In re Corpus

"2. Did Tambri Butler testify falsely at the penalty phase of petitioner's trial regarding any other matter, including: (1) whether she had seen petitioner on television before she identified him as her attacker; and (2) whether she had been promised leniency for her testimony and/or was aware that she would be released early after she testified?

"3. Is there newly discovered, credible evidence indicating that petitioner did not assault Tambri Butler in 1986, including evidence that another person committed the assault? If so, what is that evidence?

"4. What information did law enforcement agencies involved in petitioner's prosecution possess before, during and after petitioner's trial regarding Michael Ratzlaff's attacks on prostitutes other than Tambri Butler? When did law enforcement come into possession of the information? Were the individual law enforcement officers who possessed the information involved in petitioner's prosecution? Was the prosecution in petitioner's case aware, or should it have been aware, of the information? Did the prosecution disclose such information to petitioner's defense counsel?

"5. What crime was Tambri Butler serving time for at the time she testified at petitioner's trial? Did the prosecution disclose information about Tambri Butler's criminal history to the defense? If so, what information did it disclose?

"6. Was Tambri Butler promised leniency in exchange for her testimony against petitioner? Did Tambri Butler request early release in exchange for her testimony? Was Tambri Butler aware at the time she testified that she would be released early in exchange for her testimony? Was Tambri Butler threatened by law enforcement agents or given false information about the killing of Tracie Clark before she testified? Was the prosecution aware, or should it have been aware, of any promises or threats made to Tambri Butler

The trial court granted petitioner's motion for partial acquittal on the Benintende count, reduced the charge to second degree murder, and instructed the jury it could reach no greater verdict than second degree murder on that count. As noted, the jury returned verdicts convicting petitioner of the first degree murder of Clark and the second degree murder of Benintende, and found true a multiple-murder special-circumstance allegation.

At the penalty phase, Ellen M. (also known as Angel or Angela), the sex worker whose complaint had led to petitioner's brief termination in 1983, testified that after interrupting her liaison with a customer, petitioner detained her, told her to undress, and took photographs of her breasts and vaginal area.

Tambri Butler testified that petitioner assaulted her in February 1986, when she was a heroin addict engaging in sex work in Bakersfield. According to Butler, petitioner made contact with her on Union Avenue in a white pickup truck. He declined her request to go to her motel room, instead driving out to a field in the countryside. She agreed to perform "half and half," i.e., oral and vaginal intercourse, for $40. She took off her clothes and engaged him in conversation, "nothing important, just talking to the man finding out he wasn't a cop, a police officer," by asking "where he is from, if he has got a family," so that she would "feel comfortable for [her]self." After she performed oral sex they began to engage in vaginal sex. Because he had not ejaculated, and the encounter was taking a long time, she told him "he was either going to have to do something or he was going to have to give me some more money." He told her "no, that is not what was going to happen," "we were going to do some more things." When she "started getting sort of disagreeable," he took what she called a "stinger" gun off the dashboard and used it to shock her on the neck, which burned her and left scars. After further vaginal sex he demanded anal intercourse and, when she refused, he took an automatic weapon out of the glove compartment and fired it across the bridge of her nose. Thereafter she acceded to anal sex and again performed oral sex. Subsequently, he demanded she empty her pockets, took her heroin and cash, and made her ask for them back. He then pushed her out of the truck and tried to run her over.

In mitigation, the videotape of petitioner's sodium amytal interview was played for the jury. One of petitioner's mental health experts reiterated his opinion that petitioner was under "extreme emotional distress" when he shot Clark, that the lifetime of abuse he had suffered made it difficult for him to

In a declaration dated November 14, 1999, and attached as an exhibit to the habeas corpus petition, Butler expressed doubt about her identification of petitioner. She explained that at the time she testified in petitioner's case, she was engaging in sex work to support her heroin addiction. She stated that the attack in the winter of 1986 occurred exactly as she testified. The attacker had a "thick bushy moustache that grew long over his upper lip." The man showed her photos of his children - a boy and a girl. He

