Filed 3/12/18



           IN THE SUPREME COURT OF CALIFORNIA



In re VICENTE BENAVIDES                 )
FIGUEROA                                )
            on Habeas Corpus.           )                        S111336
                                        )
                                        )                     Kern County
                                        )                  Super. Ct. No. 48266
    ___________________________________ )



        On appeal we affirmed petitioner’s convictions and death penalty judgment.
(People v. Benavides (2005) 35 Cal.4th 69 (Benavides).) In response to his petition for
habeas corpus relief, we issued an order to show cause on his claims that his convictions
were based on false evidence and that he received ineffective assistance of counsel.
Respondent1 now concedes that false evidence was introduced at trial and that
petitioner’s convictions of substantive sexual offenses, special-circumstance findings, and
judgment of death must be vacated. Respondent urges us to reduce the murder
conviction from first to second degree. We decline to do so. The judgment is vacated in
its entirety.




1     As the custodian of petitioner’s confinement, respondent is the Secretary of the
Department of Corrections and Rehabilitation.


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                I.     FACTUAL AND PROCEDURAL BACKGROUND
        A.     Procedure2
        Petitioner was found guilty of murder3 committed with three special circumstances
of felony-murder rape, sodomy, and lewd conduct.4 Petitioner was also convicted of the
substantive crimes of rape, sodomy, and lewd conduct5 with the infliction of great bodily
injury during those offenses.6 The jury returned a verdict of death. Following our
issuance of an order to show cause, the parties completed briefing on March 14, 2017.7
        B.     Trial Evidence
        A more thorough factual recitation can be found in Benavides, supra, 35 Cal.4th at
pages 79-86. This summary is limited to the false evidence issue.
               1.     Consuelo’s Hospitalizations
        The victim was 21-month-old Consuelo Verdugo. Her mother, Estella Medina,
and petitioner brought Consuelo to a hospital emergency room at Delano Regional
Medical Center (DRMC) on the evening of November 17, 1991. They reported that
Consuelo had been running after her older sister and hit her head on a door. Consuelo
was limp and minimally responsive to external stimulation. She moved her arms and legs


2     The procedural background is largely taken from the automatic appeal.
(Benavides, supra, 35 Cal.4th at pp. 79-86.)
3       Pen. Code, § 187; all unspecified section references hereafter are to the Penal
Code.
4       § 190.2, subd. (a)(17)(C), (D), (E).
5       §§ 261, subd. (a)(2), 286, subd. (c), 288, subd. (a).
6       § 12022.8.
7       The petition was initially filed on November 11, 2002, by the Habeas Corpus
Resource Center (HCRC). In February 2006, HCRC director Michael Laurence learned
that a former HCRC investigator, Kathleen Culhane, had fabricated declarations in
another case. An investigation revealed that she had fabricated numerous declarations in
this case as well. On April 22, 2008, HCRC filed the operative pleading, denominated
“Corrected Amended Petition for Writ of Habeas Corpus,” and a set of revised exhibits.


                                               2
and withdrew from pain, but did not appear to recognize her mother. She had a small
bruise on her forehead, with scrapes on her nose and lip. Medical personnel focused on
Consuelo’s head injury and did not do a complete examination of her genitalia. When
trying to insert a catheter, medical personnel noted mild redness on her vagina. Catheter
insertion would prove difficult and was repeatedly unsuccessful.
       As Consuelo’s condition worsened she became comatose and was transferred to
the Kern Medical Center (KMC). The receiving charge nurse noted Consuelo had
“blown pupils,” often seen incident to blunt force trauma from an auto accident.
(Benavides, supra, 35 Cal.4th at pp. 79-80.) Consuelo’s distended abdomen was the
immediate focus of attention at KMC. Attempting to insert a catheter, the charge nurse
noted a nearly quarter-sized bruise on Consuelo’s external genitalia and a tear extending
from her urethra to vaginal opening. A KMC emergency room physician, also trying to
insert a catheter, superficially examined Consuelo’s genital and anal areas.
       Within twenty minutes of her arrival, Consuelo’s abdomen had become greatly
distended. Diagnostic surgery revealed her bowel, duodenum, and pancreas were
“cracked in half,” with portions of each resting on either side of her spine. The surgeon
testified these injuries could have been caused by a kick or punch to the abdomen. He
also noted scars and other indicia of prior injury between Consuelo’s colon and liver.
These injuries were one to two months old. (Benavides, supra, 35 Cal.4th at p. 80.) He
did not know whether Consuelo had been sexually assaulted.
       The morning after surgery, Consuelo was evaluated by pediatrician Jess Diamond.
A thorough examination revealed a tear in Consuelo’s hymen, a bruise on her perineum,
swelling around her anus, and a lack of rectal tone. Dr. Diamond testified these injuries
could result from “acute rape.” Based upon the subsequent autopsy report of Dr. James
Dibdin, Dr. Diamond testified that Consuelo had suffered a tear to her vaginal wall. That
injury could explain the difficulties with catheter insertion. Dr. Diamond acknowledged
that Consuelo had suffered a blunt force injury to her abdomen, but explained that

