14 Cal.4th 1089A, Visciotti, In re, No. S031247

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER; After an evidentiary hearing; GEORGE; KENNARD; MOSK; BROWN; MOSK
• Citation: 58 Cal.Rptr.2d 801,926 P.2d 987,14 Cal.4th 325
• Parties: A, 14 Cal.4th 325, 926 P.2d 987, 96 Cal. Daily Op. Serv. 8902, 96 Daily Journal D.A.R. 14,659 In re John Louis VISCIOTTI, on Habeas Corpus.
• Docket Number: No. S031247
• Decision Date: 09 December 1996

Page 801

58 Cal.Rptr.2d 801 14 Cal.4th 1089A, 14 Cal.4th 325, 926 P.2d 987, 96 Cal. Daily Op. Serv. 8902, 96 Daily Journal D.A.R. 14,659 In re John Louis VISCIOTTI, on Habeas Corpus. No. S031247. Supreme Court of California. Dec. 9, 1996.
As Modified on Denial of Rehearing Jan. 28, 1997. ^*
As Modified Jan. 30, 1997.

Page 802

[14 Cal.4th 329] [926 P.2d 988] Timothy J. Foley, Goldfein, Schwartzberg & Stark and Richard Schwartzberg, Santa Ana, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pat Zaharopoulous, William M. Wood and John T. Swan, Deputy Attorneys General, for Respondent.

BAXTER, Justice.

Petitioner John Louis Visciotti was convicted by a jury in the Orange County Superior Court of first degree murder of Timothy Dykstra with a robbery special circumstance (Pen.Code, §§ 189, 190.2, subd. (a)(17)(i)), attempted murder of Michael Wolbert (Pen.Code, §§ 664/187), ¹ and robbery of both men (§ 211). The jury also found that he had personally used a firearm in the commission of the offenses (§ 12022.5) and that he intended to kill the murder victim, Timothy Dykstra. The same jury determined that petitioner should be sentenced to death. This court affirmed the judgment in its entirety. (People v. Visciotti (1992) 2 Cal.4th 1, 5 Cal.Rptr.2d 495, 825 P.2d 388.)

In a subsequently filed petition for writ of habeas corpus, petitioner asserts ineffective assistance of counsel, relying on both the record of the trial and evidence outside the record. This court issued an order to show cause limited to the issue of ineffective assistance of counsel at the penalty phase of the trial. In so doing we implicitly concluded that allegations that petitioner received prejudicially ineffective assistance of counsel at [926 P.2d 989] the guilt phase and was denied the right to trial before an impartial tribunal failed to state a prima facie case. (People v. Miranda (1987) 44 Cal.3d 57, 119, fn. 37, 241 Cal.Rptr. 594, 744 P.2d 1127; People v. Bloyd (1987) 43 Cal.3d 333, 362-363, 233 Cal.Rptr. 368, 729 P.2d 802.)

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After the filing of respondent's return and petitioner's traverse, we determined that disputed facts necessitated an evidentiary hearing. (See People v. Romero (1994) 8 Cal.4th 728, 737-740, 35 Cal.Rptr.2d 270, 883 P.2d 388; In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257.) The Honorable Eileen C. Moore, Judge of the Orange County Superior Court, was appointed referee with directions to take evidence and make findings of fact on the several questions that will be discussed below.

[14 Cal.4th 330] After an independent review of the appellate record and record of the evidentiary hearing, we conclude that, assuming petitioner's trial counsel afforded inadequate representation in some respects, petitioner has not demonstrated that those failings were prejudicial. Because he has not established that absent those failings it is probable that a more favorable result would have been reached by the penalty jury, he is not entitled to relief. We shall, therefore, discharge the order to show cause and deny the petition for writ of habeas corpus.

I

Background

The events leading to the murder conviction and imposition of the death penalty are set forth in People v. Visciotti, supra, 2 Cal.4th 1, 5 Cal.Rptr.2d 495, 825 P.2d 388. Briefly, petitioner and Brian Hefner, who had been employed as salesmen by a company which also employed victims Timothy Dykstra and Michael Wolbert, lured the victims to a remote area of the Anaheim Hills on Santiago Canyon Road in Orange County in a preplanned robbery scheme. There the victims were robbed, shot, and abandoned. Dykstra died at the scene. Wolbert survived, notwithstanding bullet wounds in the torso and face, and testified against petitioner whom he identified as the shooter.

Wolbert described petitioner's methodical execution of Dykstra and attempt to murder Wolbert. Petitioner directed Wolbert, in whose car the four were driving, to the site where the crimes were committed. Before leaving with petitioner and Hefner, Wolbert and Dykstra had hidden the pay they had just received behind the dashboard of Wolbert's car. Petitioner asked Wolbert to stop, claiming a need to relieve himself. Dykstra got out to let petitioner out of the back seat. Hefner followed. At that point Wolbert saw a gun in petitioner's waistband. Wolbert left the car also and saw petitioner pointing the gun at Dykstra. The pair were face to face, less than two feet from each other, next to the passenger side of the car.