The referee found that Butler was not a credible witness at the evidentiary hearing. He found that Butler changed or "fudged" her testimony in order to minimize or explain away the significant differences between her description of her assailant in her Lerdo jail interview, the details of which she largely reaffirmed in her hearing testimony, and petitioner's appearance in 1987. The referee cited the example of the markings on her assailant's lower back, which Butler had described in her Lerdo jail interview as large black splotches or moles, and which she reaffirmed in her evidentiary hearing testimony, adding that they had "grossed her out." On cross-examination at the evidentiary hearing, when shown a photograph of petitioner's back from that time, she acknowledged that no such dark splotches were evident. Later, on redirect examination, when shown another photograph of petitioner's back

Ratzlaff's attack on Lavonda I., however, on the whole displays brutal force exercised in a controlled manner, although it does contain at least one act that could be characterized as explosive violence. A somewhat detailed account of the attack, taken from Lavonda I.'s testimony at the successful prosecution of Ratzlaff for the assault, is necessary to highlight the similarities to Butler's attack and respond to the Attorney General's argument.

The two examples of Butler's fudging or changing her testimony that the referee identified concern (1) the dark moles that she, in her 1987 jailhouse interview, recounted seeing on her assailant's back and (2) her allegations, first disclosed to Investigator Hodgson in 2011 shortly before the evidentiary hearing, that petitioner sexually molested her at least three times while she was incarcerated in the county jail. As to the first, the Attorney General acknowledges that a photograph of petitioner's back at the time of trial showed small rounded reddish spots but no dark spots, and that the referee did not credit Butler's new characterization, in her evidentiary hearing testimony, of the dark moles as pimples that she remembered feeling. The Attorney General contends this testimony fits the referee's description of Butler making a "sincere attempt to respond," but because "so much time had passed," her response was unconvincing. He observes that the referee did not expressly find that Butler's testimony in this regard was "willfully false." But, once again, the issue is not whether her testimony fits the formal definition of perjury. The "pimples" testimony undercuts Butler's credibility because, as the referee explained, it reflects a pattern in which she changed her previous story and

The Attorney General cryptically concludes that "the evidence presents no other explanation for her 1987 statement," apparently meaning that the only way to understand her statement in her 1987 jail interview that she had "had

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

In 2007, we issued to the Secretary of the Department of Corrections and Rehabilitation an order to show cause why we should not grant petitioner relief on the grounds connected to the alleged misidentification by Tambri Butler, namely:

(1) newly discovered evidence and use of false evidence, as alleged in claim III;

(2) the prosecutor's failure to disclose exculpatory evidence, as alleged in claim IV;

(3) ineffective assistance of counsel, as alleged in subclaims (G), (K), (L), (M), (N), and (O) (to the extent petitioner alleged failure to request CALJIC No. 2.92 ) of claim V;

(4) cumulative penalty phase prejudice arising from the facts alleged in the subclaims of claim V identified in paragraph (3) above, as alleged in subclaim (Q) of claim V; and

Petitioner was arrested a few days after the Clark murder. After waiving his rights to an attorney and to silence, he confessed to the Clark murder, but not the Benintende murder. Regarding the Clark murder, petitioner stated that while driving his pickup truck on Union Avenue early one morning he picked up Clark, agreed to pay her $30 for sex, and drove her out to the "country." Clark began performing fellatio on him, but then stopped and demanded more money because the liaison was taking so much of her time. When petitioner refused, an argument ensued; Clark hit, kicked, and yelled at him. He pointed a

Butler was questioned about the alleged in-jail sexual assaults at the evidentiary hearing. She initially described three incidents (and later said there might have been a fourth) in which she was brought to an interrogation room by jail staff and left alone there with petitioner, who, during the various sessions, told her to strip naked, sexually penetrated her with an object, and verbally humiliated her. The referee did not believe that Butler would have the ability to recall details of the molestations that she claimed to remember despite the passage of more than 20 years.

The referee also found that Butler's claims that she was sexually molested in the jail were thoroughly impeached by two witnesses who worked as sheriff's deputies at the jail during that time.

Overall, the referee described Butler's evidentiary hearing testimony as being sincere in many respects, and he noted that she attempted to respond to the questions posed to her, but he found that her ability to respond to those questions had been affected by the passage of time since the incidents. The referee noted that Butler admitted being confused, and he felt her credibility at the evidentiary hearing suffered for it.

