Filed 5/24/18




      IN THE SUPREME COURT OF CALIFORNIA


In re ROBERT LEWIS, JR.,            )
                                    )                               S117235
           on Habeas Corpus.        )
____________________________________)


        Petitioner Robert Lewis, Jr., seeks habeas corpus relief, urging that he is
ineligible for execution because he is intellectually disabled1 and that his counsel
failed to investigate and present mitigating evidence as to penalty. We issued an
order to show cause and subsequently ordered a reference hearing in the superior
court. The referee found that (1) petitioner is intellectually disabled and (2) his
trial counsel did not perform deficiently at the penalty phase.
        The referee’s findings regarding intellectual disability are supported by
substantial evidence and are adopted. Because petitioner is entitled to relief from
the death judgment under Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins) and
In re Hawthorne (2005) 35 Cal.4th 40 (Hawthorne), we need not reach the penalty
phase ineffective assistance of counsel claims.




1      The order to show cause used the term “mentally retarded,” as does the
referee’s report in response. In accordance with current law and usage, this
opinion uses the term “intellectually disabled” except when quoting or
characterizing a source that uses the older term. (See, e.g., People v. Boyce (2014)
59 Cal.4th 672, 717, fn. 24; see also Stats. 2012, ch. 448 [revising various statutes
to replace the term “mental retardation” with the term “intellectual disability”].)
                         I. FACTUAL BACKGROUND
       This evidentiary summary is drawn from the opinion in petitioner’s first
automatic appeal. (See People v. Lewis (1990) 50 Cal.3d 262, 271-274 (Lewis I).)

A.     Guilt Phase
       In October 1983, victim Milton Estell had been trying to sell his car. He
displayed it in a parking lot and ran a newspaper advertisement. On October 27,
neighbors saw him standing outside his home, looking at the car and speaking with
petitioner.
       On October 28, after Estell’s ex-wife, Jacqueline, had been unable to
contact him and neighbors expressed concern, an officer went to Estell’s home to
check on him. He found Estell’s body in a closet, bound and gagged. Estell had
been stabbed repeatedly and shot in the back. Toilet paper had been stuffed in his
mouth. His wallet lay nearby, containing credit cards but no cash. The car was
missing.
       There were no signs of forced entry. Petitioner’s fingerprints were found in
three locations in the house, including the bathroom near the toilet paper
dispenser. Jacqueline confirmed a number of items were missing, including a gold
chain. She identified a gold chain petitioner had worn during the preliminary
hearing as the missing item.
       On November 1, officers saw Estell’s car parked on the street. Petitioner
and a woman got in the car and drove off. The officers stopped the car,
impounded it, and arrested petitioner. He was carrying $400 in cash and gave
officers a false name. When interviewed, petitioner initially claimed he bought the
car on October 24. He paid $11,000 in cash, which he had won in Las Vegas and
carried in a brown paper bag. He said that the entire transaction took place on
Estell’s porch and that he never entered the house. He had Estell make out the bill



                                         2
of sale to his girlfriend because he did not want the car in his name.
Reinterviewed the next day, petitioner provided conflicting details. He said he had
won $17,000 in Las Vegas and carried the money in a white bag. He maintained
the sale took place on October 24, even when told neighbors had seen the car at
Estell’s on the 27th. A search of the impounded car revealed a bill of sale bearing
Estell’s forged signature. A door opener to Estell’s garage was also recovered.
       Petitioner’s father testified for the defense that he had registered petitioner
at a motel on October 24. The father entered the license plate number for Estell’s
car on the registration card. Petitioner’s sister testified she had given him a gold
chain that looked like the one he had worn at the preliminary hearing. Petitioner
did not testify.
       Petitioner was convicted of first degree murder and robbery. The jury
found true allegations that he used a deadly weapon and a firearm, and the special
circumstance of murder during the commission of robbery.

B.     Penalty Phase
       At the penalty phase, the defense stipulated petitioner had been convicted
of robbery in 1982, 1972, and twice in 1977. In mitigation, the defense presented
evidence that petitioner’s mother had died in 1967, his father had been sentenced
to prison several times, and his brother was currently serving a prison term. His
sister testified that she loved him and cared about “what happens to him.” The
jury returned a death verdict, which the court imposed.
                      II. PROCEDURAL BACKGROUND
       On direct appeal, we affirmed the judgment in all respects, but vacated the
death sentence because the trial court erroneously considered a probation report in
ruling on petitioner’s application to modify the penalty. (Lewis I, supra, 50 Cal.3d




