concurring:

At the penalty phase of this death penalty case, the most important issue was whether Frierson had ever killed before. To persuade the jury to impose a death sentence instead of life imprisonment, the prosecution presented evidence that fourteen years earlier, Frierson, as a juvenile, killed Douglas Green at a party and then laughed about it.

Frierson’s lawyer hired an investigator, Donald Ingwersen, who located several of the individuals who were at the party when Green was killed. One of these individuals, Phillip McCain, testified that he saw Louis White shoot Green, and that White called McCain after the shooting and admitted that he (White) was the killer. He further testified that Frierson was not involved.

Another individual, Michael Conception, testified that he didn’t see the shooting but was at the party and saw Louis White there with a gun.

Investigator Ingwersen contacted White himself prior to the penalty phase trial and was prepared to testify that White had confessed to him (Ingwersen) that he (White) had shot and killed Green. Defense counsel was unsuccessful in convincing the trial judge that White was “unavailable” and that White’s statement to Ingwersen should have been received as a declaration against penal interest.

Defense counsel’s next strategy was to call White as a witness in the hope that *998 White would invoke the Fifth Amendment in front of the jury and thereby create an inference that he was the killer. Unfortunately, that strategy was based on a grievous misunderstanding of the law. In point of fact, White could not invoke the privilege against self-incrimination for one simple reason — he had been acquitted of the killing several years earlier. See Ex Parte Critchlow, 11 Cal.2d 751 , 81 P.2d 966, 971 (1938) (privilege against self-incrimination does not apply when prosecution is precluded by a prior acquittal). As a result, White could have been forced to testify and asked point-blank if he had killed Green. People v. Seijas, 36 Cal.4th 291 , 30 Cal.Rptr.3d 493 , 114 P.3d 742, 751 (2005). If White had said yes, his on-the-stand confession would have been heard by the jury deciding Frierson’s fate. If he had said no, he could have been confronted with his confession to Ingwersen. If White denied confessing to Ingwersen, Ingwersen could have been called to testify about what White had told him — not as a declaration against penal interest but as a prior inconsistent statement. Cal. Evid. Code §§ 770 and 1235; People v. Avila, 38 Cal.4th 491 , 43 Cal.Rptr.3d 1 , 133 P.3d 1076, 1137-38 (2006).

Instead of a strategy that would have gotten White’s confession before the jury, defense counsel, in direct contravention of the trial judge’s instructions and in ignorance of what the law really allowed him to do, improperly elicited White’s invocation of the privilege in the presence of the jury. A sidebar conference was called immediately and counsel was admonished for having adduced White’s claim of the privilege. After the side-bar, White was asked two more questions and then was quickly ushered off the stand. No further reference to White’s taking the Fifth was or could be made. For example, counsel was prohibited from arguing to the jury that White’s claim of the privilege gave rise to an inference that White had killed Green. White’s claim of the privilege was not — and could not be — mentioned again. Cal. Evid.Code § 913; People v. Frierson, 53 Cal.3d 730 , 280 Cal.Rptr. 440 , 808 P.2d 1197, 1203-04 (1991); People v. Johnson, 39 Cal.App.3d 749, 759 , 114 Cal.Rptr. 545 (1974).

Misunderstanding how the law would have allowed White to be questioned about Green’s murder and impeached if necessary with his recent confession to the investigator, defense counsel pursued a strategy that yielded nothing more than White’s improper invocation of the privilege that could not be considered by the jury. Counsel’s undisputed misunderstanding of the law caused him to take this ill-considered course. The subject of White’s testimony was no trifling matter, either. The issue was whether Frierson had killed before. Counsel’s error resulted in the loss of evidence that might have convinced a jury that White — not Frier-son — had killed Green. What could have been more important than that to a jury weighing life or death for Frierson?

Because I am not able to find that counsel’s error in this respect was not prejudicial, I join the majority in reversing the denial of the writ of habeas corpus, as to the penalty phase of the trial, on this basis only. Having come to this conclusion, I do not reach whether counsel also was ineffective in his presentation of mitigating evidence.