        IN THE SUPREME COURT OF
               CALIFORNIA

                In re DAVID KEITH ROGERS
                      on Habeas Corpus.

                           S084292

                 Kern County Superior Court
                          33477



                        July 15, 2019

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.
                         IN RE ROGERS
                            S084292


         Opinion of the Court by Cantil-Sakauye, C. J.




       Petitioner David Keith Rogers filed an original habeas
corpus petition in this court contending he should be granted
relief from his sentence of death. We issued an order to show
cause with respect to various claims relating to petitioner’s
assertion that, at the penalty phase, prosecution witness
Tambri Butler falsely identified petitioner as the man who
sexually assaulted her. After an evidentiary hearing, our
referee found that Butler had testified falsely when she
identified petitioner as her assailant. As will appear, we
generally accept the referee’s findings, and therefore grant
petitioner relief on the basis of false evidence by overturning his
sentence of death. We therefore need not reach his claims of
newly discovered evidence and ineffective assistance of counsel,
the two other topics concerning which the referee made findings
supportive of petitioner’s claims.
                I. PROCEDURAL BACKGROUND
     In 1988, a jury convicted petitioner of the first degree
murder of Tracie Clark and the second degree murder of Janine
Benintende (Pen. Code, §§ 187, 189)1 and found true, among
other things, the special circumstance allegation of multiple


1
     All further statutory references are to the Penal Code
unless otherwise indicated.


                                1
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


murder (§ 190.2, subd. (a)(3)). At the penalty phase of the trial,
the jury returned a verdict of death for the Clark murder. We
unanimously affirmed petitioner’s guilt verdict and death
sentence. (People v. Rogers (2006) 39 Cal.4th 826 (Rogers).)
      Petitioner filed a habeas corpus petition in 1999. In claims
III through VI, he alleged that penalty phase witness Tambri
Butler had misidentified him as the man who assaulted and
raped her. Petitioner claimed that newly discovered evidence
showed that an individual named Michael Ratzlaff was the
assailant. Petitioner also included a declaration by Butler in
which she expressed varying degrees of doubt about her
identification of petitioner as her assailant, saying, in the first
paragraph of the declaration, “I now believe my identification of
Rogers was wrong” and, in the last paragraph, “I am now more
concerned than ever that I wrongly identified David Rogers as
the man who attacked me.”
      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

                                   2
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


      (5) cumulative penalty phase prejudice arising from the
facts alleged in the claims and subclaims identified in
paragraphs (1) through (4) above, as alleged in claim VI.
      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
the identity of the person who assaulted her in January or
February 1986?
      “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



                                  3
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 or Butler’s request or expectation of
early release? If so, did it disclose such information to the
defense?”2


2
      Our reference order included several additional questions
on which the referee took evidence and made findings, but which
we will not address in view of our disposition of questions
1 through 6. They are:
      “7. What actions did petitioner’s trial counsel, Eugene
Lorenz, take to investigate the 1986 assault on Tambri Butler,
including: (1) the identity of Butler’s assailant; (2) whether
Butler had seen petitioner on television before she identified
him; (3) Butler’s criminal history; and (4) whether petitioner
had been involved in any prior arrests of Butler before she
identified him as her assailant? What were the results of that
investigation? Was that investigation conducted in a manner to
be expected of a reasonably competent attorney acting as a
diligent advocate? If not, in what respects was it inadequate?



                                  4
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.




      “8. If trial counsel’s investigation was inadequate, what
additional evidence would an adequate investigation have
disclosed? How credible was that evidence? What investigative
steps would have led to that additional evidence?
      “9. After conducting an adequate investigation of the
assault on Butler, would a reasonably competent attorney
acting as a diligent advocate have introduced additional
evidence regarding: (1) the identity of Butler’s assailant;
(2) whether Butler had seen petitioner on television before she
identified him; (3) Butler’s criminal history; and (4) whether
petitioner had been involved in any prior arrests of Butler before
she identified him as her assailant? What, if any, rebuttal
evidence would have been available to the prosecution?
      “10. Did trial counsel have tactical or other reasons for
failing to challenge the admissibility of Butler’s testimony? If
so, what were those reasons? After conducting an adequate
investigation into the 1986 assault, would reasonably competent
counsel have moved to exclude Butler’s testimony?
      “11. Did trial counsel have tactical or other reasons for
failing to impeach or rebut Tambri Butler’s testimony? If so,
what was/were the reason(s)? What impeaching or rebuttal
evidence was available to counsel upon reasonable
investigation? Would a reasonably competent attorney acting
as a diligent advocate have impeached or rebutted Butler’s
testimony? If so, in what manner?
      “12. Did trial counsel have tactical or other reasons for
failing to present expert testimony on eyewitness
identifications? If so, what was/were the reason(s)? Would a
reasonably competent attorney acting as a diligent advocate
have presented expert testimony on eyewitness identifications?
What would such an expert witness have said?
      “13. Did trial counsel have tactical or other reasons for
failing to request CALJIC No. 2.92? If so, what was/were the
reason(s)? Would a reasonably competent attorney acting as a
diligent advocate have requested CALJIC No. 2.92?



                                  5
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


      In 2009, we appointed the Honorable Louis P. Etcheverry,
Judge of the Superior Court of Kern County, as our referee. In
2011, Judge Etcheverry conducted an evidentiary hearing, in
which 27 witnesses, including Butler, testified. In 2015, the
referee filed with us a 24-page report containing his findings. In
2016, petitioner and the Attorney General filed briefing and
exceptions to the referee’s report.
                      II. TRIAL EVIDENCE
      A detailed summary of the facts is set forth in Rogers,
supra, 39 Cal.4th at pages 836 to 846. 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




      “14. Did trial counsel have tactical or other reasons for
failing to address Butler’s testimony in closing argument at the
penalty phase? If so, what was/were the reason(s)? Would a
reasonably competent attorney acting as a diligent advocate
have addressed Butler’s testimony in closing argument at the
penalty phase? If so, in what manner?”


