennedy: Well, the statements are the main things, of course. . . . “The Court: Well, it’s true, isn’t it, that the only physical evidence that you were able to present was the license number of the motorcycle belonging to the defendant? Mr. Kennedy: Yes. . . . “The Court: No gun was ever found, no knife was ever found, no tapestry. Mr. Kennedy: That’s correct.” After this colloquy the court made a statement which runs in relevant part as follows: “What has bothered me about this case and throughout was the nature, the quality, and the quantity of the evidence relative to the defendant’s participation in the crimes charged. There is no question about the evidence missing. There can be no doubt that there was a murder committed. The criminal agency was involved. “I do believe that the main difiiculty with the case is the question of what weight is to be given to the defendant’s statements if believed to other persons. Which brings me to the automatic review required by the law, and that the court conduct in a case in which the jury has returned a death penalty. I start that review from the point of view . . . that judges should be willing to uphold the jury’s verdicts in all instances where that is possible. But in this circumstance, the weight placed upon the court is not as narrow as it is under the present law. “That is to say, under the 1977 law in which the court is bound to decide the automatic review. It seems to me the court is required to reweigh or entitled to reweigh the weight of the evidence in support of the conviction and the penalty. “But the whole issue in my mind comes down to the question of what weight in reviewing the case the court is to give to the testimony of those who testify as to statements made by the defendant to them. I believe a case of this nature as to the crimes here committed, the death penalty is a proper penalty. “And from the beginning when the jury had reached their verdict, I was aware of the fact that ultimately I was going to have to decide the same issues that they decided and have the responsibility of an independent determination in that regard. The law is that oral statements of the defendant are to be viewed with caution. And that doesn’t make any distinction as to who they’re made to or when they’re made or even the circumstances under which they’re made. So it becomes critical in this case, I believe, as to those witnesses who testified, as to what the defendant allegedly told them. “Mrs. Ontiveros who testified in part left me with the impression that her testimony—well, first of all, what she said in my mind was not sufficient to uphold either a verdict in any regard, but hers was not the only testimony. But I got the distinct impression from her testimony that she was attempting to hold back. That she was not being totally frank with the court or the jury. And I further would hesitate to give the weight to her testimony that would impose the death penalty on anyone. “The young man from Utah was a different situation. He had no connection whatsoever with the defendant before the offense here in question. And indeed, it was rather a casual connection with the defendant there in Utah. And for a rather brief period of time. “And the defendant, in his testimony, struck me as the type of person who would brag, the type of a person who would discuss things that he had done in a sense of attempting to be [an] enlarged image in somebody else’s view. And in that brief encounter and statements, if that were the only evidence I’d be hesitant to uphold the jury’s verdict as far as the death penalty is concerned. “But that’s not the only statements. There is the statement of the people who the defendant lived with in Utah for a period of time. . . . “But the Cowdells’ testimony, I think, is the most damaging part of the district attorney’s case to the defendant. That is, quite frankly, if it was Mr. Cowdell’s testimony, he alone, I would be hesitant to uphold the jury’s verdict as far as the death penalty is concerned. “But Mrs. Cowdell’s testimony was direct and concise. And watching her on the witness stand, her demeanor, and even viewing what she said with caution, left me with the belief that the defendant had confessed the crime to her. . . . “And although I’m aware that there is no other physical evidence which connects the defendant to the crimes, and that has been a concern from the beginning of this case in my mind, I do believe the defendant committed the crimes as charged. I do believe the evidence supports that finding. . . . “In reviewing the aggravating and mitigating circumstances, I think the use of drugs and marijuana by the defendant is a mitigating circumstance. I think the fact that he had no—that he had never been convicted of any felony, indeed his criminal record prior to the events here in question was rather minimal. The aggravating circumstances far outweigh, in my mind, those mitigating circumstances.” Accordingly, the court declined to modify the jury’s verdicts and findings and denied Parrish’s motion. Thereupon, it pronounced judgment and sentenced defendant to death. III. The Habeas Corpus Proceeding Claiming that Parrish failed to provide him with the effective assistance of counsel—i.e., that