Filed 8/27/12




      IN THE SUPREME COURT OF CALIFORNIA


In re MIGUEL ANGEL BACIGALUPO       )
                                    )                      S079656
           on Habeas Corpus.        )
____________________________________)


        On petitioner‟s automatic appeal in this death penalty case, we affirmed the
judgment. Thereafter, petitioner filed a habeas corpus petition. We ordered an
evidentiary hearing on petitioner‟s claim that the prosecution had failed to disclose
evidence that would have supported a case in mitigation at the penalty phase that
petitioner committed the two murders because of a Colombian drug cartel‟s death
threats against him and his family. After hearing the testimony of 17 witnesses,
the referee found merit to petitioner‟s claim. We uphold that determination by the
referee, and we grant petitioner‟s habeas corpus petition for relief from the
judgment of death.
                             I. PROCEDURAL BACKGROUND
        In April 1987, a jury found petitioner Miguel Angel Bacigalupo guilty of
the December 29, 1983, murders of brothers Orestes and Jose Luis Guerrero.
(Pen. Code, § 187; further undesignated statutory references are to the Penal
Code.) The jury also found to be true special circumstance allegations of multiple
murder (§ 190.2, subd. (a)(3)) committed during a robbery (former § 190.2, subd.




                                          1
(a)(17)(i)).1 The jury returned a verdict of death. In June 1987, the trial court
sentenced defendant to death. Four years later, this court affirmed the judgment in
its entirety. (People v. Bacigalupo (1991) 1 Cal.4th 103.)
       Thereafter, the United States Supreme Court, ruling on petitioner‟s
certiorari petition challenging our decision, vacated our judgment and remanded
the matter to our court for reconsideration (Bacigalupo v. California (1992) 506
U.S. 802) in light of the then recent decision in Stringer v. Black (1992) 503 U.S.
222. In Stringer, the high court set aside a Mississippi death judgment because the
jury had considered an unconstitutionally vague aggravating factor in its penalty
decision. (Id. at p. 237.) After the parties‟ briefing and after oral argument on
whether the Stringer analysis applied in this case, we again affirmed the judgment.
(People v. Bacigalupo (1993) 6 Cal.4th 457, 475.) We concluded that because of
differences between the California and the Mississippi death penalty schemes,
Stringer did not apply to this California case. (Ibid.) The high court then denied
the petition for certiorari. (Bacigalupo v. California (1994) 512 U.S. 1253.)
       Petitioner‟s first habeas corpus petition, filed in May 1993, was denied by
us in May 1994, based on the merits as well as untimeliness. This, his second
petition, was filed in June 1999. In March 2001, we ordered the California State
Department of Corrections (which has custody of prisoners sentenced to death) to
show cause why petitioner was not entitled to relief from the judgment of death
(our order did not pertain to either of the two murder convictions or the special
circumstance findings) in light of petitioner‟s claim that the prosecution before
trial failed to disclose evidence that at the penalty phase would have supported

1      The robbery-murder special circumstance has been renumbered as section
190.2, subd. (a)(17)(A).



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petitioner‟s claim of having killed under duress. (See § 190.3, factor (g) [allowing
evidence regarding “[w]hether or not defendant acted under extreme duress or
under the substantial domination of another person”].) After the parties‟ briefing
of that question, this court in November 2003 ordered an evidentiary hearing
before a referee.
       Initially, because petitioner‟s trial occurred in Santa Clara County, we
referred the matter to the presiding judge of that county‟s superior court for
selection of a referee. Petitioner, however, sought to have all of the judges of the
Santa Clara County Superior Court disqualified because Judge Joyce Allegro of
that court had been the prosecutor in petitioner‟s capital trial. We then vacated our
initial order and reassigned the matter to the Contra Costa County Superior
Court‟s presiding judge, who proposed as referee retired Judge Richard Arnason.
In March 2004, we appointed Judge Arnason as referee, directing him to supervise
discovery, take evidence, and make findings on specified questions. Particularly
relevant here is whether the prosecution failed to disclose information it obtained
from a confidential informant (Gale Kesselman) who on September 6, 1985,
testified at a pretrial ex parte hearing in this case held on the defense request to
disclose the informant‟s identity.
       At the reference proceeding, which began in 2004 and had several hearings
over a three-year period, 17 witnesses were called (the proceedings comprise some
3,700 transcript pages). Based on the evidence presented, the referee in June 2009
issued his report, which is before us. The referee found that the prosecution knew
from its confidential informant, Gale Kesselman, that her former boyfriend, Jose
Angarita (a Colombian native, who was a major drug dealer in San Jose,
California, and knew the murder victims) had made statements implicating himself
in ordering the killings. The referee further found that more than a year before
Kesselman‟s testimony at the September 1985 pretrial ex parte hearing, she had

                                           3
told the prosecution about a meeting between Angarita and petitioner on the night
before the murders. These pieces of information from Kesselman, the referee
found, were not turned over to the defense by the prosecution and would have lent
support to a penalty phase case in mitigation that petitioner killed the two
Guerrero brothers while under Colombian Mafia death threats against him and his
family.
         The Attorney General filed objections to the referee‟s findings, and
petitioner filed a response to those objections. After reviewing those filings, the
referee‟s report, and the record of the reference hearing, as well as the
documentary evidence filed in connection with the habeas corpus petition, and the
appellate record in petitioner‟s capital case, we conclude that the withheld
evidence was both favorable and material (Brady v. Maryland (1963) 373 U.S. 83,
87) on the issue of penalty, thus entitling petitioner to relief from the judgment of
death.

                              II. 1987 TRIAL EVIDENCE

         We summarize the evidence presented in petitioner‟s April 1987 capital
trial that is of relevance here.
         In the afternoon of December 29, 1983, petitioner, who had recently come
from New York, began working in a San Jose, California, jewelry store owned by
Orestes Guerrero, a Peruvian immigrant. The job had been arranged by
petitioner‟s mother, a Peruvian native who knew Orestes through the Peruvian
community in the San Francisco Bay area. Present in the jewelry store on
December 29 were owner Orestes Guerrero, his brother Jose Luis Guerrero, a
Peruvian immigrant named Carlos Valdiviezo, and petitioner. Later that day,
petitioner ordered Valdiviezo at gunpoint to lie down. Instead, Valdiviezo ran and
hid in the store‟s bathroom; he came out only after hearing someone leave the



                                           4
store through the front door. Valdiviezo then discovered the dead bodies of
Orestes and Jose Luis Guerrero; both had been shot. That evening, police arrested
petitioner at the Palo Alto home of his mother and stepfather, just as the stepfather
was preparing to take petitioner to the airport. Found in petitioner‟s suitcases was
jewelry taken from Orestes‟s store.
       Petitioner waived his constitutional rights under Miranda v. Arizona (1966)
384 U.S. 436, and agreed to talk to the arresting officers about the murders.
Initially, petitioner denied any involvement in the killings, claiming he had spent
the entire day alone at his mother and stepfather‟s house. He blamed the crimes
on an acquaintance, Karlos Tijiboy, saying that Tijiboy looked “a lot like”
petitioner and that Tijiboy was “connected with the Mafia.”
       Later, however, petitioner admitted killing the two Guerrero brothers,
claiming he had been ordered to do so two weeks earlier by the Colombian Mafia
under threats to kill petitioner and his family, and that it was Tijiboy who had
given him the order. The tape recording of petitioner‟s interview with the police
was introduced into evidence by the prosecution at the guilt phase of petitioner‟s
capital trial. Tijiboy, called as a witness for the prosecution, identified petitioner,
but denied ordering petitioner to kill the Guerrero brothers.
       In closing arguments to the jury at the guilt phase of the trial, the
prosecution made this statement: “Now Mr. Aaron [defense counsel] is going to
have to find something to talk about. What will it be? Perhaps he will argue that
there was a Peruvian [sic: Colombian] Mafia that ordered the defendant to rob and
kill Jose Luis and Orestes Guerrero. But there is absolutely no evidence of that.”
The prosecutor added: “The evidence is very clear . . . defendant didn‟t receive
any instructions from anyone about robbing and killing the Guerreros. Only his
greed sent him there.” The prosecution reiterated that point at the close of the
penalty phase of the trial, when it told the jury the defense had offered no

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mitigating evidence that petitioner had “acted under extreme duress or under the
substantial domination of another person.” (§ 190.3, factor (g).) The prosecutor
stressed at the penalty phase: “The defendant acted alone. In spite of the fact that
he tried to blame others for his conduct, there is no evidence of that. The only
duress was his greed. The only domination was his total indifference to human
life.”

