In re Gay

• Decision Date: 13 February 2020
• Docket Number: S130263
• Citation: 8 Cal.5th 1059,258 Cal.Rptr.3d 363,457 P.3d 502
• Court: California Supreme Court
• Parties: IN RE Kenneth Earl GAY on Habeas Corpus.

8 Cal.5th 1059

457 P.3d 502

258 Cal.Rptr.3d 363

IN RE Kenneth Earl GAY on Habeas Corpus.

S130263

Supreme Court of California.

February 13, 2020

Gary D. Sowards, Jennifer Molayem, Patricia Daniels and Kimberly Dasilva for Petitioner Kenneth Earl Gay.

Lawrence J. Fox, George W. Crawford, Sadella D. Crawford; Drinker Biddle & Reath and Erin E. McCracken for Ethics Bureau at Yale as Amicus Curiae on behalf of Petitioner Kenneth Earl Gay.

Debevoise & Plimpton, Donald Francis Donovan, Stuart C. Naifeh, Ina C. Popova and Samantha J. Rowe for United Kingdom of Great Britain and Northern Ireland as Amici Curiae on behalf of Petitioner Kenneth Earl Gay.

Bill Lockyer, Edmund G. Brown, Jr., Kamala Harris and Xavier Becerra, Attorneys General, Robert R. Anderson, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Sharlene A. Honnaka, James William Bilderback and David F. Glassman, Deputy Attorneys General, for Respondent the State of California.

Opinion of the Court by Kruger, J.

Petitioner Kenneth Earl Gay was convicted of the first degree murder of a police officer and sentenced to death. In an earlier habeas corpus proceeding, we found that Gay’s trial counsel had defrauded Gay in order to induce Gay to retain him instead of the public defender, and then had gone on to commit serious errors during the trial’s penalty phase that undermined the reliability of the resulting death verdict. We accordingly granted habeas corpus relief and vacated the judgment of death. ( In re Gay (1998) 19 Cal.4th 771, 780, 80 Cal.Rptr.2d 765, 968 P.2d 476 ( Gay I ).) Now, presented with additional allegations concerning trial counsel’s deficient performance during the guilt phase, we consider whether his performance undermined the reliability of the jury’s guilty verdict as well.

To address this question, we ordered an evidentiary hearing before a referee. Examining Gay’s allegations in light of the extensive hearing record, the referee’s findings, and the trial record, we conclude Gay was denied his constitutional right to the assistance of competent counsel at the guilt phase of the trial, just as at the penalty phase. We grant habeas corpus relief and afford the People the opportunity to retry Gay if they so choose.

I.

After a joint trial before separate juries in the Los Angeles County Superior Court, Gay and codefendant Raynard Paul Cummings were convicted of the first degree murder of Los Angeles Police Officer Paul Verna. ( Pen. Code, § 189.) The juries found, as special circumstances, that defendants knowingly and intentionally killed a peace officer engaged in the performance of his duties (id. , § 190.2, subd. (a)(7)) and committed the murder to prevent a lawful arrest (id. , § 190.2, subd. (a)(5)). The juries also found that a principal was armed with a firearm (id. , § 12022, subd. (a)) and that each defendant personally used a firearm (id. , §§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a death verdict. ( People v. Cummings (1993) 4 Cal.4th 1233, 1255, 18 Cal.Rptr.2d 796, 850 P.2d 1 ( Cummings ).)¹ As explained further below, Gay’s death sentence was later vacated ( Gay I , supra , 19 Cal.4th at p. 780, 80 Cal.Rptr.2d 765, 968 P.2d 476 ), and a second death judgment following penalty retrial was overturned on appeal ( People v. Gay (2008) 42 Cal.4th 1195, 1198, 73 Cal.Rptr.3d 442, 178 P.3d 422 ( Gay II )). Here, we are concerned solely with the validity of Gay’s underlying convictions.

We previously have described the guilt phase evidence at length. (See Cummings , supra , 4 Cal.4th at pp. 1257–1270, 18 Cal.Rptr.2d 796, 850 P.2d 1.) We briefly summarize the relevant points here. Early in the evening of June 2, 1983, Officer Verna, on motorcycle patrol, made a traffic stop in a residential neighborhood. The driver was Pamela Cummings.² Gay was sitting in the front passenger’s seat, while Raynard Cummings was sitting in the backseat. Unbeknownst to Officer Verna, the car was stolen and Gay and Raynard Cummings recently had committed a series of robberies. Pamela stepped out of the car and told Officer Verna she had no driver’s license or registration for the car. When Officer Verna returned to the car to ask the occupants for identification, he was shot and fell. One of the occupants then got out of the car and shot the officer several more times. ( Id. at pp. 1257–1258, 18 Cal.Rptr.2d 796, 850 P.2d 1.) The initial shot would have been fatal on its own, as would most of the subsequent ones. ( Id. at p. 1267, 18 Cal.Rptr.2d 796, 850 P.2d 1.)