                                           3
at pp. 286-287, 192; see Pen. Code, former § 190.4, subd. (e)2.) On remand for
the new modification hearing, the trial court denied the application to modify the
penalty and reinstated the judgment of death. We affirmed. (See People v. Lewis
(2004) 33 Cal.4th 214.)
         When petitioner filed a habeas corpus petition, the Director of the
Department of Corrections and Rehabilitation was ordered to show cause why
relief should not be granted. After the respondent Attorney General’s return and
petitioner’s reply, we ordered a reference hearing and directed the referee to
address several questions. The first was whether petitioner is intellectually
disabled within the meaning of Atkins, supra, 536 U.S. 304 and Hawthorne, supra,
35 Cal.4th 40. The remaining questions, each with several subparts, concerned the
penalty phase ineffective assistance of counsel claims.3


2        All further statutory references are to the Penal Code unless otherwise
noted.

3      The other questions were: What actions did petitioner’s trial counsel take
to investigate potential evidence that could have been presented in mitigation at
the penalty phase of petitioner’s trial? What were the results of that investigation?
Was that investigation conducted in a manner to be expected of reasonably
competent attorneys acting as diligent advocates? If not, in what respects was it
inadequate? If trial counsel’s investigation was inadequate, what additional
information would an adequate investigation have disclosed? How credible was
this evidence? What investigative steps would have led to this additional
evidence? Did trial counsel’s penalty phase investigation include investigation
into petitioner’s mental retardation and learning disabilities, the negative effects of
petitioner’s institutionalization, petitioner’s family history, and his good character?
What, if any, social history information did petitioner’s trial counsel provide to
defense psychiatrist Kaushal Sharma and defense psychologist Michael Maloney?
When was that information provided? After conducting an adequate investigation
of the circumstances in mitigation of penalty, would reasonably competent
attorneys acting as diligent advocates have introduced evidence in mitigation at
the penalty phase of trial? What rebuttal evidence reasonably would have been
available to the prosecution?


                                           4
       Los Angeles County Superior Court Judge Robert J. Perry served as
referee.4 Some 15 witnesses testified at the evidentiary hearing over the course of
14 days. At least 12 witnesses were questioned about petitioner’s intellectual
functioning. The referee filed a 42-page report with findings and
recommendations. Petitioner and the Attorney General filed exceptions to the
report and provided supplemental briefing.
                                III. DISCUSSION

A.     Legal Framework
       A habeas corpus petition is a collateral attack on a presumptively valid
judgment, thus “ ‘the petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them.’ ” (In re Price (2011) 51 Cal.4th
547, 559.) The standard of proof is preponderance of evidence. (In re Cudjo
(1999) 20 Cal.4th 673, 687; see also In re Bacigalupo (2012) 55 Cal.4th 312, 333.)
“Because the referee observes the demeanor of the witnesses as they testify, we
generally defer to the referee’s factual findings” and give them great weight if
supported by substantial evidence. 5 (Bacigalupo, at p. 333.) These findings are

4       Judge Perry was appointed to the bench in January 1992. As of the time his
report, he had spent his entire judicial career hearing criminal matters and had
presided over 29 death penalty cases involving 34 defendants, 12 of whom were
sentenced to death.

5      Respondent argues that we should not afford the normal deference to the
referee’s findings because certain “intemperate comments” made during the
evidentiary hearing “cast doubt on the referee’s devotion to the process and the
quality of its findings” and “suggested a predisposition toward the outcome of the
question . . . in order to obviate what the referee saw as a waste of his time and
judicial resources.” We disagree. At the time of the report, the referee was an
experienced jurist who had spent his entire career presiding over criminal matters,
including 29 death penalty cases. His report to this court was quite thorough,
linked to the evidence presented, and explicit as to how he evaluated that
evidence. It is true that during the hearing the referee occasionally candidly


                                          5
not binding, however. Ultimately, this court must make the findings necessary to
resolve petitioner’s claim. (In re Thomas (2006) 37 Cal.4th 1249, 1256–1257.)
       Evaluation of intellectual disability involves examination of two primary
factors: 1) significantly subaverage general intellectual functioning, and
2) deficits in adaptive behavior. Both must manifest before age 18. (See § 1376,
subd. (a).) In Hawthorne we recognized that “ ‘an IQ between 70 and 75 or lower
. . . is typically considered the cutoff IQ score’ ” for the intellectual functioning
prong. (Hawthorne, supra, 35 Cal.4th at p. 48.) We declined, however, to adopt a
fixed numerical cutoff, concluding that such a requirement would be “inconsistent
with established clinical definitions” and undesirable in light of the imprecisions
of IQ test scores, which have a five-point measurement error. (Ibid.) This
approach remains sound. (See Hall v. Florida (2014) __ U.S. __, __ [134 S.Ct.
1986, 2000–2001] (Hall).) As to adaptive behavior deficits, Hawthorne quoted
from Atkins and the clinical definitions from the American Association on Mental
Retardation (AAMR)6 and the American Psychiatric Association (APA).
(Hawthorne, at pp. 47-48.) The most current diagnostic guidance on adaptive
behavior deficits is discussed post at pages 20-21.
       The professional psychological community continues to refine its
understanding of these concepts. For our purposes here, intellectual disability is
“a question of fact . . . ‘not measured according to a fixed intelligence test score or
a specific adaptive behavior deficiency, but rather constitutes an assessment of the


acknowledged the difficulty of the task at hand and expressed rhetorical frustration
at the process for retroactively determining a petitioner’s intellectual disability.
We are not persuaded, however, that his comprehensive findings should be
disregarded either in whole or in part.

