In Re Avena

KENNARD, J.

I dissent. As Justice Mosk explains in his dissenting opinion, trial counsel’s representation at both the guilt and penalty phases of petitioner’s capital trial was seriously deficient, thus requiring that his convictions and death sentence be vacated.

Citing United States v. Cronic (1984) 466 U.S. 648, 659 [ 80 L.Ed.2d 657, 668 , 104 S.Ct. 2039 ], Justice Mosk concludes that, even without a showing of prejudice by petitioner, petitioner is entitled to the relief requested because his trial counsel “ ‘entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.’ ” (Dis. opn. of Mosk, J., ante, at p. 774.) Although I agree that petitioner’s convictions should be set aside, unlike Justice Mosk I see no need to decide whether petitioner is, under Cronic , entitled to relief without a showing of prejudice. As I shall discuss, under Strickland v. Washington (1984) 466 U.S. 668, 694 [ 80 L.Ed.2d 674, 697-698 , 104 S.Ct. 2052 ] petitioner has met his burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The most serious of counsel’s numerous deficiencies at trial was his failure to move for suppression of petitioner’s tape-recorded confession on the ground that petitioner’s constitutional right to remain silent (U.S. Const., 5th Amend.; Miranda v. Arizona (1966) 384 U.S. 436, 474 [ 16 L.Ed.2d 694, 723-724 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) had been violated when, after he told the investigating officers, “[I] don’t want to talk about it,” 1 the officers nevertheless continued to question him. As a result, the jury heard petitioner’s statement to the police that he had participated in the shootings of the *783 victims. As this court has explained, a confession “ ‘operates as a kind of evidentiary bombshell which shatters the defense.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 503 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ], quoting People v. Schader (1965) 62 Cal.2d 716, 731 [ 44 Cal.Rptr. 193 , 401 P.2d 665 ].) An improperly admitted confession “is much more likely to affect the outcome of the trial than are other categories of evidence . . . .” (People v. Cahill, supra, 5 Cal.4th at p. 503 .) In this case, petitioner’s confession was the most persuasive evidence of petitioner’s participation in the fatal shootings; its suppression would have removed this damaging evidence from the jury’s consideration. Because it is reasonably probable that the outcome of petitioner’s trial would have been different if his confession had not been admitted at trial, I would set aside petitioner’s convictions and death sentence. 2

This statement appears in the transcript prepared by Fausto Poza, the forensic expert retained by petitioner’s appellate counsel, and submitted as an exhibit accompanying the petition for writ of habeas corpus.

Although trial counsel’s failure to move to suppress petitioner’s confession was one of the grounds on which this court issued its order to show cause, the court’s order of reference *783 issued on June 30,1988 (before I joined the court), did not include this issue. In my view, this court should have included this issue in its order of reference. In his return to the order to show cause, the Attorney General challenged the accuracy of Poza’s transcription. Accordingly, this court should have directed the referee to determine the accuracy of the transcription. (See People v. Romero (1994) 8 Cal.4th 728, 739-740 [ 35 Cal.Rptr.2d 270 , 883 P.2d 388 ] [evidentiary hearing is necessary when “the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes . . . .”].) Because the reference hearing did not encompass this issue, it must now be resolved solely on the declarations and exhibits accompanying the petition for writ of habeas corpus, the return, and the traverse. The only evidence of the contents of petitioner’s tape-recorded statement included therein is the transcript prepared by Poza.

Strickland v. Washington, supra, 466 U.S. 668, rather than Lockhart v. Fretwell (1993) 506 U.S. 364 [ 122 L.Ed.2d 180 , 113 S.Ct. 838 ], defines the standard of prejudice applicable here. Because the rules governing the admissibility of petitioner’s confession have not changed since the trial of this case, this is not a situation in which use of the “outcome determinative” test to assess counsel’s performance would grant petitioner “a windfall to which the law did not entitle him.” (Id. at pp. 369-370 [ 122 L.Ed.2d at p. 189 , 113 S.Ct. at p. 843 ].)