The central issue at trial concerned the identity of the shooter or shooters. The prosecutor maintained that Raynard Cummings had fired the first shot while sitting in the backseat and then passed the gun to Gay, who stepped out of the car and fired the remaining shots at the fallen officer. Gay and Cummings each maintained that the other had fired all the shots. ( Cummings , supra , 4 Cal.4th at p. 1259, 18 Cal.Rptr.2d 796, 850 P.2d 1.) There were numerous eyewitnesses to the incident, but the witnesses’ descriptions of this tragic event differed in significant respects.

Pamela was the prosecution’s primary witness. She had been charged with special circumstances murder and robbery but pleaded guilty to two counts of robbery and to being an accessory to murder on the condition that she testify truthfully as a prosecution witness. ( Cummings , supra , 4 Cal.4th at p. 1264, fn. 8, 18 Cal.Rptr.2d 796, 850 P.2d 1.) Pamela testified she was driving a two-door 1979 Oldsmobile Cutlass coupe when Officer Verna stopped her at about 5:40 p.m. ( Id. at p. 1257, 18 Cal.Rptr.2d 796, 850 P.2d 1.) She stepped out of the car and told Officer Verna she had no driver’s license or car registration. She gave him a check-cashing card for identification, which the officer used to complete a field interrogation card. Officer Verna returned to the car and bent down, putting his hands on his knees, leaned into the vehicle, and asked the occupants for identification. Pamela, who was standing near the curb, with the car between herself and the officer, heard a gunshot, saw Officer Verna grab his shoulder, and saw the barrel of a gun pointing straight across the front seat of the car between the head rests. She could not see who held the gun because her husband, sitting in the back, obstructed her view. According to Pamela, Gay then got out of the car, approached Officer Verna, and fired three shots into his back as he attempted to return to his motorcycle. The officer walked back a few feet and then fell to the ground. Gay stood over Officer Verna, shot him two more times, threw the gun on his body, and picked up the officer’s gun. Pamela and Gay reentered the car through the driver’s side door. Gay drove up the street, but then made a U-turn and returned, stopping by the fallen officer. Gay stepped out and retrieved Pamela’s identification card and the murder weapon. ( Id. at pp. 1258, 1263, 18 Cal.Rptr.2d 796, 850 P.2d 1.) The field interrogation card naming Pamela Cummings was left at the scene.

Pamela also testified that on the night of the murder, Gay and Cummings reenacted the shooting in Gay’s home for the benefit of Gay’s wife, Robin. Gay extended his arm as if holding a gun and said, " ‘Pow, pow, motherfucker. Take this,’ " and said that he " ‘got him good.’ " Cummings used the same words in his reenactment. ( Cummings , supra , 4 Cal.4th at p. 1264, 18 Cal.Rptr.2d 796, 850 P.2d 1.)

Eight additional eyewitnesses testified for the prosecution. Their versions of the events and identification of the shooter or shooters varied. The discrepancies turned in part on the differences in appearance between Gay and Cummings. Gay, who is a biracial man of African-American and Caucasian heritage, is much lighter in complexion than Cummings, who is a darker skinned African-American man. At six feet tall, Gay is six inches shorter than Cummings. On the evening of the murder, Gay was wearing a light gray long-sleeved shirt, while Cummings was wearing a maroon short-sleeved shirt.

Twelve-year-old Oscar Martin was in the front yard of his home when he saw Officer Verna giving Pamela a ticket on the street in front of his house. Oscar went into his house and told his mother, who was in the kitchen, what he had seen. She told him to stay inside. He looked out the living room window and saw the back door of the car open and a person he later identified as Raynard Cummings get out and shoot the officer four times. After the shooting, the man got into the car and drove off. Oscar did not see anyone else in the car. ( Cummings , supra , 4 Cal.4th at p. 1259, 18 Cal.Rptr.2d 796, 850 P.2d 1.)

Oscar’s mother, Rosa Maria Martin, did not see the murder. She had gone out and looked down her driveway after Oscar told her that a police officer was giving someone a ticket but saw nothing and went back inside. She then heard at least four gunshots, with a pause between the first one and the others. Oscar came to her and said: " ‘They killed him.’ " Rosa looked out the living room window and saw a two-door car driving slowly down the street. The driver, whom she identified as Gay, got out, picked up a revolver, and then got back into the car. A woman was in the passenger seat, but Rosa could not tell if anyone was in the rear seat. ( Cummings , supra , 4 Cal.4th at p. 1260, 18 Cal.Rptr.2d 796, 850 P.2d 1.)

Robert Thompson was on a ladder in front of a house across the street and saw Officer Verna giving a ticket to a woman. Gay was in the front seat of the car and Raynard Cummings was in the rear seat on the passenger side. Thompson looked again when he heard a noise and saw the officer backing away from the driver’s side door holding his chest. Cummings was holding a gun in his right hand, which extended out of the car. After the first shot, Thompson jumped off the ladder and tried to hide behind a bush. When he looked again, he saw Gay get...