Full opinion text
Opinion GEORGE, C. J. In People v. Lucas (1995) 12 Cal.4th 415 [48 Cal.Rptr.2d 525, 907 P.2d 373], we affirmed the judgment against petitioner Larry Douglas Lucas, who is confined in state prison under sentence of death for the murders of an elderly couple who resided next door to him. The prosecution’s evidence was that petitioner entered the couple’s home with the intent to commit a burglary and that he killed the victims when they discovered him in the course of the burglary. Petitioner’s primary defense was that he killed the victims while in a drug-induced state of unconsciousness. Petitioner filed a timely petition for writ of habeas corpus seeking relief on various grounds, and this court issued an order to show cause on issues limited to claims of asserted ineffective assistance of counsel at the penalty phase of the trial and asserted juror misconduct during deliberations at the guilt phase. We subsequently appointed a referee to conduct an evidentiary hearing and to make findings upon questions relating to these claims. After the evidentiary hearing, the referee determined that there was a factual basis for petitioner’s claims with respect to asserted deficiencies of counsel at the penalty phase of trial and with respect to asserted misconduct by a juror at the guilt phase. With respect to the claim of juror misconduct at the guilt phase, we conclude that the juror statements upon which petitioner based his claim simply reflected the juror’s background and experiences. Further, even if the statements might be characterized as misconduct, they did not result in prejudice to petitioner. With respect to the claim of ineffective assistance of counsel at the penalty phase, however, we conclude that petitioner’s trial counsel failed to conduct an adequate investigation in preparation for the penalty phase of the trial. Evidence readily could have been discovered that would have demonstrated the severe emotional and physical abuse suffered by petitioner as a preschooler and young child. In addition, there was readily discoverable evidence establishing that, beginning at the age of seven years, petitioner was housed in an institution for abused and neglected children that was staffed by abusive, violent adults, and that subsequently he was placed in juvenile correctional facilities that were known for crowding, neglect, and abuse. Trial counsel’s limited investigation was not consistent with prevailing professional standards at the time of trial and, in abandoning their investigation, counsel unreasonably failed to recognize indications that inquiry into petitioner’s social history would disclose substantial mitigating evidence. Counsel lacked a sufficient basis upon which to make a reasoned strategic decision to forgo further investigation or for their decision not to present any evidence at the penalty phase of trial. The available mitigating evidence was weighty. Petitioner’s sister, several cousins who lived with him when he was young, an aunt, and a woman who had been married to petitioner’s cousin in her youth testified consistently concerning the brutal treatment meted out to petitioner by his mother, his stepfather, and his stepfather’s mother. Treatment records that were prepared when petitioner was seven years of age by doctors employed by the county child protective service agency confirm that contemporaneous medical opinion was that petitioner had been the victim of cruel abuse. Defense counsel did not present any evidence in mitigation at the penalty phase. The jury was not afforded any insight into what may have produced petitioner’s capacity for violence or his drug dependency, nor any basis for exercising compassion. The jury found itself faced only with evidence of petitioner’s ruthlessness and violence. Had defense counsel conducted an adequate investigation, readily available evidence might have been introduced that would have made the jury aware of petitioner’s childhood experience of rejection and extraordinary abuse at the hands of his family. In turn, a reasonable probability exists that the jury would have found in this evidence some explanation for petitioner’s criminal propensities and some basis for the exercise of mercy. Had it been made aware of this evidence, there is a reasonable probability the jury would have reached a different verdict—that “at least one juror would have struck a different balance.” (Wiggins v. Smith (2003) 539 U.S. 510, 537 [156 L.Ed.2d 471, 123 S.Ct. 2527, 2543] (Wiggins).) I A A jury convicted petitioner Larry Douglas Lucas of two counts of first degree murder (Pen. Code, § 187) and burglary (§ 459), and found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (§ 190.2, former subd. (a)(17)(vii), now § 190.2, subd. (a)(17)(G)). The jury imposed a sentence of death. Petitioner was represented at trial by James E. Patterson, acting as lead counsel, and by cocounsel Richard A. LaPan. After a jury trial, petitioner was convicted of the October 1986 murders of Mary and Edwin Marriott, an elderly couple who were his neighbors. The following statement of facts is taken in large part from the description of the evidence at trial that appears in our decision in petitioner’s automatic appeal. (People v. Lucas, supra, 12 Cal.4th at pp. 433-436.) The bodies of the victims, Edwin and Mary Marriott, respectively 85 and 75 years of age, were discovered in their home. They had suffered multiple stab wounds and blunt force trauma. The house had been ransacked, and there were bloodstains throughout. Physical evidence suggested an intruder had broken the glass in the rear kitchen door and entered and exited through the kitchen door, which was secured with a deadbolt lock. Blood drops led from the kitchen to the driveway of petitioner’s residence next door. Petitioner’s fingerprints matched those retrieved from a jewelry box and another small box found inside the victims’ home. A search of petitioner’s home produced a pair of pants and boxer shorts with blood on them. The blood on the pants was consistent with petitioner’s blood, while the blood on the boxer shorts found inside the jeans was consistent with Edwin Marriott’s blood but not with petitioner’s. Petitioner testified he had resided next door to the Marriotts for many years. He said that on October 15, 1986, having received cash from his employer, he spent the day with two men, Gary Croffoot and Daniel Sandoval. He injected crystal methamphetamine, cocaine, and heroin in very large quantities. He passed out and could recall only standing in a dark hall, with faces like “waxy fright masks” coming at him. He tried to push them away and struck at them. He ran. He remembered driving, but could not recall where. He woke up at the beach and found that his hand was stuck with blood to the seat of the car. His right hand was cut across the knuckle of the index finger and on the palm, but he had no recollection of receiving these injuries. He continued to ingest drugs, returning home on one occasion to obtain money. He had no recollection of any “problem” with the Marriotts. He had no reason or desire to kill the Marriotts, and no need to enter their home to obtain