In Re Jackson

3 Cal.4th 578 (1992)

835 P.2d 371

11 Cal. Rptr.2d 531

In re EARL LLOYD JACKSON on Habeas Corpus.

Docket No. S009490. Crim. No. 22165.

Supreme Court of California.

August 31, 1992.

*583 COUNSEL

Joseph Shemaria and Eric S. Multhaup for Petitioner.

Paul Hoffman and Joan Howarth as Amici Curiae on behalf of Petitioner.

George Deukmejian, John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Robert H. Philibosian, Steve White, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, S. Clark Moore, Edward P. O'Brien and Edward T. Fogel, Jr., Assistant Attorneys General, Norman H. Sokolow, Susan Lee Frierson, Howard J. Schwab, Michael D. *584 Wellington, Carol Wendelin Pollack and Keith H. Borjon, Deputy Attorneys General, Ira Reiner, District Attorney, Harry B. Sondheim, Chief Deputy District Attorney, George M. Palmer and Robert W. Carney, Deputy District Attorneys, for Respondent.

William A. O'Malley, District Attorney (Contra Costa), and Patricia K. Moore, Deputy District Attorney, as Amici Curiae on behalf of Respondent.

OPINION

GEORGE, J.

In People v. Jackson (1980) 28 Cal.3d 264 [ 618 P.2d 149 ] ( Jackson I ), we affirmed a judgment against petitioner Earl Lloyd Jackson (hereafter defendant), who is currently confined in state prison under a sentence of death imposed pursuant to that judgment for the 1977 murder of two elderly women. In 1981, after the judgment on appeal became final, defendant filed a petition for writ of habeas corpus in which he sought relief on a variety of grounds. On November 27, 1981, we issued an order to show cause, subsequently appointed a referee, and after a series of orders adding and eliminating several matters from the referee's consideration, ultimately directed the referee to take evidence and make findings of fact relating to the following three issues: (1) whether the admissions defendant made to two jailhouse informants, Mark Mikles and Ronald McFarland, deliberately were elicited from defendant at the behest of law enforcement officials so as to render the statements inadmissible at trial under the principles set forth in United States v. Henry (1980) 447 U.S. 264 [ 65 L.Ed.2d 115 , 100 S.Ct. 2183 ]; (2) whether the prosecution improperly failed to disclose to the defense any inducements offered by state agents to Mikles or McFarland for their testimony at defendant's trial; and (3) whether defendant's trial counsel failed to provide adequate representation with respect to the special circumstance allegations or the penalty phase of the trial.

After an extensive evidentiary hearing, the referee found that (1) Mikles and McFarland had not elicited statements from defendant at the behest of law enforcement officials, but (2) state officials had offered inducements to Mikles and McFarland for their testimony that had not been disclosed to the defense, and (3) defendant's trial counsel had failed to provide adequate representation with respect to both the special circumstance allegations and the penalty phase. The referee also indicated that, in his view, these constitutional violations required reversal of the special circumstance findings and the judgment as to penalty.

Defendant has not challenged the referee's finding that his admissions to the jailhouse informants were not elicited by law enforcement officials in *585 violation of the holding in United States v. Henry, supra, 447 U.S. 264 , and the record supports this finding, which accordingly we adopt. [1]

The Attorney General, however, contests the referee's findings both with regard to the prosecution's asserted failure to disclose to the defense the inducements provided to Mikles and McFarland, and with regard to the alleged inadequacy of the legal representation provided by trial counsel. Additionally, the Attorney General argues that even if the referee's findings on those issues are sustained, they do not provide a sufficient basis for overturning the special circumstance findings or the judgment as to penalty.

After summarizing the facts underlying defendant's conviction, we analyze the referee's findings with respect to (1) the prosecution's alleged failure to disclose inducements made to prosecution witnesses, and (2) the alleged ineffective assistance provided by defendant's trial counsel with regard to the special circumstance allegations and the penalty phase. (1) "Our standard of review of the referee's report is settled. The referee's conclusions of law are subject to independent review, as is his resolution of mixed questions of law and fact. [Citations.] ... The referee's findings of fact, though not binding on the court, are given great weight when supported by substantial evidence. The deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanor of witnesses and their manner of testifying. [Citation.]" ( In re Marquez (1992) 1 Cal.4th 584, 603 [ 3 Cal. Rptr.2d 727 , 822 P.2d 435 ].)

More than 10 years after our grant of habeas corpus review, and in the aftermath of judicial proceedings beset by extended delay reminiscent of that described in Charles Dickens's Bleak House, we reject defendant's claim *586 that errors at his 1978-1979 trial require that the judgment sentencing him to death be set aside. [2]

I. EVIDENCE RECEIVED AT TRIAL

In our opinion on defendant's automatic appeal, we summarized the evidence presented at trial ( Jackson I, supra, 28 Cal.3d 264, 283-285 ) and thus need recount those facts only briefly here.

The evidence disclosed that on 2 separate occasions within a 10-day period, defendant (then 19 years of age), accompanied by 1 or more other persons, burglarized the apartments of 2 elderly women, Mrs. Vernita Curtis, who was 81 years of age, and Mrs. Gladys Ott, who was 90 years of age. Both women resided in the same apartment building in which defendant *587 temporarily was staying, and the motive on both occasions apparently was to steal money or other items of value; in both instances, television sets, toasters, and other household or personal items were taken.

At the time of each burglary, the elderly resident was asleep in her apartment and apparently awoke, discovering the intruders while the crime was in progress. The perpetrators responded to the victims' protests by severely beating the elderly women with blows to the head, neck, and chest. In the first incident, Mrs. Curtis still was alive when discovered by her neighbors but, after four days of hospitalization, died from the severe injuries inflicted upon her. In the second incident, Mrs. Ott was dead when discovered, and appeared to have been beaten, and perhaps strangled, to death. The autopsy of Mrs. Ott revealed, in addition to massive bruises to her face, neck, and body, an extensive vaginal laceration apparently caused by the insertion of a foreign object into her vagina.

On learning that the police were looking for him, defendant went to a police station and agreed to make a tape-recorded statement. After initially denying participation in the crimes, defendant ultimately admitted that he and others had burglarized both apartments. In his statement to the police, however, defendant denied having been the person who inflicted the severe beatings on the victims, claiming with respect to Mrs. Curtis that he simply held her while another participant struck her, and with respect to Mrs. Ott that others inflicted the majority of the blows, that he struck her only once, and that he believed she was alive when he left her apartment.

In addition to introducing defendant's statement to the police, the prosecution presented a number of witnesses who testified to statements defendant made to them admitting his complicity in the crimes. A neighbor, Ilena Gaines, testified that when Mrs. Curtis was being removed from her apartment on a stretcher, defendant was standing outside the building and smiled, laughed, and stated "he was the one who did that." [3] The prosecution also introduced a transcript of the preliminary hearing testimony of Debria Lewis, another acquaintance of defendant, who stated that shortly after the killings defendant pointed to a newspaper article concerning Mrs. Curtis's murder and stated, "This is what I done." Lewis stated that when she asked defendant for an explanation, he replied: "If she had just been still — had been still and given him the money, that she would have been walking *588 around today." In this same conversation defendant described the two victims to Lewis as "two old bags [who] were a nuisance and ... got what they deserved." The prosecution also called Debra Hall, defendant's cousin, who testified that defendant had told her, in reference to a news article concerning both victims, that "This is what I did, that it was because I needed some money."

Finally, in addition to the above evidence, the prosecution called as witnesses the two jailhouse informants, Mikles and McFarland, referred to above. Each informant testified that defendant, in separate conversations with each of them during his confinement after arrest, made detailed admissions as to his actions during the burglaries. [4] Both testified that defendant admitted killing the two women and boasted about repeatedly striking Mrs. Ott in the face and forcibly inserting a wine bottle into her vagina. [5]

The defense did not present any evidence at the guilt phase.

*589 On the basis of the foregoing evidence, the jury convicted defendant of two counts of first degree murder and two counts of burglary, finding true the two special circumstance allegations — a burglary-murder special circumstance and a multiple-murder special circumstance — alleged, under the applicable 1977 death penalty law, with respect to the killing of Mrs. Ott.

At the penalty phase, the prosecution introduced evidence that the neck of a wine bottle found close to Mrs. Ott's body contained two hairs that appeared to be similar to the pubic hairs of the victim, and that there appeared to be dried blood on the neck of the bottle and in the area of the victim's vagina. Defense counsel cross-examined the prosecution witnesses and made a lengthy closing argument, but again did not introduce any evidence on defendant's behalf. The jury fixed the penalty at death.

As noted, on appeal we affirmed the judgment in all respects.

II. INDUCEMENTS OFFERED TO JAILHOUSE-INFORMANT WITNESSES

In testifying at defendant's trial, both Mikles and McFarland stated explicitly, in response to questioning by the deputy district attorney, that they had not received any promises from any law enforcement officials in exchange for their testimony against defendant. Although both witnesses acknowledged currently being either under sentence or facing sentence on a number of charges, they denied that anyone had promised to take any action on their behalf in the event they testified against defendant.

One exchange between the prosecutor and Mikles — the first of the two jailhouse informants to testify at trial — was particularly explicit on this subject. The deputy district attorney questioned Mikles as follows:

"Q. Now, had you ever asked anyone — the sheriffs, District Attorney, police — anything in return for your telling them about the statement that Jackson made to you?

"A. Have I ever been promised anything?

"Q. Well, for example, did you ever tell any officer or DA or sheriff, Hey, I have got something to tell you, but you have to give me something in return? And I will tell you only if you give me something. Anything like that?

*590 "A. No. It doesn't work that way.

"Q. Did you talk to me today for about five minutes around 11:15?

"A. Yeah. I think it was less than that. About a minute or two.

".... .... .... .... .... .... ....

"Q. Is that the first time that you talked to me?

"A. Yes, it is.

".... .... .... .... .... .... ....

"Q. And during that conversation did you ask me to do anything for you?

"A. No, I did not.

"Q. Did I tell you I would do anything or that anyone would do anything for you in exchange for your testifying?

"A. No.

"Q. All right. Now, did anyone, up to the time that you have testified now on this witness stand — did anyone — when I say, `anyone,' I include sheriffs, police, District Attorneys; in other words, anyone in law enforcement — did anyone — probation officers — did anyone promise you anything in exchange for your testifying about the conversation that Jackson had with you?

"A. Just a lot of protection.

"Q. Pardon?

"A. Just a lot of protection.

"Q. Just a lot of protection?

"A. Yeah.

"Q. Is that about all?

"A. That's it.

"Q. And who, incidentally, promised you protection?

*591 "A. The Sheriff's Department did."

The relevant exchange between the deputy district attorney and McFarland was briefer but similar in substance:

"Q. Mr. McFarland, is it true that you saw me for the first time last week?

"A. Yes, sir.

"Q. And is it true that no one promised you anything in exchange for your testimony against Mr. Jackson?

"A. Yes, that's right.

"Q. Now, when you were up in this court last June 23, 1978, when you were convicted by way of being sentenced on the robbery charges of which this Court found you guilty, as you indicated, was I here in court?

"A. No, sir.

"Q. Was there a District Attorney present at the time that you were sentenced and convicted on that date of June 23, '78?

"A. Yes, sir.

"Q. And did that District Attorney make any statements in your presence to the Court that the sentence should be lenient because you were going to testify in the Jackson case?

"A. No, sir."

Although both Mikles and McFarland thus testified at defendant's trial that they had received no promises of assistance from any state officials for their trial testimony, during the course of their testimony in the reference hearing in connection with defendant's ineffective-assistance-of-counsel claim (discussed below), both Mikles and McFarland made a number of statements that appeared inconsistent with their trial testimony. On defense counsel's motion, we expanded the scope of the reference hearing, directing the referee to take evidence, and ultimately to make findings, on the question whether any offers or inducements had been made by the prosecution or other state agents for the testimony of either witness and, if so, whether such offers or inducements had been disclosed to the defense.

Based on the evidence presented at the reference hearing, the referee found that inducements had in fact been made by state agents to both Mikles *592 and McFarland for their testimony at defendant's trial and that the prosecution had failed to disclose these inducements to defendant or his trial counsel.

With respect to Mikles, the evidence at the reference hearing revealed that when Mikles contacted members of the sheriff's department and police department, indicating he had information relevant to defendant's case, he informed the law enforcement officers that in exchange for his testimony against defendant he wanted assistance in (1) having a six-year sentence, previously imposed on him in Long Beach, recalled and reduced, (2) receiving as little time, or, if possible, no time, on a number of charges then pending against him in Norwalk, and (3) having a potential forty-two-month sentence for a federal parole violation reduced or eliminated. Mikles testified that members of the sheriff's and police departments promised him that although they could not guarantee any specific results, if he testified for the prosecution in defendant's case and in other cases in which he claimed he had obtained incriminating evidence against other inmates, they would bring his cooperation to the attention of the judges and deputy district attorneys involved in his cases and use their best efforts to help him achieve his objectives as described above.

Mikles's account was confirmed by the testimony of a Los Angeles Deputy Sheriff who had acted as Mikles's principal contact with the officers assigned to the specific crimes as to which Mikles had relevant information. The deputy sheriff testified: "I think it's one of the standard procedures, if an informant is working for you, that you will let the information be known that he did work and, you know, he provided productive information." (2)(See fn. 6.) She continued: "What I told Mr. Mikles I would do is if his information was productive information, and it could be used, and we could get a conviction, I would advise the district attorney that was handling his case of his assistance to us." [6]

The referee also found, from the evidence presented at the hearing, that after defendant's trial the inducements promised to Mikles were in fact *593 provided to him. The law enforcement officers with whom Mikles had spoken wrote letters and gave statements on Mikles's behalf in a number of proceedings, which led to a very significant reduction in the sentences previously imposed on Mikles and to the dismissal of most of the additional charges then pending against him. [7]

With regard to McFarland, the evidence at the reference hearing indicated that the prosecutor in defendant's case had promised to write a letter on McFarland's behalf at the conclusion of defendant's trial, recommending that the relevant prison authorities permit McFarland to serve his time in Arizona, where his family lived, rather than in California. [8]

The Attorney General concedes that the evidence presented at the reference hearing supports the referee's findings that the foregoing offers of assistance or inducements were made to both Mikles and McFarland prior to defendant's trial and were not disclosed to the defense. The Attorney General argues, however, that (1) the offers or inducements at issue here were not the kind of inducements the prosecution was constitutionally compelled to disclose to the defense, and (2) in any event, the failure to disclose the inducements was not prejudicial.

As the Attorney General acknowledges, in People v. Morris (1988) 46 Cal.3d 1 [ 249 Cal. Rptr. 119 , 756 P.2d 843 ], this court discussed at some length the legal principles governing the prosecution's duty to disclose inducements made to prosecution witnesses and to correct misleading statements made by such witnesses with regard to such inducements.

