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In re Gay12/24/1998
Petitioner Kenneth Earl Gay was convicted by a jury of the June 1, 1983, first degree murder (Pen. Code, § 189) of Paul Verna, a Los Angeles police officer. The jury found that the murder was an intentional killing of a peace officer engaged in the performance of his duties; that the murder was committed for the purpose of avoiding lawful arrest (§ 192.2. subd. (a)(5)); that a principal was armed with a firearm (§ 12022); and that petitioner personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). The jury returned a penalty verdict of death.
The jury also found petitioner guilty of two counts of attempted robbery (§§ 664/211), ten counts of robbery (§ 211), conspiracy to commit robbery (§ 182), and being an ex-felon in possession of a concealable firearm (§ 12022). He was found to have personally used a firearm in committing three of those offenses (§§ 12022.5, 1203.06, subd. (a)) and to have inflicted great bodily injury on two of the robbery victims (§ 12022.7).
This court reversed the attempted robbery, robbery, and conspiracy to commit robbery convictions on the basis of prejudicial instructional error, but otherwise affirmed the judgment and sentence of death on April 29, 1993. (People v. Cummings (1993) 4 Cal.4th 1233.)
While his appeal from the judgment was pending, petitioner filed this petition for writ of habeas corpus. The petition challenges the validity of the judgment on several grounds. A claim of ineffective assistance of counsel is the principal focus of the petition for writ of habeas corpus. After review of the petition and accompanying exhibits, this court issued an order to show cause ordering respondent Director of Corrections to show cause why the penalty of death should not be set aside on the ground that petitioner had received constitutionally ineffective assistance by trial counsel, Daye Shinn, at the penalty phase of the trial.
After consideration of the record on appeal, the evidence presented at the habeas corpus evidentiary hearing, and the findings of the referee, we conclude that petitioner did not receive constitutionally adequate representation at the penalty phase of the trial. While we cannot say with certainty that the result would have been more favorable to petitioner had he been represented by competent counsel, neither can we have confidence in a penalty verdict rendered after a trial in which counsel for defendant defrauded both the court and his client and ill served his client in the manner demonstrated by this record. We shall, therefore, grant the petition for writ of habeas corpus and remand petitioner to the superior court for a new penalty trial.
I.
Background
Officer Verna was shot and killed by petitioner and his crime partner Raynard Paul Cummings when Verna stopped the car in which they were passengers, driven by Pamela Cummings, Raynard's wife, as they drove through the Lakeview Terrace district of the San Fernando Valley. In the weeks before Verna stopped the car for a traffic violation, Cummings, allegedly with petitioner, had committed a series of robberies in Los Angeles County. Following his arrest petitioner was held in the Los Angeles County jail.
Daye Shinn met with petitioner in the county jail and appeared as retained counsel for petitioner at the preliminary hearing, replacing a deputy public defender who had been appointed by the court. Petitioner had retained Shinn prior to the preliminary hearing on the fraudulent representation by Shinn and Marcus McBroom that Shinn's fees would be paid by a group of Black businessmen. Shinn was later appointed to represent petitioner after Shinn first advised petitioner to tell the
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