Opinion
B162515.
10-16-2003
In re GEORGE ANTHONY RUIZ, on Habeas Corpus.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard L. Fitzer, Staff Attorney, for Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, and Stephanie A. Mitchell, Deputy Attorney General, for Respondent.
In 1995 a jury convicted petitioner, George Anthony Ruiz, of attempted, willful, deliberate and premeditated murder and found true allegations of having personally inflicted great bodily injury, and of personally using a firearm in the commission of the offense. This court affirmed the judgment on appeal and summarily denied petitioners initial petition for a writ of habeas corpus. Petitioner filed additional petitions for a writ of habeas corpus. Over the course of several years we issued two separate orders to show cause why the relief requested in the petition should not be granted and ordered the trial courts to conduct evidentiary hearings. At the conclusion of both evidentiary hearings two different judges denied the writ. We now affirm.
FACTS AND PROCEEDINGS BELOW
This court granted the Peoples request to take judicial notice of all prior proceedings leading up to the present petition. (Evid. Code, §§ 452, subd. (d), 453 and 459.)
On July 7, 1994, Oswaldo Ramos and three of his coworkers, victim Brian Carey, Tibercio Guerrero and Joe Brown, went out drinking beer after working their shift at a market. Over several hours Carey consumed the equivalent of approximately five beers. Carey said he felt "buzzed" but claimed he was not drunk. On their way home at about 1:45 a.m. Ramos drove his car into a Long Beach Mobil gas station and mini-mart on Pacific Coast Highway to purchase more beer. Ramos parked his car facing the brick wall near the mini-mart. Ramos testified he waited for the others in the car. By contrast, Carey testified all the youths entered the mini-mart. Carey further testified he noticed petitioner speaking to the cashier as he and his friends entered the store.
Joe Brown did not want to testify at trial and did not appear in court as ordered. When the parties reached his mother at home, she stated Joe Brown was out of town on a camping trip. However, Joe Brown was later discovered at his place of employment and the court directed him to appear. When he testified, Joe Brown stated he, Carey and Guerrero went inside the mini-mart while Ramos waited for them in the car. He stated he did not recall seeing any Hispanic youths inside the mini-mart when they entered.
As Carey and his friends left the store, Carey noticed a small light-colored car with its headlights pointing at the drivers side of Ramoss car. The lights partially blinded him. The passenger was standing outside the light-colored car. He was wearing a black hat, a baggy sweatshirt, Nike tennis shoes and baggy gray pants. He was five feet seven inches or five feet eight inches tall. The passenger had a slight mustache and a slight build. At trial, Carey testified he recognized the passenger as the man he had just seen inside the mini-mart talking to the cashier. The passenger left the mini-mart before Carey exited the store. At trial Carey positively identified the man as petitioner.
Neither Ramos nor Brown recalled seeing the passenger standing outside the car prior to the shooting.
As Carey and the others approached Ramoss car petitioner yelled out, "Where you from?" Ramos first noticed the light-colored car because of the yelling. When he looked over, the men in the car said, "What are you looking at?" and "Where are you from?" He could see nothing because the cars headlights blinded him. Carey heard petitioner speak to Ramos in Spanish. Ramos told the men in English, "We dont gang bang." The men yelled angrily and repeatedly, "Where are you from?" and "What the fuck are you looking at?" Carey said they were from "nowhere," and then said "Long Beach." Petitioner replied, "Fuck you," and yelled, "West Side Longo." Petitioner then fired five or six shots from a rifle toward Carey and his friends. Shots hit Carey in the neck and stomach. He was temporarily paralyzed and required a three and a half month stay in the hospital.
Long Beach Detective David Jones was an expert on the West Side Longo gang and the chief investigator in the case. On July 19, 1994, he visited Carey in the hospital and showed him a six-pack photographic display. Carey identified petitioners photo, stating it looked like the person who shot him except the shooter had a little mustache. On August 30, 1994, Detective Jones showed Carey a second six-pack photo display. This one included a more recent photo of petitioner. Carey identified petitioners photo and stated he was positive he was the person who shot him. Carey made an in-court identification of petitioner stating he was "positive" and had "no doubt in his mind" petitioner was the perpetrator.
Ramos and Brown were both shown a six-pack photo display but could not identify the shooter.
Jones was a gang expert assigned to the Long Beach Police Departments Gang Intelligence Unit. At trial Jones testified he was very familiar with petitioner. Petitioner was a known member of the West Side Longo gang, whose membership included 800 persons, and whose territory included the west side of Long Beach. The location of the Mobil gas station and mini-mart where the shooting occurred was at the border of West Side Longo gang territory. Jones opined petitioner and the (still) unidentified driver of the light-colored car were "gang banging." According to Jones, the motive for the attempted killing was that Carey and his friends were in his gangs territory. By his actions petitioner was both defending his gang territory and proving he was willing to "go down for the hood."
After Careys identification of petitioner as his assailant Jones had appellant arrested and executed search warrants at six locations. Police recovered photos of petitioner displaying his gang related tattoos, making gang hand signs, and the like. In one photo appellant is depicted making a hand sign in the shape of a gun, indicating he was willing to "go down for the hood."
At a hearing outside the presence of the jury Detective Jones testified one of the houses searched belonged to Melchor Salinas, a West Side Longo gang member known as "Boxer." From his house police recovered a photograph of petitioner and Salinas standing in front of Salinass light-colored small car. Another photo shows Salinas carrying a sawed-off shotgun and petitioner holding a handgun.
On questioning by defense counsel, Detective Jones testified when he asked Salinas about the car Salinas claimed it had been stolen on July 7, 1994, the day of the shooting in this case. Defense counsel asked Detective Jones a series of questions regarding Salinass white car and the rationale for searching Salinass house in an attempt to determine whether the detective at any point considered Salinas to be a suspect in the case. The court terminated this line of questioning by sustaining the prosecutors relevance objection. Defense counsels questioning nevertheless suggested he was familiar with Melchor Salinas and his involvement in the case.
No physical evidence linked petitioner to the crime.
In his defense petitioners girlfriend, 18-year-old Connie Martinez, testified to an alibi for petitioner. She testified petitioner picked her up from her aunts residence in Buena Park in Johnny Herreras black Beretta around 9:00 p.m. They spent the evening at the movies and returned home around 2:30 a.m. On cross-examination Ms. Martinez acknowledged petitioner usually drove a white Chevrolet.
Johnny Herrera also testified on petitioners behalf. He stated he was also a West Side Longo gang member, but claimed he was trying "to get his life back together" and no longer participated in gang activities. He testified he had lent petitioner his black Beretta to use for the evening.
In closing arguments the prosecutor argued Careys testimony and identification was alone sufficient to establish petitioners guilt. Defense counsel, for his part, argued Carey was likely intoxicated and for this reason the jury should view his identification as suspect. Defense counsel also pointed out the discrepancies between Careys and his friends testimony. Neither Brown nor Ramos identified petitioner from a photo array. Neither Brown nor Ramos remembered seeing the passenger standing outside the car before firing his weapon. Brown did not recall seeing any Hispanic youths inside the mini-mart and Ramos saw no one because he stayed in the car and waited for the others.
During jury deliberations the prosecutor informed the court about a recent development. The prosecutor learned a former probationer, Alejandro Vieyra, told a Long Beach probation officer "Bones did it." The prosecutor relayed this information to defense counsel. Defense counsel contacted Vieyra through the probation officer. Vieyra confirmed he knew who had committed the shooting but refused to divulge the information. When defense counsel stated he knew it was "Bones" Vierya replied, "Who is Bones?" Vierya told defense counsel there was "no way" he was going to tell him anything. Vierya allegedly told defense counsel, "You can subpoena me, you can put me in jail, Im not gonna tell you. I dont want anybody coming after me." According to defense counsel, petitioner did not know a person named "Bones." Defense counsel told the court he would continue to try to ascertain "Boness" identity. Defense counsel moved for mistrial to permit him to conduct an investigation into the identity of the real shooter. The court denied the request for mistrial without prejudice.
The jury rejected petitioners defense and convicted him of willful, premeditated, deliberate attempted murder and found true the allegations he personally used a firearm in the commission of the offense and inflicted great bodily harm. He received a sentence of life plus seven years. This court affirmed the conviction on appeal (B101642).
Penal Code sections 664/187, 12022.5, subdivision (a), 12022.7, subdivision (a).