As Wolbert walked to the back of the car he ran into Hefner, who said "he's not fucking around." Petitioner then demanded the victims' wallets and threatened Dykstra. Dykstra and Wolbert sat on an embankment at the side of the road, Dykstra near the front of the car, Wolbert a few feet behind the car. Wolbert told Hefner where the money was hidden. Hefner went to the car and returned with the money. Wolbert asked petitioner to take the car and the money, but to let him and Dykstra go, promising not to identify petitioner. While Hefner was in the car, petitioner had moved closer to Wolbert, but when Hefner returned petitioner moved back to the location at [14 Cal.4th 331] which Dykstra was seated, raised the gun, and shot and killed Dykstra. Wolbert arose and took several steps back as petitioner approached him with the gun. Petitioner raised the gun, holding it with two hands extended out from his chest, and shot Wolbert. The first shot was from a distance of about six feet. It hit Wolbert in the rib cage. Wolbert fell. As Wolbert lay on the ground and looked at petitioner, petitioner stepped closer to Wolbert. Standing at Wolbert's feet, about three feet from him, petitioner raised the gun and shot Wolbert again. This shot hit Wolbert in the left shoulder. When petitioner began to walk away, Wolbert got up. Petitioner turned as Wolbert approached, and from a distance of two feet put the gun to Wolbert's head and shot him again. This shot hit Wolbert in the left eye. [926 P.2d 990] Petitioner and Hefner then abandoned the victims, taking Wolbert's car, and fled the crime scene. Each time petitioner fired the gun he had to pull the hammer back to manually cock it.

Petitioner and Hefner, who was separately tried and sentenced to life imprisonment without possibility of parole, were quickly

Page 804

apprehended. Petitioner confessed and participated in a videotaped reenactment of the crime.

The defense presented evidence at trial that petitioner had learning disorders attributed to a minimal brain injury, had ingested drugs prior to the crimes, was not completely aware of his actions during the offenses, and was unable to judge the nature and consequences of his actions. Evidence of petitioner's history of drug and alcohol abuse was also presented in support of an expert's conclusion that petitioner was in a drug-induced psychotic state at the time of the murder and attempted murder.

The defense offered mitigating evidence at the penalty phase in testimony by petitioner's parents, siblings, and girlfriend about petitioner's love and concern for his family, his helpfulness, and his musical and artistic talent. The family members testified that petitioner's personality changed when he was under the influence of drugs, and his father testified about his efforts to persuade petitioner to cease using drugs--efforts that included "punching" petitioner across the room, and bribing him. The penalty phase argument by defense counsel Roger James Agajanian was, as we described it in the decision on appeal "a rambling discourse, not tied to particular evidence" (People v. Visciotti, supra, 2 Cal.4th at p. 82, fn. 45, 5 Cal.Rptr.2d 495, 825 P.2d 388) during which counsel asked the jury to spare petitioner's life because he was the only bad child of a loving family who would suffer if petitioner were to be executed.

II

The Ineffective Assistance of Counsel Claim

The claim on which the order to show cause issued is petitioner's assertion that he received constitutionally ineffective assistance of his counsel, [14 Cal.4th 332] Roger James Agajanian, at the penalty phase of the trial. In a related claim that we deem part of the ineffective assistance of counsel claim, petitioner alleges that counsel labored under a conflict of interest which affected counsel's ability to forcefully and competently represent him. We decline petitioner's request that we reconsider our conclusion that his other claims do not state a prima facie case for relief.

Petitioner's allegations in support of his claim of constitutionally inadequate representation by trial counsel extend to counsel's preparation for and performance at the penalty phase of the trial. He attributes counsel's tactical decisions and deficient performance at this stage to both incompetence and the assertedly prejudicial impact of a conflict of interest.

Allegedly counsel labored under a conflict of interest that existed because of financial arrangements between counsel and petitioner's family, who retained Agajanian, agreeing to pay $25,000 for representation at trial and to pay for experts and investigation. Petitioner claims the family paid only $5,000 to $7,500. Agajanian did not seek public funds for investigation or experts, although petitioner was indigent, apparently believing that such funds were not available when a defendant has retained counsel.

Petitioner also alleges that Agajanian's investigator, Grasso, performed only "minimal tasks," including a visit to the scene of the offenses, group interviews with family members, and one interview with petitioner's girlfriend. Petitioner alleges that no other investigation was undertaken, no records obtained, and no nonfamily witnesses were interviewed. He also alleges that counsel did not act competently in interviewing the witnesses and in inspecting the...