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People v. Ledesma
Citations: 729 P.2d 839; 43 Cal. 3d 171; 233 Cal. Rptr. 404; 1987 Cal. LEXIS 278Docket: Docket Nos. Crim. 21436, 23178
Court: California Supreme Court; January 2, 1987; California; State Supreme Court
Defendant Fermin Rodriguez Ledesma was convicted of first-degree murder, kidnapping, and two counts of robbery, with special circumstance allegations found true, resulting in a death sentence. Ledesma appealed and also petitioned for habeas corpus, claiming ineffective assistance of counsel during trial. The California Supreme Court consolidated the appeals and appointed a referee, Judge Joseph P. Kelly, to investigate the ineffectiveness claim. The referee determined that Ledesma's trial counsel was incompetent, causing prejudice to the defense, and recommended granting the petition and vacating the conviction. The Supreme Court adopted the referee's findings and granted the petition. On the evening of August 26, 1978, Gabriel Flores was robbed at a gas station by two men on a motorcycle. Flores provided the police with a description and the motorcycle's license plate number, which led them to Ledesma as the owner. Officers conducted a stakeout at Ledesma's former residence and later tracked him to another location, where they sought to question him about the robbery. Santiago and Dominguez reported that the defendant was absent when police officers entered their apartment without a warrant, ordered them to stay in the living room, and searched unsuccessfully for the defendant. During questioning, a phone call from the defendant revealed he was aware of police interest and advised the officers to secure the apartment. Three days later, Sergeant Traskowski presented a photo lineup to witness Flores, who identified the defendant as the robber after careful examination. Despite Flores's identification, no other evidence connected the defendant to the robbery or murder of Flores, whose body was found days later with multiple gunshot and stab wounds. The defendant, who had fled to Salt Lake City, was arrested upon his return to San Jose. He faced charges for the robbery and murder of Flores, with allegations of special circumstances. Initially represented by a public defender, he later retained Jefferson M. Parrish, Jr., who made few pretrial motions, except for a request for a psychiatric evaluation. The court confirmed there was no insanity plea asserted by the defense. The court addressed the defense's consideration of a diminished capacity argument but noted that the defense attorney, Mr. Parrish, had opted not to pursue it after reviewing psychiatric evaluations and trial strategies. Prior to the trial, the prosecutor, George Kennedy, assured Parrish that the victim's extrajudicial identification of the defendant would not be introduced. Jury selection lasted five days, conducted openly without objections from Parrish. On the third day, the court raised concerns about potential discrimination in the prosecutor's use of peremptory challenges against Hispanic jurors, referencing the precedent set in People v. Wheeler, which prohibits exclusion based on group bias. The prosecutor had previously struck jurors Maes, Logan, and Jiminez, two of whom were Hispanic and Spanish-speaking. The court noted that while there were still Spanish-speaking jurors on the panel, there was a lack of clarity regarding the overall composition of those struck. Mr. Parrish pointed out a previous case involving the exclusion of all Spanish-speaking jurors, but the court indicated that in this instance, it did not see a discriminatory pattern. Mr. Kennedy defended his actions, citing specific reasons for excusing certain jurors, claiming no racial bias and expressing confidence in the capabilities of Spanish-speaking jurors. He offered to further explain his reasoning if Mr. Parrish wished. Significant issues arose during jury selection, specifically concerning two jurors: Mrs. Maes, a Spanish speaker in a death penalty case, and Mrs. Jiminez, who recognized the defendant from their shared high school. The prosecutor exercised peremptory challenges against several jurors, including Alan F. Porcella, Jose Flores, C. Carrie Corral, and Robert A. Bagnod, all of whom were Spanish-speaking and likely Hispanic, yet Parrish did not object to these challenges or raise a Wheeler issue. The prosecutor also dismissed 16 jurors for cause due to their opposition to the death penalty without any objections from Parrish, even as a juror with a traumatic background related to violence was accepted. In his opening statement, the prosecutor outlined his case and indicated that the victim had identified the defendant as the robber, to which Parrish did not respond. The prosecutor called Sergeant Traskowski, who described his investigation into the robbery but did not provide explicit testimony regarding the victim's identification of the defendant due to a prior commitment. Traskowski confirmed that he had prepared a photo lineup related to the case and had shown it to a witness, Gabriel Flores, under careful conditions to ensure reliability. The prosecutor emphasized the critical nature of the victim's testimony, highlighting that the robbery case largely depended on this single witness. Officers Webster and Guerra also detailed their roles in the investigation, including a warrantless entry into the defendant's apartment and interception of a phone call. Guerra testified that officers were "invited in" before recounting a statement allegedly made by the defendant over the phone. Parrish did not challenge Guerra's testimony. Sylvia Ontiveros testified about admissions the defendant supposedly made, but she could not clearly recall hearing him confess, despite previously stating otherwise at a preliminary hearing. Ontiveros expressed fear about testifying and indicated her testimony was intended to protect herself. Michael Shay recounted a meeting with the defendant at a party in March 1979, where the defendant claimed to be from San Jose and wanted for a robbery. Shay detailed admissions about using a gun during the robbery, threatening the attendant, and ultimately killing him because he "narced." Floyd Cowdell testified that the defendant, identifying himself as "Joe Salinas," moved in with him for two to three months in late 1978, during which the defendant admitted to being wanted for murder and described a robbery and subsequent murder of the attendant. Sharla Cowdell's testimony included similar details but differed in some respects from Floyd's account. She stated that the defendant confessed to the robbery and murder, describing his actions in graphic detail, including threats made against them if they informed on him. The prosecution presented graphic photographs of the victim's body from the crime scene and autopsy, which Parrish did not object to, affirming no objections to the introduction of the autopsy images. Defendant testified that on August 26, 1978, he began his day around 11 a.m. and later gave a friend a ride home on his motorcycle. He visited friends "George" and "Joel" at their apartment around 3 p.m., where they drank alcohol and smoked marijuana. At approximately 4:30 p.m., he purchased beer and returned to continue drinking. George and Joel then decided to procure PCP but lacked gas and funds, so defendant lent them his motorcycle and keys, watching them leave. They returned around 5:30 p.m. with PCP, during which George revealed they had just committed an armed robbery at a Hudson gas station. After learning from his ex-girlfriend, Leticia Mejia, that police were searching for him in connection with the robbery, defendant felt angry towards George and Joel, who suggested he stay with them until the situation cooled down. He remained at the apartment for two to three weeks out of fear of arrest and eventually took a bus to Salt Lake City, where he confided to his cousin about being wanted for armed robbery, though he insisted he was innocent. While in Utah, he encountered Floyd, who bragged about committing robberies. Defendant warned Floyd to be cautious due to his own situation. He later learned about the murder of the gas station attendant and his potential connection to it, though he did not discuss any crimes with those around him, including the Cowdells and Sylvia Ontiveros. He denied ever owning a gun or committing armed robbery or murder, highlighting that Sylvia's testimony against him stemmed from coercion to protect another individual. The defendant acknowledged a past legal issue involving a commitment to the California Youth Authority for automobile theft but noted that he had never faced a felony conviction. During cross-examination, the prosecutor highlighted police reports indicating that the victim identified the defendant as the robber and that anonymous tips linked him to an August 1978 robbery and murder. The prosecutor further explored the defendant's juvenile record and unproven crimes, and examined a jail conversation where the defendant mentioned seeking revenge on an informant. The defendant claimed that a conspiracy, led by Sergeant Kenneth Kahn, was orchestrated to "frame" him. Despite this, defense attorney Parrish raised few objections. Rudy Ledesma, the defendant's brother, testified that George and Joel were real individuals, whom he had introduced to the defendant. In rebuttal, the prosecutor called three witnesses, including Sergeant Kahn, who denied any conspiracy. Deputy Jay Labrum recounted how Shay indicated the defendant confessed to a California robbery and murder, without any influence from Labrum. Sergeant John Bernardo testified that the Cowdells stated the defendant admitted to the murder, again denying any