                                  6
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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
his photo from a lineup. Bullets removed from Clark’s body
matched those recovered from Benintende’s body and were the
same type as sheriff’s department-issued ammunition that was
available to all deputies.
      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 gun at her, hoping it would stop her from yelling and
screaming, but it did not. The gun went off accidentally,
wounding Clark. Petitioner began driving back to town but
stopped when Clark continued to scream. He pushed her out of
the truck. Clark ran around in front of the headlights yelling
and screaming. Petitioner got out of the truck and tried to calm
her, but when she continued yelling and threatened to report
him he shot her a second time. Petitioner realized that if Clark
reported him he would be arrested and go to jail. As Clark was
leaning against an embankment, petitioner shot her four more

                                  7
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


times, then dragged her body to the canal and pushed it into the
water. When asked about the Benintende murder, petitioner at
first denied shooting anyone other than Clark, but then said he
could not remember.
      A search of petitioner’s home disclosed ammunition of the
same type used in the killings and a .38-caliber handgun that
was test-fired and determined to have fired the bullets that
killed both victims. Petitioner’s truck tires and shoes matched
photos of tire tracks and shoe prints found at the murder scene.
      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


                                  8
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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.
     In rebuttal, the prosecution presented evidence that in
1983 petitioner had been terminated from his position as a
deputy sheriff following a complaint by a sex worker, although
he was ultimately reinstated.
      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,




                                  9
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


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

                                   10
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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
conform his conduct to the law, and that he was an emotionally
impaired person. Relatives and colleagues of petitioner testified
regarding his positive qualities.
              III. THE REFEREE’S REPORT AND
                 THE EVIDENTIARY HEARING
      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 given by Butler of
her assailant fit petitioner.
      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


                                  11
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


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 drove a ’60s or ’70s model white truck that
did not have a camper shell. The interior of the truck was
cluttered with trash. There was a tool box in the cab. The man’s
set of many keys was in the ignition.3
      Butler further stated that not long after the attack, she
was arrested and thought she saw a deputy who looked like her
attacker at the Lerdo jail. She knew she had seen him
somewhere before. He said he had arrested her in Arvin, but
she had never been arrested there.
     Butler described her meeting with Deputy Jeanine
Lockhart in late 1986 when she looked through a book of photos
of deputies and told Lockhart she had recognized the man’s
photo. Butler stated that when she was back on the streets in

3
       These details were largely consistent with a statement
Butler gave to police in 1987, well prior to the habeas corpus
investigation. Specifically, in that statement, Butler described
her attacker as a white male, between the ages of 45 and 48,
“maybe close to 50,” five feet, six inches to five feet, eight inches
tall, weighing 160 to 175 pounds, strong, with big hands, a chest
more filled out than his stomach, brown hair, and a thick, bushy
mustache that was not too curly nor straight. She related that
the hair on his chest was not very thick because she could see
the chest through it. He had more hair on the sides and back of
his head than on top and had moles across his back above the
waist. She described her attacker’s truck as a “nicer” white
Chevrolet, late 1970s model, with a gearshift in the steering
column, a grey fabric interior, and a bench seat. The truck bed
had sideboards that were grey and worn. The cab had a large
back window. She described much trash on the floor of the
truck, a toolbox and thermos on the passenger side, and a big
set of keys in the ignition.


                                   12
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


1986 and 1987, there was talk among the sex workers about
attacks by a man in a white pickup truck.
      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.
       Butler asserted in her declaration that she lied at trial
when she testified she had not seen petitioner’s photo on
television before she identified him in the lineup. She also
related that she lied when she said she had not heard other
women discussing petitioner’s case in jail. She stated, “No one
ever asked me to lie, but the men who interviewed me indicated
a lot of things it would not be good to say on the stand.” On the


                                  13
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


day of her release, three months earlier than she expected, she
was told petitioner had been convicted and the jailers had been
told to “cut [her] loose.” After her release, she was arrested
again and then let out on bail. Someone from the district
attorney’s office made contact with her on Union Avenue, telling
her that some police officers might think she had done a “bad
thing” by testifying against petitioner, and that she should leave
California, or she might wind up dead in a ditch. He said if she
left the state, “a file would just drop behind a file cabinet and
my name would never be mentioned in California again.” She
moved to Oregon, married, and has been clean and sober since
1989. However, she often worried over the years that she might
have testified against the wrong man. She viewed photos of
Ratzlaff and heard about his attack on another woman, Lavonda
I. She concluded by stating: “I was particularly haunted by one
of the photographs. Ratzlaff resembles the man in the white
truck and I cannot be sure he was not the man who attacked me
in 1986. I am now more concerned than ever that I wrongly
identified David Rogers as the man who attacked me.” In a
second declaration, also dated November 14, 1999, Butler stated
that she tried to notice and memorize everything about her
attacker, so she could identify him. She stated her attacker did
not have a tattoo anywhere on his body.4
     At the evidentiary hearing, Butler recanted the doubts
expressed in her sworn declaration attached to the habeas



4
      Petitioner had at the time of the attack on Butler (and
continues to have) an easily visible tattoo on the outside of his
upper right arm.



                                  14
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


corpus petition.5 She testified that she was positive she had
correctly identified petitioner as the man who sexually
assaulted her and that it was only because petitioner’s
investigator had shown up at her house with photographs of
Ratzlaff that she had, for a brief period, doubted her
identification and signed the declaration. At the evidentiary
hearing, Butler was extensively questioned about the
discrepancies between her original description of her assailant,
given to Kern County District Attorney Investigator Tam
Hodgson and other police officers in her February 18, 1987,
interview at Lerdo jail, and her testimony at petitioner’s trial.
She was also extensively questioned about the descriptions of
her assailant that she recounted in several conversations she
had with Investigator Hodgson during the period between her
signing the declaration and testifying at the evidentiary
hearing.6 In these conversations, and in a recently handwritten
eight-page overview of her memories of the event that she used
to refresh her recollection at the evidentiary hearing, Butler
introduced many new details, the most significant of which was
that petitioner had also sexually molested her at least three
times while she was incarcerated.
      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

5
      Butler testified under her current married name. To avoid
confusion, we will continue to refer to her as Butler, the name
she used when she testified at petitioner’s trial.
6
      Six conversations — dated October 27, 1998; April 12,
2001; August 4, 2008; October 17, 2008; and October 11, 2011
(two parts) — were recorded and admitted as evidence at the
reference hearing.