     III. FACTS LEADING TO THE 2004 POSTTRIAL EVIDENTIARY HEARING

         A. Pretrial (September 1985) Ex Parte Hearing

         In August 1985, while petitioner was still awaiting trial for the two
murders, his counsel asked the trial court to order the prosecution to disclose the
name and whereabouts of a confidential informant who was known to the
prosecution and who, according to the defense, was a material witness on the issue
of petitioner‟s guilt of the killings. Attached to the written request was a
“Supplementary Offense Report” prepared on May 4, 1984, by San Jose Police
Department Sergeant John Kracht and obtained by the defense through discovery.
The report stated that Kracht was at a meeting held on April 18, 1984, at the Santa
Clara County District Attorney‟s Office, where prosecution investigators Sandra
Williams and Ron McCurdy “provided a confidential informant for purpose of an
interview,” which was tape-recorded.
         Sergeant Kracht‟s May 1984 report stated: “The informant, relaying
statements Jose Angarita made after the murders, suggested that revenge and not
robbery was the motive and that the incident that was revenged happened some
years ago.” The report also mentioned that in April 1984 Sergeant Kracht had
interviewed Attorney Joseph DiLeonardo, who once represented Angarita. The
police contacted DiLeonardo, Kracht‟s report explained, “because of statements
attributed to him describing the murders of the Guerrero brothers as a contract


                                            6
killing.” At the interview, which was tape-recorded, DiLeonardo denied
describing the murders as contract killings. According to DiLeonardo, the
mention of contract killings came from Santa Clara Police Department Sergeant
Tom Hensley, who was preparing a case against one Ronnie Nance, who was then
in the Santa Clara County Jail charged with the attempted armed robbery of a drug
trafficker.
       In opposing the August 1985 defense motion for disclosure of the
confidential informant‟s identity, the prosecution asserted its evidentiary privilege
not to reveal that identity, arguing that here the public interest in nondisclosure
outweighed the necessity for disclosure. (Evid. Code, § 1041, subd. (a)(2).) A
hearing on that issue (Evid. Code, § 1042, subd. (d)) was then held on September
6, 1985, in the chambers of Santa Clara County Superior Court Judge Read
Ambler. At that hearing, at which the defense was not present, the judge heard the
testimony of two witnesses: Sandra Williams and the confidential informant (Gale
Kesselman). Judge Ambler also listened to the April 1984 tape recording of the
police interview of the confidential informant. (The contents of this tape
recording are described on pp. 11-12, post.)
       On September 24, 1985, Judge Ambler denied the defense motion for
disclosure of the confidential informant‟s identity, issuing this order: “The Court has
conducted an in camera hearing pursuant to Evidence Code Section 1042(d), the
People having claimed the privilege set forth in Evidence Code Section 1041
[protecting the identity of a confidential informant]. Based on the evidence presented,
including the tape recording in question, the Court concludes that the informant is not
a material witness on the issue of guilt and that there is no reasonable possibility that
non-disclosure of the identity of the informant might deprive the defendant of a fair
trial. The Court further finds that revealing any portion of the tape would tend to
disclose the identity of the informant.” The order further stated: “The transcript of all

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proceedings held in camera, and the tape introduced into evidence, are ordered sealed,
and only a court may have access to same.”2 Thereafter, the prosecution never
disclosed to the defense the identity of the confidential informant.
       Petitioner later raised issues pertaining to the confidential informant in his
second habeas corpus petition, which is now before us.

       B. Second Petition for Writ of Habeas Corpus

       Pertinent here is claim G raised in petitioner‟s second habeas corpus
petition and later presented at the evidentiary hearing we ordered on this issue.
Claim G asserts that the prosecution withheld evidence that would have lent
support to a case in mitigation at the penalty phase of petitioner‟s capital trial that
petitioner killed the victims because of Colombian Mafia death threats against him
and his family. Central to this claim is the testimony presented at the pretrial
September 1985 ex parte hearing pertaining to the defense request for disclosure
of the identity of the confidential informant.
              1. Testimony at the September 1985 ex parte hearing
       At the September 1985 ex parte pretrial hearing in the chambers of Judge
Read Ambler, the prosecution called two witnesses: Sandra Williams, an
investigator for the Santa Clara County District Attorney‟s Office, and Gale
Kesselman, the confidential informant, each of whom testified out of the presence
of the other witness.
       Williams testified that while investigating petitioner‟s murder case, she
learned about confidential informant Kesselman through Ronnie Nance, who was

2      In November 2003, when this court ordered the posttrial evidentiary
hearing, we also sent petitioner‟s habeas corpus counsel a copy of the transcript of
the September 1985 pretrial ex parte hearing. That transcript was later admitted
into evidence at the evidentiary hearing.



                                           8
then in the Santa Clara County Jail awaiting trial on charges of attempted murder
and robbery. Nance said that Kesselman told him that her former boyfriend, Jose
Angarita (a Colombian native and a major drug dealer in San Jose, California),
had information about the two murders with which petitioner had been charged.
Williams was able to find both Kesselman and Angarita, and she talked to them
separately. Kesselman denied telling Nance that Angarita had any involvement in
the killings of the two Guerrero brothers. Kesselman told investigator Williams
that Angarita “was moving a lot of cocaine through Colombia into Florida,” and
ultimately California, and that he knew murder victim Orestes Guerrero who had
rented a small space in the back of Angarita‟s jewelry store in San Jose.
       Williams further testified at the September 1985 pretrial hearing that
Kesselman had given federal agents information that led to a federal drug
prosecution against several defendants charged with narcotics violations. In that
federal case, Kesselman was a confidential informant and was “being protected.”
Williams then explained that before becoming an investigator in the district
attorney‟s office, she had been a “special agent” for the California Department of
Justice, where she spent two years in an undercover capacity. She expressed the
view that in the capital case against petitioner, the disclosure of Kesselman‟s
identity would endanger Kesselman‟s life. Williams then left the ex parte hearing
in Judge Ambler‟s chambers, and the prosecution called Kesselman as a witness.
       Kesselman testified that former boyfriend, Jose Angarita, had been
distraught over the death of his friend, Orestes Guerrero, and that he had
speculated that “it really wasn‟t just a robbery.” Angarita told Kesselman that he
learned about the details of the murder scene from his jewelry business partner,
Dan Burke.
       The prosecutor then asked Kesselman whether Angarita ever indicated that
he knew petitioner, who was charged with killing the two Guerrero brothers.