coercion. In closing arguments, the prosecutor emphasized the victim's identification and the intercepted call, while Parrish contended that the prosecution did not meet its burden and distanced himself from the "frame-up" theory. Parrish acknowledged that he did not believe in the police's alleged misconduct. The jury requested rereadings of testimony during deliberations, including one for Sergeant Traskowski's identification testimony, which the court noted was not given by that witness. Parrish did not object to any jury instructions requested by the prosecutor, which included guidelines on flight and felony-murder. Officer Traskowski was not directly questioned regarding the identification of photographs, leading to a hearsay issue addressed by the district attorney. After 15.5 hours of deliberation over three court days, the jury found the defendant guilty and affirmed all special circumstance allegations. During the penalty phase, the prosecutor and Parrish agreed that the jury would consider all evidence from the trial's first part. The court pre-instructed the jury on sentencing factors as defined by former Penal Code section 190.3 without objection from Parrish. The prosecutor did not present an opening statement but called multiple witnesses to demonstrate the defendant's involvement in three armed robberies in Salt Lake City in 1979. Testimony included that of Sergeant Demkowski, who recounted the defendant's juvenile delinquency, including burglary and attempted armed robbery. Parrish called four witnesses, including Sergeant Kahn, who noted the defendant's prior cooperation with police and Annalita Ledesma, who described the defendant as a good husband and father with no history of violence. Pasqual Ledesma, the defendant’s brother, testified that the defendant earned money honestly and had never committed armed robbery. However, during cross-examination, the prosecutor elicited details about the defendant's troubled juvenile history. Reuben Gomez, the defendant's best friend, stated he never saw the defendant engage in violence or armed robbery. In closing arguments, the prosecutor argued for the death penalty based on statutory factors, while Parrish briefly critiqued capital punishment and requested life imprisonment without parole. Most penalty phase instructions were requested by the prosecution, including CALJIC No. 8.84.1, with only two exceptions regarding the defendant's right not to testify and reliance on the state of evidence. Parrish did not object to any instructions or during the penalty phase. The jury nearly deadlocked on the second day but ultimately returned a death verdict after about 10.5 hours of deliberation on the third day. Parrish submitted a written motion for a "new trial" or modification of punishment at the automatic verdict-modification hearing, marking his first self-prepared motion and the only written motion on behalf of the defendant since a prior request for expert appointment. The motion was based on claims of judicial error, prosecutorial misconduct, and insufficient evidence supporting the jury's verdicts. During a dialogue with the prosecutor, the court inquired about the evidence linking the defendant to the crimes, highlighting that the only presented physical evidence was the defendant's motorcycle license number, and no weapons or other significant items were found. The court expressed concern over the quality and quantity of evidence concerning the defendant's involvement, acknowledging that while a murder occurred, there was a lack of compelling evidence directly implicating the defendant beyond his statements to others. The court indicated that judges should generally uphold jury verdicts but recognized their responsibility to independently evaluate the evidence, particularly the weight of the defendant's oral statements, which are traditionally treated with caution. The court found a witness's testimony insufficient to support a verdict, noting her apparent reluctance to fully disclose information. In contrast, another witness from Utah, who had no prior connection to the defendant, was perceived as someone who might exaggerate their experiences, prompting the court to question the reliability of such testimony in determining the death penalty. The court expressed hesitance to uphold the jury's death penalty verdict based solely on initial witness statements but found the testimony of the Cowdells, particularly Mrs. Cowdell's, to be significantly damaging to the defendant. Despite a lack of physical evidence linking the defendant to the crimes, the court believed the evidence supported the conclusion that the defendant committed the offenses. While acknowledging mitigating factors, such as the defendant's minimal criminal history and drug use, the court determined that aggravating circumstances outweighed these factors, leading to the decision to deny the motion to modify the jury's verdicts and impose a death sentence. Subsequently, the defendant filed a petition for a writ of habeas corpus, claiming ineffective assistance of counsel by Parrish. The allegations against Parrish included: failure to adequately investigate the case or research applicable law, neglecting to utilize evidence from prior defense reports, making false guarantees of acquittal, and not attempting to exclude references to extrajudicial identifications and intercepted phone calls. Additional claims included failure to investigate key witnesses, test their testimonial competence, object to prejudicial jury selection practices, and present a diminished capacity defense during the guilt phase. Overall, these allegations suggested that Parrish did not perform competently in various aspects of the defense. Parrish's representation during the penalty phase was critically deficient in several areas. He did not present evidence regarding the defendant's drug use for mitigation, nor did he request additional jury instructions beyond two standard ones. His overall performance lacked reasonable competence, particularly in failing to communicate with the defendant post-sentencing or to cooperate with appellate counsel. A prima facie case for relief was established, leading to an evidentiary hearing that lasted nine months and involved extensive documentation. Key findings from the hearing indicated that Parrish did not research capital case law and procedures, despite it being his first case of this nature. He made minimal preparations, relying mainly on the preliminary hearing transcript and discovery materials provided by the prosecution, which included critical facts and potential witnesses. Although he reviewed some pre-existing reports, he did not engage in meaningful investigation or utilize available funding for a thorough inquiry into the case's facts. Parrish interviewed the defendant but failed to follow up on any of the insights gained, particularly regarding the defendant's mental state at the time of the charged crimes. His trial strategy was notably passive; he did not make significant pretrial motions, did not object during jury selection, and largely refrained from challenging the prosecutor's case during trial, resulting in a lack of adequate defense for the defendant. At the habeas corpus hearing, the defendant presented substantial evidence regarding his abusive childhood, drug abuse, and psychiatric issues, demonstrating that this information was known to his trial attorney, Parrish, prior to the trial. Witnesses, including relatives and friends, testified about the defendant's severe abuse by his father and his early and ongoing drug use. These individuals expressed willingness to testify at trial but were not contacted by Parrish. Woods, a potential witness, indicated she offered assistance to Parrish, who did not respond. Parrish testified about his legal background and involvement in the case, noting he was approached by the defendant's family in 1979 after the defendant was dissatisfied with his previous counsel. He initially quoted a fee of $15,000 but reduced it to $5,000 due to the family's financial constraints. The family made a $1,000 down payment, but Parrish claimed he was never fully paid. Parrish described the defendant as cooperative and mentioned a flat, emotionless confession made by the defendant, which the defendant denied. This led Parrish to seek psychiatric evaluation from Dr. Glathe. During the hearing, it became evident that Parrish had partial access to the public defender's report, but he was uncertain about the specific portions he reviewed. He explained that he lost his files, including important documents and evidence, due to water damage from a leaky storage area during heavy rains. Although he attempted to salvage the files, he ultimately discarded them in 1983, knowing some documents were still legible. He acknowledged that he was aware of the pending appeal and had been requested to make the files available. Parrish's testimony revealed significant ambiguities regarding his defense preparation for the defendant, including the development of an alibi and a diminished capacity defense. Initially, Parrish claimed he had considered a diminished capacity defense but later admitted he did not seriously evaluate it and had never presented it in his career. His decision-making was influenced by the nature of the defendant's confession, the defendant's perceived rationality, a psychological report, and his belief that substance use does not impact criminal responsibility. Parrish defended his performance, asserting that his investigation and trial strategy were sufficient, arguing against the necessity of barring extrajudicial identification references due to the prosecutor's concession. He suggested that a more active defense might