The opinion of the court was delivered by: Kennard, J.
A jury convicted petitioner Mark Christopher Crew of one count of murder (Pen. Code, § 187, subd. (a))*fn1 and one count of grand theft (§§ 484, 487). It found true a special circumstance allegation that the murder was for financial gain. (§ 190.2, subd. (a)(1).) The jury fixed the penalty for the murder at death. On petitioner's automatic appeal (Cal. Const., art. VI, § 11; Pen. Code, § 1239), this court affirmed the judgment (People v. Crew (2003) 31 Cal.4th 822).
Petitioner filed a timely petition for a writ of habeas corpus seeking relief from the judgment. He alleged, among other things, ineffective representation by his trial counsel at the penalty phase of his capital trial for failing to adequately investigate and present mitigating evidence. We issued an order to show cause limited to this claim.
After the filing of the Attorney General's return and petitioner's reply to it, we determined that disputed questions of fact required an evidentiary hearing. On September 13, 2006, we appointed as referee the Honorable Andrea Y. Bryan, a superior court judge in Santa Clara County, and directed her to take evidence and make findings of fact on these questions:
"1. What information did petitioner's trial counsel have when deciding on the scope of his investigation into potential mitigating evidence?
"2. 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?
"3. What tactical justifications, if any, does petitioner's trial counsel offer for (a) limiting the scope of his investigation and conducting the investigation in the manner that he did, and (b) in limiting the presentation of penalty phase evidence in the manner that he did?
"4. What additional mitigating evidence could petitioner have presented at the penalty phase? How credible was this evidence?
"5. What investigative steps would have led to this additional evidence?
"6. What circumstances weighed against the investigation or presentation of this additional evidence[?] What evidence damaging to petitioner, but not presented by the prosecution at the guilt or penalty phase of trial, would likely have been presented in rebuttal if petitioner had introduced this evidence?
"7. Did petitioner do or say anything to hinder or prevent the investigation or presentation of mitigating evidence at the penalty phase, or did he ask that any such evidence not be presented? If so, what did he do or say?"
At the evidentiary hearing, which lasted four days, 12 witnesses testified. The referee then submitted to this court a 19-page report, which included factual findings. After our review of the record and the referee's report, we conclude that petitioner has not established that he is entitled to habeas corpus relief.
The evidence supporting the judgment of death is set forth in People v. Crew, supra, 31 Cal.4th 822, and is summarized here.
In 1981, petitioner met murder victim Nancy Jo Wilhelmi Andrade in a bar in San Jose, California. Nancy owned a purebred horse and a Ford pickup truck. In January 1982, during a break in her intermittent romantic relationship with petitioner, Nancy bought a yellow Corvette automobile. After Nancy and petitioner resumed their relationship, petitioner talked to his friend Richard Elander about killing Nancy.
Petitioner asked Nancy to move with him to Greer, South Carolina, where petitioner's mother and stepfather lived. When Nancy insisted on getting married first, petitioner married her in June 1982. The marriage was troubled from the outset. Petitioner was rarely with Nancy, spent time with other women, and in June 1982, the same month in which he married Nancy, asked yet another woman, Lisa Moody, to marry him. (Petitioner and Moody did not get married.)
In July 1982, petitioner and his friend Elander moved to Greer, South Carolina, while Nancy remained in California. Also in July, Nancy and her friend Darlene Bryant took a trip across the country; during a stop in Greer, Nancy spent the night with petitioner. After Nancy's visit, petitioner talked to his stepfather, Bergin Mosteller, about killing Nancy and discussed with Elander different ways of killing her.
In August 1982, after returning to California from South Carolina, Nancy often spoke with petitioner by phone. After deciding to move to South Carolina, she closed out her bank accounts, obtaining $10,500 in cash as well as a money order for $2,500. On August 21, 1982, when Nancy was staying at Darlene's house, petitioner and his stepfather arrived at the house in a station wagon, which was pulling a horse trailer. The plan was to have petitioner's stepfather drive the station wagon to Texas, where he would leave Nancy's horse with petitioner's relatives; Nancy and petitioner were to follow in Nancy's Corvette and truck.
On August 23, 1982, Nancy and petitioner went to Nancy's parents' house in Santa Cruz, California, to pick up her dog and belongings. That same day they left for South Carolina; that night, petitioner registered at a motel in Fremont, California. The next day, petitioner visited Lisa Moody at her home in Newark, California. On August 28, petitioner and Moody left for South Carolina. Along the way they stopped at the home of petitioner's grandmother in Texas; while there, petitioner received a phone call that upset him. Petitioner and Moody then went to South Carolina, where petitioner opened a bank account in which he deposited murder victim Nancy's $2,500 money order; petitioner's friend Elander and stepfather Mosteller sold Nancy's clothing, horse trailer, and horse.
