In re Avena (12 Cal. 4th 694, 1996)

Opinion

LUCAS, C. J.

Carlos Jaime Avena was convicted in 1980 in Los Angeles County Superior Court of the first degree murders of Manuel Solis and Miguel Vasquez. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) Multiple-murder and robbery-murder special-circumstance allegations were also sustained. (§ 190.2, subd. (a)(3) & (17).) In addition, petitioner was convicted of robbery, attempted robbery, two counts of assault with a deadly weapon, and two counts of assault with intent to commit murder. (§§ 211, 664/211, 245, subd. (a), & former § 217.) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.)

Petitioner appealed and also filed a petition for a writ of habeas corpus. This court determined he stated a prima facie case for relief in his habeas corpus petition and issued an order to show cause. Finding issues of material fact in dispute as to only one of his allegations, we appointed Judge Kathleen Parker, judge of the Superior Court of Los Angeles County, to hold a hearing and file her report with us. We later vacated Judge Parker’s appointment due to her failing health and thereafter appointed John Ouderkirk, judge of the Superior Court of Los Angeles County, to act as our referee. Judge Ouderkirk has now filed his report. Both petitioner and respondent except to various portions of the referee’s findings. After due consideration, we conclude that the referee’s findings are supported by the evidence and thus reject those claims. After considering those findings, we conclude the order to show cause should be discharged and the writ denied.

Facts

A. The Crimes

On September 12, 1980, petitioner and brothers Victor and Arturo Padua were driving in a white 1971 Mazda. Petitioner sat in the backseat and had a .22-caliber rifle with him. All three had consumed some beer that evening. While waiting for a stoplight, a brown Ford Galaxy pulled alongside them. When Arturo Padua yelled an insult at the brown car, one of its occupants threw a beer bottle at them, striking the Mazda on the window where petitioner was seated. Petitioner retaliated by shooting at the Ford, which then sped off.

Petitioner and the Paduas gave chase. The Ford stopped suddenly, causing petitioner’s Mazda to collide with the rear of the Ford. The Ford again drove away; the Mazda, however, was rendered inoperable. Petitioner and the Paduas pushed it to the side of the road and decided to secure alternative transportation. It was then they saw a pink Chevrolet Camaro, driven by victims Manuel Solis and Miguel Vasquez. Petitioner and the Padua brothers approached the Camaro and stood on either side of the car. Petitioner was carrying his rifle and Arturo was carrying a piece of wood. Although the exact sequence of events is unclear, petitioner apparently demanded the driver give him his money and the keys to the Camaro. Petitioner then shot into the car, wounding the occupants. Petitioner also apparently grabbed one of the victims, pulled him out of the car, and shot him four times in the chest. The other victim exited the passenger side of the Camaro whereupon Arturo struck him in the head with the piece of wood. When one of the victims made a vain attempt to flee, petitioner told Arturo to move out of his line of sight, and then he shot the victim twice. Some people on the street, including the victim’s brother, Daniel Solis, witnessing this crime, engaged in some sort of confrontation that included throwing a bottle. The witnesses fled when petitioner began shooting at them. Petitioner and the Paduas then left in the pink Camaro.

Once in the car, petitioner said he was out of ammunition and needed to go home and reload. After reloading, the trio drove the Camaro to a church parking lot, where they set the car on fire, apparently to eliminate their fingerprints. They then walked to 22nd Street and Normandie, near the Santa Monica Freeway. The Paduas went to buy more beer and then returned to petitioner. By this time, it was approximately 11 p.m., and the trio was once again on foot.

Victor Padua, apparently having had enough excitement for one night, hid in some bushes near a freeway exit. When victim Ana Hernandez stopped her yellow Chevette at a stoplight, petitioner and Arturo walked up to either side of the car and attempted to open her door. Petitioner shot into the car door; Arturo may have slammed a beer bottle on the windshield. Hernandez accelerated through the red light to escape; petitioner shot at the escaping Chevette, striking the rear of the vehicle.

Officers McCann and Derenia were coincidentally driving by the off-ramp in an unmarked police car at this time and observed the yellow Chevette drive through the red light. They then saw petitioner standing in the off-ramp with the rifle. Petitioner opened fire on the officers, shooting out the car windows. The officers returned fire, both emptying their revolvers before driving under the freeway, making a U-turn, and returning. Petitioner and Arturo fled on foot, managing to escape capture. A police search of the area revealed several .22-caliber casings on the ground and, eventually, Victor Padua, still hiding in the bushes.

Police initially did not connect Victor to the shootings, as he gave a false story. Finding evidence that Victor had been seen in the company of two other men that night, police questioned him again and this time he told police about petitioner and Arturo. They were arrested and identified by Officers McCann and Derenia. The witnesses of the Solis and Vasquez murders confirmed the shootings, but were too far away to make positive identifications. Hernandez likewise said it was too dark to make a positive identification of her assailants.

Victor Padua testified against petitioner at his trial. In addition, petitioner gave a statement to police that was surreptitiously recorded. This statement largely tracked Victor’s account of the crimes, except that petitioner claimed the driver of the pink Camaro menaced him with a knife and that was why he shot him. The recording was played for the jury.

Petitioner also admitted he used a .22-caliber rifle that was loaded by means of a tubular magazine with a capacity of 17 to 20 rounds. He said he bought the rifle on the street for $30. A police expert testified that the .22-caliber shell casings found at the murder scene and on the off-ramp were, with one exception, fired from the same gun. The expert testified that only three types of rifles could have produced those shell casings. One type, the Marlin Glenfield, was described as a “very common, very popular . . . very low priced [rifle]” that uses a tubular magazine with an 18-round capacity. (One shell casing exhibited characteristics that made it impossible to determine with certainty that it came from the same weapon.)