We stated in Morris : "It is well settled that the prosecution has a duty to disclose all substantial material evidence favorable to an accused. [Citations.] That duty exists regardless of whether there has been a request for such evidence [citation] and irrespective of whether the suppression was *594 intentional or inadvertent. [Citation.] As the United States Supreme Court in the seminal case of Brady v. Maryland (1963) 373 U.S. 83, 87 [ 10 L.Ed.2d 215, 218-219 , 83 S.Ct. 1194 ], succinctly stated: `[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process ... irrespective of the good faith or bad faith of the prosecution.' [¶] The duty to disclose evidence favorable to the accused extends to evidence which may reflect on the credibility of a material witness. [Citation.] As this court said in [ People v.] Ruthford [(1975) 14 Cal.3d 399 [ 121 Cal. Rptr. 261 , 534 P.2d 1341 , A.L.R.4th 3132]], `[S]uppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process....' [Citation.] [¶] The duty to disclose evidence bearing on the credibility of a prosecution witness manifestly includes any promises or inducements that have been made to obtain the witness's testimony. As we recently explained in People v. Phillips , [(1985)] 41 Cal.3d [29,] 46 [ 222 Cal. Rptr. 127 , 711 P.2d 423 ], `[s]ince a witness's credibility depends heavily on his motive for testifying, the prosecution must disclose to the defense and jury any inducements made to a prosecution witness to testify and must also correct any false or misleading testimony by the witness relating to any inducements. '" ( Morris, supra, 46 Cal.3d at pp. 29-30, italics added by Morris . )

In his brief, the Attorney General acknowledges "that under People v. Morris [, supra, ] 46 Cal.3d 1, 24-34 , the offers made to Mr. McFarland and Mr. Mikles were inducements which constituted substantial material evidence bearing on the credibility of both witnesses and should have been disclosed to the defense." The Attorney General argues, however, that the decision in Morris adopted an improper standard for determining whether evidence constitutes "substantial material evidence" which the prosecution is under a constitutional duty to disclose, and he urges us to reconsider this aspect of our decision in Morris .

In Morris , we specifically rejected the People's contention "that evidence is `material' only if there is a reasonable probability that its disclosure would affect the verdict," and concluded that "the prosecution's duty of disclosure extends to all evidence that reasonably appears favorable to the accused, not merely to that evidence which appears likely to affect the verdict." ( Morris, supra, 46 Cal.3d 1, 30, fn. 14 , original italics.) The Attorney General contends, however, that Morris 's holding on this point overlooked a pertinent passage in the United States Supreme Court's decision in United States v. Agurs (1976) 427 U.S. 97, 112-113 [ 49 L.Ed.2d 342, 354-355 , 96 S.Ct. 2392 ], and that Agurs supports the position, explicitly rejected in Morris , that the prosecution has a duty to disclose "only that evidence which has a reasonable probability of affecting the verdict if disclosed." (See also United *595 States v. Bagley (1985) 473 U.S. 667, 681-683 [ 87 L.Ed.2d 481, 493-495 , 105 S.Ct. 3375 ].)

(3a) In the present case, however, we need not determine whether the Morris decision properly interpreted the concept of "substantial material evidence" as discussed in applicable federal authority governing the prosecution's general constitutional obligation of disclosure, or whether, under that standard, the evidence of inducements in the present case constituted substantial material evidence subject to disclosure. Here, the prosecution's obligation to disclose the inducements provided to the jailhouse informants rested not simply on the prosecution's general duty to disclose "all substantial material evidence" to the defendant, but on its distinct and in some respects more basic duty, also explicitly recognized in Agurs, to correct any testimony of its own witnesses which it knew, or should have known, was false or misleading. (See United States v. Agurs, supra, 427 U.S. at pp. 103-104 [49 L.Ed.2d at pp. 349-350]. See also Napue v. Illinois (1959) 360 U.S. 264 [ 3 L.Ed.2d 1217 , 79 S.Ct. 1173 ]; Giglio v. United States (1972) 405 U.S. 150 [ 31 L.Ed.2d 104 , 92 S.Ct. 763 ].)

As noted above, at defendant's trial the deputy district attorney specifically elicited testimony from both Mikles and McFarland affirmatively stating that these witnesses had received no promises from anyone in return for their testimony. Although the prosecutor testified at the reference hearing that at the time of trial he was personally unaware of the promises of assistance that had been made to Mikles by members of the sheriff's and police departments, the governing federal decisions establish that the trial prosecutor's lack of personal knowledge of the false and misleading nature of a prosecution witness's testimony is not controlling. The United States Supreme Court has held that the state's duty to correct false or misleading testimony by prosecution witnesses applies to testimony which the prosecution knows, or should know, is false or misleading (see United States v. Agurs, supra, 427 U.S. at p. 103 [49 L.Ed.2d at pp. 349-350]), and has concluded this obligation applies to testimony whose false or misleading character would be evident in light of information known to other prosecutors, to the police, or to other investigative agencies involved in the criminal prosecution. (See, e.g., Giglio v. United States, supra, 405 U.S. 150, 154 [ 31 L.Ed.2d 104, 108-109 ] [information known to prior prosecutor]; United States v. Bagley, supra, 473 U.S. 667 , 670-672 & fn. 4 [ 87 L.Ed.2d 481, 486-488 ] [information known to federal investigators]; Barbee v. Warden, Maryland Penitentiary (4th Cir.1964) 331 F.2d 842, 846 [information known to investigating police officers]. See also Comment, The Prosecutor's Duty [to] Disclose: From Brady to Agurs and Beyond (1978) 69 J.Crim.L. & Criminology 197, 205-206; 2 LaFave & Israel, Criminal Procedure (1984) *596 § 19.5, pp. 553-534 & fn. 9.) Because in this case the inducements made to Mikles were known to, and indeed had been made by, the investigating officers who brought the informants to the prosecutor's attention, the prosecution had a duty to correct the false testimony concerning such inducements. [9]

(4) The Attorney General additionally argues that disclosure of the inducements was not required in this instance because the prosecutor testified at the reference hearing that he had understood the witnesses's testimony at trial — stating no "promises" had been made to them — to mean only that no promises of "guaranteed results" had been made to them; the Attorney General thus argues that, as so interpreted, the witnesses's testimony was neither false nor misleading. Their testimony at trial, however, was not explicitly qualified and was apt to be misleading to a lay jury. (See, e.g., United States v. Bagley, supra, 473 U.S. at pp. 683-684 [87 L.Ed.2d at pp. 494-495].) Although promises of "guaranteed results" may not have been made to the informants, the requirement of disclosure is not limited to inducements that take the form of a "guaranteed" benefit. Indeed, a number of recent decisions have observed that there may be an even greater danger that a witness may lie when the potential benefits that may flow from the witness's testimony are not specified ahead of time, than when the witness has been promised a specified benefit. (See, e.g., Morris, supra, 46 Cal.3d 1, 32 ; People v. Phillips (1985) 41 Cal.3d 29, 47-48 [ 222 Cal. Rptr. 127 , 711 P.2d 423 ].)

The recent Morris decision, which involved a similar commitment by law enforcement officers to use their best efforts to assist a prosecution witness in return for his testimony, speaks directly to this point: "`[U]nless the witness is informed both of the terms of the agreement and that his receipt of the benefit cannot be denied so long as he testified fully and truthfully at the criminal trial, the witness cannot help but believe that his own treatment will depend on how "well" he does.... [A] prosecutor's [or police officer's] insistence that the witness not be informed of the terms of the bargain has the inevitable tendency to lead the witness to color his testimony, so as to receive the most favorable treatment from the prosecutor.'" ( Morris, supra, 46 Cal.3d at p. 32 , italics in original, bracketed phrase added. See also *597 United States v. Bagley, supra, 473 U.S. 667, 683 [ 87 L.Ed.2d 481, 494-495 ].)

In fact, the testimony at the reference hearing of the deputy sheriff who dealt most directly with Mikles inadvertently revealed that the deputy may well have conveyed to Mikles the improper message that the treatment Mikles would receive would depend on how "well" he performed. As noted above, the deputy sheriff testified: "What I told Mr. Mikles I would do is if his information was productive information, and it could be used, and we could get a conviction, I would advise the district attorney that was handling his case of his assistance to us." (Italics added.) Past cases establish that the state may not offer a witness an inducement conditioned on the state's obtaining a conviction based on the witness's testimony, and that testimony elicited on the basis of such a condition may not properly be admitted at trial. (See, e.g., People v. Green (1951) 102 Cal. App.2d 831 [ 228 P.2d 867 ].) The Attorney General contends that the remainder of the deputy sheriff's testimony at the evidentiary hearing suggests that the deputy may have misspoken in stating she had informed Mikles that the authorities would assist him in attempting to obtain lenient treatment on his own charges only if Jackson were convicted. In any event, it is clear under Morris, supra, 46 Cal.3d 1 , that the absence of a "guarantee" to Mikles and McFarland that they would obtain a specified benefit as a result of their testimony provides no basis for relieving the prosecution of its obligation to correct the informants' false and misleading testimony at trial.

(3b) Accordingly, we conclude that because the prosecution should have known of the false and misleading nature of the informants' testimony, the prosecution was under a constitutional obligation to correct that testimony.

(5a) The question remains whether the prosecution's failure to correct the informants' false and misleading testimony was prejudicial with regard to the judgment as to guilt, the special circumstance findings, or the judgment as to penalty. (6) In United States v. Agurs, supra, 427 U.S. 97 , the United States Supreme Court explained that when the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." ( Id. at p. 103 [ 49 L.Ed.2d at p. 349 ].) Accordingly, we apply this standard — which generally has been equated with the "harmless beyond a reasonable *598 doubt" standard of Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] [10] — to the facts of the present case.

(5b) With regard to the judgment as to defendant's guilt of two counts of first degree murder and two counts of burglary, reversal clearly is not required. Defendant's own admissions to the police unquestionably established his guilt of the two burglaries and the two first degree murders on a felony-murder theory, and the testimony of the numerous witnesses other than the jailhouse informants confirmed defendant's admissions as to his complicity in each of the two separate incidents. Thus, with regard to the judgment as to guilt, there is no reasonable likelihood the false testimony of the jailhouse informants could have affected the jury's verdict.

With regard to the special circumstance findings, defendant vigorously contends the error was prejudicial. As defendant points out, under the 1977 death penalty statute applicable in this case, both of the special circumstances at issue applied only in the event the trier of fact found the defendant "was personally present during the commission of the act or acts causing [Mrs. Ott's] death, and with intent to cause death physically aided or committed such act or acts causing death...." (Pen. Code, former § 190.2, subd. (c).) Defendant maintains that because the most detailed evidence concerning his role in the incident involving Mrs. Ott was provided by the two jailhouse informants, there is at least a reasonable likelihood that the prosecution's failure to reveal and correct the informants' false testimony could have affected the jury's verdict as to the special circumstance findings. The referee agreed with defendant's position on this point.

For a number of reasons, we disagree with the referee's conclusion. First, defendant, in his own statement to the police, admitted personally participating in the beating of Mrs. Ott, acknowledging that he had hit her once *599 when she was lying in her bed. Although defendant did not admit striking the blow or blows that actually caused Mrs. Ott's death, the special circumstance was properly applicable to defendant even if he only "physically aided" the acts causing death, and his participation in the beating clearly satisfied that element since it helped to bring about the submission of the victim and rendered her less able to resist the attack. Furthermore, although defendant did not admit in his statement to the police that he acted with the intent to cause Mrs. Ott's death, his statement did acknowledge that he knew when he participated in the brutal beating of the elderly Mrs. Ott that, only a few days earlier, the elderly Mrs. Curtis had died from a similar assault in which defendant also had participated. Thus, defendant's own statement to the police went a long way toward proving the elements of the special circumstance allegations.

In addition, the testimony of defendant's neighbors and acquaintances, recounting the numerous statements that defendant made to them shortly after the crimes, clearly established that defendant had the requisite culpability required by the special circumstance allegations. As noted above, the testimony of a neighbor indicated that when Mrs. Curtis was being carried out of the apartment house on a stretcher, defendant stood outside the building, smiled, laughed, and boasted to a neighbor that " he was the one who did that." (Italics added.) Another acquaintance testified that when asked for an explanation of why he had committed the crimes, defendant stated that if Mrs. Curtis "had just been still — had been still and given him the money, that she would have been walking around today" (italics added), and that defendant had further described the two victims as "two old bags [who] were a nuisance and ... got what they deserved. " (Italics added.) Finally, defendant's cousin testified that when defendant saw a newspaper article reporting the deaths of the two victims, he stated, "This is what I did, that it was because I needed some money." (Italics added.)

In view of the strength of the evidence provided by defendant's own statement to the police and by the numerous noninformant witnesses describing defendant's statements and demeanor shortly after the crimes, we conclude there is no reasonable likelihood that the prosecution's failure to correct the false testimony of the jailhouse informants could have affected the jury's determination as to the special circumstance allegations.

Finally, defendant contends the error in question should be found prejudicial at least with regard to the judgment as to penalty. Defendant points out that (1) the only evidence the prosecution presented at the penalty phase related to the prosecution's claim that defendant forcibly inserted a wine bottle into Mrs. Ott's vagina, and (2) the jailhouse informants were the only *600 witnesses who testified defendant had admitted committing such an act. Defendant maintains that because the jury's decision to sentence defendant to death may have been influenced by the shocking and heinous nature of this incident, the prosecution's failure to disclose and correct the jailhouse informants' false testimony with regard to the inducements made to them requires that the death penalty be set aside and a new trial ordered as to penalty.

Again, we conclude that defendant's claim of prejudice cannot be sustained. To begin with, although defendant seeks to isolate and highlight the incident involving the wine bottle as the principal factor motivating the jury to impose the death penalty, it is far more likely that defendant's participation in two murders within a ten-day period, and his attitude and demeanor after the killings as reflected in his conduct and statements to his neighbors and acquaintances, played the key role in the jury's decision as to penalty. As we have seen, numerous witnesses testified that defendant laughed and repeatedly bragged about his role in brutally beating to death the two vulnerable, elderly women, describing the victims as "two old bags [who] were a nuisance and ... got what they deserved. " (Italics added.) The utter lack of remorse and extreme callousness demonstrated by defendant after the crimes could not help but weigh heavily in the minds of the jury in determining penalty.

Moreover, the jailhouse informants' testimony was not the only evidence linking defendant to the wine bottle incident. When the police informed defendant, as they questioned him after the crime, that his fingerprints had been found in Mrs. Ott's residence, defendant volunteered the information that he had touched a wine bottle on a table located next to Mrs. Ott's bed. Although in his statement to the police defendant did not acknowledge having used the bottle to sexually assault Mrs. Ott, it is apparent the jury reasonably would have drawn that conclusion without reference to the jailhouse informants' testimony, on the basis of the forensic evidence presented by the prosecution indicating that the wine bottle had been used in that fashion.

Thus, viewing the record as a whole, we conclude there is no reasonable likelihood the prosecution's failure to disclose and correct the false testimony of the jailhouse informants with regard to the inducements offered them could have affected the jury's penalty decision.

Accordingly, we conclude that defendant is not entitled to habeas corpus relief on this issue.

*601 III. ALLEGED INCOMPETENCE OF COUNSEL IN FAILING TO INVESTIGATE THE JAILHOUSE INFORMANTS

(7a) In addition to finding that the special circumstance findings should be set aside because of the prosecution's failure to disclose the inducements offered to the informant witnesses, the referee also found that defendant's trial counsel had failed to provide effective assistance of counsel with regard to the special circumstance allegations and that this failure constituted an independent ground for setting aside the special circumstance findings.

(8) As we have explained in numerous cases following the United States Supreme Court's decision in Strickland v. Washington (1984) 466 U.S. 668 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ]: "There are two components to a claim by a defendant that his counsel's assistance was so defective as to require reversal of a conviction or death sentence.... `First, the defendant must show that counsel's performance was deficient.' ... This requires a showing that `counsel's representation fell below an objective standard of reasonableness.' ... In evaluating a defendant's showing of incompetence, we accord great deference to the tactical decisions of trial counsel. `A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' ... [¶] The second component requires that the defendant show prejudice resulting from counsel's alleged deficiencies. `It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... [¶] 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.'" ( In re Marquez, supra, 1 Cal.4th 584, 602-603 , citations omitted.) (7b) The Attorney General challenges the referee's ineffective-assistance-of-counsel determination with regard to both of these components, asserting that trial counsel's performance relating to the special circumstance allegations was not constitutionally deficient, and that, in any event, the requisite degree of prejudice was not established.