                                             3
sodomy could have caused the injuries to her abdominal organs if the “penetrating force
. . . rupture[d] the . . . rectum, then push[ed] the internal organs aside” until reaching the
pancreas and duodenum, splitting them apart. Even if an external blow caused
Consuelo’s abdominal injuries, however, Dr. Diamond still believed that she had been
sodomized.
       On November 19, 1991, Consuelo was transferred to UCLA Medical Center
(UCLA). Upon arrival, her entire body was swollen. She was oozing blood, and kidney
function had ceased. Doctors performed a second surgery. The surgeon closely
examined Consuelo’s anus and saw no tearing. He explained that his inability to detect
tearing could have been due to the extensive swelling. (Benavides, supra, 35 Cal.4th at
p. 81.) The surgeon testified that nothing in Consuelo’s medical records was inconsistent
with sexual abuse.
       Consuelo died on November 25, 1991.
              2.      The Forensic Pathology Report
       The forensic pathologist, Dr. Dibdin, listed Consuelo’s cause of death as “blunt
force penetrating injury of the anus,” with the anus expanded to seven or eight times its
normal size. He testified that Consuelo suffered anal lacerations along with injuries to
her internal organs, including her bowel and pancreas. Dr. Dibdin noted abrasions to the
vagina and anus, as well as healing injuries to the genital and anal region, suffered
approximately four weeks earlier. (Benavides, supra, 35 Cal.4th at p. 81.) He testified
that there was a tear in the back wall of the vagina that a catheter, with its soft tip, could
not have caused. Consuelo had five fractured ribs, which Dr. Dibdin believed were
caused by tight squeezing during a sexual assault. Swelling of her brain indicated she
had been shaken. Dr. Dibdin testified the anal injuries were consistent with penile
penetration causing acute lacerations and direct abdominal injury. He also noted
evidence of healing rib fractures that were three to four weeks old. (Benavides, at p. 81.)



                                               4
     II.    EVIDENCE LEADING TO ISSUANCE OF ORDER TO SHOW CAUSE
       A.     Questions About Attribution of Injuries
       Petitioner asserts that false evidence, now repudiated or undermined, resulted in
his convictions for rape, sodomy, lewd conduct, and murder and the special circumstance
findings. Specifically, he claims Dr. Dibdin’s theory that Consuelo’s injuries were
caused by anal penetration was both false and medically impossible. Petitioner alleges
that evidence showing that Consuelo suffered injuries to her genitalia and anus was also
false and misleading.
       Petitioner contends that, contrary to trial evidence, Consuelo showed no signs of
sexual assault when examined at DRMC, the first hospital where she received care. Her
injuries can instead be attributed to medical intervention, including repeated failed efforts
to insert a catheter, use of an adult-sized Foley catheter rather than a more appropriately
sized device, rectal temperature taking, use of paralytic medication, and physical
examination. Nurse Anita Caraan Wafford, who helped treat Consuelo when she was
brought to DRMC, executed a declaration in support of the petition. She explained no
one at DRMC noted any anal or vaginal trauma.
       Dr. William A. Kennedy II, an expert in pediatric urology, opined in support of the
petition that, “to a high degree of medical certainty” Consuelo had not suffered anal or
vaginal penetration. Had vaginal or anal tearing been sustained in the hours before
treatment, “Consuelo likely would have been bleeding noticeably by the time she arrived
at the hospital.” He added that “[t]his is especially true if . . . penetration by a penis or
[other] object were so severe as to have violated her . . . abdominal cavity as proposed by
Dr. Dibdin.” Dr. Kennedy opined that DRMC medical staff had had ample time to
observe Consuelo’s genital area while taking her temperature rectally and trying to insert
a catheter. After exhaustively reviewing Consuelo’s medical records, Dr. Kennedy noted
that DRMC medical staff saw no bleeding or other genital trauma, “indicat[ing] that she
did not sustain injury to her genitalia or anus prior to her arrival.”