he failed to perform his duties with reasonable competence and as a result prejudiced the defense—defendant filed in this court a petition for a writ of habeas corpus. In support of his claim he made numerous specific allegations, most of which fall into one or more of the following general categories: (1) Parrish failed to adequately investigate the facts of the case or research the applicable law, especially with regard to the availability of the defense of diminished capacity; (2) Parrish failed to make use of the evidence and leads contained in a report assembled by defendant’s original public defender counsel, which included a psychosocial report prepared by one Marynella Woods and a general investigative report prepared by one Russ Kuebel; (3) Parrish made misrepresentations to defendant to the effect that he could guarantee acquittal on the basis of insufficient evidence; (4) Parrish failed to attempt to bar reference to the victim’s extrajudicial identification of defendant; (5) Parrish failed to attempt to bar reference to the telephone call intercepted by Officer Guerra; (6) Parrish failed to attempt to bar reference to the anonymous telephone calls informing the police that defendant was the perpetrator of the crimes charged; (7) Parrish failed to undertake an investigation of Sylvia Ontiveros, Shay, and the Cowdells, and specifically failed to make any effort to determine whether he had obtained through discovery all the material to which he was entitled relating to Shay and the Cowdells; (8) Parrish failed to make any effort to test the testimonial competence of Sylvia Ontiveros and Sharia Cowdell; (9) Parrish failed to attempt to bar reference to defendant’s juvenile record and his alleged participation in certain unproved crimes; (10) Parrish failed to object to the prosecutor’s alleged use of peremptory challenges to strike Hispanics from the jury on the ground of group bias alone in violation of People v. Wheeler, supra, 22 Cal.3d 258, failed to object to the excusal for cause of two jurors allegedly in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S. Ct. 1770], and failed to perform with reasonable competence in certain other regards during jury selection; (11) Parrish failed to present a defense of diminished capacity at the guilt phase; (12) Parrish failed to perform with reasonable competence in certain other regards during the guilt phase; (13) Parrish failed to present evidence of defendant’s use of drugs in mitigation at the penalty phase; (14) Parrish failed to request any instructions at the penalty phase other than CALJIC Nos. 2.60 (1979 rev.) and 2.61 (1979 rev.); (15) Parrish failed to perform with reasonable competence in certain other regards during the penalty pilase; and (16) Parrish failed to communicate with defendant after sentence was imposed or to cooperate in any manner with defendant’s appellate counsel, Robert R. Bryan. Concluding that the petition established a prima facie case for relief, we issued an order to show cause and subsequently appointed Judge Joseph P. Kelly to take evidence and to make findings and conclusions responsive to the questions that appear in the margin. The reference hearing opened on December 3, 1984, and closed some nine months later. Before the referee by stipulation of the parties were the record of the trial and the parties’ appellate briefs. The record of the evidence and argument presented at the hearing fills 30 volumes and exceeds 4,300 pages. The tale the report tells is as follows. Certain critical facts emerge as either essentially undisputed or at least clearly established. To begin with, Parrish failed to undertake any research into the law and procedures applicable to capital cases. He failed to do so even though this was his first such case. Further, Parrish neither conducted nor—despite the availability of Penal Code section 987.9 investigation funds—did he retain anyone to conduct a full and independent investigation into the facts of the case. Indeed, he made virtually no investigation at all. The substance of Parrish’s preparation for trial was as follows. First, he apparently read the transcript of the preliminary hearing. Second, he reviewed police reports, tape recordings, and other materials which the prosecution produced under a standing discovery order. In the transcript and the discovery materials he was presented with the facts, issues, and potential witnesses crucial to the prosecution’s case, and also with such other matters as the existence of evidence implicating defendant in crimes other than those charged. Third, although contrary to his testimony he evidently never met with Deputy Public Defender Johnson to discuss the case, he somehow obtained and later reviewed portions of the public defender’s report. This material included the Woods psychosocial report and part of the Kuebel report, which contained generally (1) the results of a preliminary factual investigation, including information about possible criminal activity on the part of Shay and about the “bad reputation” of the Cobble Square Apartments, and (2) suggestions on what should be done to complete the investigation. Fourth, Parrish interviewed defendant and learned of his troubled