alienate the jury. However, he later acknowledged his lack of reasonable competence and loyalty due to compulsive gambling, which distracted him from his professional responsibilities. He admitted to gambling heavily before and during the trial, leading to mental unpreparedness and significant debt. He recognized that this gambling habit prevented him from conducting a thorough investigation or adequately challenging unfavorable evidence. Furthermore, he conceded that he neglected to present mitigating evidence regarding the defendant's drug abuse history during the penalty phase. His claims were corroborated by witnesses who attested to his compulsive gambling behavior and drug use during the relevant period. Cole had a falling out with Parrish and was on parole after serving a prison sentence. Nelson, a former acquaintance, testified about observing Parrish's compulsive gambling, heavy drinking, and drug use, including PCP, "crank," and cocaine. He recounted an incident from 1976 or 1977 where they attempted to call the Vatican while under the influence of PCP. Although Nelson distanced himself from Parrish in 1979 to improve his own life, he maintained some contact until moving out of state in 1983, still considering Parrish a friend. Expert testimony indicated that substances like "crank" and cocaine impair brain function, affecting the ability to respond to crises and perform complex thinking. Parrish denied drug use during his representation of the defendant. To demonstrate Parrish's incompetence and resulting prejudice to the defense, several experts were called, with five testifying significantly. Dr. Fred Rosenthal, a psychiatrist, asserted that evidence of long-term PCP abuse typically allows for a diminished capacity defense, which should be thoroughly investigated. He characterized PCP as highly destructive, capable of inducing severe psychiatric symptoms and chronic neurological issues, including intellectual and memory deficits. Dr. Rosenthal emphasized the importance of comprehensive psychiatric, neurological, and physical evaluations of the defendant, along with independent verification of the defendant's accounts from family and friends due to possible distortions in memory or truthfulness caused by PCP. He criticized Dr. Glathe's report for failing to adequately address the defendant's mental state at the time of the crime and noted that it focused more on the defendant's competence to stand trial rather than the relevant mental condition during the offense, deeming it incomplete and inadequate. Dr. Rosenthal indicated that Dr. Glathe’s report did not justify dismissing a diminished capacity defense, instead suggesting further investigation was warranted due to the defendant's drug abuse, particularly with PCP and methamphetamine. He asserted that Mr. Ledesma's significant drug intake would likely preclude him from maintaining a rational state of mind, implying the possibility of diminished capacity during the crimes. Dr. David E. Smith, a specialist in toxicology and addiction, elaborated on the adverse effects of PCP, categorizing them into four types. Type one reactions involve severe symptoms such as catatonia and impaired judgment, often leading to violent behavior, especially when mixed with other substances. Type two reactions are characterized by chronic abuse, resulting in delusions and significant cognitive impairments. Individuals may experience memory issues, including 'gray-outs' where events are recalled inaccurately or incompletely, leading to reliance on external information for reconstruction of memories. Type three reactions can trigger prolonged schizophrenic episodes in individuals with pre-existing mental disorders. Type four reactions are associated with withdrawal symptoms like cognitive impairment and depression. Dr. Smith emphasized that chronic PCP use adversely affects mental capacity and intent due to its impact on abstract thinking and can lead to toxic psychosis. He discussed the concept of primary versus secondary memory, highlighting how individuals attempt to reconstruct lost memories through external sources. Thomas Nolan, a certified criminal law specialist, asserts that competent legal counsel must conduct a thorough and independent investigation, even if a defendant confesses to a crime. Nolan emphasizes that a confession should not be taken at face value; lawyers must verify its accuracy and ensure it aligns with the facts. He outlines several key responsibilities for counsel: 1. **Independent Evaluation**: Lawyers should evaluate the circumstances surrounding a confession, as individuals sometimes admit to crimes they did not commit. 2. **Evidence Assessment**: If a confession is accepted, counsel must determine whether the prosecution can substantiate the defendant’s guilt with independent evidence, not solely relying on the confession. 3. **Witness Credibility**: A thorough investigation into the credibility of prosecution witnesses is essential. This includes gathering background information and conducting interviews with relevant individuals to potentially undermine the prosecution's case. 4. **Mental State Evaluation**: Counsel should seek a comprehensive assessment of the defendant's mental state to explore possible defenses, such as diminished capacity, relevant both to the guilt and penalty phases. 5. **Pre-trial Motions**: Competent counsel would also file various motions, such as to exclude certain evidence and witness identifications, to protect the defendant's rights. Nolan concluded that the attorney in this case, Parrish, failed to provide effective assistance, performing below reasonable competence standards, which prejudiced the defendant's defense. Supporting Nolan’s views, attorney and private investigator Jack Palladino highlighted the critical need for a comprehensive investigation in criminal cases. Competent legal counsel in cases involving serious drug use must conduct a three-part investigation. First, an inquiry into police reports and prosecution evidence, including witness accounts, is essential, especially given the potential unreliability of a defendant's statements due to drug influence. Second, the defense should explore possible mitigating factors such as diminished capacity or insanity stemming from drug use and the defendant's troubled background, seeking witnesses who can provide alternative accounts to challenge prosecution narratives. Third, in capital cases, the investigation should also consider mitigating factors that could influence sentencing outcomes, requiring interviews with family members and examination of the defendant's background, including military records. Expert testimony from Palladino and others suggests that prior counsel failed to provide effective assistance by not pursuing these necessary investigative avenues. Initial doubts were raised regarding the adequacy of legal assistance provided by Parrish in a homicide case for the agreed fee of one thousand dollars, which is deemed insufficient for effective representation. The speaker noted that competent legal counsel in serious cases typically incurs costs of fifty to one hundred thousand dollars, especially when retaining investigators for thorough case preparation. Under Penal Code section 987.9, funds for investigations are accessible, particularly in cases involving evidence of drug abuse, which may warrant a diminished capacity defense—an aspect neglected in Dr. Glathe's evaluation. Concerns were raised about the lack of consideration for the defendant's drug dependency in relation to his intent during the crime. Jinkerson criticized the adequacy of the examination of Mr. Ledesma, highlighting that he was not assessed while under the influence of PCP, and expressed that a full investigation is crucial before deciding on an alibi defense. He expressed skepticism towards alibi defenses, suggesting they are often weak due to bias from family witnesses and that they can lead juries to premature conclusions of guilt if the alibi fails. Jinkerson advocated for focusing on alternative defenses and underscored the importance of pretrial motions addressing issues such as the admissibility of evidence and witness identifications. Limits must be set in the trial to address crucial issues and preserve them for appellate review. The judge emphasized the need to contain the prosecution's scope, particularly regarding evidence related to witness examinations, and to suppress pretrial evidence according to section 1538.5. A narrow focus on admissible evidence is crucial due to the case's balanced nature, suggesting potential reasonable doubt about Mr. Ledesma's involvement in the homicide. Expert opinions indicated ineffective assistance of counsel. Dr. Glathe, who examined the defendant, noted that the examination lasted one hour without any tests to verify the defendant's confession, focusing instead on the defendant's current mental state. Although he suggested the defendant was likely sane, he admitted that his examination did not rigorously address that issue and expressed regret for his non-specific conclusions. Communication with the defense attorney, Parrish, was minimal post-examination. Officer Webster testified regarding the warrantless entry into the defendant's apartment, indicating a belief in exigent circumstances. However, he clarified that there was no immediate pursuit of the defendant from the crime scene and did not address the issue of consent, mentioning only that others indicated the defendant had made calls and was expected to call again. Judge John Schatz, who oversaw the trial, testified that he did not observe any signs of drug use, fatigue, or incompetence in defense attorney Parrish during the proceedings. However, he indicated that if Parrish had neglected to investigate a diminished capacity defense or had presented a knowingly false alibi, he would consider that a failure of reasonable competence. Bailiff Everett J. Hawker also noted that Parrish did not appear impaired and characterized his performance as "outstanding," though he admitted to a lack of recollection regarding specifics from the trial. Following a hearing, the referee issued a detailed report focusing on claims of ineffective assistance. Key findings included: 1. **Public Defender's Report**: The report contained a preliminary investigation into the case, outlining witness identities, backgrounds, and testimonies, as well as psychosocial information on the defendant, including his extensive drug use. 2. **Parrish's Investigative Actions**: Parrish's preparation was minimal, consisting of reading the preliminary hearing transcript, reviewing discovery materials, examining parts of the public defender's report, interviewing the defendant, requesting a psychiatric evaluation from Dr. Glathe, and attempting to locate a defense witness. He did not pursue further investigation into the defendant's mental state or follow up on these efforts. 