The referee also based his conclusion that Butler testified falsely at the penalty phase of petitioner's trial on the circumstance that, in his view, none of the descriptions

The referee described the following "striking" parallels between the Butler assault and documented attacks by Ratzlaff on Lavonda I. and other women, including Jeannie S., Deborah C., and Dealia W.: Deals were made on Union Avenue. The assailant insisted on going out to a remote area in the country. The sex started with fellatio. The assailant could not perform. More money was agreed on for the woman to continue. The woman said it was taking too long to consummate the sexual act and she wanted to go back to Union Avenue. The assailant flew into a violent rage, fired warning shots, and used a stun gun. The victim received anal abuse and was then robbed and left on a country road. The assailant had a bushy mustache and drove a light-colored pickup with sideboards and a cluttered interior. The referee concluded that this pattern supported the inference that an assailant other than petitioner committed the assault on Butler.

Preliminarily, we observe that although the questions posed to the referee encompass a variety of matters embraced within the order to show cause, the central issue before this court is whether Butler falsely identified petitioner as her assailant. Petitioner bears the burden of proof on this question by a preponderance of the evidence. Given the nature of the false evidence claim here and the relevant facts, petitioner can meet this burden by proving it is more likely than not that someone else, not petitioner, in fact assaulted Butler. Throughout his briefing, the Attorney General argues that petitioner has failed to prove that Butler intentionally gave false testimony at trial and at the hearing, but section 1473 does not require a petitioner establish that a witness knowingly or intentionally testified falsely, provided the false testimony was material to his or her conviction or sentence. Subsidiary questions concerning whether Butler gave false testimony in other respects going to her general credibility are significant only to the extent the answers to those questions illuminate the central issue of the truth or falsity of her identification of petitioner.

A subsidiary question may relate directly to the truth of the identification. For example, the question whether Butler testified falsely at trial when she claimed not to have seen petitioner's postarrest image on television while in jail and before her interview with investigators bears not only on her general credibility, but also on the question whether her identification of petitioner was tainted, and thus made less reliable, by virtue of her having seen his image in that context. Other questions, including whether statements Butler made in her declarations reflect "uncertainty about the prior identification, rather than a positive belief the identification was wrong" are not determinative of the truth of her trial testimony, and need not be extensively addressed here. We will accordingly focus primarily on the record and findings that relate directly to the reliability of Butler's identification testimony.

For the reasons discussed below, we conclude that petitioner is entitled to relief because material false evidence was presented at his trial, namely that

However, although the Attorney General speculates that Butler might have felt threatened or pressured in these ways to give Ermachild a declaration useful to petitioner, he points to no statement by Butler indicating that she ever actually felt pressured or intimidated. In Butler's evidentiary hearing testimony and in her recorded telephone conversations with Investigator Hodgson, Butler did in places repudiate some of the statements in her declarations, but did not do so on the basis that she had been threatened or compelled to make them. For example, in a conversation with Investigator Hodgson, Butler described her statements in the declarations as resulting from distress and confusion arising from the visit of Ermachild, who created doubts in her mind by showing her the photographs of Ratzlaff, whom Butler immediately found chillingly similar to her memory of her assailant. This does not, however, indicate that Butler was intimidated into signing the declarations. What is reflected in Butler's testimony at the evidentiary hearing and her statements in her recorded conversations with Investigator Hodgson is

The Attorney General further contends there is no evidence that any decision to direct Butler's release was made before the judgment of death was imposed, which was more than a month after she testified. Therefore, he contends that because there was neither an explicit nor an implicit arrangement, or even evidence of an arrangement, she could not have been "aware" that she would be released early. In other words, his argument is that Butler could not have been aware of an agreement to have her released early because no such agreement was ever formed, and therefore she could not have been aware of something that did not exist.

The issue, however, is not whether some legally cognizable agreement was ever formed between Butler and the authorities. What is important is her psychological belief - what the referee meant by "awareness" - that she would be creating the possibility that she might be released early by cooperating and testifying in a way that she thought the authorities wanted her to. That her belief was based on something less than a legally binding contract, and thus on something less than certainty that she would gain the hoped-for benefit, does not undercut the referee's finding.

