In Re Roberts

I dissent.

Unlike the majority, I would adopt the referee’s findings that inmate witnesses Raybon Long, Ryland Cade, and Rick Yacotis gave false testimony against petitioner at his capital trial, claiming that they saw petitioner stab inmate Charles Gardner or heard petitioner confess to the stabbing. (People v. Roberts (1992) 2 Cal.4th 271, 295 [ 6 Cal.Rptr.2d 276 , 826 P.2d 274 ].) The referee’s findings are supported by substantial evidence and therefore entitled to great weight. Without the false testimony, there is a reasonable probability the jury would not have convicted petitioner of Gardner’s killing. (In re Sassounian (1995) 9 Cal.4th 535, 546 [ 37 Cal.Rptr.2d 446 , 887 P.2d 527 ].) I would therefore grant the petition for writ of habeas corpus.

I. Background

On the morning of August 17, 1980, as Charles Gardner, an inmate at the California Medical Facility in Vacaville, was walking down a hallway lined with other inmates, he was attacked and repeatedly stabbed. Gardner retrieved a prison-made knife dropped on the floor and pursued two inmates who had fled up a stairway. Grievously wounded, Gardner reached the second floor where, before he collapsed and died, he…

Petitioner Larry H. Roberts was sentenced to death for the August 17, 1980, murder with special circumstances of fellow prison inmate *731 Charles Gardner. We affirmed the judgment on automatic appeal. (People v. Roberts (1992) 2 Cal.4th 271 [ 6 Cal.Rptr.2d 276 , 826 P.2d 274 ].)

On July 7, 1998, petitioner filed the present petition for writ of habeas corpus, raising numerous claims. We issued an order to show cause why relief should not be granted on the grounds that the prosecutor knowingly offered perjured testimony and that petitioner was denied effective assistance of counsel because his trial counsel failed to properly impeach prosecution witnesses with evidence that a prison gate, through which petitioner allegedly had passed after the murder, had been locked. After receiving respondent’s return, we appointed a referee to conduct an evidentiary hearing. As explained more fully below, the referee found that three prosecution witnesses testified falsely at trial, but the prosecution did not attempt to induce this false testimony and defense counsel was not ineffective in failing to present exculpatory evidence regarding the prison gate.

After considering the…

Petitioner Larry H. Roberts was sentenced to death for the August 17, 1980, murder with special circumstances of fellow prison inmate Charles Gardner. We affirmed the judgment on automatic appeal. ( People v. Roberts (1992) 2 Cal.4th 271 , 6 Cal.Rptr.2d 276 , 826 P.2d 274 .)

On July 7, 1998, petitioner filed the present petition for writ of habeas corpus, raising numerous claims. We issued an order to show cause why relief should not be granted on the grounds that the prosecutor knowingly offered perjured testimony and that petitioner was denied effective assistance of counsel because his trial counsel failed to properly impeach prosecution witnesses with evidence that a prison gate, through which petitioner allegedly had passed after the murder, had been locked. After receiving respondent's return, we appointed a referee to conduct an evidentiary hearing. As explained more fully below, the referee found that three prosecution witnesses testified falsely at trial, but the prosecution did not attempt to induce this false testimony and defense counsel was not ineffective in failing to present exculpatory evidence regarding the prison gate.

After considering the record…