The opinion
I agree with the majority that the failure of petitioner's trial counsel to present certain mitigating evidence at the penalty phase of petitioner's capital trial did not prejudice petitioner, and that therefore petitioner is not entitled to habeas corpus relief. I write separately to point out certain findings that were made by the referee at the evidentiary hearing and that, in my view, are of particular importance on the question of prejudice.
I find the issue of prejudice to be quite close. After a thorough review of all of the referee's findings and the supporting evidence, however, I am persuaded that petitioner suffered no prejudice from his trial counsel's failings. A referee's factual findings, although not binding on this court, "are given great weight when supported by substantial evidence," because only the referee "had the opportunity to observe the demeanor of witnesses" in order to assess their credibility. ( In re Marquez (1992) 1 Cal.4th 584 , 603 [ 3 Cal.Rptr.2d 727 , 822 P.2d 435 ]; accord, In re Hitchings (1993) 6 Cal.4th 97 , 109 [ 24 Cal.Rptr.2d 74 , 860 P.2d 466 ].) What I consider to be the most pertinent of the referee's findings will appear in the course of the discussion below.
After luring Timothy Dykstra and Michael Wolbert to a remote area of Orange County, petitioner and a cohort robbed them, and petitioner shot them both at close range. Dykstra died, Wolbert survived. Following a jury trial, petitioner was found guilty of the first degree murder of Dykstra, the attempted murder of Wolbert, and the robbery of both. The jury also found the existence of the special circumstance of robbery murder, and it returned a verdict of death. On petitioner's automatic appeal, this court affirmed the death judgment. ( People v. Visciotti
(1992) 2 Cal.4th 1 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ].) In this proceeding, petitioner seeks a writ of habeas corpus in this court, asserting ineffective assistance of trial counsel.
Petitioner faults his attorney for not presenting at the penalty phase of the capital trial mitigating evidence of family violence and dysfunction. We ordered an evidentiary hearing on this issue. *Page 358
After hearing testimony of various witnesses, the referee, Superior Court Judge Eileen C. Moore, found the evidence of family dysfunction to be in conflict. For instance, although some of petitioner's siblings testified at the reference hearing that their parents inflicted physical abuse on each other, and yelled and screamed at each other throughout a long marriage, there was also testimony by family members that the family was warm, loving, and supportive. As to evidence that the family moved between 12 and 18 times during petitioner's childhood, that was countered by evidence that the family displayed many characteristics of stability: the children raised pets, went on family outings and camping trips, learned to play musical instruments, and lived in a clean home where the family regularly had dinner together. With respect to testimony that some of petitioner's sisters had married in their teens to escape family conflict, there was also testimony that these same sisters would come to the family home to have Sunday dinner and to celebrate birthdays and holidays, and that they would often telephone home.
The referee also found discrepancies in the evidence presented at the reference hearing regarding claims of parental physical abuse of the children, the extent and seriousness of such abuse, and whether petitioner was singled out for such abuse. And with respect to opinions testified to by defense expert witnesses psychiatrist Jay Jackman and social worker Shirley Reece (for instance, that a birth defect corrected before petitioner reached school age had "a colossal and devastating effect" on his self-image, and that petitioner's home environment had caused petitioner's drug use), the referee found their opinions unsupported by the evidence and therefore lacking in "a certain amount" of credibility.
A petitioner seeking habeas corpus relief for ineffective assistance of trial counsel must establish not only that counsel's performance "fell below an objective standard of reasonableness," but also that the claimed deficiencies had a prejudicial effect on the outcome of the trial. ( Strickland v. Washington (1984) 466 U.S. 668 , 688, 694 [ 80 L.Ed.2d 674, 693, 697-698 , 104 S.Ct. 2052 ].) Prejudice is shown only when it can be said that absent the shortcomings in trial counsel's performance there exists "a reasonable probability" that the outcome would have been different. ( Id . at p. 694 [ 80 L.Ed.2d at p. 698 ].)
Here, because of the conflicting evidence on the issue of family dysfunction, as shown in the referee's findings, presentation of such evidence at the penalty phase of petitioner's capital trial would not have been particularly effective. I see no reasonable probability, given the deliberate and ruthless manner in which petitioner committed the murder, that the jury's verdict of death would have been different had trial counsel pursued the "dysfunctional family" approach instead of, as counsel did, presenting a case in mitigation *Page 359
based on petitioner's relationship with his loving and supportive family, and asking the jury to spare petitioner's life in consideration of petitioner's family. 1
1 To counter the prosecution's penalty phase case, petitioner's trial counsel presented mitigating evidence of petitioner's loving relationship with his family (Pen. Code, § 190.3 , factor (k)) in an effort to persuade the jury not to condemn petitioner to death and, through argument, counsel tried to diminish the significance of aggravating evidence of petitioner's felony convictions and prior acts of violence. I therefore do not share the view of Justices Mosk and Brown that trial counsel failed to subject the prosecution's penalty phase case to "meaningful adversarial testing," which would warrant reversal under United States v. Cronic (1984) 466 U.S. 648 , 659 [ 80 L.Ed.2d 657, 668 , 104 S.Ct. 2039 ] for ineffective assistance of counsel without a need by petitioner to show prejudice.