1997 Petition for Writ of Habeas Corpus:
Petitioner filed a habeas petition in February 1997 while his appeal was pending. His petition claimed (1) factual innocence, i.e., he had newly discovered evidence exonerating him and implicating a fellow gang member, Richard Medina, or "DD Boy," who had died of gunshot wounds in November 1995; and (2) defense counsel was ineffective because he failed to interview the mini-marts cashier, the only potentially neutral witness in the case. Petitioner supported his petition with a declaration from the cashier stating petitioner had not been inside the mini-mart in the moments before the shooting. He also provided declarations from Jose Gomez and Ernesto Padilla, two fellow gang members, and Beatriz Miranda, Richard Medinas girlfriend, each of whom implicated Medina as the shooter. This court summarily denied the habeas petition (B109152) in April 1997.
1999 Evidentiary Hearing:
In December 1998 petitioner filed a second habeas petition (B127806). His petition made the same claims and included the same declarations. However, and in addition, it included as an exhibit a declaration from Melchor Salinas, a fellow gang member known as "Boxer." Salinas was then incarcerated on an unrelated felony conviction. In substance, Salinas declared he lived near the Mobil gas station and that on the evening of July 6, 1994, he let Medina borrow his car, although an unidentified person accompanying Medina drove the car. A short time later Salinas heard gunshots. Medina and the driver returned with the car. Petitioner was not in the car. Medina told Salinas the driver drove the car to the gas station, and he opened the passenger door, opened fire, and shot someone at the gas station. Medina urged Salinas to immediately go to the gas station so he would not be suspected in the shooting. Salinas told Medina to park his car somewhere else. He never got his car back. Salinas went to the gas station and spoke to the cashier in the mini-mart to inquire about what she knew about the shooting.
After the filing of respondents informal return and petitioners traverse, we determined disputed facts necessitated an evidentiary hearing. The hearing included testimony from Salinas, Gomez, Padilla, Miranda, Martinez, the cashier, Patricia Diaz, Detective David Jones, Detective James Craig, Deputy District Attorney Dennis Whelan, and defense counsel Ronald Perry.
Melchor Salinas:
Salinas identified the declaration he signed. He testified in December 1997 interviewers came to visit him in prison and took notes during their conversation. Weeks later the interviewers sent him a copy of the declaration. Eventually he signed it and mailed it back. Salinas testified he had known petitioner since they were young children. They were also both members of the West Side Longo gang. Salinas knew Patricia Diaz because he frequently went to the Mobil mini-mart to talk with her during her shift working as the cashier.
On the night of the shooting Salinas testified he was at home when Medina rode up on a bicycle really fast and said, "Hey, let me use your car. Let me use the car." Before Salinas could respond Medina got into his car and left. Medina was the passenger and someone else drove the car.
The court asked who was driving the car. Salinas stated he knew the persons name but would not answer the courts question because his life had been threatened. Salinas stated he would refuse to answer even if it meant being held in contempt. He accepted the courts offer of appointment of counsel to advise him. After meeting with Salinas, his counsel explained she had advised him to assert his Fifth Amendment privilege to refuse to testify further. Counsel explained Salinas had not been represented by counsel when his declaration was prepared and had he known he could have been questioned regarding its contents, or be questioned at a hearing, he would have refused to give any statements at all. Salinass counsel explained his declaration indicates his car was used in a crime. In his declaration he also states he told Medina to park the car someplace else after finding out Medina used the car in a shooting. Salinass counsel argued these statements tended to indicate Salinas could be liable as an accessory, and although Salinas made no statement indicating any advance knowledge of Medinas illicit purpose, if such knowledge was implied, he could instead be liable as an accomplice. Accordingly, counsel advised Salinas to assert his Fifth Amendment privilege and refuse to testify further. After confirming Salinas would in fact assert the Fifth Amendment regarding any further questioning, the court struck his limited testimony on direct because the prosecutor had been deprived of the opportunity to cross-examine Salinas.
With Salinas unavailable for purposes of the hearsay rule petitioners counsel moved to admit Salinass declaration under the hearsay exception for declarations against interest. The court acknowledged a few of the passages "tended" to incriminate Salinas. The court did not make an express ruling whether the statements met the required threshold of trustworthiness. Nevertheless, it refused to admit Salinass declaration.
After Salinass court appearance Detective Jones transported him to the INS office where arrangements had previously been made to deport him to Mexico. While driving to the INS office Salinas told Detective Jones "Bones" was the driver.
Jose Gomez:
Heather Green worked for the City of Long Beach Mural and Cultural Arts Program. She was friendly with petitioner and wanted to help him. She asked Gomez whether he could help with petitioners case. Prior to his discussions with Ms. Green and a defense investigator in 1996 Gomez had never told anyone what he knew about the shooting.
Gomez testified he had known petitioner for years. They attended school together, they both lived in Long Beach and they were both members of the West Side Longo gang. Gomezs nickname was "Gato" and petitioners was "Snappy." Medinas moniker was "DD Boy." Gomez attended Medinas funeral in November 1995.
In July 1994 Gomez lived less than a block away from the Mobil gas station and mini-mart. In the early morning hours of July 7, 1994, he heard several gunshots coming from the direction of the gas station. Gomez ran outside and saw Salinass white car come down Pacific Coast Highway and turn onto Canal Street. Gomez ran after the car and followed it approximately two blocks to Summit Street. Summit Street, between Canal and Santa Fe Streets, was a regular hangout for West Side Longo members. There were two people in the car. Gomez saw Medina exit from the passenger side of the car holding a rifle. Medina went into a neighboring yard and hid the rifle inside the crawl space of the house. The driver remained in the car and then drove away. Salinas was standing nearby. He did not see petitioner anywhere.
A short time later Gomez helped Medina get rid of the gun by sawing it into little pieces and then scattering the pieces all over the city. Medina told him petitioner was in prison because of what he, Medina, had done.
Ernesto Padilla:
Padilla had also met Heather Green through the Long Beach Cultural Arts Center. Through her Padilla met petitioners defense investigator. Prior to speaking with the investigator in 1997 Padilla had never told anyone about Medinas involvement in the shooting.
Padilla had known petitioner for about 13 years. They went to school together, lived in the same neighborhood, and were both members of the West Side Longo gang. Padillas moniker was "Shaggy" and petitioners was "Snappy." He had also known fellow gang member Medina for about eight years. He had attended Medinas rosary service in 1995.
A few days after the shooting Medina asked Padilla where he had been for the last few days. Padilla explained he was celebrating his birthday. Medina responded he got a little gift for his own birthday the other day. When Padilla asked him to explain, he claimed Medina said "he shot up some niggers at the gas station." The parties stipulated in Padillas January 1997 declaration Padilla instead stated Medina told him, "Fool, where were you last night? You missed it. We lit up some niggers last night over here at the Mobil station. At least I got that as a birthday present." Medina asked him for money for petitioners defense.
According to his death certificate, Medina was born on July 6, 1977.
Beatriz Miranda:
Beatriz Miranda had been Medinas live-in girlfriend. She knew Heather Green of the Long Beach Cultural Center and used to work for her. She testified in late October 1995 she asked Medina why he was giving money to petitioners family. Medina told her he was giving them money because he had committed the shooting, not petitioner. According to Miranda, Medina looked nothing like petitioner. Miranda testified Medina was bigger and looked "way different."
Connie Martinez:
Connie Martinez was petitioners girlfriend. She found petitioner an attorney and used $9,000 from her trust fund to pay his legal fees. She also received approximately $800 from Medina and from "different guys around the neighborhood."
Patricia Diaz:
Diaz testified she was working as a cashier at the Mobil gas station mini-mart the night of the shooting. She knew petitioner from the neighborhood and from school and knew him by his moniker "Snappy." Diaz testified petitioner may have been in the mini-mart at some point during the day but he had not been in the store an hour before the shooting. Diaz testified the only person she recalled being inside the store before the shooting was a "normal customer," and she described this customer as a tall white male. Shortly after this customer left the store Diaz heard shots fired. She jumped up onto the counter and saw a small white car drive out of the station. Five minutes later Salinas, or "Boxer," came into the store. Diaz knew Salinas very well because he came in every day and chatted with her for hours. Salinas asked Diaz what she saw. Diaz said she saw nothing. Salinas told her he had lent his car to the persons who had committed the shooting. Salinas told Diaz he was not responsible for the shooting but knew who the shooter was.