                                          9
Kesselman replied, “He didn‟t say one way or the other.” The bodies of the two
Guerrero brothers were in different rooms, Kesselman said, “So [Angarita] was
wondering how, you know, if [the killer] was just some robber, how did that
robber manage to kill both people within such a short amount of time, without,
you know, being heard and escaping. So that‟s why [Angarita] was speculating,
well, maybe it could have been—maybe it was a revenge killing. Maybe it was a
contract killing . . . . He was only speculating. He was wondering why someone,
you know, if only the robber could be that fast or maybe there were two people.
That‟s another speculation he used. Maybe there were two people.”
       According to Kesselman, Angarita was drawing upon his experience as a
mercenary in Colombia and his knowledge of firearms when he speculated that the
killer “had to be very fast or fairly well trained” or there must have been “two
people.” In response to questions by the prosecutor, Kesselman said that Angarita
made no mention of having information that the murders were either revenge
killings or contract killings. The prosecutor then asked whether Kesselman had
formed any opinion “as to the reason for the killings based on [her] conversations
with Jose Angarita,” to which Kesselman replied, “No.” After concluding her
testimony, Kesselman left the pretrial ex parte hearing, and prosecution
investigator Williams was re-called to testify.
       The prosecutor asked Williams whether Kesselman had said that Angarita
was the source of the information she had given to Williams. Williams replied:
“She doesn‟t know anyone else in this case.” Williams further stated that a
reference to Angarita was contained in Sergeant Kracht‟s May 1984
“Supplemental Offense Report,” which had been turned over to the defense.
       At the end of the September 1985 pretrial ex parte hearing, Judge Ambler
said that before ruling on the defense request for disclosure of the confidential



                                         10
informant‟s identity, he wanted to listen to the tape recording of Sergeant Kracht‟s
April 1984 interview of confidential informant Kesselman.

              2. Sergeant Kracht’s tape-recorded interview of
                    confidential informant Gale Kesselman
       In a tape-recorded interview with Sergeant Kracht in April 1984 (three
years before petitioner‟s capital trial), Kesselman described what former boyfriend
Angarita had told her about the killings of the two Guerrero brothers. According
to Kesselman, Angarita had been “real excited” when he told her that two of his
friends had been killed. He said: “They say it was a robbery. But I know it
wasn‟t.” When Kesselman asked the reason for the killings, Angarita replied that
it was “an organized murder” because of “something that happened years ago.”
He added that “one of the people was not supposed to die,” wondering aloud why
the “other guy” had to be there. Angarita had described the murders as
“professional” based on the positions of the bodies, each in a different room. He
said that the guy who “was picked up” in connection with the murders was “gonna
take the . . . fall,” and that there was someone else involved, who was “already on
[his] way back to New York.”
       In the tape-recorded interview, Sergeant Kracht asked Kesselman whether
she knew of anything else that might suggest that Angarita “was involved or not”
in the killings. Kesselman replied: “[W]hile I was talking to [prosecution
investigator] Sandy [Williams] and seeing the picture of the guy that, that was
arrested for the murders, I think it‟s the same man that I had driven Jose [Angarita]
to [meet] in San Francisco.”
       Kesselman then described driving with Angarita to a hotel on Nob Hill in
San Francisco to meet a man who, Angarita said was from New York and was a
“big” Colombian “drug dealer.” At one point, Angarita told Kesselman to
telephone the hotel for directions. Following the desk clerk‟s directions, they


                                         11
arrived at a hotel that Kesselman thought might have been a Hyatt Regency hotel.
Standing by the hotel‟s door was a man Kesselman described as being in his mid-
to-late 30‟s, or possibly younger. The man got into the car, and Kesselman drove
around while Angarita and the man had a brief conversation in Spanish, a
language that Kesselman did not understand. Kesselman was “almost positive”
that Angarita called the man “Miguel” (petitioner‟s name is Miguel).

              3. Additional evidence presented in support of the second habeas
                    corpus petition
       Claim G in petitioner‟s second habeas corpus petition asserts that the
prosecution, before petitioner‟s capital trial, had failed to disclose evidence that
would have supported a case in mitigation at the penalty phase of petitioner‟s
capital trial that he had killed the two Guerrero brothers while acting under
duress — that is, under Colombian Mafia death threats against him and his family.
In support of this claim, petitioner presented two declarations by Gale Kesselman,
both dated August 7, 1997.
       Kesselman‟s first declaration said that she had testified in chambers in
petitioner‟s capital case, and that she also testified in a federal drug prosecution.
After the federal case ended in convictions, she declined an offer by the federal
Drug Enforcement Agency to place her in its witness protection program, as she
perceived no threat to her personal safety.
       Kesselman‟s second declaration described extensive cocaine smuggling and
dealing activities of former boyfriend, Jose Angarita. The declaration then states:
       “One day, around late December 1983, Jose asked me . . . to drive with him
to San Francisco to meet someone from New York who was going to work for
him. I remember we were to meet this man around a hotel and we had some
trouble finding the right hotel. When we arrived at the hotel, we picked up Miguel
Bacigalupo [petitioner]. Miguel was very casually dressed and he looked nervous


                                          12
and out of place. Jose got in the back seat of the car with Miguel . . . . Jose and
Miguel conversed in Spanish, which I do not understand fully. Jose was obviously
discussing some kind of business arrangement with Miguel. The next day or so, I
heard that two Peruvians[,] Orestes and Jose Guerrero, were killed in their jewelry
shop on The Alameda, in San Jose. From that day on, Jose [Angarita] started
acting very strangely. He was very nervous, and literally sweating when he
watched the reports of the murders on television.”
       Kesselman‟s second declaration added that the two murdered Guerrero
brothers had previously worked in Angarita‟s jewelry shop, and that Angarita told
her he had “an obligation to set them up in a store,” which he considered “a
burden.” The declaration attributes to Angarita a statement suggesting that “if
people crossed him that their whole family would be killed.” The declaration also
stated that Kesselman herself “began to suspect that Jose [Angarita] had been
ordered to kill the Guerrero brothers.”
       Kesselman‟s second declaration also described a meeting with prosecution
investigator Sandra Williams, who questioned Kesselman about Angarita‟s
possible involvement in the killings of the two Guerrero brothers. Kesselman told
Williams about Angarita‟s drug-dealing activities, and Williams turned that
information over to the federal Drug Enforcement Agency. Kesselman estimated
that when she was dating Angarita in 1983, he “was probably making one million
dollars a week” dealing drugs.
       Kesselman‟s second declaration further stated that she told prosecution
investigator Williams “everything” set forth in the declaration. According to
Kesselman, Williams told her before the September 1985 pretrial ex parte hearing
“not to mention [at that hearing] the possibility that the Guerrero brothers‟
murders were contract hits ordered by Jose [Angarita].”



                                          13
                4. Evidence in support of the Attorney General’s return to our
                      March 2001 order to show cause
       After we issued an order to show cause (returnable before this court)
directing the prosecution to show why petitioner should not be entitled to relief
from the death judgment, the Attorney General filed a return. With the return was
a declaration by prosecution investigator Sandra Williams, who denied that she
ever told confidential informant Kesselman to withhold information or to testify
falsely at the September 1985 pretrial ex parte hearing.
       The Attorney General also submitted transcripts of two habeas corpus-
related interviews of Kesselman conducted in May 2001 by John Kracht, who at
the time of petitioner‟s 1987 trial was a sergeant with the San Jose Police
Department, but who in May 2001 was an investigator for the California
Department of Justice. In those two interviews, Kracht showed Kesselman a copy
of the second of the two declarations she had signed on August 7, 1997, in support
of the second habeas corpus petition (at issue here). As noted Kesselman said in
that declaration that prosecution investigator Williams had told her not to mention
at the September 1985 pretrial ex parte hearing “the possibility that the Guerrero
brothers‟ murders were contract hits ordered by Jose [Angarita].” When Kracht
asked Kesselman to point out any inaccuracy in that declaration, she replied that
Williams had not told her to withhold information at the ex parte hearing. Kracht
also showed Kesselman a photographic lineup, which included a photograph of
petitioner taken in 1984 (shortly after the murders of the Guerrero brothers) and
photographs of five other Latino men in the same age range. Kracht then asked
Kesselman if she could identify the man she and Angarita had met on December
28, 1983 (the night before the murders), at the San Francisco hotel. After initially
saying she was unsure, Kesselman ultimately picked out a photograph other than
petitioner‟s.