                                  15
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 and asked whether she saw anything there
that reminded her of what she saw on her assailant, she said
she saw “disgusting pimples” and described not only seeing
them but “feeling” them, a detail she had never previously
mentioned.
      The referee also pointed to numerous other areas of
Butler’s trial and evidentiary hearing testimony where she
provided inconsistent or inaccurate accounts that undermined
her credibility, such as whether or not she had seen petitioner
on television before she identified him to the police as her
assailant, the crime for which she was in custody at the time she
identified petitioner, and her accounts of how petitioner had
sexually assaulted her, at least three times, while she was
incarcerated at Lerdo jail.7 The referee observed that the
allegation that petitioner had sexually assaulted her when she
was incarcerated was a highly significant new detail that would

7
      These first two items are discussed in detail below in the
following sections.


                                  16
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


cast in a new light all her previous statements identifying
petitioner as her assailant. But this allegation had not surfaced
at trial, and was instead raised for the first time by Butler in a
conversation with Investigator Hodgson on October 11, 2011,
about a week before the start of the evidentiary hearing.
      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 given by
Butler of her assailant fit petitioner. Butler described her


                                  17
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


assailant during an interview at Lerdo jail on February 18,
1987, as having a thick bushy mustache, big hands, a big hairy
chest that was larger than his stomach, and dark moles across
his back above his buttocks characterized by Butler as dark
splotches.8 She said that her assailant had no other markings.
      The referee noted that, in contrast to Butler’s description
of her assailant in the Lerdo jail interview, petitioner had a
small chest, small hands, and no moles on his back. Petitioner
did not have hair on his chest or across the front or down his
belly, but he did have a visible tattoo on his right arm.
Petitioner never wore a mustache.           The referee found
unpersuasive the Attorney General’s argument that petitioner
could have used a theatrical mustache, noting that 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 referee pointed to Butler’s original description of the
vehicle driven by her assailant as being a white pickup truck
with grey weathered sideboards and a cluttered interior. This
was important because, as the referee noted, petitioner was
driving a light-colored9 pickup when he murdered Tracie Clark
in February 1987, but he did not own that truck or any white



8
      As noted, the referee observed that Butler later changed
this description in her reference hearing testimony to “ugly
pimples.”
9
      At trial, witnesses Toby Coffee (who sold the truck to
petitioner) and Connie Zambrano (who saw Clark get into
petitioner’s truck the night before her body was found) both
described the truck as beige in color.


                                  18
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


pickup until nearly a year after the February 1986 attack on
Butler.
      Based on these discrepancies between Butler’s statements
and testimony and the other evidence, the referee concluded
that Butler’s evidentiary hearing testimony reaffirming her
trial testimony lacked credibility. This conclusion, in the
referee’s view, found additional support in Butler’s sworn
declarations expressing doubt regarding her trial testimony
identifying petitioner as her assailant, declarations the referee
implicitly found to be credible.
      Question 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?
      The referee answered yes, finding that Butler saw
petitioner on television before she identified him and testified
falsely when she denied having done so. The referee noted that
in Butler’s October 27, 1998, conversation with Investigator
Hodgson, she described how, while incarcerated at Lerdo jail,
she first found out that petitioner had committed the murders:
“It was like ten o’clock at night and the news came on and they
flashed his face . . . . I saw his face that night, for the first time
I realized he wasn’t a bad cop that raped me, he was a bad cop
that raped and murdered several people . . . then the next
morning you guys [the detectives] were there.”
     The referee pointed to Butler’s testimony at the
evidentiary hearing in which she described what she saw on



                                   19
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


television while she was in Lerdo jail. Butler testified she had
been reading a book when her friend and cellmate Kathleen
Davis said, “Oh my God there he is,” and alerted Butler to the
news on television. Butler saw a Kern County Sheriff’s badge
being flashed on the screen. On redirect examination, Butler
said “just as I glanced up, it went from a face to a badge.”10
      The referee also found that Butler had testified falsely at
trial when she denied talking to the other inmates at the jail
about having been assaulted. Butler’s description of how her
cellmate alerted her to a news broadcast about petitioner (by
saying “Oh my God there he is!”) indicated that Butler had
previously discussed the assault with her. And Butler’s
testimony — that the only reason she agreed to be interviewed
by the police about her assault was because she had received
150 or 175 letters (“kites”) from the men in jail urging her to do
so — also indicated that Butler had discussed her assault with
other inmates.
       The referee found that no express promise of leniency had
been made by the authorities, but that Butler was aware that,
if she testified at petitioner’s penalty trial, she could be released
early. In particular, the referee pointed to Butler’s statement,
during her October 11, 2011, phone conversation with
Investigator Hodgson, that “No, they [the authorities] made it
clear that I wasn’t going to get out just because I testified, but
you know, I’m not stupid. I knew if I testified I’d get to go home.
I knew that.”


10
      The Attorney General’s posthearing brief argued that
instead of seeing petitioner on television, Butler had seen a still
photograph of petitioner. The referee found that this argument
was not supported by the evidence.


                                   20
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


    Finally, the referee found that Butler also testified falsely
when, upon being asked, “What are you in custody for?” she
answered, “For possession of heroin.” The referee noted that it
was undisputed that, in fact, Butler was in jail not for simple
possession of heroin but for the far more serious charge of felony
possession of narcotics for sale, in violation of Health and Safety
Code section 11351, a crime of moral turpitude. (See People v.
Castro (1985) 38 Cal.3d 301, 317.)
     The referee acknowledged the Attorney General’s
contention on this point that Butler was not trying to mislead
anyone, observing that she had testified truthfully about some
of her other arrests and that it was clear she was a recidivist sex
worker and drug offender. Nonetheless, the referee found her
false testimony, whether inadvertent or otherwise, about the
reason for her arrest was material to her credibility as a witness.
      Question 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?
      The referee answered yes, referring to his answer to
Question 1 above concerning false evidence, which was based on
Butler’s recantations of her trial testimony and which indicated
the differences between her descriptions of her assailant and
petitioner’s appearance.11 Overall, the referee concluded that