In determining that trial counsel provided constitutionally deficient representation with regard to the special circumstance allegations, the referee relied on evidence presented at the evidentiary hearing establishing that trial counsel failed to undertake any investigation of Mikles and McFarland in an attempt to discover evidence that might reveal the informants' biases or motives to fabricate evidence, even though counsel was aware, several months before trial, of the prosecutor's intent to call the informants as *602 witnesses as to defendant's guilt and as to the special circumstance allegations.

At the reference hearing, defendant's trial counsel acknowledged that although the prosecutor had advised him informally well before trial of his intent to call Mikles and McFarland as witnesses, defense counsel intentionally had declined to conduct any investigation of the two informants. Defense counsel explained that although the prosecutor had notified him orally of his intent to call the two informants as witnesses, the prosecutor inadvertently had neglected to include the two informants on a witness list provided to the defense. Defense counsel testified as to his belief that if he could truthfully represent to the trial court that he had failed to undertake any investigation of the informants, the trial court might view his inaction as "detrimental reliance" on the incomplete witness list and might grant a pretrial motion to preclude the two prosecution witnesses from testifying at trial.

Defense counsel did make such a motion at the outset of trial, but the trial court denied the motion when it was disclosed that the defense had actual notice well in advance of trial that the prosecutor planned to call the two informants as witnesses. The court stated that, if necessary, it would grant defense counsel a continuance and funds for an investigator, but there is no indication that defense counsel ever followed up with an investigation at that late date.

The referee, although recognizing the apparent tactical nature of defense counsel's decision not to undertake any pretrial investigation of Mikles or McFarland, found that no reasonably competent criminal defense attorney would have made such a decision. The referee explained: "In light of the crucial nature of the testimony of Mikles and McFarland on the special circumstance allegations, and the obviously inadvertent nature of the prosecutor's omission of their names from the witness list furnished [to defense counsel], and the failure of [defense counsel] to seek formal discovery from the prosecution, it is the Referee's conclusion that no reasonably competent and experienced criminal defense lawyer would consider this failure to investigate a reasonable tactical decision."

In turning to the question whether counsel's deficient performance was prejudicial under the Strickland standard with regard to the special circumstance findings, the referee recognized that in this context the prejudice question involved two subsidiary inquiries: (1) what information would a reasonable investigation of the informants have revealed?, and (2) what effect would such information likely have had on the jury's determination?

*603 On the first point, the referee found on the basis of the evidence presented at the hearing that a reasonable investigation of the jailhouse informants would have disclosed a variety of evidence that would have been helpful to the defense in impeaching the informants' testimony. First, the referee found that such an investigation would have disclosed the inducements, discussed above, that had been sought by, and offered to, both informants in return for their testimony against defendant. Second, the referee found that an investigation of Mikles's background would have revealed that he was a former member of the Aryan Brotherhood, a White supremacist prison organization, information that could have been useful in demonstrating Mikles's possible bias against defendant, who is Black. This information also might have raised possible doubts as to the veracity of Mikles's general claim that defendant had confided in him and the veracity of Mikles's specific testimony that defendant had made a racist comment concerning the victims in this case. (See, ante, p. 588, fn. 5.) Finally, the referee found that an investigation would have disclosed that the two informants were acquainted with one another and that each was a "trusty" in the same section of the jail and was aware, prior to defendant's trial, that the other inmate was to testify at that trial. The referee indicated this information would have been useful to demonstrate that the informants had the opportunity to collaborate on their testimony so as to ensure consistency and thereby improve their chances of obtaining the benefits they hoped to receive from law enforcement officers.

With respect to the second point, the referee expressed the view that had information been presented to the jury that would have been disclosed by a proper investigation, "[i]t is reasonable to conclude that the jury would have rejected [the informants'] testimony as false and unbelievable, and found that the prosecution had not proven the special circumstance allegations." The referee stated in this regard: "Having listened to their testimony and observed their demeanor at the Reference Hearing, it is the Referee's conclusion that, had the impeachment evidence been presented at petitioner-defendant Jackson's trial, the jury in all likelihood, would have considered the testimony of McFarland and Mikles as being untrue, with the remaining evidence of the prosecution insufficient to sustain the special circumstance allegations."

The Attorney General takes issue with each of the referee's findings related to this claim. First, the Attorney General maintains that defense counsel's decision not to undertake any investigation of the informants' backgrounds, while ultimately unsuccessful, was not constitutionally deficient. The Attorney General acknowledges that although courts generally are reluctant to second guess the tactical decisions of counsel, such decisions are not totally immune from scrutiny and may fall below a constitutionally *604 minimal standard of competence. (See, e.g., People v. Frierson (1979) 25 Cal.3d 142, 166 [ 158 Cal. Rptr. 281 , 599 P.2d 587 ].) He argues, however, that the referee erred in finding that counsel's action fell into the latter category.

Additionally, the Attorney General challenges the referee's conclusions on both points relating to the issue of prejudice. With respect to the question what information would have been uncovered by a reasonable investigation, the Attorney General maintains that (1) defense counsel, a former deputy district attorney in Long Beach, knew at the time of trial that when an informant would cooperate in an investigation, it was the general practice for prosecutors to provide information regarding such cooperation to the judges handling any cases involving the informant, and there is no evidence that a reasonable investigation would have provided defense counsel with additional information, (2) no evidence was presented demonstrating how defense counsel would have learned of Mikles's membership in the Aryan Brotherhood, and (3) it was unlikely a reasonable investigation would have revealed that Mikles and McFarland had collaborated on their testimony, because neither informant was likely to have cooperated in any such investigation. With respect to the question of the likely effect on the jury's special circumstance findings, the Attorney General argues that (1) any additional information that an investigation might have uncovered was unlikely to have altered the jury's assessment of the informants' testimony, and (2) in any event, even if the jury were to discount the informants' testimony, there is no reasonable probability that the jury would have arrived at a different conclusion on the special circumstance allegations in view of the testimony provided by the noninformant witnesses.

We conclude there is no need to determine whether counsel's failure to investigate the background of the jailhouse informants was constitutionally deficient, because we have determined that the ineffective assistance claim can be resolved solely on the basis of the prejudice prong of the Strickland test. (9) As the United States Supreme Court explained in Strickland v. Washington, supra, 466 U.S. 668, 697 [ 80 L.Ed.2d 674, 699-700 ], "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."

(10) To prevail on an ineffective-assistance-of-counsel claim, a defendant must demonstrate a significantly greater likelihood of prejudice than a defendant is required to prove in order to prevail when the prosecution has failed to correct perjured testimony: the defendant must establish that there *605 is "a reasonable probability" that the error "would have" affected the judgment (see Strickland v. Washington, supra, 466 U.S. 668, 694 [ 80 L.Ed.2d 674, 697-698 ]), rather than simply that there is "any reasonable likelihood" that the error "could have" affected the result (see United States v. Agurs, supra, 427 U.S. 97, 103 [ 49 L.Ed.2d 342, 349-350 ]). (7c) In the preceding section of the opinion, we have concluded that the prosecution's failure to correct the informants' false and misleading testimony was not prejudicial under the "any reasonable likelihood" standard. In light of that conclusion, we conclude that defendant similarly has failed to demonstrate reversible error with regard to the ineffective-assistance-of-counsel claim.

It is true the referee found that defense counsel's assertedly deficient investigation resulted not only in the absence of evidence concerning the informants' false and misleading testimony with regard to inducements, but also in the failure to discover evidence of Mikles's former membership in the Aryan Brotherhood and of the opportunity for collaboration between Mikles and McFarland. Assuming, without deciding, that this evidence would have been discovered by a reasonable investigation and would have been admissible as additional impeachment material at trial, [11] counsel's alleged failing still would not have been prejudicial. As we already have explained, we have concluded in view of the strength of the prosecution's case based on the evidence other than the testimony of the jailhouse informants, that there is "no reasonable likelihood" the jury's determination of guilt, special circumstances, or penalty "could have" been affected by the revelation that the informants actually had lied on the witness stand. For the same reasons, we conclude that even taking into consideration the additional evidence that might have been introduced to impeach the informants, prejudice has not been demonstrated under the more demanding prejudice standard applicable to the ineffective-assistance-of-counsel claim.

Accordingly, we conclude that defendant has failed to establish sufficient prejudice to warrant reversal of the special circumstance findings, or of the penalty verdict, based on trial counsel's failure to conduct an investigation with regard to the jailhouse informants.

IV. ALLEGED INCOMPETENCE OF COUNSEL IN FAILING TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE WITH REGARD TO THE CIRCUMSTANCES OF DEFENDANT'S CHILDHOOD

On appeal and in an earlier habeas corpus petition which accompanied the appeal, defendant contended he had been deprived of his constitutional right *606 to the effective assistance of counsel at the penalty phase of his trial because defense counsel failed to call any mitigating witnesses on his behalf. In Jackson I, supra, 28 Cal.3d 264, 293-295 , we rejected this claim on the ground that defendant had "failed to demonstrate (by his petition for habeas corpus or otherwise) what mitigating evidence, if any" was available to his trial counsel. On that basis, the Jackson I court distinguished our then-recent decision in People v. Frierson, supra, 25 Cal.3d 142, 164-166 , where we reversed on similar grounds a judgment as to penalty, because the habeas corpus petition contained declarations from various witnesses revealing the mitigating evidence they would have provided on the defendant's behalf. We concluded instead, in Jackson I , that the controlling authority was People v. Durham (1969) 70 Cal.2d 171, 191-192 [ 74 Cal. Rptr. 262 , 449 P.2d 198 ], where we refused to overturn a judgment as to penalty in the absence of a showing of the mitigating evidence that would have been presented but for trial counsel's allegedly ineffective representation. ( Jackson I, supra, 28 Cal.3d at pp. 293-295.) Although one of the dissenting opinions in Jackson I took the position that the record before the court was sufficient to establish there was at least one witness who could have been called by defense counsel — defendant's elderly grandmother, Mattie Jackson, who had attended the trial daily (see id. at pp. 325-326 (dis. opn. by Mosk, J.)) — the majority opinion in Jackson I found that defense counsel had a reasonable tactical basis for not calling Mrs. Jackson as a witness: defense counsel believed she was senile and might prove to be a liability rather than an asset to defendant, because she insisted (despite defendant's own confession) that defendant was totally innocent of the crimes. ( Id. at p. 295.)

Defendant then filed the present habeas corpus proceeding in which, among other contentions, he renewed his claim of ineffective assistance at the penalty phase, supporting that claim with declarations from a substantial number of family members disclosing the mitigating evidence they assertedly would have provided had they been called as witnesses at the penalty phase. We issued an order to show cause and directed that the referee take evidence and make findings with regard to this claim.

At the evidentiary hearing, the defense presented evidence from five members of defendant's family (in addition to Mattie Jackson), who testified consistently to the very difficult, and often abusive, circumstances of defendant's young childhood, and who indicated they would have testified on defendant's behalf at the penalty phase had defendant's trial counsel so requested. We summarize the testimony of the witnesses as it relates to defendant's childhood.

(1) Defendant's father, Alfred Jackson, testified that when defendant was a very young infant, living in Arkansas, he cried all the time; as a result, his *607 mother was always angry with him and, according to their landlady, his mother frequently "whoop[ed]" him. As an infant, defendant had a bowel problem that required surgery; after the surgery the doctor who performed the operation kept defendant in the doctor's own home for four months because the doctor believed defendant was being abused. Defendant's mother wanted the doctor to keep defendant permanently, but because defendant's father wanted his son back, defendant was returned to the family home. Shortly thereafter, when defendant was nine months of age, defendant's mother and father "tore up" their apartment in a fight which took place in defendant's presence, after which defendant's mother said she did not wish to live with either defendant or defendant's father.

Defendant's father then took defendant to live with Mattie Jackson, defendant's paternal grandmother, and defendant lived there for the next four years. Although defendant's mother lived only 40 miles away, she rarely visited defendant. One day, however, defendant's mother unexpectedly appeared and took defendant away. Two months later, a police officer notified defendant's father that defendant's mother had left defendant with a woman in Ohio and had not come back for him for fifteen days.

Shortly thereafter, defendant's mother remarried, and defendant went to live in the Watts section of Los Angeles with his mother and her new husband, Robert Hackworth, Sr. Defendant's father testified that he visited his son in Los Angeles when defendant was approximately six years of age. At the time, defendant had sores on his head from some kind of hair-straightening chemical that his mother had applied. In addition, defendant had a two-inch-long scab on his hand which defendant said had resulted from a beating inflicted by his stepfather.

(2) Defendant's aunt, Freddie Mae Hall, also testified that after defendant was born, defendant's mother and father did not get along, and because defendant's mother did not wish to take care of defendant, he went to live with his grandmother from the age of nine months until he was five years of age. When defendant reached that age, he went to live with his mother and her new husband, residing with them for two or three years, until defendant's mother began bringing defendant to Mrs. Hall and asking her to take him in for varying periods of time, ranging from two weeks to two months. Mrs. Hall testified that defendant's mother told her that she (defendant's mother) and defendant's stepfather fought a lot, and that although defendant's stepfather paid attention to his own son, Robert Hackworth, Jr., the stepfather did not like defendant and did not wish him to reside in the family home.

Mrs. Hall stated that defendant appeared happy while at her house and liked to play with her daughter, but that just when he would begin to adjust *608 to being in her home, his mother would return without notice and take him away. Mrs. Hall stated she never enrolled defendant in school because he was never with her for a long enough period of time. She recalled that on one occasion, defendant's father paid to enroll him in a military school and bought him new school clothes, but on the day the clothes were purchased defendant's mother showed up unexpectedly and forcibly took defendant home with her. Mrs. Hall said defendant was "hollering" he did not want to go home with his mother, and told Mrs. Hall he was terrified of going there because his stepfather beat him unmercifully for no reason at all.

Mrs. Hall recounted another incident that occurred when she visited defendant at his mother's home when he was eight years of age. She testified that on this occasion, the house smelled like human flesh, and she observed skin peeling off the face and neck of defendant's stepfather. Defendant's mother explained she had had an argument with her husband and had thrown hot water on him. Defendant, who had been present during the encounter, was cowering in the back room. At that time there were red sores on defendant's head, and his mother stated she had burned it while using a homemade solution to straighten his hair.

(3) Defendant's uncle by marriage, John Hall (Freddie Mae Hall's husband), testified he had accompanied his wife on the visit to defendant's mother's home when defendant was eight years of age. He testified the two-room apartment was filthy; roaches were running all over, and there were rat droppings by the door. Defendant's stepfather was pulling dead skin off his face, and defendant was cowering in a corner of the back room, crying, shaking, and appearing very frightened. Mr. Hall gave defendant some money, and defendant's stepfather allowed defendant to take his younger half-brother to a nearby store to make a purchase. When the boys returned, however, defendant's stepfather slapped defendant, stating, "I told you not to get this, boy, you can't do nothing right." Defendant's mother did not intervene.

Mr. Hall also testified that when defendant was eight or nine years of age, defendant hitchhiked to Mr. and Mrs. Hall's home in Long Beach, telling Mr. Hall defendant's stepfather had been beating him up and he could not stand it anymore. Defendant stayed with the Halls until his mother found out where he was and took him back home. Mr. Hall said defendant was happy at the Halls but was also confused, because he never knew when his mother was going to come to take him away.