On cross-examination the prosecutor confronted Diaz with statements she made to the investigating officers shortly after the shooting. Diaz was asked to review certain portions of Detective Joness declaration, specifically the paragraphs describing the officers initial interviews with Diaz shortly after the shooting. In his declaration, Detective Jones stated he and his partner Sergeant James Craig interviewed Diaz the day after the shooting. She told them petitioner, or "Snappy," was in the mini-mart just before the shooting. Petitioner passed Carey on his way out of the store and there was some conversation. Moments later Diaz heard gunshots. Diaz told the officers she saw Salinass car drive off after the shooting. Moments later Salinas came to the mini-mart and asked her what she knew about the shooting. She did not tell the officers Salinas told her he knew who had done the shooting.
The officers wanted to interview Diaz again but she was so fearful of gang retaliation she did not want to be seen speaking with police officers. They next met on July 15, 1994, at a fish market outside the neighborhood at the Long Beach Harbor. At the restaurant Detective Jones showed Diaz a photo of petitioner. When she saw the photo Diaz confirmed he was the person she saw inside the mini-mart speaking to the victim just prior to the shooting. Based on Diazs identification of petitioner the officers focused their investigation on him and included his photograph in the photo array they showed to Carey.
The pertinent paragraphs of Detective Joness declaration are as follows:
"6. On or about July 15, 1994, my partner, Sergeant James Craig, and I interviewed Patricia Maldonado Diaz. We had received information that she was the clerk at the Mobil Gas Station Mini Mart where the shooting took place on July 7, 1994, and that she had information as to the surrounding circumstances of that shooting. My partner and I met Ms. Maldonado at a fish market located in Long Beach Harbor at her request, since she did not want to be seen with law enforcement officers, because of her fear of gang retaliation from the Westside Longos if they became aware that she was giving information to law enforcement. Ms. Diaz told us she knew George Anthony Ruiz as a person from the neighborhood, and that he had been to the Mobil Mini Mart on occasions before the date of the shooting. When we were at the fish market, my partner and I showed Diaz a photo of George Anthony Ruiz. Ms. Diaz told us she recognized the photograph as being the picture of the person who was inside the Mobil Gas Station Mini Mart before the shooting. Ms. Diaz further told us she saw George Anthony Ruiz pass victim Carey when the victim was walking into the Mini Mart, and to the best of my recollection Diaz told us some type of conversation took place between them as George Anthony Ruiz was exiting the Mini Mart. She told us that shortly thereafter she heard the gunshots in front of the Mobil Mini Mart. The information she provided to us narrowed our investigation, and allowed us to subsequently show victim Carey photographs of George Anthony Ruiz, whom he identified as the person who shot him on July 7, 1994.
"7. Patricia Maldonado Diaz further told my partner and me that she saw Salinass car leaving the parking lot at the Mini Mart after the shots were fired. Further, that Salinas returned to the station at a later time and asked her questions about the investigation. Ms. Diaz never told me or my partner that Salinas told her he knew who did the shooting."
At the hearing Diaz testified she disagreed with these statements in Detective Joness declaration. She further stated she was now positive petitioner was not in the mini-mart at least an hour before the shooting. Diaz was further impeached with statements she made during a taped interview in 1998 which either directly contradicted her current testimony or tended to explain the change in her story since 1994. In July 1998, and four years after the shooting, prosecutor Fred Macksoud and Detective Jones conducted a taped interview of Diaz at her home. The court admitted the tape recording and transcript into evidence at the hearing. The purpose of the interview was to learn why Diazs story had changed so much since she first told Detective Jones what she knew about the shooting. Diaz explained "its been so long, I have to think back, and I dont know what exactly I—I could of told you because it was not on writing [sic], I didnt sign anything, I didnt make a threatened [sic] statement that I can pretty much look back at and say, `oh, yeah, I did tell you this. Yeah, I—I wouldnt be able to know that."
This court has similarly listened to Diazs taped interview.
Diaz said she gave a sworn declaration to the defense investigator based on what she felt she "knew then." Prosecutor Macksoud asked Diaz, "Well, my question to you is, you knew that you had already given a statement to the police, right? Before this investigator came out to interview you []." Diaz replied, "I, I know, I didnt know, see, I didnt know this [Detective Joness declaration] exists. . . ."
Diazs statements during the interview were more equivocal than was her in-court testimony regarding whether petitioner had been inside the mini-mart just prior to the shooting. In her taped interview Diaz said she could not "stand by" her statements as described in Detective Joness declaration. She explained, "I dont remember seeing him right before or right after, you know, what I mean? He could have been in and out of the store that day but I cant be for sure that he was in right before or right after the shooting." Prosecutor Macksoud asked Diaz whether she believed her memory of the events was better when she was first interviewed by Detective Jones. Diaz agreed her memory in 1994 was better, stating "I believe it would be a lot better because it was sooner. It wasnt this far along. I would believe so, yeah." Diaz also agreed she would have told the officers Salinas or "Boxer" knew who had committed the shooting if he had given her such information. Diaz stated she definitely would have given the officers that information had Salinas told her he knew who had committed the shooting.
At the hearing Diaz was shown a picture of Medina. Diaz stated she had never seen the person before and had not seen that person inside the mini-mart the night of the shooting.
Detective David Jones:
Detective Jones described how he and his partner interviewed Diaz immediately after the shooting and a week later on July 15, 1994, at a restaurant. He testified Diaz told them she knew petitioner by his gang moniker of "Snaps" or "Snappy" and that she had known him from school and the neighborhood. He testified Diaz told them petitioner was in the mini-mart shortly before the shooting, had a verbal exchange of some type with the victim as they passed through the door and shortly thereafter she heard gunshots. Diaz told the officers she then noticed a car exit the parking lot which she recognized as belonging to Salinas, a person she knew as "Boxer." When the officers showed her a photograph of petitioner Diaz confirmed the photo depicted the person she knew as "Snappy" or "Snaps." Diaz said Salinas came into the mini-mart within minutes of the shooting asking questions about the investigation and to ask her what she had seen. Diaz said she saw a car she believed belonged to Salinas and asked whether he was responsible for the shooting. Salinas agreed it was his car but denied being involved in the shooting. Diaz did not tell the officers Salinas claimed to know who had committed the shooting.
Sergeant James Craigs testimony at the hearing was consistent in all material respects with Detective Joness testimony. Contrary to petitioners suggestion, he did not contradict Detective Joness testimony stating Diaz never informed them Salinas claimed to know the identity of the shooter. Instead, Sergeant Craig stated he could not recall whether Diaz had relayed this information or not. If Sergeant Craig contradicted Detective Joness testimony at all, it was only the portion of his testimony in which it was apparent he misunderstood the prosecutors question.
After Diaz identified petitioners photograph the officers put his photo in a six-pack photo array and showed it to Carey who selected petitioners photo as looking like the man who shot him, except the shooter had a slight mustache. When shown a second photographic lineup with an updated photo of petitioner Carey positively identified petitioners photo as the man who shot him.
Detective Jones acknowledged he had not filed a police report of his interviews with Diaz and further acknowledged her name appeared in no other report concerning the case. Jones explained Diaz was very concerned for her safety and had expressed a real fear of gang retaliation if any of the gang members discovered she was assisting law enforcement. The officers shared her concerns because they knew West Side Longo gang members were very violent and that the risk of retaliation was "significant." The officers agreed not to divulge her identity in any written report which could become public record. The officers also acknowledged Salinass name did not appear in any of the police reports except in the affidavit for the search warrant for his home and no report mentioned his car was used in the crime.
At this point Detective Jones produced a single sheet of paper with a third to a half page of handwritten notes on it dated July 15, 1994. This was the first anyone knew about the notes existence. The note had Diazs name, address and telephone numbers. The note listed the names "Creeper" and "Boxer." The balance of the note stated: "Boxer whi veh. (Poss. Datsun) [¶] Both susp.s in store prior to shooting [¶] Boxers veh. left scene after shots [¶] Boxer returns to station asks questions about invest." There is a later notation stating "Lil Man [¶] MH 17-18" which was information not obtained from Diaz.
On questioning by defense counsel Detective Jones explained his note did not mention petitioner because he already considered him the focus of the investigation.
Deputy District Attorney Whelan was assigned the case shortly before trial was scheduled to begin. He met with Detective Jones and Sergeant Craig on the first day of the trial. At this meeting the officers told him about Diaz and the information she had provided to the police. Detective Jones relayed Diazs concerns for her safety if exposed as providing information to the police. Jones informed Whelan Diaz was so fearful she would not be willing to testify at trial. Whelan agreed not to call her as a witness but explained to the officers he would have to relay this information to defense counsel.