                                               5
       Two doctors who treated Consuelo at UCLA, the final hospital to which she was
admitted, reviewed all of the medical records. They declared anal penetration could not
have been the cause of death because the organs between the anus and upper abdomen
were not injured. Dr. Rick Harrison, the physician in charge of Consuelo’s care at
UCLA, believed that the cause of death given by Dr. Dibdin was anatomically
impossible. Dr. Harrison explained, “Given the location of [Consuelo’s] injuries they
could not have physically been caused by a grown man’s penis because had she been
injured in such a manner the surgeons would have seen injuries to her rectum and colon
and other physicians and nurses treating her would have likely seen tears to and bleeding
from her rectum.”
       In addition to injuries caused by numerous medical interventions, abnormalities to
the anal and genital region subsequently noted at KMC and UCLA can be attributed, in
part, to systemic edema: bodywide swelling due to disseminated intravascular
coagulation (DIC). DIC causes an inability to clot, leading to uncontrolled bleeding and
swelling. Consuelo developed this condition soon after the exploratory surgery at KMC.
Dr. Harrison explained that “[b]ecause her body was so swollen, [he] was not able to
fully examine her genitalia or rectum to confirm the sex abuse findings of the medical
staff at KMC. Had Consuelo sustained” those injuries from penile penetration, he
“would have expected that [they] would have been visible despite the swelling.” He saw
no such injuries.
       Dr. Diamond, the KMC child abuse expert who examined Consuelo the morning
after her surgery, did note a tear to her hymen and perineum bruising. However, Dr.
Kennedy explained that, in patients with DIC, bruising and tearing from even minor
touching or movement are common because the skin becomes very fragile. The genital
region is comprised of more delicate skin than other areas of the body. It “deteriorates
more quickly and noticeably than the surrounding tissue.” The bruises and tears noted on
Consuelo’s anus and genitalia were likely caused by repeated attempts at catheterization.

                                             6
Dr. Kennedy noted that the “likelihood of unintentional injury from digital manipulation
[of the genitals] is heightened in nonresponsive children.” The anal tearing could have
been caused by rectal temperature-taking, Dr. Diamond’s examination, or even a bowel
movement.
       Notably, these injuries were not seen during Consuelo’s treatment at DRMC. In
support of the petition, a nurse explained that “[t]here are no indications of trauma to
[Consuelo’s] genitalia and anus on her chart because no one who treated [her] that night
at DRMC saw any, even though we had the time and opportunity to do so.”
       Consuelo’s genital and anal region was photographed at UCLA. The photos show
extensive swelling due to DIC, but no tears to her genitalia or anus. Dr. Kennedy
explained that, had she suffered a sexual assault four days before, the photographs would
have shown the tearing that she was alleged to have suffered. Indeed, any severe tears
would have worsened as a result of her critical condition because edema would have
stretched the skin, making lacerations appear more pronounced. According to Dr.
Kennedy, the photos showed no tears of even a minor nature. This suggests that the
tearing noted during Dr. Dibdin’s autopsy had resulted from medical interference or
postmortem manipulation.
       Finally, Consuelo’s lack of rectal tone, initially attributed to a penetrating injury,
was instead the likely result of paralytic medication she had been given, along with her
extensive treatment and surgeries. Dr. Kennedy explained, “Anal sphincter laxity is a
well-known side effect of” paralytic medications. No anal sphincter laxity or other anal
injury was seen at DRMC, as would be expected if she had suffered penile penetration.