As a further argument that there was not even an implicit agreement for her early release, the Attorney General contends that the authorities' only motivation to release her early after petitioner received his death sentence was their

We cannot say the referee's finding - that Butler's characterization of the offense was so obviously watered down that it rose to the level of a false response - was unsupported by the evidence. The referee could reasonably believe that Butler, who had been arrested numerous times, would have known that felony possession for sale is an offense fundamentally different from simple possession. Moreover, as with the testimony regarding the television broadcast, the referee was entitled to consider Butler's answer in connection with the general issue of her credibility as a witness. Indeed, we note that felony possession of drugs for sale is a crime of moral turpitude that trial counsel might have used for impeachment purposes. ( People v. Castro , supra , 38 Cal.3d at p. 317, 211 Cal.Rptr. 719 , 696 P.2d 111 .)

C. Summary and Conclusions Regarding Referee's Findings

The record is not entirely devoid of evidence supportive of an inference that Butler testified sincerely and truthfully at petitioner's trial - principally

The Attorney General appears to contend that petitioner has not established that Butler's testimony was the deciding factor in the jury's

We agree with these assessments of the likely impact of Butler's testimony on the penalty phase jury. The other aggravating evidence could be considered substantial: Petitioner, a sworn law enforcement officer, murdered two sex workers and in another incident detained a sex worker and took intimate photographs of her. We reject, however, the Attorney General's assertion that mitigating evidence was almost completely lacking. To the contrary, petitioner presented a substantial and multifaceted case in mitigation. It included testimony of a psychologist that petitioner had acted under extreme emotional disturbance caused by sexual and physical abuse in childhood - testimony that Butler's narrative of sadistic violence essentially negated - and of petitioner's brother, Dale Rogers, tending to corroborate the history of abuse. It also included testimony by petitioner's wife and stepdaughter describing petitioner's good qualities and their strong relationships with him. Several of petitioner's law enforcement colleagues also testified regarding his laudable performance as a deputy. Given this mitigating evidence, there is a reasonable probability that the added weight of Butler's false testimony on the aggravating side of the scale - recounting an especially brutal attack that could have led the jury to infer that the attacks on the two murder victims were similarly brutal - affected the jury's balancing of the sentencing factors and hence its penalty verdict. The false testimony here undermines our confidence in the outcome of the trial and therefore was material. ( In re Roberts , supra , 29 Cal.4th at p. 742, 128 Cal.Rptr.2d 762 , 60 P.3d 165 .) Petitioner consequently is entitled to relief on this claim as to the penalty verdict, and we need not address here the other claims in our order to show cause.

After considering the Attorney General's return, filed in 2008, and petitioner's traverse, filed in 2009, we ordered a reference hearing. The order directed our referee to address, as relevant here, the following questions:

"1. Did Tambri Butler testify falsely (either inadvertently or otherwise) at the penalty phase of petitioner's trial regarding

detailed summary of the facts is set forth in Rogers, supra, 39 Cal.4th at pages 836 to 846, 48 Cal.Rptr.3d 1 , 141 P.3d 135 . Briefly, the evidence at trial showed that petitioner, a Kern County sheriff's deputy, murdered 20-year-old Janine Benintende in early 1986 and 15-year-old Tracie Clark on February 8, 1987. Both women had been sex workers on Union Avenue in Bakersfield. Both bodies were found in the Arvin-Edison Canal. Both had been shot multiple times with bullets from a .38-caliber weapon. Bullets recovered from the women's bodies, tire tracks and shoe prints at the scene of the Clark murder, and an eyewitness account connected petitioner to the murders.

Benintende disappeared the day she arrived in Bakersfield in early 1986. Her badly decomposed body was later found floating in the Arvin-Edison canal. The body had been shot once near the sternum and twice in the back. Two bullets were recovered from the body. Benintende's murder remained unsolved until after petitioner was arrested.

Clark was seen entering petitioner's pickup truck on Union Avenue during the early morning hours of February 8, 1987, by another sex worker who was familiar with petitioner. After Clark's body was found in the Arvin-Edison canal later that day, the witness identified petitioner's truck and selected

A pathologist testified Clark died from multiple gunshot wounds. She had one gunshot entry wound on the right side of the ribcage, the bullet passing through her body and lodging on the left side of her torso; one entry wound to her back; and four wounds to the front of her torso.

Petitioner testified in his own defense and admitted killing Clark but claimed he did not form the intent required for the charged crimes due to a mental disturbance stemming from the sexual and physical abuse he had suffered as a child.

