The opinion
JOHNSON, J.—I respectfully dissent.
I have serious problems with the majority’s finding that no prejudice resulted from counsel’s failure to introduce a third person’s admission of guilt as exculpatory evidence. It is difficult to argue a statement from a third party which completely exculpates defendant could not create a reasonable doubt as to defendant’s guilt. Thus, I am led to the inevitable conclusion this defendant was prejudiced by his counsel’s incompetent investigation and failure to introduce this exculpatory evidence.
The exculpatory evidence which was not introduced at defendant’s trial constitutes a “crucial” defense, as required by In re Saunders (1970) 2 Cal.3d 1033, 1049 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ]), “the possible defense so withheld must be termed a ‘crucial’ one.” A defendant is denied the effective assistance of counsel if, “ ‘by reason of counsel’s failure to perform the obligations imposed upon him, defendant is deprived of an adjudication of a crucial or potentially meritorious defense.’ ” (People v. Shaw (1984) 35 Cal.3d 535, 541 [ 198 Cal.Rptr. 788 , 674 P.2d 759 ], italics in original.)
As held in People v. Mitchell (1893) 100 Cal. 328, 333 , it is always proper to introduce evidence suggesting some other person and not the defendant committed the crime with which he is charged. (See also United States v. Robinson (2d Cir. 1976) 544 F.2d 110, 112 ). In order for evidence of third party culpability to be admissible as new evidence, “there must be direct or circumstantial evidence linking the third person to the actual perpetration of *15 the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833 [ 226 Cal.Rptr. 112 , 718 P.2d 99 ].) “Obviously a confession by another party exonerating the petitioner does point unerringly to petitioner’s innocence and, if credited, undermines the entire case of the prosecution.” (In re Branch (1969) 70 Cal.2d 200, 215 [ 74 Cal.Rptr. 238 , 449 P.2d 174 ].)
The exculpatory evidence in question is a competent and reliable admission of a third party that he committed the offense for which defendant had been charged. The majority does not question the competence or reliability of this evidence. Nor could they. Morgan’s admission of guilt was made in open court, was definitely against his penal interest at the time it was made, 1 and no evidence suggests the statement was untrustworthy. Thus, this exculpatory evidence is very probative and only because of ineffective assistance of counsel was not discovered and introduced at trial.
In Chambers v. Mississippi (1973) 410 U.S. 284, 302 [ 35 L.Ed.2d 297, 312-313 , 93 S.Ct. 1038 ]) the United States Supreme Court reversed Chambers’s conviction, finding that exclusion of critical exculpatory evidence was a denial of the right to a fair trial. In In re Hall (1981) 30 Cal.3d 408, 427-429 [ 179 Cal.Rptr. 223 , 637 P.2d 690 ], the court held a defendant was denied effective assistance of counsel due to the attorney’s failure to investigate information which indicated another person was guilty of the offense. In United States v. Robinson, supra, at pages 112-113 the court reversed Robinson’s conviction, holding the exclusion of exculpatory evidence severely prejudiced Robinson’s defense. The exculpatory evidence would have been sufficient to create a reasonable doubt as to defendant’s guilt. (See also United States v. Armstrong (9th Cir. 1980) 621 F.2d 951, 953 .) As these cases indicate, exculpatory evidence which is excluded from trial affects a defendant’s substantive rights. The case at bar is no different. Defendant was *16 deprived of valuable exculpatory evidence, and thus his defense was prejudiced due to ineffective assistance of counsel.
In assessing the prejudice from counsel’s error, the question is whether there is a reasonable probability that, absent the errors, a reasonable jury could have entertained a reasonable doubt respecting appellant’s guilt. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [ 80 L.Ed.2d 674, 693-694 , 104 S.Ct. 2052 ].) In making this determination, a court must consider the totality of the evidence before the jury. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court must ask if the defendant has met the burden of showing it is reasonably likely the decision would have been different absent those errors. (Id. at p. 695 [ 80 L.Ed.2d at p. 698 ].)
The majority does not consider the totality of the evidence, but places inordinate weight on the credibility of the defendant’s own testimony as a determinative factor. The majority incorrectly assumes that because the jury quite probably found defendant’s own story unreliable, it would have convicted him regardless of powerful, probative evidence of his innocence of the crime charged. The majority is misled by this reasoning to conclude the jury could not have entertained a reasonable doubt of appellant’s guilt even if tiie exculpatory evidence had been introduced.