6      In 2007, the AAMR changed its name to the American Association on
Intellectual and Developmental Disabilities (AAIDD).


                                           6
individual’s overall capacity based on a consideration of all the relevant
evidence.’ ” (People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1012; see
id. at p. 1012, fn. 6.)

B.     Hearing Testimony and the Referee’s Report

       1.      The Expert Witnesses
       Natasha Khazanov, Ph.D., testified for petitioner.7 She had evaluated over
50 defendants for intellectual disability as a defense expert, determining that three
of them suffered from that condition. She examined petitioner three times at San
Quentin State Prison and was the only testifying expert to have contact with him in
the 24 years since his conviction. Relying on her interactions with petitioner and
other information in the case, Khazanov concluded that he is intellectually
disabled. With respect to risk factors, she noted petitioner’s mother may have
been intellectually disabled, drank heavily when pregnant with him, and struck
him frequently. Petitioner may have suffered from malnutrition and he fathered a
son with Down syndrome.
       Respondent called three experts. Michael Maloney, Ph.D.,8 had been
consulted by the defense before trial in 1984. Although Maloney had no

7       Khazanov earned a Ph.D. in clinical psychology from Bekhterev
Psychoneurological Institute in Russia in 1988. At the time of the hearing, she
was an assistant clinical professor at the University of California, San Francisco
and maintained a private practice. She came to the United States in 1991 and
obtained her license as a psychologist in 1996.
8       Maloney received his Ph.D. in clinical psychology from the University of
Colorado in 1969. At the time of the hearing, he was the mental health clinical
district chief for the Los Angeles County Department of Mental Health and
supervised mental health evaluations and services at the Los Angeles County jail.
He had authored several books, including Mental Retardation in Modern Society
and Psychological Assessment: A Conceptual Approach. He was board certified
in forensic psychology in 1988 and had assessed cognitive functioning in well
over one thousand individuals.


                                          7
independent recollection of petitioner, he testified based on his records and on his
custom and practice in similar cases. Retained to administer tests and present a
psychological profile, Maloney was asked specifically to determine if petitioner
was legally sane and competent to stand trial. He met petitioner twice and had
him tested by his registered psychological assistant, Nancy Kaser-Boyd, Ph.D.9
Maloney reviewed case materials, met with counsel and participated in family
interviews. He did not write a report because he believed his input would not
assist petitioner’s case.
       Maloney testified he would have considered “significant” mental
retardation a potentially mitigating factor. If petitioner had been “clearly mentally
retarded,” he would have informed defense counsel. Maloney had not considered
petitioner mentally retarded by 1984 standards but emphasized that the question
was not central to his inquiry into petitioner’s potential mental illness or capacity
to stand trial. Under current standards, Maloney considered the question of
intellectual disability a “closer case.” He could not say whether petitioner was so
impaired.
       Kaushal Sharma, M.D.,10 also examined petitioner in 1984. He had no
independent recollection of the case before reviewing his report. Defense counsel


9      Kaser-Boyd has a Ph.D. in clinical psychology and completed a
postdoctoral fellowship in forensic psychiatry at the University of Southern
California Keck School of Medicine’s Institute of Psychiatry and Law.

10      Dr. Sharma has a medical degree from India and received psychiatric
training in America and England. A forensic psychiatrist since 1977, he has been
certified in forensic psychiatry by both the American Board of Psychiatry and
Neurology (1994) and the American Board of Forensic Psychiatry (1981). At the
time of the hearing he was well known and “very well regarded” by the referee,
who considered him to be “superb” at analyzing persons on psychiatric and mental
issues.


                                          8
had asked him to determine whether petitioner was competent for trial and sane at
the time of the offense. Dr. Sharma believed he followed his usual practice of
interviewing the subject twice and reviewing documents. He administered no tests
and could not recall if petitioner could read and write.
       Dr. Sharma wrote a three-page report concluding petitioner was sane and
competent. He found no indication of psychosis, organic brain disorder,
depression or other major defect. He agreed with a previous diagnosis of
antisocial personality disorder starting at an early age. It is likely he told counsel
he could not assist the defense. He was not asked to evaluate intellectual disability
and focused on mental illness and behavioral problems. He and Maloney often
worked together. Dr. Sharma understood Maloney was evaluating petitioner’s
intellectual functioning and had “better tools” to make such an assessment.
       Charles Hinkin, Ph.D.,11 was respondent’s principal expert witness. He
never met with petitioner. He did review medical and legal records and watched
Khazanov and Maloney testify. He acknowledged, “It’s always better to examine
a patient than to offer a diagnosis based on a review of medical records.” Hinkin
opined that petitioner is not intellectually disabled, although he is certainly a
person with mental health issues and is functionally illiterate. Even as to the
intellectual disability question, Hinkin admitted there is “room for honest . . .
disagreement,” and it is not “slam-dunk, clear-cut [and] incontrovertible one way



