Mozingo

Defendant Ronny William Mozingo appeals from a judgment imposing the death penalty following his conviction of first degree murder (Pen. Code, § 189; further statutory references are to this code unless otherwise indicated) and rape (§ 261). He also seeks a writ of habeas corpus based upon his claim that he was ineffectively represented by his trial counsel. These proceedings have been consolidated for opinion.

To assist this court in resolving the inadequate counsel claim, we appointed the Honorable J. Spurgeon Avakian, Judge of the Superior Court of Alameda County, Retired, as referee to take evidence and make findings regarding that claim. Following the reference hearing, the referee filed his report and findings, concluding that defendant’s trial counsel failed to act in the manner expected of a reasonably competent attorney acting as a diligent advocate, thereby depriving defendant of a potentially meritorious defense. (See People v. Pope (1979) 23 Cal.3d 412, 425 [ 152 Cal.Rptr. 732 , 590 P.2d 859 , 2 A.L.R.4th 1 ].)

As will appear, we have concluded that we should adopt the referee’s report and that defendant’s conviction should be reversed for the reasons set…