       B.     Recanted Testimony
       Many of the medical professionals who testified at petitioner’s trial subsequently
recanted their testimony. A comparison between witnesses’ trial testimony and their later
declarations is striking. Dr. Harrison, from UCLA, originally testified that the injuries he



                                              7
saw may have been caused by penile anal penetration. He later declared that he had not
been given Consuelo’s DRMC medical records or the autopsy report before testifying.
“Had [he] seen [all of Consuelo’s] records and been asked to opine on the cause of death
offered by the pathologist, [he] would have testified that it was anatomically impossible.”
Similarly, Dr. Leonardo Alonso, a medical resident who treated Consuelo at KMC,
unequivocally testified that he believed Consuelo had been sexually assaulted. He
subsequently declared that he had not reviewed Consuelo’s initial medical records either
before treating her or before testifying. After reviewing the records he no longer believed
that Consuelo suffered a sexual assault on the day of her admission.
       Dr. Diamond, the child abuse expert who evaluated Consuelo at KMC, testified at
trial that the appearance of Consuelo’s anal region was consistent with penetration by an
object larger than a finger. He subsequently declared that “it is now my opinion to a high
degree of medical certainty that Consuelo was not raped or sodomized.” Dr. Nat
Baumer, a medical expert, testified for the defense and admitted that reputable physicians
concluded that Consuelo had been sexually assaulted. Dr. Baumer later unequivocally
declared that the child “was not anally or vaginally penetrated.” Dr. Anthony Shaw, a
UCLA surgeon, testified that it would be improper to conclude based on his postoperative
notes that Consuelo had not suffered a sexual assault. He subsequently declared that he
had not been given Consuelo’s complete medical record before testifying and
“[c]onsequently, [his] testimony supported the prosecution’s allegations that Consuelo
had been anally penetrated with a penis which, based on [his] own observations, [he]
could not support.” The pleadings provide no explanation of why the full medical
records had not been provided to these witnesses.
       Others who provided related testimony later declared that they did not see
evidence of sexual trauma or did not believe the purported cause of death by anal
penetration was medically possible. Dr. Jack Bloch, a KMC surgeon, testified that he did
not know whether Consuelo’s internal injuries could have been caused by anal

                                             8
penetration. His declaration states that, had he been given Consuelo’s DRMC medical
records before testifying, he would have stated “to a high degree of medical certainty,
that Consuelo was not anally or vaginally penetrated . . . in the hours prior to admission at
DRMC.” Wafford, Consuelo’s nurse at DRMC, declared, “[W]e never had any concern
that Consuelo had been the victim of any type of sexual assault.” Frances Zapiain, an ER
technician at DRMC, initially testified that she did not believe Consuelo suffered sexual
abuse and subsequently declared that she did not notice any indication of sexual assault
when assisting with a failed catheterization. Dr. F. Warren Lovell, a forensic pathologist
retained by petitioner, declared that had he reviewed Consuelo’s complete medical
history before trial he “would have testified that there was no indication in her medical
records which would lead [him] to suspect that Consuelo had been vaginally or anally
penetrated with a penis . . . on the night of November 17, 1991.” Dr. Ann Tait, the ER
doctor at DRMC, declared that neither she nor the nurses saw any sign of trauma to
indicate sexual abuse, although they had ample opportunity to do so.
       The sole medical professional who testified about sexual assault but did not
subsequently recant his testimony was Dr. Dibdin, the forensic pathologist. However, his
testimony was called into serious doubt by those who did recant. Indeed, the only
remaining medical professionals who did not execute declarations in support of the
petition were those who generally offered no testimony as to the purported cause of death
or alleged sexual assault.
       Dr. Diamond twice recanted his trial testimony. First, he disavowed his trial
conclusion of vaginal penetration. He had testified that he saw a small tear to Consuelo’s
hymen. In conjunction with the tear Dr. Dibdin noted, Dr. Diamond concluded Consuelo
had been penetrated. His conclusion was bolstered by his inability to obtain a urine
sample following catheterization. In fact, Consuelo had been catheterized during her
recent surgery and was becoming incapable of producing urine due to kidney failure.



