Gay, In re

• Citation: 968 P.2d 476,19 Cal.4th 771,80 Cal.Rptr.2d 765
• Decision Date: 24 December 1998
• Docket Number: No. S030514,S030514
• Parties: , 968 P.2d 476, 98 Cal. Daily Op. Serv. 9321, 98 Daily Journal D.A.R. 13,023 In re Kenneth Earl GAY on Habeas Corpus
• Court: California Supreme Court

Page 765

80 Cal.Rptr.2d 765

19 Cal.4th 771, 968 P.2d 476, 98 Cal. Daily Op. Serv. 9321,

98 Daily Journal D.A.R. 13,023

In re Kenneth Earl GAY on Habeas Corpus.

No. S030514.

Supreme Court of California

Dec. 24, 1998.

Taylor & Company, Richard Urdan; Marron, Reid & Sheehy and Martin H. Dodd, San Francisco, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan Lee Frierson, William T. Harter, Linda C. Johnson, Robert S. Henry and Lance E. Winters, Deputy Attorneys General, for Respondent.

BAXTER, Justice.

Petitioner Kenneth Earl Gay was convicted by a jury of the June 1, 1983, first degree murder (Pen.Code, § 189) ¹ of Paul Verna, a Los Angeles police officer. The jury found that the murder was an intentional killing of a peace officer engaged in the performance of his duties; that the murder was committed for the purpose of avoiding lawful arrest (§ 190.2. subd. (a)(5)); that a principal was armed with a firearm (§ 12022); and that petitioner personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). The jury returned a penalty verdict of death.

The jury also found petitioner guilty of two counts of attempted robbery (§§ 664/211), ten counts of robbery (§ 211), conspiracy to commit robbery (§ 182), and being an ex-felon in possession of a concealable firearm (§ 12021). He was found to have personally used a firearm in committing three of those offenses (§§ 12022.5, 1203.06, subd. (a)) and to have inflicted great bodily injury on two of the robbery victims (§ 12022.7).

This court reversed the attempted robbery, robbery, and conspiracy to commit robbery convictions on the basis of prejudicial instructional error, but otherwise affirmed the judgment and sentence of death on April 29, 1993. (People v. Cummings (1993) 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1.) ²

While his appeal from the judgment was pending, petitioner filed this petition for writ of habeas corpus. ³ The petition challenges the validity of the judgment on several grounds. A claim of ineffective assistance of counsel is the principal focus of the petition for writ of habeas corpus. ⁴ After review of the petition and accompanying exhibits, this court issued an order to show cause ordering respondent Director of Corrections to show cause why the penalty of death should not be set aside on the ground that petitioner had received constitutionally ineffective assistance by trial counsel, Daye Shinn, ⁵ at the penalty phase of the trial. ⁶

After consideration of the record on appeal, the evidence presented at the habeas corpus evidentiary hearing, and the findings of the referee, we conclude that petitioner did not receive constitutionally adequate representation at the penalty phase of the trial. While we cannot say with certainty that the result would have been more favorable to petitioner had he been represented by competent counsel, neither can we have confidence in a penalty verdict rendered after a trial in which counsel for defendant defrauded both the court and his client and ill served his client in the manner demonstrated by this record. We shall, therefore, grant the petition for writ of habeas corpus and remand petitioner to the superior court for a new penalty trial.

I Background

Officer Verna was shot and killed by petitioner and his crime partner Raynard Paul Cummings when Verna stopped the car in which they were passengers, driven by Pamela Cummings, Raynard's wife, as they drove through the Lakeview Terrace district of the San Fernando Valley. In the weeks before Verna stopped the car for a traffic violation, Cummings, allegedly with petitioner, had committed a series of robberies in Los Angeles County. Following his arrest petitioner was held in the Los Angeles County jail.

Daye Shinn met with petitioner in the county jail and appeared as retained counsel for petitioner at the preliminary hearing, replacing a deputy public defender who had been appointed by the court. Petitioner had retained Shinn prior to the preliminary hearing on the fraudulent representation by Shinn and Marcus McBroom that Shinn's fees would be paid by a group of Black businessmen. Shinn was later appointed to represent petitioner after Shinn first advised petitioner to tell the court that petitioner's parents would pay Shinn's fees and then advised petitioner to tell the court that his parents could not do so. As will be discussed in more detail below, Shinn's fraudulent representations to petitioner and the court were part of a scheme in which Shinn brought Dr. Fred Weaver, a psychiatrist, and Marcus McBroom, who acted as Weaver's assistant, into the case.