11
      In this section of the findings, the referee listed the
following physical characteristics of Butler’s assailant that
differed from those of petitioner and could be attributed to a
third party: (1) a long thick mustache curling over the lip, (2) a
layer of hair covering, but not obscuring, his chest and abdomen,



                                  21
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


the similar patterns of the newly discovered evidence concerning
the Michael Ratzlaff assaults, described briefly below and in
more detail post, pages 32–35, combined with the differences
from Butler’s description of her assailant, supported the
inference that someone other than petitioner committed the
attack on Butler.
      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.
           IV. ATTORNEY GENERAL’S EXCEPTIONS
                TO THE REFEREE’S FINDINGS
     With respect to Question 1, whether Butler testified falsely
in identifying petitioner as her assailant, the Attorney General


(3) extremely big hands, (4) thick hair, (5) a big chest, (6) a big,
crowded keychain, (7) a white pickup with weathered
sideboards, (8) a tool chest and large silver thermos, (9) a litter-
strewn truck cab interior, and (10) a stun gun.


                                   22
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


takes exception to the referee’s findings concerning Butler’s
credibility as a witness, including the weight to be accorded her
expressed doubts, the finding that Butler changed her
recollections numerous times, and the believability of Butler’s
recent accusations that petitioner sexually molested her while
she was incarcerated. The Attorney General also contends that
the referee’s findings do not establish that Butler’s identification
was “actually” and “objectively” false. (See In re Richards (2016)
63 Cal.4th 291, 293.)        Specifically, the Attorney General
disputes the referee’s findings concerning the differences in
appearance between petitioner and Butler’s description of her
attacker and contends that the style of the attack on Butler was
different from Ratzlaff’s attacks on the other sex workers.
Additionally, the Attorney General takes exception to the
referee’s findings that Butler testified falsely as to other
matters, such as her expectations for an early release from jail
as a result of testifying, whether she saw petitioner on television
while she was incarcerated at the county jail, and her testimony
concerning the crime for which she was serving time when she
testified at petitioner’s trial. Finally, the Attorney General
contends that, even if the referee’s findings are accepted, relief
is unwarranted because there was no reasonable probability
that a different result would have been reached in the absence
of the claimed errors.
                          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.) A
petitioner bears the burden of proving, “ ‘ “by a preponderance

                                   23
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


of the evidence, facts that establish a basis for relief on habeas
corpus.” ’ ” (In re Cox (2003) 30 Cal.4th 974, 998.)
      “[O]ur review of the referee’s report follows well-settled
principles. The referee’s factual findings are not binding on us,
and we can depart from them upon independent examination of
the record even when the evidence is conflicting. [Citations.]
However, such findings are entitled to great weight where
supported by substantial evidence.” (In re Hamilton (1999)
20 Cal.4th 273, 296.) “Deference to the referee is called for on
factual questions, especially those requiring resolution of
testimonial conflicts and assessment of witnesses’ credibility,
because the referee has the opportunity to observe the
witnesses’ demeanor and manner of testifying.” (In re Malone
(1996) 12 Cal.4th 935, 946.) “ ‘[A]ny conclusions of law or
resolution of mixed questions of fact and law that the referee
provides are subject to our independent review.’ ” (In re Cox,
supra, 30 Cal.4th at p. 998; see In re Scott (2003) 29 Cal.4th 783,
818 [“We ask our referees only to make findings on disputed
factual questions; we then resolve the legal issues ourselves”].)
In general, however, “ ‘the offer of a witness, after trial, to
retract his sworn testimony is to be viewed with suspicion.’ ” (In
re Roberts (2003) 29 Cal.4th 726, 742.)
      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

                                  24
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 Butler testified falsely
both in her identification of petitioner and concerning the
circumstances surrounding it.

                                  25
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


     A. Truth or Falsity of Butler’s Identification
         1. Butler’s recantation
      “[T]he offer of a witness, after trial, to retract his sworn
testimony is to be viewed with suspicion.” (In re Weber (1974)
11 Cal.3d 703, 722.) The Attorney General contends that the
circumstances under which Butler’s declarations expressing
doubts regarding the accuracy of her trial identification of
petitioner were obtained and prepared render them highly
suspicious and tend to show that Butler signed them out of
expediency and to avoid possible retaliation from petitioner’s
friends.12 In the Attorney General’s view, Butler could
reasonably have construed Defense Investigator Ermachild’s
visit as pressure to tell a particular story by an agent of a
multiple murderer who still had friends and strong supporters
in the Kern County law enforcement community. The Attorney
General contends that, as far as Butler knew, Investigator
Ermachild could have called the police and had Butler arrested
on the warrant for violating felony probation that Butler had
generated when she left the state.
      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

12
      There are three declarations: (1) a handwritten
declaration prepared the day that Defense Investigator Melody
Ermachild visited Butler in Butler’s home on November 14,
1999; (2) a typed declaration, also dated November 14, 1999,
that Ermachild prepared later, which was based on the
handwritten declaration plus additional comments Butler had
made during her interview with Ermachild that day; and (3) a
supplemental typed declaration, also dated November 14, 1999,
containing the additional point that Butler did not see a tattoo
anywhere on the body of her assailant.