11     Hinkin has a Ph.D. in clinical psychology from the University of Arizona.
At the time of the hearing, he was the director of neuropsychological services at
the West Los Angeles VA (Veterans Affairs) Medical Center and a professor in
the department of psychiatry and biobehavioral sciences at the University of
California, Los Angeles School of Medicine. He was board certified in clinical
neuropsychology in 1997.




                                           9
or the other.” In Hinkin’s view, the evidence of petitioner’s adaptive behavior
weighs disproportionately against a finding of intellectual disability.

       2.     Intellectual Functioning
       The referee made the following findings with respect to petitioner’s general
intellectual functioning. Beginning at age six, petitioner was given multiple IQ
tests: first by school authorities, then while in custody as a juvenile and young
adult, later in 1984 in preparation for trial, and finally in 2003 in connection with
this petition. The results are summarized below.12


Test                                                    Date      Age IQ Score
Kuhlmann-Anderson Form A                               4/14/59     6      89
Stanford Binet Form L                                 11/20/59     7      83
Lorge-Thorndike Form 1A                                1/8/60      7      78
Kuhlmann-Anderson Form C                               1/8/62      9      82
Lorge-Thorndike Form 3A-V                              5/16/63     10     57
WISC                                                   5/21/63     10     70
Revised Beta IQ                                         8/68       16     83
Thurstone Primary Mental Abilities SRA IQ              9/3/68      16     67 (verbal)
(Thurstone Primary)                                                       99 (non-verbal)
Revised Beta IQ                                        12/8/72     20     80
Quick Test                                             6/16/84     32     75


12     The table in the referee’s report erroneously identified the second test as the
“Standard-Binet Form L”; its accurate designation is the Stanford-Binet Form L.
Also, the referee’s table erroneously listed the date for the Lorge-Thorndike Form
3 A-V test as “8/16/1963.” School records reflect that it was administered on May
16, 1963, five days before the Wechsler Intelligence Scale for Children (WISC)
and shortly before petitioner’s eleventh birthday.


                                          10
Wechsler Adult Intelligence Scale - Revised            7/5/84     32    72 (verbal)
(WAIS-R)                                                                76 (performance)
                                                                        73 (full scale)
Wechsler Adult Intelligence Scale – III                6/10/03    51    66 (verbal)
(WAIS-III)                                                              75 (performance)
                                                                        67 (full scale)
       The referee noted the experts’ agreement that such frequent testing in
petitioner’s youth “reflected an obvious concern by school authorities.” Based on
the early testing, Khazanov testified, “There was something fundamentally wrong
with [petitioner] from [an] early age.” Maloney opined petitioner “was probably
singled out as being a kid who needed to be looked at and evaluated for some
reason at that time.” And Hinkin conceded that “something about this kid got the
attention of the school teachers and authorities. They’re not giving [IQ] tests [to]
every single kid, you know, 6, 8, 10 times throughout their school [years]. . . . So
there was something about him that made him stand out . . . .” However, the
experts disagreed as to whether the test results showed subaverage intellectual
functioning.
       The referee found petitioner’s WISC score of 70 in 1963 the most reliable
assessment of petitioner’s IQ before age 18, noting the Wechsler tests are the
standard for assessing intellectual functioning (see, e.g., Atkins, supra, 536 U.S. at
p. 309, fn. 5) and that the experts agreed the WISC was “the most reliable test.”
The referee found the other tests given to petitioner before age 18 were “of
questionable reliability.” For example, Maloney called the Stanford-Binet “the
most biased” of the tests because it “was normed on white young people.”
Khazanov testified the Revised Beta IQ test is considered to have “low reliability”
because of similar norming bias. Maloney opined group tests like the Kuhlman-



                                          11
Anderson and the Lorge-Thorndike tests were used in the 1950’s and 1960’s but
were “not good at all” in measuring IQ.
       The person who administered the Thurstone Primary while petitioner was
in the California Youth Authority described him as a “non-reading, non-bookish
boy whose cultural set is so diverse from the major cultural patterns that he can
not be adequately tested. His scores as listed are meaningless[,] for subject is not
academic or vocationally oriented. He may be able to function as a dull normal,
but that surmise is a projection based on the non-verbal SRA score . . . .” Maloney
testified “dull normal” is usually above the cutoff for intellectual disability, but is
“kind of like borderline.”
       The referee found petitioner’s 1963 WISC score to be “remarkably
consistent” with his later scores on the WAIS-R in 1984 and the WAIS-III in
2003. His scores on the WAIS-R and WAIS-III subtests were also “very similar,”
presenting “a consistent profile which appears to be reliable.” The consistency in
petitioner’s Wechsler test scores over 41 years led the referee to reject
respondent’s argument that petitioner’s WISC score reflected a lack of motivation
or poor attitude toward school. The experts concluded, and the referee agreed, that
petitioner was not malingering on any of the tests. The consistency of scores also
led the referee to find that petitioner’s WAIS-III score of 67 at age 51 was not
caused by dementia.
       Petitioner’s Wechsler test scores are reflected below and include the WAIS-
R as rescored by Khazanov. The referee found that the rescored WAIS-R scores
“more accurately represent petitioner’s intellectual functioning in 1984.”13