A pretrial statement admitting his complicity in the several robberies with which he was charged was admitted at trial. Shinn had advised petitioner to make the statement to an investigating officer, falsely assuring petitioner that the statement would not be admissible at trial.

During the penalty phase of the trial, Shinn called Dr. Weaver to offer mitigating evidence. Dr. Weaver testified that petitioner was a sociopath with an antisocial personality, but did well in a structured custodial situation. The only other penalty phase witnesses were petitioner's mother, wife, mother-in-law, cousin, and three acquaintances, none of whom had been interviewed by Shinn, who were called to offer evidence of petitioner's good character traits. Although other potentially mitigating penalty phase evidence was readily available, Shinn himself did no investigation of penalty phase evidence and the investigation undertaken by Shinn's investigator, who was given inadequate guidance, failed to discover that evidence. These aspects of Shinn's representation are the principal focus of our inquiry.

II Ineffective Counsel Allegations ⁷

Although we have concluded that the petition fails to state a prima facie case for relief on ineffective counsel grounds with respect to guilt, prejudice not having been established as to that phase of the trial, we include in our summary those factual allegations of the petition related to the quality of counsel's representation prior to the penalty phase which had an impact on the penalty determination.

Petitioner alleges in substance that Shinn engineered his appointment in the case by lies, misrepresentations, and unethical conduct. Petitioner's retention of Shinn occurred at a time when petitioner was represented by a deputy public defender. Shinn, accompanied by an African-American man in clerical garb, approached petitioner in the county jail. Shinn stated that he was an experienced criminal lawyer and that his companion was a minister who represented a group of African-American businessmen who were interested in paying for petitioner's defense because they were sure he would not otherwise receive a fair trial. The pair urged petitioner to retain Shinn because he needed a "good lawyer," and petitioner did so.

When petitioner appeared for the preliminary hearing, Shinn told petitioner to falsely tell the court that petitioner's parents had given Shinn a $5,000 retainer. Petitioner did so and Shinn was substituted as counsel. Petitioner's mother declares that she did not provide funds to retain Shinn and he did not request a retainer. Neither Shinn nor his investigator ever interviewed petitioner's parents. His mother did not meet with Shinn until the day she testified at the penalty phase of the trial.

After the preliminary hearing Shinn told petitioner to tell the court that he was without funds to pay Shinn and that Shinn should be appointed under the authority of section 987.2.

Prior to the penalty phase, Shinn arranged for petitioner to see Dr. Weaver, a psychiatrist. Weaver's assistant, Dr. McBroom, was the minister who had accompanied Shinn to the jail when Shinn solicited employment.

Petitioner alleges that Shinn's performance at the penalty phase was deficient in numerous ways. Possibly the most damaging allegation was that, after falsely assuring petitioner the statement could not be used against him at trial, Shinn misled petitioner into making a statement to investigating officers in which petitioner admitted participating in the robberies with which he was charged. Shinn also failed to adequately investigate and discover available mitigating evidence, used an incompetent mental health expert, and had no coherent penalty phase strategy. Petitioner attributes Shinn's selection of Dr. Weaver as his mental health expert to a conflict of interest arising out of an allegedly improper "capping" arrangement whereby Dr. McBroom solicited clients for Shinn who then retained Dr. Weaver, for whom McBroom was an assistant.

Petitioner alleges that at the time Shinn represented him, Shinn labored under another clear, but undisclosed, conflict of interest arising out of complaints made against Shinn by a former client to the State Bar, various legislators, and the district attorney regarding Shinn's misappropriation of client funds. The State Bar investigation threatened Shinn's license and livelihood. At the time Shinn was acting on his own behalf in these investigations; he was unable to devote full time to the representation of or adequately defend petitioner.

A. Prepenalty-phase Conduct.

Petitioner alleges more specifically with regard to the robbery-related counts that Shinn advised him to confess to those charges in a pretrial interview with a police investigator, falsely telling petitioner that Shinn had an agreement that petitioner would confess to those counts and testify for the prosecution or his statement would not be used against him. Shinn did not have an agreement to that effect. At a hearing on the admissibility of the taped statement petitioner made during that interview, the police investigator testified in response to questioning by Shinn that there was no such agreement and that the investigator believed petitio...