Finally, Mr. Hall testified defendant's stepfather always treated his own natural son differently from defendant. Although the stepfather showed love *609 to his own child, he used angry, cursing language when speaking to defendant.

(4) Another of defendant's paternal aunts, Lucy Mae Trotter, testified that when she lived with defendant at his grandmother's house, he was a good little boy. She also testified that subsequently, when defendant was approximately seven years of age and living with his mother and stepfather, defendant's mother called and told her defendant's stepfather was "beating up" on defendant and had put him in the hospital. Ms. Trotter said defendant's mother told her that defendant's stepfather would beat him in order to take money which defendant had earned or in order to force defendant to obtain a job.

(5) Defendant's half brother, Robert Hackworth, Jr., who was three years younger than defendant, testified that their mother "wasn't too up to par," and, for example, would tell the boys that persons were coming to the house to kill them, and then would run out of the house and leave the boys alone.

He also confirmed the testimony of the other witnesses that his father (defendant's stepfather) repeatedly abused defendant. Defendant's half brother described one incident, when defendant was approximately eight or nine years of age, in which defendant attempted to intervene in a fight between his mother and his stepfather. Defendant's stepfather hit defendant on the head with a bottle, sending him to the hospital. On another occasion in which defendant attempted to break up a fight between his mother and his stepfather, his stepfather hit him on the side with a board, again hospitalizing defendant.

Finally, defendant's half brother testified that, in general, his father treated him much differently from defendant. Although his father often would give him things, the father would give little to defendant. Defendant's half brother testified that although he felt he was loved in the home, defendant was treated "like a dog."

The referee found that had defendant's trial counsel conducted a reasonable investigation of potential mitigating evidence for the penalty phase, he would have discovered all of the above witnesses. The referee further indicated that, in his view, had the witnesses testified at the penalty phase, "[i]t is reasonably probable that ... the mitigating evidence would have evoked the response in the jury to give [defendant] a life sentence rather than the death penalty."

(11a) The Attorney General acknowledges that a reasonable investigation of potential mitigating evidence for the penalty phase would have *610 disclosed the above witnesses who testified in defendant's behalf at the evidentiary hearing: they were close relatives of defendant who either were already known to defense counsel (Alfred Jackson and Freddie Mae Hall) or readily could have been discovered. The Attorney General maintains, however, that the referee's conclusion nonetheless is erroneous on three separate grounds. First, he asserts that defense counsel's testimony at the reference hearing demonstrated that counsel had a reasonable tactical basis for declining to undertake an investigation into defendant's childhood, and thus that counsel's representation was not constitutionally deficient. Second, he contends that even if counsel should have conducted such an investigation and should have discovered the foregoing evidence of defendant's difficult childhood, defense counsel's testimony at the reference hearing indicates that, for tactical reasons, counsel still would not have introduced that evidence at the penalty phase. The Attorney General maintains that, in view of the state of the law at the time of trial, the failure to introduce such evidence would not have been constitutionally deficient. Third, the Attorney General argues that even if the mitigating evidence that was disclosed at the evidentiary hearing had been introduced at the penalty phase, there is no reasonable probability that the penalty verdict would have been different in light of the nature of the crimes at issue in this case and defendant's attitude concerning the crimes as revealed by his almost-contemporaneous statements to neighbors and acquaintances.

(12) As noted, the referee's resolution of mixed questions of law and fact is subject to independent review by this court. ( In re Marquez, supra, 1 Cal.4th 584, 603 .) "`Mixed questions [in the context of a claim of ineffective assistance of counsel] "include the ultimate issue, whether assistance was ineffective, and its components, whether counsel's performance was inadequate and whether such inadequacy prejudiced the defense."'" ( Ibid. )

(11b) In undertaking our independent review, we turn first to the question whether counsel's representation was deficient, i.e., whether it "fell below an objective standard of reasonableness." ( Strickland v. Washington, supra, 466 U.S. 668, 688 [ 80 L.Ed.2d 674, 693-694 ].) (13) As explained above, "[i]n evaluating a defendant's showing of incompetence, we accord great deference to the tactical decisions of trial counsel. `A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' [Citation.]" ( In re Marquez, supra, 1 Cal.4th 584, 603 , italics added.)

(11c) At the reference hearing, defendant's trial counsel testified he was aware at the time of trial, from conversations with defendant's father and *611 defendant's grandmother, that defendant had had a difficult childhood and may have been abused, but that he (trial counsel) decided, for tactical reasons, not to conduct an investigation of defendant's background or to present any mitigating evidence at the penalty phase. Counsel explained that he made the decision not to present any mitigating evidence so as to keep from the jury evidence of prior violent conduct committed by defendant, specifically evidence that in 1976, one year before the crimes here at issue, defendant had punched two young women in the face with a closed fist. The trial court had ruled that the prosecution would be precluded from introducing this evidence in its case-in-chief at the penalty phase because the prosecution had failed to give defendant timely notice of its intent to introduce such evidence at the penalty phase (see Pen. Code, § 190.3, ¶ 4), and defense counsel explained he believed that were he to present any evidence in mitigation, there was a risk the trial court would permit the prosecution to introduce this evidence of defendant's prior violent conduct in rebuttal.

Defendant's trial counsel indicated his strategy at the penalty phase was to emphasize to the jury the inconclusiveness of the evidence that defendant, rather than one or more of his accomplices, had played the primary role in beating the two elderly women so brutally, and counsel stated his belief that the damage to defendant's case that would result in the event evidence of defendant's prior violent conduct were admitted at the penalty phase outweighed any benefit defendant might receive from having his family testify in his behalf. In response to a question from defendant's counsel in the habeas corpus proceedings, defendant's trial counsel stated he had made a tactical decision not to call any witnesses at the penalty phase "regardless of how many family members that [he] could have found to come to court and testify at the penalty phase, and regardless of how compelling their testimony was concerning [defendant's] extremely bad experiences as a child."

The referee found that trial counsel's tactical decision not to conduct an investigation of defendant's background and not to present any mitigating evidence "cannot be considered a reasonable decision" under prevailing professional standards. Suggesting that counsel's tactical decision was based on a misconception concerning the proper scope of rebuttal evidence, the referee found that counsel failed to appreciate that mitigating evidence relating to the abusive treatment defendant received as a child could have been introduced by the defense without opening the door for the prosecution's introduction of evidence of defendant's prior violent conduct. Furthermore, the referee suggested that even if defendant's trial counsel had doubts as to whether the introduction of particular mitigating evidence would open the door for the introduction of evidence of defendant's prior violent conduct *612 in rebuttal, defense counsel's course of conduct was an unreasonable one because he could have requested an in limine hearing under Evidence Code section 402 and obtained an advance ruling on the evidentiary question.

The Attorney General maintains initially that defense counsel's failure to undertake an investigation of defendant's childhood may be sustained as a reasonable tactical decision, but on this point we agree with the referee's determination. As we explained in our recent decision in In re Marquez, supra, 1 Cal.4th 584 , 606: "In some cases, counsel may reasonably decide not to put on mitigating evidence, but to make that decision counsel must understand what mitigating evidence is available...." Here, counsel testified that he decided that evidence of defendant's prior violent conduct, which he believed would be admissible in rebuttal, would outweigh any mitigating evidence, but he made that determination without conducting any investigation to discover what mitigating evidence was available. As in Marquez , "[counsel's] decision not to find out ... cannot be supported as a tactical choice." ( Ibid. )

Thus, we conclude that defendant's trial counsel, by failing to conduct a reasonable investigation of defendant's background and childhood to enable him to make an informed decision as to the best manner of proceeding at the penalty phase, failed to provide competent representation under the prevailing professional standards.

The question of prejudice remains. As we already have noted, the Attorney General concedes that had defendant's trial counsel conducted a reasonable investigation of defendant's childhood, he would have discovered the evidence of childhood abuse that appellate counsel presented at the reference hearing. The Attorney General maintains, however, that the testimony of defendant's trial counsel at the reference hearing makes it clear that even had counsel conducted such an investigation and discovered all of the foregoing evidence, trial counsel, for tactical reasons, would not have introduced this evidence at the penalty phase. The Attorney General argues that under these circumstances, there is no reasonable probability that defense counsel's failure to investigate defendant's background affected the jury's penalty determination, because the penalty phase would have been conducted in exactly the same manner in the event trial counsel had conducted such an investigation.

Defendant acknowledges that his trial counsel's testimony at the reference hearing indicates that counsel would not have called any of defendant's relatives as witnesses at the penalty phase, even had counsel learned the details of their potential testimony through a more complete investigation. *613 Defendant maintains, however, that if his trial counsel, after conducting an investigation and discovering the evidence of childhood abuse defendant had suffered, for tactical reasons had refrained from introducing that evidence at the penalty phase, counsel's decision not to introduce the mitigating evidence would itself have constituted constitutionally deficient representation, and thus cannot properly serve as a basis for finding that counsel's failure to investigate was nonprejudicial.

The Attorney General does not suggest that defense counsel's testimony, that he would not have introduced the mitigating evidence, would render harmless counsel's initial failure to investigate if the failure to introduce such evidence would itself amount to constitutionally deficient representation. The Attorney General argues, however, that had counsel declined to introduce the mitigating evidence for the tactical reason disclosed at the reference hearing, counsel's representation would not have fallen below an objective standard of reasonableness and would not have been constitutionally deficient.

Thus, as part of the prejudice determination in this case, we must determine whether counsel's representation would have been constitutionally deficient if, for the tactical purpose expressed at the reference hearing, counsel had refrained from introducing the evidence that would have been discovered by a reasonable investigation.

In defending the reasonableness of counsel's tactical determination not to introduce such evidence, the Attorney General initially takes issue with the referee's legal conclusion as to the proper scope of rebuttal evidence at the penalty phase. The Attorney General argues that, contrary to the referee's conclusion, the prosecution properly could have introduced evidence of defendant's prior acts of violence on rebuttal, had defendant's family members testified concerning the physical and psychological abuse inflicted upon defendant when he was a child. In People v. Ramirez (1990) 50 Cal.3d 1158, 1191-1193 [ 270 Cal. Rptr. 286 , 791 P.2d 965 ], however, we concluded that the trial court in that capital proceeding had erred in permitting the prosecution at the penalty phase to introduce evidence of the defendant's prior misconduct in response to testimony by the defendant's mother disclosing the adverse circumstances experienced by the defendant in his early childhood. In Ramirez , we explained that under the limits on rebuttal evidence recognized in this court's earlier decision in People v. Rodriguez (1986) 42 Cal.3d 730, 792 , footnote 24 [ 230 Cal. Rptr. 667 , 726 P.2d 113 ], the prosecution is not permitted to go beyond the aspects of the defendant's background on which the defendant has introduced evidence. Thus, when a defendant confines his mitigating evidence to the adverse circumstances of *614 his childhood, the prosecution may not "introduce evidence of a course of misconduct that defendant had engaged in throughout his teenage years that did not relate to the mitigating evidence" presented by defendant. ( Ramirez, supra, 50 Cal.3d at p. 1193 .) Therefore, under the current governing case law, it is now clear that the referee was correct in concluding that defendant's trial counsel could have introduced evidence of defendant's abused childhood without opening the door to the prosecution's introduction of evidence of defendant's prior violent assault.

Although defense counsel's understanding of the scope of rebuttal evidence presently can be characterized as mistaken, such an error, in itself, would not necessarily demonstrate that counsel's performance was constitutionally deficient. The trial in this case preceded the decisions in Rodriguez, supra, 42 Cal.3d 730 , and Ramirez, supra, 50 Cal.3d 1158 , by many years. Although these decisions applied to the penalty phase of a capital proceeding the preexisting, generally applicable limits on rebuttal evidence, we are aware from our familiarity with the trials conducted in Rodriguez, Ramirez, and other capital cases (see, e.g., People v. Miranda (1987) 44 Cal.3d 57, 119-122 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ]) that, before this court specifically addressed and resolved this issue in our Rodriguez and Ramirez decisions, the applicability of the limits on rebuttal evidence to the unusual evidentiary material admissible at the penalty phase of a capital trial was a frequent source of uncertainty for both trial counsel and trial courts. When we eliminate, as we must, the potentially distorting effects of hindsight (see Strickland v. Washington, supra, 466 U.S. 668, 689 [ 80 L.Ed.2d 674, 694-695 ]), we conclude that the confusion of defendant's trial counsel on this legal question at the time of defendant's trial was not so unreasonable as to demonstrate that a tactical decision not to offer this evidence (or to request a hearing under Evid. Code, § 402), based on such a mistake, would have fallen below the level of constitutionally adequate representation.

Defendant further contends that even if trial counsel's concern, that introduction of the mitigating evidence would open the door to admission of the prosecution's evidence of defendant's prior violent criminal activity, was not unreasonable when viewed from counsel's perspective at the time of trial, a tactical decision not to present the mitigating evidence nonetheless would fall below a standard of objective reasonableness because such a decision would leave the jury without any mitigating evidence to consider on defendant's behalf. (14) Although mitigating evidence concerning the circumstances of a defendant's childhood and background often is of crucial importance at the penalty phase, providing information through which the jury can make an "individualized" determination as to the appropriate sentence (see In re Marquez, supra, 1 Cal.4th 584, 607-609 ), defense counsel, in determining whether to present such information, properly may take *615 into account the detrimental consequences that may result from the introduction of such evidence, including the nature of the evidence that the prosecution may elicit either on cross-examination of the proposed defense witnesses or on rebuttal. (See, e.g., People v. Miranda, supra, 44 Cal.3d 57, 120-122 .)

(11d) In this case, defendant's trial counsel explained at the reference hearing why he placed such a high priority on keeping the prosecution from bringing before the jury, either on cross-examination of defendant's relatives or on rebuttal, the fact that defendant previously had committed violent assaults on two women, repeatedly striking one in the face with his fist. Counsel believed that defendant's best chance to avoid the death penalty rested on the argument that the jury at least should entertain a "lingering doubt" as to defendant's role in the underlying offenses, because, in counsel's view, the evidence did not rule out the possibility that one or more of defendant's accomplices in the capital crimes had inflicted the bulk of the injuries on the victims. Counsel had relied on a similar argument in urging that the jury reject the special circumstance allegations, and, although the argument had proved unsuccessful in that setting, counsel believed the jury might entertain enough of a "lingering doubt" on this point to lead it to reject a death sentence. Counsel felt that if the jury were to learn that defendant had, on an earlier occasion, personally engaged in similar violent assaults on two women and repeatedly had punched one of the women in the face with a closed fist, any remaining doubt as to defendant's personal responsibility for the beating deaths of the two elderly victims would have been eliminated.

The transcript of defendant's trial reveals that in his closing argument at the penalty phase — an argument which we found "reasonable" in Jackson I, supra, 28 Cal.3d 264 , 295 — defense counsel did, in fact, advance this lingering-doubt argument, maintaining that from the evidence the jury could not know "the degree of participation" of each of the young men who together had engaged in the crimes. Although another attorney reasonably might have made a different tactical decision, we cannot say that defense counsel's tactics rendered his representation constitutionally deficient. As we have explained, in this context it is appropriate to "accord great deference to the tactical decisions of trial counsel" ( In re Marquez, supra, 1 Cal.4th 584, 603 ), and to make every effort to avoid second-guessing counsel on the basis of hindsight.

Accordingly, we conclude that although defense counsel should have conducted a reasonable investigation of defendant's childhood, defendant has failed to demonstrate the existence of a reasonable probability that counsel's failure to do so affected the penalty determination.