                                          14
               5. Kesselman’s third declaration
        In support of the traverse that petitioner submitted in response to the
Attorney General‟s return, petitioner included a third declaration by Kesselman
that was signed on May 25, 2002, a year after the just-described tape-recorded
interviews with Attorney General investigator Kracht. In that third declaration,
Kesselman stated that “everything” mentioned in her two previous declarations
signed on August 7, 1997 (in support of the habeas corpus petition) was “accurate
and true.”
                             IV. ORDER OF REFERENCE
        A. Questions for the Referee
        In November 2003 we issued an order of reference in connection with
petitioner‟s second habeas corpus petition. The order directed the referee to resolve at
an evidentiary hearing several factual issues arising from petitioner‟s claim G. That
claim asserts that the prosecution before petitioner‟s 1987 capital trial failed to
disclose evidence supportive of petitioner‟s statement to the police that he had killed
the two Guerrero brothers because of the Colombian Mafia‟s death threats against him
and his family. Such evidence, according to petitioner, would have enabled him to
present a case in mitigation based on duress at the penalty phase of his capital trial.
We consider our questions to the referee on pages 21-25, post, when we discuss them
in connection with the referee‟s factual findings.
        B. Reference Hearing Testimony
        Below, we summarize the testimony relevant to claim G that petitioner
presented at the posttrial evidentiary hearing ordered by this court in November
2003.
               1. Confidential informant Gale Kesselman
        Petitioner‟s primary witness in support of the second petition for a writ of
habeas corpus was Gale Kesselman, the confidential informant whose identity the

                                          15
defense sought to obtain before petitioner‟s 1987 capital trial for the murders of
the two Guerrero brothers. At the posttrial evidentiary hearing before the referee,
Kesselman testified to the series of events leading to her involvement in this case.
       In 1983, Kesselman became romantically involved with Jose Angarita, a
Colombian native living in San Jose, California. She described Angarita as a San
Francisco Bay area cocaine dealer, who sold 20 to 40 kilograms of cocaine each
week, netting “around a million dollars or so a week.” Angarita, according to
Kesselman, operated certain seemingly “legitimate” businesses in the San Jose
area, including a gold and silver exchange as well as jewelry stores. Kesselman
met Angarita through a mutual friend, who put the two together because
Kesselman was in financial trouble. The plan was for Kesselman to work for
Angarita in his illegal drug business and to earn enough money to pay off her
debts. Kesselman made “drops” of drugs and money for Angarita.
       Sometime in 1984, Kesselman became a witness in a federal prosecution
against several defendants charged with trafficking in cocaine. (In that case,
Angarita was not a defendant; the lead defendant was a “lieutenant” in Angarita‟s
drug trade, and at the reference hearing was, for safety reasons, given the assumed
name of simply “Joseph.”) Prosecution investigator Sandra Williams had
introduced Kesselman to federal Drug Enforcement Agency Agent Rod Alvarez,
and Williams told Kesselman to tell Alvarez what she knew about Angarita‟s drug
dealings. Kesselman testified in chambers before a federal judge, describing what
she knew about Angarita‟s drug dealings. By the time of Kesselman‟s testimony
in federal court, Angarita had fled the San Jose area; Kesselman believed him to
be dead.
       After the defendants in the federal case were convicted, federal agents gave
Kesselman $5000 and offered to place her in their witness protection program, an
offer she declined.

                                         16
          Kesselman mentioned an interview with prosecution investigator Sandra
Williams in connection with the murders of the two Guerrero brothers. Kesselman
said she told Williams “everything” she knew about Angarita‟s drug dealings,
which according to Kesselman extended from San Francisco to Los Angeles to
Miami, and she mentioned Angarita‟s association with the Medellin drug cartel in
Colombia.
          Kesselman further testified at the evidentiary hearing that she had told
prosecution investigator Williams that on the night before the Guerrero murders,
she drove Angarita and his drug trade associate, Joseph (see ante, p. 16), to a hotel
in San Francisco‟s Nob Hill area. Angarita said they would be meeting at the
hotel a “new supplier” who was from New York City. Angarita planned to talk to
the supplier for “just a few minutes.” (At the hearing, Kesselman identified
petitioner as the person she had met in December 1983 outside the San Francisco
hotel.)
          Kesselman then mentioned stopping the car in front of the hotel, where
petitioner was waiting. Petitioner got into the car, and he and Angarita started
talking in Spanish (which Kesselman could not understand), while Kesselman
drove the car around the block a few times. After dropping petitioner off at the
hotel, Kesselman drove the two male passengers back to San Jose.
          Kesselman said that just before testifying at the September 1985 pretrial ex
parte hearing she had discussed the issues with prosecution investigator Williams.
In that discussion, one thing that “kept coming up” was Angarita‟s statement to
Kesselman that the murders of the two Guerrero brothers were murders “for hire.”
Angarita had told Kesselman that he had “instrumented” [sic] the killings of the
Guerrero brothers by meeting with petitioner and “directing him to San Jose to the
jewelry store” owned by murder victim Orestes Guerrero. Kesselman stated at the



                                            17
reference hearing that she mentioned this information to prosecution investigator
Williams before the pretrial ex parte hearing.
       Kesselman also testified at the reference hearing that had she been called as
a witness at petitioner‟s 1987 capital trial, she would have testified to the same
information she had provided prosecution investigator Williams, namely,
Angarita‟s statements incriminating himself in the murders of the Guerrero
brothers as well as the fact that Angarita had met with petitioner the night before
the murders.
       In cross-examining Kesselman at the reference hearing, the prosecutor
asked whether in her tape-recorded interviews with Attorney General investigator
John Kracht in May 2001 Kesselman had lied when she told Kracht, contrary to
her declaration submitted in support of the habeas corpus petition, that prosecution
investigator Sandra Williams had not told her to lie at the September 1985 pretrial
ex parte hearing. Kesselman then explained at the reference hearing that when
Kracht kept wanting to “go over this point again,” she just wanted to get it over
with, so she told Kracht, “Yes, all that I said” in the previous declarations “was
nothing but a lie.”
               2. Prosecution investigator Sandra Williams
       Sandra Williams testified at the posttrial evidentiary hearing that in 1984
she was an investigator for the Santa Clara County District Attorney‟s office. She
became the lead investigator in petitioner‟s capital case on January 9, 1984, some
11 days after the murders of the two Guerrero brothers.
       On February 14, 1984, Sergeant Joe Brockman of the San Jose Police
Department told Williams that Santa Clara County Jail inmate Ronnie Nance
might have some information about the Guerrero murders. On February 17,
Williams and Brockman interviewed Nance in the jail. Nance mentioned talking
to Gale Kesselman, who indicated to him that someone possibly connected to the

                                         18
murders owned a gold and silver exchange in Sunnyvale, California. According to
Williams, she passed on to David Gonzales, an investigator with the Santa Clara
County Public Defender‟s Office, “everything that Nance was saying.” On March
6, 1984, Williams interviewed Scott Burke (the son of Dan Burke, Angarita‟s
jewelry business partner), who mentioned Jose Angarita to Williams; this was the
first time that Williams had heard that name.
       Williams then tracked down Gale Kesselman, who when first interviewed
by Williams denied knowing anyone named “Miguel,” petitioner‟s first name.
Kesselman insisted that Angarita could not have been involved in killing the two
Guerrero brothers because they were his friends. Kesselman initially described
Angarita as a “former boyfriend” whom she had “dated” for three months. Later,
however, Kesselman said her romantic involvement with Angarita lasted only 30
days. In describing at the reference hearing her conversations with Kesselman,
Williams said: “Everything changed with her every time I talked to her.”
       Williams also testified that she had looked into Kesselman‟s claim that on
December 28, 1983 (the night before the murders) Kesselman and Angarita
stopped in front of a hotel on Nob Hill in San Francisco to pick up a man
resembling petitioner. Williams contacted hotels in the Nob Hill area and found
that for the night of December 28, 1983, none of the guest registers listed any
person with a Spanish surname. Nor could Williams verify Kesselman‟s claim
that Angarita was a major drug dealer.
              3. San Jose Police Sergeant John Kracht
       At the reference hearing, John Kracht testified that in April 1984, he was a
sergeant in the San Jose Police Department assigned to the capital case against
petitioner. While working on the case, Kracht made personal notes. According to
Kracht, he would not at the time have given those personal notes to anyone in the
district attorney‟s office. Those personal notes included this entry: “[Prosecution