3. **Evidence Discovered by Parrish**: Due to his limited investigation, Parrish did not uncover any new evidence but did identify crucial prosecution case details, including witness backgrounds and the defendant's history of drug abuse. 4. **Undiscovered Evidence**: It was concluded that Parrish likely did not obtain the full public defender's report, which may have contained pertinent information not reviewed by him. Parrish obtained parts of the Woods and Kuebel reports but did not adequately follow up on the evidence and leads they contained. He performed inadequately by failing to investigate thoroughly, review the public defender's report properly, and object to anonymous telephone calls and intercepted calls. His rationale for not objecting, aiming to avoid alienating the jury, was deemed unconvincing, as he could have moved to exclude the evidence outside the jury's presence. The referee concluded Parrish inadequately investigated the case, particularly concerning the defense of diminished capacity, despite it being his first capital case. The referee noted Parrish did not utilize available resources or conduct a comprehensive investigation. Furthermore, he failed to adequately consider a diminished capacity defense, with specific reasons for his inaction found insufficient. These included the nature of the defendant's alleged confession, the defendant's rational behavior post-custody, and the inadequacy of Dr. Glathe's report to justify rejecting the diminished capacity defense. Lastly, the referee criticized Parrish for not leveraging evidence from the public defender's office, particularly by failing to interview Woods or utilize her report to construct a defense or present mitigating evidence during the penalty phase. Parrish was found deficient in multiple aspects of legal representation, as concluded by the referee. He failed to utilize the Kuebel report to investigate the questionable backgrounds of key witnesses—Sylvia Ontiveros, Shay, and the Cowdells—to challenge their credibility during cross-examination. Parrish did not attempt to exclude the victim's extrajudicial identification of the defendant, despite knowing its significance and the fact that it was inadmissible hearsay. He also neglected to bar the reference to an intercepted telephone call, which was obtained without a warrant and lacked exigent circumstances, and should have been excluded based on its critical importance to the prosecution's case. Additionally, Parrish failed to address anonymous calls identifying the defendant as the perpetrator, which were also inadmissible hearsay. Moreover, Parrish did not investigate the backgrounds of key witnesses or ensure he possessed all relevant discovery materials, despite their potential to undermine the prosecution's case. He also overlooked testing the competency of Ontiveros and Cowdell, despite being informed of their drug abuse and mental instability. Finally, Parrish failed to attempt excluding references to the defendant's juvenile record and other unproven crimes, which could have prejudiced the jury against the defendant. Parrish's handling of the case was found deficient in multiple areas, including the failure to present a defense of diminished capacity during the guilt phase, despite strong evidence supporting such a defense. The referee concluded that Parrish should have been aware of this evidence and presented it. Additionally, during the penalty phase, Parrish neglected to introduce evidence regarding the defendant's troubled life and drug abuse, which could have served as mitigating factors. The referee noted that Parrish was aware of the defendant's significant PCP and drug use prior to the crimes and admitted to not preparing adequately for the penalty phase. He acknowledged his lack of thoroughness and admitted to feeling defeated after the jury's guilty verdict, stating he "gave up" at that point. Parrish's failure to call potential witnesses, such as Marynella Woods, was highlighted as a critical oversight that negatively impacted the defendant's case. Furthermore, Parrish did not request a comprehensive set of jury instructions at the penalty phase, only relying on two specified instructions. The referee indicated that Parrish's disposal of case files years after the trial, despite their potential importance, illustrated a lack of responsibility and loyalty expected from a competent attorney. Overall, Parrish's deficiencies in representing Ledesma at the penalty phase were deemed significant and detrimental to the defense. Parrish's conduct during the pre-trial and trial phases of a capital case was deemed inadequate by the Referee, particularly given that it was his first capital case. The Referee noted that Parrish failed to take necessary precautions to preserve the case files, which were critical for potential appellate assistance. Despite acknowledging the existence of legible documents, Parrish did not specify which documents were recoverable, hindering evaluation of his trial effectiveness. Additionally, he ignored requests from the Petitioner's counsel, Mr. Bryan, for the Ledesma files, even after water damage was reported. Parrish's destruction of these files raised doubts about his credibility, as he relied solely on his account of their contents. Correspondence from Bryan on December 22, 1980, emphasized the importance of reviewing all relevant materials, but Parrish did not respond. His dismissive attitude, exemplified by his comment about the files, further indicated a lack of professionalism. Although he claimed to have received calls from Bryan's office, he could not recall specific details regarding his responses. Overall, the Referee found Parrish's handling of the situation to be irresponsible and lacking in courtesy. Credibility and accuracy of Parrish's responses are questioned by the Referee, particularly regarding his responsibilities as Ledesma's attorney. Parrish's testimony indicates a lack of urgency in following up on the case, despite Ledesma's dire situation on death row. He acknowledged that he was no longer representing Ledesma and believed he did not need to assist further, neglecting the fact that he was being compensated for his services. Communication issues arose, as Parrish had only a post office box for contact, leading to inadequate follow-up on crucial letters from Ledesma's counsel, which requested meetings to review files and case materials. Parrish received multiple letters but failed to respond adequately or confirm any significant contact with Bryan, Ledesma's other attorney. The Referee questions whether the files contained critical materials that could reflect poorly on Parrish's defense conduct, and whether his inadequacies prejudiced Ledesma's defense, ultimately leading to a recommendation for a new trial for Ledesma based on the totality of evidence. On appeal, Ledesma raises issues regarding ineffective assistance of counsel, asserting that Parrish's performance during the guilt phase was below reasonable competence, although this claim is better supported in the habeas corpus context. The legal foundation for this claim lies in the Sixth Amendment and California Constitution, affirming the right to competent legal representation. The discussion centers on the constitutional rights of defendants to receive effective assistance of counsel, underscoring the importance of fair and reliable trial outcomes. The right ensures that defendants receive more than minimal assistance; it mandates competent advocacy from their attorneys. Specifically, effective assistance requires that counsel makes informed strategic decisions based on thorough investigation and preparation. A defendant can expect that their attorney will only engage in actions that a reasonably competent attorney would undertake. When evaluating claims of ineffective assistance, two components must be established: first, that the attorney's performance was deficient, failing to meet an objective standard of reasonableness under prevailing norms; second, that this deficiency affected the outcome of the trial. Courts typically exercise deferential scrutiny in assessing counsel's performance to avoid the pitfalls of second-guessing strategic decisions made by attorneys, acknowledging their broad discretion in determining the means of providing effective assistance. Judicial assessment of counsel's performance is complicated by the natural tendency to evaluate actions in hindsight, particularly when outcomes are unsuccessful. Courts struggle to gauge the reasonableness