money for drugs. He identified the pants found in his home as his, but was not certain the boxer shorts found inside them were his. In rebuttal, police officers testified that after his arrest, petitioner admitted that a bloody knife found inside the house was his, and he attempted to hide his wounded hand during the interview with the police. In addition, the officers testified that, when asked how the window of the Marriotts’ back door was broken, petitioner told them that he broke the window and removed the glass. According to the officers, petitioner admitted cutting himself inside the Marriott home, but did not admit killing the victims. At the penalty phase of the trial, the prosecution offered evidence of petitioner’s 1984 violent assault against an 18-year-old woman who often babysat for petitioner’s young children. She testified that, when she approached petitioner about being paid for her work, he accused her of stealing his marijuana. When she denied having done so, petitioner seized the young woman by the hair and pointed a gun at her neck. He hit her in the face and knocked her off the porch where they had been standing. She went home and called for assistance from the police. Petitioner approached her again in front of her home and again demanded his marijuana. She denied having anything that belonged to him. He left but soon returned with his car, stating, according to her testimony, that he “was going to get someone to kill me.” On cross-examination, she commented that she had not wanted to testify against petitioner at the penalty phase, particularly because she was a friend of petitioner’s wife, and that “it is all forgiven. It is in the past.” Petitioner was convicted of assault with a deadly weapon for this offense. Petitioner did not introduce any evidence at the penalty phase. The trial court asked that defense counsel state their reasons for the decision not to present evidence, and ordered an ex parte hearing for that purpose before Judge Robert W. Armstrong (hereafter, Armstrong hearing). At the hearing, as will be explained, petitioner’s lead counsel, Patterson, recorded his reasons for failing to present mitigating evidence. The trial court confirmed that Judge Armstrong had determined that petitioner’s counsel had consulted 12 or 13 witnesses and had put forth a tactical reason for not calling witnesses at the penalty phase. The trial court also obtained petitioner’s personal, on-the-record waiver of his right to testify at the penalty phase, as well as petitioner’s statement that he concurred in counsel’s decision not to present evidence at that phase of the trial. Patterson presented closing argument on petitioner’s behalf, stressing the evidence that indicated his behavior had been influenced by gross intoxication from drugs, and arguing that, although the jury had determined that petitioner had formed the requisite criminal intent sufficient to support the guilt verdicts, the evidence that petitioner was intoxicated and had committed the crimes out of a craving for drugs nonetheless could form a basis for a penalty less than death. Patterson urged that the evidence described a person who had acted in a frenzy, and who, while not legally insane, had not acted in his “right mind.” The jury returned a verdict of death. B Petitioner’s timely petition for writ of habeas corpus alleged, among other claims, that prejudicial juror misconduct occurred during jury deliberations at the guilt phase of the trial, in that one juror had stated he had experience with the type of drugs that petitioner asserted he had taken, but that these drugs did not produce the effect on the juror that was claimed by petitioner. Petitioner also claimed that his appointed counsel provided ineffective assistance, specifically alleging that the investigation pursued by counsel was inadequate. Further, petitioner claimed, a reasonable investigation would have produced ample evidence that he had suffered severe abuse and neglect as a child and that he had been confined in grossly inadequate juvenile facilities for abused and neglected children starting at an early age. He alleged that other available evidence would have demonstrated that he possessed many positive characteristics but that his behavior had deteriorated in the months preceding commission of the crimes as a result of his increasing drug abuse. This court issued an order to show cause limited to the claims of juror misconduct at the guilt phase and ineffective assistance of counsel at the penalty phase of the trial. Respondent Attorney General filed a return to the order to show cause, and petitioner filed a traverse. We appointed Patrick Couwenberg, formerly a judge of the Los Angeles County Superior Court, to serve as referee and conduct an evidentiary hearing. We requested that he take evidence and make findings on the following four questions: “1. What actions did petitioner’s trial attorneys James E. Patterson and Richard A. LaPan take to investigate potential evidence in mitigation for the purpose of the penalty phase of trial? What were the results of the investigation? Was that investigation conducted in a manner to be expected of reasonably competent attorneys acting as diligent advocates? If not, in what respects was it inadequate? “2. If trial counsel’s investigation was inadequate, what additional information would an adequate investigation have disclosed? “3. After conducting an adequate investigation of the circumstances in mitigation of penalty, would reasonably competent attorneys acting as diligent advocates have introduced evidence in mitigation at the penalty phase of trial? What rebuttal evidence reasonably would have been available to the prosecution? “4. During guilt phase deliberations, what did [Jjuror K[.] say with respect to his own drug use and his resulting opinion regarding petitioner’s defense, and under what circumstances and in whose hearing did he make any such statement?” The referee conducted an evidentiary hearing at which 18 witnesses testified. The referee admitted into evidence a large volume of documentary evidence relating to petitioner’s trial, his childhood, and his institutionalization as an abandoned and neglected child. The referee also received into evidence the deposition testimony of 13 additional witnesses. The referee’s conclusions supported petitioner’s allegations in most respects. The principles governing our decision have been stated many times. As we recently declared: “ ‘A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]’ ” (In re Cudjo (1999) 20 Cal.4th 673, 687 [85 Cal.Rptr.2d 436, 977 P.2d 66].) We review the findings of the referee under standards that are well settled. “ ‘Any conclusions of law, or of mixed questions of law and fact, are subject to independent review. Mixed questions include whether counsel’s performance was deficient and whether the deficiency prejudiced the defense. Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence.’ ” (In re Scott (2003) 29 Cal.4th 783, 812 [129 Cal.Rptr.2d 605, 61 P.3d 402]; see also In re Hamilton (1999) 20 Cal.4th 273, 296-297 [84 Cal.Rptr.2d 403, 975 P.2d 600].) On the other hand, “this deference is arguably inappropriate when the referee’s factual findings are based entirely on documentary evidence.” (In re Cudjo, supra, 20 Cal.4th at p. 688.) As explained below, with limited exceptions, we conclude that the factual findings of the referee are supported by substantial evidence. II With respect to the question of juror misconduct, the evidence at the reference hearing disclosed that a man who served on the jury at petitioner’s trial, Juror K., had personal experience with heroin, marijuana, cocaine, LSD, and amphetamines. Juror K. testified at the reference hearing that he had said at some point during jury deliberations, when the subject of petitioner’s drug use came up: “Well, I’m not trying to tell you anything, but I do have some experience in using drugs, and I’ve seen a lot of people use drugs, and I’ve never seen them do what this man has done,” that is, “slaughtering his next door neighbors.” On the other hand, he told one juror, “if I wouldn’t have quit doing what I was doing [referring to his own drug abuse], it possibly could have been me sitting up there,” even though, as the juror stated, he was not by nature a violent man. Juror K. did not notice any response from the other jurors, although in his deposition he stated that they may have asked him what effect various drugs had on him. Other jurors also were discussing drugs, and he presumed they had some knowledge of them. Juror K. was uncertain whether his comments were made during the guilt or the penalty deliberations. Juror K.’s own opinion was that petitioner’s crimes were not caused by his drug use. Another juror, who had served as foreperson, testified that Juror K.’s statements occupied at most five or ten seconds. At the reference hearing, this juror also was unsure whether the statements occurred at the guilt or the penalty phase of trial, but his earlier declaration indicated they took place during guilt phase deliberations. He recalled that Juror K. said “he had taken whatever the drug was, speed-balling, whatever it was that [petitioner] had done, and that, in his opinion, you know, it didn’t really evoke the type of reaction that [petitioner] maybe was implying or that his attorneys were implying had occurred to him.” Another juror recalled definitely that the comment came during guilt phase deliberations, and that Juror K. said “the drugs didn’t affect [petitioner] like it did him [the juror]. And it gave it would give him more strength, made him stronger at the time and kind of like wow man, kind of crazy like.” The referee found: “Juror K[.] told the other jurors that petitioner’s sole defense that he committed the murder, if at all, in a state of extreme intoxication was not credible [citation] because, as Mr. K[.] summarized: ‘I’ve seen a lot of people use drugs, and I’ve never seen them do what this man had done.’ [Citation.] Mr. K[.]’s statement was premised on his own personal experience and was not based on the evidence received at trial. [Citation.] On the basis of his personal experience, Mr. K[.] formed the opinion that petitioner lied either about the amount of drugs he had taken or about the effect of those drugs on him. [Citation.] Mr. K[.]’s statements were heard by and discussed with other jurors. [Citation.] The preponderance of the evidence indicates that Mr. K[.]’s statements were made during the jury’s guilt phase deliberations. [Citation.]” Petitioner claims that Juror K.’s comments violated his state and federal constitutional right to trial by an impartial and unbiased jury. He claims that Juror K., and possibly other members of the jury, based their verdict in part on extraneous evidence of Juror K.’s experience with controlled substances rather than on the evidence that was introduced at trial. According to petitioner, the evidence that during guilt phase deliberations Juror K. referred to his own drug use and contrasted his experience with that claimed by petitioner was particularly prejudicial because petitioner’s primary defense at the guilt phase was that his drug and alcohol ingestion rendered him unconscious or at least made it impossible for him to have formed the mental state necessary for proof of the crimes. A juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial. (People v. Nesler (1997) 16 Cal.4th 561, 578 [66 Cal.Rptr.2d 454, 941 P.2d 87].) We have explained, however, that “[i]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963 [50 Cal.Rptr.2d 281, 911 P.2d 468], italics added.) “Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience.” (People v. Marshall (1990) 50 Cal.3d 907, 950 [269 Cal.Rptr. 269, 790 P.2d 676].) This experience may stem from education or employment, but sometimes it comes from other personal experiences. We previously have explained that illicit drugs and their effects have become a matter of common knowledge or experience, and that “[j]urors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room.” (People v. Fauber (1992) 2 Cal.4th 792, 839 [9 Cal.Rptr.2d 24, 831 P.2d 249]; see also Price v. Kramer (9th Cir. 2000) 200 F.3d 1237 [in a civil rights action claiming police brutality, jurors did not commit misconduct during deliberations when they related their own negative experiences with the police].) Rather, “jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process.” (People v. Pride (1992) 3 Cal.4th 195, 268 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Juror misconduct generally raises a rebuttable presumption of prejudice, but “[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (In re Hamilton, supra, 20 Cal.4th at p. 296, italics omitted.) We have explained that the following standards govern our review of claims that jurors have been exposed to extraneous evidence: “To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653 [38 Cal.Rptr.2d 665, 889 P.2d 985]; see also People v. Danks (2003) 32 Cal.4th 269, 302-303 [8 Cal.Rptr.3d 767, 82 P.3d 1249].) We observe that a juror’s statement that a defendant’s sole defense is not credible does not, of course, by itself constitute misconduct. In the present case, the evidence does not suggest that Juror K. brought highly technical information before the jury. Unlike the juror in question in In re Malone, supra, 12 Cal.4th 935, 963, for example, Juror K. did not hold himself out as an expert in a technical matter on the basis of his education or occupation, but merely related his own experience. Under the circumstances, Juror K.’s apparently brief comments merely reflected his own experience as it related to the evidence received at the trial and the inferences that petitioner sought to have the jurors draw from that evidence. His experience, although not shared by the majority of persons, is fairly common. Indeed, Juror K.’s background and experience were revealed during the process of jury selection, when he acknowledged that he was a former addict and alcoholic. Even if Juror K.’s comments are viewed as constituting misconduct, there is no substantial likelihood that he or any other juror was biased. His comments were not inherently and substantially likely to exercise an improper influence on the jury, nor were they indicative of actual bias on his