                                         19
investigators Ron McCurdy and Sandra Williams] indicated that they had
tentatively associated [petitioner] with Angarita on the evening before the double
murder and had been told by several persons that the homicides were a hit or
carried out for financial gain at the direction of another. The other that they
suspected was Jose Angarita.” Angarita‟s name, and a suggestion that robbery
might not have been the motive for the Guerrero murders, did make it into the
“Supplementary Offense Report” that Kracht prepared in May 1984 and that was
provided to the defense sometime before August 1985 (when petitioner‟s counsel
attached a copy to the request for disclosure of the confidential informant).
       Kracht testified that while working as an investigator for the state Attorney
General‟s Office, he met with Kesselman on May 15 and again on May 17, 2001.
He asked her to go over her two 1997 declarations, which supported the habeas
corpus petition and were prepared by petitioner‟s habeas corpus counsel.
Kesselman spontaneously pointed out errors in the declarations. Kracht denied
pressuring Kesselman to disavow any statements in either of the declarations.
              4. Attorney John Aaron
       Also testifying at the reference hearing was John Aaron, who in 1987 was a
deputy public defender in Santa Clara County and represented petitioner at trial;
previously, petitioner‟s counsel had been Deputy Public Defender Michelle
Forbes. Aaron stated that before trial he had no evidence to corroborate
petitioner‟s claim to the police that he killed the two Guerrero brothers because of
Colombian Mafia death threats against him and his family. Had he known of such
evidence, Aaron said, he would have offered it at the trial‟s penalty phase as
mitigating evidence that the killings were committed under duress.




                                         20
       C. Referee’s Factual Findings on the Questions in Our Order of
          Reference
       The referee‟s report, filed in this court in June 2009, comprises some 150
pages, including 39 pages of factual findings in response to the questions we asked
in our March 2004 order of reference. Those questions are set forth below,
followed by pertinent summaries of the referee‟s answers.
       Our first question to the referee asked: “What information did the
prosecution obtain before or during petitioner‟s capital trial regarding a possible
connection between one Jose Luis Angarita and the murders of Orestes and Jose
Luis Guerrero? What, if any, of this information was given to the defense?”
       The referee found that at the time of the capital trial proceedings against
petitioner, the prosecution knew from a confidential informant (Gale Kesselman,
the former girlfriend of Angarita‟s) of a statement made by Angarita to
Kesselman, that, as phrased by the referee, “the murders were drug-related
revenge killings or contract hits on behalf of a drug cartel arising out of a dispute
about an old drug debt,” and that Angarita acknowledged having been an
“instrument in the murders.” The referee also found that Kesselman had told the
prosecution about a meeting in San Francisco between Jose Angarita and
petitioner the night before the murders.
       In addition, the referee found that based on the personal notes of San Jose
Police Sergeant John Kracht in 1984, three years before petitioner‟s capital trial,
the prosecution had this information:
       “[Investigators] Williams and McCurdy gave a presentation [at the district
attorney‟s office] associating Jose Angarita, a former employer of Orestes
Guerrero, with cocaine trafficking. They indicated they had tentatively associated
Miguel Padilla [petitioner] with Angarita on the evening before the double murder,


                                           21
and had been told by several persons that the homicides were a „hit,‟ or carried out
for financial gain at the direction of another. The other that they suspected was
Jose Angarita.”
       The above mentioned information, the referee concluded, had not been
disclosed to the defense, but the prosecution did provide the defense before trial
with a copy of Sergeant Kracht‟s May 1984 “Supplementary Offense Report.”
That report mentioned a “confidential informant” who said that “Jose Angarita”
had suggested that the “motive” for the Guerrero murders was “revenge and not
robbery.”
       Our second inquiry to the referee asked: “Did the confidential informant
who testified at the ex parte hearing on September 6, 1985, tell a district attorney
investigator or other member of law enforcement connected with this case that the
informant had witnessed petitioner‟s meeting with Angarita and others a day or so
before the murders? If so, did the prosecution convey this information to the
defense?” Our question further asked: “If the confidential informant told a
district attorney investigator or other member of law enforcement about a meeting
between petitioner and Angarita, was this information reliable?”
       The referee found that the confidential informant (Gale Kesselman) had
told prosecution investigator Sandra Williams that Kesselman was present at a
meeting between petitioner and Jose Angarita in San Francisco the night before
the murders of the two Guerrero brothers, that this information about the meeting
was not disclosed to the defense, and that the information was reliable.
       Our third question asked the referee: “Did the prosecution from any source
. . . obtain any information that it did not provide to the defense that would have
supported petitioner‟s claim to the police that he had killed Orestes and Jose
Guerrero acting under the Colombian Mafia‟s death threats to himself or his
family?” The referee found that the prosecution knew from Gale Kesselman, the

                                         22
confidential informant, about Angarita‟s extensive drug dealing activities, his
statements incriminating himself in the killings, and his involvement with a
Colombian drug cartel, but did not disclose this information to the defense. The
referee also found that “the prosecution through Sandra Williams affirmatively
told the defense that the information about any putative connection between the
killings and a drug-related contract hit was not correct.”
       Our fourth question to the referee asked: “If the prosecution withheld from
the defense information (a) about a possible connection between Jose Luis
Angarita and the murders of Orestes and Jose Guerrero; or (b) about a meeting
between petitioner, Angarita and others a day or so before the killings; or (c) that
would have supported petitioner‟s claim to police that he killed the Guerrero
brothers acting under death threats to him and his family, what penalty phase
evidence not otherwise known or available to the defense at the time of trial would
have come to light had the withheld information been disclosed?”
       The referee found that the prosecution had withheld from the defense
information about a connection between Jose Angarita and the killings of the two
Guerrero brothers and also about a meeting between Angarita and petitioner the
night before the killings. Had the prosecution disclosed this information to the
defense, the referee said, petitioner‟s trial counsel could have presented mitigating
evidence at the penalty phase of petitioner‟s capital trial that “there was a bigger
fish,” namely Jose Angarita, who had manipulated petitioner, a “frightened 21-
year-old,” to commit the killings, and that Angarita was a major drug dealer with
links to a Colombian drug cartel. Disclosure of this information, the referee
concluded, would have supported petitioner‟s claim to the police that he
committed the murders under death threats from the Colombian Mafia.
       Our fifth inquiry to the referee was: “Did a district attorney investigator or
other member of law enforcement connected to this case instruct the confidential

                                          23
informant to withhold information at the ex parte hearing held on September 6,
1985? If so, what information, if any, did the confidential informant withhold at
that ex parte hearing? Did the district attorney investigator testify truthfully at the
September 6, 1985, ex parte hearing?”
       The referee found that shortly before the September 1985 pretrial ex parte
hearing before Judge Ambler, prosecution investigator Sandra Williams told
confidential informant Gale Kesselman “to withhold information . . . and not to
testify to all relevant facts” at the September 1985 hearing, and to disavow, in the
referee‟s words, “direct knowledge that [the killings] were contract killing[s].”
The referee also found that “Jose Angarita had informed [Kesselman] that the
killings were contract and/or revenge killings,” and that Kesselman passed this
information on to prosecution investigator Williams. The referee concluded that at
the 1985 pretrial ex parte hearing Kesselman had “lied” when she testified that
Angarita had made no mention to her that the Guerrero murders were “revenge”
killings, and that Sandra Williams had “convinced her that . . . all she knew was
speculation.”
       The referee also found that at the September 1985 pretrial ex parte hearing
Kesselman did not mention her presence at a meeting between Angarita and
petitioner in San Francisco the night before the murders of the two Guerrero
brothers. Nor did prosecution investigator Williams say anything on that subject
in her testimony at the ex parte hearing even though, as the referee found,
Williams knew from Kesselman that Kesselman had been present at a meeting
between Angarita and petitioner on the night before the murders. The referee
found that at the September 1985 pretrial ex parte hearing Williams “did not
testify truthfully” when she said that Kesselman had “no information” about the
murders, and when she answered “no” when asked if Kesselman had indicated “in