                                  26
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 that the doubts she had upon seeing the photographs
of Ratzlaff were genuine, even though she subsequently
asserted that she had nonetheless correctly identified petitioner
as her assailant. The Attorney General also points out that
Ermachild did not tell Butler of Ratzlaff’s height, which did not
align with Butler’s previous descriptions of her assailant.
Notably, however, Butler signed her declarations following
Ermachild’s second, noticed visit, after consulting telephonically
with Hodgson and availing herself of the opportunity to make
interlineations and deletions in a draft version of the
declaration, all of which suggests that she was aware of their
contents when she did so. We are unpersuaded that we should
entirely discount Butler’s declarations based on the
circumstances under which they were prepared.
      Next, the Attorney General contends that Butler’s
declarations, even if not coerced, are insufficient to repudiate or


                                  27
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


undermine Butler’s trial testimony.             He compares the
declarations and contends that Ermachild added an
introductory sentence to the typed declaration — “I now believe
my identification of Rogers was wrong” — that did not
accurately reflect Butler’s sentiments expressed during her
interview with Ermachild.13 The Attorney General points to
Butler’s statement in a later paragraph stating “I have often
worried over the years that I might have testified against the
wrong man.         I’ve always questioned how accurate my
identification of Rogers was, though when I saw him in the
courtroom I felt sure he was the man who attacked me. For
years, I’ve told my husband that I am now uncertain and it
weighs on my mind.” The Attorney General contends that this
later statement “expresses uncertainty about the prior
identification, rather than a positive belief that the
identification was wrong,” and, as such, is insufficient to
repudiate or undermine Butler’s trial testimony. As noted,
however, Butler’s testimony and statements she made to
Investigator Hodgson reflect genuine doubt regarding her
identification of petitioner. In any event, it is whether petitioner
assaulted Butler, not the precise degree of her certainty or
uncertainty in her identification of him as her assailant, that is
the ultimate question before us, and her declaration is not the
sole piece of evidence that petitioner has brought forward to
support his false evidence claim. Rather, it is evidence that,
along with the other evidence presented at the evidentiary
hearing, including that of Michael Ratzlaff’s commission of other


13
      The Attorney General acknowledges that neither
petitioner nor the referee relies on the paragraph of the
declaration that contains this sentence.


                                   28
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


similar, roughly contemporaneous assaults on Bakersfield sex
workers, supports petitioner’s false evidence claim. And even
taking into consideration any tentativeness in the declarations
regarding Butler’s misidentification of petitioner at trial, in
other important respects (specifically regarding having seen
petitioner’s image on TV the night before identifying him to
investigators, and investigators’ allegedly falsely telling Butler
about other murders petitioner was suspected of committing)
they reflect inconsistency with her trial testimony.
          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.



                                   29
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


      However, considerable doubt exists regarding Butler’s
estimate of the height of her assailant. In her 1987 jailhouse
interview she stated that she never stood next to her assailant,
which would have been the most accurate way to have estimated
his height. The Attorney General argues that Butler was
nonetheless able to estimate his height by sitting next to him in
the cab of the truck and that she stated in her 1987 interview
that at one point she saw him standing outside next to the truck.
Her handwritten recollections of the assault, prepared shortly
before her testimony at the hearing, similarly mentioned her
assailant walking around the front of the truck as she was
putting on her clothing, as well as a later instance when he was
standing outside the car of another of her clients while she was
inside.   However, these opportunities for estimating her
assailant’s height were subject to a greater range of
misestimation than an estimate done while standing next to her
assailant.14
      Consistent with her pattern of belatedly raising new
details, Butler stated in her August 4, 2008, conversation with
Investigator Hodgson that she could tell that her assailant was

14
      The Attorney General also observes that, although Butler
did not in her February 18, 1987, interview with investigators
mention seeing a tattoo on her assailant, she also told them he
was wearing a plaid shirt and did not take off his clothes,
suggesting the tattoo may not have been visible. Yet Butler was
inconsistent regarding whether her assailant removed his shirt,
stating, in her November 14, 1999, declaration, that “[w]hen I
was raped and assaulted in 1986, I tried my best to notice and
memorize everything I could about the man and his truck, so
that I could identify him later. Because of this, I know that I
would have noticed if the man had an identifying mark like a
tattoo. As I recall, the man took off his shirt, so I saw most of
his upper body. I did not see a tattoo anywhere on his body.”


                                  30
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


approximately her height because, while he was standing
behind her sodomizing her, he clamped his chin over her
shoulder to keep her in place. Butler stated that her assailant
was pressed flat against her back and that this confirmed that
he could not have been significantly taller than she was because
a taller man would have had to squat or curve his body and
consequently could not have been pressing against her.
Petitioner responds that Butler’s account is physically
impossible. This dispute need not be definitively resolved.
Suffice it to say that Butler’s basis for estimating her assailant’s
height is problematic for a number of reasons, and is insufficient
to convincingly show that her assailant was around her height
or shorter.
         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 on
driving to a remote area in the country; (2) although apparently
under the influence of alcohol, the assailant was initially
pleasant, but later became violent; (3) the sex started with
fellatio, but the assailant could not complete the act; (4) the
victims complained the act was taking too long and asked for
more money to continue; (5) the assailant went into a violent
rage, fired warning shots and used a stun gun (see People v.
Sánchez (2016) 63 Cal.4th 411, 452-453 [observing that owning
a stun gun was unusual in 1990 and 1992]); (6) the victims were
anally raped, robbed, and left on the country road. The Attorney
General, however, contends that Butler’s assailant showed the
“controlled sadism” that he asserts characterized petitioner’s

                                   31
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


attacks on sex workers, rather than the “explosive rage” that he
asserts characterized Ratzlaff’s attacks. The point is best
exemplified by Ratzlaff’s attack on one of the other sex workers,
Jeannie S., briefly mentioned ante, page 22, in which the victim
was beaten so badly she had to be hospitalized. Such an attack
indeed suggests explosive rage. However, because Jeannie S.
had no memory of the attack, we do not know any of the details
of what happened before or during that attack.
      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.
      On May 21, 1988, Lavonda I. was a sex worker on Union
Avenue when a man in a white Ford pickup truck (later
identified as Ratzlaff) drove up and negotiated a “blow job” for
$20. Lavonda I. wanted to perform the act in her motel room,
where she felt safe, but Ratzlaff refused to do that. He offered
her an extra $20 if she would go with him, to which she agreed.
They drove for 15 to 30 minutes on a road out into the country.
On the way, she engaged in what she described as “normal
conversation” with Ratzlaff (asking whether he was married and
what he did for a living) and he “acted like a normal person.”
She noticed a strong smell of alcohol on his breath, although he
did not have any difficulty speaking.
       After he stopped the truck out in the country, she began to
fellate him. After 15 to 20 minutes she stopped because he was