part. Taking into account the general awareness of persons in our society of the effect of various controlled substances, the mild and brief nature of the remarks, the tentative spirit in which they clearly were offered, and the lack of insistence by Juror K. that his experience should convince other jurors to discredit petitioner’s defense, we conclude it is not substantially likely that any juror actually was biased by the comments of Juror K. Ill Petitioner also claimed entitlement to relief on habeas corpus because, as he alleged, his trial counsel provided constitutionally inadequate representation at the penalty phase of trial. He based his claim primarily on trial counsel’s failure to conduct a thorough investigation prior to the penalty phase. A In summary, readily discoverable evidence presented at the reference hearing established that petitioner was bom in Ohio in 1949, and his mother Margaret, an unwed teenager, gave him up for adoption at birth. He was placed in foster care, but his mother had second thoughts. When he was approximately one and a half years of age, she requested his return to her care but failed to appear to reclaim him. Ultimately, when he was two and a half to three years of age, after he had been in five foster homes, she did reclaim him and brought him to live with her and her new husband, Edward Lucas, in Montgomery County, Ohio. School records indicate that petitioner appeared for school in the first grade, beaten black and blue. When he was seven years of age, petitioner was placed in the care of a facility for abused and neglected children located in Montgomery County, Ohio. Records dating from that time indicate staff doctors who were employed by the county juvenile facilities and treated petitioner believed that he had been subjected to extreme abuse and that he was psychologically very damaged. Petitioner’s care and treatment in public facilities for abused and neglected children appeared in public records that were still available at the time of trial. Several doctors and other persons who had treated petitioner as a child also were still available and provided deposition testimony concerning the abuse he had received at the hands of his family as a young child and the resulting damage to his character and personality. Petitioner’s sister, other relatives, and other persons who easily could be traced and had contact with petitioner’s family while petitioner was a child testified at the evidentiary hearing and also stated in depositions and declarations that, as a young child, petitioner had been singled out for physical and emotional abuse, both by his parents and by his stepfather’s mother, with whom he frequently resided. Between the ages of three and seven years, he was beaten regularly, given inadequate food, dressed in rags during Ohio winters, forced to sleep under the bed, disciplined by being burned with a cigarette and by the administration of chili peppers to his genitals, and excoriated because of the circumstances of his birth. His sister was not subject to abuse; petitioner often was fed solely on her leftovers. Petitioner’s trial counsel did not discover this evidence. B (1) Our first question to the referee asked that he take evidence on, and determine, what actions were taken by defense counsel to investigate in preparation for the penalty phase of the trial, what results were produced by this investigation, and whether the investigation was conducted in a manner to be expected of reasonably competent counsel. As the referee found, in preparation for the penalty phase petitioner’s lead counsel, James Patterson, spoke with or interviewed petitioner, his wife, Darlene Lucas, his mother, Margaret Lucas, and his sister, Gwendolyn Sue Burgess. According to Patterson, petitioner was “not a great communicator,” although Patterson learned that petitioner had a history of drug abuse and had served time in prison for prior convictions. Patterson spoke with him only briefly concerning his childhood. Petitioner did not disclose that he had been abused or had had an unhappy childhood, although petitioner reported he had experienced a good deal of trouble and had run away from home. Patterson intended to present testimony by Darlene Lucas concerning her married life with petitioner and petitioner’s good qualities, although she consistently expressed reluctance to testify and stated that petitioner had struck her and that she had ordered him to leave the home after he stole the family’s welfare checks to buy drugs. Patterson questioned petitioner’s mother, Margaret Lucas, concerning petitioner’s youth. She reported that petitioner had been placed with different families and relatives while he was growing up, because he was a problem child who was difficult to control. Patterson did not attempt to contact the relatives with whom petitioner had resided as a child. Margaret also informed Patterson of petitioner’s prior convictions, including one of which the prosecution was unaware. Patterson testified at the reference hearing that his trial notes indicated that he had interviewed petitioner’s sister, Gwendolyn Burgess, six days prior to the commencement of the penalty phase of the trial and that she had told him during this telephone interview that petitioner had been a runaway as a child, that he “did not have a normal childhood,” and that he had been “punished by a grandmother who kept him under the bed for three days for bedwetting.” Patterson believed that the incident in which petitioner had been disciplined for bedwetting was too remote in time and did not necessarily constitute abuse. Indeed, he considered the evidence trivial compared with the brutality of the charged crimes. Patterson’s file notes of this telephone interview also indicate that Gwendolyn informed Patterson that petitioner had been in and out of juvenile facilities since he was six years of age, that he repeatedly ran away from school as a child, and that he had been treated unfairly. Her view was that “Lucas should be allowed to live because he has been treated unfairly by the system, [i.e.j no[] rehabilitation[] from age six on although in State custody.” Patterson’s notes of their conversation also indicate Gwendolyn told him that petitioner was “no trouble” unless he was using drugs, and that he was a good father. At the reference hearing, Gwendolyn testified she had had one telephone contact with Patterson. She provided Patterson with many examples of petitioner’s good qualities, and also informed him of various aspects of petitioner’s social history, including that petitioner had been in and out of juvenile institutions from the age of six years and had been a runaway. She testified that Patterson informed her he would not use this evidence, because it would make petitioner look like a career criminal, that her information was not helpful, and that she would not be called to testify at the penalty phase. He did not ask her for the names of other persons who were familiar with petitioner’s social history and, in general, did not appear interested in Gwendolyn’s remarks. Gwendolyn testified that she could have directed Patterson to many other family