*616 V. CONCLUSION

We summarize our conclusions on the issues presented in this proceeding.

1. We conclude that defendant has failed to establish that his admissions to the jailhouse informants were elicited by law enforcement officers in violation of United States v. Henry, supra, 447 U.S. 264 .

2. We conclude that defendant has established that law enforcement officers offered inducements to the jailhouse informants for their testimony at defendant's trial and that the prosecution failed to correct the informants' false and misleading testimony with regard to such inducements. On the question of prejudice, however, we conclude that the constitutional error was not prejudicial with regard to the judgment as to guilt, the special circumstance findings, or the judgment as to penalty.

3. We conclude there is no need to determine whether defendant's trial counsel provided deficient representation with regard to the special circumstance allegations, because in any event counsel's failings in this regard were not prejudicial.

4. We conclude defendant has established that his trial counsel provided deficient representation in failing to investigate the availability of mitigating evidence with regard to defendant's childhood. We also conclude, however, that counsel's failure to investigate was not prejudicial in this case, because had counsel conducted such an investigation and discovered the evidence that ultimately was presented at the reference hearing, counsel nonetheless would have refrained, for tactical reasons, from introducing such evidence at the penalty phase. Contrary to defendant's contention, such a tactical decision would not have constituted deficient representation. Accordingly, there is no reasonable probability that the judgment as to penalty was affected by counsel's failure to conduct such an investigation.

The order to show cause, issued November 27, 1981, in this proceeding, is discharged, and the petition for writ of habeas corpus is denied.

Lucas, C.J., Panelli, J., Arabian, J., and Baxter, J., concurred.

MOSK, J.

I dissent.

It is a melancholy truth that as the final arbiter of the meaning and effect of the California Constitution, this court can with impunity deny our citizens rights guaranteed by that charter. What this court cannot do with impunity is *617 deny our citizens rights guaranteed by the United States Constitution. In the case at bar the majority attempt to do exactly that.

First, in the capital trial of this petitioner the prosecution failed to correct testimony by its key informant witnesses that it knew or should have known was false. Under decisions of the United States Supreme Court directly in point, this failure violated petitioner's right to due process of law guaranteed by the Fifth Amendment to the federal Constitution, made applicable to the states through the Fourteenth Amendment. The standard of prejudice governing that constitutional violation is also a matter of federal law, declared and enforced by the United States Supreme Court and the federal courts. The majority purport to apply that standard to the facts of this case, and hold the federal constitutional violation harmless. As will appear, however, to reach that result the majority distort the meaning of the federal standard and misstate the record. Yet in neither respect will the majority have the last word. If petitioner seeks federal habeas corpus relief, the federal courts will both decide the correct meaning of the federal standard of harmless error and make an independent examination of this record to determine prejudice. I am confident that such examination will show the constitutional violation in this case to be prejudicial.

The same is true of the second and third grounds of relief at issue in this proceeding — the incompetence of trial counsel in failing to investigate the perjurious witnesses for impeachment evidence and in failing to investigate petitioner's background for mitigating evidence. Each is a violation of petitioner's right to the effective assistance of counsel guaranteed by the Sixth Amendment, and the standard of prejudice governing that violation is likewise a matter of federal law. Again the majority purport to apply that standard to the facts and hold the violations harmless, but reach that result by distorting the meaning of the standard and misstating the record. Again the federal courts, on an application for federal habeas corpus relief, will have the last word. And again I believe the violations will be held prejudicial.

In this opinion, therefore, I write primarily for the benefit of my federal colleagues. I deeply regret that petitioner must turn to another forum to vindicate his federal constitutional rights. When those rights are violated in a California state court, as they were here, the primary responsibility to redress the violation falls on the California judiciary. A majority of this court have twice had the opportunity to shoulder that responsibility in the case at bar (see also People v. Jackson (1980) 28 Cal.3d 264, 319-336 [ 168 Cal. Rptr. 603 , 618 P.2d 149 ] [dis. opn. of Mosk, J.] (hereafter Jackson I )), but have *618 twice failed in the task. Fortunately for petitioner, on the questions in issue this Supreme Court is neither infallible nor final. [1]

I. Prosecution's Knowing Use of Perjured Testimony

As part of its case-in-chief at petitioner's trial the prosecution presented the testimony of two jailhouse informants, Mark Mikles and Ronald McFarland. On direct examination each of these witnesses testified to highly incriminating admissions that petitioner assertedly made to him while in custody. Each witness also acknowledged that he was currently under or facing sentence on prior felony convictions. On cross-examination defense counsel sought to impeach each witness on the ground of bias by asking questions suggesting that the witness expected to receive various sentencing benefits in exchange for his testimony against petitioner. On redirect examination the prosecutor sought to rehabilitate each witness by eliciting testimony in which each squarely denied that anyone in law enforcement had promised him anything for testifying against petitioner. The testimony denying such promises, it now appears, was false, and the prosecution either knew or should have known it was false.

A. The Mikles Testimony

The record on this issue is unusually clear; indeed, with respect to the perjury of the informant Mikles it verges on the overwhelming. Mikles testified in petitioner's trial on December 27, 1978. As of that date, Mikles was in custody as a result of three separate criminal proceedings:

First, on March 22, 1978, Mikles was given concurrent sentences of six years each on two counts of robbery by then-Judge John A. Arguelles of the *619 Los Angeles Superior Court, sitting in Department South K in Long Beach (case No. A018325). [2]

Second, on April 13, 1978, Mikles pleaded guilty to two counts of robbery before Judge William A. Munnell of the Los Angeles Superior Court, sitting in Department Southeast K in Norwalk (case No. A443866). [3] Mikles had not yet been sentenced on these charges when he testified eight months later in petitioner's trial. The significance of this fact is explained below.

Third, at the time of petitioner's trial a federal parole hold was in place against Mikles to enforce a pending 42-month sentence for federal parole violation.

At petitioner's trial, defense counsel noted that Mikles had not yet been sentenced in the Norwalk case and suggested that the witness had a strong desire for the forthcoming sentence in that case to run concurrently with his six-year term in the Long Beach case. Mikles replied that is exactly what would happen, claiming it was "part of the plea bargain" he had made in April 1978. On redirect examination the prosecutor reinforced the point by asking Mikles whether it was true that his plea bargain in the Norwalk case "had no bearing" on his decision to testify against petitioner; Mikles answered, "That is correct."

Apparently unsatisfied, defense counsel returned to the topic and expressed surprise that if Mikles truly knew what his sentence on the Norwalk charges would be he still had not been sentenced eight months after pleading guilty in that case. On further redirect examination the prosecutor sought to rehabilitate the witness by inviting Mikles to explain the long sentencing delay. In reply, Mikles testified that he had not yet been sentenced because the police had "new evidence" proving his innocence of the robbery charges in the Norwalk case. Driving the point home, the prosecutor then asked Mikles, "In other words, the reason you have not been sentenced in Norwalk on the Norwalk charges is not because of anything to do with your testifying in this case [i.e., in petitioner's trial]?" Mikles reiterated, "It is new evidence in my robberies is what it is."

This testimony was false: as will appear in more detail below, Mikles's true reason for seeking to delay his sentencing in the Norwalk case was simply to give him more time to curry favor with law enforcement authorities — and through them, with judges — by testifying as an informant in petitioner's trial and other trials as well.

*620 Mikles's boldest lies, however, came in response to the prosecutor's broader effort to insulate him against any inference that "anyone" ever promised him "anything" for testifying against petitioner. On redirect examination the following colloquy took place:

"Q. [by the prosecutor] Now, had you ever asked anyone — the sheriffs, District Attorney, police — anything in return for your telling them about the statement that Jackson made to you?

"A. [by Mikles] Have I ever been promised anything?

"Q. Well, for example, did you tell any officer or DA or sheriff, Hey, I have got something to tell you, but you have to give me something in return? And I will tell you only if you give me something. Anything like that?

"A. No. It doesn't work that way."

After the prosecutor established that he never personally promised Mikles any benefit for testifying, the following colloquy occurred:

"Q. [by the prosecutor] All right. Now, did anyone, up to the time that you have testified now on this witness stand — did anyone — when I say, `anyone,' I include sheriffs, police, District Attorneys; in other words, anyone in law enforcement — did anyone — probation officers — did anyone promise you anything in exchange for your testifying about the conversation that Jackson had with you?

"A. [by Mikles] Just a lot of protection.

".... .... .... .... .... .... ....

"Q. Is that about all?

"A. That's it."

The utter falsity of this testimony was exposed at the reference hearing, where Mikles told a very different version of the events. That version was corroborated by an unimpeachable law enforcement witness, by documentary exhibits, and by the actual dispositions of the cases against Mikles.

To begin with, Mikles admitted at the reference hearing that in March or April 1978, shortly after being sentenced in the Long Beach case and pleading guilty in the Norwalk case, he turned informant in the hope of ameliorating his punishment in those two matters. To this end he contacted *621 Los Angeles Deputy Sheriff Lavona Shea, who was known to work with informants, and offered to furnish information in several major cases, including petitioner's. Mikles testified as follows:

"Q. [by counsel for petitioner] Did you tell [Deputy Shea] you wanted something in exchange for testifying against Mr. Jackson ... when you discussed it with her, did you say, `I want something back for what I'm going to tell you in testifying' and so forth?

"A. [by Mikles] Yes, I did.

"Q. What did you tell her you wanted?

"A. Well, I told her that I wanted my judge to know — to take it into consideration, because, you know, I had cases pending."

According to Mikles, Deputy Shea promised him she would make sure that in the Long Beach and Norwalk cases Judges Arguelles and Munnell were told of his cooperation, provided he actually testified for the prosecution in the cases in which he had information. Mikles conceded that Shea's promise was "one of the reasons" he subsequently testified against petitioner. Mikles then testified that Shea also agreed to assist him in seeking a reduction of the 42-month sentence he was facing for federal parole violation, and "that was another reason" why he testified against petitioner.

The terms of the deal were succinctly summarized in the following exchange:

"Q. [by the prosecutor] Sir, when you began cooperating with Lavona Shea, when you sat down and negotiated with her, you discussed three objectives that you had in mind, correct?

"A. [by Mikles] Yes.

"Q. The first objective was to get your state prison sentence of six years modified to whatever — however much you could reduce it, correct?

"A. Yes.

"Q. Second objective was to get as little or no time, if possible, in the pending Norwalk case before Judge Munnell, correct?

"A. Yes.

"Q. And lastly, one of your objectives in working — in negotiating this deal with Lavona Shea, or this understanding, whatever you want to call it, *622 was to get your parole violation, the 42 months that were hanging over your head at the time, cut down to something less or nothing, is that true?

"A. Yes, it is.

"Q. With those thoughts in mind, sir, did you assure — did Deputy Shea assure you that she would do whatever she could to help you, if you helped her?

"A. Yes." [4]

As Mikles subsequently acknowledged, Deputy Shea "fulfilled all her promises" to him. Her assistance took several forms. Mikles's first problem was the fact that in the Norwalk case he was scheduled to be sentenced on May 16, 1978, i.e., before he would have the opportunity to testify against petitioner and the defendants in two other murder cases. The solution was for Shea to help Mikles obtain continuances of that sentencing hearing until he could give such testimony. After Mikles acknowledged that Shea was present when Judge Munnell finally sentenced him, the following exchange took place:

"Q. [by counsel for petitioner] Well, she was there on previous occasions, too, when you were continuing the sentencing, because the judge wanted to get the case over with and she urged — she helped you get the continuances you needed, right?

"A. [by Mikles] Yeah, she got a continuance.

"Q. She helped you get it continued, and you wanted to keep getting it continued so you could work up enough points, so to speak, with the People of the State of California and law enforcement so that Judge Munnell would just let you take a walk on those cases, right?

"A. I don't know if I was building points, but, like I said, I had some — I knew I was testifying in those three cases ... and wanted to wait until I was done testifying, yes."

With Deputy Shea's assistance, the sentencing hearing in the Norwalk case was then continued for two months, and ultimately for a total of nine months until February 26, 1979. At the reference hearing Mikles agreed that the reason for seeking these continuances was to give him more time to *623 testify for the People in more cases, and thus "help them get more convictions" with the goal of "currying favor with law enforcement."

According to Mikles, Deputy Shea also fulfilled her promises to make Judges Arguelles and Munnell aware of his services in testifying for the People. She repeatedly assured him that the fact and extent of his cooperation would be conveyed to the two judges both by letters and in person by her or by other law enforcement personnel. And she was as good as her word: he testified that Shea appeared both at the sentencing hearing in the Norwalk case and at a hearing on May 31, 1979, to modify Mikles's sentence in the Long Beach case, and on each occasion she spoke to the court on Mikles's behalf.

Finally, under questioning by counsel for petitioner Mikles admitted that at the time he turned informant in March and April 1978 he knew that "the more serious a case that [he] was going to testify in," the more consideration he would receive from Judges Arguelles and Munnell, and he also knew of instances in which "informants had lied about what they claimed to have overheard and [had] gotten away with the lies and got out of jail, too." Mikles further admitted that "one of the most important things in [his] entire life at that time was to get out of jail," and that he would have done "whatever [he] had to do to get out of jail" short of killing someone. None of these dramatic admissions, of course, were heard by the jury in petitioner's trial. [5]

The version of the facts that Mikles told at the reference hearing was amply corroborated. First, Deputy Shea testified to essentially the same effect. [6] She testified that Mikles contacted her through the intermediary of another informant; that before meeting with him she checked his criminal record and learned he was under a six-year sentence in the Long Beach case, *624 was awaiting sentence in the Norwalk case, and was facing a forty-two-month federal sentence for parole violation; and that in her several meetings with Mikles he informed her of incriminating statements assertedly made to him by petitioner and by defendants in other murder cases. When asked what she promised Mikles in exchange for such information, she replied: "What I told Mr. Mikles I would do is if his information was productive information, and it could be used, and we could get a conviction, I would advise the district attorney that was handling his case of his assistance to us." She explained that it was the practice for prosecutors to serve as "channels" of such information, i.e., they would convey it to the sentencing judges in the cases against Mikles.

But Deputy Shea did far more than that for Mikles. First, in the Norwalk case she helped him get the sentencing continuances he wanted: as she testified, "I probably contacted the district attorney's office and asked them if they could continue the case and told them why.... He was working as an informant, and I advised them that he was still working and it would help if they could get the case continued." The prosecutors evidently complied with her requests.

Second, on January 19, 1979 — i.e., only 16 working days after Mikles testified against petitioner and before the trial had even ended — Deputy Shea wrote a letter to the Los Angeles Probation Department "to supply additional and pertinent information for your consideration" in preparing Mikles's probation report. In the letter Shea reported that Mikles had testified for the prosecution in petitioner's trial and that "according to [Deputy District Attorney Paul] Marin" — the prosecutor in that trial — "Mikles' testimony was extremely significant especially regarding the aggravation aspect which was the basis for the death penalty." [7]

Third, Deputy Shea acknowledged at the reference hearing that when Mikles was finally sentenced in the Norwalk case on February 26, 1979, "I testified on his behalf." According to Shea, she told the court "what he had done over a period of a couple of years, the cases he had testified in, because most of them were major murder cases, as with your client. And I just provided the information from the witness stand that he had testified in these various cases. And that he had always been extremely reliable."