of counsel's decisions made during trial due to the imperceptible influence of their ultimate failure. The Strickland ruling highlights the danger of "second-guessing" counsel, which could lead lawyers to prioritize self-defense against ineffective assistance claims over their clients' interests, potentially deterring them from accepting cases and increasing frivolous claims that burden the judicial system. While deferential scrutiny of counsel is necessary, it must not shield poor performance from critical evaluation, as this would undermine the constitutional right to effective assistance. A defendant must demonstrate both deficient performance and resulting prejudice to succeed in an ineffective-assistance claim, as established by the Supreme Court. In certain situations, such as the total denial of counsel, prejudice is presumed, eliminating the need for case-by-case analysis, given the ease of identifying such impairments and the government's responsibility to prevent them. Prejudice in ineffective assistance of counsel claims must be affirmatively demonstrated, as established in Strickland v. Washington. The defendant must prove a reasonable probability that, but for counsel's errors, the outcome would have been different, which is defined as a probability sufficient to undermine confidence in the result. In cases challenging a conviction, the focus is on whether the factfinder would have had reasonable doubt absent the errors. For death penalty cases, the focus is on whether the sentencer would not have determined that the aggravating circumstances outweighed the mitigating ones. The defendant bears the burden of proof by a preponderance of the evidence. In the current case, although the defendant presents similar claims on appeal as in his habeas corpus petition, he acknowledges the limitations of the appellate record regarding allegations of his counsel's passive performance during the trial. The appellate record lacks clarity on counsel's actions, and unless there’s an absence of a satisfactory explanation or a failure to provide one when requested, the appeal is affirmed. The referee in the habeas corpus proceedings found that the defendant's counsel provided ineffective assistance in several respects and recommended granting the petition. The Attorney General contests this finding, but the standard of review allows for independent evaluation of the referee's legal conclusions, which is supported by precedent. Findings of fact from a referee are not binding on the court, allowing for independent examination of evidence, even in the presence of conflicting evidence. When findings are backed by ample or substantial evidence, they carry significant weight due to the referee's ability to observe witness demeanor and statements. However, resolutions involving mixed law-fact questions are subject to independent review, particularly when constitutional rights are at stake. The Attorney General raises five objections to the referee's report, primarily contesting the conclusion that defense counsel, Parrish, provided ineffective assistance by failing to investigate the case and explore a diminished capacity defense. The Attorney General argues that Parrish only presented the alibi defense because it was insisted upon by the defendant. However, the referee did not find Parrish solely responsible for creating the alibi, indicating that Parrish actively participated in its preparation but did not conclude that the defendant insisted on it. Testimony from Parrish suggests a complex relationship between his role and the defendant's insistence on the alibi. Ultimately, the court finds the Attorney General's arguments regarding Parrish's role and the defendant's insistence unpersuasive. The individual provided assistance in formulating an alibi for Fermin, asserting that Fermin was highly cooperative and amenable to suggestions. While uncertain about who originally proposed the alibi, the individual confirmed that Fermin had already prepared it and that they both agreed to use it. The individual believed they had the influence to guide Fermin's decisions, indicating that Fermin would have followed their advice if instructed not to testify. The Attorney General contended that Parrish’s later testimony regarding the alibi was unreliable due to inconsistencies with trial evidence, particularly concerning the defendant's intention to testify. However, it was noted that despite Parrish's failure to persuade the defendant against testifying during the penalty phase, he was ultimately successful in preventing the testimony itself. The argument that Parrish's posttrial statements represented a claim of inadequate counsel was deemed unpersuasive, especially given that Parrish exhibited evident inadequacies as counsel. During direct examination, Parrish clarified that while the defendant did not insist on the alibi, they had discussed various defense strategies, ultimately agreeing that the defendant was inclined to pursue the alibi as a means to avoid a life sentence. The conclusion drawn from the testimony and habeas corpus proceedings affirmed that Parrish played an integral role in the decision-making and preparation of the alibi defense, and that the finding that the defendant did not insist on that defense was supported by substantial evidence. Defendant's insistence on an alibi defense, rejecting diminished capacity or other mental defenses, does not absolve counsel of the duty to investigate all potentially viable defenses. Counsel must actively prepare the case and explore both factual and legal defenses, even when the client has a strong preference for one defense. The Sixth Amendment and relevant state laws mandate this diligence. The argument that counsel is excused from further investigation based on the defendant's statements is not persuasive, particularly when evidence supports a mental defense and contradicts the chosen defense. The Attorney General's position that counsel's decisions were reasonable due to the nature of the defendant's confession and supporting expert reports is rejected. The confession's context, occurring long after the incident and under circumstances that could affect the defendant's state of mind, does not adequately reflect the defendant's mental state at the time of the crime. Parrish's inadequate preliminary investigation into mental defenses, particularly diminished capacity, resulted in ineffective assistance to the defendant. His experience as a criminal defense lawyer should have led him to recognize the importance of these issues. During cross-examination, Parrish revealed that the defendant's demeanor and tone during the alleged confession raised doubts about the defendant's mental state, prompting him to obtain a psychological evaluation. However, Parrish's decision not to pursue further investigation was not justified by Dr. Glathe's report, which primarily addressed the defendant's competence to stand trial rather than his mental state at the time of the crime. Testimonies from medical and legal experts indicated that a reasonably competent attorney would have questioned the truth of the confession and sought additional research. The Attorney General's argument that Parrish's actions were adequate was rejected, as it failed to prove that Parrish's performance was competent or that a more favorable outcome would have occurred absent his shortcomings. Additionally, the Attorney General objected to the referee's conclusion that Parrish was ineffective for not moving to bar references to the victim's extrajudicial identification of the defendant. Although Parrish may not have been incompetent for not preemptively suppressing the identification due to the prosecutor's assurances, the failure to object to its introduction at trial was deemed a lapse in competence. The referee's findings regarding Parrish's deficiencies in representation and the resulting prejudice to the defendant were upheld. The prosecutor's comments and questions regarding extrajudicial identification were objectionable and directly addressed the critical issue of identity in the case concerning the robbery and subsequent attempt to eliminate the victim, Flores. In *People v. Nation*, it was established that trial counsel's failure to prevent the jury from accessing questionable identification evidence constituted incompetence. Similarly, Parrish's inaction regarding the identification references also amounted to incompetence. The Attorney General argued that Parrish's performance did not prejudice the defendant, citing the defendant's own testimony about the identification. However, this testimony was elicited through improper questioning by the prosecutor, to which Parrish did not object, allowing the defendant to claim incompetence. The Attorney General further contended that the trial court mitigated the impact of the identification references through its response to the jury, but this response did not neutralize the prosecutor's comments and instead implied that the victim had identified the defendant. The referee's determination that Parrish's inadequate performance prejudiced the defendant was upheld, particularly because the prosecutor's remarks were objectionable, addressed a pivotal issue, and the case lacked strong evidence linking the defendant to the crimes. Lastly, while the referee found Parrish ineffective for not ensuring proper discovery of evidence related to Shay and the Cowdells, this conclusion was deemed erroneous due to the lack of demonstrated prejudice from that failure. The Attorney General's fourth objection concerns the referee's conclusion that Parrish provided ineffective assistance by not testing the testimonial competence of witnesses Sylvia Ontiveros and Sharla