members who could have testified regarding the abuse suffered by petitioner as a child. She also testified that she could have directed Patterson to petitioner’s friends, who could have testified regarding his humanity and favorable qualities. Evidence at the reference hearing also indicated that petitioner’s younger brother, Dennis Lucas, attempted to speak to Patterson concerning petitioner’s increasing drug use prior to the crime, but that Patterson brushed him off. Similar testimony came from Dennis’s wife, Sara Lucas. Patterson explained that he found Dennis’s evidence unhelpful because of a report from a defense expert, Dr. Siegel, based on a test for drug residue taken many months after the crime. Patterson also contacted other witnesses listed at the Armstrong hearing, namely, petitioner’s most recent employer, his pastor, a mail carrier, a court bailiff, a public defender who once represented petitioner, and Daniel Sandoval and Randy Crofifoot, acquaintances. Patterson reviewed petitioner’s 1974 and 1984 probation reports, and retained Dr. William Vicary, a psychiatrist; Dr. David Johnson, a hypnotist; and Dr. Ronald Siegel, a forensic psychopharmacologist who analyzed petitioner’s pubic hair for drug content. Dr. Siegel reported to Patterson that a hair sample provided by petitioner did not confirm that petitioner had been increasing his drug usage in the months preceding the murder. Patterson consulted Dr. Johnson in the hope that his examination of petitioner under hypnosis might support a psychological defense, but Dr. Johnson found that despite petitioner’s claim that he could not recall the crimes other than as a confused “dream state,” under hypnosis petitioner recalled details of the crimes. Patterson explained that Dr. Vicary, a psychiatrist, was retained primarily for the guilt phase defense, not to evaluate events from 25 years earlier. Patterson recalled that Dr. Vicary’s report indicated he believed petitioner had committed the crimes in order to obtain money to buy drugs. Dr. Vicary’s report, dated subsequent to the commencement of the evidentiary portion of the guilt phase, recounted petitioner’s lengthy history of alcohol and drug abuse and noted that petitioner had a prior criminal record. With respect to the charged murders, Dr. Vicary found that petitioner possessed the intent to kill and that he killed in part because the victims knew him and could have identified him. In his report, Dr. Vicary stated that he believed petitioner was aware of the nature and consequences of his acts despite his intoxication. Dr. Vicary’s written report added that there were some mitigating factors in the case. It stated that petitioner had a traumatic family background in that his stepfather and his maternal grandfather had been alcoholics. The report added that petitioner suffered some mental deterioration prior to the offenses due to his drug and alcohol abuse, and that he was suffering from acute intoxication at the time of the crimes. Finally, the report added that petitioner had behaved well in jail and was “capable of constructive activity and amicable relationships when sober.” At the reference hearing, Dr. Vicary testified that no one in the defense team had contacted him to follow up on his remarks concerning mitigating evidence. Also admitted into evidence at the reference hearing was a July 30, 1987 letter that Dr. Vicary wrote to Cocounsel LaPan in which Dr. Vicary stated that he would interview petitioner again for the purpose of gathering data for the penalty phase, and that he would submit an additional report if needed. Dr. Vicary testified at the reference hearing that he also telephoned LaPan to tell him that he believed there were “mitigating elements” in the case, and that if LaPan possessed relevant information, particularly family background evidence, LaPan should inform him. LaPan directed Dr. Vicary to proceed with the additional interview. Dr. Vicary conducted another interview but did not convey the results to counsel, because he assumed they were conducting further investigation into factors in mitigation and would contact him when they needed him. In this last interview with petitioner, Dr. Vicary testified, petitioner stated he had been physically abused as a child by his mother. When Dr. Vicary contacted Patterson’s office to determine when additional information would be forthcoming from counsel, he was informed that the case had concluded. The referee found that the results of counsel’s investigation were as follows: “Darlene Lucas, petitioner’s wife, refused to testify at either the guilt or penalty phases of petitioner’s trial. Petitioner refused to testify at the penalty phase.” From the probation reports and from petitioner’s mother and sister, Patterson possessed evidence indicating that “[petitioner had been in and out of juvenile facilities as a child, that petitioner frequently ran away from home and school,” and that “he was punished for bedwetting by being forced to remain under his bed for up to three days at a time.” Furthermore, the referee found, Patterson was aware that “[petitioner had been placed with different famihes and different relatives while he was growing up and had a difficult relationship with his mother.” Referring to witnesses who had been mentioned at the Armstrong hearing, the referee found that petitioner’s pastor “would not be able to testify to petitioner’s contrition or conversion, that petitioner was concerned about his children, and that petitioner was only an irregular churchgoer whose attendance had declined in the months before the murders.” Petitioner’s letter carrier informed counsel “that petitioner was a nice person who gave her cold drinks on hot days and seemed like a good neighbor.” Petitioner’s employer told trial counsel that petitioner was conscientious, honest, and a good employee except when under the influence of drugs. A bailiff informed trial counsel that “petitioner was a good prisoner who gave no trouble to his jailers.” “From Messrs. Sandoval and Croffoot, trial counsel learned about petitioner’s drug abuse on the day of the murders. [Citation.] “From petitioner’s 1974 probation report, trial counsel learned petitioner was bom in Cincinnati, Ohio. [Citation.] The identity of his biological father was not known. [Citation.] At the age of eight he was placed out of his home as a result of ‘runaway, incorrigibility, and dependency neglect.’ [Citation.] At the age of ten he was declared a ward of the court because of ‘incorrigibility’ and sent to St. Michael’s School in Scranton, Pennsylvania. [Citation.]” In addition, the referee found that counsel was aware that “[petitioner had a traumatic family background. [Citation.] His father and maternal grandfather had histories of alcohol abuse. [Citation.] He himself had a history of alcohol and drug abuse. [Citation.]” According to the referee, “Mr. LaPan [cocounsel] undertook no investigation of potential evidence in mitigation.” Further, “Mr. Lupori, petitioner’s investigator, undertook no investigation of potential evidence in mitigation.” At the reference hearing, Patterson explained his strategy. His hope was to give “a human face” to petitioner, to show his redeeming qualities, and to recount his descent into drug abuse. Patterson intended to call petitioner as a witness to testify concerning his remorse and his intoxication at the time of the crimes. When petitioner’s wife refused to testify, petitioner also refused, leaving Patterson with only the witnesses named at the Armstrong hearing. These witnesses, Patterson explained at the reference hearing as he had at the Armstrong hearing, could present evidence of only minimal value, and he believed it would be worse to offer these witnesses than to present no evidence at all. Patterson did not pursue further inquiry into evidence provided by petitioner’s sister, Gwendolyn, the probation report, or Dr. Vicary. Patterson did not secure Montgomery County juvenile records or otherwise seek to follow up the lead provided by evidence of petitioner’s dependency record; he felt it sufficed that he had questioned petitioner on the matter. In any event, his plan was to have petitioner testify at the penalty phase regarding these matters. Patterson explained that the heart of his strategy for the penalty phase was to reveal petitioner’s problems with drugs and show petitioner’s remorse and humanity through the testimony of petitioner and his wife; in comparison, Patterson considered the question whether petitioner was bom out of wedlock to be “trivial.” Although Patterson did not pursue documentary evidence or other leads regarding petitioner’s childhood, he intended for petitioner to testify at the penalty phase regarding his childhood. Still, Patterson believed it was a “long stretch” to believe that such things as being punished by a grandmother who kept him under the bed for three days for bedwetting would lead petitioner to murder his neighbors, and Patterson considered this circumstance trivial compared with the facts of the crimes. He did not pursue Dr. Vicary’s report, because he believed that LaPan was handling the contact with Dr. Vicary. At the same time, Patterson did not agree that all the evidence listed by Dr. Vicary actually was mitigating; rather, he believed the thrust of Dr. Vicary’s report was devastating both at the guilt and the penalty phases, because it related that petitioner knew what he was doing and committed the crimes in order to obtain money for dmgs. In addition, Patterson did not consider particularly mitigating the evidence that petitioner’s stepfather and maternal grandfather were alcoholics. He believed that evidence that petitioner’s mother placed petitioner with other persons during his childhood was too remote in time to pursue, and he also observed that petitioner’s mother told him she had placed him with other families because she could not control him. The referee outlined inadequacies in the investigation. He determined that “[t]rial counsel relied solely on petitioner’s anticipated testimony at the penalty phase. Trial counsel made no effort to obtain records pertinent to petitioner’s birth [citation], childhood institutionalization in Ohio and Pennsylvania [citation] or adolescent institutionalization in California [citation], Counsel made no effort to confirm or otherwise follow up on information in their possession indicating that petitioner was physically and emotionally abused as a child. [Citation.]” The referee also found that “[t]rial counsel did not adequately follow up on his interview with Gwendolyn Sue Burgess, petitioner’s sister,” or with petitioner’s brother or sister-in-law. Referring to expert testimony in addition to the evidence noted above, the referee believed that “[t]rial counsel’s investigation was not conducted in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” Petitioner’s expert, Michael Burt, a supervising attorney for the death penalty unit in the San Francisco Public Defender’s Office, outlined standards in effect for defense of capital defendants at the time of trial, including a general duty to perform a thorough social history of the accused from various sources well in advance of the penalty phase of trial. The prosecution expert, Judge Robert Parkin, a retired judge and former criminalist and prosecutor, agreed with this characterization of the general standard at the time of trial, although he expressed some ambivalence concerning the ultimate question whether Patterson had performed adequately. With respect to the findings concerning Patterson’s investigation and the information it produced, respondent objects that the referee omitted evidence and reached faulty conclusions. Respondent objects that the referee did not list Dennis and Sara Lucas (petitioner’s brother and sister-in-law) as persons counsel had spoken to in connection with counsel’s investigation of the case in mitigation. Dennis and Sara Lucas denied that Patterson had spoken to them except to brush them off when they offered information. In addition, Patterson did not list them at the Armstrong hearing as persons he had contacted. The referee acknowledged that Patterson had had some contact with Dennis and Sara Lucas, but concluded he had not followed up on that contact. We accept the referee’s conclusion. Respondent also objects that the referee did not note that on the eve of the penalty phase of trial, Patterson subpoenaed or attempted to serve a subpoena on Darlene Lucas, Margaret Lucas, Sara Lucas, Dennis Lucas, Veri Lindley, Dan Perez, and Mollie Santistevan. Petitioner essentially concedes the point, although he stresses the tardiness of this action by Patterson. Respondent takes exception to the referee’s conclusion that neither Co-counsel LaPan nor investigator Lupori conducted any investigation of potential mitigating evidence for the penalty phase. The evidence before the referee adequately supports the conclusion that Patterson carried primary responsibility for both phases of trial and that Lupori and LaPan were not instructed by him to assume responsibility and did not actually assume substantial responsibility for penalty phase investigation. LaPan testified he was not responsible for investigating, developing, or presenting mitigating evidence at the trial. Lupori testified he was not asked by counsel to collect mitigating evidence, although if such evidence “came in collaterally” he would give the information to counsel. He testified that 99 percent of his work related to the guilt phase, and the remaining 1 percent involved serving subpoenas on the potential penalty phase witnesses named at the hearing held before Judge Armstrong when Patterson announced he would not call any witnesses for the defense at the penalty phase. In sum, the record reflects that Lupori’s investigation of potential evidence in mitigation was negligible. Respondent takes exception to the referee’s findings regarding the results of Patterson’s penalty phase investigation. Respondent complains the referee failed to include in his findings the statement by petitioner’s mother that she told Patterson that she placed petitioner with different families when he was a child, because petitioner was a “problem,” “hard to control,” and “in trouble all the time.” The referee did not attempt to summarize all of the witness’s