Fourth, Deputy Shea testified that she also appeared at the hearing on April 5, 1979, on Mikles's application for modification of the six-year *625 sentence that Judge Arguelles had imposed on him in the Long Beach case. The transcript of that proceeding was admitted into evidence at the reference hearing (petitioner's exhibit 22) and hence is properly before us. It discloses the following sequence of events. The first five witnesses were law enforcement officers who briefly stated that in several prior cases Mikles had furnished reliable information or given testimony helpful to the prosecution. The sixth and final witness was Deputy Shea, who made a far more partisan presentation on Mikles's behalf. First, Judge Arguelles acknowledged receipt of a copy of Shea's above discussed letter of January 19, 1979, to the probation department. Shea then described to Judge Arguelles additional information that Mikles had furnished after she wrote that letter. [8] She next identified three investigators who were unable to attend the hearing but who, she asserted, "would testify" that Mikles gave them reliable information in still other cases.

Deputy Shea's testimony then turned remarkably personal. She told Judge Arguelles that she was in contact with Mikles "on a weekly basis"; that Mikles's wife and son had moved out of the area in the hope that he might receive "some consideration" (i.e., from Judge Arguelles) and upon his release might start a new life in a place free from criminal temptations; and that because Mikles had testified as an informant in the five cases she had mentioned, "it would be very difficult for him to go back into the criminal element." [9]

*626 Deputy Shea concluded by an apparent appeal to Judge Arguelles's sympathy. She testified that to her knowledge Mikles "has a minimum of three contracts out on his life" and "his wife and child have been threatened." And she went so far as to argue that Mikles had served the first year of his six-year sentence in county jail, which she asserted was "two or three times" more difficult a way to do time than in a state or federal prison, "and the reason he has done this time in county jail rather than a, shall we say, for lack for a better term, more luxurious situation, has been because he has been testifying in these five cases for the prosecution."

After Deputy Shea testified, Judge Arguelles noted for the record that he had also received a number of letters and telephone calls from other law enforcement personnel on Mikles's behalf. He concluded, "I have been virtually inundated with requests from persons, so they must feel very strongly about the defendant [Mikles] to come forward in the quantity and with the quality of recommendations that I have received. So all of this individually [and] cumulatively has to have an impact on me." I discuss that impact below.

Mikles's recanting testimony at the reference hearing is further corroborated by three documentary exhibits that the referee specifically relied on and appended to his supplemental report filed in this court on September 21, 1989. The first document (appen. A) is Deputy Shea's above discussed letter of January 19, 1979, to the probation department. The second document (appen. B) is a letter that Judge Arguelles announced he would write at the end of the sentence modification hearing on April 5, 1979, asking the Director of Corrections to formally request him (Judge Arguelles) to recall his 1978 commitment of Mikles for the purpose of modifying the sentence. In the letter Judge Arguelles explained to the Director of Corrections that six law enforcement officers had testified that day on Mikles's behalf and "The substance of the testimony was that the defendant [Mikles] had been of considerable value to all of their agencies as a prosecution witness in murder and robbery cases. Even this week he was testifying on their behalf."

The third document (appen. C to referee's supplemental rep.) is a letter from the Los Angeles Sheriff's Office to federal parole authorities "for *627 presentation to the Federal Parole Hearing Board." [10] The letter recited the details of Judge Arguelles's modification of Mikles's sentence (discussed below) and stated that although the trials in two additional murder cases in which Mikles testified (People v. Luna and People v. Humphries) resulted in mistrials because of hung juries, both were scheduled for retrial and Mikles would again testify for the prosecution. The letter ended, "Hopefully, this letter and information enclosed will be reviewed and consideration will be given in behalf of Mark S. Mikles."

The final corroboration of Mikles's recanting testimony is the dramatic sentencing benefits he received for his services as an informant. First, on February 26, 1979, in the Norwalk case, Judge Munnell granted Mikles four years' probation with no time in custody, as punishment for his conviction — before he testified against petitioner — on two counts of armed robbery.

Second, on May 31, 1979, in the Long Beach case, Judge Arguelles rescinded the sentence of two concurrent terms of six years each that he had imposed on Mikles as punishment for his conviction — before he testified against petitioner — on two counts of armed robbery. At the outset of the sentence modification hearing on April 5, 1979, Judge Arguelles had asked the prosecutor what lesser sentence his office intended to request; the prosecutor had replied that his office took the position that a reduction of two years, leaving a sentence of four years in prison, "would be fair." Despite this recommendation by the prosecutor, Judge Arguelles granted Mikles four years' probation with no time in custody, and ordered him released forthwith.

Third, the referee found that the federal authorities thereafter removed their hold on Mikles and that he served no part of his previously pending 42-month sentence for federal parole violation. [11]

In sum, the record establishes beyond question that Mikles lied under oath at petitioner's trial when he denied that "anyone" in law enforcement promised him "anything" for testifying against petitioner. On the contrary, he was richly rewarded for that testimony, as he fully expected to be.

B. The McFarland Testimony

The second informant, McFarland, did not do so well, but it was not for want of trying. He, too, was promised certain benefits for testifying against petitioner, and he, too, lied about it under oath.

*628 When McFarland testified in petitioner's trial (Dec. 29, 1978, and Jan. 3, 1979) he was in custody on a felony conviction: on May 26, 1978, he had been convicted of three counts of armed robbery in a trial before Judge D. Sterry Fagan of the Los Angeles Superior Court, sitting in Department South C in Long Beach, and on June 23, 1978, Judge Fagan had sentenced him to consecutive terms of five years to life on two of those counts and a concurrent term of five years to life on the third count. Six months later, at petitioner's trial, defense counsel sought to learn precisely what happened at that sentencing hearing.

McFarland began by acknowledging that at the outset of the sentencing hearing his then-counsel, Deputy Public Defender Dennis Carroll, requested and obtained an order clearing the courtroom. When asked why the courtroom was thus cleared, McFarland testified it was because "I didn't want nobody in there that I didn't know," and specifically because he was in protective custody. [12] Defense counsel then suggested that the real reason why Carroll wanted the courtroom cleared was that he intended to urge leniency because McFarland had agreed to testify against petitioner. McFarland flatly denied that was the reason. Defense counsel then focused on Carroll's ensuing argument to Judge Fagan, and suggested that the real reason Carroll gave for urging leniency was that McFarland had agreed to testify against petitioner. Again McFarland denied that was the reason, asserting that Carroll had stressed instead his youth and amenability to reform. Although McFarland finally and reluctantly admitted that Carroll "mentioned" he had agreed to testify against petitioner, he repeatedly testified that it was not a reason that Carroll gave for his plea of leniency. As will appear, this testimony was false.

On redirect examination the prosecutor sought to rehabilitate McFarland, as he had done with Mikles, by eliciting testimony to the effect that "no one" promised him "anything" for testifying against petitioner.

"Q. [by the prosecutor] Mr. McFarland, is it true that you saw me for the first time last week?

"A. [by McFarland] Yes, sir.

"Q. And is it true that no one promised you anything in exchange for your testimony against Mr. Jackson?

"A. Yes, that's right.

*629 "Q. Now, when you were up in this court last June 23, 1978, when you were convicted by way of being sentenced on the robbery charges of which this Court found you guilty, as you indicated, was I here in court?

"A. No, sir.

"Q. Was there a District Attorney present at the time you were sentenced and convicted on that date of June 23, '78?

"A. Yes, sir.

"Q. And did that District Attorney make any statements in your presence to the Court that the sentence should be lenient because you were going to testify in the Jackson case?

"A. No, sir."

At the reference hearing, however, a much different picture emerged. Counsel for petitioner confronted McFarland with the transcript of his sentencing hearing before Judge Fagan on June 23, 1978. That transcript reported Carroll as advising Judge Fagan that the reason he asked for the courtroom to be cleared was because McFarland was cooperating with the prosecution in the Jackson case and had agreed to testify concerning statements that petitioner assertedly made to him. McFarland reluctantly acknowledged the truth of what the transcript reported. [13] Counsel for petitioner asked whether anyone in law enforcement had promised or told him of any benefit he would receive for his testimony, and McFarland replied, "I was promised nothing at all or told nothing." Counsel then confronted the witness with another portion of the transcript of the sentencing hearing, in which Carroll advised Judge Fagan that McFarland "is asking the court [to] consider retaining jurisdiction in this case for this reason: Mr. Marin, the prosecutor in the Jackson case, indicated he may write a letter to the sentencing authorities at the completion of that case in support of perhaps a review at that time of Mr. McFarland's sentence." To make such a review possible, Carroll also asked Judge Fagan to retain jurisdiction over McFarland's case.

McFarland acknowledged that Carroll made the quoted statement to Judge Fagan on his behalf. And when asked again whether he knew before his sentencing that Judge Fagan would be made aware of his agreement to testify against petitioner, McFarland reluctantly admitted that "I asked my *630 attorney to — I believe I asked him to mention it to the judge if, you know, maybe it would help my sentence out a little."

Attorney Carroll also testified at the reference hearing, and acknowledged making the above quoted statement to Judge Fagan at McFarland's sentencing hearing. Carroll testified to two letters that Deputy District Attorney Marin agreed, prior to McFarland's sentencing, to write on McFarland's behalf. First, Carroll testified that on April 6, 1978, he met with Marin and another deputy district attorney to negotiate a plea bargain for McFarland, but that both prosecutors declined to recommend the lighter sentence he proposed. [14] Carroll testified that after failing to obtain his bargain he asked Marin at least to write a letter to "the prison authorities" requesting that McFarland be transferred to Arizona to serve his time in that state, because he had family there and because his life could be at risk in a California prison after he testified against petitioner. According to Carroll, Marin replied that he did not know if such a transfer to Arizona were possible, but "he had no objection" to writing such a letter.

Second, Carroll testified about the letter referred to in his above quoted statement to Judge Fagan, i.e., a letter that Marin would write to Judge Fagan after petitioner's trial, advising the judge that McFarland had indeed testified against petitioner. Carroll testified that although he did not know whether Marin actually wrote a letter to Judge Fagan about McFarland's testimony against petitioner, "He agreed to write such a letter." Indeed, Carroll testified that he thereupon told McFarland "what Mr. Marin had promised to do, i.e., write a letter to the judge after the Jackson case was over."

Nothing in the record contradicts the foregoing testimony. [15] In my view the testimony is ample to support the referee's finding that Marin agreed he would write two distinct letters on McFarland's behalf after the latter had testified against petitioner. It follows that McFarland, like Mikles, lied under oath at petitioner's trial when he claimed that "no one" promised him "anything" in exchange for his testimony against petitioner.

*631 C. The Governing Federal Law

It is a fundamental rule of federal constitutional jurisprudence that the due process clause of the Fourteenth Amendment "cannot tolerate a state criminal conviction obtained by the knowing use of false evidence." ( Miller v. Pate (1967) 386 U.S. 1, 7 [ 17 L.Ed.2d 690, 694 , 87 S.Ct. 785 ].) The rule has its roots in Mooney v. Holohan (1935) 294 U.S. 103 [ 79 L.Ed. 791 , 55 S.Ct. 340 , 98 A.L.R. 406 ]. There a petitioner convicted of murder in the California courts alleged that the sole basis of his conviction "was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him." ( Id. at p. 110 [ 79 L.Ed. at p. 793 ].) On these allegations he claimed a violation of the due process clause of the Fourteenth Amendment and sought federal habeas corpus. In his return — in the nature of a demurrer — the California Attorney General argued that due process required only notice and opportunity to be heard. The United States Supreme Court held that the petitioner's allegations, if true, would warrant relief from his conviction. Rejecting the Attorney General's position, the high court reasoned: "we are unable to approve this narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. [Citation.] It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation." ( Id. at p. 112 [ 79 L.Ed. at p. 794 ].)

It is true that in the case at bar the prosecution did not solicit the false testimony but simply failed to correct it when it appeared; the prosecutor who presented the perjurious witnesses did not personally know their testimony was false; and the false testimony did not go to an element of the prosecution's case but merely to the witnesses' credibility. Yet in two cases that are "the leading Supreme Court rulings in this area" ( Zeigler v. Callahan (1st Cir.1981) 659 F.2d 254, 263 ) the high court dismissed these facts as distinctions without a difference. The two cases, as will appear, are directly in point.

The first is Napue v. Illinois (1959) 360 U.S. 264 [ 3 L.Ed.2d 1217 , 79 S.Ct. 1173 ] (hereafter Napue ). There, one Hamer testified for the prosecution *632 and identified Napue as a coparticipant in the charged robbery-murder. The jury had been told that Hamer was serving a long sentence on his earlier conviction for the same crime. On cross-examination for bias, Hamer claimed only that an unnamed public defender had said he would try to "do what he could" for him. ( Id. at p. 268, fn. 3 [ 3 L.Ed.2d at p. 1220 ].) When defense counsel asked directly whether anyone had promised any benefit for testifying, Hamer replied, "There ain't nobody promised me anything." On redirect examination the prosecutor drove the point home by asking the witness, "Have I promised you that I would recommend any reduction of sentence to anybody?" Again Hamer replied, "You did not." ( Id. at p. 267, fn. 2 [3 L.Ed.2d at pp. 1219-1220].)

The testimony was false. After Hamer testified against Napue and another participant in the same murder, the prosecutor in Napue's trial filed a coram nobis petition on Hamer's behalf in which he alleged that Hamer had been reluctant to testify against Napue without an assurance that the prosecution would recommend a reduction of his sentence, and the prosecutor had therefore represented to Hamer that if he cooperated in the prosecution of Napue and others "a recommendation for a reduction of his [Hamer's] sentence would be made and, if possible, effectuated." The prosecutor then asked the court to effect a "consummation of the compact" he had thus entered into with Hamer. ( Napue, supra, 360 U.S. at p. 266 [ 3 L.Ed.2d at p. 1219 ].)

When Napue learned of Hamer's perjury he sought postconviction relief, but was unsuccessful in the state courts. The United States Supreme Court unanimously reversed, holding that the prosecutor's failure to correct the testimony of Hamer that he knew to be false denied Napue due process of law in violation of the Fourteenth Amendment.

The high court first reasoned that "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103 .... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." ( Napue, supra, 360 U.S. at p. 269 [3 L.Ed.2d at pp. 1220-1221].)

Next the high court addressed the question of the nature of the false testimony: "The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative *633 of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." ( Napue, supra, 360 U.S. at p. 269 [3 L.Ed.2d at pp. 1220-1221].)

Turning to the question of prejudice, the high court denied that it was bound by the determination of the state supreme court that Hamer's false testimony could not in any reasonable likelihood have affected the verdict: "The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate." ( Napue, supra, 360 U.S. at p. 271 [ 3 L.Ed.2d at p. 1222 ].)

The state supreme court had found the constitutional violation harmless because the jury had other grounds for disbelieving Hamer — it knew that an unnamed public defender had told Hamer he would "do what he could" for him. The high court rejected that conclusion, reasoning that if the jury had also known of the promise made to Hamer by the prosecutor, "it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration." ( Napue, supra, 360 U.S. at p. 270 [3 L.Ed.2d at pp. 1221-1222].)

The second leading case is Giglio v. United States (1972) 405 U.S. 150 [ 31 L.Ed.2d 104 , 92 S.Ct. 763 ] (hereafter Giglio ). There the high court extended the rule of Napue, supra, 360 U.S. 264 , to the situation in which the prosecutor who presented the perjurious witness did not know that the witness had in fact been promised a benefit for testifying. In Giglio , one Taliento testified for the prosecution and identified the petitioner as a coparticipant in the crime; although Taliento was named as a coconspirator, he was not indicted. On cross-examination for bias, defense counsel asked Taliento whether "anybody" told him "at any time" that if he testified he would not be prosecuted; Taliento replied, "Nobody told me I wouldn't be prosecuted." ( Id. at p. 151 [31 L.Ed.2d at pp. 106-107].) In closing argument to the jury, the assistant United States attorney emphasized that Taliento "received no promises that he would not be indicted." ( Id. at p. 152 [31 L.Ed.2d at pp. 107-108].)