Defense Counsel Ronald K. Perry:
Ronald Perry was petitioners trial counsel. On the first day of trial prior to jury selection Whelan informed him the clerk at the mini-mart the night of the shooting was a prospective witness. Whelan told Perry the clerk would identify his client as being present in the mini-mart, and testify he had words with the victim as he passed the victim on his way out of the store. Whelan gave Perry Diazs name, address and telephone numbers.
Perry did not conduct an independent investigation of Diaz. He had been in many trials with Whelan and respected him as a "straight shooter." Perry explained he had no reason to doubt Whelans representation Diaz would identify his client as being inside the mini-mart just before the shooting and for this reason did not want to call her as a witness at trial. Perry explained, because neither Ramos nor Brown identified petitioner from the photo array, and because neither witness placed petitioner in the mini-mart, he "had that disparity of testimony going for [the case]. I didnt want to have somebody come in and destroy that conflict of evidence." Diaz in fact did not testify at trial.
As part of his trial strategy Perry relied on the conflicts in the witnesses testimony, the fact Carey had been drinking and was likely intoxicated, and on the alibi provided by Connie Martinez and Johnny Herrera. Perry also relied on Herrera to provide him information and witnesses. Herrera attended the trial every day, he was a former member of the West Side Longo gang, and was intimately familiar with what was happening on the west side of Long Beach. Regarding the information about Diaz, Perry testified he believed he asked his investigator to review the information with Martinez and Herrera. Perry acknowledged neither petitioner, Martinez, Herrera, nor any other person ever told him someone else had been the shooter. Because Perry never had this information, he never interviewed Gomez, Padilla, or Miranda. Martinez paid Perry from funds she had received from a personal injury settlement she had received. He did not recall payments or funds coming from any other source. Also, Perry did not recall receiving any information from Whelan about the car leaving the scene of the crime belonging to Salinas.
Deputy District Attorney Dennis Edward Whelan:
Whelan prosecuted the case against petitioner. At the time of the hearing Whelan was retired after 26 and a half years in the District Attorneys office. He recalled very few details about the case. All he could independently remember was he received the case on Friday April 17, 1995, the day jury selection was to begin, and the case trailed to the following Monday. On cross-examination, Whelan acknowledged his trial notes did not list Diaz as a potential witness, and none of his notes in the case file contained Diazs or Salinass names.
Courts Ruling After 1999 Evidentiary Hearing:
First, the court stated it did not consider any of Salinass testimony because after he invoked the Fifth Amendment and refused to testify the court struck his limited testimony on direct because the prosecutor was not able to cross-examine him. Regarding the other witnesses, the court stated it had considered "the many and varied motivations a number of various witnesses had to fabricate or color their testimony, have lapses of memory, real or intentional, as well as the timing of the events, when witnesses came forth with statements and under what circumstances, as well as the evidence given during the trial, the time of petitioners arrest (August 13, 1994), the time of his conviction (April 26, 1995), the death of Richard Medina (November 9, 1995), and my judgment on the believability of the witness[es] who testified at the hearing."
The court found petitioners trial counsel Perry was not ineffective or incompetent and petitioner suffered no prejudice from counsels representation. The court found Perry learned before trial of Diazs identity and that she had identified petitioner as being in the mini-mart just prior to the shooting. The court noted her testimony would have been damaging to his alibi defense. The court acknowledged Diaz first changed her testimony in 1996 and again in 1998 and that her new and different story after the trial could have helped the defense, "but she would still be faced with her first statement to the police investigators—offered for their truth, along with the motivation for the change as fear." The court credited the testimony of the investigating officers regarding how Diaz told them she had seen petitioner in the store exchanging words with the victim just prior to the shooting. The court also noted in her taped interview in 1998 Diaz conceded her memory was better in 1994 when she first spoke to the officers about the shooting, implying her earlier statements were the correct ones.
In summary, the court concluded none of the evidence presented at the hearing "casts a fundamental doubt on the reliability of the trial proceeding, or completely undermines the peoples case, or proves factual innocence." Accordingly, the court denied the writ.
2002 Evidentiary Hearing:
In April 2000 petitioner filed a third petition for a writ of habeas corpus (B140521). On May 1, 2001, this court issued an order to show cause and directed a new evidentiary hearing held before a judge other than Judge Charles Sheldon who had presided at trial and at the first evidentiary hearing. The second hearing occurred between June 7 and June 11, 2002, before Judge Arthur Jean. The parties stipulated the court could consider all testimony provided at the first hearing. The live witnesses at the second evidentiary hearing were mini-mart clerk Patricia Diaz, Deputy District Attorney Whelan, Detective Jones, petitioners current counsel, Richard Fitzer, and defense investigator Kristen Knowles. Items admitted into evidence included the audiotape and transcript of Diazs 1998 interview, Detective Joness and Sergeant Craigs declarations, Detective Joness note from his July 1994 interviews with Diaz, and Medinas death certificate.
Melchor Salinass Declaration:
In November 1996 defense investigator Kristen Knowles twice tried to interview Salinas. On advice of counsel, Salinas invoked the Fifth Amendment and refused to talk to the defense investigator. After his brief testimony at the 1999 evidentiary hearing and invocation of his Fifth Amendment privilege Salinas was deported to Mexico. The parties stipulated defense investigator Kristen Knowles had exercised due diligence in attempting to secure his presence for the 2002 evidentiary hearing.
Petitioners appellate counsel Fitzer testified to the circumstances leading up to Salinass declaration. In 1997 he wrote letters to Salinas requesting an interview with him. Salinas was then incarcerated in state prison after a conviction apparently for child endangerment. Salinas eventually responded to counsels letters in October 1997. In December 1997 Fitzer and staff attorney Nancy Gaynor interviewed Salinas in prison. Ms. Gaynor took notes of the interview. Salinas began the interview by stating he knew exactly what happened, he had nothing to do with the crime, and because he was so fearful of retaliation, he would not reveal the name of the person driving his car the night of the shooting. Salinas explained the person was still alive and on the streets, unlike the shooter who is now dead.
From Ms. Gaynors notes Fitzer prepared a declaration for Salinass signature. According to Ms. Gaynors notes, Salinas said Medina rode up to his house on a bicycle and asked to borrow his car, "saying he needed it to do something real fast or drop something off." In contrast, Salinass declaration states, "Medina asked if he could borrow my car."
Salinas stated after the shooting Medina and the driver returned to his house and told him to go over to the station immediately so he would not be considered a suspect because his car was used in the crime. According to Gaynors notes, Salinas said he left to go to the mini-mart "[m]eanwhile, either DD Boy [Medina] or the driver took the car and parked it a couple of blocks away (see diagram)." In his declaration, by contrast, Salinas stated "Medina told me to go to the gas station so I would not get into trouble. I told Medina to park my car at a different location. I never got my car back."
During the interview Salinas expressed his fear of retaliation and fear of being considered a "rat" for providing information about the shooting because it could get him killed. Ms. Gaynor noted for this reason Salinas "wants us to show his declaration to Thomas (`Tatoo—Heather [Green] can reach him) and have Thomas okay that hes not saying too much, before he signs it."
Fitzer remembered Salinas stated he wanted "Tatoo" to approve the declaration before signing it, and acknowledged he had not included this piece of information in the declaration he prepared for Salinass signature. Fitzer stated he did not personally ensure "Tatoo" approved Salinass declaration and had no knowledge whether Salinas had done so on his own. Fitzer could only testify that after several weeks and some prompting, Salinas mailed him a signed, but undated, copy of his declaration sometime in late January 1998.
Deputy District Attorney Dennis Whelan:
Whelan stated since his testimony at the last evidentiary hearing he had reviewed his prior testimony, the DA file on the case with the prosecuting attorney from the first evidentiary hearing, and various materials provided by defense counsel. Based on his review of this information Whelan stated his memory of the case was now much better than it was at the last hearing.
Whelan recalled this case was a "hand off" from the hard-core gang division. Trial was to begin the next day before Judge Sheldon. In the courtroom he met Detective Jones and his partner Craig. They later had a private meeting to discuss the case. Detective Jones told him the clerk at the mini-mart had identified petitioner as being present in the store before the shooting. Jones further informed Whelan, based on the clerks identification of petitioner, he prepared a six-pack containing petitioners photo. This six-pack photo array was then shown to the victim who identified petitioner as the shooter. Jones explained to Whelan Diaz was terrified of being linked in any way to the police. She did not want to testify and did not want her name to come out at trial.
Either that Friday or the following Monday before jury selection Whelan provided defense counsel Diazs name, address, and telephone numbers and told him "this witness identified your client as being present at the gas station. And shes a potential witness." Whelan did not recall Detective Jones giving him any information about Salinas or about Salinass car being used in the crime.