                                             9
Dr. Diamond testified that he passed catheters directly into the abdominal cavity through
the tear in Consuelo’s vaginal wall noted in the autopsy report.
          After reviewing the medical records, autopsy report, and declarations supporting
the petition, however, Dr. Diamond no longer believed that Dr. Dibdin’s finding of
vaginal wall tearing could be substantiated. Accordingly, Dr. Diamond recanted that
portion of his testimony. Respondent has conceded that petitioner’s rape conviction and
special-circumstance true findings are no longer supported by substantial evidence.8
          In 2012, Dr. Diamond submitted a second declaration more fully recanting his
testimony. After consulting with Dr. Astrid Heppenstall Heger, M.D., F.A.A.P., whom
he characterized as “the pre-eminent expert in the field of child sexual abuse and sexual
assault,” Dr. Diamond disavowed his opinion that Consuelo had suffered anal
penetration. Dr. Diamond now believes, “to a high degree of medical certainty,” that
Consuelo’s abdominal injuries did not result from anal penetration by a penis or similar
object.
          Dr. Heger herself provided a declaration in support of the petition. After
reviewing medical records, testimony, and declarations, she concluded death due to blunt
force penetrating injury of the anus “is so unlikely” that it reaches “the point of being
absurd.” Dr. Heger explained that the cause of death attributed in this case has never
“been reported in any literature of child abuse or child assault. Had it occurred” here “it
would be a unique and singular noteworthy incident in the annals of pediatric child abuse
literature.”
     III.      EVIDENCE AND CONCESSIONS FROM RETURN AND TRAVERSE
          Respondent’s return to the order to show cause included declarations from experts
in forensic pathology and child abuse. Both opined that Consuelo’s genital and anal

8      Petitioner also asserts that false evidence was presented regarding Consuelo’s rib
fractures, loss of oxygen to the brain, and health history. Resolution of these assertions is
not necessary to our conclusion that relief should be granted.


                                               10
injuries were related to her deteriorating condition and that the purported cause of death
by anal penetration was incorrect. These experts declared that Consuelo did suffer a
deadly abdominal injury.
       Petitioner submitted one further exhibit in support of his traverse. Deputy
Attorney General Kelly LeBel interviewed Dr. Tracey Corey, the forensic pathology
expert who signed a declaration in support of the return. A transcript of that interview
cast further doubt on Dr. Dibdin’s autopsy report. Dr. Corey was “embarrassed about the
pathologist because what he says isn’t even . . . anatomically possible.” She elaborated,
“I’m embarrassed that . . . a pathologist didn’t know better, didn’t know anatomy better.”
       Dr. Corey also clarified that elements of Dr. Dibdin’s testimony were
demonstrably incorrect. For example, Dr. Dibdin testified that he had examined autopsy
slides of Consuelo’s anal tissue. Dr. Corey explained Dr. Dibdin’s testimony was
necessarily inaccurate. The alleged anal tissue was patently from the large intestine.
       Respondent concedes petitioner is entitled to relief based upon the introduction of
false evidence. Respondent agreed that the “validity . . . of the evidence presented at trial
ha[d] been so undermined by subsequent revelations,” that, “as a matter of state statutory
right,” “[petitioner] is now entitled to limited relief.” He concedes that petitioner’s rape,
sodomy, and lewd conduct convictions were no longer supported by substantial evidence
and must be vacated, along with the corresponding special circumstance findings and
sentence of death. He maintains, however, that the murder conviction should stand.

                                   IV.     DISCUSSION
       A.     Legal Principles
       A defendant’s right to seek habeas corpus relief is enshrined in California’s
Constitution. (See Cal. Const., art. I, § 11; People v. Duvall (1995) 9 Cal.4th 464, 474
(Duvall).) A habeas corpus remedy may be available when relief by direct appeal is
inadequate. (In re Sanders (1999) 21 Cal.4th 697, 703-704). Habeas relief may be
warranted when the invalidity of a judgment is not apparent from the record on appeal.


                                             11
(In re Robbins (1998) 18 Cal.4th 770, 777; see also In re Reno (2012) 55 Cal.4th 428,
450.)
        “Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden initially to
plead sufficient grounds for relief, and then later to prove them.” (Duvall, supra,
9 Cal.4th at p. 474.) This court evaluates a petition “by asking whether, assuming the
petition’s factual allegations are true, the petitioner would be entitled to relief.
[Citations.] If no prima facie case for relief is stated, the court will summarily deny the
petition. If, however, the court finds the factual allegations, taken as true, establish a
prima facie case for relief, the court will issue an [order to show cause].” (Id. at pp. 474-
475.)
        If an order to show cause issues, the respondent, as “the custodian of the confined
person,” “file[s] a responsive pleading, called a return, justifying the confinement.
(§ 1480.)” (Duvall, supra, 9 Cal.4th at p. 475.) The respondent addresses those issues
identified in the order to show cause, and must allege facts “ ‘tending to establish the
legality of petitioner’s detention.’ ” (Id. at p. 476.) The petitioner thereafter files a
traverse, “and this interplay frames the factual issues.” (Id. at p. 477.) Facts “in the return
that are not disputed in the traverse are deemed true.” (Ibid.) When the return effectively
acknowledges or “admits” allegations that justify relief, it may be granted without a
hearing on the other factual issues contested in the pleadings. (Ibid.) Should the court
conclude there are factual issues in dispute, “it may appoint a referee and order an
evidentiary hearing.” (Id. at p. 478.) An evidentiary hearing is not required if “ ‘there
are no disputed factual questions as to matters outside the trial record.’ ” (Ibid.)