Three mental health professionals testified petitioner suffered from a dissociative disorder involving memory loss and a possible multiple personality disorder stemming from severe childhood sexual and physical abuse. A psychiatrist administered sodium amytal to petitioner and videotaped the resulting interview. When under the influence of the sodium amytal, petitioner remembered periods of his childhood that he had previously been unable to recall, as well as parts of the events leading to the Clark murder that he had blacked out.

Petitioner testified concerning the Clark killing, stating he could independently recall only what occurred up until the time he pushed Clark out of the truck. After that, his recollection was based on his viewing of the videotape of the sodium amytal interview. The first part of his story was consistent with the account he gave police: he testified he picked Clark up on Union Avenue, agreed to pay her $30 for sex, and drove out to the country, where he parked, and Clark began performing oral sex. From that point, the two accounts diverged. Petitioner testified that during the encounter he had trouble having an erection, which caused Clark to taunt him about his sexuality and call him "queer" and "faggot," and he pushed her out of the truck. He recalled feeling threatened when she walked toward him pointing her finger, so he pointed his gun at her and shot her once. A few seconds later, he shot her five more times, to protect himself. He then dragged her body to the canal and pushed it into the water.

Based in part on his account of the killing in the sodium amytal interview, the three mental health professionals testified petitioner killed Clark while in an impulsive, highly emotional state and that he was incapable of premeditating or deliberating.

Question 1. Did Tambri Butler testify falsely (either inadvertently or otherwise) at the penalty phase of petitioner's trial regarding the identity of the person who assaulted her in January or February 1986?

The referee answered yes, concluding that Butler testified falsely when she identified petitioner as her assailant in the trial. The referee identified two main bases for his conclusion. The first was that in sworn declarations submitted with the habeas corpus petition Butler had "recanted" her identification of petitioner as the man who assaulted her. The second was the fact that, in his view, none of the descriptors

Butler stated that she was friends with Tracie Clark, one of the sex workers murdered by Rogers. After Clark was killed and petitioner was arrested, Butler again was in Lerdo jail, and she saw his photo on TV in connection with the killing. Right away, she knew that he might have been the man who attacked her. Someone came to see her in jail the next day and showed her a group of six photos. She selected Rogers, whom she had just seen on TV, as the man who attacked her. She was not certain that her mind had not been influenced by having seen Rogers on TV and having heard about the charges against him.

Butler declared that after her release in April 1987 she did not want to testify against petitioner. She was arrested again and pleaded guilty to possession of heroin for sale in January 1988. Although she was reluctant to testify, some men who she believed were from the district attorney's office came to see her in jail. One of the men told her that petitioner had killed nine women and that Clark had been pregnant and her body mutilated. When she asked if the baby had been cut out, one man said, "Use your imagination." They convinced her she should testify and put petitioner on death row. However, they did not promise anything in return for her testimony.

The referee pointed to Butler's testimony at the evidentiary hearing in which she described what she saw on television while she was in Lerdo jail. Butler testified she

V. DISCUSSION

" 'A writ of habeas corpus may be prosecuted' where '[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her incarceration.' (§ 1473, subd. (b)(1).)" ( In re Figueroa (2018) 4 Cal.5th 576 , 588, 229 Cal.Rptr.3d 673 , 412 P.3d 356 .) A petitioner bears the burden of proving, " ' "by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus." ' " ( In re Cox (2003) 30 Cal.4th 974 , 998, 135 Cal.Rptr.2d 315 , 70 P.3d 313 .)

Next, the Attorney General contends that Butler's declarations, even if not

2. Differences in appearance between petitioner and Butler's description of assailant

The Attorney General contends that three of the most significant differences - the mustache, the stun gun, and the white truck - were all details that could have been altered or hidden by the assailant. But as the referee noted, extensive searches of petitioner and his property uncovered many items of incriminating evidence, such as a gun and tire tracks, but nothing to indicate a mustache or a stun gun, a weapon that Butler described as being used during the assault. The Attorney General also points to the height of the assailant, a detail of Butler's description which is more similar to petitioner than to Ratzlaff. In the 1987 jailhouse interview Butler described her assailant as shorter than her height of five feet eight and a half inches and estimated his height as between five feet six and five feet eight inches. Petitioner is five feet, eight or nine inches tall. Ratzlaff was six feet, three inches tall. The Attorney General argues that the height difference between petitioner and Ratzlaff should be considered a more significant detail than the mustache, the stun gun, or the truck because it was unalterable by the assailant.

