Fields, In re

• Decision Date: 03 December 1990
• Docket Number: No. S009491,S009491
• Citation: 51 Cal.3d 1063,275 Cal.Rptr. 384,800 P.2d 862
• Court: California Supreme Court
• Parties: , 800 P.2d 862 In re Stevie Lamar FIELDS on Habeas Corpus.

Page 384

275 Cal.Rptr. 384

51 Cal.3d 1063, 800 P.2d 862

In re Stevie Lamar FIELDS on Habeas Corpus.

No. S009491.

Supreme Court of California In Bank.

Dec. 3, 1990.

Rehearing Denied Jan. 24, 1991.

Michael G. Millman and Eric S. Multhaup, San Francisco, under appointments by the Supreme Court, for petitioner.

John K. Van de Kamp, Atty. Gen., Gary R. Hahn, Thomas L. Willhite, Jr., Susanne C. Wylie and Carol Frederick-Jorstad, Deputy Attys. Gen., for respondent.

BROUSSARD, Justice.

Defendant was convicted of the murder of Rosemary C., with the special circumstance of premeditated murder during the commission of robbery, and sentenced to death under the 1977 death penalty law. He was also convicted of numerous crimes against other persons. On December 9, 1983, we affirmed the convictions and sentence. (People v. Fields (1983) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680.)

After the United States Supreme Court denied his petition for certiorari, defendant filed the present petition for habeas corpus with this court. We issued an order to show cause, and appointed the Honorable George Dell, retired judge of the Los Angeles Superior Court, as referee to take evidence and make findings of fact on the following question: "Was defendant's conviction or death sentence unconstitutionally obtained in that defendant was deprived of his right to effective assistance of counsel by counsel's failure to conduct an investigation adequate to permit the selection, preparation and presentation of evidence at the guilt and penalty trials?" ¹

Judge Dell held an evidentiary hearing and submitted his report to us on December 5, 1988. That report states two findings: "1. Petitioner has not established by a preponderance of the evidence that the procedures followed by trial counsel to investigate potential psychiatric defenses fell below minimum standards to be expected of reasonably diligent counsel in preparing an effective defense to a capital case." "2. Petitioner has established by a preponderance of the evidence that the procedures followed by trial counsel to investigate penalty phase evidence in mitigation fell below minimum standards." These determinations resolved mixed questions of fact and law, and are subject to independent review by this court. (In re Cordero (1988) 46 Cal.3d 161, 181, 249 Cal.Rptr. 342, 756 P.2d 1370.)

A finding that defendant was denied his right to effective assistance of counsel requires proof not only that counsel's performance was deficient, but also that defendant was prejudiced. The referee confined his findings to whether counsel's investigation fell below minimum standards, and made no finding whether defendant was prejudiced. He did, however, receive evidence on this point, and since that evidence is substantially undisputed, we are in a position to make an independent determination whether defendant was prejudiced.

We adopt the findings of the referee that counsel's investigation of mental defenses at the guilt and sanity phases did not fall below minimum standards. We do not decide whether his investigation of mitigating penalty evidence falls below the minimum expected of reasonably competent counsel, because defendant has not proved a reasonable probability (Strickland v. Washington (1984) 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (hereafter Strickland )) that a more complete penalty investigation and defense would have resulted in a different verdict. We therefore hold that defendant was not deprived of his constitutional right to the effective assistance of counsel at the penalty phase of his trial.

