Ross, In re, S043446

• Decision Date: 08 May 1995
• Docket Number: No. S043446,S043446
• Citation: 10 Cal.4th 184,892 P.2d 1287,40 Cal.Rptr.2d 544
• Court: California Supreme Court
• Parties: , 892 P.2d 1287 In re Craig Anthony ROSS, On Habeas Corpus.

Page 544

40 Cal.Rptr.2d 544

10 Cal.4th 184, 892 P.2d 1287

In re Craig Anthony ROSS, On Habeas Corpus.

No. S043446.

Supreme Court of California In Bank.

May 8, 1995.

Rehearing Denied July 12, 1995.

Steven E. Feldman, San Diego, Nicholas C. Arguimbau, San Francisco, for petitioner.

Susan D. Martynec, Office of the Atty. Gen., Los Angeles, for respondent.

ARABIAN, Justice.

Petitioner Craig Anthony Ross seeks relief on habeas corpus from the judgment of death entered against him in Los Angeles Superior Court, Case No. A365075. On direct appeal, we affirmed that judgment and a judgment of death against the codefendant, Steven Allen Champion. (People v. Champion (1995) 9 Cal.4th 879, 39 Cal.Rptr.2d 547, 891 P.2d 93.)

In this matter, we issued an order to show cause based on petitioner's allegation that trial counsel was ineffective for failing to present available mitigating evidence at the penalty phase of his capital trial. We appointed the Honorable Michael Tynan, Judge of the Los Angeles Superior Court, to take evidence and make findings of fact on six questions. Judge Tynan has issued a report responding to the six questions, and in addition concluding that trial counsel provided ineffective representation at the penalty phase and that there is a reasonable probability the result would have been more favorable for petitioner in the absence of counsel's failings. We uphold most, although not all, of the referee's factual findings, but disagree with his legal conclusions. We find that petitioner has not shown a reasonable probability that the result would have been different but for counsel's unprofessional errors. Accordingly, we discharge the order to show cause, and deny the petition for writ of habeas corpus.

I. FACTS

A. The Trial

In 1982, a jury convicted petitioner of three counts of murder, five of robbery, two of burglary, and one of rape in concert, finding that he was armed with a firearm in the course of each offense. On each count of murder, the jury found special circumstances of robbery-murder, burglary-murder, and multiple-murder, and on one of the murder counts also found a rape-murder special circumstance. Both petitioner and the codefendant at trial, Steven Allen Champion, who was convicted of some of these crimes, were sentenced to death.

The facts giving rise to these convictions are described in greater detail in our opinion in the direct appeal. (People v. Champion, supra, 9 Cal.4th at pp. 898-902, 39 Cal.Rptr.2d 547, 891 P.2d 93.) Briefly, the evidence at the guilt phase of petitioner's trial disclosed that on December 12, 1980, petitioner and three accomplices burglarized the home of Bobby Hassan, a marijuana dealer, ransacked the house, and murdered both Bobby and his son, Eric Hassan, by shooting them in the head while they were lying on a bed. Bobby's hands were tied behind his back. The evidence also indicated that on December 27, 1980, petitioner and three accomplices burglarized the home of Michael, Cora, and Mary Taylor, robbing the occupants and murdering Michael Taylor. Petitioner forced Mary Taylor to enter the bathroom, where he raped her. The prosecution offered no evidence showing who fired the shots that killed either the Hassans or Michael Taylor.

At the penalty phase of the trial, the prosecution presented evidence that on July 29, 1977, petitioner shot Mark Howard. Howard was in Helen Keller Park, in the Los Angeles area, when Walter Gregory approached and said that petitioner wanted to talk to him. Howard walked to another part of the park and spoke to petitioner, who was with a group of people. Petitioner demanded that Howard return a radio that Howard had taken from Gregory. Howard said he took the radio because Gregory owed him money, and refused to return it. Petitioner then produced a revolver, and said that if Howard did not return the radio he would blow Howard's head off. Howard slapped petitioner, whereupon petitioner shot Howard six times in the stomach and the chest. Howard recovered, but a bullet remains lodged close to his spine, and his ability to use his left leg is seriously impaired. As a result of this incident, petitioner pleaded guilty to assault with a deadly weapon, and was sentenced to three years in prison.