However, considerable doubt exists regarding Butler's estimate of the height of her assailant. In her 1987 jailhouse interview

3. Style of the attacks

As summarized above, the referee's findings concerning Question 3 set forth the many parallels between the assault on Butler and newly discovered evidence of Ratzlaff's documented assaults on other sex workers. These included: (1) the assailant picked up his victims on Union Avenue and then insisted

After he stopped the truck out in the country, she began to fellate him. After 15 to 20 minutes she stopped because he was unable to achieve an erection. She wanted to leave, but he offered to pay an extra $20 if she would stay a little longer, to which she agreed. After continuing for another 15 to 20 minutes unsuccessfully, she again stopped and asked to be taken back to town. Once again, he asked her to keep going for a little longer, but she refused.

He then pointed a pistol at her temple. Thinking it was a fake, she asked him if it was real, and he responded by shooting a cup of Pepsi that was on the floor of the truck. He then told her to stick her hands out in front of her and bound her with plastic handcuffs. He told her to lie back, and inserted his fingers and eventually his entire hand into her vagina. When she cried out in pain, he threatened to shoot her in the stomach. He also inserted his hand into her rectum.

Next, he told Lavonda I. to get out of the truck and urinate in front of him. After she tried to do so unsuccessfully for a minute or two, he told her he had something that would help her go, and pulled a stun gun from the top of the dashboard of the truck. He stunned her repeatedly on her stomach and the outside of her vagina while she screamed in pain.

Somehow, Lavonda I. managed to break the plastic handcuffs and tried to kick him in the groin but was unsuccessful. He struck her with great force several times in the face and head and threw her down on the ground where she hit her head on something hard, perhaps cement. She gave up and said, "If you are going to kill me, get it over with and do it now." He told her he wasn't going to kill her but was just going to do a few other things and then let her go. He took out a Polaroid camera and took four or five pictures of her in intimate poses. Then he had her stand up and handed her clothes and told

Additionally, the Attorney General seeks to characterize petitioner's attacks on his two murder victims, Benintende and Clark, as exhibiting controlled sadistic violence to further support the contention that those attacks were more similar to the attack on Butler than Ratzlaff's attacks. The problem, however, is that there is little evidence concerning the details of petitioner's attacks on his victims. Regarding Benintende's murder, petitioner denied committing it, and the evidence linking petitioner to this murder was entirely physical circumstantial evidence - the same gun and type of police-issued ammunition that shot Clark, also shot Benintende. ( Rogers , supra , 39 Cal.4th at p. 840, 48 Cal.Rptr.3d 1 , 141 P.3d 135 .) With regard to Clark's murder, the only details about the immediate events leading up to it come from petitioner's confessions. In his confession to the police, he described pulling out his gun when he got into an argument with his victim, accidentally shooting and wounding her, and then panicking and shooting her intentionally when she threatened to report him. ( Rogers , supra , 39 Cal.4th at pp. 838-839, 48 Cal.Rptr.3d 1 , 141 P.3d 135 .) In his sodium amytal confession, he described how he lost control after his victim taunted him by calling him a homosexual and he irrationally felt threatened by her. ( Id . at pp. 843-844, 48 Cal.Rptr.3d 1 , 141 P.3d 135 .) Neither account suggests controlled sadistic violence. Although the Attorney General may regard petitioner's accounts of the Clark murder as self-serving, he points to no evidence showing that petitioner's murders were accomplished in a style that reflects controlled sadism.

2. "Fudging" or changing her testimony

The Attorney General takes exception to the referee's finding that Butler was not credible in parts of her evidentiary hearing testimony because she "fudg[ed] or chang[ed] her testimony" and presented "inconsistent stories [that] changed numerous times." The Attorney General contends that the referee's statement about Butler's "fudging or changing her testimony" was not the equivalent of a finding that Butler "intentionally testified falsely at the reference hearing." However, the referee did not have to determine that Butler engaged

The Attorney General also takes exception to the referee's finding that Butler's account of the in-jail molestations was thoroughly

Butler's accounts of recognizing petitioner at the county jail are as follows. In her February 1987 jailhouse interview, Butler described how, at some point several months after her assault and after several visits to her incarcerated boyfriend at the county jail, she "kept seeing this cop." She "kept looking" at the officer and told him she knew him from somewhere and that he drove a white truck. At first, he said she didn't know him, but then he said, "Yeah, I arrested you in Arvin for under the influence" in his white squad car. After Butler insisted that she had never been arrested in Arvin, only in Bakersfield, she had a revelation - "like somebody lifted a sheet" - that this was her assailant. The uniform had thrown her off. She looked at him "real hard" and he asked her whether she saw something that she recognized or knew. She "got real smart with him, and said yeah I see something and I won't soon forget." He told her, "I suggest if you want that visit you turn your ass around and keep your mouth shut."