Petitioner’s trial counsel, Marvin Part, waived his opening statement and rested without presenting any defense at the guilt phase of the trial. Part called only two minor witnesses at the penalty phase of the trial. Following argument, the jury set the penalty at death.

B. The Petition for Writ of Habeas Corpus, the Evidentiary Hearing, and the Referee’s Report

In his petition for a writ of habeas corpus, petitioner claimed that his trial counsel Part was constitutionally ineffective for failing to: (1) “Adequately interview petitioner and his immediate family for probative information”; (2) “Arrange for proper investigation of the facts”; (3) “Interview witnesses”; (4) “Present any pretrial motions on behalf of [petitioner], including a motion to suppress . . . [petitioner’s] statement to police”; (5) “Investigate, raise and support the defense of diminished capacity”; (6) “Present his client before the jury in a respectable fashion,” i.e., to ensure that petitioner did not appear before the jury in jail clothes; (7) “Present mitigating evidence at the penalty trial”; and (8) “Argue effectively on behalf of [petitioner] at [the] guilt or penalty phase of the trial.”

Finding these allegations, considered together with the exhibits, established a prima facie showing of relief, we issued an order to show cause. (People v. Duvall (1995) 9 Cal.4th 464, 475 [37 Cal.Rptr.2d 259, 886 P.2d 1252] (hereafter Duvall); In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4 [87 Cal.Rptr. 681, 471 P.2d 1].) After receiving the People’s return and petitioner’s traverse, we concluded that most of the issues raised could be decided on the pleadings because there were no disputed factual matters outside the trial record. (Duvall, supra, at pp. 478-479.) As to petitioner’s claim that Part should have investigated and presented the defense of diminished capacity, however, there were disputed issues of material fact. Accordingly, we referred the matter to a referee for an evidentiary hearing. (Id. at p. 478.)

With regard to that issue, we submitted these questions to our referee: “(a) What did petitioner tell his trial counsel about petitioner’s use of PCP or alcohol (i) generally, and (ii) on the night of the killings? [*][] (b) Was there other evidence of petitioner’s use of PCP that counsel failed to discover because his investigation was inadequate, and if so, what was that evidence? HD (c) Was there evidence that petitioner’s PCP use was a factor in his commission of the offenses? [*fl] (d) Might the circumstances of petitioner’s PCP use, viewed in light of his background and character, have been considered a mitigating factor by the penalty phase jury (see Pen. Code, § 190.3, subds. (d), (h), & (k))?”

After a protracted evidentiary hearing, our referee made the following rulings:

Regarding questions (a)(i) and (a)(ii): “Petitioner told his trial counsel nothing about his use of alcohol or PCP generally. Petitioner did not tell his trial counsel that he used PCP on the night of the killings. Yes, petitioner did tell his trial counsel that he consumed beer on the night of the killings.”

In support of these findings, the referee found that petitioner testified that Part asked him if he used drugs on the night of the killings, and that petitioner said he told Part he had ingested phencyclidine (PCP) and marijuana, and drank beer and cognac on the night of the killings. Petitioner claims he told Part about his drug use during their first meeting at the county jail. “Petitioner claimed to have a virtually verbatim recollection of the portions of his conversation with trial counsel which related to drugs. However, as to other parts of the conversation, he had very limited recollection.” He further claims he did not tell police about his drugs use because they did not ask him about it, although he claimed that his use during the interrogation of the terms “crazy” and “wrong” meant “being high on drugs.”

The referee concluded: “It is reasonable to conclude that the defendant would have volunteered that he was high on drugs if it were true. It is speculation to say that trial counsel’s missing file would corroborate petitioner’s testimony.”

Trial counsel Part testified that he had no specific recollection of his conversations with petitioner, but that he was sure petitioner never mentioned using drugs or PCP. The referee concluded that Part’s testimony was the more credible “because of the circumstantial evidence corroborating his version. The Referee does not find petitioner to be credible in this area.”

Regarding question (b): The referee concluded there was evidence of petitioner’s PCP use that Part failed to discover because his investigation was inadequate. Specifically, Part should have discovered: (1) “A juvenile court probation report dated April 17, 1978 containing the petitioner’s statement that he had been arrested for auto theft and possession of angel dust”; (2) “An LAPD Form No. 510 filled out on September 15, 1980 when petitioner was arrested indicated in bold handwritten letters that the petitioner was a user of PCP and marijuana.”; (3) “A California Youth Authority ‘Referral Document’ dated July 5, 1978,” indicating petitioner had previously been found to be an abuser of PCP; (4) “ ‘PCP was very epidemic in (the area of the crime)’ and ‘The relationship to PCP was widely a part of the gang membership and activity (in 1980)’ ”; (5) “At the reference hearing various associates and family members of the petitioner testified to their observations of the petitioner’s chronic PCP usage. This testimony may or may not have been truthful. However, one can assume that if the testimonial evidence was available in 1990, it would have been available in 1981”; (6) “Blood, urine acidification and fat sample tests were available in 1981 to detect usage of PCP.”

The referee found that at the time of trial, Part was in possession of the first two documents (the “510” form, and the 1978 juvenile probation report), because they had been provided in discovery. The third item (the Youth Authority report) could have been discovered with “minimal investigation" and the balance was discoverable with “reasonable investigation.”

The referee further concluded that, “Trial counsel’s memory was very weak when asked for any details about what investigation was actually conducted. [