                                  32
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 her clothes


                                  33
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


and told her to run. She ran away holding her clothing. She
heard several shots while she was running and heard him get
into his truck and drive off.
      Ratzlaff had beaten her so violently in the face that she
lost her front teeth. The Attorney General cites this as an
example of Ratzlaff’s pattern of losing control in explosions of
rage involving a high degree of physical violence. However, as
the above account illustrates, in this assault Ratzlaff generally
showed the same kind of controlled and manipulative brutality
that was characteristic of Butler’s attacker. He inflicted the
most physical violence when Lavonda I. fought back and
attempted to attack him. Once he regained control, he stopped
beating her, and returned to manipulating and degrading her
with the photographs, and ultimately let her go. The Attorney
General contends that Ratzlaff fired wildly after Lavonda I. as
she ran, for no good reason other than rage. Her testimony,
however, does not indicate that he shot after her. Rather it
appears that he was shooting in the air or in the distance to
further terrorize her. In those respects, his assault on
Lavonda I. can be said to resemble that made on Butler.
Although, unlike Lavonda I., Butler did not claim that her
assailant beat her — instead stating he slapped her, stung her
with a stun gun, and fired a gun near the bridge of her nose —
she did describe a similar pattern of violent threats aimed at
securing her compliance with his demands. We are therefore
unpersuaded by the Attorney General’s argument that the
beatings Ratzlaff inflicted on his other known victims so
markedly distinguish those attacks from the assault on Butler
as to preclude a finding that he was responsible for the latter.
      Additionally, the Attorney General seeks to characterize
petitioner’s attacks on his two murder victims, Benintende and

                                  34
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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.) 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.) 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.) 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.
      B. Referee’s Findings that Butler Had Testified
         Falsely Concerning Other Matters
         1. Early release from jail
      The Attorney General takes exception to the referee’s
finding that Butler had been aware that she would be released
early after she testified. The Attorney General contends that
the only statement by Butler cited by the referee supporting this

                                  35
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


finding15 had been made in a telephone call to an investigator
expressing anger and frustration regarding her living
circumstances and having to testify at the evidentiary hearing,
which, she thought, could subject her to arrest and
incarceration. The Attorney General contends that subsequent
statements by Butler show that it was only jail folklore that led
Butler to believe she would somehow be released early if she
testified. He contends that neither the findings nor the new
evidence disproves Butler’s trial testimony that, at the time she
testified, she did not “expect any help,” and in fact she did not
hope for an early release but wanted to do her time because she
was not “totally cleaned up.”
      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


15
       Specifically, Butler stated, “No, they [the authorities]
made it clear that I wasn’t going to get out just because I
testified, but you know, I’m not stupid. I knew if I testified I’d
get to go home. I knew that.”


                                  36
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


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 concern for her
safety, something that was independent of any benefit that
Butler had conferred on the authorities by testifying. But, once
again, the issue that the referee’s finding and Butler’s statement
to Investigator Hodgson (“I’m not stupid” and “I knew if I
testified I’d get to go home”) referred to was her motivation and
belief in the period before her testimony at petitioner’s trial.
The fact that the authorities had, in the period after she testified
at petitioner’s trial, a theoretically independent reason for
ordering her release from jail does not retroactively change
Butler’s motivation and belief in the period before her
testimony.
         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



                                   37
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


“intentionally testified falsely at the reference hearing.”
However, the referee did not have to determine that Butler
engaged in perjury at the evidentiary hearing to find aspects of
her testimony not credible.
       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 raised significant, never-before-mentioned
details that had the effect of shoring up her identification of




                                  38
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


petitioner as her assailant.16      Whether Butler did this
intentionally or subconsciously or somewhere in between is not
something the referee had to decide in order to find that it
undercut Butler’s credibility.
         3. The jailhouse sexual molestation accusations
      The most significant example of this pattern of adding new
details was Butler’s allegation that petitioner had sexually
molested her at least three times while she was incarcerated in
Lerdo jail. The Attorney General attempts to fit this explosive
new allegation within the context of Butler’s previous
statements, repeating her explanation that she had in fact
alluded to these molestations when she mentioned in her 1987
jailhouse interview that she had “had a lot of trouble” in county
jail after she had recognized petitioner as working there.17

16
      In a later section of his findings, the referee cited an
instance of the same pattern of Butler’s bolstering her
identification. During her trial testimony, she suddenly said for
the first time, regarding her assailant, “I think he told me his
name was David.”
17
      In the 1987 interview, the topic arose in the following way.
Detective Mike Lage asked Butler why she did not identify
petitioner when Deputy Lockhart supplied Butler with a copy of
the “Behind the Badge” annual (which had photographs of all
the Kern County deputy sheriffs):
      “[Detective] Lage: Why didn’t you say anything?
      “Tambri [Butler]: I was in jail. You know. The man
wasn’t in jail. I wanted to get out of jail.
      “ [Detective] Lage: Did you think something might happen
to you?
      “Tambri [Butler]: Yeah, I did. Because the last time when
I was in and I recognized him I kept my mouth shut. And you
know, I had a lot of trouble when I was in jail then. I didn’t want
no more trouble.”


                                  39
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


Butler testified at the evidentiary hearing that she had been
referring to the jailhouse molestations by petitioner when she
said she had “had a lot of trouble” in jail. She first mentioned
the in-jail molestations in her October 11, 2011, conversation
with Investigator Hodgson. She initially told Hodgson that she
had previously mentioned these allegations to him, but Hodgson
firmly denied that he had ever heard such allegations before.
On cross-examination, when asked why she had never brought
up the in-jail molestations previously, she stated that in the
1987 jailhouse interview she “didn’t go into detail” because she
“didn’t feel it necessary.” Concerning why she had never
mentioned them during her numerous conversations with
Investigator Hodgson in 1998, 2001, and 2008, she stated that
because petitioner by that point was already on death row, she
did not want to humiliate or mortify herself further with “any
more details that were just not necessary.” Even setting aside
the plausibility or implausibility of those responses, however,
one would reasonably expect Butler to have mentioned the
molestations in her trial testimony concerning her contacts with
petitioner in the jail and how she was able to recognize him as
the man who had assaulted her, and her failure to do so cuts
heavily against her credibility.
      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 a lot of
trouble” while in jail is to conclude that it referred to her 2011
accounts of in-jail sexual molestations by petitioner. But in the
very same conversation with Investigator Hodgson in which
Butler described the in-jail molestations, she also described
another incident in which she had gotten in trouble in jail after