The majority’s position neglects the entirely reasonable possibility a jury could find portions of a defendant’s testimony unreliable or unbelievable and still find him innocent of the charged offense. The fact a defendant may seem unbelievable as a witness is not conclusive as to his guilt of the crime itself. As it turns out the substance of defendant’s testimony, which the majority calls a “cockamamie” story, was not directed toward the issue of his guilt or innocence. Rather it was an account of the events after his arrest. I disagree with the majority’s conclusion that no evidence—even something as dramatic and conclusive as a third person’s confession exonerating the defendant—could influence the jury’s decision on the issue of guilt or innocence just because it is reasonable to find the jurors would disbelieve the so-called “cockamamie story.” 2
It is true jurors are allowed to infer witnesses are lying in one part of their testimony because they are shown to have lied in another part of that *17 testimony. But jurors are not required to do so. Indeed jurors are free to disbelieve a part of a witness’s testimony and believe other portions of that same witness’s testimony. For the same reason, jurors are free to disbelieve a defendant’s entire testimony yet believe his denial of guilt of the overall charge and likewise to believe the testimony of other witnesses exonerating him of that charge.
Jurors are fully capable of making discriminating judgments. They know even innocent people sometimes tell lies out of desperation and fear of unjust conviction. Reasonable jurors could have reasoned just that way in the instant case if they had been presented with Morgan’s confession along with appellant’s so-called “cockamamie story.” They could have rejected appellant’s own testimony as unbelievable yet accepted as truthful Morgan’s statement admitting his own guilt and exonerating appellant. After all, the jury was not being asked to decide whether appellant was guilty of perjury. They were there to decide if he was guilty of the offense charged in the information before them. (In actuality, of course, had appellant’s lawyer rendered effective assistance the jury would not have had to weigh Morgan’s exonerating statement against appellant’s “cockamamie story” because appellant would not have had to testify at this trial. See footnote 2, ante, at page 16. Consequently, only the exonerating evidence would have been before the jurors and they would not have had to discriminate between appellant’s credibility as a witness and his guilt of the charged offense.)
Since reasonable jurors could have entertained a reasonable doubt about appellant’s guilt had they heard Morgan’s admission of guilt exonerating appellant, counsel’s failure to discover and introduce that statement was prejudicial to his client. Consequently, I would have reversed the conviction for a new trial where the exculpatory evidence was produced.
Appellant’s petition for review by the Supreme Court was denied July 29, 1992. Mosk, J., was of the opinion that the petition should be granted.
At oral argument, the Attorney General argued the statement was not against Morgan’s penal interest because two eyewitnesses later testified they had seen the defendant rather than Morgan commit the crime. Since Morgan supposedly knew these witnesses would pin the blame on appellant he could confess his guilt without worrying he actually would suffer any penal consequences from making that statement.
This argument is built on a fallacy—treating evidence suggesting guilt as absolute proof of guilt. Eyewitness testimony, in particular, is of dubious reliability. (See People v. McDonald (1984) 37 Cal.3d 351 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ] [permitting expert testimony about the unreliability of eyewitness testimony based on scientific studies establishing that unreliability].) The eyewitness testimony purportedly identifying appellant rather than Morgan as the guilty party fell far short of the sort of absolute proof Morgan could have relied on to exonerate him should he give a false confession of guilt Perhaps it would be a different issue were there to have been a clear, accurate videotape showing Morgan was innocent. But one or two eyewitnesses do not make an ironclad case. Only a fool would confess to a crime he did not commit in the hope the jury would believe others testifying to his innocence in preference to his own admission of guilt. Accordingly, there is no reason to believe Morgan felt he was immune from penal consequences when he admitted guilt and exonerated appellant.
The so-called “cockamamie story” probably would not have been told had appellant’s counsel discovered and introduced Morgan’s statement exonerating appellant at the trial. With that evidence in the record, it would have been unnecessary for appellant to even testily at the trial. So it is a bit disingenuous to argue the jurors would not have believed Morgan’s exculpatory evidence because of the unbelievability of other testimony they would not have heard at this trial except for defense counsel’s failure to find and present the stronger evidence.