Cowdell. While it is acknowledged that Parrish should have investigated their competence based on the defendant's claims about their mental state, it is determined that the defendant did not demonstrate any resulting prejudice, as he failed to show that either woman would likely have been deemed incompetent. Additionally, the Attorney General argues against the referee's finding of ineffective assistance due to Parrish's failure to suppress an intercepted telephone call. The Attorney General asserts that the call was admissible; however, this premise is rejected. The intercepted call was critical to the prosecution, linking the defendant to the robbery and indirectly to a murder, and was supported by credible testimony. The entry of police into the defendant's apartment without a warrant raises Fourth Amendment concerns, creating a presumption of unlawfulness that the prosecution must rebut. Since Parrish did not challenge the call, it remains unclear whether the prosecution could have successfully rebutted this presumption. Consequently, the Attorney General's argument that the call was plainly admissible is dismissed. The findings of the referee are upheld, confirming that the defendant was denied the constitutional right to effective legal counsel. Thus, the petition for writ of habeas corpus is granted, and the judgment of conviction is vacated, remanding the petitioner to the Superior Court of Santa Clara County. Upon finality of the opinion and order, the clerk is instructed to send a certified copy to the superior court for filing, with the respondent required to serve a copy to the prosecuting attorney in accordance with Penal Code section 1382, subdivision 2. The opinion primarily addresses the defendant's claim of ineffective assistance from trial counsel Jefferson M. Parrish, Jr., asserting that resolution of this issue is sufficient to conclude the case. However, a separate concurrence raises three additional potential guilt-phase issues that highlight Parrish's incompetence. One key contention involves the prosecutor, George Kennedy, allegedly striking Hispanic jurors based solely on group bias, violating the Wheeler rule. The Wheeler precedent establishes that a party using peremptory challenges is presumed to do so for constitutionally valid reasons unless a prima facie case of discrimination is made. This requires the challenging party to document the exclusion of jurors from a cognizable group, demonstrate a likelihood of bias-based challenges, and provide evidence of improper questioning during voir dire. The record suggests sufficient grounds to infer that the prosecutor’s actions were motivated by group bias, as multiple jurors identified as Hispanic were excluded. The opinion references relevant cases affirming that Hispanics qualify as a cognizable group under the Wheeler framework, and it appears that the excluded jurors were challenged based on their ethnicity rather than specific biases. Bagnod, Maes, Jiminez, Flores, Corral, Porcella, and Logan represent a group of prospective jurors with varying backgrounds, including occupations such as blue-collar work, management, nursing, and teaching. The prosecutor exercised peremptory challenges against these jurors, notably striking Bagnod after a brief voir dire and the others without conducting any examination. The defendant is Hispanic, which somewhat diminishes the significance of the fact that the victim was also Hispanic. The challenged jurors included individuals who, based on their backgrounds, would likely have been considered desirable by the prosecutor if not for their ethnicity. Notably, Maes and Flores expressed strong support for the death penalty, while Corral had a positive view of police efforts in resolving a burglary case. There is a prima facie case of group bias against the prosecutor's exercise of peremptory challenges, as he failed to provide valid justifications for striking the jurors, particularly Jiminez, whom he claimed was disqualified due to a past acquaintance with the defendant. However, the nature of their connection was minimal and unsubstantiated by further questioning. The prosecutor's rationale lacks a solid foundation, as he did not articulate clear reasons for the challenges against Maes, Flores, Porcella, Corral, and Logan. The Attorney General suggested possible reasons for these strikes, but the court finds no convincing justification in the record. The prosecutor's explanation to the trial court is under scrutiny, especially regarding the improper striking of juror Bagnod, which the Attorney General acknowledged lacked justification, thus violating the Wheeler rule. A single improper challenge is sufficient to establish a violation since a party is entitled to a jury representing the community's cross-section. If the prosecutor's peremptory challenges were based on group bias, a reversal of the conviction is mandated, as the right to a fair and impartial jury is a fundamental constitutional guarantee. Although the defendant's contention under Wheeler seems significant, the issue was not preserved for appeal as defense counsel failed to raise it during the trial. The necessity for timely objections during the voir dire process is emphasized for several reasons: it allows for a stronger prima facie case, informs opposing counsel, aids the court's decision-making, and promotes judicial efficiency. Delayed objections hinder the court's ability to recall specifics and may obstruct the pursuit of a fair outcome. Parrish's failure to assert or pursue the issue of potential group bias in jury selection left the record insufficient for a reviewing court to assess whether a prima facie case exists. There was no clarity on the percentage of Hispanic jurors struck by the prosecutor or whether such strikes were disproportionate. The court's inaction, linked to Parrish's lack of initiative, meant that the prosecutor was not adequately prompted to justify his peremptory challenges. Consequently, the issue was not preserved for appeal, necessitating its rejection without evaluating the underlying merits. On the matter of the admissibility of an intercepted telephone call, it is presumed that a warrantless police entry into a residence violates the Fourth Amendment, with established case law supporting this position. The warrant requirement may be bypassed only under narrowly defined exigent circumstances, such as hot pursuit of a fleeing felon or to prevent imminent destruction of evidence. Both exceptions demand strict adherence to their criteria: immediate pursuit for a fleeing felon and a clear threat of imminent evidence destruction. Consent to enter also negates the warrant requirement. Consent for searches must be voluntary, as established in various case law, including Schneckloth v. Bustamonte. The determination of voluntariness is a factual question that considers the totality of circumstances. Factors affecting voluntariness include the presence of multiple police officers, which may imply coercion, and any significant interruption of the individual's liberty. When police rely on consent for a warrantless search, their authority is limited to what has been granted through that consent. If police conduct violates the Fourth Amendment, evidence obtained must be suppressed per the exclusionary rule, as noted in Mapp v. Ohio. The defendant bears the initial burden of demonstrating unlawful police action. If a warrantless entry is shown, the burden shifts to the prosecution to prove the entry's reasonableness, which may involve demonstrating exigent circumstances or voluntary consent. The prosecution must also show that the search fell within the scope of the consent granted. In the reviewed case, the intercepted telephone call was deemed inadmissible due to unlawful police conduct, as officers entered the defendant's apartment without a warrant and without established exigent circumstances. Consent for police entry by Santiago and Dominguez was questionable; it appeared they had little choice when confronted by armed officers. Even if they consented to the entry, there was no evidence they consented to a search or interception of a phone call. Upon arrival, the police stated they were looking for the defendant, limiting any consent to searching for him. After the officers entered, they restricted Santiago and Dominguez's movement and searched the apartment for the defendant. When a phone rang, the officers prevented them from answering and intercepted the call, during which Officer Guerra identified herself as "Millie," leading to a statement allegedly made by the defendant. Santiago and Dominguez were under significant police presence, which likely affected their ability to give voluntary consent for the call interception. The court emphasized the Fourth Amendment's protection against unreasonable searches and seizures, noting that the introduction of the intercepted call could not easily be deemed harmless. The Chapman v. California standard requires that any federal constitutional error must be shown to be harmless beyond a reasonable doubt, particularly when a fundamental right is involved. The intercepted call was relevant to the case, indicating the defendant's potential involvement in a robbery and providing a motive for murder, thereby likely influencing the jury's decision. However, the merits of the issue could not be fully assessed due to Parrish's failure to timely challenge the police conduct. In *People v. Jenkins* (1975), the court noted that Parrish failed to challenge the legality of evidence presented by the prosecutor, which led to the conclusion that the issue was not preserved for appeal. The prosecutor was not given an opportunity to justify the legality of the evidence, thus any