13     Maloney’s assistant administered the WAIS-R to petitioner in 1984. His
original results were 72 (verbal), 76 (performance), and 73 (full scale). This
scoring, however, did not include subtests for vocabulary and object assembly, and
the subtest for information was incorrectly scored as a raw score of 5, instead of 4.


                                           12
Test                    Date     Age Verbal IQ Performance IQ Full Scale IQ
WISC                   5/21/63    10                                               70
WAIS-R                 7/5/84     32        72                76                   73
WAIS-R (rescored)      7/5/84     32        68                76                   71
WAIS-III               6/10/03    51        66                75                   67
       The experts opined on what effect, if any, socioeconomic factors played in
petitioner’s scores. Maloney testified that persons with petitioner’s background
“will always score low on these kind of tests, lower than probably their level of
intelligence . . . [b]ecause he’s got less than average level of education for sure”
and experienced “a lot of disadvantageous factors,” including being placed in
custody at age 12. Hinkin explained the more a person diverges from the
mainstream increases the chance that the person’s score will differ from his actual
level of intelligence. “There’s [a] whole host of reasons why African-Americans
have gotten the short end of the stick when it comes to educational opportunities,
occupational opportunities, the kind of things that would . . . affect [IQ] test
performance.” Hinkin testified the “gap” in IQ performance between African-
Americans and the mainstream is shrinking, “but it still remains to this day.”
Khazanov believed the WAIS-III is properly normed and reliable and that
adjusting scores based on race or socioeconomic factors is inappropriate. She
testified the most recent publication of the AAIDD, Intellectual Disability:
Definition, Classification, and Systems of Supports (11th ed. 2010) (AAIDD-11)
supports using standardized tests without adjustments based on race or

Khazanov rescored petitioner’s WAIS-R, lowering the information subtest scaled
score to 3 and inserting a vocabulary scaled score of 2 based on petitioner’s
WAIS-III vocabulary score. As rescored, petitioner’s WAIS-R results were 68
(verbal), 76 (performance), and 71 (full scale).


                                          13
socioeconomic status. The referee declined to adjust petitioner’s IQ scores, citing
the difficulty in quantifying any adjustment and the AAIDD’s pronouncement that
these adjustments should not be made.
       The referee concluded, “[P]etitioner meets the first prong of the mental
retardation definition” in that he “clearly has significant subaverage general
intellectual functioning which was manifested before age 18.” He found the
consistency in petitioner’s Wechsler tests scores particularly persuasive and noted
all these scores “fall well within the cutoff score for mental retardation of 75.”
The report noted even Hinkin conceded that “if you focus just on the better tests,
which are the [Wechsler] tests, then . . . it would not be unreasonable to conclude
that [petitioner’s IQ scores] meet[] that [first] prong . . . .”

       3.      Adaptive Behavior
       Expert testimony differed as to petitioner’s adaptive behavior. Khazanov,
petitioner’s expert, found he “demonstrated severe deficits in the conceptual skills
area[,] which in her view satisfied the adaptive behavior prong for mental
retardation.” She described petitioner as “basically illiterate” and observed he was
“the only person actually at San Quentin that I met who didn’t know how to read
and write.” Additionally, Khazanov found he “had serious difficulties in
understanding spoken words and concepts and exhibited mental and cognitive
deficits.” Khazanov found she had to repeat instructions for a test “many, many
times” and that petitioner had “extreme difficulty understanding what I wanted
from him.” Khazanov noted that past probation reports had observed that
petitioner didn’t “make sense.” Khazanov opined petitioner’s inability to read and
write is not the result of poor schooling. She felt that “he attended school enough
to be able to learn to read if he could.” Petitioner’s lifelong friend, Larry
Cleveland, attended school with petitioner and his sisters. All of them learned to