testimony, but we agree that Patterson did state that petitioner’s mother made the quoted statements to him. As respondent also points out, petitioner’s mother informed Patterson that petitioner had an out-of-state felony conviction of which Patterson and the prosecutor had been unaware. Respondent also takes exception to the referee’s “incomplete” finding that one of the products of Patterson’s investigation was the information establishing that petitioner had a traumatic family background. The finding is based on Dr. Vicary’s report, which states: “There are some mitigating factors in this case. They can be discussed as follows . . . Traumatic Family Background .... The defendant’s father was an alcoholic, a grandfather was also an alcoholic who had arrests for public intoxication.” Respondent objects that the referee’s finding is incomplete because it omits Patterson’s testimony that he knew of this information but did not believe it constituted evidence of a traumatic background. The record does reflect that Patterson held this opinion. Respondent also asserts that the referee’s finding concerning the results of Patterson’s investigation was incomplete because it did not note other statements in Dr. Vicary’s report to Patterson. That report characterized petitioner’s psychiatric history as “modest” and stated that petitioner had only one psychiatric evaluation as a child due to “some behavior problems,” that he had juvenile arrests for running away, possession of a knife, and assaults, and also that it was Dr. Vicary’s opinion that petitioner knowingly murdered the victims in order to obtain money for drugs. The record supports this contention with respect to the contents of Dr. Vicary’s report. As respondent contends, the referee’s conclusion is incomplete in that the record indicates that Patterson consulted Dr. Siegel, a forensic psychopharmacologist, whose test on petitioner’s hair indicated to that expert that petitioner had not increased his drug use in the months preceding the murders, but we also observe that this test was performed many months after the commission of the crimes. Petitioner’s witness, Dr. Clark, accepted as an expert in the areas of psychiatry, substance abuse and toxicology, addiction, and medicine and trauma, testified that both at the time of trial and the time of the reference hearing, it was understood among experts in the field that the hair test discloses drug usage only during the 90 days preceding the test, whereas the test in petitioner’s case was performed at least seven months after the crimes. As respondent contends, Patterson also consulted Dr. Johnson, a hypnotist, who reported that petitioner recalled the details of the murders. We add only that the reports obtained from both Dr. Johnson and Dr. Siegel related primarily to guilt phase issues. Respondent takes exception to several of the referee’s findings concerning the manner in which Patterson’s investigation was inadequate. Respondent questions the referee’s finding that trial counsel relied solely upon petitioner’s anticipated testimony as the source of potential mitigating evidence for the penalty phase. The record indicates Patterson testified that he expected that petitioner’s wife also would testify, that her resistance to testifying would be overcome, and that he would be calling a number of other witnesses to testify concerning petitioner’s positive qualities and problems with drugs. As noted at the Armstrong hearing and the reference hearing, Patterson considered calling Margaret Lucas, Bert Linley, Dan Perez, Larry Beyersdorf, Dave Rannow, Molly Santisteven, Daniel Sandoval, Gary Croffoot, and Drs. Vicary, Johnson and Siegel. As petitioner suggests, however, there also was evidence that petitioner’s wife made it clear from the outset that she would not testify at the guilt or penalty phases and that Patterson told her that her testimony would not be required. We accept the referee’s determination that she refused to testify at either phase of the trial. Next, respondent takes exception to the referee’s finding that Patterson “made no effort to obtain records pertinent to petitioner’s birth” or experience in juvenile facilities. Respondent objects that the referee failed to recognize that Patterson had asserted tactical reasons for this omission, in that Patterson believed that the best way to present mitigating evidence was through petitioner and his wife and that petitioner’s mother was a dangerous witness in that she might blurt out the circumstance that petitioner had a prior escape conviction. We agree that Patterson offered these reasons at the reference hearing to explain his failure to investigate, but this circumstance does not answer the question whether Patterson’s ostensible reasons rendered his failure to investigate further a reasonable tactic or strategy. Respondent takes exception to the referee’s finding that Patterson did not investigate further after receiving information suggesting that petitioner had been physically and emotionally abused as a child. Respondent points to Patterson’s testimony that he did ask Margaret Lucas, Darlene Lucas, and petitioner to tell Patterson about petitioner’s childhood. The referee may not have credited this assertion but, more significantly, Patterson did not claim that he inquired of these persons specifically about instances of abuse. Respondent evidently concedes that Patterson did not “follow up on Gwendolyn’s information that petitioner had been in and out of juvenile facilities as a child, had run away repeatedly from home and school, was a bed wetter to adulthood, and was once punished for bed wetting by being forced to remain under his bed for three days.” Respondent again points to Patterson’s ostensible reasons for not pursuing the leads provided by Gwendolyn, namely, that petitioner’s experience in juvenile facilities would cause the jury to believe that petitioner was a “career criminal,” that the bedwetting punishment was too remote in time and did not necessarily constitute abuse, and that bedwetting was trivial compared with the charged crimes. Patterson did offer these reasons for failing to investigate further, but it is questionable whether his decision not to do so was reasonable. With respect to the referee’s finding (citing testimony by defense experts Burt, noted above, and one Dr. Haney, a lawyer and social psychologist) that the investigation was not conducted in a manner to be expected of reasonably competent attorneys, respondent requests that this court recognize that these two experts are “well-traveled professional opponents of capital punishment” whose opinions thus should count for little, if anything. Respondent also refers to our observation that little weight should be given to an attorney’s opinion that asserted ineffective assistance of counsel was prejudicial, because it is the court’s function to determine the issue of prejudice. (In re Ross (1995) 10 Cal.4th 184, 215 [40 Cal.Rptr.2d 544, 892 P.2d 1287].) The basic message of the witnesses—that the prevailing professional norm in capital defense at the time of trial was that defense counsel should secure an independent, thorough