In her testimony at petitioner's trial, she gave a much more abbreviated version of these events, only mentioning in her direct examination that she had recognized petitioner while visiting her boyfriend in the Kern County jail. In cross-examination, she gave a version of the story in which she was incarcerated and her boyfriend was visiting her. She asserted that in the process of being taken to the visiting room on the "A Deck," she saw and recognized petitioner. In her trial testimony, she did not mention talking to petitioner on the A Deck.

In her evidentiary hearing testimony, she gave a version of recognizing petitioner that was like the account in her February 1987 jailhouse interview, except that her interaction

5. Butler's testimony concerning the crimes for which she was arrested

As described above, the referee found that Butler testified falsely when she answered

D. Materiality and Relief Under Section 1473

" 'The statute [ (§ 1473, subd. (b)(l)) ] and the prior decisions applying section 1473 make clear that once a defendant shows that false evidence was admitted at trial, relief is available under section 1473 as long as the false evidence was "material." ' " (

Preliminarily, we observe that the Butler evidence played a role in the prosecutor's closing argument to the jury. In her very brief argument (spanning just over six pages in the reporter's transcript), the prosecutor mentioned Butler's testimony only once, but she did so in a manner calculated to bring out the emotional power of the testimony: "You heard the testimony of Tambri Butler describing David Rogers, the defendant, who has no problem at all using violence against her. You heard her describe a man who took a gun, held it across in front of her nose and pulled the trigger to get what he wanted. [¶] Can you imagine the fear she must have felt when that happened?" Although the mention was brief, the prosecutor's dramatic invocation of Butler's terror in her argument added to the likely impact of Butler's testimony on the jury.

The totality of the relevant circumstances also includes the other evidence, aggravating and mitigating, presented in the penalty phase. The Attorney General contends that "even if Butler's testimony was impactful, the almost complete lack of mitigating circumstances, combined with several substantial aggravating circumstances, made it not reasonably probable that had Butler's testimony not been included in the penalty phase that the jury would have decided against a death sentence." The Attorney General concludes that "[s]imply put, the aggravating circumstances in this case, even without Butler's testimony, far outweighed anything [petitioner] presented in mitigation; there was nothing saving [petitioner] from these murders. The jury would have sentenced him to death regardless of whether Butler testified ... because the aggravating circumstances far outweighed the mitigating circumstances."

Contrary to the Attorney General's contention, Butler's false testimony likely had a significant effect on the outcome of the penalty phase. The trial court's ruling on petitioner's automatic application for modification of the death verdict under section 190.4, subdivision (e) explains why. The trial court noted that both of petitioner's murders involved the use of force or violence, then added: "But I think that his actions with Tambri Butler shocked me almost more than any other case I have ever heard. [¶] The use of a cattle prod or

Petitioner's Strickland expert at the evidentiary hearing, David Coleman, also testified as follows: "Butler's evidence essentially was a surrogate for the two victims. There was very little known about some of the circumstances around the two victims' deaths. There was [petitioner's] confession, which could be viewed as self-serving, with regard to one case [Clark]. With regard to the other [Benintende], there was a dearth of evidence. ... What Tambri Butler did was to essentially serve as a surrogate for those two victims in the courtroom and describe an incident which I believe the jury quite possibly thought was exactly the kind of incident or very similar to the incidents that the two victims had gone through. And it was horrifying. ... [S]o it gave life to something that was absent from the case. [¶] Now, independently of that, the actions described by Ms. Butler are so shocking that in and of themselves in a case where the whole point is

he petition for writ of habeas corpus is granted insofar as it seeks relief from the judgment of death. The judgment of the Kern County Superior Court in People v. David Keith Rogers , 1988, No. 33477, is vacated to the extent that it imposes a sentence of death. The petition's remaining claims will be resolved by later order to be filed separately.