                                               12
       B.     An Evidentiary Hearing Is Not Required Here
       “Under unusual circumstances . . . this court may decline to order a hearing and
simply decide the case.” (In re Hardy (2007) 41 Cal.4th 977, 990.) Here, the return
expressly admits crucial allegations which justify vacating the sexual assault convictions
along with the attendant special circumstances and judgment of death. Respondent
acknowledges that, with vacation of the sexual assault convictions, “the factual premise
for felony-murder has been discredited.” He argues, however, that petitioner’s conviction
should be reduced from first degree murder.
       Because respondent concedes that false evidence was admitted at trial, there are
“ ‘no disputed factual questions as to matters outside the trial record.’ ” (Duvall, supra,
9 Cal.4th at p. 478, quoting People v. Karis (1988) 46 Cal.3d 612, 656; see also People
v. Romero (1994) 8 Cal.4th 728, 739.) Respondent does not concede that trial counsel
was deficient. Because the concessions he does make support relief, we need not order a
hearing on this disputed topic. (Duvall, at p. 477.)

       C.     Respondent Concedes Petitioner Is Entitled to Relief
              1.     False Evidence Was Introduced at Petitioner’s Trial
       “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).) False evidence includes opinions that have either been repudiated by the
expert who originally gave them or “that have been undermined by later scientific
research or technological advances.” (§ 1473, subd. (e)(1).) We recently explained
“[t]he plain meaning of [subdivision (e)(1)] makes clear that an expert opinion given at
trial can later be deemed ‘false evidence’ . . . if the expert repudiates his or [her] own
opinion given at trial.” (In re Richards (2016) 63 Cal.4th 291, 309 (Richards II).)
       Respondent concedes that Dr. Diamond’s repudiation of his trial testimony is
alone sufficient to establish petitioner’s entitlement to relief. Additionally, a number of


                                              13
other medical professionals have recanted their testimony or clarified that they no longer
believe that Consuelo was sexually assaulted. Still others have declared that the
purported cause of death was “anatomically impossible.” The concession and
repudiations lead overwhelmingly to the conclusion that false evidence was introduced at
petitioner’s trial.

               2.     Because It Is Reasonably Probable That the Outcome of Petitioner’s
                      Trial Would Have Been Different Without the False Evidence,
                      Habeas Relief Is Warranted
        Determining that the evidence was false clears the first hurdle to relief. “The
statute 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.’ ” (Richards II, supra, 63 Cal.4th at p. 312.)
Materiality is shown if there is a reasonable probability the result would have been
different without the false evidence. (Ibid.) That is the case here.
        Respondent agrees false evidence tainted many of the jury’s guilt findings and
death sentence, yet contends the murder conviction should not be reversed. He urges it is
reasonably probable the jury would have convicted him of second degree murder in light
of Consuelo’s catastrophic injuries. The parties agree that second degree murder is a
lesser included offense of first degree murder. (See People v. Taylor (2010) 48 Cal.4th
574, 623.) Petitioner argues, however, that this general rule applies only to malice and
implied malice murder. Because first degree malice murder is not a lesser included
offense of felony murder, he urges, second degree implied malice murder cannot be a
lesser included offense of first degree felony murder. We need not resolve this dispute to
conclude that reducing petitioner’s conviction to second degree murder is not warranted
here.
        Respondent relies on In re Bower (1985) 38 Cal.3d 865 to argue a reduction to
second degree murder is warranted. Bower was initially tried for second degree murder