contention regarding its admissibility must be rejected without further examination. The defendant alleged multiple instances of prosecutorial misconduct. Despite the absence of objections from Parrish, some claims of misconduct appeared to have merit, particularly concerning group bias in jury selection and the prosecutor's handling of extrajudicial identification evidence. The prosecutor's actions, which included referencing the victim's identification of the defendant during opening statements and witness questioning, suggested an attempt to introduce inadmissible evidence indirectly. Specific references included the prosecutor's discussion of a license number connected to the case and the victim's identification process, which implied the victim had identified the defendant without formally introducing that evidence. The court recognized that determining whether prosecutorial misconduct occurred hinges on the specifics of each case and requires a demonstration of bad faith. During closing arguments, the prosecutor repeatedly emphasized the victim's extrajudicial identification of the defendant, Mr. Ledesma, presenting it as if it were established evidence. He highlighted factors such as motive, flight, and a license number, urging the jury to consider these elements as corroborative of the identification. The prosecutor argued against acquittal by suggesting that doing so would imply acceptance of an unreasonable misidentification by the victim, who only viewed photographs without knowledge of essential details about the defendant. The prosecutor's actions are deemed misconduct as he referred to facts not in evidence and suggested their existence through his statements and questions. Although jurors are instructed that attorney statements are not evidence, the potential for misguidance remains significant. This is corroborated by the jurors' request for a rereading of testimony regarding the victim's identification, indicating that they believed the victim had identified Ledesma, contrary to the actual testimony given by Sergeant Traskowski. The Attorney General's defense of the prosecutor's comments as reasonable inferences from the evidence was rejected. A prosecutor may present conclusions from the evidence, but cannot introduce conclusions that effectively rely on evidence he has chosen not to submit. The defendant argues that the prosecutor improperly elicited testimony regarding anonymous tips identifying him as the perpetrator. During cross-examination, the prosecutor questioned the defendant about the nature of these anonymous calls, suggesting that many individuals implicated him in the crimes. The defendant denied knowing those who made the calls and contested the validity of the accusations. The prosecutor also questioned a police sergeant about the anonymous tips corroborating the defendant's involvement, which was deemed inadmissible hearsay. The prosecutor's intent to elicit such testimony constituted misconduct, as it was clear he aimed to obtain this inadmissible evidence. The significance of this misconduct is heightened by the closeness of the case, as the extrajudicial identification was critical for establishing the defendant's guilt. There is a reasonable probability that, without this misconduct, the trial's outcome could have been more favorable for the defendant. However, the misconduct claim was not preserved for appeal because the defendant failed to raise it at trial and request a jury instruction to disregard its impact, thus it could not be resolved on its merits. An objection to prosecutorial misconduct must be accompanied by a request for a curative admonition to preserve the issue for appeal, as established in *People v. Green* (1980). This allows the trial court to correct the misconduct and mitigate its potential impact on the jury. In this case, Parrish did not object to the alleged misconduct during trial, leading to a waiver of the issue on appeal. The only exception to this requirement allows a reviewing court to consider the merits of a claim if a timely objection would not have mitigated the harm, but this exception does not apply here as no instance of prejudicial misconduct was shown to be incurable. Defendant claimed that a second exception existed where the case is closely balanced and misconduct materially influenced the verdict, arguing that this should apply retroactively despite *Green* being decided after his trial. However, while judicial decisions generally apply retroactively, *Green* did not establish a new rule but reaffirmed the existing requirement for timely objections to preserve misconduct claims. The prior language from *People v. Berryman*, which defendant relied upon, lacked historical legitimacy and had been largely disregarded in subsequent cases, thus not warranting prospective application of *Green*. Ultimately, the court finds no basis for exempting defendant from the requirement of a timely objection. The court in Guerra established that a new rule is generally presumed to operate retrospectively unless its purpose clearly indicates otherwise, and that justifiable reliance on the prior rule is necessary for an exception based on policy grounds. In this case, the purpose of the Green rule does not clearly suggest prospectivity, and the defendant did not demonstrate justifiable reliance on the previous rule, particularly regarding the "exception" noted in Berryman concerning prosecutorial misconduct. As a result, the claim of prosecutorial misconduct does not merit appellate review. Parrish, the defense counsel, exhibited such incompetence that it undermined the reliability of the trial and hindered the defendant's ability to raise potentially meritorious claims, aside from ineffective assistance. The court concluded that Parrish's performance failed to provide effective counsel, leading to a judgment to grant the petition for a writ of habeas corpus and vacate the conviction. While there were claims regarding the sufficiency of evidence for intent related to the murder victim, retrial on that special circumstance is barred if there is insufficient evidence. The concurrence indicates that the defendant is not precluded from asserting double jeopardy regarding this allegation, despite the court's failure to address it directly. The judgment is set aside primarily due to the lack of constitutionally adequate representation by counsel, with the concurrence noting that although specific prejudice was not demonstrated, the performance of counsel was inadequate enough to undermine confidence in the verdict. The standards for determining ineffective assistance of counsel require showing that counsel's errors caused specific, identifiable prejudice, as outlined in Strickland v. Washington and other related cases. A defendant challenging a judgment via habeas corpus must prove the facts supporting his claim by a preponderance of the evidence. The excerpt critiques the majority's finding of prejudice due to the defense counsel's failure to investigate a diminished capacity defense, arguing that they did not identify how such a defense could have led to a more favorable outcome. The burden lies with the defendant to present evidence showing that counsel could have discovered information supporting a diminished capacity defense, which might have influenced the verdict. While experts testified regarding the effects of PCP on cognitive abilities, none examined the defendant or opined on whether he lacked the intent to steal. In felony-murder cases, only the intent to permanently deprive the victim of property is relevant, and the record does not indicate the defendant lacked this intent. The majority also criticized counsel for not filing a pretrial motion to exclude the victim's extrajudicial identification, but it is argued that such a failure is not inherently prejudicial, as pretrial rulings can be revisited at trial. Furthermore, the admissibility of the identification evidence as hearsay is questioned, as its relevance may extend beyond merely asserting the truth of the victim's statement about the defendant being the robber. The statement indicates that the defendant's awareness of witness identification provided a motive for murder, specifically to eliminate the witness, which is relevant to establishing the identity of the killer. The counsel's failure to object to the admission of evidence regarding an intercepted telephone call did not demonstrate specific prejudice to the defendant, as he did not prove that a motion to exclude the evidence would have been successful. In a habeas corpus context, it is the defendant's responsibility to demonstrate that the evidence seizure was unlawful. The defendant failed to show that police entry into the home was non-consensual. Despite the lack of specific prejudice, the counsel's overall performance was critically deficient. Factors undermining the defense included the counsel's failure to investigate apparent defenses, inadequate trial preparation due to personal issues (compulsive gambling, lack of sleep), and abandonment of the client post-guilt phase. These deficiencies compromised the integrity of the trial process, indicating that no attorney could effectively defend a capital charge under such circumstances. The right to effective counsel is linked to the ability to challenge the prosecution meaningfully; if this adversarial process is lost, it constitutes a violation of Sixth Amendment rights. The court concluded that while the defendant did not show specific prejudice, the counsel's failings were severe enough to disrupt the adversarial process, potentially affecting the trial outcome, including the first-degree murder verdict and the death sentence. The judgment grants a petition for