                                            14
read and write while petitioner did not. Khazanov considered this strong evidence
of petitioner’s adaptive behavior deficits.14
       Khazanov did not interview or test third parties who had interacted with
petitioner in his youth. Her tests and interviews of petitioner revealed such severe
deficits in reading, writing, language, and money concepts that further steps were
unnecessary to satisfy the adaptive behavior prong. Khazanov concluded
petitioner was not malingering but instead was trying to please and favorably
impress her. He also told her that he did not want her to find him “crazy.” The
referee found petitioner’s resistance to this label “consistent with being mentally
retarded.”
       Maloney’s assistant, Nancy Kaser-Boyd, gave the WAIS-R test to
petitioner in July 1984 when he was 32 years old. She noted he “might have a
hearing prob[lem] — he seemed to mishear a number of questions.” Maloney
testified petitioner might have aphasia, “an expressive language difficulty,” which
“might be associated with mental retardation.” Kaser-Boyd also noted petitioner’s
“talk comes out all confused” when dealing with the test section on
comprehension. Petitioner had “real trouble disting[uishing] the concept”
involved in the section on similarities. Maloney agreed that such a difficulty could
indicate intellectual disability.
       Testimony from childhood friends and family also pointed to adaptive
deficits. Larry Cleveland testified petitioner could not read street signs or spell
words. He was “slow” and did not learn how to shoot pool or gamble with dice as

14     Khazanov also concluded petitioner suffers from lifelong brain damage.
The Halstead-Reitan battery of tests showed he has severe difficulty
discriminating between sounds. The tests showed he was “very severely
impaired” in perceiving speech sounds, was very rigid, and could not learn new
concepts. The referee found it “unnecessary to the finding of mental retardation to
decide whether petitioner has brain damage.”


                                          15
well as Cleveland and others did. Steven Harris, also a childhood friend, could not
remember petitioner ever reading anything. He did not think petitioner was
“retarded,” but petitioner was not as smart as Harris or Cleveland. “He just wasn’t
as quick as the rest of us.” Tommie McGlothin, petitioner’s first cousin, testified,
“[S]omething [was] wrong with him. He had a problem.” McGlothin said
petitioner kept getting into trouble by “doing the same thing, going out and
stealing bicycles.”
       Respondent’s primary expert, Hinkin, acknowledged that “everybody
agrees” petitioner is functionally illiterate and that the “reading and writing piece”
of the adaptive deficit “is clearly there.” He also agreed petitioner was not
malingering. He questioned whether petitioner has brain damage in the absence of
any neurological examination. He conceded, however, it was “quite possible that
there is some sort of lateralized disease process that has been undetected through
[petitioner’s] 51-odd years of life.” Hinkin further agreed that “we know
something is wrong with” petitioner and that “there’s a reason why he was sent to
see the school psychologist” so many times. Even so, Hinkin felt the record was
inadequate to satisfy the adaptive behavior prong.
       Applying the AAIDD’s current diagnostic definition (discussed post, at
pp. 20-21), the referee found “[p]etitioner clearly exhibited significant adaptive
behavior deficits before the age of 18.” Friends and family considered him
mentally “slow.” To this day he remains unable to read and write or effectively
understand and communicate. The referee rejected respondent’s arguments “that
petitioner was a successful street hustler and his ability to survive on the streets
shows he did not suffer adaptive behavior deficits” and that “petitioner’s interview
by detectives on November 21, 1983 . . . shows that petitioner did not suffer
communication difficulties.” Instead, the referee noted, “An ability to survive on
the street does not necessarily refute adaptive behavior deficits. The evidence

                                          16
does not suggest that petitioner was a successful street hustler. He was arrested
and convicted numerous times. His apparent failure to learn from his experience,
provides additional support that he is intellectually disabled. Petitioner’s
interview by detectives similarly fails to provide persuasive evidence rebutting his
weakened mental condition. In the interview, petitioner acknowledged being a
‘pimp,’ a ‘gambler,’ and a ‘speed hustler’ who had been ‘hustling all [his] life,’
but he also confidently denied his true identity and asserted he had never before
been to prison. . . . Petitioner’s adamant assertion of such easily disprovable lies,
displays unclear thinking and an obvious lack of cunning. [Fns. omitted.]”

           4. The Referee’s Conclusion
       The referee found petitioner is intellectually disabled within the meaning of
Atkins, supra, 536 U.S. 304 and Hawthorne, supra, 35 Cal.4th 40. At the outset,
he noted, “The difficulties in attempting to determine whether petitioner is
mentally retarded are obvious. Mental retardation requires an assessment of
intellectual functioning and adaptive behavior prior to the age of 18. Petitioner,
who is now 59, committed the murder in this case in 1983 at age 31. The
psychologist and psychiatrist who examined petitioner in 1984 were not focused
on mental retardation because the Atkins decision exempting mentally retarded
defendants from execution did not occur until 2002, more than 18 years later. To
further complicate matters, the standard for mental retardation has changed over
the years and is today more lenient than in 1983 and 1984.”
       As to subaverage intellectual functioning, the referee noted petitioner’s
difficulties in school; his repeat of first grade; the frequent IQ testing in his youth;
and the consistency of the Wechsler test results, all of which fell within the
intellectual disability range. Addressing adaptive behavior deficits, the referee
cited petitioner’s illiteracy, his difficulties with understanding, and the testimony