life, including his juvenile record and contacts with the law and especially his long and serious abuse of such drugs as PCP and methamphetamine. He also learned of defendant’s version of the facts of the case, including drug abuse and criminal activity on the part of Sylvia Ontiveros, Shay, and the Cowdells. Fifth, Parrish sought the appointment of Dr. Glathe and obtained his report. Sixth, he asked Rudy Ledesma to attempt to locate a potential defense witness; Rudy, however, was without the time and the training necessary and did not locate the witness—nor did anyone else. Parrish did not follow up on any of the information detailed above nor did he attempt to obtain further information. Specifically, he did not pursue any further investigation into defendant’s mental state at the time of the crimes charged. Also, with the exception of the motion to appoint Dr. Glathe, Parrish made no pretrial motions, either to limit the prosecutor’s evidence or for any other purposes. During jury selection he made no objections and was in large part essentially passive. At trial he did practically nothing to limit the prosecutor’s comments and questions, did not protect his witnesses or engage in extensive cross-examination of the prosecutor’s witnesses, and was otherwise in large part essentially passive. At the habeas corpus hearing defendant presented considerable evidence concerning such matters as his troubled childhood, adolescence, and young adulthood, including the severe abuse he suffered at the hands of his father and his long and heavy use of PCP, methamphetamine, LSD, and other substances. He established beyond dispute that information bearing on these matters was within Parrish’s possession at and before the time of trial. For example, Parrish, as he himself admitted, had the reports of Woods and Dr. Glathe. Defendant similarly established that further information was readily available. Several relatives and friends testified from personal knowledge that as a child and adolescent defendant had frequently been beaten by his father, that early in his teenage years he began his lifelong abuse of drugs, and that in the summer of 1978 he was heavily using PCP and appeared out of touch with reality. These witnesses made it clear that they would have testified on defendant’s behalf at trial, but that they were not contacted by Parrish. Woods testified that she offered to meet with Parrish in order to provide him with whatever assistance she could, but that Parrish did not respond to her offer. Called by defendant to explain his performance as counsel, Parrish gave extensive testimony. He described his background—he had practiced law since 1962—and explained his entrance into the case. In the summer of 1979 defendant’s family approached him to serve as counsel—defendant being dissatisfied with his then counsel, Deputy Public Defender Johnson, and with Johnson’s efforts to negotiate a plea. Although he had fairly extensive trial experience, he had never tried a capital case. Nevertheless, he offered to represent defendant for a fee of $15,000; defendant’s family was unable to afford that amount; he reduced his fee to $5,000, and the family retained him, made a $1,000 downpayment, and, he alleged, never paid him the rest. Defendant, Parrish continued, was an open, candid, and cooperative client. In their discussions, he alleged, defendant made a detailed but flat and emotionless confession—an allegation vigorously denied by defendant. It was in part because of defendant’s history of drug abuse and in part because of the tone of his alleged confession that Parrish sought the appointment of Dr. Glathe. Although it was clearly established that Parrish had somehow obtained some portions of the public defender’s report, it was difficult to determine precisely which portions. At the hearing Parrish was shown each page of the report, questioned whether he had obtained and reviewed it, and responded “yes," “no,” or “maybe.” The reason for this procedure was as follows. Parrish stated he was unable to refer to or produce his copy because he no longer had it in his possession. He explained that in the winter of 1980-1981, his entire Ledesma files, which included these materials, documents and audiotapes produced by the prosecution, and other items, were stored in a cardboard box in a storage area at his condominium complex; the winter rains were heavy, the storage area leaked, and the files became water-soaked; he dried the contents as best he could, but in time they became moldy; in the late autumn of 1983, he discarded the files in a public dump. He admitted that at the time of disposal he knew not all the documents had been rendered illegible and did not know whether any of the tapes had been affected. He further admitted that he knew this appeal was pending and, indeed, had been requested by appellate counsel to make the files available. Although Parrish’s testimony on the choice and preparation of a defense is not without ambiguities and inconsistencies, the following story emerges: by the time Parrish entered the case, defendant had begun to prepare an alibi defense; Parrish discussed the defense with him and agreed to assist in its development; although prior to trial