                                          24
any way that Jose Angarita said he had heard from any source” that the Guerrero
murders were revenge killings.
       Our sixth question asked the referee: “Is it likely that disclosure of the
confidential informant‟s identity to the defense would have led to evidence not
otherwise known or available to the defense at the time of trial that would have
supported petitioner‟s claim to have acted under death threats from the Colombian
Mafia?” The referee so found. In response to our further question, the referee
determined that had the prosecution disclosed the confidential informant‟s identity
to the defense, petitioner‟s trial counsel would have interviewed her and learned
about Jose Angarita‟s extensive drug dealings, his connection to the Colombian
Medellin drug cartel, and his meeting with petitioner in San Francisco the night
before the Guerrero murders. This evidence, the referee concluded, would have
lent support to petitioner‟s claim to the police that the Colombian Mafia had
ordered him to kill the two Guerrero brothers, and that he had done so because of
death threats against him and his family.
       Our seventh inquiry to the referee was: “At the time of trial, what
information was known to the prosecution that would have supported a theory that
petitioner was hired to commit the murders or that otherwise could have been used
to impeach a penalty phase case in mitigation based on petitioner‟s having acted
under duress?” The referee found that certain information given to the prosecution
by confidential informant Gale Kesselman suggested that petitioner had been hired
to kill the two Guerrero brothers.
                                     V. DISCUSSION
       A. Legal Principles
       A petition for a writ of habeas corpus is a collateral attack on a
presumptively valid judgment. (In re Bolden (2009) 46 Cal.4th 216, 224; In re
Clark (1993) 5 Cal.4th 750, 764.) Therefore, “ „the petitioner bears a heavy

                                          25
burden initially to plead sufficient grounds for relief, and then later to prove
them.‟ ” (In re Price (2011) 51 Cal.4th 547, 559.) When a petitioner states “a
prima facie case for relief on one or more claims,” and this court issues an order to
show cause, that order creates a “new cause” that is “limited to that specific claim
or claims.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 572.)
       Once this court issues an order to show cause, the petitioner‟s custodian
“file[s] a responsive pleading, called a return, justifying the confinement.”
(People v. Duvall (1995) 9 Cal.4th 464, 475.) In response to the return, the habeas
corpus petitioner may file a traverse, or “the parties may stipulate that the original
habeas corpus petition be treated as a traverse.” (Id. at p. 477.) If, after
considering the return and the traverse, we determine there are material facts in
dispute, we appoint a referee to conduct an evidentiary hearing. (Id. at p. 478.) At
that hearing, by a preponderance of the evidence, the petitioner must establish
facts that provide a basis for relief. (In re Crew (2011) 52 Cal.4th 126, 149; In re
Bolden, supra, 46 Cal.4th at p. 224.) The main reason for an evidentiary hearing
is to have the referee determine the credibility of the testimony given at the
hearing. (In re Thomas (2006) 37 Cal.4th 1249, 1256.) Because the referee
observes the demeanor of the witnesses as they testify, we generally defer to the
referee‟s factual findings and “give great weight” to them when supported by
substantial evidence. (Ibid.)
       Petitioner‟s claim here is that before his capital trial for the murder of the
two Guerrero brothers, the prosecution failed to disclose to the defense certain
information that would have supported a penalty phase case in mitigation that
petitioner killed under duress. Under the federal Constitution‟s due process
clause, as interpreted by the high court in Brady v. Maryland, supra, 373 U.S. 83,
87 (Brady), the prosecution has a duty to disclose to a criminal defendant evidence
that is “ „both favorable to the defendant and material on either guilt or

                                          26
punishment.‟ ” (People v. Earp (1999) 20 Cal.4th 826, 866; In re Sassounian
(1995) 9 Cal.4th 535, 543.) The prosecution‟s withholding of favorable and
material evidence violates due process “irrespective of the good faith or bad faith
of the prosecution.” (Brady, supra, at p. 87.)
       As the United States Supreme Court has explained, “the term „Brady
violation‟ is sometimes used to refer to any breach of the broad obligation to
disclose exculpatory evidence — that is, to any suppression of so-called „Brady
material‟ — although, strictly speaking, there is never a real „Brady violation‟
unless the nondisclosure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different verdict.” (Strickler v.
Greene (1999) 527 U.S. 263, 281, fn. omitted.)
       Favorable evidence is material when “ „it could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the
verdict.‟ ” (Strickler v. Green, supra, 527 U.S. at p. 290, quoting Kyles v. Whitley
(1995) 514 U.S. 419, 435.) Put another way, the question is whether, deprived of
the information withheld by the prosecution, the defendant received “a trial
resulting in a verdict worthy of confidence.” (Kyles v. Whitley, supra, at p. 434.)
       In deciding whether evidence not disclosed to the defense was material
under these standards, we consider how the nondisclosure affected the defense
investigation and trial strategy. (People v. Zambrano (2007) 41 Cal.4th 1082,
1132; see United States v. Bagley (1985) 473 U.S. 667, 683 [“the reviewing court
may consider any adverse effect that the prosecutor‟s [nondisclosure] might have
had on the preparation and presentation of the defendant‟s case”].) A
determination that the prosecution violated its disclosure obligations under Brady,
supra, 373 U.S. 83, requires reversal without any need for additional harmless
error analysis. (Kyles v. Whitley, supra, 514 U.S. at p. 435; People v. Zambrano,
supra, at p. 1133.)

                                         27
       B. Analysis
       At issue here is whether the verdict of death resulting from petitioner‟s
penalty phase trial is “worthy of confidence.” (Kyles v. Whitley, supra, 514 U.S.
at p. 434.) More specifically, we consider how the penalty verdict may have been
affected by the prosecution‟s failure to disclose to the defense information that it
had received from the confidential informant, Gale Kesselman.
       In making this assessment, we accept the referee‟s factual findings, which
we conclude are supported by substantial evidence. As relevant here, the referee
found that the evidence known to the prosecution but not disclosed to the defense
included several incriminating statements made to Kesselman by Jose Angarita,
who was her former boyfriend, a Colombian native, and a major drug trafficker in
San Jose, California. Kesselman told the prosecution that Angarita told her that he
was associated with the Medellin drug cartel operating out of Colombia, that he
himself had arranged the December 1983 killings of the two Guerrero brothers,
and that the murders were contract killings. Kesselman also told the prosecution
that she saw Angarita meet petitioner in San Francisco on the night before the
killings.
       As the referee found, had the prosecution disclosed Kesselman‟s identity to
the defense, together with the just-described information she had given the
prosecution, petitioner‟s trial counsel could have called Kesselman as a witness at
the penalty phase of petitioner‟s capital trial to testify in support of petitioner‟s
claim to the police that, in killing the Guerrero brothers, he had acted under
duress. (See § 190.3, factor (g) [at the penalty phase of a capital trial, the trier of
fact must consider, among other things, “[w]hether or not [the] defendant acted
under extreme duress or under the substantial domination of another person.”].)
Her testimony, given as a defense witness at the penalty phase of petitioner‟s