Whelan did not call Diaz as a witness at trial. He did not list her as a potential witness on his witness list and made no notes regarding Diazs existence or the fact he had relayed this information to defense counsel. As Whelan explained it, because he received the case so late he had not interviewed any of the potential witnesses. He decided to evaluate the strength of the victims testimony and then decide whether he needed Diazs testimony to bolster the prosecution case. Whelan acknowledged there was no independent evidence to corroborate the victims testimony, but he believed Careys testimony was so strong, and his identification so powerful, Careys testimony was alone sufficient to carry his burden of proof.
Patricia Diaz:
Diaz explained she was working as the cashier in the Mobil gas station mini-mart the night of the shooting. When she heard the gunshots she jumped onto the counter and saw a small white car exit the lot. She did not know the car belonged to Salinas. Salinas had been in the store talking with her until five minutes before the shooting. He returned after the shooting to ask her what she had seen. Salinas told her the white car she saw belonged to him and he had lent it to the assailants. Diaz asked Salinas if he knew who committed the shooting. He said he did know but did not tell Diaz. Salinas told Diaz to keep her mouth shut and to not say anything.
She recalled being questioned by two officers the next day. She also recalled another meeting with police officers in which she reviewed a big book of photos and picked out several photos of persons she recognized has having frequented the mini-mart before. One of the photos she picked out was a photo of petitioner. She recalled telling the officers Salinas had been in the store that evening but could not recall whether she also told them Salinass car had been used in the shooting. She remembered another meeting with police officers at a restaurant at the harbor where they ate fish tacos. The officers asked Diaz whether she had any more information about the shooting. Diaz said she did not. The officers told her they would help to clear out her outstanding warrants if she could provide them useful information about the case. Diaz responded she would appreciate the help with her warrants but did not know anything more.
Diaz acknowledged she had previously stated petitioner had been in the mini-mart the day of the shooting. However, she was now positive petitioner had not been inside the store for at least an hour prior to the shooting.
On cross-examination Diaz admitted this was the first time she had ever claimed to have told the officers Salinas admitted to her he knew who had committed the shooting. In her taped interview in 1998 and at the first hearing in 1999, she had testified she did not believe she had shared this information with the officers. When confronted with her prior statements Diaz agreed her memory was better on those earlier occasions, and further agreed her memory of the night of the shooting was probably also better when she first provided information to Detective Jones rather than now eight years later.
She either denied, or claimed she could not recall, telling Detective Jones and his partner Sergeant Craig petitioner had been in the store just prior to the shooting, had words with the victim as he left the store, and identifying petitioner as "Snappy" or "Snaps" to the police when they spoke to her the next day.
The prosecutor inquired whether she had any reason right after the events in 1994 to fabricate what she then told Detective Jones. Diaz responded, "I have no idea—no reason to lie, but I could say that within that week I was a little afraid, I would say. I was a little confused whether should I get involved or not just because of the fact that they are gang members. And I absolutely didnt want to do anything with that, yeah." When asked to explain why she had never before stated she was sure petitioner was not in the mini-mart at least an hour before the shooting, Diaz stated, "I dont remember. I am going to tell you that one more time, I dont remember. [¶] And I feel this is getting a little pressuring to me because you are having me go way back then. And I cannot say something I said back then because at this point in time, I mean, I have been married. I got two kids. I dont remember what I said back then. [¶] For example, the refreshing my memory [of her 1998 interview] that I said I dont remember, yes, that is correct. I did say that. But I do not remember telling the officers that I did see George Ruiz. And the reason why, and I am very positive about that, because I had no contact with George Ruiz. And I did not know—I knew him facially.
"Thats why I am very positive of what I am saying and of myself. Because, you know, I can tell you I cant say George Ruiz was in there because, first of all, I did not know this guys name. I did not know his nickname. So when they showed me the picture and they said, do you recognize him, could he have been in the store, I said, okay, face-wise he could have been in the store."
At this hearing, and for the first time, Diaz revealed her brother had been a member of the West Side Longos.
Detective David Jones:
The detectives testimony was substantially similar to the testimony he provided at the earlier evidentiary hearing.
Courts Rulings After 2002 Evidentiary Hearing:
First the court heard argument regarding whether Salinass declaration met the Evidence Codes requirements to be admitted for its truth as an exception to the hearsay rule as a statement against penal interest. The court found Salinass declaration did not qualify as a statement against penal interest and denied petitioners request to admit Salinass declaration into evidence.
After some introductory comments the court made findings regarding the credibility of the witnesses. "[M]y view of Patricia Diaz is that she is, was, has been and probably ever will be frightened to death of participating in this case. I am not sure that we can depend on a single thing that this woman said to us, that she said to Judge Sheldon. Her credibility is really zero. [¶] In listening to her it was almost as if she was looking me in the eye as I asked her some questions and was telling me, Judge, I am lying to you because I have to. It is my own survival that I am concerned with. [¶] And while it is hard for me to condone telling an untruth in court, I understand it.
"The officers in this case, Craig and Jones, I think they should have made a full police report in this case. And they should have from the very beginning disclosed to the filing Deputy District Attorney and any intervening trial Deputy District Attorney everything about Diaz that they knew. [¶] And yet I can understand what they did. And I can understand the motivation that caused them not to reveal Diazs participation in this case. You know we here in courtrooms, especially judges, we sit removed from the community. And we sit removed from the street on which these officers and witnesses have to walk. [¶] And sometimes we can speak in great platitudes and generalities. But to be there with a frightened human being and to understood [sic] and to acquiesce to that frightened human being, especially with the gang atmosphere, can be quite a different matter. [¶] I dont know where defense I came from [sic]. But I suspect that if Jones and Craig wanted to come up with some document at the time of the hearing before Judge Sheldon, they could have done a better job with it than defendants I. And besides, it rings true that they had nothing on which to go [] in this case but for Diazs confidential quote, unquote, disclosure to them that Snappy was in the store and had passed the victim just preceding the shooting out in the parking lot because where else would they have gotten the idea to put Snappys photograph in a mug run.
"Credibility of Whelan and Perry, if I can lump them together into a category. From everything I have read of these men and their participation in this case, I have no reason, and I say no reason, to believe that they are not telling me or Judge Sheldon the truth, as they know it to be, in how they handled this case. They both appear to be honorable men, honorable professionals, fallible human beings as I am, trying to do the best they can with the materials that they have given to them to work with.
"The credibility of Salinas: He is a gang member, was connected to Mr. Ruiz, connected to Mr. Medina behaving in a conflicted manner both with Mr. Fitzer and with the court once he got here to court. He has a positive motivation to lie. . . . Not only is Mr. Ruiz his friend but Mr. Ruiz is his colleague. Mr. Ruiz is his brother in the enterprise known as West Side Longos.
"Gomez and Padilla should get lumped into that same category as Salinas. They are fellow gang members. They are people with a motivation to lie. Of the three of these men, that is that Medina did the shooting, just doesnt fit with the identification that victim Carey made in this case. [¶] I have seen a photograph of Medina. I have seen a photograph of defendant. These people do not look alike.
"Mr. Carey, the poor victim in this case who went out to get another beer or two, and for his trouble will carry an injury that will affect him probably the rest of his life, made a sound identification. He looked at a mug run that nobody has suggested to me in any way that it was unfair and identified in a strong way Mr. Ruiz. [¶] He suggested a warning, however, that the person that he saw doing the shooting had a moustache. And within a short time the officers produce this photograph of the moustache. And Mr. Carey is positive. He is positive at trial.
"I am aware of the often problematic nature of an eyewitness identification. But in this case if you consider Miss Diazs statement to the officers identifying Snappy as having been in the station just preceding the shooting, if you look at the membership that Mr. Ruiz has with the gang, if you consider the photographs of Mr. Ruiz bearing arms on behalf of the gang, then Mr. Careys identification rings true to this court even though I have not met him in a courtroom."
The court then reviewed the evidence surrounding petitioners claims of actual innocence based on the newly discovered evidence Medina was the shooter, ineffective assistance of counsel based on trial counsels failure to independently interview Diaz, and Brady error based on the governments failure to promptly and fully disclose the information they had concerning Diaz. The court found petitioner failed to carry his burden of proving prejudice or materiality to support any of his claims and denied the writ.
Brady v. Maryland (1963) 373 U.S. 83.
Petitioner seeks review of the courts findings and conclusions in this his fourth petition for a writ of habeas corpus.
People v. Garrett (1998) 67 Cal.App.4th 1419, 1423 ["The denial of a petition for writ of habeas corpus is reviewable by means of a petition for writ of habeas corpus."]