he stated in response to the court’s question that he had considered a diminished capacity defense but had decided not to use it, at the hearing he admitted that he did not seriously consider such a defense—which in fact he had never presented during his career—and could not remember discussing it with defendant; in passing over the diminished capacity defense he was apparently influenced by the detailed nature of defendant’s alleged confession, defendant’s seeming rationality, the substance of Dr. Glathe’s report, and his personal belief that a person’s use of drugs or alcohol does not affect his criminal responsibility. In the earlier part of his testimony Parrish defended his performance, asserting in essence that he had not done more because no more was needed. For example, as to his failure to undertake a full and independent investigation, he claimed in substance that the items and information he had obtained were sufficient to enable him to prepare for trial. On his failure to attempt to bar reference to the victim’s extrajudicial identification of defendant, he stated in effect that the prosecutor had conceded that the evidence was inadmissible hearsay and agreed not to introduce it, and that as a result he thought such an attempt unnecessary. As to his virtual passivity at trial, he said in essence that more active representation might have alienated the jury. In the midst of his testimony, however, Parrish suddenly manifested a change of heart and began telling a very different story. He admitted in effect that he had violated not only his duty to act with reasonable competence but also his duty of loyalty: during the period he represented defendant he was gambling compulsively and as a result directed his energy and attention to his compulsion and not to the defense of his client. For example, at one point Parrish stated: “My time was not being fully devoted to my profession.” At another: “I was really married to this thing [viz., gambling] and that’s the truth.” And at yet another: “My gambling, it was important, the most important thing in my life, not my practice, not my defense of Fermín, not anything else.” Specifically, he stated that before and during trial he was gambling heavily, and may have gambled until 2 or 3 a.m. three or four times during the work week and three days straight over a weekend without sleeping, and that as a consequence he was not mentally alert. He added that as a result of his gambling he was about $35,000 in debt. He admitted that he. should and—but for his compulsive gambling—would have undertaken a thorough factual investigation, and that he should and would have attempted to bar or counter reference to, for example, the intercepted telephone call, the victim’s extrajudicial identification of defendant, the anonymous telephone calls identifying defendant as the perpetrator, and defendant’s alleged admissions. He also admitted that he had virtually conceded the penalty phase, and that at the very least he should have presented in mitigation the evidence of defendant’s history of drug abuse. Parrish’s testimony about his compulsive gambling was supported by witnesses David Cole and Randy Nelson. Cole stated that during the period relevant here he socialized with Parrish and witnessed his compulsive gambling. He added that he also saw Parrish “snort” large quantities of methamphetamine or, to use its street name, “crank”—about $1,500 to $2,000 worth a month. By the time of the hearing Cole had a falling out with Parrish and was on parole after serving a prison sentence. Nelson stated that he too had socialized with Parrish and witnessed him gambling compulsively. He added that he also saw him drinking heavily and using large amounts of “crank” and some cocaine. He said that once in 1976 or 1977 he, Parrish, and a third person smoked PCP and that on that occasion Parrish attempted to call the Vatican but without success. He stated that although he stopped socializing with Parrish on a regular basis sometime in 1979 in order to straighten out his own life, he continued to see him until he moved out of state in 1983 and still considered him his friend. Expert testimony was given to the effect that the use of drugs such as “crank” and cocaine impairs “brain function . . . and ability to respond to something new or a crisis, or to participate in more abstract, complicated thinking.” Parrish denied he used drugs at the time he was representing defendant. In order to establish that Parrish failed to act with reasonable competence and as a result prejudiced the defense, defendant called several experts. The testimony of five of them is particularly relevant here. Fred Rosenthal, M.D., a psychiatrist, was of the opinion that when, as here, there is evidence that a defendant has long and seriously abused PCP, a defense of diminished capacity is generally available and may indeed be meritorious, and therefore should be investigated. He testified that PCP is a highly destructive and mind-altering drug: “It produces almost every psychological, psychiatric symptom you can name. . . . [fl] And it goes all the way to producing the most serious psychiatric condition, which is psychosis. It can produce a complete break with