On the day that petitioner and Lisa arrived in South Carolina, he described to Elander the details of Nancy's death: After petitioner and Nancy left San Jose, California, in separate vehicles, they stopped and walked up a hillside into the woods, where petitioner shot Nancy in the back of her head and rolled her body down a ravine. He then went to his friend Bruce Gant's house in Campbell, California, and the two of them drove to the murder scene to retrieve the vehicle that had been left there. The next evening, petitioner and Gant got drunk and went back to the site of the murder. When petitioner saw that Nancy's body had moved, he "freaked out" and told Gant. Gant then went down the ravine, where he tried to strangle Nancy and break her neck. He eventually cut her head off. Thereafter, Gant and petitioner put Nancy's body in a 55-gallon drum filled with cement and buried it in the backyard of Gant's house; they put Nancy's head in a five-gallon bucket filled with cement and threw it off the Dumbarton Bridge between Alameda and San Mateo Counties, California.
In mid-September 1982, petitioner and Lisa Moody came back to California. Petitioner then sold murder victim Nancy's truck, forging her signature to the certificate of title. On October 13, petitioner told Moody that the phone call he had received while in Texas was from his friend Bruce Gant, who had complained that the body petitioner had buried in Gant's backyard was "beginning to stink."
After petitioner's return to South Carolina, he sold Nancy's Corvette to Marion Mitchell. When Mitchell repeatedly asked for title documentation to the car, petitioner's friend Elander told Mitchell that petitioner had killed his wife, cut off her head, put her body in a barrel filled with cement, and buried it in a backyard.
In January 1983, petitioner moved to Connecticut. There he stayed with Jeanne Meskell, with whom he had had a previous romantic relationship. He told Meskell that the body of a girl he had killed was in two pieces in two drums filled with cement, and that one drum was in San Francisco Bay and the other was in a backyard.
Police searches of Gant's house and yard did not turn up any evidence. Nancy's body was never found.
B. Penalty Phase Evidence
The parties stipulated that petitioner had no prior felony convictions. The prosecution did not present additional evidence in its case-in-chief at the penalty phase of petitioner's capital trial.
Petitioner presented evidence of his childhood, his success as a soldier while in the Army, his positive relationships with women, and his compassionate acts for others.
Petitioner's father, William Crew, testified that petitioner was born in 1954 and that in 1957 the family moved from Fort Worth, Texas, to Novato, California, and then in 1966 to Petaluma, California. Petitioner did well in school and was involved in sports. He was never physically abused. Petitioner's parents divorced in 1969. Petitioner and his father then moved to San Jose, California.
In 1970, when petitioner was 15 years old, his father remarried. Petitioner did not get along with his stepmother and one of her three children. When he was 17 years old, petitioner quit high school and joined the Army.
In the Army, petitioner became a squad leader in charge of 12 to 14 men, rose to the rank of sergeant, and became the driver for the base commander, Colonel Donald Pearce. The latter testified that petitioner was intelligent, dependable, possessed common sense, and was mature. While in the Army, petitioner married his high school girlfriend, Patricia Silva, and they had a daughter. The marriage ended in divorce before petitioner's honorable discharge from the Army. After the discharge, petitioner married Debra Lunde. When this marriage ended, petitioner moved to Texas. Petitioner returned to California, where he worked as a truck driver and attended junior college.
Emily Bates testified that she had a romantic relationship with petitioner and that he treated her well. Kathy Harper testified that, when she was financially destitute, petitioner moved in with her and provided financial support for her and her son. Petitioner's friend, James Gilbert, described petitioner as a caring and generous person. Irene Watson, petitioner's grandmother, testified that petitioner took care of her for two to three months when she was ill.
Three Santa Clara County Sheriff's deputies testified that petitioner, while in jail awaiting trial, interacted well with prisoners and staff and had at times acted to prevent trouble in the jail. Jerry Enomoto, the former head of the California Department of Corrections (now Department of Corrections and Rehabilitation), stated that in his opinion petitioner would not be a high security risk in prison if sentenced to life without the possibility of parole.
In rebuttal, the prosecution presented testimony by a jail informant that petitioner had talked about needing to escape because he was going to be found guilty of killing a woman.