The testimony was false, but the assistant United States attorney who tried the case did not know it. Prior to trial another assistant United States *634 attorney — who had presented the case to the grand jury — had indeed promised Taliento that if he testified at trial he would not be prosecuted. The United States Supreme Court unanimously reversed the ensuing judgment of conviction, relying principally on Napue, supra, 360 U.S. 264 . The court explained that the failure to disclose the promise to the prosecutor did not require a different result: "whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government." ( Giglio, supra, 405 U.S. at p. 154 [31 L.Ed.2d at pp. 108-109].)

In both Napue and Giglio the testimony of the perjurious witness was crucial to the prosecution's case. [16] In such circumstances it is not surprising that the high court spent little time on the question of prejudice. The rule that emerged from the two decisions, however, was that a conviction obtained by the knowing use of false testimony must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." ( United States v. Agurs (1976) 427 U.S. 97, 103 [ 49 L.Ed.2d 342, 349-350 , 96 S.Ct. 2392 ], citing Napue, supra, 360 U.S. at p. 271 [ 3 L.Ed.2d at p. 1222 ], and Giglio, supra, 405 U.S. at p. 154 [31 L.Ed.2d at pp. 108-109].)

As the majority herein point out (maj. opn., ante, pp. 597-598), this standard of prejudice "generally has been equated with the `harmless beyond a reasonable doubt' standard of Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]." In a footnote at this point (fn. 10) the majority quote Justice Blackmun's analysis in United States v. Bagley (1985) 473 U.S. 667, 679, 680 , footnote 9 [ 87 L.Ed.2d 481, 492-493 , 105 S.Ct. 3375 ]: "The Court in Chapman noted that there was little, if any, difference between a rule formulated, as in Napue , in terms of `"whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,"' and a rule `"requiring the *635 beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."' [Citation.] It is therefore clear, as indeed the Government concedes, ... that this Court's precedents indicate that the standard of review applicable to the knowing use of perjured testimony is equivalent to the Chapman harmless-error standard."

Whether formulated as a rule requiring a reversal if the court finds "any" reasonable likelihood that the constitutional violation "could have affected" the verdict, or as a rule requiring reversal unless the beneficiary of the violation "proves beyond a reasonable doubt" that the violation did not "contribute" to the verdict, this is a high standard of prejudice — indeed, the highest that the law requires the state to meet in order to save a tainted conviction. But the need for such a standard is clear: as explained in United States v. Agurs, supra, 427 U.S. 97, 104 [ 49 L.Ed.2d 342, 350 ], the high court applies this standard in cases of knowing use of perjured testimony "not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process." In short, they affect `the honor and integrity of the sovereign's administration of justice ... because they are subversive of the institution of fair trial itself.'" ( Link v. United States (8th Cir.1965) 352 F.2d 207, 211 .)

It has fallen primarily to the federal appellate courts to implement the rule of Napue, supra, 360 U.S. 264 , and Giglio, supra, 405 U.S. 150 . Under their authority, numerous federal appellate courts have reversed convictions of federal crimes because the government violated the due process clause of the Fifth Amendment by failing to correct testimony of its witnesses that it knew or should have known was false — most often, as here, false testimony denying that the witnesses had been promised benefits for cooperating with the prosecution. ( United States v. Iverson (D.C. Cir.1980) 637 F.2d 799 ; United States v. Barham (5th Cir.1979) 595 F.2d 231 ; United States v. Butler (9th Cir.1978) 567 F.2d 885 ; United States v. Sanfilippo (5th Cir.1977) 564 F.2d 176 ; United States v. Pope (9th Cir.1976) 529 F.2d 112 ; United States v. Kaplan (7th Cir.1972) 470 F.2d 100 ; see also U.S. v. Rivera Pedin (11th Cir.1988) 861 F.2d 1522, 1529-1530 [witness falsely denied talking with friend of defendant about being paid not to testify for prosecution]; United States v. Sutton (4th Cir.1976) 542 F.2d 1239 [no false testimony, but prosecutor falsely assured the jury there had been no threats to his witness].)

Because the same rule applies to the states through the due process clause of the Fourteenth Amendment, other federal appellate courts have granted federal habeas corpus relief to petitioners convicted of state crimes under *636 similar circumstances ( Brown v. Wainwright (11th Cir.1986) 785 F.2d 1457 ; Campbell v. Reed (4th Cir.1979) 594 F.2d 4 ; United States ex rel. Wilson v. Warden Cannon, etc. (7th Cir.1976) 538 F.2d 1272 ; Boone v. Paderick (4th Cir.1976) 541 F.2d 447 ; Hamric v. Bailey (4th Cir.1967) 386 F.2d 390, 393-395 ) or have found sufficient grounds to remand the matter to the federal district court for an evidentiary hearing ( Blankenship v. Estelle (5th Cir.1977) 545 F.2d 510 ; Reickauer v. Cunningham (4th Cir.1962) 299 F.2d 170 ).

D. Application of the Governing Federal Law to Petitioner's Case

On the record in this case it is clear that petitioner's right to due process of law under the Fourteenth Amendment was violated when the prosecution failed to correct the testimony of the informants Mikles and McFarland falsely denying that anyone had promised them any sentencing benefits for their cooperation. The majority so conclude (maj. opn., ante, p. 597), and I agree with them on this point. [17]

I do not agree, however, with the majority's further conclusion that this patent violation of petitioner's federal due process rights was harmless. As the foregoing cases illustrate, in this context the correct procedure is for the appellate court to answer two questions in sequence: First, if the prosecutor had performed his constitutional duty to disclose to the jury that his witness falsely denied any promise of benefits, would the jury have disbelieved the remainder of the witness's testimony? Second, if the jury had disbelieved the remainder of the witness's testimony, would its rejection of that testimony have affected its verdict?

Curiously, the majority neither ask nor answer the first question: their prejudice analysis appears to assume that if the jury had known of the false testimony of Mikles and McFarland it would have rejected their testimony in toto. While I agree with that assumption in this case, it may not be true in other cases. The referee made a specific finding on the point, and it deserves a few words in the interest of clarity.

*637 Disclosure that a witness lied under oath when he denied that anyone promised him anything in exchange for his testimony undermines the remainder of his testimony in two separate but cumulative ways. First, it discloses that the witness had a specific incentive to lie: the jury could well conclude that a witness who had been promised valuable sentencing benefits if he testified for the prosecution would be likely to color or even fabricate his testimony in an effort to please the prosecutor and "earn" the benefits. As the referee in the case at bar observed in his original report, "The informer witness has every reason to believe that the stronger his testimony may be against a defendant, irrespective of its truth, the more likely the law enforcement officers' promises of assistance will result in leniency from the judges capable of providing leniency." Indeed, the United States Supreme Court recognized in Napue, supra, 360 U.S. at page 269 [3 L.Ed.2d at pages 1220-1221], that "it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." [18]

Second and no less important, the disclosure demonstrates that the witness has not only the incentive but also the ability and willingness to lie: the jury could well conclude that a witness who actually lied under oath in one part of his testimony — when he denied any promise of benefits — has shown that he would be able and willing to lie in the remainder of it. This is the psychological truth that is captured in the maxim, falsus in uno, falsus in omnibus. [19]

In the case at bar, therefore, disclosure that Mikles and McFarland falsely denied any promise of benefits would have been devastating to their credibility, because it would have demonstrated that they had both the incentive to lie under oath and a history of doing so in this very trial. Coupled with the content of their testimony at the reference hearing, moreover, is the manner in which they testified. On the basis of that experience the referee found as follows in his original report: "Having listened to their testimony and observed their demeanor at the Reference Hearing, it is the Referee's conclusion that, had the impeachment evidence been presented at petitioner-defendant Jackson's trial, the jury, in all lik[e]lihood, would have considered the testimony of McFarland and Mikles as being untrue...." This is a purely factual finding supported by ample substantial evidence, and we *638 should therefore adopt it in answering the first question in the prejudice analysis. [20]

The second question in the prejudice analysis is as follows: assuming, as do the majority, that the jury would have disbelieved the testimony of Mikles and McFarland in its entirety, is there "any reasonable likelihood" that its rejection of that testimony "could have affected" its verdict? The majority conclude there is no such possibility, but the record and the federal decisions are clearly to the contrary.

1. The Special Circumstance Findings

I begin with the first contested issue — the effect of the error on the special circumstance findings. [21]

Petitioner was tried under the 1977 death penalty law. (Pen. Code, former § 190 et seq.; Stats. 1977, ch. 316, p. 1256.) The information charged petitioner with the murders of Mrs. Curtis and Mrs. Ott, but the prosecution sought the death penalty only for the Ott murder: the amended information charged petitioner with two special circumstances relating to that crime, viz., that the Ott murder was willful, deliberate, and premeditated and was committed during the course of a burglary (Pen. Code, former § 190.2, subd. (c)(3)(v)) and that petitioner committed an additional first degree murder by killing Mrs. Curtis ( id., subd. (c)(5)). The jury found both allegations true. As the majority acknowledge, however, under the 1977 death penalty law neither of the special circumstances alleged in this case could be found true unless the jury also found that petitioner was personally present during the commission of the act causing Mrs. Ott's death and that he physically aided or committed such acts "with intent to cause death." ( Id., subd. (c).) The amended information therefore alleged these matters, and the jury also found such allegations true. It is the latter findings that petitioner now attacks, particularly the finding that he aided or committed the fatal act "with intent to cause [Mrs. Ott's] death."

In his original report the referee found that if the jury had known the truth about Mikles and McFarland it would have not only rejected their testimony *639 as unbelievable but would also have deemed "the remaining evidence of the prosecution insufficient to sustain these special circumstance allegations." I recognize that the latter finding of the referee resolves a mixed question of law and fact and hence is subject to our independent review. ( In re Marquez, supra, 1 Cal.4th 584, 603 .) As will appear, however, a fair reading of the record compels us to reach the same conclusion as the referee on this question.

The majority find no prejudice because of "the strength of the evidence provided by [petitioner's] own statement to the police and by the numerous noninformant witnesses describing [petitioner's] statements and demeanor shortly after the crimes" (maj. opn., ante, p. 599). In other words, the majority disregard the testimony of Mikles and McFarland, weigh the remaining testimony, and conclude it has such "strength" that there is no "reasonable likelihood" the error "could have affected" the jury's determination of the special circumstance allegations. Or, to use the alternate wording of the same standard of prejudice, the majority in effect conclude that the noninformant evidence is of such "strength" that it "proves beyond a reasonable doubt" that the error did not "contribute" to that determination. I cannot agree. The evidence relied on by the majority for this purpose is far too weak to support the heavy burden placed on it by the controlling federal law.

The majority first invoke petitioner's own statements to the police. The crimes against Mrs. Curtis occurred on August 29, 1977, and she died four days later; the crimes against Mrs. Ott occurred on September 7, 1977. Petitioner voluntarily surrendered to the police at 4:30 p.m. on September 17, 1977; the police arrested, fingerprinted, and identified him, and began taking a tape-recorded statement from him shortly after 5 p.m. In that statement petitioner denied any involvement in the crimes against either victim, and the police soon terminated the interrogation. The police told petitioner they did not believe his story, and he agreed to tell the truth. The police then brought in the homicide detectives who had been assigned to the cases, and a second tape-recorded interrogation, lasting half an hour, began shortly after 6 p.m.

In the second statement petitioner made a number of incriminating admissions. Insofar as relevant here, petitioner admitted the elements of his guilt of felony murder in each case: he acknowledged that he and one or more confederates broke into the apartment of each victim at night with intent to steal, and that during the commission of each burglary the victim received a fatal beating. With respect to the Ott murder, petitioner also admitted two elements required for proof of the special circumstance allegations: he *640 admitted that he was personally present during the commission of the acts causing Mrs. Ott's death — i.e., the infliction of the fatal beating — and that he physically aided the commission of those acts by striking one blow himself; as the majority point out, that blow helped to bring about the submission of Mrs. Ott to the will of her assailants.

As the majority also concede, however, nothing in petitioner's statements to the police concerning the Ott murder constituted an admission of the third — and equally necessary — element of the charged special circumstances, i.e., that he acted with intent to cause Mrs. Ott's death. On the contrary, insofar as disclosed by petitioner's statements his intent was simply to steal. [22] When asked why he entered Mrs. Ott's apartment, petitioner replied, "To find the money; that's all." He added, "That's all we was gonna do is [find the money] and leave." When asked what he was looking for when he proceeded to search the apartment, he replied, "For money; that's all." Petitioner said that when Mrs. Ott awoke and a confederate seized her, "I went to her and I asked her where was the money at...." And petitioner said that when he thereafter shook Mrs. Ott two or three times, "All I was trying [to do] was to make her tell where the money was, but she wouldn't tell. So, you know, we left.... We just got the T.V. and stuff and left."

Finding no evidence of intent to cause death — because there is none — in petitioner's statements describing the burglary of Mrs. Ott's apartment, the majority stress that petitioner admitted to the police that when he participated in the assault on Mrs. Ott he knew Mrs. Curtis had died a few days earlier from the effects of a similar assault in which he had also participated. But there is less here than meets the eye. It is true the jury could reasonably infer from petitioner's knowledge of the death of Mrs. Curtis that in participating in a similar assault on Mrs. Ott, a person of similar age, he acted recklessly or with gross negligence. But the statute (Pen. Code, former § 190.2, subd. (c)) required more: it required proof beyond a reasonable doubt that petitioner specifically intended to kill Mrs. Ott, which is a wholly distinct state of mind. There is a continuum from innocent inattention to culpable negligence to wanton recklessness; but the difference between the *641 latter and actual intent to kill is not simply a further difference in degree — it is a difference in kind. In plain words, it is the difference between doing an act without caring what its consequences may be, and consciously intending that the act kill a specific human being.

Thus the mere fact that petitioner knew Mrs. Curtis had recently died in a similar assault was not sufficient to support an inference that he specifically intended to kill Mrs. Ott; something more was needed. For example, if the prosecution had proved that petitioner intentionally killed Mrs. Curtis as part of a modus operandi to prevent his burglary victims from identifying him, then the fact that a few days later a similar victim died at his hands in a similar fashion would have supported an inference that the latter killing was also intentional. But the prosecution had essentially no evidence at all that petitioner intended to cause Mrs. Curtis's death — even Mikles and McFarland were no help on the point. This fact is confirmed by two salient features of the prosecution's case. First, the prosecutor proceeded only on a felony-murder theory as to Mrs. Curtis, expressly advising the jury not to concern itself with whether he had proved premeditation and deliberation. Second, as to the Curtis murder the prosecutor made no effort to allege and prove a special circumstance and seek the death penalty; at the time, of course, all special circumstances required proof of intent to cause the victim's death.

The majority next rely on three noninformant witnesses who testified to certain remarks that petitioner assertedly made in their presence shortly after the crimes. Whether taken singly or collectively, however, these remarks also fail to furnish — as the majority claim — "strong" evidence of the missing element of the prosecution's case, i.e., that petitioner aided in the commission of the fatal acts with intent to cause Mrs. Ott's death.