DISCUSSION
I. STANDARD OF REVIEW.
"The proper allocation of the burden of proof in habeas corpus proceedings is well settled. `Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. "For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Societys interest in the finality of criminal proceedings so demands, and due process is not thereby offended." [Citation.] (People v. Duvall (1995) 9 Cal.4th 464, 474; see People v. Ledesma (1987) 43 Cal.3d 171, 243 (conc. opn. of Grodin, J.) [habeas corpus petitioner must prove by preponderance of evidence his or her entitlement to relief]; In re Imbler (1963) 60 Cal.2d 554, 560.)"
In re Johnson (1998) 18 Cal.4th 447, 460.
"Equally well settled is the standard of review of the referees findings. A referees findings on factual questions are not binding on us, but are entitled to great weight when supported by substantial evidence. (In re Malone (1996) 12 Cal.4th 935, 946.) Deference to the referee is called for on factual questions, especially those requiring resolution of testimonial conflicts and assessment of witnesses credibility, as the referee has the opportunity to observe the witnesses demeanor and manner of testifying. (Ibid.; see also In re Avena (1996) 12 Cal.4th 694, 710.) If, however, the referees factual findings are not supported by ample, credible evidence, we may disregard them. (In re Hitchings (1993) 6 Cal.4th 97, 122.) The referees resolution of any legal issues or of mixed questions of law and fact is subject to our independent review. (In re Cordero (1988) 46 Cal.3d 161, 180-181.)" Similarly, "deference is arguably inappropriate when the referees factual findings are based entirely on documentary evidence."
In re Johnson, supra, 18 Cal.4th 447, 461.
In re Cudjo (1999) 20 Cal.4th 673, 688.
We review the courts findings with these standards in mind.
II. PETITIONER FAILED TO CARRY HIS BURDEN OF PROVING NEWLY DISCOVERED EVIDENCE DEMONSTRATES HIS FACTUAL INNOCENCE.
Petitioner contends the testimony of Diaz, Padilla, Miranda, Gomez, with or without Salinass declaration, "unerringly points to petitioners innocence." Petitioner argues Diazs testimony demonstrates he was not present at the mini-mart at the time of the shooting and the other witnesses testimony establishes Medina was the person who actually shot Carey.
To establish a claim of actual innocence requires "newly discovered, irrefutable evidence of innocence of the offense or degree of offense of which the petitioner was convicted. Although the evidence could and should have been discovered earlier, the delay in making the claim would not be a bar to consideration of the merits of the petition if the petitioner satisfied the court that the evidence was such that it would `undermine the entire prosecution case and point unerringly to innocence or reduced culpability. (People v. Gonzalez [(1990)] 51 Cal.3d 1179, 1246.) Evidence relevant only to an issue already disputed at trial, which does no more than conflict with trial evidence, does not constitute `"new evidence" that fundamentally undermines the judgment." (Id. at p. 1247.) Again, the petitioner would bear a heavy burden of satisfying the court that the evidence of innocence could not have been, and presently cannot be, refuted. The requirement that a petitioner demonstrate his or her innocence requires more than a showing that the evidence might have raised a reasonable doubt as to the guilt of the petitioner. The petitioner must establish actual innocence, a standard that cannot be met with evidence that a reasonable jury could have rejected."
In re Clark (1993) 5 Cal.4th 750, 798, footnote 33.
To prove his innocence and establish Medina was the actual shooter requires fully crediting petitioners witnesses. Judge Sheldon who observed each of them testify found each witnesss testimony lacked credibility. Judge Jean observed Diaz testify and reviewed the transcripts of the other witnesses testimony and similarly found their testimony not worthy of belief. In deferring to the courts findings of credibility where appropriate, and after an independent review of the witnesses declarations and transcripts of the witnesses testimony from the various hearings and interviews, we conclude the courts findings these witnesses lacked credibility are amply supported by the entire record.
At the latest hearing Diaz testified she was positive petitioner was not in the mini-mart an hour before the shooting. This testimony stands in stark contrast to Careys testimony positively identifying petitioner as the man exiting the mini-mart as he entered and as the man he later saw firing the weapon. This testimony also stands in stark contrast to Detective Joness testimony relaying Diazs statement to him immediately after the shooting saying "Snappy" was in the store, had words with the victim when he exited, and that moments later she heard gunshots. Diazs most recent version of the events may have contradicted Careys identification of petitioner as the shooter. It may also have raised a question about the relative credibility of the witnesses. However, the possibility of creating a reasonable doubt about petitioners guilt with conflicting evidence the jury could have rejected is insufficient to meet the test of establishing the newly discovered evidence "undermine[s] the entire prosecution case and point[s] unerringly to innocence or reduced culpability," the necessary showing to establish actual innocence.
See In re Johnson, supra, 18 Cal.4th 447, 462 [in attempting to prove actual innocence a petitioner is not also required to establish there is no conceivable basis on which the prosecution might have succeeded, and is not required to prove the prosecutions evidence was unreliable].
In re Clark, supra, 5 Cal.4th 750, 798, footnote 33.
Padilla, Gomez, Miranda and Martinez all provided testimony indicating Medina had admitted being the shooter. They came forward only after Heather Green of the Long Beach Cultural Center asked them whether they had any information which would assist petitioner in seeking a writ of habeas corpus. Years had passed since the crime, yet for the first time each shared detailed information implicating the now deceased Medina as the shooter. None of these persons had shared this information with defense counsel during petitioners trial although defense counsel claimed to be relying on Johnny Herrera to keep him informed about anything useful he might learn from fellow gang members. Of course, at the time of trial Medina was still alive and not yet a potential scapegoat for the crime. Notably, not one of the witnesses offered a plausible explanation why they had waited so long to come forward. Moreover, not one of the witnesses explained why he or she had not come forward on his or her own until urged to do so by Heather Green.
For all these reasons the witnesses testimony about Medinas actions and admissions regarding the shooting is suspicious and therefore lacks credibility. The declarant, Medina, is dead. In addition, each of these witnesses had a motive to manipulate his or her testimony to help petitioners cause. They were partners with, or associates of, petitioner, involved in a criminal enterprise. This association suggests a bias in favor of petitioner, a fact which further undermines their credibility.
Were we to consider Salinass declaration for its truth as a declaration against penal interest, we would find his statements suffer from the same defects. "To determine whether the declaration passes the required threshold of trustworthiness, a trial court `may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarants relationship to the defendant. ([People v. Frierson (1991) 53 Cal.3d 730, 745.]) On appeal, the trial courts determination of this issue is reviewed for abuse of discretion. (Ibid.)"
Evidence Code section 1230 describes the exception to the hearsay rule for declarations against interest. This section provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
This exception does not apply to statements or portions of statements which are not specifically disserving to the interests of the declarant. (People v. Leach (1975) 15 Cal.3d 419, 441.) Thus, many of the statements in Salinass declaration would not be admissible in any event. Many describe Medinas actions and statements about the shooting and thus are contrary to Medinas, and not Salinass interest. However, two of Salinass statements about lending Medina his car and later telling Medina to park the car elsewhere, could, when based on reasonable inferences from these words, amount to potential liability as an accomplice to the crime and thus could be construed as statements against Salinass interest.
Salinas could not be found to testify at the second evidentiary hearing and the parties stipulated the defense investigator had exercised due diligence in attempting to secure his presence for the hearing.
People v. Cudjo (1993) 6 Cal.4th 585, 607.
Salinas had been petitioners close friend since childhood. He and petitioner were members of the same criminal street gang. Salinas is, in addition, a convicted felon. Moreover, as this last hearing demonstrated, Salinas did not volunteer his declaration. Instead, it required prompting from defense counsel before Salinas would even agree to be interviewed. Once they agreed to meet, Salinas opened the discussion with an announcement he would refuse to divulge the identity of the driver of the car because the person was still alive. This statement makes it clear Salinas had not intended to provide an open and honest discussion about the shooting from the beginning. This is made clearer still when at the close of the interview Salinas informed defense counsel he would not sign any declaration until "Tatoo" had reviewed it and given his okay to make sure Salinas had not said too much. This comment suggests there were only certain things Salinas could say and for this reason his declaration required approval from someone else to make sure Salinas had not deviated from the safe path (or script).
Given these circumstances we find the courts refusal to consider Salinass declaration was not abuse of discretion. Considering the entirety of the circumstances surrounding its creation, Salinass relationship to petitioner, and Salinass likely bias, we conclude his declaration lacks the necessary indicia of trustworthiness and credibility to be accepted for its truth.