social history of the accused well in advance of trial—was confirmed by respondent’s own expert witness, retired Judge Parkin, and is consistent with standards referred to by the United States Supreme Court in Wiggins, supra, 539 U.S. at pages 522-523 and other cases. Respondent asserts that the referee failed to note that, although respondent’s expert, Judge Parkin, testifying on the ultimate question of counsel’s constitutional adequacy, initially believed that counsel had not provided effective assistance, he later expressed some ambivalence. It is apparent to this court that Judge Parkin was ambivalent. Originally, he gave the opinion that Patterson had not made an informed decision with respect to his penalty phase strategy because he failed to investigate adequately. Subsequently, Judge Parkin acknowledged that Patterson had done more than Judge Parkin first believed, having spoken with petitioner about his background, consulted the 1974 probation report, and conferred with petitioner’s family and friends concerning potential penalty phase testimony. This information modified Judge Parkin’s previous opinion to the extent that “it provided that he had—at least had more information than I thought he did in reaching the decision not to go forward with the evidence. [][] I think it would have been better had he gotten the information from Ohio, and he would have had probably a much fuller picture. I’m not sure how much he weighed what he saw in that probation report, but at least he had that information to consider when he did reach the decision that he did reach.” Judge Parkin still believed, however, that Patterson, in light of the information available to him, was on notice that further investigation of petitioner’s social history was necessary, that minimum standards at the time of trial required preparation well in advance of the penalty phase and investigation into every aspect of the client’s life, and that Patterson’s investigation was not conducted in a manner to be expected of a reasonably competent attorney. (2) Our second question asked the referee to determine what information would have been uncovered by a reasonably adequate investigation. As the evidence at the reference hearing demonstrated, various readily available official public records confirmed that petitioner was bom on November 20, 1949 in Glendale, Ohio; that he was bom out of wedlock; that at birth he was surrendered by his mother, Margaret, for adoption; that in August 1950 she requested his return to her care but failed to appear to claim him or to respond to the county welfare board’s communications; that he had been in five foster homes in his first two and a half years; that after county authorities sought permanent custody of petitioner, Margaret’s new husband, Edward Lucas, objected, and in July 1952 petitioner was released to Margaret and Edward’s home in Dayton, Ohio; and that Dayton school officials complained many times to local juvenile welfare officials that, when petitioner was in first grade in 1955, he appeared at school beaten black and blue, with welts on his body. School authorities expelled him from first grade in November 1955 because he was disruptive and ran away. These records reflect that, through the auspices of the Montgomery County, Ohio juvenile dependency court, petitioner received counseling services in 1956 from the Dayton Child Guidance Center, whose counselors believed he should be removed from his abusive home. Public records indicate that a citizen complaint regarding the abuse suffered by petitioner was sent to juvenile welfare authorities in April 1957. These records also disclose that in June 1957, when petitioner was seven years of age, his mother brought him to the Montgomery County Children’s Services Agency, requesting that it take custody of petitioner and reporting that she could not control him. A report prepared for the purpose of the ensuing dependency proceeding indicates that he had been beaten severely by his parents. Dayton Guidance Center psychiatrists and child welfare workers recommended that petitioner be removed from his home for his own protection. Temporary custody of petitioner as a dependent child was granted to the Montgomery County Child Welfare Board on September 13, 1957, and he was placed in Shawen Acres, a home for abused and neglected children, where his family rarely visited him. His behavior and the recommendation of his psychiatrist caused him to be transferred (still under the court’s dependency jurisdiction) to St. Michael’s School for Boys in Pennsylvania in June 1959, but he was asked to leave that institution in 1961 because of poor behavior. He was returned to his family but frequently ran away. He was detained in the Juvenile Detention Center in Dayton as a runaway and “incorrigible.” He returned to his family but was detained again for theft. In 1962, at the age of 12 years, he was adjudged a delinquent child and was committed to the Ohio Boys Industrial School, a high security juvenile facility housing the most serious juvenile offenders. At the age of 14 years he was sent to California to join his family and shortly thereafter was made a ward of the court and placed on probation in California for curfew violations. Probation was revoked because he ran away from home, and he was placed in a juvenile correctional camp. After running away from the camp, he was placed in a California Youth Authority (CYA) facility. Upon his release, he suffered revocation of parole for auto theft and running away from home. Petitioner was incarcerated at CYA facilities from February to July, 1965, from November 1965 to July 1966, and from December 1966 to December 1967 and from December 1967 to March 1969. The nature of the abuse referred to in these readily accessible records was explained by witnesses who lived with or near petitioner when he was between the ages of four and eight years, and who easily could have been located by defense counsel. For the most part, these witnesses were members of petitioner’s family or were related by marriage. In summary, they testified that Edward and Margaret drank to excess and became physically and verbally abusive to one another and to petitioner when he was a child. Petitioner was treated as an outcast within the family because he had been bom out of wedlock. He frequently was beaten by his parents. His mother sent him and his younger sister Gwendolyn to live with Edward’s mother, Bernice Lucas, for long periods. Bernice treated Gwendolyn well but beat petitioner regularly, taunted him because of the circumstances of his birth, subjected him to cmel discipline, and failed to feed and clothe him adequately. For example, in testimony confirmed in great circumstantial detail by other contemporaneous witnesses, Helen Garcia testified that as a young adult she spent a great deal of time with the Lucas family when petitioner was between the ages of four and eight years, because she was then married to petitioner’s cousin and resided near petitioner’s grandmother Bernice. Garcia testified that Margaret and Edward’s marriage was tempestuous and violent and that they engaged in physical violen