                                  40
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


being accused of slandering a female officer by calling her a
homosexual. Indeed, Butler attempted to connect the slander
incident to the in-jail molestations by saying that because of the
slander accusation she was taken out of her cell and interviewed
by a male officer in the interrogation room. When the first
officer left, Butler claimed petitioner walked in, closed the door,
and raped her. The more plausible explanation of her “had a lot
of trouble” allusion in 1987 is that it referred to the trouble she
got into when she was accused of slandering the female deputy.
      The Attorney General also takes exception to the referee’s
finding that Butler’s account of the in-jail molestations was
thoroughly impeached by the testimony of two deputy sheriffs
who worked in the jail at the time, who described the proper
procedures and working practices at the jail. The Attorney
General contends that their testimony did not preclude the
possibility that a deputy could, if he chose, disregard proper
procedures and take an inmate downstairs to an interview room.
Petitioner, of course, cannot prove a negative — that the in-jail
molestations never happened. But given the implausibility and
contradictions involved in Butler’s accounts of the molestations,
we accept the referee’s finding that Butler’s account was
thoroughly impeached.
         4. Whether Butler saw petitioner on television and her
            recognition of petitioner at the county jail
      The Attorney General does not dispute the referee’s
finding that, contrary to her trial testimony, Butler saw
petitioner on television while she was incarcerated at the county
jail and on the night before her interview with investigators.
The finding is supported by Butler’s October 1998 conversation




                                  41
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


with Investigator Hodgson.18           In her equivocal hearing
testimony on the point (in which, notably, she denied even
having been asked, at trial, whether she had seen petitioner on
television), Butler failed to give a satisfactory explanation of the
discrepancy. Nevertheless, the Attorney General contends,
Butler had recognized petitioner before seeing him on television,
and seeing him on television therefore did not affect her
identification. The Attorney General points out that the referee
accepted that Butler had seen petitioner in the jail before his
arrest and the referee did not specifically discount Butler’s
evidentiary hearing testimony that she only glanced at the first
news story she saw and then immediately became upset and
afraid. These circumstances, according to the Attorney General,
establish that Butler’s false trial testimony that she did not see
petitioner’s picture on television does not significantly
undermine the credibility of her identification of petitioner as
her attacker because she had already recognized him. As
explained below, however, petitioner was not required to prove
a direct causal link between Butler’s seeing his picture and her
misidentification. The referee was entitled to rely on this
collateral falsehood in evaluating the truth or falsity of Butler’s
identification.
       Butler’s accounts of recognizing petitioner at the county
jail are as follows. In her February 1987 jailhouse interview,


18
      As mentioned ante, in that conversation Butler described
how, while incarcerated at Lerdo jail, she first learned that
petitioner had committed the murders: “It was like ten o’clock
at night and the news came on and they flashed his face . . . .
I saw his face that night, for the first time I realized he wasn’t a
bad cop that raped me, he was a bad cop that raped and
murdered several people . . . .” (Italics added.)


                                   42
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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
with petitioner was more vivid. After realizing who he was, she
“star[ed] him down” with “vengeance” and “hate.” After he
heard her say, “I know who you are, you son of a bitch,” “he got

                                  43
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


right in [her] face” about three inches away, and said, in a quiet
but threatening tone, that he knew who she was and she knew
who he was, and that she had time to do and she could do it
either the hard way or the easy way.19
      As described above, the referee found that petitioner had
not, in fact, previously arrested Butler. However, based on
evidence submitted by petitioner, the referee found that
petitioner had previously given Butler a notice to appear when
she was leaving jail, which both petitioner and Butler signed.
The referee found that this credible evidence established that
there was some contact between them at that time because they
both signed the notice at the same time and in the same area.
      The Attorney General also points to the fact that Butler
mentioned in her 1987 jailhouse interview that, starting about
two days after the assault, she believed her assailant began
stalking her. She first saw him watching her perform oral sex
on a customer in a car, and then saw him several more times:
two or three days later when he drove by; about a week after

19
      Butler’s 1999 declarations described her recognition of
petitioner in the Lerdo jail as follows: She had been arrested
and was in booking when she saw a deputy sheriff “who looked
like the man who attacked me. I’d been arrested and I was in
booking. The deputy I thought I recognized wasn’t actually
booking people. He was standing drinking a cup of coffee and
he seemed to notice or recognize me. I looked at him and I
thought he was the man who attacked me. I cursed him and he
told me words to the effect of turn around and be quiet. I felt
frightened by him, because I thought he was the one who had
attacked me, although nothing he said was actually threatening
or indicated he was the man who attacked me. I cannot recall if
he had a moustache. I knew I had seen him somewhere before.
He said he had arrested me before, in Arvin, but I had never
been arrested in Arvin.”


                                  44
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


that when she saw him sitting on his truck watching her; and
sometime later when he parked and gestured for her to come to
his truck, which she ignored. The Attorney General contends
that these later stalking episodes are additional instances,
closer in time to the assault, when Butler saw petitioner, further
reducing the significance of her seeing petitioner’s picture on the
television.
      There is no reason to doubt the Attorney General’s
underlying premise that a witness’s repeated opportunities to
see a person could mean that a later observation does not matter
because the witness already knew what the person looked like.
Additionally, here, as the referee found, there appears to be no
question that Butler and petitioner interacted in the jail before
Butler saw his picture on the television. But establishing the
extent of Butler’s prior observations and recognition of petitioner
relies on Butler’s own credibility, which the referee reasonably
found was suspect.20 We have highlighted evidence of Butler’s
propensity to change her story and to add significant details
bolstering her accusations against petitioner. To cite but a few
significant examples: At the evidentiary hearing Butler gave
inconsistent versions of the incidents in which she claimed
petitioner molested her in jail, and for the first time asserted
that what she had previously described as dark moles on her


20
      Unlike the witness Cade in In re Roberts, supra, 29 Cal.4th
at pages 743-744, cited by the Attorney General, aside from
giving broadly consistent testimony at trial and at the
evidentiary hearing, Butler also signed a declaration containing
statements markedly inconsistent with her testimony at either
proceeding. The referee here thus had a valid justification to
reassess her credibility. In this context we therefore do not defer
to the jury’s credibility determination.