People v. Cudjo, supra, 6 Cal.4th 585, 608 ["Because the rule excluding hearsay is based on these particular difficulties in assessing the credibility of statements made outside the jurys presence, the focus of the rules several exceptions is also on the reliability of the out-of-court declaration. Thus, the various hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for the absence of the oath, cross-examination, and jury observation."]
In sum, these witnesses testimony lacked the credibility sufficient to "undermine the entire prosecution case and point unerringly to innocence. . . ." Accordingly, we further conclude the court did not err in denying the writ on the ground of factual innocence.
In re Clark, supra, 5 Cal.4th 750, 798, footnote 33; see also, People v. Gonzalez (1990) 51 Cal.3d 1179, 1246 ["a criminal judgment may be collaterally attacked on the basis of `newly discovered evidence only if the `new evidence casts fundamental doubt on the accuracy and reliability of the proceedings"].
III. PETITIONER HAS FAILED TO DEMONSTRATE HE RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL.
Petitioner argues he was denied his Sixth Amendment right to the effective assistance of counsel. He claims counsel was ineffective because he blindly relied on the prosecutors second-hand representation Diaz would identify him as having been in the mini-mart moments before the shooting rather than conducting his own independent investigation of this eyewitness. He claims an investigation of Diaz would have revealed he was not in the store prior to the shooting and further revealed it was Salinass car which was used in the shooting.
In denying petitioners claim of ineffective assistance of counsel after the second evidentiary hearing, the trial court stated: "In my opinion, Mr. Perry in some aspects didnt act as a defense counsel should have. Maybe there are reasons for it that I dont know. But from what I can see, he did not. [¶] I dont know why he didnt independently find Miss [Diaz], after all shes an employee of a retail establishment. She is not some transient hauled off the street to sell strawberries on the corner." The court further noted: "And in my view Mr. Perry should have gone back to Miss Diaz after the trial. He should have informed, and perhaps did, I dont quite remember, Judge Sheldon that he was given the name of a potential eyewitness. And if he had, who knows what Diaz would have said to him. It appears to me that he may have—she may have continued to lie out of self preservation. But who knows. [¶] And by saying who knows and by saying that I find that Jones and Craig are credible witnesses, whatever Miss Diaz would say, if it was contrary to what she told Jones and Craig, she could have and would have been impeached at trial.
"So while there may have been a sliver of ineffectiveness on the part of Mr. Perry, and isnt there always some sliver of ineffectiveness as to us all, its my opinion that nothing prejudicial occurred."
To establish a claim of constitutionally ineffective assistance of counsel requires proof counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and or omissions, the trial would have resulted in a more favorable outcome. "`In demonstrating prejudice, however, the petitioner must establish that as a result of counsels failures the trial was unreliable or fundamentally unfair. [Citation.] "The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington [(1984)] 466 U.S. [466] at p. 686.) (In re Visciotti [(1996)] 14 Cal.4th 325, 351-352.)"
Strickland v. Washington (1984) 466 U.S. 668, 694.
In re Cudjo, supra, 20 Cal.4th 673, 687.
Where the trial court has denied habeas corpus relief after an evidentiary hearing an appellate court is entitled to undertake an independent review of the record to determine whether petitioner has "established by a preponderance of substantial, credible evidence, [citation] that his counsels performance was deficient and, if so, that [he] suffered prejudice. [Citation.]"
In re Resendiz (2001) 25 Cal.4th 230, 249.
"`[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments."
In re Cudjo, supra, 20 Cal.4th 673, 692, quoting Strickland v. Washington, supra, 466 U.S. 668, 690-691.
In this case defense counsel explained he decided not to conduct an independent investigation of Diaz because the prosecutor told him she would identify petitioner as being present shortly before the shooting and because the prosecutor told him he would likely not be calling her as a prosecution witness. Defense counsel believed the prosecutor was a "straight shooter" based on past experience, and thus believed he could safely rely on the prosecutors representations.
The problem is these were not the prosecutors direct representations. The prosecutor instead relayed second hand information he received from the police. The prosecutor received the case at the last minute and admitted he had not interviewed any of the witnesses. The prosecutor thus had no personal knowledge of any of Diazs potential testimony he relayed to defense counsel on which counsel could confidently rely. This point is underscored by the fact the parties later learned the police had not conveyed all the information Diaz had earlier provided them. Detective Joness note from his interview of Diaz on August 15, 1994, makes it clear Diaz had also told the officers the car used in the crime belonged to Salinas. The officers apparently did not relay this additional piece of information to the prosecutor, and as a consequence he necessarily could not and did not relay all available information to defense counsel.
The conclusion appears inescapable it was unreasonable for defense counsel to adopt at face value police representations about what information Diaz could provide without conducting his own independent investigation of this eyewitness. In other words, his decision not to investigate was unreasonable because it was neither informed nor tactical. Accordingly, counsels judgment in this regard is not deserving of deference.
Compare, In re Hall (1981) 30 Cal.3d 408, 424-427 [defense counsel did not hire an investigator to assist him and instead relied on the police to conduct an adequate investigation for the defense].
In re Cudjo, supra, 20 Cal.4th 673, 692.
People v. Frierson (1979) 25 Cal.3d 142, 166.
As the court noted, Diaz was not a difficult witness to find. She was an employee of a commercial establishment which could have easily verified her address and phone number, or made her available for interviews. There was, in short, no reasonable explanation for failing to verify the information he received about Diazs potential testimony.
The question remains whether counsels deficient performance prejudiced petitioners case.
Petitioner argues had counsel interviewed Diaz she would have told him (1) she did not see petitioner in the mini-mart just prior to the shooting; (2) she heard gunshots moments after a "normal" customer left the store; (3) she saw a small white car she believed belonged to Salinas leave the gas station; (4) Salinas came to the mini-mart immediately after the shooting to inquire about what Diaz had seen; (5) Diaz told Salinas she saw nothing except his car and asked if Salinas was responsible for the shooting; (6) Salinas told Diaz he knew who had done the shooting; and (7) Salinas said he let the shooter borrow his car. He claims if nothing else an interview with Diaz would have provided evidence to contradict the victims identification and would also have led to Salinas and possibly the true identity of the shooter.
In making these claims petitioner necessarily has to make several assumptions. If counsel had interviewed Diaz prior to trial, and thus shortly after the crime, she may well have provided statements consistent with those given to Detective Jones and Sergeant Craig. If this were the case Diaz would have confirmed petitioners presence in the mini-mart just prior to the shooting and reaffirmed this assertion by identifying a photo of petitioner as the person she knew as "Snappy." On the other hand, defense counsel might have learned the car Diaz saw leaving the station after the shooting belonged to Salinas.
It is possible Diaz would have instead testified as she did during her 1998 interview, namely because it had been so long, and because no one had ever required her to provide statements under oath, she was no longer sure whether she saw "Snappy" in the mini-mart before the shooting. Alternatively, she could have testified as she did during the 1999 evidentiary hearing "Snappy" was not in the mini-mart at least an hour before the shooting, but could have been in some time that day. It is also possible Diaz would have testified as she did during the 2002 evidentiary hearing in which she stated she was now positive the person now identified to her as George Ruiz was not in the mini-mart prior to the shooting and that Salinas told her he knew who had committed the shooting but would not identify the person. In other words, assuming she would have provided statements favorable to the defense and thus inconsistent with her previous statements to the police, the prosecutor, as he stated at the evidentiary hearing, would have presented the testimony of Detective Jones and Sergeant Craig and impeached her testimony with her prior statements to them. These officers would have told the jury that but for Diazs identification of "Snappy" as the person in the mini-mart having words with the victim just prior to the shooting, they would not have narrowed their search of possible suspects within the 800-member West Side Longo gang to an investigation of petitioner as the likely shooter. These officers would have also told the jury because of Diazs identification of petitioner they included his photos in the photo arrays shown to the victim. The officers would have explained to the jury Careys selection of petitioners photos as the shooter corroborates the accuracy of the information Diaz initially provided to the police.
We note despite numerous opportunities, petitioner has not once challenged either photo array as unduly suggestive. We also note the evidence established Medinas and petitioners appearances are very dissimilar.
Finally we note, two separate judges observed Diazs demeanor while testifying and found her in-court testimony not credible. Given her extreme level of fear of retaliation, her equivocal and varying versions of events, and recent adamant denials of even minor details, such as familiarity with petitioners gang moniker, it is more probable than not a jury would similarly find her recent testimony not credible and reject it in favor of the version she initially provided to police.