                                           28
capital trial, would have enhanced petitioner‟s claim that he had been ordered to
commit the murders, and by reasonable inference would have supported his further
claim that this order was accompanied by a threat that he and his entire family
would be killed if he did not comply. Without this evidence, the jury likely
disregarded as self-serving and implausible petitioner‟s claims to police that the
Colombian Mafia had ordered him to kill the Guerrero brothers, and that his entire
family would have been killed had he disobeyed that order.
       Support for that conclusion is found in the prosecutor‟s arguments to the
jury at both the guilt and penalty phases of petitioner‟s capital trial. At the guilt
phase, the prosecutor ridiculed petitioner‟s claim of having acted under Colombian
Mafia death threats. At the penalty phase, the prosecutor argued that there was
“no evidence” of duress whatsoever, and that the evidence instead showed that
petitioner had acted alone and that greed was his sole motive for killing the two
Guerrero brothers. The prosecutor could not have made those arguments to the
jury if Kesselman had testified, as part of petitioner‟s penalty phase case in
mitigation, that a major drug trafficker associated with the Colombian Medellin
drug cartel had admitted to her that he had arranged the Guerrero killings by
directing petitioner to murder victim Orestes Guerrero‟s jewelry store. Such
testimony would have cast the penalty phase case presented to the jury in a
completely “ „different light.‟ ” (Strickler v. Green, supra, 527 U.S. at p. 290.)
Therefore, we cannot be confident that had such testimony been presented to the
jury, it would have returned a penalty verdict of death. (See Kyles v. Whitley,
supra, 514 U.S. at p. 435.)3

3      Some 20 years after petitioner‟s capital trial, one of the witnesses testifying
on his behalf at the evidentiary hearing was a man whom confidential informant
Kesselman described at the hearing as a “lieutenant” in Angarita‟s drug trade. For

                                                   (footnote continued on next page)


                                          29
       The referee found that prosecution investigator Sandra Williams told the
confidential informant (Gale Kesselman) to withhold evidence at the September
1985 pretrial ex parte hearing. This conduct, although quite troubling, is not
determinative here. As the high court observed in Brady, supra, 373 U.S. 83, 87,
good faith or bad faith on the prosecution‟s part plays no role in deciding a due
process claim that the prosecution has failed to disclose favorable and material
evidence to the defense.
       At oral argument in this matter, the Attorney General argued that any
obligation the prosecution may have had to disclose to the defense either Gale
Kesselman‟s identity or the information she had provided was excused by a
pretrial ruling that she was not a material witness. We disagree. The ruling in
question was made by Judge Ambler at the conclusion of an ex parte hearing held




(footnote continued from previous page)

safety reasons, the man testified at the hearing under the assumed name of simply
“Joseph.” (See ante, p. 16.) According to Joseph, shortly before the murders of
the two Guerrero brothers, petitioner told him that petitioner “had to do a job” for
Angarita (presumably to commit the murders), and that failure to do so would lead
to the killings of petitioner‟s entire family, beginning with his mother. Joseph
attributed to the Colombian Mafia drug cartel the practice of killing the family
members of those who defied certain orders. It was not disputed at the reference
hearing that the prosecution at petitioner‟s capital trial did not know of this
particular information by Joseph and thus could not have disclosed that
information to the defense. With regard to Joseph, the referee found that if, at
some point before trial, the prosecution had disclosed to the defense the identity of
the confidential informant (Kesselman), the defense could have garnered from the
informant the identity of Joseph, his connection to Angarita‟s drug dealings, and
his then service in federal prison. That information would have enabled the
defense to contact Joseph.



                                          30
before him in September 1985, and it was limited to whether Kesselman was a
material witness on the issue of petitioner‟s guilt of the Guerrero brothers‟
murders. Judge Ambler never addressed whether Kesselman was a material
witness on the issue of penalty for those murders. As we have stated, the
prosecution‟s disclosure obligations extend to evidence that is material on either
guilt or penalty. (See People v. Earp, supra, 20 Cal.4th at p. 866; In re
Sassounian, supra, 9 Cal.4th at p. 543.)
       Petitioner has established through evidence that he presented at the
reference hearing and that the referee found to be credible that the prosecution
violated its disclosure obligations under Brady, supra, 373 U.S. 83, when it
withheld from the defense the above discussed information it had obtained from
Gale Kesselman. As the referee found, that information would have supported
petitioner‟s claim to have acted under Colombian Mafia death threats in his killing
of the Guerrero brothers. Because substantial evidence supports the referee‟s
determination, and it is reasonably probable that petitioner‟s penalty phase jury
would have returned a verdict of life imprisonment without parole had it heard the
evidence withheld by the prosecution, we grant petitioner‟s requested relief from
the judgment of death.
                                    DISPOSITION
       The petition for writ of habeas corpus is granted insofar as it seeks relief
from the judgment of death. The judgment of the Santa Clara County Superior
Court in People v. Miguel Angel Bacigalupo, No. 93351, is vacated to the extent




                                           31
that it imposes a sentence of death. The petition‟s remaining claims that challenge
petitioner‟s murder convictions or the special circumstance findings 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 Santa Clara 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 1246, 1265-1266; In re Hall (1981) 30 Cal.3d 408, 435, fn.
9.)


                                                  KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                          32
                     CONCURRING OPINION BY LIU, J.



       I join the court‟s opinion. The prosecution‟s withholding of favorable,
material evidence that would have been provided by a confidential informant, Gale
Kesselman, violated petitioner‟s right to due process under Brady v. Maryland
(1963) 373 U.S. 83, 87 and entitles him to relief. I write separately to highlight
three additional points in favor of the court‟s holding.
       The first concerns the significance of Judge Ambler‟s pretrial ruling that
Kesselman was not a material witness. The court rejects the Attorney General‟s
argument that “any obligation the prosecution may have had to disclose to the
defense either Gale Kesselman‟s identity or the information she had provided was
excused” by that ruling. (Maj. opn., ante, at p. 29.) As the court explains, Judge
Ambler‟s pretrial ruling “was limited to whether Kesselman was a material
witness on the issue of petitioner‟s guilt of the Guerrero brothers‟ murders. Judge
Ambler never addressed whether Kesselman was a material witness on the issue of
penalty for those murders. As we have stated, the prosecution‟s disclosure
obligations extend to evidence that is material on either guilt or penalty.” (Ibid.)
       Equally significant, in my view, is the referee‟s finding that prosecution
investigator Sandra Williams lied and induced Gale Kesselman to lie at the
September 1985 ex parte hearing that led to Judge Ambler‟s pretrial ruling. After
hearing Kesselman and Williams testify at the reference hearing, the referee found
that Kesselman was a credible witness and that Williams was not. The referee


                                          1
further found that Williams told Kesselman “to withhold information . . . and not
to testify to all relevant facts” at the September 1985 hearing. Specifically, the
referee found that Kesselman “lied” when she denied at the hearing that Angarita
had given her “any information that he knew [the murders were] contract
killing[s]” and that Kesselman did so because “Williams had convinced her
that . . . all she knew was speculation” despite the fact that “Angarita had told
[Kesselman] in so many words that this was a contract killing.” The referee
further found that at the September 1985 hearing, “Williams did not testify
truthfully when she testified . . . that [Kesselman] had no information about the
murder case” and when Williams answered “no” to the question whether
Kesselman “indicate[d] in any way that Jose Angarita said that he had heard from
any source” that the murders were revenge killings. Therefore, Judge Ambler‟s
determination that Kesselman was not a material witness was, according to the
referee‟s findings, unmistakably tainted by the prosecution‟s misconduct. That
misconduct concealed the very information that would have led Judge Ambler to
conclude that Kesselman was a material witness at least for the penalty phase of
the trial.
        The second point concerns the referee‟s finding, noted by the court, that
had the defense gained access to Kesselman, it “would have” uncovered another
key witness, someone who had worked in Angarita‟s operation and who testified
at the reference hearing on condition of anonymity using the name “Joseph.”
Joseph worked for Angarita around the time of the murders and knew a great deal
about Angarita‟s operation. Kesselman knew Joseph, and she further knew that
Joseph was in federal prison for sale of cocaine at the time of petitioner‟s trial
because her cooperation with the Drug Enforcement Agency had helped to put him
there. A police report in defense counsel‟s possession had identified Joseph as an