II. Reference Hearing A. Evidence and Referee's Findings Regarding Trial Investigation and Evidence at Penalty Phase
At the habeas corpus reference hearing, the following evidence was presented:
In July 1987, petitioner retained Joseph O'Sullivan to represent him at the capital trial, which was scheduled for September 19, 1988. Shortly before that trial date, O'Sullivan requested a six-month continuance to deal with problems related to his stress and alcohol abuse. The trial court continued the trial to April 17, 1989.
In November 1988, Joseph Morehead became second counsel. Morehead was an experienced criminal defense attorney, but he had never before been counsel in a death penalty case. At petitioner's trial, Morehead had a dual role: one was to assist lead attorney O'Sullivan at the guilt phase; the other was to prepare and present a defense at the penalty phase. At the time of Morehead's appointment, lead attorney O'Sullivan had not done any work to prepare for the penalty phase. In O'Sullivan's opinion the case would not proceed to the penalty phase. O'Sullivan had a number of meetings with petitioner, asked him about his background, constantly asked if there was anything the defense was missing, and described the term "mitigating evidence" by reading to petitioner the applicable Penal Code statutes.
Before trial, second counsel Morehead talked to petitioner's grandmother, Irene Watson, as well as petitioner's father, with whom Morehead met on numerous occasions and upon whom he relied for information about petitioner's background. Petitioner's father said that petitioner had a normal childhood until the father's remarriage. He described petitioner's mother as "cold and withdrawn," but he never mentioned any childhood sexual abuse of petitioner by his mother.
In preparing for the penalty phase, Attorney Morehead told petitioner about the type of evidence that could be presented at a penalty phase and asked petitioner about his childhood. Petitioner said that he had a good life until his mother and father divorced. Petitioner mentioned his drug abuse and his many romantic relationships with women. Petitioner never mentioned sexual abuse by his mother, nor did he say anything about exposure to a sexually charged environment by his grandfather.
Attorney Morehead decided to focus at the penalty phase on mitigating evidence in three categories: (1) evidence of petitioner's positive background, with no criminal history; (2) evidence that not all of petitioner's relationships with women were manipulative and exploitative; and (3) evidence that petitioner had been a model prisoner while in jail awaiting trial in this case.
In February 1989, Attorney Morehead hired John A. Murphy as an investigator to assist in preparation for both the guilt and penalty phases. From February until July 1989, Murphy focused exclusively on investigation for the guilt phase. In early July, Morehead and Murphy discussed developing mitigating evidence for the penalty phase; Morehead wanted to portray petitioner as a "good man," with no previous criminal record. Murphy met with petitioner a number of times, but he did not ask petitioner about his family life or background. Petitioner never said anything to Murphy that was unflattering about himself or his family. Investigator Murphy's efforts were directed towards locating penalty phase witnesses, finding military and jail records pertaining to petitioner, and finding an expert to testify that petitioner would have no problem adjusting to prison if sentenced to life without possibility of parole.
Second counsel Morehead had only one contact with petitioner's mother and that was during the guilt phase when petitioner and his mother met in a jury room at the court. At that time, petitioner was shackled to a chair and his mother greeted him with a hug and a kiss and then sat on petitioner's lap.
Morehead retained psychiatrist Frederick James Phillips to evaluate presentation of a mental state defense for the guilt phase. Dr. Phillips spent approximately 20 minutes interviewing petitioner but submitted no report. Attorney Morehead also consulted Dr. David E. Smith, an expert on addiction and clinical toxicology. Morehead initially considered presenting Drs. Phillips and Smith as expert witnesses at the penalty phase but then decided against it for fear of enabling the prosecution in its cross-examination to put before the jury again the facts relating to the murder, such as the dismemberment of Nancy's body and petitioner's refusal to tell anyone where the body was. Morehead did not present any expert testimony at either the guilt phase or the penalty phase of the trial.
In early April 1989, Attorney Morehead filed a motion to strike the sole special circumstance allegation that the murder was committed for financial gain. At a hearing on April 17, the day jury selection began, the trial court questioned whether the special circumstance allegation was appropriate, but said that it would await trial testimony before ruling on the defense motion. The trial court gave both the prosecution and the defense a copy of a memorandum that the court's law clerk had prepared, which recommended striking the special circumstance allegation.
On July 17, 1989, when the prosecution rested its case, the trial court denied the defense motion to strike the special circumstance allegation.
At the habeas corpus evidentiary hearing in 2007, the referee found that trial counsel Morehead "was confident that he had filed a viable motion to strike the special circumstance allegation," particularly in light of the trial court's initial concern -- expressed before the presentation of any trial testimony -- about the propriety of the special circumstance allegation. It was only much later, when the trial court denied the defense motion -- a ruling made after the prosecution had rested its case -- that ...