                                           17
of his friends and cousin. The referee noted that petitioner’s expert concluded that
he is intellectually disabled, while “Maloney testified that under today’s more
lenient standards, this is a ‘closer case,’ and he cannot say whether petitioner is
today mentally retarded.” “Dr. Sharma did not assess petitioner for mental
retardation, and relied on . . . Maloney to test petitioner’s intellectual functioning.”
The referee considered it significant that respondent’s primary expert, Hinkin, did
not examine petitioner, yet acknowledged it is “always better to examine a patient
than to offer a diagnosis based on review of medical records.” The referee
concluded Hinkin’s testimony is entitled to lesser weight than that offered by the
other experts.

C.     Analysis
       Our own review of the evidence demonstrates petitioner has met his burden
of proving he is intellectually disabled. As noted, an intellectual disability
assessment examines two related criteria, both of which are evident before age 18:
(1) significantly subaverage general intellectual functioning, and (2) deficits in
adaptive behavior. Substantial evidence demonstrates petitioner experienced
deficient intellectual functioning before he turned 18. The reliable Wechsler
scores all fall within the widely accepted range for intellectual disability. These
scores remained consistent over decades. Both Khazanov and Maloney opined it
would have been extremely difficult, if not impossible, for someone to falsely
produce such similarities. Even Hinkin, respondent’s primary expert, conceded
that, based on these scores, “it would not be unreasonable to conclude that”
petitioner satisfies the first prong.
       Respondent challenges the referee’s failure to consider other intelligence
tests, his lack of motivation, and other socioeconomic factors. He urges that
petitioner’s scores underestimate his general intellectual functioning. He alleges



                                          18
Khazanov had limited experience and ignored other possible explanations for
petitioner’s low scores. Yet there were sound reasons for the referee to credit
Khazanov’s testimony. She was the only testifying expert to interact with
petitioner since 1984, which enabled her to assess petitioner’s current functioning
alongside his historical records. She could presently recall petitioner and his
performance, unlike Maloney and Dr. Sharma. She specifically focused on the
question of petitioner’s intellectual disability, which Maloney and Dr. Sharma did
not do when consulted by the defense. The consistency between petitioner’s score
on the WAIS-III (which Khazanov administered) and his earlier test scores
supports the conclusion that petitioner’s low IQ scores are the result of a long-
standing intellectual disability, rather than a lack of motivation or dementia.
       Additionally, the referee reasonably concluded that Dr. Hinkin’s testimony
was “entitled to lesser weight than that offered by the other experts.” The referee
was not bound by the opinion of any particular expert witness, but “ ‘may weigh
and consider all evidence bearing on the issue of mental retardation.’ ”
(Hawthorne, supra, 35 Cal.4th at p. 46.) Hinkin never met with petitioner
personally, and he conceded it was better to examine a patient rather than offer a
diagnosis based on a record review. The referee had discretion to weigh his
testimony accordingly. (See People v. Bassett (1968) 69 Cal.2d 122, 146, fn. 22
[“ ‘the extent of an expert’s knowledge goes to the weight of his testimony’ ”].)
Hinkin himself acknowledged it would not be unreasonable to conclude
petitioner’s test scores meet the first prong, and Maloney agreed the question was
a close one.
       We further note that in Moore v. Texas (2017) __ U.S. __ [137 S.Ct. 1039]
(Moore), the United States Supreme Court held that courts must “continue the
inquiry and consider other evidence of intellectual disability where an individual’s
IQ score, adjusted for the test’s standard error, falls within the clinically

                                           19
established range for intellectual-functioning deficits.” (Id. at p. 1050.) Petitioner
has two IQ scores that fall at or below 70 without adjustment for the standard error
of measurement: his score of 70 on the WISC and his score of 67 on the WAIS-
III. Petitioner also has a third score with the lower range falling at or below 70
when adjusted. His score of 73 on the WAIS-R yields a range of 68 to 78 or, if
rescored as 71, produces a range of 66 to 76. Moore thus dictates that we must
also consider petitioner’s adaptive functioning.
       On this topic, respondent complains the referee evaluated adaptive behavior
according to “the most current authority on this subject” instead of the authority
specifically endorsed by Atkins or Hawthorne. However, those cases do not
preclude reliance on more current AAIDD criteria. The legal determination of
intellectual disability is, of course, distinct from a medical diagnosis, but both our
decisions and those of the United States Supreme Court contemplate that the
determination must be an individualized one, informed by the views of medical
experts. (See, e.g., Moore, supra, 137 S.Ct. at pp. 1051, 1053; Hall, supra, 134
S.Ct. at p. 2000; Hawthorne, supra, 35 Cal.4th at p. 49.) As such, the referee had
discretion to consider current medical standards in assessing petitioner’s adaptive
behavior.
       The AAIDD’s diagnostic manual defines adaptive behavior as “the
collection of conceptual, social, and practical skills that have been learned and are
performed by people in their everyday lives.” (AAIDD-11, supra, p. 45.)
Conceptual skills include language and literacy; concepts regarding money, time,
and numbers; and self-direction. Social skills include interpersonal skills, social
responsibility, self-esteem, gullibility, naïveté, problem solving, and the ability to
follow rules and laws and to avoid victimization. Practical skills include personal