                                             14
after a stipulation limited his potential liability to that crime. (Id. at p. 870.) The first
trial resulted in a mistrial. The prosecution then decided to charge the petitioner with first
degree murder, declining to honor its earlier stipulation. (Id. at p. 871.) No new
evidence was presented at the second trial; the prosecutor simply changed his theory of
the case. (Id. at pp. 879-880.) We concluded that this change in tactics gave rise to an
unrebuttable presumption of vindictiveness and modified the judgment to second degree
murder. (Id. at p. 880.) In so doing, we noted the court’s power to dispose of a habeas
petition is analogous to an appellate court’s power to modify a judgment to reduce the
degree of a crime under section 1260.9 (In re Bower, at p. 880.) Relying on this
language, respondent argues that this court has the power to reduce petitioner’s sentence
rather than order a new trial. Respondent also points out that we have occasionally
reduced a sentence on direct appeal. (See People v. Steger (1976) 16 Cal.3d 539, 553.)
       Here, the jury was instructed on felony murder as well as first and second degree
malice murder. The appellate opinion observed: “[T]he jury found true three special
circumstance allegations, namely that [petitioner] killed Consuelo during the commission
of the felony offenses of rape, sodomy, and lewd conduct on a child under the age of 14.
Given these findings, the jury necessarily determined that the killing of Consuelo ‘was
first degree felony murder perpetrated in the commission of [those crimes] and not any
lesser form of homicide.’ [Citation]
       “Further, contrary to [petitioner’s] assertions, the jury was not left with an ‘all or
nothing’ choice between capital murder and acquittal when the court refused to instruct
on manslaughter. [Citation] The jury had the choice of finding [petitioner] guilty of

9      Section 1260 provides: “The court may reverse, affirm, or modify a judgment or
order appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and may, if proper, order a
new trial and may, if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances.”


                                               15
second degree murder as instructed by the court.” (Benavides, supra, 35 Cal.4th at
p. 103.)
       By asserting that the jury “would have” convicted petitioner of second degree
murder, albeit after a much different trial with radically different evidence, respondent
essentially asks this court to reform that aspect of the verdict. The argument is
unpersuasive.
       Stripped of falsity, the evidence would show that Consuelo suffered profound
injuries while in petitioner’s care. Petitioner gave a statement to police describing the
afternoon’s events and he testified similarly at trial. Petitioner maintained that after the
child briefly evaded his supervision, he found her outdoors, vomiting and quite ill.
Petitioner presented expert testimony that the child could have been injured in an
automobile accident. Prosecution witnesses agreed that the type of injuries Consuelo
sustained, including pupil dilation and compression rib fractures, are commonly seen in
automobile accidents. Even if the injuries were inflicted at the hands of another, a
defense expert testified that multiple types of forceful blows would have been required to
explain the different injuries Consuelo suffered. Indeed, the injuries suggest the assailant
would have been “in a rage,” although there was evidence that, moments before,
petitioner had been calmly fixing a dinner, the makings of which remained in the
apartment days later. It is an impossible task to speculate whether the jury would have
been persuaded that petitioner was guilty of second degree murder without the false
evidence.
       Clearly, Consuelo had been seriously injured in the weeks before this incident.
She suffered a broken arm two months before her death. Her ribs were fractured at least
three to four weeks before her demise. Additionally, dense scars between her colon and
liver indicate Consuelo suffered trauma at least a month before her hospitalization.
Consuelo had a fever and was crying in pain on the Halloween night several weeks
before her passing. She had been vomiting sporadically for weeks before that evening.

                                              16
Petitioner insisted he had not cared for the children alone in the months preceding her
death. Consuelo’s mother testified that petitioner did not live at her home and only
stayed there on her days off. There was some evidence bearing on petitioner’s access to
Consuelo but it was fairly tangential and itself vulnerable to attack.10 The extent to
which Consuelo’s earlier injuries would have influenced the jury’s views of petitioner’s
culpability for second degree murder is difficult to gauge.
       To be sure petitioner’s own trial testimony was strenuously challenged. But here
we have a first degree murder conviction based on a felony murder theory. The evidence
now shown to be false was extensive, pervasive, and impactful. What the jury might
have concluded in its absence is an exercise in speculation. For example, the prosecutor
argued in closing that Consuelo died either as a result of sodomy alone, or from sodomy,
rape, and assault. The jury was expressly invited to conclude that the child was killed by
petitioner’s sexual assault. That argument was tainted by the false evidence. In that
light, the jury had scant need to consider other theories, and no ability to do so outside the
pall cast by the completely repudiated testimony.
       The jury may have convicted petitioner under a malice murder theory. There is
extensive evidence that Consuelo suffered profound injury while in his care. But, in the
absence of sexual assault, how those injuries might have been caused, and any motive for
their infliction, is less than clear. The jury heard some evidence suggesting Consuelo
could have been struck by a car. But much of that testimony was challenged by the false
evidence. Defense experts were unable to explain how Consuelo could have suffered