                                  45
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


assailant’s lower back were “disgusting pimples” that she
discerned on a photograph of petitioner’s back, and even claimed
to have touched during the assault. And at trial she had claimed
for the first time that on the night she was attacked, her
assailant had said his name was David. Moreover, Butler’s
assertion that she saw her assailant several times after the
attack in the stalking incidents presupposes the ultimate issue
— that petitioner was Butler’s attacker.
         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 the question “What are you in
custody for?” by stating possession of heroin, instead of her more
serious actual crime of felony possession for sale. The Attorney
General argues that the question asked was a general one, and
Butler may have reasonably answered in kind with a general
description of her conduct rather than a precise specification of
the crime for which she was incarcerated. In any event, he
contends, even if she testified falsely in this respect, the
falsehood was not significant. He points out that Butler
admitted to the jury that she remained a sex worker and drug
addict despite having suffered multiple convictions and served
multiple terms in jail for prostitution and drug offenses.
      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

                                  46
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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.)
      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 match between Butler’s
description of her assailant’s height and petitioner’s height and
her coming forward to Deputy Lockhart, claiming she had
recognized her assailant as someone who worked in the jail
although she did not then identify petitioner. Nevertheless,
given the great weight to which a referee’s findings are entitled
when, as here, they are supported by substantial evidence, we
accept our referee’s finding that Butler testified falsely at
petitioner’s trial in identifying him as her assailant based on
(1) her subsequent doubts about her identification, as variously
articulated in her declarations, (2) the discrepancies between
petitioner’s physical appearance and her description of her
assailant, as well as her description of her assailant’s pickup
truck and the circumstance that petitioner did not even own a
similar truck at the time of the assault on Butler (as to which
we view the newly discovered evidence of Michael Ratzlaff’s
assaults on other sex workers as providing significant context),
and (3) her pattern of changing her testimony, especially her
recent claim that petitioner molested her in jail. We also accept
the referee’s finding that Butler testified falsely at petitioner’s
trial (1) in her denial that she saw petitioner on TV before


                                  47
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


identifying him, (2) in her denials relating to an expectation of
leniency in exchange for her testimony, and (3) regarding the
nature of the offense for which she was in custody at the time of
trial. Each of these findings is supported by the evidence
presented at the evidentiary hearing.
      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.” ’ ” (In re Figueroa, supra, 4 Cal.5th at pp. 588-589.)
“False evidence is ‘substantially material or probative’ if it is ‘of
such significance that it may have affected the outcome,’ in the
sense that ‘with reasonable probability it could have affected the
outcome . . . .’ [Citation.] In other words, false evidence passes
the indicated threshold if there is a ‘reasonable probability’ that,
had it not been introduced, the result would have been different.
[Citation.] The requisite ‘reasonable probability,’ we believe, is
such as undermines the reviewing court’s confidence in the
outcome.” (In re Sassounian (1995) 9 Cal.4th 535, 546.)
     The Attorney General argues that relief is not warranted
here because there was no reasonable probability that a
different result would have been reached at the penalty phase
in the absence of Butler’s false identification. We are not
persuaded.
     The Attorney General appears to contend that petitioner
has not established that Butler’s testimony was the deciding
factor in the jury’s penalty-phase verdict. Petitioner’s burden,
however, is not to show that Butler’s testimony “was the
deciding factor.” His burden is to show that the possibility of a


                                   48
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


different verdict is “a chance great enough, under the totality of
the circumstances, to undermine our confidence in the outcome.”
(In re Roberts, supra, 29 Cal.4th at p. 742.)
      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

                                  49
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


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 the taser or
whatever you call it, and the firing of the shot across the bridge
of her nose, and requiring her to engage in all of these various
and sundry sexual activities, that probably influenced the jury,
in my view, and this court more than any other because not only
has it happened once with Janine Benintende, twice with Tracie
Johann Clark; we know that it happened with Angela [M.]; we
know that it happened with Tambri Butler.”
      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

                                  50
                            IN RE ROGERS
              Opinion of the Court by Cantil-Sakauye, C. J.


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 [whether] this
man should . . . die, . . . [this] made a terrible contribution to the
conclusion that he should die.”
     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


                                   51
                           IN RE ROGERS
             Opinion of the Court by Cantil-Sakauye, C. J.


trial and therefore was material. (In re Roberts, supra,
29 Cal.4th at p. 742.) 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.
                        VI. DISPOSITION
      The 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.
      Upon finality of our opinion, the Clerk of the Supreme
Court is to remit a certified copy of the opinion and the order to
the Kern County Superior Court for filing, and respondent
Attorney General is to serve a copy of the opinion on the
prosecuting attorney. (See Pen. Code, § 1382, subd. (a)(2); see
also In re Sixto (1989) 48 Cal.3d 1247, 1265-1266; In re Hall
(1981) 30 Cal.3d 408, 435, fn. 9.)
                                       CANTIL-SAKAUYE, C. J.


We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                  52
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Rogers
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S084292
Date Filed: July 15, 2019
__________________________________________________________________________________

Court: Superior
County: Kern
Judge: Louis P. Etcheverry

__________________________________________________________________________________

Counsel:

Law Office of Alan W. Sparer, Alan W. Sparer, Law Office of AJ Kutchins, AJ Kutchins, Nerissa Huertas;
Chatfield & Reisman, Alex Reisman and Kate Chatfield for Petitioner David Keith Rogers.

Bill Lockyer, Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette, Robert R. Anderson and Gerald A. Engler, Chief Assistant Attorneys General, Mary Jo Graves,
Acting Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman,
John G. McLean, George M. Hendrickson, Ryan B. McCarroll and Henry J. Valle, Deputy Attorneys
General, for Respondent the State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

AJ Kutchins
Law Office of AJ Kutchins
P.O. Box 5138
Berkeley, CA 94705
(510) 841-5635

Henry J. Valle
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-4650