It is true defense counsel would have likely learned more about Salinass involvement had he independently interviewed Diaz. Nevertheless, it is apparent from defense counsels questioning at the Evidence Code section 402 hearing regarding execution of the six search warrants, and specifically the search of Salinass home,
defense counsel was aware of Salinas and his potential involvement in the crime. In any event, had defense counsel interviewed Diaz pretrial he might have learned additional information about Salinas, such as information the car used in the crime belonged to Salinas and possibly information about Salinas claiming to know who had committed the shooting. However, it is improbable Salinas himself would have testified at trial. In 1996 Salinas invoked the Fifth Amendment and refused to speak with the defense investigator. At the first evidentiary hearing in 1999 Salinas again invoked his Fifth Amendment right and refused to testify. According to his counsel at that hearing, Salinas would not have even agreed to provide petitioners defense counsel with an interview or declaration had he been represented by counsel at the time and properly advised. It is more unlikely still Salinas would have fingered Medina as the shooter because Medina did not die until several months after petitioners trial concluded.
In sum, because Diaz was not a credible witness and because it is improbable Salinas would have provided any significant information to the defense, petitioner has failed to demonstrate that but for counsels errors, it is reasonably probable he would have achieved a more favorable result had defense counsel conducted an independent investigation of Diaz prior to trial. Accordingly, the court did not err in concluding petitioner did not suffer prejudice from defense counsels deficient performance.
Strickland v. Washington, supra, 466 U.S. 668, 687.
IV. THE GOVERNMENTS FAILURE TO DISCLOSE POTENTIALLY EXCULPATORY MATERIAL DID NOT RESULT IN A CONSTITUTIONAL VIOLATION.
Petitioner alleges Detective Joness failure to reveal the fact he had taken notes of his July 15, 1994, interview with Diaz, and his failure to provide copies of his note to either the prosecution or defense violated the mandate of Brady v. Maryland which requires the government to disclose all potentially exculpatory or impeaching material in its possession to the defense. Petitioner correctly points out the duty to disclose applies not only to evidence in the prosecutors possession, but also extends to evidence in possession of the police.
Brady v. Maryland, supra, 373 U.S. 83.
See, e.g., Kyles v. Whitley (1995) 514 U.S. 419, 437 ["(T)he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in [the] case, including the police."].
"In Brady [the United States Supreme Court] held `that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S., at 87, . . . . [The Court has] since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, . . . (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 . . . (1985). Such evidence is material `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id., at 682 . . . ; see also Kyles v. Whitley, 514 U.S. 419, 433-434, . . . (1995). Moreover, the rule encompasses evidence `known only to police investigators and not to the prosecutor. Id., at 438 . . . . In order to comply with Brady, therefore, `the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in this case, including the police. Kyles, 514 U.S., at 437 . . . ."
Strickler v. Greene (1999) 527 U.S. 263, 280-281.
The United States Supreme Court in Strickler v. Greene set out a three-part test for analyzing claimed Brady violations. The Strickler Court noted a prosecutors "special status explains both the basis for the prosecutions broad duty of disclosure and [the Courts] conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus 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. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." The Court explained prejudice is shown if "`the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
Strickler v. Greene, supra, 527 U.S. 263.
Strickler v. Greene, supra, 527 U.S. 263, 281-282, footnote omitted.
Strickler v. Greene, supra, 527 U.S. 263, 290; Kyles v. Whitley, supra, 514 U.S. 419, 435.
Detective Joness note could be construed as evidence favorable to the defense. It listed "Creeper" and "Boxer," or Salinas, as two possible suspects who had been in the mini-mart the day of the shooting. It describes the white car leaving the scene as belonging to "Boxer" or Salinas. The note lists Diazs name, address and telephone numbers, indicating she was the source of this information. Petitioners name appears nowhere on the detectives note. Each of these pieces of information could have been used to impeach the officers concerning why they focused their investigation on petitioner, rather than on these other potential suspects. The note could also have been used to refute the prosecutors suggestion the light-colored car used in the crime could have been the white car petitioner usually drove.
It is undisputed evidence of Detective Joness note of his interview with Diaz was suppressed. We agree with the trial court the officers failure to timely disclose Diaz as a potential witness and his failure to disclose the notes he prepared from his initial interviews with Diaz violated both the letter and spirit of the duty of broad disclosure.
The officers had options available to them to effect their legitimate concerns for Diazs safety. The officers could have prepared police reports containing the information they learned from Diaz and protected her identity by describing her as a "confidential informant." Defense counsel would then at least have been apprised of the information and its confidential nature could have been explored in in camera hearings in order to restrict knowledge of Diazs identity to only necessary persons. Had the officers filed such a report all deputy district attorneys involved with the case would have been fully apprised of crucial witnesses and developments concerning the case. More importantly, preparing proper reports explaining the information they received from Diaz would have ensured the defense team timely receipt of the materials to investigate or use as warranted.
As it is, the officers failure to prepare reports and timely divulge this critical information left the case vulnerable to claims of deliberate nondisclosure and subject to constitutional challenges. No doubt the officers believed they were acting in good faith in attempting to protect a scared and vulnerable witness from retaliation from gang members. Their decision to protect Diaz by failing to disclose her existence until the last possible minute was not a decision within their right to make. The officers overriding responsibility was to the constitutional mandates of Brady and to the integrity of the criminal justice system.
Moreover, and as this case vividly demonstrates, the ultimate consequences for their original decision to protect her identity can be devastating for all parties concerned. Diaz has been exposed. The statements she made to the officers have been revealed. She has not avoided testifying in front of petitioner and his fellow gang members. Indeed, because of the officers initial nondisclosure of Diaz and her statements, Diaz has been required to explain her statements not only once in front of a jury, but over and over in interviews, taped and otherwise, and at evidentiary hearings. Her ordeal could have been over in April 1995 at the conclusion of petitioners trial. Instead, at this point it has continued for over nine years in large part as a result of the officers failure to properly execute their duty of preparing necessary reports of witness interviews in their misguided attempt to protect a witnesss identity. The police officers behavior was not only counterproductive but it jeopardized the entire case and resulted in an enormous expenditure of man-hours and judicial resources.
Although we cannot condone the officers deliberate failure to disclose this evidence we nevertheless arrive at the conclusion its absence does not undermine confidence in the verdict or cast the case in an entirely new light.
Strickler v. Greene, supra, 527 U.S. 263, 290, quoting Kyles v. Whitley, supra, 514 U.S. 419, 435.
Although this note would have clearly identified Salinas as being involved in the crime, at least to the extent he lent his car to the perpetrators, it is improbable he would have testified or even provided any useful information for the defense. Petitioners suggestion an interview with Salinas might have led to Medina as the real shooter, or to other exculpatory information, is speculative, given Salinass history. Salinas likely would have taken the Fifth Amendment and refused to testify or even be interviewed. He certainly would not have testified Medina was the shooter because Medina was still alive at the time of trial. Salinass car could not be inspected or compared to petitioners "usual" car because it had since been stolen or "parked elsewhere," depending on which of Salinass version of the events was accurate.
Thus at most, defense counsel could have used the note containing information about Salinas and "Creeper" to introduce the notion of possible suspects other than petitioner in the crime. However, the notion of other possible suspects in the crime would still not have undercut the victims positive identification of petitioner as the shooter. This is especially true because to this date no one has identified the driver of the car, and petitioner makes no claim either Salinas or "Creeper" was the other person in the car. In sum, the effect of the absence of this evidence as regards Salinas is minimal at best.
Even if Diaz testified as she did at the last hearing, stating she was positive petitioner had not been in the mini-mart at least an hour before the shooting it is not reasonably probable the jury would have found her to be a credible witness. As noted, Diaz would have been impeached with evidence of her initial statements to police, stating "Snappy" was in the mini-mart, had words with the victim as they passed, and moments later she heard gunshots. Her testimony would have also been impeached with evidence she picked out "Snappys" photo a week after the crime, confirming he was the person she saw in the mini-mart just prior to the shooting. The officers would have testified they included a photo of petitioner in the six-pack photo arrays based entirely on Diazs identification of him as the person she saw in the store passing the victim just prior to the shooting. The officers version of the events would have provided ample corroboration for the victims later positive in-court identification of petitioner as the shooter.
In sum, petitioner has failed to prove the governments suppression of this potentially favorable evidence resulted in any prejudice to his case.
DISPOSITION
The petition for writ of habeas corpus is denied.
We concur: PERLUSS, P.J. and MUNOZ (AURELIO), J.