1. Principles governing a claim of ineffective assistance of counsel raised by writ of habeas corpus.

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (E.g., Strickland, supra, 466 U.S. 668, 684-685, 104 S.Ct. 2052, 2062-2063; People v. Ledesma (1987) 43 Cal.3d 171, 215-218, 233 Cal.Rptr. 404, 729 P.2d 839; In re Cordero, supra, 46 Cal.3d 161, 179-180, 249 Cal.Rptr. 342, 756 P.2d 1370; People v. Pope (1979) 23 Cal.3d 412, 422, 152 Cal.Rptr. 732, 590 P.2d 859.) This right " 'entitles the defendant not to some bare assistance but rather to effective assistance. Specifically, it entitles him to "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." ' " (In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370; see Strickland, supra, 466 U.S. at p. 686, 104 S.Ct. at p. 2063; Ledesma, supra, 43 Cal.3d at p. 215, 233 Cal.Rptr. 404, 729 P.2d 839; Pope, supra, 23 Cal.3d at pp. 423-424, 152 Cal.Rptr. 732, 590 P.2d 859; United States v. De Coster (D.C.Cir.1973) 487 F.2d 1197, 1202.) The defendant can reasonably expect that before counsel undertakes to act, or not to act, he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (See, e.g., In re Hall (1981) 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690; People v. Frierson (1979) 25 Cal.3d 142, 166, 158 Cal.Rptr. 281, 599 P.2d 587; see also Strickland, supra, 466 U.S. at pp. 690-691, 104 S.Ct. at pp. 2066.)

" 'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.' " (Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839, citing Strickland, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064; accord, People v. Fosselman (1983) 33 Cal.3d 572, 583-584, 189 Cal.Rptr. 855, 659 P.2d 1144.) "First, the defendant must show that counsel's performance was deficient." (Strickland, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064; accord, Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.) Specifically, he must establish that "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." ( Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. at p. 2065; accord, Pope, supra, 23 Cal.3d at pp. 423-425, 152 Cal.Rptr. 732, 590 P.2d 859.) In evaluating defendant's showing we accord great deference to the tactical decisions of trial counsel in order to avoid "second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel 'to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial ....' " ( In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370, quoting Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839.) "However, 'deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. "[D]eference is not abdication" [citation]; it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.' " (Ibid.)

Second, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim. (See Strickland, supra, 466 U.S. at pp. 691-692, 104 S.Ct. at pp. 2066-2067; Ledesma, supra, 43 Cal.3d 171, 217, 233 Cal.Rptr. 404, 729 P.2d 839; In re Cordero, supra, 46 Cal.3d 161, 180, 249 Cal.Rptr. 342, 756 P.2d 1370; People v. Pope, supra, 23 Cal.3d 412, 423-425, 152 Cal.Rptr. 732, 590 P.2d 859.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... [p] The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at pp. 693-694, 104 S.Ct. at pp. 2067-2068; see Ledesma, supra, 43 Cal.3d at p. 218, 233 Cal.Rptr. 404, 729 P.2d 839; In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370.) A reference hearing following issuance of an order to show cause is subject to the rules of evidence as codified in the Evidence Code. (See Evid.Code, § 300.) Under those rules, an out-of-court declaration is hearsay, and unless subject to some exception permitting it to be admitted, should be excluded upon timely and proper objection. ² (See Evid.Code, § 1200.) A declaration so excluded is not part of the evidentiary record and cannot serve to support the findings of the referee or this court. ³ The same is true, of course, of declarations which are never offered into evidence, such as those in the present case. An expert witness, however, may base an opinion on reliable hearsay, including out-of-court declarations of other persons. (See Evid.Code, § 801; People v. Cramblit (1978) 84 Cal.App.3d 437, 448-449, 148 Cal.Rptr. 440; 1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, §§ 477, 481, 482, pp. 448, 452-453.)

In a habeas corpus petition alleging incompetent investigation or presentation of evidence by trial counsel, a petitioner generally cannot expect to establish a case for relief solely by relying on testimony, expert or otherwise, describing what evidence might have been discovered and produced by competent counsel. Instead, he must generally produce that evidence so the credibility of the witnesses can be tested by cross-examination. (If the prosecution claims it could have refuted that testimony by rebuttal evidence, it may also have to produce the witnesses to prove its claim.) In effect, the petitioner must show us what the trial would have been like, had he been competently represented, so we can compare that with the trial that actually occurred and determine whether it is reasonably probable that the result would have been different.

2. Was defendant deprived of the effective assistance of counsel by reason of counsel's failure to conduct a further investigation into mental defenses...