reality. . . . [fl] In addition to the psychiatric problems, PCP can produce neurological problems. . . . fl[] [Users] can have intellectual defects. They can have problems with memory. .. . [H] In addition to that, PCP seems to have a property that some drugs don’t have. And that is it can produce chronic effects which extend beyond the time that the drug is taken.” Dr. Rosenthal further testified that in order to determine the effects of PCP on a criminal defendant and thereby assemble data to be used in evaluating the availability of a diminished capacity defense, the defendant should be subjected to extensive psychiatric, neurological, and physical examinations, and his family, friends, and acquaintances should be interviewed to verify the information he furnishes. Independent verification is required not only because the defendant may have an interest in not telling the truth, but also because his memory may have been weakened or destroyed by use of PCP and his mind may have restructured from various materials a version of the relevant events that corresponds little, if at all, with what actually happened. Dr. Rosenthal was of the opinion that Dr. Olathe’s report did not furnish a sufficient basis for rejecting a defense of diminished capacity. He stated: “I don’t think that he does anything really about addressing the issue of the mental condition at the time of the crime, except to make a rather vague statement at the end of the report.” He also said: “I don’t think that really, in my opinion, this report does not really address that question. It seems to be concerned more with whether the man is mentally competent to stand trial at the time that this evaluation was done . . . .” He emphasized that defendant’s mental state as he faced trial in 1979 and his mental state at the time of the crimes charged were separate matters. He concluded: “I would say that it is not a particularly adequate, complete report. Even as far as the question of competence goes.” Dr. Rosenthal added that far from justifying the rejection of a diminished capacity defense, Dr. Olathe’s report contained information suggesting that further work be undertaken: “And so I think, given that there was drug abuse, and dependence on [PCP and methamphetamine], certainly that would raise a flag, a red flag that something needed to be looked at.” Turning to the question of the strength of a diminished capacity defense in defendant’s case, Dr. Rosenthal stated: “I think that given the history and the amount of drugs that Mr. Ledesma took, it would be almost inconceivable to me that he would be in the normal state of mind during that period of time. [If] Nobody taking the amount of drugs that he took could maintain a normal, rational, calm state of mind with that kind of drug abuse.” In response to appellate counsel’s question, “In your opinion, is it possible, probable, that with this amount of drugs, that he was in a state of diminished capacity at the time of the crimes?,” Dr. Rosenthal answered, “I would think that that would be a reasonable consideration.” David E. Smith, M.D., a leading specialist in toxicology and addiction and the founder and medical director of the Haight-Ashbury Free Medical Clinic, testified to the various adverse toxic reactions that PCP can produce: “The type one adverse toxic reaction is characterized by the four C’s: Catatonia, combativeness, convulsion and coma . - . - [If] The individual that has the type one acute toxic reaction . . . will have this mind-body disassociative effect where they can have very, very severe impaired judgment, lowered impulse control, impaired memory, [1f] It can have—a lot of violence can occur during this type of type one reaction, particularly when it’s mixed with other drugs such as alcohol. “Type two reaction is more a chronic abuse pattern. . . . [1J] In this type of chronic PCP abuse reaction, the individual can be delusional with severe impaired judgment. One will see varying impact on memory. There is severe impairment of memory, cognitive functioning, judgment and reason with PCP. ... [10 With PCP, there tends to be a lot of impairment of memory, time distortion. You tend to have gray-outs, flickering memories, where you will remember this event and then you’ll remember another event, but the time period between the two will be distorted. [H] .... So that there is substantial impact on memory, but in this context individuals that have these types of grayouts very often will resort to secondary techniques to try to reconstruct, talking to people in their environment, to try to figure out what happened during that gap. So you have primary memory and secondary memory. [K] There is an increased incidence of violence, particularly bizarre, irrational violence with both type one and type two adverse PCP reactions. “The third type of reaction with PCP is a PCP precipitated schizophrenic reaction, where the individual has pre-existing psychopathology, particularly of a thought disorder type, such as schizophrenia, and will take a single dose of PCP and have a very prolonged schizophrenic reaction. “The type four reaction would be PCP withdrawal, which is characterized by cognitive impairment, depression, things of this nature.”