                                          20
care, occupational skills, healthcare, travel and transportation, schedules and
routine, safety, and use of money and the telephone.15 (AAIDD-11, p. 44.) The
description of adaptive functioning in the APA’s Diagnostic and Statistical
Manual V (5th ed. 2013) (DSM-5) is similar.
       Substantial evidence shows petitioner had significant adaptive difficulties
before age 18. Deficits included his functional illiteracy and poor progress in
school. His friends and siblings grew up in similar circumstances and attended the
same schools, yet appeared to function at a significantly higher level. These facts
suggest petitioner was unable, as opposed to unmotivated, to learn. The evidence
suggests petitioner may suffer from aphasia, a language difficulty that can be
associated with intellectual disability. The professionals who tested petitioner as
an adult documented difficulties in understanding and following directions. His
verbal IQ scores indicate impairment in problem solving, comprehension,
judgment, information processing, and logical thinking.
       Respondent urges a focus on petitioner’s adaptive strengths, including
successful gambling in Las Vegas, supporting himself though illegal activities,
maintenance of lasting relationships, and ability to banter with police when
questioned. Respondent criticizes Khazanov’s assessment as non-standardized
and as failing to acknowledge petitioner’s adaptive strengths or “street smarts.”
Respondent argues, “[A]n individual’s strengths can cancel out the deficits in
other areas.” It is well settled, however, that adaptive strengths and weaknesses

15      Significant limitations in adaptive behavior are found when an individual’s
adaptive performance falls two or more standards of deviation below the mean in
either: (1) any of the three adaptive behavior domains (conceptual, social, and
practical) or (2) an overall score on a standardized test measuring conceptual,
social, and practical skills. (AAIDD-11, supra, p. 43.) Khazanov testified
petitioner’s deficits in conceptual skills are “very severe,” “so apparent,” and
“significant” as to meet this prong without additional standardized testing.


                                         21
can coexist with intellectual disability. (See Brumfield v. Cain (2015) 576 U.S. __
[135 S.Ct. 2269, 2281].) The United States Supreme Court has cautioned against
overemphasizing perceived adaptive strengths to counter evidence of intellectual
disability. The Moore court rejected the view that adaptive strengths constitute
evidence adequate to overcome considerable objective evidence of adaptive
deficits, noting the medical community focuses the adaptive-functioning inquiry
on adaptive deficits. The Moore court observed: “ ‘significant limitations in
conceptual, social, or practical adaptive skills [are] not outweighed by the
potential strengths in some adaptive skills.’ ” (Moore, supra, 137 S.Ct. at p. 1050;
see also, AAIDD-11, supra, p. 47; DSM-5, supra, p. 33.) Moreover, as the referee
noted, petitioner was not a successful street hustler, having been arrested and
convicted numerous times, nor was he adept at deceiving police during his
interview.
         In sum, the referee’s findings as to both intellectual functioning and
adaptive behavior are substantially supported and we adopt them. Because he is
intellectually disabled, petitioner is ineligible for execution.
                                  IV. DISPOSITION
         The petition for a writ of habeas corpus is granted insofar as claim XVIII
alleges that petitioner is ineligible for execution because he is intellectually
disabled. The judgment in People v. Robert Lewis, Jr. (Super. Ct. Los Angeles
County, 1984, No. A027897), is vacated to the extent it imposes a sentence of
death.
         In light of the above, we do not address the petition’s allegations of
ineffective assistance of counsel in claims XIV, XV, and XVI. The order to show
cause on those claims is discharged.




                                           22
       The petition’s remaining claims will be resolved by later order to be filed
separately, as is our practice. (See In re Scott (2003) 29 Cal.4th 783, 829.)


                                                                    CORRIGAN, J.


WE CONCUR:

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




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


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

Name of Opinion In re Lewis
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S117235
Date Filed: May 24, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert J. Perry

__________________________________________________________________________________

Counsel:

Robert M. Sanger, under appointment by the Supreme Court, for Petitioner Robert Lewis. Jr.

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, Pamela C. Hamanaka
and Lance E. Winters, Assistant Attorneys General, John R. Gorey, Keith H. Borjon, Jamie L. Fuster and
Margaret E. Maxwell, Deputy Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert M. Sanger
Sanger Swysen & Dunkle
125 East De La Guerra, Suite 102
Santa Barbara, CA 93101
(805) 962-4887

Margaret E. Maxwell
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2282