10       Without defense objection, Consuelo’s mother was permitted to testify that six
months after Consuelo’s death, her nine-year-old daughter said, “[S]ometime before
September 24, 1991” (Benavides, supra, 35 Cal.4th at p. 91), petitioner, alone, cared for
the girls, and he kept Consuelo in his bedroom overnight. Although the sister testified at
trial, she was not asked about that occasion on either direct or cross examination. The
hearsay aspect of the mother’s testimony and the post hoc nature of the reporting raise
several issues as to the admissibility of the evidence and the weight a jury might give it.


                                             17
both abdominal and genital injuries, all during the short time during which petitioner was
alone with the child. The jury had no opportunity to evaluate the likelihood of such an
accident divorced from the specter of the false evidence.
       Further, jurors could have harbored concerns about petitioner’s culpability in light
of evidence that Consuelo had sustained serious injuries in the weeks before her
hospitalization. They may have questioned petitioner’s opportunity to inflict those
injuries in light of evidence that petitioner had no unobserved access to the children
between May and November 1991. But the import of those earlier injuries was
overshadowed by the pervasive false evidence of sexual assault.
       At the end of the day, respondent is not asking us to uphold a verdict that would
properly have been reached even in the face of evidentiary error. Instead he is asking that
we substitute a different verdict that the jury could have rendered in the absence of
pervasive and inflammatory false testimony. The question is not whether we have the
authority to reduce the conviction. We do. Nor do we suggest that we may never reform
a verdict in a case of false evidence. We may. The issue is whether we should do so in
this particular case. As we noted in Richards II, the “required showing of prejudice [for
false evidence] is the same as the reasonably probable test for state law error established
under People v. Watson (1956) 46 Cal.2d 818, 836.)” (Richards II, supra, 63 Cal.4th at
pp. 312-313.) Nothing we say here calls that standard into question.
       Respondent and petitioner engage in much point and counterpoint as to what a
body of expurgated evidence might show and what verdict a jury that received such
evidence might return. We decline to posit a radically different trial than the one
petitioner received, then try and discern what a jury might have concluded had untainted
evidence, argued under a different legal theory, been presented. Nor would it be
productive to order an evidentiary hearing on this question. A referee would be in no
stronger position than we to divine what a jury might have determined. Whether the



                                             18
inquiry is conducted here or before a referee, the level of speculation required cautions
against modification of this verdict.




                                            19
                                  V.      DISPOSITION
       The petition for writ of habeas corpus is granted. The judgment of conviction in
People v. Vicente Figueroa Benavides, (Super. Ct. Kern County, 1993, No. 48266), is
vacated in its entirety. The matter is remanded to the Kern County Superior Court. Upon
finality of our opinion, the Clerk of the Supreme Court is to remit a certified copy of the
opinion and order to the trial court for filing. Respondent is directed to serve a copy of
the opinion on the prosecuting attorney. (See § 1382, subd. (a)(2); see also In re Sixto
(1989) 48 Cal.3d 1247, 1265; In re Hall (1981) 30 Cal.3d 408, 435, fn. 9.)


                                                                CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
SIMONS, J.*




*     Associate Justice of the Court of Appeal, First Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                             20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Figueroa
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S111336
Date Filed: March 12, 2018
__________________________________________________________________________________

Court: Superior
County: Kern
Judge: James M. Stuart

__________________________________________________________________________________

Counsel:

Michael Laurence, Cristina Bordé, Melissa R. Hooper, Michael J. Hersek, Miro F. Cizin, Monica Othón
Espinosa and Paula Fog for Petitioner Vincente Benavides Figueroa.

Bill Lockyer, Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Robert R.
Anderson, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jo Graves, Michael
P. Farrell and Ronald S. Matthias, Assistant Attorneys General, Ward A. Campbell, Carlos A. Martinez,
Eric L. Christoffersen, Kenneth N. Sokoler, Sean M. McCoy, Ryan B McCarroll, Chung Mi (Alexa) Choi
and Kelly E. LeBel, Deputy Attorneys General, for Respondent California Department of Corrections and
Rehabilitation.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Paula Fog
Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA 94107
(415) 348-3800

Kenneth N. Sokoler
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-3572