                                           2
associate of Angarita, but had incorrectly and misleadingly reported that Joseph
had “bailed and split” and that his whereabouts were unknown.
       The referee found that Joseph was a credible witness. Contrary to the
Attorney General‟s argument, any minor factual discrepancies in his testimony
about events that occurred 23 years earlier do not undermine that finding, for we
assume the referee considered those discrepancies, along with Jospeh‟s demeanor,
while testifying, before concluding he was a credible witness. (In re Price (2011)
51 Cal.4th 547, 559 [“Because the referee observes the demeanor of testifying
witnesses, and thus has an advantage in assessing their credibility, this court
ordinarily gives great weight to the referee‟s findings on factual questions.”].)
From Joseph, the defense would have learned about Angarita‟s drug operation and
his ruthless methods of enforcement. Critically, the defense also would have
learned about Angarita‟s statements to Joseph that the murder victims, the
Guerrero brothers, stole two kilos of cocaine from Angarita and that he wanted
them killed and intended to have them killed. Joseph also would have
corroborated Kesselman‟s account of a meeting between petitioner and Angarita
the night before the murders. Joseph confirmed at the reference hearing that if he
had been contacted in prison, he would have been willing to provide this
information to petitioner‟s attorney.
       Most significantly, the referee found that Joseph would have provided
evidence of a conversation between him and petitioner before the Guerrero
brothers were murdered. In that conversation, petitioner recounted that Angarita
had ordered petitioner to do a “job” and that if he did not do it, Angarita would kill
members of petitioner‟s family, starting with his mother. According to Joseph,
petitioner‟s eyes were filled with tears as he revealed his predicament, and Joseph
told him not to do it. This was the last Joseph saw of petitioner. This testimony
would have strongly corroborated petitioner‟s penalty phase duress defense.

                                          3
       The Attorney General is not correct that the rule against hearsay evidence
bars us from considering Joseph‟s testimony. First, Joseph‟s testimony at the
reference hearing was admissible for the non-hearsay purpose of determining what
evidence the defense would have uncovered but for the prosecution‟s misconduct,
a determination directly responsive to the sixth question this court put to the
referee: “Is it likely that disclosure of the confidential informant‟s identity to the
defense would have led to evidence not otherwise known or available to the
defense at the time of trial that would have supported petitioner‟s claim to have
acted under death threats from the Colombian Mafia?” Second, much of Joseph‟s
testimony would have been admissible at the penalty phase of petitioner‟s trial had
Joseph been called as a witness. Joseph‟s testimony recounted statements by
Angarita that were against Angarita‟s penal interest and hence admissible under
Evidence Code section 1230 as statements that “subjected [the declarant] to the
risk of civil or criminal liability.” In addition, Joseph‟s testimony of his
conversation with petitioner would have been admissible under Evidence Code
section 1250 as evidence of petitioner‟s then-present state of mind — in particular,
that petitioner was under duress at the time he committed the murders. (See
6 Wigmore, Evidence (Chadbourn rev. 1976) § 1714, p. 90 [“the judicial doctrine
has been that there is a fair necessity, for lack of other better evidence, for
resorting to a person‟s own contemporary statements of his mental or physical
condition”].) Further, there is no evidence that petitioner‟s statements to Joseph
were “made under circumstances such as to indicate its lack of trustworthiness.”
(Evid. Code, § 1252.)
       As the Attorney General notes, petitioner would have known about his
conversation with Joseph. But defense counsel — unaware of Joseph‟s
whereabouts and unable to otherwise corroborate petitioner‟s statement to the
police that the murder was for hire and committed under duress — reasonably

                                           4
concluded that the duress defense was not worth pursuing. Without corroboration,
the duress defense might have done more harm than good; the jury might have
viewed it as a deceptive attempt by petitioner to evade responsibility for the
murders, as the prosecution argued at trial. (Maj. opn., ante, at p. 28.) The
referee‟s finding that defense counsel would have prepared a credible duress
defense had they gained access to Kesselman and Joseph is supported by
substantial evidence in the record.
       Even if the prosecution did not know what testimony Joseph would have
given at trial, we may still consider that potential testimony in determining the
materiality of the prosecution‟s failure to disclose evidence supplied by
Kesselman. As the United States Supreme Court said in United States v. Bagley
(1985) 473 U.S. 667, 682, evidence withheld by the prosecution “is material only
if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Importantly, the
high court made clear that “the reviewing court may consider directly any adverse
effect that the prosecutor‟s failure to respond might have had on the preparation or
presentation of the defendant‟s case.” (Id. at p. 683.) We have not previously
considered the outer limits of this aspect of Brady‟s liability, and we need not do
so here given the specificity of the referee‟s findings. Here, the referee found, the
prosecution was aware of, and made a conscious attempt to suppress, the fact that
Kesselman had substantial information about Jose Angarita and his drug
trafficking that corroborated petitioner‟s claim of a murder for hire. One of the
major adverse effects of the prosecution‟s improper efforts to suppress the
Kesselman evidence and to prevent the defense from contacting Kesselman was
that the defense failed to uncover the critical evidence corroborating petitioner‟s
duress defense that Joseph‟s testimony would have provided.



                                          5
       Third, the referee found that Williams played an active role in discouraging
defense counsel from pursuing a duress defense. Defense investigator Alayne
Bolster had conducted a pretrial interview of District Attorney investigator Ron
McCurdy in February 1986. During that interview, McCurdy disclosed that
Karlos Tijiboy, whom petitioner had identified as the person who ordered him to
kill the Guerreros, was involved in Angarita‟s drug trafficking operation.
McCurdy also described Angarita‟s connections to the victims and to the wife of
one of the victims. He told Bolster that Angarita had three or four drug lieutenants
in his drug business, including Joseph. McCurdy also told Bolster that Williams
might know more.
       When Bolster followed up with Williams, Williams told Bolster that the
information relayed by McCurdy was incorrect. Williams said that Tijiboy had
nothing to do with drugs or with Angarita, and that she could find no connection
between Angarita and the drug trade — even though Williams was clearly aware
of such a connection, according to the referee‟s findings. She also told Bolster
that there was no drug-related connection between Angarita and the victims or
between Angarita and petitioner — even though the referee repeatedly found
Williams‟s testimony that she saw no connection between Angarita and the
murders not to be credible.
       According to the referee, “the prosecution through Sandra Williams
affirmatively told the defense that the information the defense had about any
putative connection between the killings and a drug-related contract hit was not
correct.” As a result, defense counsel believed and relied on Williams‟s
representations that further investigation of a drug connection to the murders
would be a dead end. Thus, the prosecution did not simply suppress favorable,
material evidence. It also affirmatively dissuaded the defense from pursuing a line



                                         6
of inquiry that would have uncovered such evidence. (See United States v.
Bagley, supra, 473 U.S. at p. 682.)
       For purposes of assessing materiality, we must consider collectively all
undisclosed evidence in order to assess its cumulative effect. (In re Brown (1998)
17 Cal.4th 873, 887.) Accordingly, for the reasons above, and for the reasons
stated in the court‟s opinion, I agree that petitioner is entitled to relief.

                                                     LIU, J.



WE CONCUR: CANTIL-SAKAUYE, C. J.
           WERDEGAR, J.
           CORRIGAN, J.




                                            7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Bacigalupo
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S079656
Date Filed: August 27, 2012
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Thomas Hastings

__________________________________________________________________________________

Counsel:

Robert R. Bryan, under appointment by the Supreme Court, Michael G. Millman, Karen S. Schryver,
Steven W. Parnes, Robert S. Mahler and Kevin Little for Petitioner Miguel Angel Bacigalupo

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, David P. Druliner, Robert
R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A.
Engler, Assistant Attorneys General, Ronald S. Matthias, Stan M. Helfman, Glenn R. Pruden and Jeffrey
M. Laurence, Deputy Attorneys General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert R. Bryan
Law Offices of Robert R. Bryan
2107 Van Ness Avenue, Suite 203
San Francisco, CA 94109-2572
(415) 292-2400

Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5897