Petitioner presented no witnesses at the penalty phase of trial. At petitioner's request, the parties stipulated that Howard was once associated with the Denver Lanes and Athens Park Boys gangs. Also at his request, the court took judicial notice that Jerome Evan Malett, an accomplice in the murder of Michael Taylor, had been convicted of eight offenses arising out of that episode, including first degree murder with personal use of a firearm, and had been sentenced to a prison term of 46 years to life. The parties also stipulated that petitioner was born on February 1, 1959, and thus was 21 years old at the time of the murders.

B. The Reference Hearing

We asked the referee to take evidence and make findings of fact on these questions:

"1. What mitigating character and background evidence could have been, but was not, presented by petitioner at his penalty trial?

"2. What investigative steps by trial counsel, if any, would have led to such items of evidence?

"3. What investigative steps, if any, did trial counsel take in an effort to gather mitigating evidence to be presented at the penalty phase?

"4. What tactical or financial constraints, if any, weighed against the investigation or presentation of mitigating character and background evidence at the penalty phase?

"5. What evidence damaging to petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal if petitioner had introduced any such mitigating character and background evidence? [Citation.]

"6. Did petitioner himself request that either the investigation or the presentation of mitigating evidence at the penalty phase be curtailed in any manner? [Citation.] If so, what did petitioner request?"

The evidence presented at the reference hearing regarding these questions, and the referee's findings, are summarized below.

1. "What Mitigating Character and Background Evidence Could Have Been, But Was Not, Presented by Petitioner at His Penalty Trial?"

The referee found that 15 witnesses were available to testify about petitioner's childhood and family life. At the reference hearing, each of them stated they were available at petitioner's penalty trial, but petitioner's attorneys never asked them to testify.

Petitioner was born in 1959, to Gloria and Stafford Ross, the fifth of Gloria's six children. When petitioner was about three months old, Gloria and Stafford separated. Thereafter, Gloria and the children left Los Angeles for Oakland. Gloria became romantically involved with Henry Brown, who had three sons. In 1963, the couple moved to Los Angeles and began living together (along with her six and, after 1966, his three children). They married in 1966. Gloria and Henry separated in 1971, when petitioner was 12 years old, and then reconciled around 1978.

The testimony of the 15 potential witnesses is summarized below, listed in the order in which it appears in the referee's report, and in which the witnesses testified at the reference hearing.

1. Shelene Hearring testified that she is petitioner's older sister. In 1982, when petitioner's murder trial took place, she was a psychiatric technician for the Veterans Administration Medical Center in the State of Washington.

Petitioner's father, Stafford Ross, repeatedly beat and stabbed petitioner's mother, Gloria, including when she was pregnant with petitioner. Gloria also had a bad relationship with her second husband, Henry Brown. Henry was an alcoholic and a gambler, who beat his wife when he had been drinking. Henry and Gloria fought several times a week. On one occasion, Henry began beating Gloria, and when petitioner's aunt Gwen stepped in, Henry threatened to throw a television set at her. Petitioner's uncle Alvin, a police officer, then arrived and arrested Henry.

Henry Brown frequently beat Gloria's children with a thick belt that was part of his postman's uniform, and with tree switches. When he had been drinking, Henry beat the children for no apparent reason. During these beatings, Henry swung widely, sometimes hitting the children with the buckle end of his belt. He would whip the boys in the family, including petitioner, more often than the girls, and on several occasions Shelene saw welts on petitioner's body from the whippings. Sometimes Henry forced the children to kneel in the garage for hours.

The family lived in a rough neighborhood. Petitioner often took care of his younger siblings, and walked his younger sisters to school to protect them against attacks. As of the time of trial, no member of petitioner's family had been in trouble with the law other than petitioner.

Shelene came to the trial on only one occasion. On that day, she attempted to speak to petitioner's lead attorney, Gerald Lenoir, about petitioner's case; Lenoir told her that he did not have time to talk to her. Shelene was never interviewed by any attorney or defense investigator regarding testimony she could offer on petitioner's behalf.

2. Leatrice Williams testified that she is petitioner's grandmother. Petitioner came with his brother and sisters to visit her at her farm every year until he was about 14 years old. During his visits, petitioner would help with the chores and care for the animals. She did not see petitioner often after he turned 14.

3. Murdie Faye Washington is petitioner's aunt. At the time of petitioner's trial in 1982, she was a chief legislative analyst for the City of Los Angeles. Washington testified that petitioner's father, Stafford, had beaten and stabbed petitioner's mother, Gloria. Although Washington never saw Gloria's second husband, Henry, beat Gloria, she saw bruises from such beatings on Gloria's body, and heard...