The majority first stress a remark attributed to petitioner by Ilena Gaines, an upstairs neighbor of Mrs. Curtis. Gaines testified that on August 29, 1977, while Mrs. Curtis was being removed from her apartment on a stretcher, petitioner came up the street, stopped on the sidewalk, smiled or laughed, and said that "he was the one who did that." But even if Gaines's testimony were trustworthy, which it is not, [23] the remark she attributed to petitioner is weak and inconclusive evidence on the issue before us. First, even if *642 petitioner had been referring to the death of Mrs. Ott rather than Mrs. Curtis, an admission that he "did that" would have established, if believed, only that he was a cause in fact of her death; it would not have established that he intended to cause the death. The same remark, obviously, could also be made by one who caused the death by accident, by negligence, or by recklessness — or by any unintended killing in the course of a burglary. Second, in assertedly making the quoted remark petitioner was in any event not referring to the death of Mrs. Ott — who was still alive — but to the death of Mrs. Curtis, a death that even the prosecution did not contend that petitioner intended to cause.

The majority next assert that "Another acquaintance testified" to certain similar remarks by petitioner. (Maj. opn., ante, p. 599.) The majority's assertion, however, overstates the record and misleads the reader. The "acquaintance" to whom the majority refer was Debria Lewis, and she "testified" at the trial in only a very limited sense of that word. Lewis was one of three prosecution witnesses in this relatively brief trial who did not in fact appear in person, but whose testimony at the preliminary hearing was read into the trial record by the prosecutor. The jury was thus deprived of the opportunity to observe the demeanor of these witnesses as they testified, and they were not subjected to the searching cross-examination typical of a murder trial; instead, they "testified" through the mouth of the prosecutor, and their story was tested only by the minimal, pro forma cross-examination typical of a preliminary hearing, before no jury at all. Moreover, as to two of these witnesses — Larry Rushing and Debria Lewis — the specific reasons why they were excused further undermined confidence in their credibility. [24] Over a defense objection, the preliminary hearing testimony of Rushing and Lewis was admitted on the ground they were "unavailable" to appear in person. (Evid. Code, § 1291.) In ruling that the prosecution had used reasonable diligence in trying to find them, the court stressed that Rushing "is a fugitive from justice" and Lewis "is apparently a prostitute, at least part-time prostitute, who goes by many aliases and would be extremely difficult to locate if, in fact, she didn't want to be located."

The majority nevertheless rely heavily on the preliminary hearing testimony of the witness Lewis. On September 11, 1977, Lewis had a visit from petitioner and his cousin Debra Hall, who was also Lewis's neighbor. Lewis testified that as petitioner was looking at a copy of the evening newspaper in her apartment he saw an article about the death of Mrs. Curtis and said, "`This is what I done.'" According to Lewis, when she told him he should not have done it he replied, "if she [Mrs. Curtis] had just been still — had been still and given him the money, that she would have been walking *643 around today." Contrary to the majority's position, however, the quoted remarks are weak evidence on the issue before us for the same reasons as the above discussed remark attributed to petitioner by the witness Gaines. Here, too, petitioner's remarks to Lewis might establish that he was a cause in fact of death or even that he was guilty of felony murder, but they do not establish that he intended to cause the death. And in any event, here also the remark referred to the wrong victim — not to Mrs. Ott but to Mrs. Curtis, whose death the prosecution did not contend that petitioner intended to cause.

Next the majority assert that Lewis "testified ... that [petitioner] had further described the two victims as `two old bags [who] were a nuisance and ... got what they deserved. '" (Maj. opn., ante, p. 599, italics added by majority.) The majority make much of this remark: they quote it no less than three times in the course of their opinion, and twice italicize its last four words. Unfortunately, in so doing they take their stand on very shaky ground: when the record is closely examined, its seeming support for the quoted remark dissolves into quicksand.

To begin with, it is highly misleading to say, as do the majority, that Lewis "testified" that petitioner "described" the two victims in the manner quoted. In fact, the entire thrust of Lewis's testimony was to the contrary. When the prosecutor first raised the question on direct examination he specifically asked her, "At any time during that conversation that you had with Mr. Jackson, did you say anything about two old bags?" The prosecutor demanded a "Yes or no" answer, and Lewis squarely answered, "No." Apparently seeking to impeach his own witness by a prior inconsistent statement, the prosecutor next established that two days later, on September 13, 1977, the police questioned Lewis on the subject of petitioner's visit. Although she testified that she "didn't really remember" what she told the police, the prosecutor again asked, "During that conversation that you had with the police officer or officers two days later after the conversation with Jackson, did you tell a police officer during the conversation you had with them that Jackson told you, that is, he, Jackson, used the terms `them,' `her,' and `two old bags'?" Again Lewis squarely answered, "No." Literally unwilling to take no for an answer, the prosecutor asked still again, "At any time during that conversation that you had with the police officers, did you tell them that Jackson stated that the `two old bags were a nuisance and they got what they deserved'?" This time the prosecutor got the answer he wanted — the witness replied, "Yes" — and he dropped the matter in favor of other topics.

At that point the record stood as follows: (1) Lewis had directly testified that petitioner had not made any remark to her describing the victims as "two *644 old bags"; (2) when the prosecutor sought to impeach her by asking whether she thereafter told the police that petitioner had made such a remark, she testified that she had not done so; but (3) when the prosecutor persisted and asked essentially the same question again, she testified to the contrary. The record thus cried out for an examination by defense counsel to rehabilitate the witness, or at the very least to clarify the ambiguity created by her apparently inconsistent answers. But this was the preliminary hearing, not the trial, and the deputy public defender assigned to represent petitioner in that proceeding simply said, "No questions." [25]

This factual ambiguity was not resolved in the testimony at the preliminary hearing or at trial, and was not addressed by the referee, yet the majority now improperly resolve it in this court. First, they resolve in favor of the prosecution Lewis's two contrary answers to the prosecutor's impeaching question, impliedly finding the first to be false and the second to be true; next, they take the answer they deem to be true not only as impeaching Lewis's initial testimony directly to the contrary but also as establishing the truth of the matter asserted (see Evid. Code, § 1235). The majority thus impliedly find that Lewis not only admitted she told the police on September 13, 1977, that petitioner made the "two old bags" remark to her on September 11, 1977, but also that she "testified" that petitioner did in fact make that remark on September 11 even though she had directly testified he did not.

In any event, the majority achieve very little by this effort to rewrite the record. Even if there had been direct, unimpeached, and unambiguous testimony at the trial that petitioner in fact made the quoted remark, it would have remained weak evidence on the crucial issue of whether he aided in the commission of the fatal acts with intent to cause Mrs. Ott's death. Standing alone, the quoted remark does not even establish that the speaker was a cause in fact of death: at some point in our lives we have all said of the death or punishment of another — even though we did not personally inflict it — that "he got what he deserved." And even when taken together with an admission that the speaker "did that," the remark may well be callous but it does not establish that the speaker intended to cause the death referred to: again, the same remark could be made by one who caused the death by accident, by negligence, by recklessness — or by any unintended killing in the course of a burglary. [26]

*645 The third witness cited by the majority was petitioner's cousin Debra Hall, who was present during petitioner's above mentioned visit to Lewis's apartment on September 11, 1977. Hall's testimony, however, was so full of self-contradictions, denials, and claimed memory lapses that the prosecutor was allowed to treat her as a hostile witness and ask her leading questions "for the purpose of impeachment." In so doing, he asked her whether it was true that petitioner pointed to a newspaper article about the deaths of Mrs. Curtis and Mrs. Ott and said, "This is what I did" and "It was because I needed some money." Hall replied in the affirmative. The majority rely on this testimony, but it suffers from the same weakness as the essentially identical testimony of Lewis. [27] It, too, might establish that petitioner was a cause in fact of death or even that he was guilty of felony murder, but it does not establish that he intended to cause the death of Mrs. Ott.

The evidence relied by the majority pales into insignificance, moreover, when it is compared with the truly devastating testimony of Mikles and McFarland. Because the majority quote Mikles's testimony in extenso (maj. opn., ante, p. 588, fn. 4) I need not repeat it verbatim, but certain passages deserve to be highlighted. Thus Mikles testified that in February 1978, while in the holding tank awaiting transportation from court back to county jail, he struck up a conversation with petitioner about the murder charges then pending against the latter. When Mikles asked how he had turned "a burglary into a murder," petitioner assertedly gave him a detailed description of what he actually did to Mrs. Ott during the burglary of her apartment. According to Mikles, petitioner admitted that when Mrs. Ott first emerged from her bedroom during the burglary "he went over and he hit her a couple of times, and I guess she was backing up into the bedroom, and he kept firing on her until she — he knocked her out on the bed." Again according to Mikles, petitioner admitted that after further searching the apartment he beat Mrs. Ott into unconsciousness a second time: "he is in the bedroom, and the lady is making noise. She is waking up. She is screaming or something, so he beats on her a couple of more times, you know. How many times I really couldn't say, till ... he knocked her out again. She fell down on the bed." Finally, Mikles testified that when he asked petitioner why he had "pounced" *646 so much on an elderly woman, petitioner "said that when she woke up, you know, he just went off. It just pissed him off so bad ... he beat on her to the point, when he knocked her out again, he told me that he was so hot at her that there was a bottle on the stand next to the bed and he took the bottle and he fucked her in her pussy with it, is his exact words he told me." [28]

It is preposterous to hold, as the majority do, that a federal due process violation that led the jury to give credence to the foregoing testimony of Mikles and McFarland was harmless under the high standard of prejudice governing such violations. If the jury had disbelieved the testimony of Mikles and McFarland in its entirety — as the referee found and the majority assume that it would have done but for the violation — the only remaining evidence directly bearing on the question whether petitioner intended to cause Mrs. Ott's death would have been his statement to the police that he struck her once and shook her two or three times in an effort to learn where the money was. Although such testimony could have been persuasive evidence of an intent to steal, a properly informed and instructed jury would have had great difficulty in finding that it also proved an intent to kill. The due process violation, however, made that task substantially easier: the jury was told not just that petitioner struck Mrs. Ott one blow, but that he rained blows on her — "he kept firing on her" — until she fell unconscious; and the jury was told not just that he shook her two or three times, but that when she came to her senses it so infuriated him — "It just pissed him off so bad" — that he beat her into unconsciousness a second time and sexually assaulted her with a wine bottle. Given Mrs. Ott's advanced age — she was 90 at the time of the crimes — a jury that had been led to believe this devastating testimony would have had no difficulty in finding in it an intent to kill sufficient to support the charged special circumstances. To say, as do the majority, that on this record there is no "reasonable likelihood" that the due process violation "could have affected" the verdict is to shamelessly distort the plain meaning of those words.

It is also a vain attempt to rewrite history. The experienced prosecutor who tried this case — Deputy District Attorney Paul Marin — knew the importance of the testimony of Mikles and McFarland, and he made quite sure the *647 jury knew it as well. Thus in his argument to the jury he focused on the witnesses who testified concerning petitioner's damaging statements, and warned that "I am sure defense counsel is going to argue, "Oh, you can't believe them because they have some interest. They are biased or are prejudiced and they just want to point the finger at and accuse Jackson and so forth and you can't believe them." Seeking to forestall that argument, Marin then told the jury that Mikles and McFarland, in particular, "are independent one of the other, seeing and talking to the defendant at different times and different places and the defendant telling both of them in substance pretty much the same thing, neither one of them apparently knowing anything at all about these two burglaries mentioned of Mrs. Curtis and Mrs. Ott." So important was their testimony to the prosecution that Marin told the jury that if the only witnesses he had were Mikles, McFarland, and Ilena Gaines, [29] "that would be sufficient, I would submit to you, to prove to you beyond a reasonable doubt that the Defendant Jackson committed that killing and that burglary of Mrs. Curtis' apartment."

Turning to the Ott murder, prosecutor Marin again relied on the testimony of Mikles and McFarland, and argued to the jury that it was corroborated by the fact that although each told the same story, "There is no connection between Mikles and McFarland. They obviously, apparently had no conversation among themselves or any meetings whatsoever. They were in different locations at different times, but coincidentally both of them were at different times in the same location as the defendant and the defendant made the same — substantially the same confession to Mr. McFarland as he made to Mr. Mikles...."

Finally, prosecutor Marin once more sought to preempt any defense effort to impeach Mikles and McFarland on the ground of interest or bias: referring to defense counsel, Marin told the jurors, "Don't let him fool you about trying to show some kind of bias or prejudice on the part of Mikles or McFarland and also trying to get you, I submit, to in some way dislike either Mikles or McFarland, so that you won't pay too much attention to their testimony." Marin acknowledged that Mikles and McFarland had prior felony convictions, but argued, "That doesn't mean they have lied or haven't told you the truth; as a matter of fact, the evidence indicates they have told you the truth."

The record contains still other persuasive expressions of the importance of the testimony of Mikles and McFarland. Thus, as noted above, on January 19, 1979, Los Angeles Deputy Sheriff Shea wrote a letter to the Los Angeles *648 Probation Department in which she reported that Mikles had testified for the prosecution in petitioner's trial and that "according to Marin, Mikles' testimony was extremely significant...." Next, at the hearing on April 5, 1979, on Mikles's application for modification of his robbery sentence, one of the witnesses called by the People was William Collette, a Long Beach homicide detective who had investigated the Curtis and Ott crimes and had taken Mikles's information about petitioner's admissions; when asked to characterize the result of Mikles's testimony against petitioner, Collette declared, "The testimony was crucial." And at the reference hearing on the present petition for habeas corpus, petitioner's trial counsel testified with regard to the testimony of Mikles and McFarland, "in my opinion that was the guts of the Jackson case, the testimony of those two witnesses." More specifically, trial counsel testified that "the case itself was basically even, except for those two witnesses.... The only thing that put it into the area of special circumstances were those two witnesses, in my opinion." [30]

On this issue the prosecutor, the homicide detective, and trial counsel had one undeniable advantage over the members of this court: they were there and we were not. They were there, in the courtroom, when Mikles and McFarland told their story on the stand. They saw and heard the impact of that testimony and the prosecutor's argument on the jurors. We, by contrast, can only peruse a cold, stale transcript more than 13 years after the trial, and guess at that impact. The majority's guess is both implausible on its face and, as shown above, demonstrably refuted by the record.

It is also contrary to governing federal law. It will be instructive to note, first, what this case is not. "This is not a case in which the witness' bias becomes irrelevant because the witness' testimony is fully corroborated, nor is this a case in which the witness' testimony has been thoroughly impeached and proof of his bias would be merely cumulative." ( U.S. v. Rivera Pedin, supra, 861 F.2d 1522, 1530 .) Thus the prosecution's failure to correct false testimony in violation of Napue, supra, 360 U.S. 264 , and Giglio, supra, 405 U.S. 150 (hereafter referred to as a Napue-Giglio violation) has been held harmless when that testimony was, inter alia, "merely corroboratory." ( United States v. Ramos Algarin (1st Cir.1978) 584 F.2d 562, 567, fn. 7 .) Here the testimony of Mikles and McFarland was not merely corroboratory — it added a whole new dimension to the prosecution's case, furnishing highly specific, detailed, and damaging evidence that was neither stated nor fairly implied in the testimony of any other witness.

*649 A Napue-Giglio violation has also been held harmless when the perjurious witness was exposed to "massive impeachment" on other grounds. ( United States v. Antone (5th Cir.1979) 603 F.2d 566, 570 .) [31] Here the sole impeachment evidence heard by the jury was the fact that Mikles and McFarland had prior felony convictions. But such convictions are almost by definition part of the personal history of a jailhouse informant, so that additional evidence of a more specific ground of impeachment — e.g., that the witness lied to the jury in denying inducements to testify — is not merely cumulative. Thus in United States v. Sanfilippo, supra, 564 F.2d 176, 178 , the court rejected the government's argument that such inducements to testify would be cumulative to the witness's

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