writ of habeas corpus and vacates the previous judgment, with Justices Lucas and Panelli concurring. Fermin Ledesma, born on March 21, 1951, in Corpus Christi, Texas, came from a migrant family of eight. His early life involved extensive traveling for agricultural work, causing a lack of stability and a sense of home. At eight, the family settled in California, where he began school but faced humiliation due to language barriers and being placed in the first grade. Fermin described his work in the fields as akin to slavery, receiving little in return and suffering physical abuse from his father, who had a second family in Mexico. He was embarrassed by his old clothes and eventually began skipping school, leading to dropping out in high school. His teenage years included interactions with the juvenile court due to truancy and delinquency, resulting in time spent in Juvenile Hall and Boys Ranch. Fermin’s relationship with his father was marked by a lack of love and excessive punishment, including beatings with various objects. He craved his father's approval but felt rejected, particularly as his brother Ray was favored and tasked with disciplining him. Violence was pervasive in Fermin's life, both at home and in his neighborhood, contributing to severe psychological trauma. He reported no happy memories, only recollections of abuse and violence, including scars from fights. Rat banging involves a group of individuals violently attacking a single person. Fermin, the subject of the document, experienced a lack of emotional support and nurturance growing up as the fifth child in a large family, feeling unloved and designated as the "black sheep." He expressed feelings of rejection from his family, particularly from his father, which led him to seek acceptance in negative social circles. His coping mechanism included developing a hardened persona to shield himself from emotional pain. Fermin’s relationship with his family was strained; he often felt excluded from family activities and received minimal responses to his communications. After a troubled upbringing, including a car theft offense at age 17, he was pressured by his probation officer to join the Army or face juvenile detention. His Army experience was traumatic, characterized by disrespect and abusive treatment from superiors, which exacerbated his existing issues with authority figures linked to childhood abuse. During his service, Fermin frequently went AWOL, choosing to live on the streets or with his brothers instead of returning home. A significant emotional blow occurred when he was informed of his brother Pascual’s supposed death in Vietnam, which he described as the final straw leading him to reject the Army. Unfortunately, his brother Ray reported his location to military police, resulting in Fermin's return to Fort Ord and a 96-day sentence in the stockade. Prisoners, including Fermin, initiated a strike protesting prison conditions, leading to heightened tensions during recreational breaks. Fermin verbally confronted Sergeant Thermin, resulting in his confinement in the "hole," a small, harsh room lacking bedding, heat, and windows, for 8 to 14 days. During his time there, he was severely beaten by military police (MPs) during meals, causing extensive physical injuries. This abuse intensified Fermin's feelings of rage and powerlessness regarding the Army. After his release, he contemplated retaliating against one of the MPs but ultimately refrained due to an understanding of the consequences. Subsequently, Fermin married Adelita Chiodo in March 1970, and they started a family, but his life took a downturn after he learned of her infidelity in 1972, which he described as a pivotal moment of rejection and anger. This event led to a drastic change in his lifestyle; he struggled to maintain employment and began abusing drugs, particularly marijuana and PCP, while engaging in criminal activities. His relationship with Lettie, a significant partner, lasted four to five years but ended due to his increasingly erratic behavior tied to drug use. Following this breakup, Fermin faced severe personal decline, losing his job and deepening his drug involvement, stating that he no longer cared about his life. Fermin reported consuming eight KJ (a type of drug) daily from May to August before leaving for Utah, where he also used LSD multiple times. Upon returning to San Jose, he resumed heavy KJ use and spent the days leading up to his arrest in a constant high. His extensive drug use, beginning with glue sniffing at a young age and escalating to marijuana, LSD, and KJ over seven years, has significantly impacted his psychological development and mental state. Fermin experienced numerous "bad trips," characterized by paranoia and hallucinations, including a terrifying episode while driving where he felt he was evaporating. He describes himself as a "burn out case," struggling with memory loss and difficulties in reading and writing. Fermin's life history reveals a pattern of violence as a problem-solving method, stemming from a lack of nurturance and exposure to severe abuse. He feels rejected by loved ones, including family, leading to a damaged self-image and feelings of isolation. His father's absence of affection further exacerbated these issues, contributing to his self-identification as a loser and loner. Despite these challenges, Fermin expresses a sense of living in the moment, indicating a tragic rage built over time due to his oppressive environment. Observations highlight potential, particularly in his affection for his daughters, but he has developed a hardened exterior to mask his pain. Key psychological issues identified include: the effects of childhood abuse, insufficient bonding due to early maternal separation, exposure to violent role models, psychological impacts from time spent in confinement, relationship breakups, and the damaging effects of drug use. Key points include the uncertainty surrounding the number of cases handled by the individual (noted as twenty-eight) and a series of inquiries regarding the performance of petitioner's trial counsel. The questions focus on the evidence or leads provided to the trial counsel by a former public defender, the investigative steps taken by the trial counsel, and any evidence discovered during this investigation. Specific concerns are raised regarding potential inadequacies in the counsel's representation, such as failing to investigate diligently, review the prior report, object to certain evidence at trial, or address other allegations in the habeas corpus petition. The document also discusses the implications of any affirmative answers to the adequacy questions, querying whether the trial counsel's failures deprived the petitioner of a potentially meritorious defense or if a more favorable outcome was probable without those failings. Additionally, the excerpt includes a mental status evaluation of the petitioner, Fermin Ledesma, conducted by Dr. Glathe. The examination indicates Ledesma was cooperative, alert, and oriented, with no serious mental illness detected. While he displayed both pleasant and inappropriate 'macho' behavior, his intelligence appeared average, and he understood the legal proceedings he faced. The report suggests he believed he could cooperate effectively with his legal counsel during the trial. Key points include a diagnosis of drug dependence on PCP and methamphetamine, with indications of serious abuse. The individual is deemed competent to stand trial and likely sane under California law. The report suggests that any confession or admission would be inadmissible without proof. There is a noted discrepancy in testimonies regarding the number of times a victim was shot, with implications that the defendant may have been hallucinating, prompting a need for examination of mental condition. Witness statements indicated a timeline discrepancy regarding the defendant's whereabouts, and the defense counsel did not adequately address these inconsistencies during trial. The prosecution provided recordings that included potentially leading questions from police, which could have influenced witness testimonies. The defense counsel also failed to challenge significant factual inconsistencies that could undermine witness credibility. Additionally, the referee found that the defense counsel ineffectively waived the presence of a material witness, indicating a possible misunderstanding of the allegations against them. The referee found the trial judge's and bailiff's testimonies regarding Parrish's performance to lack credibility, noting that the judge might not have recognized Parrish’s failings due to his focus on the trial and the bailiff's questionable assertions about the trial's events. The referee concluded that the defendant did not prove Parrish's performance was unreasonably deficient, particularly concerning allegations of failing to remove a juror with a traumatic background and not presenting an opening statement during the guilt phase. Furthermore, the defendant did not demonstrate prejudice stemming from Parrish's alleged inadequacies related to claims of guaranteed acquittal, failure to request jury instructions, misstatements during the penalty phase, or lack of communication post-sentencing. The defendant's own statements during questioning revealed uncertainty about the identification by a gas station attendant and highlighted that there was no clear positive identification made against him. The referee acknowledged that while his conclusions differed from the trial court's, he attributed the lack of action regarding a potential constitutional issue not to the court but to Parrish’s failure to present a prima facie case against the prosecution’s conduct.